                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 09a0628n.06

                                               Case No. 08-5442

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                    FILED
 JAMES W. SMOAK, et al.,                                       )                                Sep 02, 2009
                                                               )                         LEONARD GREEN, Clerk
             Plaintiffs-Appellees,
                                                               )
                    v.                                         )
                                                               )         On Appeal from the United
 ERIC HALL, et al.,
                                                               )         States District Court for the
             Defendants,                                       )         Middle District of Tennessee
                                                               )
 and                                                           )
                                                               )
 DAVID BUSH,                                                   )
                                                               )
       Defendant-Appellant.                                    )
 _______________________________________

BEFORE: BATCHELDER, Chief Judge; COLE, Circuit Judge; and LAWSON, District
Judge.*

         ALICE M. BATCHELDER, Chief Judge.                          David Bush, one of the police-officer

defendants in this 42 U.S.C. § 1983 action claiming use of excessive force, appeals a jury award for

the plaintiffs. Bush contends that the district court erred by denying his motions for judgment as a

matter of law and qualified immunity. For the reasons that follow, we AFFIRM the judgments of

the district court.

                                                          I.

         On January 1, 2003, James Smoak, his wife Pamela Smoak, and Pamela’s 17-year-old son

Brandon Hayden (hereinafter referred to collectively as the “Smoaks”), were traveling home to North


         *
          The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by
designation.
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

Carolina in their green Mercury station wagon after spending New Year’s Eve in Nashville. Their

two young dogs, General Patton and Cassie, were also in the car. After stopping at a gas station to

refuel, James Smoak accidentally left his wallet on the roof of the car and drove off.

       Almost immediately thereafter, at approximately 4:40 p.m., one Veronica Louwien called

the Tennessee Highway Patrol (THP) and spoke to dispatcher Shannon Pickard, exclaiming:

       “I’m driving down Interstate 40 in Wilson County [Tennessee], going towards
       Lebanon. I passed the Mt. Juliet Exit, and a car passed me. It was kind of like a
       station wagon. It was dark green. It was probably going 110 miles an hour. And
       then not too far in front of me, there was money flying all over the interstate . . . .”

Pickard dispatched THP troopers to meet Louwien at the scene and recover the money.

       A short time later, those troopers reported back to Pickard that they had reached the scene

and had indeed found loose currency in the median (they did not, at that time, inform Pickard of the

actual amount, which turned out to be $445). Pickard contacted local law enforcement, including

police dispatchers in the City of Cookeville, Tennessee, and told them to look for a green station

wagon traveling at a high rate of speed. Pickard also sent out a teletype to all area law enforcement,

inquiring if a “recent robbery” had occurred, possibly involving a green station wagon.

       Pickard admits that some time later — after he had been informed that the amount recovered

on the highway was only $445 and that a wallet (with identification) had been found at the scene —

he no longer thought that the green station wagon had been involved in a robbery. Although the

parties dispute when Pickard learned the actual dollar amount, both sides agree that Pickard did not

relay this information to the other dispatchers until after the Smoaks’ station wagon had been

stopped.



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No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

         In Cookeville, THP dispatcher Brian Brock, who had taken the initial call from Pickard, put

out a “be on the lookout” (BOLO) notification for the green station wagon, stating that such a vehicle

had reportedly been seen traveling at a high rate of speed with a large amount of currency flying out

of it. Tim McHood, another THP dispatcher in the general vicinity, issued a second BOLO, stating

that the vehicle was possibly involved in a robbery. According to McHood’s later testimony, he

based this on a misreading of Pickard’s teletype inquiry about any recent robberies, which he took

to mean that the station wagon was involved in a “possible robbery,” but “[w]e’re not sure.”

         Pickard called McHood to relay the information that a wallet with a South Carolina

identification1 belonging to James Smoak had been found with the money. McHood (still under his

misapprehension) sent out another broadcast, informing the THP troopers that the green station

wagon was from out of state and that the police had found large amounts of money and an ID.

