           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2     Champion et al. v. Outlook                   No. 03-5068
        ELECTRONIC CITATION: 2004 FED App. 0270P (6th Cir.)                    Nashville, Inc. et al.
                    File Name: 04a0270p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED:          Francis H. Young, METROPOLITAN
                    _________________                                    DEPARTMENT OF LAW, Nashville, Tennessee, for
                                                                         Appellants. Trent A. McCain, COCHRAN, CHERRY,
 CALVIN B. CHAMPION et al.,        X                                     GIVENS, SMITH & MONTGOMERY, Chicago, Illinois, for
             Plaintiffs-Appellees, -                                     Appellees.       ON BRIEF:       Francis H. Young,
                                    -                                    METROPOLITAN DEPARTMENT OF LAW, Nashville,
                                    -   No. 03-5068                      Tennessee, for Appellants. Trent A. McCain, James D.
              v.                    -                                    Montgomery, Thomas C. Marszewski, COCHRAN,
                                     >                                   CHERRY, GIVENS, SMITH & MONTGOMERY, Chicago,
                                    ,
 OUTLOOK NASHVILLE , INC. et -                                           Illinois, for Appellees.
 al.,                               -
                      Defendants, -                                                          _________________
                                    -                                                            OPINION
 DEBBIE MILLER et al.,              -                                                        _________________
         Defendants-Appellants. -
                                    -                                      KAREN NELSON MOORE, Circuit Judge. The death of
                                   N                                     Calvin D. Champion (“Champion”) shortly after being
        Appeal from the United States District Court                     detained, restrained, and subdued by Nashville Police Officers
      for the Middle District of Tennessee at Nashville.                 presents us with a difficult issue of whether the Officers are
      No. 00-00568—Todd J. Campbell, District Judge.                     entitled to qualified immunity such that we should reverse a
                                                                         jury verdict rendered against them. On April 30, 1999,
                     Argued: April 21, 2004                              Champion overwhelmed the facilities of his caregiver,
                                                                         promoting a response by the Nasvhille Police. Three
             Decided and Filed: August 19, 2004                          Nashville Police Officers, Defendants-Appellants Debbie
                                                                         Miller (“Miller”), Richard Woodside (“Woodside”), and
  Before: BATCHELDER and MOORE, Circuit Judges;                          Craig Dickhaus (“Dickhaus”) (collectively “Defendants” or
            CALDWELL, District Judge.*                                   “Officers”), subdued Champion with pepper spray and
                                                                         physical restraints. At trial, five different witnesses testified
                                                                         that after Champion was handcuffed and his feet were bound,
                                                                         the Officers continued to pepper spray Champion and to apply
                                                                         pressure to Champion’s back as he lay on his stomach.
    *                                                                    Champion died en route to the hospital shortly after this
     The Honorable Karen K. Caldwell, United States District Judge for   incident. Champion’s father, Calvin B. Champion, and
the Eastern District of Kentucky, sitting by designation.

                                  1
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                                    Nashville, Inc. et al.                    Nashville, Inc. et al.

Champion’s sister, Jetonne Champion-Collins, (together                   Delelys had taken Champion and her three-year-old son
“Plaintiffs”),1 brought an action against the Officers pursuant          Devin, Champion began to have a “behavior.” Delelys had
to 42 U.S.C. § 1983. A jury awarded the Plaintiffs $900,000              neglected to seatbelt Champion, and Champion began to
in damages for Champion’s physical and mental pain and                   move around Delelys’s minivan, hitting himself in the face
suffering. Following the return of the verdict, the district             and biting his hand, which was a type of “behavior”
court denied the Officers’ motion for a judgment as a matter             Champion frequently exhibited.        Delelys stated that
of law or a new trial or remittitur, in which they argued that           Champion was very agitated, “slapping his own head harder
they were entitled to qualified immunity and that the verdict            than usual, biting his own hand harder than usual, slapping
was excessive.                                                           the top of [Devin]’s head, shaking [Devin]’s hand.” Joint
                                                                         Appendix (“J.A.”) at 165.
   While the Officers undoubtedly faced unenviable choices
in their interactions with Champion, they are not entitled to               Delelys stopped the van, fearing that Champion’s behavior
qualified immunity. Based upon the testimony presented at                would further escalate. Delelys and Champion both exited
trial, the Officers’ actions in this particular situation violated       the van. Champion grabbed Delelys’s right hand and started
Champion’s clearly established rights. Consequently, we                  to rub her hand all over his head, a response which,
AFFIRM the judgment of the district court, which upheld the              unbeknownst to Delelys, had helped Champion to calm down
jury’s verdict.                                                          in the past. Delelys became frightened. She broke away from
                                                                         Champion and locked herself in the van, realizing she had lost
               I. FACTS AND PROCEDURE                                    control. Delelys tried to get help. She failed in her repeated
                                                                         attempts to call the Outlook emergency number. Finally,
A. Factual Background                                                    Delelys called 911. Right after she finished her phone call,
                                                                         Officer Debbie Miller appeared at the driver-side window,
  The parties mostly agree on the anguishing series of events            having been alerted to the developing problem by other
that culminated in Champion’s death, but they differ with                Babies ‘R’ Us customers who had phoned 911. Delelys
regards to the most crucial moments of the incident.                     informed Miller that Champion was mentally ill, but Delelys
Champion, who was 32 years old at the time of his death,                 did not tell Miller that Champion was nonverbal and
completely lacked the ability to care for himself on account             nonresponsive.
of his autism. He was nonresponsive and unable to speak.
Outlook Nashville, Inc. (“Outlook”), which provided care for                Miller approached Champion, asking him for his name and
developmentally disabled individuals, was responsible for his            to explain the reason for his agitation. Champion was hitting
well-being. On April 30, 2000, Jolene Delelys (“Delelys”),               and biting himself as he began to approach Miller. Miller told
an Outlook employee, watched over Champion. Upon                         Champion to stop, but Champion kept advancing towards
departing from a Nashville Babies ‘R’ Us store, where                    Miller. Miller had walked backwards about fifty feet through
                                                                         the parking lot, retreating from Champion, when Champion
                                                                         grabbed Miller’s shirt. Miller pushed Champion’s hand away
    1                                                                    and delivered a short burst of pepper spray to Champion’s
      Champio n’s father brought the action individually and as the
personal representative of Champion’s estate. Champ ion’s sister was a
                                                                         face.
plaintiff in her individ ual cap acity only.
