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Ciolino v. Gikas

United States Court of Appeals, First Circuit

June 28, 2017

ALFONSO CIOLINO, Plaintiff, Appellee,
v.
GEORGE GIKAS, Defendant, Appellant, CINSIA CIOLINO, Plaintiff, DAVID EARLE; AARON EASTMAN; BRIAN CROWLEY; FRANK G. COUSINS, JR., Sheriff, Essex County; CITY OF GLOUCESTER, Commonwealth of Massachusetts; JOHN DOE, Defendants.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Allison D. Burroughs, U.S. District Judge].

          Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff LLP was on brief, for appellant.

          Robert S. Sinsheimer, with whom Wesley B. Stoker and Sinsheimer & Associates were on brief, for appellee.

          Before Lynch, Kayatta, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         This excessive force case, brought under 42 U.S.C. § 1983, stems from an arrest on June 30, 2013. Defendant George Gikas, a police officer on crowd-control duty, grabbed plaintiff Alfonso Ciolino from behind by the collar and dragged him backward and downward to the pavement, after seeing Ciolino taunting K-9 dogs. The forceful takedown caused Ciolino to sustain a torn rotator cuff. The incident was captured on a 24-second video, admitted into evidence at trial. We are faced with the question of whether to sustain the district court's post-verdict denial of qualified immunity to Sergeant Gikas. See Ciolino v. Eastman, No. 13-cv-13300-ADB, 2016 WL 4148197 (D. Mass. Aug. 4, 2016). We affirm.

         The jury found that Gikas violated Ciolino's Fourth Amendment right to be free from excessive force. Responding to special questions on the verdict form, the jury also found that Ciolino failed to comply with police orders and taunted K-9 dogs immediately prior to his arrest and that Gikas had probable cause to arrest Ciolino on the night in question. The jury did not answer one of the special questions, which asked whether Ciolino was "inciting the surrounding crowd immediately prior to his arrest."

         The district court then denied Gikas's post-verdict motion for judgment as a matter of law, rejecting Gikas's argument that he was entitled to qualified immunity. We agree with the district court that a reasonable officer in Gikas's position would have understood that Gikas's actions violated Ciolino's Fourth Amendment right to be free from excessive force.

         We also find no abuse of discretion in the district court's decisions not to define the word "incited" for the jury, in the context of the special question on the verdict form, and to allow the jury to leave that question unanswered.

         I. Background

         A. Facts

         We adopt the district court's recitation of the facts but provide the following summary. Like the district court, we view the facts in the light most favorable to the verdict, deferring "to the jury's discernible resolution of disputed factual issues." Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010) (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999)).

         On Saturday, June 29, 2013, Alfonso Ciolino, his wife Cinsia, and two other couples attended together the annual St. Peter's street festival in downtown Gloucester, Massachusetts. The group eventually arrived at the St. Peter's Club on Main Street ("the Club"), and Ciolino briefly went inside with one companion to use the men's bathroom while the rest of the group waited outside. Ciolino testified that he had "maybe a beer and a half, maybe two" over the course of the evening and that he was not drunk when he left the Club around midnight.

         A crowd had gathered outside the Club shortly after midnight, which was approximately when Ciolino left the Club. Law enforcement officers from different departments and K-9 dogs were present for crowd-control purposes. Gikas, a Sergeant from the Essex County Sheriff's Department, and his colleague, Sergeant John Pickles, were present on K-9 duty. Two other officers from the same department, Aaron Eastman and David Earle, were also present on plainclothes duty. Around the time Ciolino was leaving the Club, officers ordered the crowd to disperse. Some members of the crowd began moving along the sidewalk; others moved slowly or not at all. Sergeant Gikas and Sergeant Pickles were standing in the street, facing the crowd, which was gathered on the sidewalk. Gikas and his dog were about six feet away from the sidewalk; Pickles and his dog were in front of Gikas, closer to Ciolino and the sidewalk. Ciolino walked away from the Club's exit, in the direction of Sergeant Gikas and Sergeant Pickles.

         On the video, Ciolino is seen walking along the sidewalk, pausing in front of Pickles's dog in the street, and gesturing toward the dog, without ever touching the dog or leaving the sidewalk. Ciolino admits that he also said something along the lines of "Look, the dogs got . . . muzzle[s] in their mouths. They can't do anything." It is clear on the video, and is undisputed, [1]that Ciolino then turns his back to the street, away from Gikas, Pickles, and the dogs. The video shows Gikas's and Pickles's dogs barking continuously toward the crowd both before and after Ciolino's gesture.

         The video shows no visible reaction by Pickles after Ciolino's gesture toward Pickles's dog. Nor does anyone in the crowd appear to react, although the video captures only a portion of the crowd. The district court stated, and the video confirms, that Ciolino "did not use or threaten violence, nor was he inciting the crowd to act violently" in a manner that warranted a sudden and forceful arrest. Ciolino, 2016 WL 4148197, at *5.

         The video shows Gikas then walking up to Ciolino, grabbing Ciolino from behind by at least his shirt collar, and yanking Ciolino forcibly backward and downward, off the sidewalk and onto the pavement in the street.[2] Ciolino is seen falling awkwardly to the ground, landing hard on his right side. The video ends with Eastman and Earle, the plainclothes officers, converging on the prone Ciolino and handcuffing him. Ciolino was later diagnosed with a torn rotator cuff as a result of the incident.

         Ciolino was taken to the police station after his arrest and charged with a Gloucester ordinance violation and disorderly conduct. The Gloucester District Court later dismissed the charges.

         B. District Court Proceedings

         Ciolino and his wife brought suit in federal court on December 31, 2013, pleading § 1983 and state law claims against Gikas, several other officials, and the City of Gloucester.[3] On September 3, 2015, the district court granted in part the defendants' motion for summary judgment but allowed the § 1983 excessive force claim and a state law malicious prosecution claim to proceed to trial against Gikas, Eastman, and Earle.

         The trial began on January 19, 2016. The verdict form included four questions framed and posed by the district court, over Ciolino's objection. The jury answered ...


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