                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                )
MARCUS NELSON, et al.,                          )
                                                )
              Plaintiffs,                       )
                                                )
       v.                                       )   Civil No. 09-1594 (RCL)
                                                )
DISTRICT OF COLUMBIA, et al.,                   )
                                                )
             Defendants.                        )
                                                )


                              MEMORANDUM AND ORDER

       Plaintiffs Marcus Nelson and his fiancé Koryn Rubin sued the District of Columbia and

District of Columbia Metropolitan Police Department Officers Walter Pankowski and Nathan

Foster for false arrest and imprisonment and Fourth Amendment violations. A jury found that

defendant Foster violated Rubin’s Fourth Amendment rights when he “unreasonably detain[ed]

her” during a search of her home. Verdict Form, Jan. 10, 2012, ECF No. 45. The jury awarded

Rubin $12,500 in compensatory damages. Id. However, the jury found against plaintiff Nelson

with respect to his false arrest and imprisonment claim and one Fourth Amendment claim and

hung with respect to Nelson’s other claims. Id. A partial retrial resulted in a mistrial. See

Minute Entry, Mar. 28, 2012. The parties opted not to pursue a third trial and, pursuant to a

consent motion, the Court entered judgment in favor of Rubin on March 22, 2013. Consent Mot.

Dismiss, ECF No. 60; Order, ECF No. 61.

       The Court now considers Foster’s Motion [64] for Judgment as a Matter of Law (JMOL).

Foster argues that Rubin failed to produce sufficient evidence to establish the unreasonableness
of her detention during the search. Def.’s Mot. J. Matter Law 6 [hereinafter Def.’s Mot. JMOL].

Second, Foster argues that he is, in any event, entitled to qualified immunity. Id. at 8.

       Because a reasonable jury could find that Foster violated Rubin’s Fourth Amendment

rights when he detained and handcuffed her for two hours during the search of her apartment, the

Court rejects the first argument. Because the defendant failed, during the first trial, to move for

JMOL on the basis of qualified immunity, the Court rejects defendant’s second argument as well.

The motion for JMOL is DENIED.

I.     LEGAL STANDARD

       Federal Rule of Civil Procedure 50(a) provides

       If a party has been fully heard on an issue during a jury trial and the court finds
       that a reasonable jury would not have a legally sufficient basis to find for the
       party on that issue, the court may (A) resolve the issue against the party; and (B)
       grant a motion for judgment as a matter of law . . . .

       If the Court does not grant such a motion during trial, “the court is considered to have

submitted the action to the jury subject to the court’s later deciding the legal questions raised by

the motion.” Id. 50(b). The movant may file a “renewed” Rule 50(b) motion for JMOL “[n]o

later than 28 days after the entry of judgment . . . .” Id. However, a district court may only grant

a Rule 50(b) motion “on the grounds advanced in the preverdict motion, because the former is

conceived of as only a renewal of the latter.” 9B Charles Alan Wright & Arthur R. Miller, Fed.

Prac. & Proc. Civ. § 2537 (3d ed.); see also id. (“[T]he movant cannot assert a ground that was

not included in the earlier motion.”); Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008)

(“A motion under Rule 50(b) is not allowed unless the movant sought relief on similar grounds

under Rule 50(a) before the case was submitted to the jury.”).

       Courts “should render judgment as a matter of law when a party has been fully heard on

an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that


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party on that issue.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000)

(internal quotation marks omitted). The standard for granting JMOL “mirrors” that for granting

summary judgment; “the inquiry under each is the same.” Id. at 150 (internal quotation marks

omitted). Thus, while a court should examine all evidence in the record, “the court must draw all

reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Id.

       Moreover, courts “do not . . . lightly disturb a jury verdict. Judgment as a matter of law is

appropriate only if the evidence and all reasonable inferences that can be drawn therefrom are so

one-sided that reasonable men and women could not have reached a verdict in plaintiff’s favor.”

Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 165 (D.C. Cir. 2007)

(emphasis added) (internal quotation marks omitted).

II.    BACKGROUND

       On or about June 19, 2008, Marcus Nelson was driving in Washington, D.C., when he

was pulled over by at least two police officers. Trial Tr. 21–22, Jan. 5, 2012. The officers

performed a window tint test on Nelson’s car, notified him that the windows were too dark, and

then asked to search his vehicle. Id. at 24. Nelson testified that he refused to consent to the

search, though Officer Foster disputed this. Id. at 26; Trial Tr. 6, Jan. 6, 2012. Nelson also

refused to get out of his vehicle to allow the search to proceed unless the officers arrested him.

Trial Tr. 29–30, Jan. 5, 2012. An officer notified him that he was under arrest and Nelson exited

the vehicle. Id.

       During a search of Nelson’s vehicle, officers discovered a backpack containing a gun

with a loaded magazine. Nelson testified that he had visited a firing range in Virginia earlier that




                                                 3
day and still had the gun, which was registered in Maryland, in his possession. After discovering

the gun, officers arrested Nelson and took him to jail. Id. at 53, 54.