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                                 Nashville, Inc. et al.                 Nashville, Inc. et al.

  Champion walked dazedly into the Babies ‘R’ Us. Miller          Plaintiffs have not suggested that the Officers acted
followed him into the store, and after a few minutes she          improperly before Champion was handcuffed and hobbled.
touched him on the arm and ordered him to leave. Champion         Indeed, the Plaintiffs’ entire § 1983 claim is premised on the
responded to this command, giving Miller the false                Officers’ alleged use of pepper spray and application of
impression that Champion actually understood her. Just as         asphyxiating pressure after Champion’s incapacitation. The
the two exited the store, Officer Richard Woodside arrived.       parties disagreed during trial, and continue to diverge, in their
Miller informed Woodside that Champion was “10-35” —              respective understandings of how much force the Officers
police code for “mentally ill individual” — and that she had      used after Champion was incapacitated on the ground.
previously sprayed Champion with pepper spray. Miller and
Woodside attempted to arrest Champion outside the store, but        After several minutes of being on the ground, Champion
the Officers struggled with Champion until Officer Craig          began to vomit. Woodside immediately called for an
Dickhaus arrived. The Officers decided to take Champion to        ambulance. Between Champion’s first regurgitation and the
the ground in the entrance foyer of the store, an area with       arrival of the EMTs, Champion vomited two more times.
carpeting. As Miller described it, “Woodside bends or squats      Each time, according to the officers, Dickhaus and Miller
down to where he has his arms wrapped around, a bear hug          pulled Champion back by the arms so that he would not be
position if you will, of Champion’s lower legs. And as            lying in his own vomit. They also checked Champion’s
Officer Dickhaus and myself step forward, we bring                mouth and nose to ensure that he was still breathing. The
Champion down to his knees, and then from his knees we            Officers reported that after vomiting, Champion was alert,
gently lay him from his knees, his knees to his stomach, and      blinking, breathing, and moving his head from side-to-side.
down on his chest to the ground.” J.A. at 248.
                                                                     The EMTs entered the store shortly after Champion
   Once on the ground Champion struggled. The Officers            vomited for a third time. The first EMT to view Champion
handcuffed Champion using two sets of handcuffs so as to          was Douglas Baggett (“Baggett”). Baggett testified that as he
allow Champion more movement. Champion continued to               stepped over Champion, he noticed that Champion’s legs
squirm and move around. Because Woodside had difficulty           moved a couple of inches, which gave Baggett the impression
controlling Champion’s feet, which were kicking high into         that Champion was alive. Then, Champion’s “belly rose, his
the air, Miller and Dickhaus decided to restrain Champion         back rose up, and then he vomited,” J.A. at 153 (Baggett
further through the use of a “hobble device,” which               Test.), such that Baggett thought he was watching Champion
essentially binds an individual’s ankles together. The            “take his last breath.” J.A. at 154. Baggett failed to find a
Officers had difficulty putting on the hobble device because      pulse on Champion and asked the Officers to remove the
Champion was still kicking violently, but they eventually         handcuffs, which they promptly did. Champion went into
“hobbled” him.                                                    cardiac arrest; despite effort to resuscitate him, he was
                                                                  pronounced dead on arrival at the hospital.
  The parties’ divergent recounting of what occurred in the
seventeen minutes between the application of the hobbling           All three Officers claim that none of them put pressure on
device and the arrival of the emergency medical technicians       Champion’s back or pressed Champion’s face into the floor
(“EMT”) was one of the most significant factual issues at trial   such that he could not breathe during this entire time period.
and is the axis around which this appeal revolves. The            See J.A. at 181, 185 (Dickhaus Test.); J.A. at 255-56 (Miller
No. 03-5068                 Champion et al. v. Outlook       7    8    Champion et al. v. Outlook                  No. 03-5068
                                 Nashville, Inc. et al.                Nashville, Inc. et al.

Test.) (“Not only did I not [lie across Champion’s back, lie      All of these witnesses stated that they did not see Champion
across his legs, or kick him], I took extra care myself to make   struggle during this time. There were some inconsistencies,
sure that Champion did not receive any injuries from the          however, in the witnesses’ stories, particularly with regard to
ground . . . . [W]e knew he had a mental problem.”); J.A. at      the length of time that various activities regarding Champion
298 (Woodside Test.). Additionally, the Officers claimed that     went on and the number of Officers who were lying on him
Champion was not sprayed again with chemicals after he was        after they brought him to the ground.
on the ground. J.A. at 185 (Dickhaus Test.); J.A. at 298
(Woodside Test.). Paramedic Douglas Sleighter, who is             B. Procedural History
extremely sensitive to pepper spray such that he feels its
effects if it is sprayed near him or on another individual near      Plaintiffs filed their action on June 15, 2000. The
him, testified that he did not detect any pepper spray on         complaint featured several different claims against an array of
Champion during the course of the ambulance ride.                 defendants, but most of the claims were dismissed, leaving
                                                                  only: 1) negligence claims against Outlook and Delelys; and
   However, five different lay witnesses testified that the       2) § 1983 claims against the three Officers premised upon
Officers continued to sit or otherwise put pressure on            violations of Champion’s rights under the Fourth Amendment
Champion’s back while he was prone on the ground with his         (excessive force) and Fourteenth Amendment (failure to
face towards the carpet. J.A. at 156 (Ballenger Test.)            render medical assistance). Following discovery, the
(recalling that the Officers were lying on top of Champion);      government defendants filed a motion for summary judgment,
J.A. at 158 (Buford Test.) (“They were laying on him, like        alleging for the first time that qualified immunity insulated
how wrestlers do in the ring, they were just all — upper body     the Officers from liability. The district court ruled that the
was on him, all their strength was on him.”); J.A. at 228         Officers were not entitled to qualified immunity and denied
(Jamerson Test.); (“I saw three officers on top of him.”); J.A.   the Officers’ motion for summary judgment. The Officers did
at 230-31 (Martinez Test.) (“They were holding him down,          not appeal this ruling.
laying on top of him after he was already down . . . . [T]hey
are on top of him and with their elbows, and basically laying       The parties prepared for trial. On July 31, 2002, the
on top of him.”); J.A. at 265 (Simpson Test.) (“I believe there   Officers filed a motion in limine objecting to the inclusion of
was another officer with his knee in the middle of his back       the testimony of the Plaintiffs’ three experts, Michael F.
