264 F.3d 86 (1st Cir. 2001)
JASON DAVIS,  Plaintiff, Appellee,v.PAUL RENNIE, RICHARD GILLIS, MICHAEL HANLON, LEONARD FITZPATRICK,  NICHOLAS L. TASSONE, and JOYCE WIEGERS, Defendants, Appellants.
No. 99-1453
United States Court of Appeals For the First Circuit
Heard June 5, 2001Decided September 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge] [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Christopher M. Perry, with whom Brendan J. Perry, Terance P.  Perry, and Brendan J. Perry & Associates, P.C., were on brief, for  appellee.
Howard R. Meshnick and James A. Sweeney, Assistant Attorneys  General, with whom Thomas F. Reilly, Attorney General, was on brief,  for appellants.
Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.
LIPEZ, Circuit Judge.


1
Jason Davis, an involuntarily  committed mental patient, brought suit under 42 U.S.C. § 1983, the  Massachusetts Civil Rights Act, and other statutes against multiple  defendants after being punched repeatedly in the head during a physical  restraint at Westborough State Hospital.  A jury awarded Davis $100,000  in compensatory damages and $1.55 million in punitive damages,  concluding that the appellants violated Davis's substantive due process  rights under the Fourteenth Amendment.  Joyce Wiegers, the head nurse  who ordered the restraint, and Leonard Fitzpatrick, Richard Gillis,  Michael Hanlon, Paul Rennie, and Nicholas L. Tassone, mental health  workers who participated in the restraint, appeal the portion of the  judgment against them.  They argue that the district court erred in  instructing the jury about Davis's claims; that there is insufficient  evidence for a reasonable jury to have found that they violated Davis's  constitutional rights; that they are entitled to qualified immunity;  and that the evidence does not support a punitive damages award.  We  affirm the judgment against each of the appellants.

I.

2
Although we must assess challenges to the sufficiency of the  evidence in the light most favorable to the verdict, Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 6 (1st Cir. 2001), we  recount some of  the factual disputes at trial to provide a more complete sense of the  issues before the jury.


3
At the time of the events relevant to this case, Jason Davis,  28 years old, suffered from schizo-affective and bipolar disorders.  He  had a history of substance abuse and suicide attempts and had been  hospitalized between 10 and 12 times since the age of 17.  He was  involuntarily committed to Westborough State Hospital (Westborough) for  periods during 1991 and 1992.  After threatening to kill his father, he  was committed to Westborough for a third time on May 12, 1993.  Davis  spent about a month in Westborough's Hennessey Building, a locked wing  of the hospital, and then transferred to Chauncy Hall, an unlocked  wing.


4
On August 12, 1993, Davis and another patient, Dean Dexter,  violated hospital rules by leaving the grounds without permission. Davis testified that he told Dexter that he was unhappy because no one  had visited him on his birthday two days earlier, and that Dexter  suggested that they go drinking.  The patients walked to a nearby  liquor store and bought beer, vodka, and wine coolers.  At about 11  a.m., Davis and Dexter went into the woods behind the store and began  drinking.


5
Westborough staff sent Greg Plesh, a special state police  officer assigned to the hospital for security, and Frantz Joseph, a  mental health worker (MHW), to look for the missing patients.  While  Joseph watched for Davis and Dexter on the road next to the liquor  store, Plesh went into the woods, where he found the patients.  Davis  and Dexter did not threaten Plesh or resist when he asked them to walk  back to his car with him.  At the car, Plesh and a second police  officer handcuffed Davis and Dexter and took them back to Chauncy Hall  with Joseph.  There, medical staff decided that the patients should be  medically evaluated in a more secure unit because they had been  drinking.  The staff instructed Plesh, Joseph, and the second police  officer to take the patients to Hennessey Unit 2A.