         David Bush, a THP trooper who had heard the BOLOs about a “possible recent robbery,”

spotted a green station wagon traveling east on Interstate 40 and followed it for eight miles. During

that time, Bush did not observe the vehicle either speeding or committing any other traffic violations.

He radioed McHood with the station wagon’s license plate number, and McHood replied that the

information from the station wagon matched Smoak’s identification, which other troopers had found

with the currency. According to the district court and the THP troopers, McHood instructed Bush

to stop the car, but not do so without backup. There is some dispute, however, as to whether, in

actuality, Bush might have been solely responsible for the decision to ask for back-up.



         1
          The Smoaks lived in North Carolina, but James Smoak spent part of every week living with his parents in South
Carolina, where he owned and operated a seafood business. His driver’s license was from South Carolina.

                                                          3
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

       Regardless, McHood and Bush requested backup from other THP troopers in the area, and

THP dispatcher Brian Brock called City of Cookeville police dispatchers for additional backup.

Brock told the city dispatchers that “we’re fixing to have a felony stop on a vehicle . . . possible

armed robbery out of Nashville” (emphasis added). Again, before signaling James Smoak to stop

the station wagon, Bush requested and received confirmation that the Nashville division of the THP

wanted the vehicle stopped. Four officers arrived to provide backup and participate in the stop —

Lieutenant Jerry Andrews and Trooper Jeff Phann of the THP, and two Cookeville police officers.

       At the time of this incident, Bush had been a trooper with the THP for nine years and had

conducted six felony stops. He testified at his deposition that “based on my training, if there’s any

probability that a felony has occurred, we treat that as a high-risk stop.” He further testified that he

elected to proceed with a felony stop “based on the information that my dispatch was giving me.”

       Bush initiated the felony stop of the Smoaks’ car somewhere near Cookeville at 5:15 p.m.

At that same time, the THP in Nashville relayed the information that they knew the exact amount

of cash that had been found in the median, but neither McHood nor the troopers in the field inquired

as to that amount.

       Most of the events of the stop were recorded on the video camera in Bush’s cruiser. Once

the station wagon pulled over, neither the THP troopers nor the Cookeville officers approached the

car. Instead, Bush called to the “driver” over the loudspeaker, and instructed him to exit the vehicle,

place his hands in the air, walk backwards around the car, and finally, to get on his knees with his

hands laced behind his back. Trooper Bush did the same for the two passengers — first Pamela

Smoak and then her son Brandon. Only after the Smoaks were kneeling on the ground did the

                                                   4
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Smoak, et al. v. Hall, et al., and Bush

troopers approach and, somewhat frantically, apply handcuffs, while the obviously confused and

increasingly agitated Smoaks demanded to know why they had been stopped.

        As the Smoaks knelt on the pavement and troopers applied the handcuffs, the two Cookeville

officers — one wielding an assault rifle and the other a shotgun — prowled a few feet away, their

raised guns tight against their shoulders and trained on the Smoaks. Although this gesture was

superficially menacing and surely intended as an intimidating show of force, the way these two

officers paced and shuffled behind the troopers, wavering guns gripped white-knuckled in their

hands, exhibits such nervousness and fear that, even on video, the tension is palpable and the ensuing

events are almost predictable. It is also worth noting that, prior to trial, the troopers testified that

pointing a gun at a suspect, absent the justification for deadly force, is a significant departure from

customary professional police practices, and that the correct position of an officer’s gun is in the

“down ready” position until deadly force is warranted. Nothing in this record provides a justification

for deadly force, and this was not the “down ready” position.

        Meanwhile, handcuffed on the side of the highway and still wholly uninformed about why

they had been stopped, the Smoaks asked the troopers several times to “please shut the door[s]” of

the station wagon so that their dogs would not escape from the car onto the highway. The troopers

ignored these requests. When Mrs. Smoak’s son, Brandon, asked Trooper Phann if he could close

the passenger-side door, Phann ordered him not to move. Lieutenant Andrews approached the

driver’s side of the car, determined that there were no other passengers, and closed the driver-side

door. At this point, Mrs. Smoak can be heard clearly, saying: “My dog is not mean, he will not hurt

you.”