. . . .”). Additionally, these witnesses testified that the       Dorsey (“Dorsey”), Kris Sperry (“Sperry”), and Geoffrey
Officers continued to use pepper spray on Champion after he       Alpert (“Alpert”). The district court denied the motion in
was subdued on the ground and had stopped resisting. J.A. at      part, permitting Sperry and Alpert to testify.
156 (Ballenger Test.) (“[Champion] turned his head to move
and breathe . . . and the female officer maced him.”); J.A. at      The trial began on August 20, 2002. The jury heard
229 (Jamerson Test.) (testifying that Miller sprayed              contradictory testimony from the Officers, the witnesses, and
Champion twice and that Champion subsequently turned              several experts regarding the amount of force exerted against
white); J.A. at 231-32 (Martinez Test.) (“Well, he was on the     Champion, Champion’s cause of death, and the level of pain
ground already and [Miller] maced him again after he was          and suffering Champion might have endured. Before the jury
already handcuffed.”); J.A. at 265 (Simpson Test.) (“He           retired, the Officers filed a motion for a judgment as a matter
turned his face to breathe and then he got sprayed again.”).      of law, which was denied. The jury returned a verdict on
No. 03-5068                  Champion et al. v. Outlook        9    10   Champion et al. v. Outlook                  No. 03-5068
                                  Nashville, Inc. et al.                 Nashville, Inc. et al.

August 29, 2002. It found Outlook and Delelys liable in the         Officers’ alleged qualified immunity from liability. “[I]n
amount of $3.5 million for their negligence. The jury also          cases where an appellant made a Rule 56 motion for summary
found each police officer liable to the Plaintiffs in the amount    judgment that was denied, makes those same arguments in a
of $300,000 each.                                                   Rule 50(a) motion at the close of evidence that was also
                                                                    denied, lost in front of a jury, then renewed its arguments in
  The Officers filed a combined post-verdict motion,                a rejected Rule 50(b) motion after the entry of judgment, we
renewing their motion for a judgment as a matter of law, or in      will review only the denial of the Rule 50(b) motion.” K &
the alternative, seeking a new trial or remittitur. The Officers    T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 174 (6th Cir.
based their renewed motion for judgment as a matter of law          1996). “[R]eviewing a Rule 50 determination is preferable to
on qualified immunity. J.A. at 123. The district court denied       reviewing a summary judgment decision because the Rule 50
the Officers’ motion on November 21, 2002, ruling that              decision is based on the complete trial record and not the
“[b]ased on the facts at trial, taken in the light most favorable   incomplete pretrial record available at summary judgment.”
to the Plaintiff, the officers’ conduct violated the Plaintiff’s    Id. (quotation omitted).
constitutional right not to be subjected to excessive force and
that right was clearly established at the time of the officers’       Thus, we review de novo the denial of the Rule 50(b)
conduct.” J.A. at 127-28 (Dist. Ct. Or. 11/21/02). The              motion, but our de novo review is narrowed by the test for
district court also ruled that the $300,000 verdicts against the    evaluating a renewed Rule 50(b) motion. Garrison v.
Officers were not excessive.                                        Cassens Transp. Co., 334 F.3d 528, 537 (6th Cir. 2003);
                                                                    Monday v. Oullette, 118 F.3d 1099, 1101 (6th Cir. 1997).
   The Officers timely appealed several of the district court’s     The Supreme Court has held,
rulings, including: 1) the order denying in part the motion for
summary judgment; 2) the district court’s ruling on Alpert’s          [I]n entertaining a motion for judgment as a matter of
testimony; and 3) the denial of the Officers’ motion for              law, the court should review all of the evidence in the
judgment as a matter of law, or in the alternative a new trial        record.
and/or remittitur.
                                                                         In doing so, however, the court must draw all
                       II. ANALYSIS                                   reasonable inferences in favor of the nonmoving party,
                                                                      and it may not make credibility determinations or weigh
A. Standards of Review                                                the evidence. . . . [A]lthough the court should review the
                                                                      record as a whole, it must disregard all evidence
  We evaluate the decisions of the district court through             favorable to the moving party that the jury is not required
several different lenses. The Officers ask us to review both          to believe. That is, the court should give credence to the
the denial of their motion for summary judgment and the               evidence favoring the nonmovant as well as that evidence
denial of their motion for a judgment as a matter of law,             supporting the moving party that is uncontradicted and
which was initially filed before the jury retired pursuant to         unimpeached, at least to the extent that that evidence
Federal Rule of Civil Procedure 50(a) and was renewed after           comes from disinterested witnesses.
the return of the jury’s verdict pursuant to Rule 50(b). See
Fed. R. Civ. P. 50(a)-(b). All of these motions concerned the
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                                  Nashville, Inc. et al.                Nashville, Inc. et al.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,           B. Qualified Immunity
150-51 (2000) (citations and quotations omitted). “The
motion should be granted, and the district court reversed, only       In actions involving the alleged abuse of government
if reasonable minds could not come to a conclusion other than      power, the defense of qualified immunity accommodates the
one favoring the movant.” Garrison, 334 F.3d at 537-38             tension between permitting litigants to recover damages,
(quotation omitted).                                               which is often “the only realistic avenue for vindication of
                                                                   constitutional guarantees,” Harlow v. Fitzgerald, 457 U.S.