6
Plesh and Joseph arrived with Davis and Dexter at Hennessey  at about noon.  Plesh took off the patients' handcuffs in the lobby, as  policy required.  According to Plesh, who is Davis's key witness, Davis  and Dexter were loud and boisterous as they rode the elevator up to  Hennessey 2A.  When they arrived at the unit, Head Nurse Joyce Wiegers  told Plesh to take Davis and Dexter to the day hall.  Wiegers had not  received notice from Chauncy Hall that Davis and Dexter were coming. As Head Nurse for Hennessey 2A, Wiegers was responsible for 37 patients  and several staff, about half of whom were outside on a picnic.


7
Wiegers told Davis and Dexter to stay in the day hall while  she called a doctor to evaluate them.  According to Plesh and Davis,  Dexter came out of the day hall after a few minutes and made sexually  inappropriate comments to a second nurse, Sheila Mall.  Plesh said that  Mall got upset and called to Wiegers, who sent Dexter back to the day  hall and asked Plesh to stay with the patients until male MHWs could be  called in from the picnic.  Plesh said that Dexter and Davis were "loud  and demanding" and that there was "continuing escalation" between the  patients and the nurses.


8
MHWs Phillip Bragg, Michael Hanlon, and Paul Rennie responded  to Wiegers's call for assistance.  Wiegers, Bragg, and Hanlon testified  that as the MHWs stood at the door of the day hall, Davis smacked one  hand with his fist and said things like "I'll kill you" and "I'll break  your neck" while looking at the MHWs.  Davis denied this account and  testified that Dean Dexter made the verbal threats and threatening  gestures to the MHWs.


9
Wiegers directed Bragg, Hanlon, and Rennie to separate Dexter  and Davis by putting Davis in the unit's "quiet room," which had a  mattress on the floor, and Dexter in the "four-point room," which had  a bed with four-point mechanical restraints.  Each patient was to be  secluded with the door left open and an MHW stationed outside.  The  MHWs took Davis to the quiet room without incident.  Once inside, they  asked him to take off his belt and shoes, as policy required.  Hanlon,  Wiegers, and Bragg testified that Davis threw the belt at Hanlon and  hit him in the chest.  Plesh, who was watching from the hallway, said  that the belt might have hit one of the MHWs by rebounding after Davis  threw it at the wall.  Davis denied throwing the belt at Hanlon.


10
Although Wiegers told Plesh and Joseph that they could leave,  she said they should be prepared to return if necessary.  Hanlon and  Rennie stood outside the open door of the quiet room.  Bragg was also  standing in the hallway.  Davis testified that Bragg and Rennie "were  laughing, making comments about the facts that we were idiots or  something or drunks.  They just thought the whole thing was funny." Davis said that when he asked the MHWs if he could leave the room to  smoke, Rennie said "you are going to have to go through us," and "what  do you think that you're going to do?  Are you going to kick our ass?" Rennie denied making these comments.  Davis said that he considered  Rennie a friend and that Rennie was acting "like he was someone else,"  which upset him.


11
In response to his lawyer's questions about how Rennie's  comments made him feel, Davis said: "I did something really stupid. I  turned around to the wall and tried to do a double drop kick."  Davis  testified that he tried to kick twice and executed poorly, and that  Bragg and Rennie "were laughing, saying that I looked like a toad." Davis said that his back was to Rennie when he attempted the  kicks,  and that he "just aimed towards the wall."  Hanlon also said that  Davis's kicks did not connect with anyone, though he characterized them  as threatening.  Rennie testified that the kicks were directed at him  and that one kick hit his arm.  With Hanlon standing by, Rennie  physically restrained Davis.  The restraint did not injure Davis.  However, Davis testified that Rennie choked him and threw him to the  mat with "deadly force."