        Officers later sought and obtained a search warrant for the apartment that Nelson shared

with Rubin in Washington, D.C. The affidavit requested, and the warrant authorized, permission

to search the apartment for firearms, ammunition, firearm cleaning kits, and all documents

evidencing possession or acquisition of a firearm.

        When officers executed that search warrant, Rubin was the only person in the home.

Nelson remained in jail at the time of execution. Rubin testified that, as she was getting dressed

and was wearing only a bra and underwear, she heard pounding on the front door. Trial Tr. 58–

59, Jan. 5, 2012. She asserted that the police knocked down the door, entered the apartment, and

initially refused to let her get dressed. Id. at 59. After a moment, they brought her a change of

clothes, allowed her to dress, and then handcuffed her arms behind her back. Id. at 59, 62.

Rubin estimated that there were five to ten officers in the apartment during the search and that

they left her handcuffed for two hours. Id. at 60, 62, 72; see also Trial Tr. 33, Jan. 6, 2012

(testimony of Officer Nelson stating that there were approximately ten police officers searching

the apartment and that Rubin was handcuffed for two hours). Finally, Rubin testified that the

officers accused her fiancé of being a drug dealer and taunted her during the search.

III.    ANALYSIS

        Judgment was entered in this case on March 22, 2013 and the motion for JMOL was filed

within 28 days thereafter. 1 Thus, the motion was timely.




1
  A quick glance at the docket suggests that judgment was entered on March 20, 2013. However, this was the date
that the judgment was filed with the Clerk and not the date that the judgment was “entered” on the docket. A
judgment is “entered” when it is “entered on the civil docket . . . .” Fed. R. Civ. P. 58(c)(2). This occurred on
March 22, 2013.

                                                        4
         Again, defendant asserts two grounds for JMOL.                      First, that the evidence plaintiff

presented at trial was “insufficient as a matter of law to establish a violation of Plaintiff Rubin’s

Fourth Amendment rights.” Def.’s Mem. 3. Second, that defendant enjoys qualified immunity.

Id. Defendant claims that he raised these grounds in his preverdict Rule 50(a) motions. Id. at 5.

However, defendant provides no citation to the record for this assertion. Although the Court

agrees that defendant sought JMOL on the basis that plaintiff had failed to make her case as a

matter of law, there is no evidence that defendant appropriately raised the qualified immunity

argument in his preverdict Rule 50(a) motions. 2

         A.       Sufficiency as a Matter of Law

         Foster first argues that the evidence presented at trial was insufficient to show that Foster

violated Rubin’s Fourth amendment rights when he detained and handcuffed her during a search

of her apartment.         Foster asserts that, in executing a search warrant, “‘officers may take

reasonable action to secure the premises and to ensure their own safety and the efficacy of the

search.’” Def.’s Mem. 6 (quoting Los Angeles Cnty. v. Rettele, 550 U.S. 609, 614 (2007)).

“‘The “reasonableness” of a particular use of force,’” he states, “‘must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”

Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Foster cites the Supreme Court’s

decision in Muehler v. Mena for the proposition that, during a search, officers may lawfully

restrain the occupant of a home in handcuffs, particularly where the police are searching for

weapons. Id. at 7 (citing 452 U.S. 692, 702–03 (1981)).


2
  Defendant’s attorney stated: “I want to make a motion for . . . judgment as a matter of law, Your Honor. . . . We
would . . . submit that as to the manner in which the warrant was executed that no reasonable juror could find that it
was excessive. The case law is legion as to the use of handcuffs.” Trial Tr. 39–40, Jan. 6, 2012. The Court denied
that motion. Id. at 41. Defendants rested their case and then renewed their motion for JMOL without presenting
further argument. Id. at 42–43. The Court again denied the motion, except as to a claim against Pankowski not
relevant to the present motion. Id. at 52. There was no mention during the first trial of qualified immunity.

                                                          5
       It is true that the reasonableness of an action to secure the premises is judged from the

perspective of a reasonable officer. Moreover, the Supreme Court’s decision in Mena suggests

that handcuffing residents may be appropriate at times. However, Mena is distinguishable from

the case at hand. That case involved investigation into a gang-related, driveby shooting and the

search of a home believed to be occupied by one member of the gang. Mena, 544 U.S. at 95.

The police suspected that the gang member was “armed and dangerous, since he had recently

been involved in the driveby shooting.” The search warrant authorized searching the house for

both deadly weapons and evidence of gang membership. When the search was executed early

one morning, the police detained Mena and three other individuals found on the property. The

four individuals were handcuffed and taken into a converted garage where one to two officers

guarded them for two to three hours during the search. Id. at 95, 100. The search yielded a

handgun, ammunition, baseball bats with gang writing, additional gang paraphernalia, and

marijuana. Mena sued the officers, alleging that she was detained for an “unreasonable time and

in an unreasonable manner.” Id. at 96.

       Although the Supreme Court held that Mena’s detention in handcuffs was reasonable, the

Court relied on a number of factors not present in this case. First, the search in Mena was not

just for weapons, but for “a wanted gang member [who] reside[d] on the premises.” Id. at 100.