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No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

       While Phann was handcuffing Brandon, the Smoak’s one-year-old bulldog/bull terrier mix,

General Patton, jumped from the still-open passenger-side door and — with ears up and tail wagging

— bounded through the tall grass alongside the highway. According to the Smoaks, the dog was

headed toward James Smoak, but Eric Hall, the Cookeville police officer with the shotgun, moved

to intercept; according to Hall, however, the dog was pursuing him and he was retreating in fear.

Either way, Hall back-peddled in a slight semi-circle, toward the handcuffed, prone, and now-

shouting Smoaks, with the excited dog following (tail wagging vigorously). Then, directly in front

of the camera, when the dog had almost reached Hall, Hall stopped, leaned down with the shotgun

and — with the gun’s muzzle almost touching the dog’s face — fired. The dog’s head exploded in

a mist of blood, bone, and brain, and its lifeless body dropped from the camera’s view.

       James and Pamela Smoak both jumped to their feet, James wailing “You shot my dog, you

shot my dog,” and Pamela screaming and crying “Why did you do that?” Trooper Phann still had

hold of Brandon and had not allowed him to his feet. While Pamela stood screaming, Lt. Andrews

and Trooper Bush grabbed the still-handcuffed and now grief-stricken and sobbing James Smoak

and drove him to the ground, the weight of all three men landing on James’s left knee. With James

face-down on the ground, the two troopers knelt over him and Lt. Andrews knelt on his head,

pinning it to the ground. James ultimately needed surgery to repair the damage to his knee.

       Meanwhile, the Cookeville officers turned their guns on Pamela Smoak and ordered her to

get back down on her knees, which she did without further violence on the part of the officers. The

troopers put the Smoaks into separate patrol cars, after which Bush and Hall can be seen on the

videotape grinning and laughing. At 5:23 p.m., Bush advised dispatcher Brock that the Smoaks were

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No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

in custody and Brock should “ask Nashville the charges.” Brock replied that no robberies had been

reported and that James Smoak was not wanted for any crimes. At that point, Andrews and Bush

determined that a mistake had been made, but the last of the handcuffs was not taken off for another

10 minutes.

       The entire incident lasted 29 minutes, even though the THP troopers knew within the first

20 minutes that the Smoaks were innocent of any wrongdoing. After the Smoaks drove off, the

videotape records Bush lamenting that “I wish I had never stopped that f...ing car.” It is perhaps

telling, however, that far from showing remorse, Bush later testified that he would have conducted

the same stop even without the information concerning a possible robbery because a report of a

speeding car with a wallet and money coming out of it might indicate a car-jacking. Andrews and

Phann, on the other hand, testified that they would not have conducted a felony stop had they had

all the facts known to the dispatchers at the time. Pickard had actually joked with another dispatcher

that someone had probably lost all his money, which reminded him of something his kids would do.

       The Smoaks sued the City of Cookeville, the Cookeville officers and dispatchers, and the

THP troopers and dispatchers under 42 U.S.C. § 1983, claiming unreasonable seizure and excessive

force, in violation of the Fourth Amendment. The Smoaks also raised a state-law claim,2 asserting

that the officers had conspired to protect Hall by making false statements in their police reports and

to the media. The Smoaks settled with the City of Cookeville and all of the Cookeville defendants,

including Officer Hall, the officer who shot their dog. The remaining defendants — the THP



       2
           The Smoaks actually raised several state-law claims, but all the others were dismissed under 12(b)(6).

                                                           7
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

troopers and dispatchers — did not settle, but proceeded through discovery and moved for summary

judgment on the unreasonable-seizure, excessive-force, and conspiracy claims.

       The district court dismissed the conspiracy claim as unsupported by the facts, but denied the

defendants’ qualified-immunity-based motions on the other two claims. Although the court did not

“discern any actual excessive force” from the restraint of James Smoak, it nonetheless denied

summary judgment on all aspects of the excessive-force claim. The THP defendants — three

troopers and two dispatchers — filed an interlocutory appeal from the denial of qualified immunity.