12
At this point, Wiegers called a "green alert stat" asking any  available male staff to come to Hennessey 2A.  Plesh responded, as did  MHWs Fitzpatrick, Gillis, Tassone, and Jeffrey Flowers.  When they  arrived, Davis was sitting on the mattress in the quiet room.  Wiegers  told the MHWs to take Davis to the four-point room and put him in  mechanical restraints.  Tassone, who knew Davis well from an earlier  admission to Hennessey, talked to the patient and the two agreed that  Davis would walk to the four-point room himself rather than be carried  in by the MHWs.  Davis got up from the mattress and walked through the  door of the quiet room with Hanlon ahead of him, Tassone on one side,  and Rennie behind.  Plesh and Bragg were in the hallway and Gillis and  Fitzpatrick were still in the quiet room.  Plesh testified that as  Davis walked out of the room, Bragg "got right in Jason's face and made  a comment to Jason."   Plesh did not hear what Bragg said.  Bragg  denied making any comment to Davis.  Davis said that after the take-down in the quiet room, Rennie taunted Davis by saying "I thought you  were tough," and that in response as they walked into the hallway Davis  spun and kicked Rennie hard in the stomach.   Davis said about his  decision to kick Rennie: "There was no way I was going to let him strap  me to that bed.  There was no way I was going to let that continue. But at the same time there was like no way out."


13
Davis's kick sent Rennie to the floor.  Bragg, Fitzpatrick,  Gillis, Hanlon, and Tassone began trying to physically restrain Davis. Plesh, who characterized himself as an "extra male" at the scene,  watched from a few feet away.  Wiegers testified that she was "back and  forth constantly" and "would be gone maybe for seconds" as she tried to  monitor the restraint of Davis as well as ensure the safety of the  other patients on the floor.  Davis struggled, and Wiegers said she saw  "a pile of bodies" as the MHWs took him to the floor.  According to  testimony at trial, Bragg was at Davis's head with one knee on either  side, Fitzpatrick, Gillis, and Rennie, who had rejoined the restraint,  were on Davis's upper right holding his arm and torso,  Tassone was on  Davis's upper left, Hanlon was also helping to hold down Davis's upper  body, and Flowers was holding one of Davis's legs.  Wiegers, who at  this point was standing four or five feet from Davis's legs, said that  she could see one of Davis's boots but not his head.


14
Plesh, Tassone, and Davis testified that after the MHWs had  subdued Davis on the floor, Bragg punched the patient in the head. Plesh, whose account is crucial to the jury's findings, said he was  standing next to Wiegers about three feet from Davis. He recounted:  "Jason is lying down the hallway, head is away from me, feet are  towards me.  Staff is encircling him.  And it's not what I saw, it's  what I felt.  I initially felt the thud through the floor and then  heard a thud."  Plesh said he looked up and saw Bragg punch Davis in  the head four to five times.  Plesh continued:


15
I turned to Joyce Wiegers who was on my right  shoulder . . . When I saw Jason Davis being  punched, I said, 'Did you see that? Are you  going to do anything about this? Are you going  to allow this to happen?' . . . She didn't say  anything, and I really wasn't waiting at that  point.  Some more was occurring and at that  point I decided to intervene.


16
As the MHWs began rolling the patient onto his stomach, Bragg twisted  Davis's neck to the side and Plesh climbed over the other MHWs to  push Bragg away.  Plesh said that the punching and neck twisting  happened "very fast."


17
Tassone corroborated aspects of Plesh's testimony.  He said  that he saw Bragg punch Davis hard three times and that he heard  Plesh say: "What are you doing? What are you doing? Stop it, stop  it."  When asked why he did not intervene to stop Bragg from punching  Davis, Tassone said: "It wasn't time.  It wasn't a split second  between when the officer said something, I looked up, and Phillip  Bragg hit him, and then it was over."1


18
Davis testified about the punching: "It was over and over  and over and over again.  It was like it would never stop. . . And  then I was calling for help and nobody was stopping them and they  kept hitting me. . . I felt the blood; it was, you know, it was  coming down my face."  Plesh said that Davis's "eyes were rolling out  of his head," that "[t]here was swelling, bruising all in his face,"  and that he checked to make sure that Davis's neck had not been  broken.  Tassone said that Davis's face was cut and bloody.