Here, although the search was conducted for weapons, the police did not assert that Nelson was a

member of a gang. Moreover, Nelson was in jail at the time of the search and thus the police

were not searching for a wanted, armed criminal. The police did not assert that they were

concerned that an armed confederate of Nelson’s might be in the apartment. Instead, they found

his twenty five year old fiancé.




                                               6
       The Court in Mena also noted that “the need to detain multiple occupants” there “made

the use of handcuffs all the more reasonable.” Id. The Court highlighted the ratio detainees to

guards—two to one. Id. (“[T]his case involved the detention of four detainees by two officers.”).

Here, by contrast, only one individual occupied the residence when the search was conducted.

Moreover, the search of Rubin’s one bedroom apartment was conducted by up to ten police

officers, one or even two of whom could surely have been spared to guard Rubin directly.

       Viewing the evidence in the light most favorable to the moving party, a reasonable jury

could conclude that Foster unlawfully detained Rubin while searching her apartment. Officers

knew that Rubin’s fiancé was in jail at the time of the search, and thus would not have expected

him to be present in the house. Moreover, once the officers entered the home, they discovered

that Rubin was the only individual present. She testified that she was undressed when officers

arrived. This made it quite apparent that she was unarmed. Moreover, up to ten officers were

present for the search. Given all of these factors, the jury could reasonably have concluded that a

reasonable officer would not have been sufficiently concerned for his or her safety, or the safety

of the resident, to justify handcuffing that resident’s hands behind her back for two hours.

Moreover, the efficacy of the search would not have been of concern to a reasonable officer

when there were up to ten officers present to watch the plaintiff to ensure that she did not conceal

or destroy evidence during the search. The Court will not disturb the jury’s verdict in these

circumstances.

       B.        Defendant Failed to Raise Qualified Immunity Defense

       The defendant asserts that he moved for JMOL at the close of plaintiff’s case and the

close of all evidence. However, the record demonstrates that defendant moved for JMOL only

on the basis that plaintiff had failed to meet her substantive burden on the merits. See supra n.3.



                                                 7
         It is true that defendants raised a qualified immunity defense in preverdict 50(a) motions

during the second trial. See Trial Tr. 98–99, Mar. 26, 2012 (asserting that defendants are entitled

to qualified immunity as to the search of the home). However, the second trial did not concern

the judgment at issue here.             Instead, after the first jury found for Rubin on her Fourth

Amendment claim, the parties limited the second trial to Nelson’s false arrest and Fourth

Amendment claims. See, e.g., Def.’s Proposed Verdict Form, Mar. 23, 2012, ECF No. 53.

These claims involved Nelson’s, not Rubin’s rights.

         Moreover, even though judgment for Rubin had not yet been entered at the time of the

second trial, defendants clearly contemplated that it would be entered and that Rubin’s claims

had been disposed of. See District of Columbia’s Opp’n to Pl.’s Proposed Order of J. (noting

that a proposed order to docket Rubin’s judgment was “satisfactory to the Defendants except for

the position that provides for the order to be entered nunc pro tunc” and requesting that the Court

delay entry of the judgment only until after the partial retrial).

         In short, defendants’ invocation of a qualified immunity defense during the second trial

did not preserve their ability to raise that defense with respect to a matter decided in the first

trial. Defendants may not move for JMOL on grounds not raised in their preverdict Rule 50(a)

motions in the relevant trial. As a result, the Court will deny Foster’s motion for JMOL on

qualified immunity grounds. 3




3
  Although not necessary for the Court’s decision, the Court also notes that Foster failed to file any pre-trial
dispositive motions raising the qualified immunity defense. Foster listed qualified immunity as a defense in his
Answer but never bothered to move for dismissal or summary judgment on that basis. See Answer 6, ECF No. 25.
While Foster was nevertheless allowed to raise the issue at trial, the far better practice would have been to raise the
issue in a pre-trial dispositive motion. See Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999) (“Although
qualified immunity normally should be resolved early in the litigation, the defense, if preserved, may be pressed at
later stages, including in a timeous post-trial motion.”) (internal citations omitted).

                                                           8
IV.     CONCLUSION AND ORDER

        Because a reasonable jury could find that Foster unlawfully detained Rubin during a

search of her home, and because Foster failed to raise his qualified immunity defense during the

relevant preverdict Rule 50(a) motions, the Court will deny Foster’s motion for JMOL.

        The Court’s decision also renders moot the defendant’s motion [65] to stay litigation on

plaintiff’s motion for attorney’s fees until the Court rules on the motion for JMOL.

        Thus, for the reasons stated above, it is hereby

        ORDERED that Foster’s Motion [64] for Judgment as a Matter of Law is DENIED; and

it is further

        ORDERED that Foster’s Motion [65] to stay litigation on plaintiff’s motion [63] for

attorney’s fees be DENIED AS MOOT; and it is further

        ORDERED that defendants shall have fourteen days from today’s date to submit an

opposition to plaintiff’s motion [63] for attorney’s fees.

        SO ORDERED.

        Signed by Royce C. Lamberth, on July 12, 2013.




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