       On appeal, a splintered panel of this court produced three separate opinions. See Smoak v.

Hall, 460 F.3d 768 (6th Cir. 2006). The lead opinion determined that Lt. Andrews and Trooper Bush

were not entitled to qualified immunity on the excessive force claim because a jury could conclude

from the facts as alleged by Smoak that their actions of slamming him to the ground after Hall had

shot the dog, were a clearly established violation of the Fourth Amendment, id. at 784, but the

defendants were entitled to qualified immunity on the other claims, id. at 782-782. A separate

opinion would have awarded qualified immunity to all five defendants on all claims. Id. at 786-87.

The third judge opined that — after careful review of the video — none of the defendants was

entitled to qualified immunity. Id. at 787-89.

       The case was sent back to the district court for a jury trial — on only the excessive force

claims against Lt. Andrews and Trooper Bush — and the jury ultimately concluded that Andrews

had not used excessive force on James Smoak and had not injured him, but that Bush had. The jury

awarded Smoak $9,102.80 in compensatory damages (primarily his medical expenses) and

$192,248.72 in attorney’s fees, for a total jury verdict of $210,351.52. Bush now appeals.

                                                 8
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

                                                  II.

                                                  A.

       Bush’s first claim on appeal is that the district court erred by denying his Rule 50 motion.

For the reasons that follow, we disagree.

       We review a district court’s denial of a Rule 50 motion de novo. Ford v. Grand Traverse,

535 F.3d 483, 494 (6th Cir. 2008). We do not weigh the evidence or question the credibility of

witnesses. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 532 (6th Cir. 2008). We may not

substitute our judgment for that of the jury; instead, we must view the evidence in the light most

favorable to the jury’s verdict and the jury’s verdict must be given the benefit of all reasonable

inferences. Id. The motion may be granted and the district court reversed, only upon a finding that

“reasonable minds could not come to a conclusion other than one favoring the movant.” Id.

       Bush contends that “the [d]istrict [c]ourt, without analysis or explanation, automatically,

applied legal findings from the earlier appeal to the different set of facts introduced at trial.” Apt.

Br. at 19-20. Bush then argues that we need not grant deference to Smoak’s rendition of the facts

because the cruiser-cam video provides us with objective evidence from which we can draw more

accurate findings of fact. Apt. Br. at 22-23 (citing Scott v. Harris, 550 U.S. 372 (2007), and Marvin

v. City of Taylor, 509 F.3d 234 (6th Cir. 2007)). But, this approach (and the cases Bush has cited

in support of it) applies to summary judgment, not to Rule 50 motions after a jury verdict. Bush asks

us to do what we are expressly forbidden to do — to look at the video and substitute our judgment

for that of the jury. Bush’s reliance on this case law is misplaced and this proposal is untenable.



                                                  9
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

       For the second part of his argument, Bush contends that he was entitled to use the amount

of force he used because (1) Smoak was a robbery suspect, (2) “even though [he] was handcuffed,

he could still be viewed as posing a threat,” and (3) “he was noncompliant and actively resisting.”

Apt. Br. at 25. Smoak, on the other hand, along with his wife Pam, step-son Brandon, and his

doctor, contend that Officer Bush used more force than was necessary. More importantly, the jury

watched the video, and then found that — despite Bush’s claims to the contrary — Bush used more

force than was necessary. Unless we are to say, as a matter of law, that a police officer may use as

much force as he likes to subdue a noncompliant but handcuffed robbery suspect, the question of

how much force in this situation is too much is a question for the jury. And, unless we are to re-

write or ignore our standard of review, we must defer to the jury’s reasonable interpretation of the

evidence, no matter how we might feel about that evidence if we were to assess it ourselves.

       Again, Bush is asking us to do what the law flatly forbids — to substitute our opinion for that

of the jury based on a re-weighing and reinterpreting of the evidence. This we will not do.

                                                 B.

       Bush’s second claim on appeal is that the district court erred by denying him qualified

immunity. We disagree.