19
Bragg denied that he punched Davis.  He said that after  helping bring Davis to the floor he asked Plesh to relieve him  because his arm was sore from the struggle.  Bragg said that Plesh  asked, "Don't you think you're hurting him?" and that Bragg answered  "no."  Fitzpatrick, Gillis, and Hanlon all said that they were within  three feet of Davis's head, did not see Bragg punch Davis, and were  not aware of Plesh's intervention.  Flowers, Rennie, and Wiegers also  testified that they did not see any punching or violence toward  Davis.


20
Plesh testified that when the restraint was over, Wiegers  got down on her knees in front of Davis and said, "This is what you  get when you act -- this is what you get when you act like this." Davis testified that Bragg said these words to him, and that Wiegers  said something else.  Wiegers denied making any comments to Davis.


21
After the MHWs finished rolling Davis over, Plesh  handcuffed him for transport to the four-point room.  When Davis was  placed on the restraint bed and secured, Plesh took the handcuffs off  at Wiegers's direction and left to find a doctor.  In the hallway, he  saw Dr. Kamalika Weeratne, whom Wiegers had called.  Plesh then found  Bragg and arrested him for assault and battery.2  In connection with  the arrest, Plesh later returned with his supervisor to photograph  Davis's injuries. These pictures were introduced at trial.


22
Wiegers testified that her supervisor, David Potter, told  her to write a report about the restraint of Davis before she left  for the day.  In the report Wiegers wrote of Davis's bruises:  "Unknown when or how injury sustained" and "Unknown to writer  precipitants to occurrence."  At trial, she said that she used those  phrases because she was not sure how the restraint caused Davis's  injuries and because she had not received an explanation from Chauncy  Hall about why Davis was being sent to Hennessey.  Wiegers also  filled out an internal Westborough complaint form about Plesh's  arrest of Bragg in which she wrote: "Improper and disturbing arrest  by security of a staff member."3   Fitzpatrick and Gillis also made an  internal complaint a few days after the restraint alleging that after  handcuffing Davis, Plesh told them to twist the handcuffs if the  patient continued to struggle, and then demonstrated the twist on  Davis.


23
Dr. Weeratne testified that when she examined Davis after  the restraint, she found bruises on the left side of his face,  scratches on the right side, and an enlarged left pupil.  Dr.  Weeratne said she sent Davis to the emergency room at the University  of Massachusetts Hospital in Worcester to rule out more serious head  injuries.  Davis did not require further treatment at the hospital  and was released that day.


24
Davis presented additional medical evidence at trial from  Dr. R. Amos Zeidman, his treating psychiatrist for periods  beginning  in 1991.  In late 1996 or early 1997, Dr. Zeidman diagnosed Davis  with Post Traumatic Stress Disorder (PTSD) as a result of the  physical restraint at Westborough.  He said that Davis "was  horrified" by the event because "[h]e thought he was going to die." Dr. Zeidman said that Davis's PTSD symptoms included insomnia,  anxiety, panic states, flashbacks, nightmares, and an inability to  concentrate.  He said that Davis was having difficulty making  progress in therapy because he was afraid to trust anyone and that  "[t]he quality of his life has suffered terribly for this."


25
On August 2, 1996, Davis filed suit alleging that the May  12, 1993 physical restraints in the quiet room and hallway violated  his rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights  Act, Mass. Gen. Laws ch. 12 § 11 I.4  Davis sued MHWs Bragg,  Fitzpatrick, Gillis, Hanlon, Rennie, Tassone, Joseph, and Flowers for  the use of excessive force during the first physical restraint in the  quiet room and the second restraint in the hallway.  He sued the same  defendants and Wiegers for failing to intervene to prevent Bragg's  use of excessive force during the second restraint and for violating  his right to freedom from unreasonable bodily restraint.5


26
In their answer to Davis's complaint, the MHWs pleaded the  defense of qualified immunity.6  On the ground that the factual  disputes in the case precluded a qualified immunity determination  before trial, the district court deferred the issue.  Trial began on  September 29, 1998.  At the close of evidence, the court told the  jury without objection that only Bragg, Rennie, and Hanlon were  accused of violating Davis's rights during the first physical  restraint in the quiet room, and that all the MHWs and Wiegers were  accused of violating Davis's rights during the second physical  restraint in the hallway.