  Our review is further complicated by the underlying              800, 814 (1982), and the “social costs” of such suits,
qualified immunity question. The issue of “whether qualified       including “the expenses of litigation, the diversion of official
immunity is applicable to an official’s actions is a question of   energy from pressing public issues, and the deterrence of able
law.” Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.        citizens from acceptance of public office.” Id. Qualified
1996). “However, where the legal question of qualified             immunity provides “that government officials performing
immunity turns upon which version of the facts one accepts,        discretionary functions generally are shielded from liability
the jury, not the judge, must determine liability.” Pouillon v.    for civil damages insofar as their conduct does not violate
City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000) (quotation       clearly established statutory or constitutional rights of which
and ellipses omitted). Thus, to the extent that there is           a reasonable person would have known.” Id. at 818. We
disagreement about the facts, such as whether the Officers put     employ a three-step inquiry for determining whether qualified
their body weight on Champion and pepper-sprayed him after         immunity is proper:
he was handcuffed and hobbled, we must review the evidence
in the light most favorable to the Plaintiffs, taking all            First, we determine whether, based upon the applicable
inferences in their favor. We cannot weigh the evidence or           law, the facts viewed in the light most favorable to the
make credibility assessments, and we are acutely aware that          plaintiffs show that a constitutional violation has
a jury, faced directly with the tasks we cannot undertake,           occurred. Second, we consider whether the violation
believed the evidence presented by the Plaintiffs.                   involved a clearly established constitutional right of
                                                                     which a reasonable person would have known. Third, we
   We employ a different method of review for the two other          determine whether the plaintiff has offered sufficient
issues raised on appeal by the Officers. We review for an            evidence to indicate that what the official allegedly did
abuse of discretion the district court’s denial of the Officers’     was objectively unreasonable in light of the clearly
post-trial motion for a new trial and/or remittitur filed            established constitutional rights.
pursuant to Federal Rule of Civil Procedure 59. Gregory v.
Shelby County, 220 F.3d 433, 443 (6th Cir. 2000). We also          Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (emphasis
review for an abuse of discretion the district court’s decision    added) (quotation omitted). If the answer to all three
to allow Geoffrey Alpert’s expert testimony. Pride v. BIC          questions is “yes,” qualified immunity is not proper.
Corp., 218 F.3d 566, 575 (6th Cir. 2000).
                                                                     1. The Occurrence of a Constitutional Violation
                                                                    First, we consider whether the facts, when taken in the light
                                                                   most favorable to the Plaintiffs, demonstrate the occurrence
No. 03-5068                   Champion et al. v. Outlook        13    14   Champion et al. v. Outlook                   No. 03-5068
                                   Nashville, Inc. et al.                  Nashville, Inc. et al.

of a constitutional violation. See Saucier v. Katz, 533 U.S.          more relevant, sense: The contours of the right must be
194, 201 (2001) (“Taken in the light most favorable to the            sufficiently clear that a reasonable official would understand
party asserting the injury, do the facts alleged show the             that what he is doing violates that right.” Anderson v.
officer’s conduct violated a constitutional right? This must be       Creighton, 483 U.S. 635, 640 (1987). Officials do not enjoy
the initial inquiry.”). This is a threshold question that often       qualified immunity simply because the exact action in
requires the setting forth of legal principles “which will            question has not previously been held unlawful by a court, but
become the basis for a holding that a right is clearly                “in the light of pre-existing law the unlawfulness must be
established.” Id. “[A]ll claims that law enforcement officers         apparent.” Id. In the excess-force context, it is not enough
have used excessive force — deadly or not — in the course of          for a plaintiff to demonstrate that an officer’s use of force
an arrest, investigatory stop, or other ‘seizure’ of a free citizen   exceeded the objective standard of reasonableness articulated
should be analyzed under the Fourth Amendment and its                 in Graham. Saucier, 533 U.S. at 201-202 (2001). Rather,
‘reasonableness’ standard.” Graham v. Connor, 490 U.S.                qualified immunity is proper unless “it would be clear to a
386, 395 (1989). The test’s “proper application requires              reasonable officer” that his use of excessive force “was
careful attention to the facts and circumstances of each              unlawful in the situation he confronted.” Id. at 202.
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of          The Supreme Court has refused to require that a plaintiff
the officers or others, and whether he is actively resisting          demonstrate the existence of a “fundamentally similar” or
arrest or attempting to evade arrest by flight.” Id. at 396. To       “materially similar” case. Hope v. Pelzer, 536 U.S. 730, 741
take the facts in a light most favorable to Plaintiffs is to          (2002). There can be “notable factual distinctions between
assume that the Officers lay on top of Champion, a mentally           the precedents relied on . . . so long as the prior decisions
retarded individual who had stopped resisting arrest and              g[i]ve reasonable warning that the conduct then at issue
posed no flight risk, and sprayed him with pepper spray even          violated constitutional rights.” Id. at 740 (quotation omitted).
after he was immobilized by handcuffs and a hobbling device.          “[O]fficials can still be on notice that their conduct violates
The use of such force is not objectively reasonable, as the           established law even in novel factual circumstances.” Id. at
Officers conceded at oral argument for the purposes of                741. Moreover, the fact that various courts have “not agreed
focusing on the question of whether Champion’s right to be            on one verbal formulation of the controlling standard” does
free from this particular type of force was clearly established.      not by itself entitle an officer to qualified immunity. Saucier,
                                                                      533 U.S. at 203.
  2. A “Clearly Established” Right?
                                                                        To demonstrate that the Officers unreasonably violated a
  The first Feathers inquiry bleeds into the second question          clearly established right, the Plaintiffs must therefore show
of whether the constitutional right was clearly established,          the prior articulation of a prohibition against the type of
which is the focus of the parties on appeal. “If the law at that      excess force exerted here. “In inquiring whether a
time was not clearly established, an official could not . . .         constitutional right is clearly established, we must look first
fairly be said to ‘know’ that the law forbade conduct not             to decisions of the Supreme Court, then to decisions of this
previously identified as unlawful.” Harlow, 457 U.S. at 818.          court and other courts within our circuit, and finally to
“[T]he right the official is alleged to have violated must have       decisions of other circuits.” Higgason v. Stephens, 288 F.3d
been ‘clearly established’ in a more particularized, and hence        868, 876 (6th Cir. 2002). “[A]n action’s unlawfulness can be
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                                  Nashville, Inc. et al.                 Nashville, Inc. et al.