       Bush argues that, “[e]ven if a reasonable jury could find that Trooper Bush used excessive

force in restraining Mr. Smoak, qualified immunity would still apply because it was not clearly

established that his actions were improper.” Apt. Br. at 30. That is, Bush argues that he could not

have known that it would be improper to take hold of a man whose hands are bound behind his back

and, using the full weight of his body, drive that defenseless man to the pavement.

                                                 10
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

       “The law is . . . clear that force can easily be excessive if the suspect is compliant.” Wysong

v. City of Heath, 260 F. App’x 848, 855 (6th Cir. 2008) (citing Champion v. Outlook Nashville, Inc.,

380 F.3d 893, 902 (6th Cir. 2004)). “There is no government interest in striking someone who is

neither resisting nor trying to flee.” Id. (citing Smoak I, 460 F.3d at 784, and McDowell v. Rogers,

863 F.2d 1302, 1307 (6th Cir. 1988)). We do not hesitate to say that “it would [have been] clear to

a reasonable officer that his conduct was unlawful in the situation [Bush] confronted.” Saucier v.

Katz, 533 U.S. 194, 202 (2001). Hence, it was clearly established that the force Bush used was

excessive.

       Of course, if the officers were proceeding on the basis of a mistake, and “[i]f their mistake

was reasonable, then the law permit[s] [the officers] to effectuate their arrest using force reasonably

necessary from the perspective of a reasonable officer on the scene.” Ingram v. City of Columbus,

185 F.3d 579, 598 (6th Cir. 1999) (citing Graham v. Connor, 490 U.S. 386, 394 (1989), and Hill v.

California, 401 U.S. 797, 804-05 (1971)). Thus, we consider whether Officer Bush was reasonably

mistaken.

       Bush contends that he deemed this level of violence necessary at the time because Smoak

was “noncompliant,” though he concedes that Smoak’s only “noncompliant act” was his visceral

reaction to Officer Hall’s horrifying shotgun blast to the dog’s head — Smoak stood up when he had

been ordered to kneel. But, in the totality of the encounter, Smoak had been fully compliant. Bush

signaled Smoak to pull over, which Smoak did. Rather than approach the driver’s side window to

speak with Smoak — as every driver knows is customary in a traffic stop — Bush shouted to Smoak

over the loudspeaker, ordering him first to throw his keys out the window onto the highway; then

                                                  11
No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

to exit the car with his hands over his head and walk backwards to the rear of the car; and then to

kneel down on the pavement. Smoak complied promptly with every instruction. As ordered, Smoak

knelt there with his hands behind his back while Bush ordered Smoak’s wife and step-son to exit the

car and kneel on the pavement, hands up. Bush never explained to these hapless travelers why he

had stopped them or why they were being thus treated, but Smoak nonetheless complied with every

instruction. As the family knelt on the side of the highway — the Cookeville officers’ guns trained

on them — Smoak complied while the troopers secured his hands behind his back, handcuffed his

wife and step-son, and looked in his car. Up to this point, Smoak was remarkably compliant — in

fact, commendably so.

       When Hall shot the dog, Smoak stood up, crying out, “You shot my dog, you shot my dog!”

Despite the fact that both Bush and Andrews had hold of the handcuffed Smoak, that Trooper Phann

had hold of Smoak’s step-son, Brandon, and that the two Cookeville officers had guns at the ready,

Bush contends that he thought it was necessary to slam Smoak to the ground, i.e., that this use of

force was, at most, a reasonable mistake. We disagree. Having reviewed the evidence, including

the video, we find this use of force clearly unreasonable. Bush has not established that he was

entitled to qualified immunity.

                                               III.

       For all of the foregoing reasons, we AFFIRM the judgment of the district court.