27
On October 28, 1998, the jury returned a verdict against  Bragg, Fitzpatrick, Gillis, Hanlon, Rennie, Tassone, and Wiegers.  A  separate verdict slip for each defendant asked whether the jury found  that the defendant had violated Davis's constitutional and  Massachusetts civil rights.7  A single verdict slip on damages asked  the jury to set one amount for compensatory damages and to set amounts  for punitive damages for each defendant against whom it chose to award  them.  The jury awarded Davis $100,000 in compensatory damages, and  punitive damages of $500,000 each against Bragg and Wiegers; $250,000  against Rennie; and $100,000 each against Fitzpatrick, Gillis, and  Hanlon.  No punitive damages were assessed against Tassone.  On  January 13, 1999, the court denied the defendants' claims of qualified  immunity in a memorandum.  With the exception of Bragg, who does not  appeal the judgment against him, the defendants filed a motion for  remittitur, which the judge granted by reducing by half the punitive  damages awards against each of them.  Davis accepted the remittitur. This appeal followed.8

II.
A. The Failure to Intervene Claim

28
We begin with the appellants' arguments of error relating  to the claim that they failed to intervene to prevent Bragg from  punching Davis.  The appellants challenge the judge's instructions on  this claim.  They also argue that there was insufficient evidence to  support a finding that they failed to intervene.

1. The Jury Instructions

29
a. Substantive Due Process


30
The appellants contend that the judge should have  instructed the jury that it could impose liability only if it found  that the failure to intervene "shocks the conscience."  As a fallback  position, the appellants argue that, at a minimum, the instructions  should have premised liability on a finding that the appellants were  deliberately indifferent.  Finally, they argue that the judge erred  by failing to charge an "objectively reasonable" standard for the  failure to intervene claim, as he said he would at the pre-charge  conference.


31
The judge began his charge to the jury with Davis's claims  against Bragg.  In connection with the claim that Bragg violated  Davis's constitutional rights by using excessive force, the judge gave  an "objectively reasonable" instruction, telling the jury to determine  "whether a reasonable mental health worker in Bragg's position would  or would not have acted as he did."  Turning to the claims against the  appellants, the judge said: "To the extent that the claims against  them are the same as the claims against Mr. Bragg, you follow the  instructions I have just given about the claims against Mr. Bragg. However, as you recall, there are charges made against the [other]  defendants beyond those made against Mr. Bragg."  The judge then said  that Davis claimed the appellants deprived him of his constitutional  rights "by failing to intervene to protect him from Mr. Bragg's  alleged assault."  The judge continued:


32
To prevail on this claim, Mr. Davis must  establish by a preponderance of the evidence as  to each defendant separately:


33
1) That that defendant was present at the scene  of the alleged excessive use of force by Mr.  Bragg at the time it occurred;


34
2) That that defendant actually observed the  alleged excessive use of force by Mr. Bragg;


35
3) That that defendant was in a position where  he or she could realistically prevent the  alleged use of excessive force by Phillip Bragg;  and


36
4) That there was sufficient time available to  that defendant to prevent the alleged excessive  use of force.  In sum . . . you must determine  as to each defendant whether he or she actually  knew of Mr. Bragg's alleged punching, whether he  or she could have prevented it, whether there  was enough time to do so, and whether he or she  failed to do so.