apparent from direct holdings, from specific examples              against Champion after he was handcuffed and hobbled was
described as prohibited, or from the general reasoning that a      excessive. In Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994),
court employs.” Feathers, 319 F.3d at 848. Other sources           a plaintiff was sprayed with mace by authorities. Id. at 378.
can also demonstrate the existence of a clearly established        The police then handcuffed the plaintiff, placed him in his
constitutional right; in Hope, the Supreme Court considered        car, and according to the plaintiff and two witnesses,
Alabama state regulations and communications between the           continued to spray mace in the plaintiff’s face even though he
U.S. Department of Justice and the Alabama Department of           was already blinded and incapacitated. Id. We held that this
Corrections as evidence that the corporal punishment at issue      use of force was excessive, and we denied the officers
in Hope was clearly proscribed. Hope, 536 U.S. at 744-45.          qualified immunity because “[a] reasonable person would
                                                                   know that spraying mace on a blinded and incapacitated
   Our caselaw and the evidence presented at trial about the       person . . . would violate the right to be free from excessive
training that the Officers received demonstrate that the force     force.” Id. at 387; see also Vinyard v. Wilson, 311 F.3d 1340,
exerted against Champion violated his clearly established          1348 (11th Cir. 2002) (“Courts have consistently concluded
Fourth Amendment rights. We have repeatedly stated that            that using pepper spray is excessive force in cases where . . .
“the right to be free from excessive force is a clearly            the arrestee surrenders, is secured, and is not acting violently,
established Fourth Amendment right.” Neague v. Cynkar,             and there is no threat to the officers or anyone else.”).
258 F.3d 504, 507 (6th Cir. 2001) (decided after Saucier).
For example, we have articulated a clearly established right to      In addition to prior precedent, the Officers’ training
be free from specific types of non-deadly excessive force,         demonstrates that they were aware of Champion’s clearly
such as handcuffing an individual too tightly. See Walton v.       established right to be free from this type of excessive force.
City of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993). We        The Officers were taught that pepper spraying a suspect after
have also consistently held that various types of force applied    the individual was incapacitated constitutes excessive force.
after the subduing of a suspect are unreasonable and a             Sergeant Robert Allen, who testified about the training the
violation of a clearly established right. See, e.g., Phelps v.     Nashville Police Officers received, agreed that if Champion
Coy, 286 F.3d 295, 301 (6th Cir. 2002) (“[T]here was simply        were handcuffed and hobbled, spraying him with pepper
no governmental interest in continuing to beat Phelps after he     spray would be excessive.
had been neutralized, nor could a reasonable officer have
thought there was.”); McDowell v. Rogers, 863 F.2d 1302,              Second, it also clearly established that putting substantial
1307 (6th Cir. 1988) (“[A] totally gratuitous blow with a          or significant pressure on a suspect’s back while that suspect
policeman’s nightstick may cross the constitutional line.”);       is in a face-down prone position after being subdued and/or
Lewis v. Downs, 774 F.2d 711, 715 (6th Cir. 1985) (“The            incapacitated constitutes excessive force. This appeal gives
unprovoked and unnecessary striking of a handcuffed citizen        us no cause to consider whether leaving a bound suspect on
in the mouth with a nightstick is clearly excessive.”).            his or her stomach without more constitutes excessive force
                                                                   that violates a suspect’s clearly established Fourth
   The particular type of physical force exerted against           Amendment rights. This is neither a “positional asphyxia”
Champion was unreasonable, and the Officers should have            case nor a case in which the officers lightly touched or placed
been aware that they were violating Champion’s rights. First,      incidental pressure on Champion’s back while he was face
it is clearly established that the Officers’ use of pepper spray   down. The asphyxia was caused by the combination of the
No. 03-5068                       Champion et al. v. Outlook            17     18    Champion et al. v. Outlook                   No. 03-5068
                                       Nashville, Inc. et al.                        Nashville, Inc. et al.

Officers placing their weight upon Champion’s body by lying                    cause asphyxiation. All three Officers admitted that they
across his back and simultaneously pepper spraying him.2                       were aware of the potential danger of putting pressure on an
Creating asphyxiating conditions by putting substantial or                     individual’s back or diaphragm. J.A. at 187 (Dickhaus Test.)
significant pressure, such as body weight, on the back of an                   (“I believe our training was once he is under control we are to
incapacitated and bound suspect constitutes objectively                        sit him up physically . . . .”); J.A. at 262 (Miller Test.). J.A.
unreasonable excessive force. For example, in Simpson v.                       at 305 (Woodside Test.). Additionally, Sergeant Allen
Hines, 903 F.2d 400 (5th Cir. 1990), several police officers                   testified that he taught his officers that lying across an
entered an inmate’s cell, placed the inmate in a neckhold, and                 individual’s back when that person is on his or her stomach
put strong pressure upon his chest. Id. at 403. The inmate                     increases the possibility of asphyxia. Just as the Supreme
died as a result, and a physician’s report suggested that the                  Court determined that the Alabama Department of
inmate may have died as a result of the pressure placed upon                   Corrections Regulations and the communications between the
his chest. Id. The Fifth Circuit denied qualified immunity to                  U.S. Department of Justice and the State of Alabama put the
the officers, ruling that any reasonable officer would have                    state on notice about what constituted cruel and unusual
known that the force exerted was excessive and thus                            punishment, so too here the training these Officers received
constitutionally deficient. Id. Other district courts in our                   alerted them to the potential danger of this particular type of
circuit have highlighted the dangers of putting pressure on a                  excessive force. See Hope, 536 U.S. at 744-45.