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No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

       Cole, Circuit Judge, concurring. I fully concur in the lead opinion. I write separately to

note that I would also affirm the district court’s denial of Bush’s Rule 50(b) motion under law-of-

the-case principles. Because Bush can point to no way in which the facts confronting us now differ

from those facing us when we denied him summary judgment and qualified immunity, see Smoak

v. Hall, 460 F.3d 768 (6th Cir. 2006) (“Smoak I”), I would draw the same conclusions of law from

those facts as the Smoak I panel did. See Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1137 (6th

Cir. 1991) (“‘[W]hen a court decides upon a rule of law, that decision should continue to govern the

same issues in subsequent stages in the same case.’” (quoting Arizona v. California, 460 U.S. 605,

618 (1983))); see also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 4478.2 (2009) (“Deference to an earlier panel ruling is properly deepened

because the decision typically involves the concurrent judgment of two or more judges . . . . [F]ree

reexamination would encourage multiple appeals, undertaken in the sole hope that a second panel

will accept arguments that failed to persuade the first.”).

       When this case was previously before this Court, we denied summary judgment to Bush on

Smoak’s excessive force claim based on the following reasoning:

               In many of the cases involving excessive force, the plaintiff’s resistance is
       what triggered the use of force from the officers. See, e.g., Burchett v. Kiefer, 310
       F.3d 937, 944 (6th Cir. 2002) (holding that the officers’ use of force to handcuff a
       suspect was necessary because the suspect “acknowledged that he ‘twisted and turned
       some’ when they tried to handcuff him and that the officers had difficulty restraining
       him”); Darrah, 255 F.3d at 307 (upholding an officer’s use of force because “Officer
       Bragg and the other members of his arrest team were in the middle of a boisterous
       and unruly group of picketers attempting to make an arrest of an individual who was
       resisting their efforts”); see also Tapp v. Banks, 1 Fed. Appx. 344, 350 (6th Cir.
       2001) (unpublished) (holding that “it is not objectively reasonable for an officer


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No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

       dealing with an essentially compliant person, to strike the person’s legs twelve to
       fifteen times in the absence of resistance”).

               James [Smoak], in contrast, was initially compliant with the police officers’
       demands, and he jumped up only after his dog had been shot right in front of him.
       Given that James was handcuffed, a reasonable officer would not have “knocked his
       legs out from under him, and [thrown] him to the pavement face-first.” James alleges
       that he suffered physical injuries that required both admission to a hospital and
       subsequent surgery. A jury could find that a reasonable officer would not have
       reacted this forcefully to a handcuffed man who showed no signs of noncompliance
       until his pet was killed in front of his family.

               The THP troopers argue, however, that James’ allegations are unambiguously
       controverted by the videotape taken of the incident. This argument fails because the
       video does not so clearly undermine James’s claim as to permit us to ignore our
       charge to accept all of the Smoaks’ allegations as true. See Turner [v. Scott], 119
       F.3d [425,] 428 [(6th Cir. 1997)] (holding that defendants may collaterally appeal the
       denial of qualified immunity only when the facts are uncontested). Although the
       video does not appear to show any swiping of James’s legs, his head twice gets very
       close to the ground before going out of the camera’s range, which is consistent with
       his allegations.

                Based on the facts as alleged by the Smoaks, James was handcuffed, generally
       compliant, and obviously reacting in horror to the shooting of his dog. The law is
       clearly established that, in this situation, tackling James in the manner he alleges
       would not have been a reasonable way to restrain him. Cf. Burchett, 310 F.3d at 944
       (permitting officers to tackle a suspect who was resisting arrest). We therefore affirm
       the district court’s denial of qualified immunity to Andrews and Bush on this one
       aspect of the Smoaks’ excessive-force claim. This is not to say that a jury hearing
       all of the evidence will ultimately agree with James’s version of the facts, but we are
       unable to hold as a matter of law that his version is not worthy of belief.

Smoak I, 460 F.3d at 783-84 (emphasis added). Following a trial, a jury found that Trooper Bush

had used excessive force.

       In his current appeal, Bush points to four specific ways in which he claims the evidence

adduced at trial repudiated the facts presumed true by the Smoak I panel, such that no reasonable jury

could have believed them. In reviewing a Rule 50 motion, we view the evidence “in the light most

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Smoak, et al. v. Hall, et al., and Bush

favorable to the party against whom the motion is made.” K & T Enters., Inc. v. Zurich Ins. Co., 97

F.3d 171, 176 (6th Cir. 1996). Viewed in this light, none of the four asserted instances of “new”

evidence renders the set of facts before us different from that assumed by the Smoak I court.