37
In assessing these instructions, we begin with the basis of  Davis's claims.  Section 1983 "is not itself a source of substantive  rights, but merely provides a method for vindicating federal rights  elsewhere conferred."  Graham v. Connor, 490 U.S. 386, 393-94 (1989)  (internal quotation marks omitted).  We must thus identify the  specific right alleged to have been violated.  See Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).  Here, Davis's rights stem from  the Fourteenth Amendment's protection against state action depriving  an individual of life or liberty without "due process of law."  U.S.  Const. art. XIV.  "The most familiar dimension of due process is  protection of procedural rights, but the due process concept has been  extended by the Supreme Court to incorporate substantive protections." Hasenfus v. LaJeunesse, 175 F.3d 68, 70-71 (1st Cir. 1999) (citing Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997)).


38
The strand of substantive due process jurisprudence  primarily at issue here involves Davis's right to be free from the use  of excessive force and the appellants' failure to prevent that force.  The state has a duty to protect incarcerated prisoners and  involuntarily committed mental patients from harm by a state actor. DeShaney v. Winnebago County, 489 U.S. 189, 199 (1989); Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982).  For involuntarily committed  patients, "a set of unique rules has developed" according to which  "failures to act . . . may comprise a due process or other  constitutional violation because the state-imposed circumstance of  confinement prevents such individuals from helping themselves."9 Hasenfus, 175 F.3d at 71; see also Shaw v. Strackhouse, 920 F.2d 1135,  1144 (3d Cir. 1990) ("Once the state restrains an individual's  liberty, rendering that individual unable to act for himself . . . the  state does acquire an affirmative duty to protect.").


39
For similar reasons, we have said that the state also has  a duty in some circumstances to intervene to protect arrestees and  pretrial detainees.  We initially discussed such a duty in Gaudreault v. Salem, 923 F.2d 203 (1st Cir. 1990) (per curiam), cert. denied, 500  U.S. 956 (1991), saying: "An officer who is present at the scene and  who fails to take reasonable steps to protect the victim of another  officer's use of excessive force can be held liable under section 1983  for his nonfeasance."  Id. at 207 n.3.  Although this statement is  dicta,10 Gaudreault cited two cases in which other circuits have held  squarely that police officers have a duty to intervene when they see  another officer use excessive force against a pretrial detainee.  See O'neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Byrd v. Brishke,  466 F.2d 6, 10 (7th Cir. 1972).  Moreover, we cited O'Neill and Gaudreault and restated the existence of a duty to intervene on the  part of police in Martinez v. Colon, 54 F.3d 980, 985 (1st Cir.  1995).11


40
Gaudreault is thus good law in our circuit, and the record  reveals that it was the source of the four-point instruction that the  trial court gave on the failure to intervene claim.  With the legal  scene thus set, we turn to the appellants' arguments about why the  instructions were in error.


41
b. The "Shocks the Conscience" Standard


42
In a motion proposing jury instructions, the appellants  asked the judge to instruct the jury that it could impose liability  only if it found that the appellants' failure to intervene to protect  Davis involved behavior so extreme as to "shock the conscience."  They  preserved this argument by objecting to the charge after it was given. See Fed. R. Civ. P. 51.  On appeal, they argue that the court's  failure to give that instruction was error.


43
The appellants rely on Sacramento v. Lewis, 523 U.S. 833  (1998), which involved a high-speed car chase by a police officer that  ended in the death of a passenger in the suspect car.  Id. at 837. The Court held that the police officer who gave chase had not violated  the passenger's substantive due process rights because "in such  circumstances only a purpose to cause harm unrelated to the legitimate  object of arrest will satisfy the element of arbitrary conduct  shocking to the conscience, necessary for a due process violation." Id. at 836.  The Court likened a police officer faced with a fleeing  suspect to a prison guard faced with a riot.  Id. at 853.  In such  situations, police or guards


44
have obligations that tend to tug against each  other. Their duty is to restore and maintain  lawful order, while not exacerbating disorder  more than necessary to do their jobs.  They are  supposed to act decisively and to show restraint  at the same moment, and their decisions have to  be made in haste, under pressure, and frequently  without the luxury of a second chance.