prone, bound, and agitated detainee. Swans v. City of
Lansing, 65 F. Supp. 2d 625, 633-34 (W.D. Mich. 1998) (jury                      It cannot be forgotten that the police were confronting an
awarded verdict to a mentally ill arrestee who was hog-tied);                  individual whom they knew to be mentally ill or retarded,
Johnson v. City of Cincinnati, 39 F. Supp. 2d 1013, 1019-20                    even though the Officers may not have known the full extent
(S.D. Ohio 1999) (finding that information existed in the law                  of Champion’s autism and his unresponsiveness. The
enforcement community, which put officers on notice of the                     diminished capacity of an unarmed detainee must be taken
dangers of positional asphyxiation).                                           into account when assessing the amount of force exerted. See
                                                                               Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001)
  Additionally, the Officers’ training outlined the boundaries                 (“[W]here it is or should be apparent to the officers that the
of excessive force and made clear that lying on a suspect can                  individual involved is emotionally disturbed, that is a factor
                                                                               that must be considered in determining . . . the reasonableness
                                                                               of the force employed.”). For example, in Drummond v. City
    2                                                                          of Anaheim, 343 F.3d 1052 (9th Cir. 2003), officers
       The Officers cite several cases that purportedly show that the          handcuffed a mentally ill individual and leaned their body
app lication o f pressure to a suspect’s back while he or she is lying prone   weight onto his upper torso. Id. at 1054. The officers then
is not a clearly established co nstitutional violation. See Wagner v. Bay
City, 227 F.3d 316 , 323 -24 (5 th Cir. 2000); Estate of Phillips v. City of   applied a hobble device. Drummond fell into respiratory
Milwaukee, 123 F.3d 586, 594 (7th Cir. 1997); Cottrell v. Ca ldwe ll, 85       distress and eventually a coma. Id. at 1055. The court held
F.3d 1480, 1488, 14 91, 1492 (11th Cir. 1996). However, all three cases        that the district court’s grant of summary judgment on the
are inappo site because they involve an arrestee who se positional asphyxia    basis of qualified immunity was not proper because the
was caused solely as a result of the officers leaving the arrestee on his or   officers had violated Drummond’s clearly established rights.
her stomach, but without applying pressure to the back. Because we are
not confronted with such a situation, we need not decide whether such          Id. at 1062. It stated, “Any reasonable officer should have
behavior violates a clearly established righ t.                                known that such conduct constituted the use of excessive
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                                  Nashville, Inc. et al.                 Nashville, Inc. et al.

force.” Id. at 1061. Drummond postdated the events that led         Champion’s injuries were inconsistent with a death caused by
to Champion’s death, but it relies on cases decided before          Officers lying across Champion’s back. J.A. at 284-86 (Wetli
April 30, 2000 (including the Swans case) and notes that            Test.). This evidence is unavailing for two reasons. First, the
when officers receive training explaining the dangers of            Plaintiffs presented contradictory evidence, and the jury
asphyxia, they are on notice that applying pressure to an           believed the Plaintiffs’ experts (and the witnesses who viewed
arrestee’s back is objectively unreasonable.                        the Officers lying on Champion’s back) more than the
                                                                    Defendants’ witnesses. Second, the Officers’ argument
   Consequently, the right to be free from the two types of         sidesteps the point: even if Champion had not died, but had
excessive force exerted against Champion was clearly                only been injured, his clearly established rights were no less
established by the law of this circuit and by the training of the   violated.
Officers. Either action by itself violated a clearly established
right, and the combination of the actions bolsters the                3. Sufficiency of Evidence
conclusion that no reasonable officer could believe that
excessive force was not being used. We recognize that the              Finally, the panel must determine “whether the plaintiff
Officers perhaps did not intend to harm Champion; indeed,           offered sufficient evidence to indicate that what the official
they may have believed they were helping him. Such a                allegedly did was objectively unreasonable in light of the
consideration is immaterial, however, because the qualified         clearly established constitutional rights.” Feathers, 319 F.3d
immunity doctrine is an objective one; motive is irrelevant.        at 848. As described in detail above, the Plaintiffs presented
The evidence presented in the light most favorable to               such evidence at trial. The fact that a jury found in his favor
Champion, and in the light accepted by the jury, demonstrates       further underscores the sufficiency of the evidence.
that the Officers unreasonably applied excessive force to
Champion after he had been incapacitated in violation of              4. Conclusion
Champion’s clearly established rights. No reasonable officer
would have continued to spray a chemical agent in the face of         In sum, all three Feathers inquiries have been answered in
a handcuffed and hobbled mentally retarded arrestee, who            the affirmative. We therefore affirm the district court’s denial
was moving his or her head from side to side in an attempt to       of qualified immunity to the Officers.
breathe, after the arrestee vomited several times. No
reasonable officer would continue to put pressure on that           C. The Verdict Amount
arrestee’s back after the arrestee was subdued by handcuffs,          The Officers contend that they are entitled to a new trial, or
an ankle restraint, and a police officer holding the arrestee’s     at least a remittitur, because the jury award of $900,000
legs.                                                               ($300,000 per Officer), which only compensates for
  The Officers concentrate their efforts on the evidence            Champion’s physical and mental pain and suffering, is
presented at trial that Champion may have died from a               excessive. In essence, the Officers suggest that “a cumulative
preexisting medical condition unrelated to his treatment by         verdict of $900,000 against the Officers for at most a 17-
the police and that the pepper spray was unlikely to contribute     minute period of physical and mental pain and suffering is
to Champion’s vomiting or his death. In particular, the             excessive.” Def. Br. at 38. Because the Officers ask us to
Defendants’ medical expert, Dr. Wetli, testified that               undertake a Sissiphyean task of comparing Champion’s pain
No. 03-5068                  Champion et al. v. Outlook      21    22   Champion et al. v. Outlook                   No. 03-5068
                                  Nashville, Inc. et al.                Nashville, Inc. et al.