       First, Bush asserts that the trial testimony established that when Smoak jumped up at the

sound of the gunshot, he moved toward the officer who had fired the shot, justifying Bush in

restraining Smoak by pulling him back by the hand-cuffs. Bush claims that this evidence differs

from the deposition testimony on which the Smoak I court relied. However, the Smoak I court

viewed the video of the event, so it was aware of the extent to which Smoak was moving toward the

firing officer when he jumped up. In addition, based on the video evidence and the testimony, the

jury could have believed that Smoak did not make a definitive or pronounced movement toward the

officer firing the shot. (E.g. Smoak Tr. 61 (“It seems that my body moves over [in the video] - - I

don’t know if I actually stepped [i.e., took a step toward the officer].”).) Moreover, the Smoak I

opinion did not purport to rely on the fact that Smoak did not move in the direction of the officer

who fired the shot. Therefore, this “discrepancy” in the evidence does not alter the Smoak I court’s

analysis.

       The second way Bush claims the testimony at trial differed is that Smoak admitted at trial

that when he jumped up upon hearing the gunshot, he did so in violation of the officers’ instructions

to remain on his knees. However, the Smoak I court assumed that Smoak was violating instructions

when he jumped up, noting that Smoak was “initially compliant” and “showed no signs of

noncompliance until his pet was killed.” Smoak I, 460 F.3d at 783 (emphasis added). Judge Cook

made the same argument Bush now makes in her dissent in Smoak I, and the majority implicitly

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Smoak, et al. v. Hall, et al., and Bush

rejected it. Id. at 786-87 (Cook, J., dissenting) (noting that Smoak “jumped to his feet . . . despite

being ordered to remain in the kneeling position”). Therefore, this purportedly new testimony does

not change the Smoak I court’s analysis.

       The third and fourth ways Bush claims the trial testimony differed from Smoak’s previous

allegations to the Smoak I court relate to the manner in which Smoak was brought to the ground.

The Smoak I panel assumed the truth of Smoak’s allegation that Bush “knocked his legs out from

under him, and [threw] him to the pavement face-first.” Smoak I, 460 F.3d at 783. The panel further

stated, “[a]lthough the video does not appear to show any swiping of James’s legs, his head twice

gets very close to the ground before going out of the camera’s range, which is consistent with his

allegations.” Id. at 784. Bush argues that the trial testimony showed that the tackling of Smoak did

not involve any swiping of the legs, and that it was Andrews, not Bush, who pushed Smoak’s face

to the ground. However, Smoak did testify, as he had in the deposition testimony considered by the

Smoak I court, that Bush forced him face-down onto the ground. Describing to the jury what was

happening in the video, Smoak testified: “[h]e has swept my legs out from under me, so I’m headed

down now . . . I’m getting ready to hit my knee - - my head is a little higher than my knees, but it’s

still - - when you are cuffed with your hands behind your back, you hardly have any choice once

you’re in that position. It’s knees or head.” (Smoak Tr. 25.) This suggests, and the jury reasonably

concluded, that Bush forced or threw Smoak to the ground face-first, even if it was Andrews who

allegedly proceeded to “put[] [Smoak’s] face in the pavement.” (Smoak Tr. 25.)

       At bottom, this appeal is a renewal of Bush’s argument that his actions, as shown on the

video, did not amount to excessive force because he was making a split-second judgment, dealing

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No. 08-5442
Smoak, et al. v. Hall, et al., and Bush

with a non-compliant robbery suspect, and using an objectively reasonable level of force. These are

the same arguments Bush made to the Smoak I panel, and that panel rejected them. Bush is not

entitled to another bite at the apple. Once it is established that the evidence at trial, viewed in the

light most favorable to Smoak, was identical to the evidence presumed true by the Smoak I panel,

affirmance is appropriate on the ground that the holding in Smoak I is the law of the case with

respect to what conduct may constitute excessive force and what conduct is or is not entitled to

qualified immunity.




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