45
Id. (internal quotations marks omitted).  The appellants argue that  they similarly faced circumstances that were "tense, evolving, and  requiring split-second decisions," and thus were entitled to a "shocks  the conscience" instruction.


46
At first glance, the analogy has  some appeal.  Davis was drunk, possibly threatening initially, and  eventually violent.  However, the evidence pertaining to Davis's  failure to intervene claim focused on what the MHWs and Nurse Wiegers  did or failed to do after Davis had been restrained.  The premise of  the trial court's decision to give the Gaudreault instruction was that  a reasonable jury could have found that Davis had been subdued when  Bragg began punching him repeatedly, allowing the appellants  sufficient time and a realistic opportunity to concentrate on their  primary responsibility of protecting the patient.  Given this  plausible view of the evidence, the appellants, unlike the police  officer in Lewis, did not face competing obligations between restoring  order and exacerbating disorder once Davis had been restrained.  By  requiring the jury to find that the defendants had sufficient time to  prevent the alleged excessive use of force by Bragg, the Gaudreault standards focused properly on the factual element that removes this  case from the ambit of Lewis and its "shocks the conscience" standard. The appellants' argument to the contrary fails because it collapses  the short time in which the appellants had to respond to Bragg's  punching of Davis into the restraint itself.


47
Moreover, there is precedent for subjecting the conduct of  a mental health worker to a more exacting standard than that of a  prison guard controlling a riot or a police officer chasing a fleeing  car.  As the Supreme Court has said: "Persons who have been  involuntarily committed are entitled to more considerate treatment and  conditions of confinement than criminals whose conditions of  confinement are designed to punish."  Youngberg, 457 U.S. at 321-22. Davis was in the state's custody because of mental illness, not  culpable conduct, and the trial court's decision to reject the "shocks  the conscience" standard is consistent with this distinction.  See Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001) ("The Eighth  Amendment excessive-force standard provides too little protection to  a person whom the state is not allowed to punish.").  For all of these  reasons, the trial court did not err by declining to give a "shocks  the conscience" instruction.


48
c. The "Deliberate Indifference" Standard


49
With minimal argument, the appellants assert in the  alternative that Lewis and our precedent in Hasenfus v. LaJeunesse at  least required an instruction that premised liability on a finding  that the appellants were deliberately indifferent in failing to  prevent the harm to Davis. In the proceedings below, they initially  asked for a "deliberate indifference" instruction (as well as for the Gaudreault instructions that the trial court gave) in "Requested  Instruction Number 5" of their pre-charge motion.  After the Supreme  Court decided Lewis, the appellants submitted a motion for a  "Supplemental Jury Instruction" subcaptioned "Revising Defendant's  [sic] Previous Request No. 5". This motion requested a "shocks the  conscience" instruction based on Lewis.  At the pre-charge conference,  the court said that it would instruct the jury on the "objectively  reasonable" standard.  Appellants' counsel responded: "And not  deliberate indifference and not -- well, then, let my objection be  noted for the record."  However, after the court gave its Gaudreault instruction, the appellants ignored the omission of a "deliberate  indifference" instruction and objected only on the ground that it did  not include the "shocks the conscience" standard.


50
Federal Rule of Civil Procedure 51 states: "No party may  assign as error the giving or the failure to give an instruction  unless that party objects thereto before the jury retires to consider  its verdict, stating distinctly the matter objected to and the grounds  of the objection."  Fed R. Civ. P. 51.  We interpret this rule  strictly.  When counsel fails to raise an objection again following  the actual charge, "[a]ccording to a long line of precedents in this  circuit, such an omission constitutes waiver of the objection pursuant  to Federal Rule of Civil Procedure 51."  Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.)  (collecting cases), cert. denied, 488 U.S. 955 (1988).  Our  explanation in Wells Real Estate of the plaintiff's waiver of an  interstate commerce instruction applies equally to the appellants'  waiver of a "deliberate indifference" instruction here, which occurred  in light of a post-charge conference recorded in twelve pages of trial  transcript:


51
In this case, the court gave counsel abundant  opportunity to object to the charge after it was  given.  An extensive post-charge conference was  held with all counsel present. . . . Plaintiff's  attorney did reiterate several of his prior  requests and exceptions, but with no mention of  interstate commerce.  Given this ample  opportunity at the post-charge conference,  appellant cannot now be said to have avoided  waiver of its exception to the interstate  commerce charge.