and suffering to other forms of pain and suffering and because        However, other testimony averred that Champion may have
the award does not shock the conscience, we hold that the          suffered physical pain. First, Plaintiffs’ expert Dr. Gerber
district court did not abuse its discretion in denying the         located a contusion on Champion’s lung that may have
Officers’ motion.                                                  resulted from pressure applied by the Officers. Second, the
                                                                   autopsy revealed evidence of “extensive aspiration of gastric
  We undertake a highly deferential review of the district         contents,” J.A. at 270 (Sperry Test.), which may have
court, which itself is sharply limited in its ability to remit a   signaled that Champion was choking on his own vomit.
jury verdict. “[A] jury verdict should not be remitted by a        Third, Dr. Gerber agreed that “someone suffering from
court unless it is beyond the maximum damages that the jury        positional asphyxia would be gasping for breath,” which
reasonably could find to be compensatory for a party’s loss.”      generates psychic pain stemming from anxiety and fear. J.A.
Gregory v. Shelby County, 220 F.3d 433, 443 (6th Cir. 2000)        at 221 (Gerber Test.).
(quotation omitted).        Our remittitur standard favors
maintaining the award, “[u]nless the award is (1) beyond the          The jury heard inconsistent evidence attesting to the level
range supportable by proof or (2) so excessive as to shock the     of Champion’s pain. We do not attempt to measure it anew.
conscience, . . . or (3) the result of a mistake.” Bickel v.       No one but Champion can ever know the full amount of
Korean Air Lines Co., 96 F.3d 151, 156 (6th Cir. 1996)             physical and mental pain and suffering experienced during his
(quotation omitted) “A trial court is within its discretion in     seventeen-minute ordeal, but the jury heard various and
remitting a verdict only when, after reviewing all evidence in     conflicting pieces of evidence and believed that Champion
the light most favorable to the awardee, it is convinced that      suffered. Their verdict does not lack an evidentiary basis,
the verdict is clearly excessive, resulted from passion, bias or   particularly given that the verdict encompassed not only
prejudice; or is so excessive or inadequate as to shock the        physical pain, but also mental pain and suffering. The panic
judicial conscience of the court.” Gregory, 220 F.3d at 443.       of being unable to breathe and the pressure limiting one’s
                                                                   breath cannot be discounted. See J.A. at 224-25 (Gerber
  The Officers attempt to prove that the award shocked the         Test.) (stating that from a physiological standpoint, an
conscience in two ways. First, they suggest that the medical       individual during asphyxiation would feel “fear, agitation and
evidence is insufficient to support a $900,000 award. Citing       struggle; air hunger is something that causes fear”). Simply
the testimony of both sides’ medical experts, the Officers         put, there is evidence sufficient to support the jury’s award
charge that Champion suffered only superficial abrasions and       such that the district court did not err in denying the motion
hemorrhaging, which would not have caused severe pain.             to remit the judgment.
Additionally, the experts portray Champion’s death as being
relatively peaceful by showing that any of the three potential,      Second, the Officers cite to several cases in which
and possibly cumulative, causes of Champion’s death —              decedents received smaller awards for what the Officers
positional asphyxia, asphyxia resulting from gastric               construe as greater pain and suffering than that endured by
aspiration, or cardiac arrest prompted by Champion’s               Champion. Endeavoring to compare awards is difficult and
angulated right coronary artery — would not have been              often unfruitful, because the factual circumstances of each
particularly painful.                                              case differ so widely and because it places reviewing courts
                                                                   in the position of making awkward assessments of pain and
                                                                   suffering better left to a jury. Layne v. Wal-Mart Stores, Inc.,
No. 03-5068                 Champion et al. v. Outlook     23    24   Champion et al. v. Outlook                  No. 03-5068
                                 Nashville, Inc. et al.               Nashville, Inc. et al.

No. 00-5607, 2001 WL1480736, at * 4 (6th Cir. Nov. 19,           pain and suffering. In Bickel, we wrote: “It is impossible to
2001) (“[C]omparable decisions are ‘instructive’ but ‘not        determine the exact value of the pain and suffering which the
controlling’ when we review for abuses of discretion.”);         decedents may have endured. . . . One simply cannot quantify
Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814, 827        the mental and physical pain and suffering such an experience
(6th Cir. 1980) (“[C]ases involving similar injuries are in no   would cause, and thus we cannot conclude that the evidence
sense controlling.”). The Defendants cite several cases that     does not support the awards.” Id. at 156. The award granted
they believe demonstrate the unconscionability of the award      here by the jury, which was capable of judging credibility and
given the relatively brief period of his pain and suffering.     actually heard live testimony regarding the incident as
Compare Gregory, 220 F.3d at 433-44 ($778,000 award not          opposed to the written record before us, is not unreasonable,
remitted when decedent was beaten horribly by a fellow           excessive, or conscience-shocking. We therefore hold that the
prisoner and lay in his cell for ten hours before being          district court did not abuse its discretion in denying the
discovered); Tatum v. Land, No. 95-6378, 1997 WL 85144,          Officers’ motion for remittitur.
at *5 (6th Cir. Feb. 26, 1997) ($600,000 award not remitted
when decedent suffered severe injuries to shoulder, pelvis,      D. Alpert’s Testimony
and face as a result of a car accident and who survived for
five hours after the accident); with Sharpe v. City of             Finally, we evaluate the Officers’ claim that the district
Lewisburg, 677 F. Supp. 1362, 1365 (M.D. Tenn. 1988)             court erred in permitting Alpert’s expert testimony. The
($100,000 award for pain and suffering reduced after             Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
decedent was shot eight times and died within minutes of the     Inc., 509 U.S. 579 (1993), established the standard for
shooting.). The plaintiffs respond by citing our decision in     admissibility of scientific expert testimony under Federal
Bickel, when we affirmed the district court’s denial of          Rule of Evidence 702. The requirement that “any and all
remittitur for several pain and suffering awards exceeding $1    scientific testimony or evidence admitted [be] not only
million when the decedents, passengers on a Korea-bound          relevant, but reliable,” Id. at 589, “entails a preliminary
plane attacked by the Soviet Union, “remained conscious          assessment of whether the reasoning or methodology
during the twelve minute descent into the Sea of Japan,          underlying the testimony is scientifically valid and of whether
suffering the physical effects of decompression and              that reasoning or methodology properly can be applied to the
recompression along the way, as well as the horror of            facts in issue.” Id. at 592-93. This test has also been applied
knowing that death was imminent.” Bickel, 96 F.3d at 155.        to non-scientific expert testimony, such as Alpert’s. Kumho
                                                                 Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).
   The Officers ask us to make an impossible comparison
between Champion’s pain and the pain of others. We cannot           The Officers argue that Alpert did not present any
ascertain whether Champion’s mental and physical pain and        specialized knowledge that was reliable or of any assistance
suffering, magnified by his likely inability to comprehend       to the jury. The Officers rely principally on Berry v. City of
what was happening, equaled the pain and suffering of the        Detroit, 25 F.3d 1342 (6th Cir. 1994), in which we held that
airplane passengers plummeting out of the sky for twelve         the plaintiff’s expert, a so-called specialist in the field of
minutes in Bickel or the ten hours of slow death endured by      “police policies and practices” was not qualified to speak
the decedent in Gregory. Such comparisons are impossible         about the city government’s policy of disciplining officers for
and improper, because one cannot so mechanistically measure      alleged uses of excessive force. Id. at 1348-54. In Berry, we
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                                 Nashville, Inc. et al.                 Nashville, Inc. et al.

stated that “there is no such ‘field’ as ‘police policies and     criminologist, but excluding expert’s affidavit as useless
practices,’” mainly because we believed that the concept of       because it was too general).
such a field as presented by that “expert” was far too broad.
Id. at 1352. We analogized to the legal profession, stating          By contrast, the Plaintiffs’ expert, Alpert, testified about a
that labeling the individual in Berry as an expert when he did    discrete aspect of police practices, namely use of excessive
not demonstrate that he had experience in any particular          force, based upon his particularized knowledge about the area.
aspect of studying the police was “like declaring an attorney     In contrast to the expert in Berry, Alpert’s credentials are
an expert in the ‘law.’” Id. However, by reasoning that a         much more extensive and substantial. Alpert has a PhD in
divorce lawyer was no more an expert on patent law than           sociology from Washington State University, is employed by
anyone else, we implicitly recognized that individuals with       the University of South Carolina’s Department of
specialized knowledge could most certainly serve as experts,      Criminology, teaches classes on police procedures and
i.e., patent lawyers can serve as experts in patent law. We did   practices, has been involved with federal research funded by
not hold that an individual cannot ever testify as an expert      the Department of Justice that evaluates the use of force by
about some aspect of police affairs. Rather, the holding in       officers, trains officers in the use of force, works with police
Berry reasoned that unqualified individuals could not broadly     departments to create use-of-force policies, has testified
testify about an area in which they possessed no specialized      before Congress and state legislatures about police policies,
knowledge. While “police practices” in the broadest sense of      and has authored forty to fifty articles on the subject of police
the phrase may not be a field, surely criminology is.             procedures, many of which have appeared in peer-reviewed
                                                                  journals. Alpert Test., Transcript Vol III at 428-32 (Attached
   Indeed, the chief reason for our decision in Berry was that    to Motion to Take Judicial Notice). Unlike the expert in
the expert’s credentials demonstrated that he had no specific     Berry, Alpert testified about much more specific issues: the
expertise about police activities. He had limited experience,     continuum of force employed by officers generally, the
given that he was appointed as a deputy sheriff, a post that      specific training the Officers received, and Alpert’s opinion
required almost no qualifications, and he had been fired twice    that if the witnesses’ testimony is credited, the Officers’
from the position. Furthermore, he lacked any formal training     actions violated nationally recognized police standards
or experience on the subject of criminology or police actions.    governing excessive force. The critical difference between
Compounding the problem was his ungrounded and                    testifying about the impact of police policies upon a large
methodologically flawed testimony regarding what effect the       group of officers and testifying about the proper actions of
City of Detroit’s procedural shortcomings would have upon         individual officers in one discrete situation highlights the
the future conduct of 5,000 police officers who would be          inapplicability of Berry. Courts have permitted experts to
confronted with a diverse and unpredictable array of              testify about discrete police-practice issues when those
situations in which force would be used. See Dickerson, 101       experts are properly credentialed and their testimony assists
F.3d at 1163-64 (relying on the affidavit of a criminology        the trier of fact. See Dickerson, 101 F.3d at 1163-64; Kladis
professor, which opined that an officer used excessive force,     v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987). Because
in deciding that material fact issues remained regarding          Alpert had considerable experience in the field of criminology
qualified immunity); Estate of Boncher v. Brown County, 272       and because he was testifying concerning a discrete area of
F.3d 484, 486 (7th Cir. 2001) (recognizing implicitly the field   police practices about which he had specialized knowledge,
of criminology by labeling the expert a reputable
No. 03-5068                 Champion et al. v. Outlook     27
                                 Nashville, Inc. et al.

we hold that the district court did not abuse its considerable
discretion in admitting Alpert’s testimony.
                   III. CONCLUSION
   We AFFIRM the rulings and judgment of the district court.
First, the district court properly denied the Officers’ Rule
50(b) motion for qualified immunity, because on a view of
the facts in the light most favorable to the Plaintiffs, the
Officers violated Champion’s clearly established right to be
free from the specific types of forces administered after
Champion was subdued and restrained. Second, the district
court did not abuse its discretion in denying the Officers’
motion to remit the size of the pain-and-suffering award
because the award was supported by evidence and it did not
shock the conscience. Third, the district court did not abuse
its discretion in admitting Alpert’s testimony. We AFFIRM.