52
Id. (internal quotation marks omitted).


53
We permit a plain error exception to failures to adhere to  Rule 51.  However,


54
[t]he plain error standard, high in any event .  . . is near its zenith in the Rule 51 milieu. At least five times over the years we have  quoted the following maxim with manifest  approval: If there is to be a plain error  exception to Rule 51 at all, it should be  confined to the exceptional case where the error  has seriously affected the fairness, integrity,  or public reputation of judicial proceedings.Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991)  (citations and internal quotation marks omitted).  In Wells Real  Estate, we noted that "to our knowledge," we had never reversed a  civil case on the basis of plain error under Rule 51.  850 F.2d at  809.  As far as we can determine, that is still true, and this case  does not change that record.


55
In Hasenfus, we analyzed allegations about a public  school's failure to take steps to prevent a student's attempted  suicide in terms of whether the school's inaction either shocked the  conscience or was deliberately indifferent.  175 F.3d at 72.  We  discussed in passing the rights of involuntarily committed mental  patients and prisoners when their caretakers fail to act, stating  descriptively that liability "arises under section 1983 if the  plaintiff shows that the inaction was malicious or reflected the  official's 'deliberate indifference,' to the welfare of the prisoner  or inmate."  Id. at 71 (citing Farmer v. Brennan, 511 U.S. 825, 837  (1994)).


56
Because the facts of Davis's case differ in important ways  from the scenario discussed in Hasenfus, the dicta in that case about  the "deliberate indifference" standard did not require the trial court  to apply that standard here.  While a reasonable jury could have found  that the appellants had sufficient time to react to Bragg's use of  excessive force, the circumstances of the hallway restraint did not  allow them to think about what to do before Bragg's blows began.  The  Supreme Court emphasized in Lewis that "[a]s the very term 'deliberate  indifference' implies, the standard is sensibly employed only when  actual deliberation is practical."  Id. at 851.  The circumstances of  this case make the "deliberate indifference" standard an awkward fit. Accordingly, we find that the omission of that instruction was not  plain error.


57
d. The "Objectively Reasonable" Standard


58
At the pre-charge conference, the judge said that he  intended to charge an "objectively reasonable" standard for the  excessive force claim against Bragg and for the failure to intervene  claims against the appellants.  At trial, he gave the "objectively  reasonable" instruction in setting forth the standard of liability for  the claims against Bragg, but he did not repeat that standard in  connection with the Gaudreault elements in the charge concerning the  claim against the appellants.


59
The appellants argue, therefore, that the judge "essentially instructed the jury to ignore the 'objectively  reasonable' standard and in its place . . . substituted a four point  checklist."  Since the judge told the jury to follow the instructions  given for the claims against Bragg to the claims against the  appellants only to the extent that the claims were the same, we agree  that the jury would not have understood that they were to apply the  explicit "objectively reasonable" standard given for the excessive  force claim against Bragg to the failure to intervene claim against  the appellants.  However, the appellants did not object after the  charge to the judge's lack of repetition of the "objectively  reasonable" language.  We thus again review the instruction for plain  error, reversing only in "the exceptional case where the error has  seriously affected the fairness, integrity, or public reputation of  judicial proceedings."  Toscano, 934 F.2d at 385 (citation and  internal quotation marks omitted).


60
The "objectively reasonable" standard comes from cases  concerning the use of excessive force during an arrest or traffic stop  under the Fourth Amendment's protection against unreasonable search  and seizure.  See Graham, 490 U.S. at 388.  The Eighth Circuit has  used the "objectively reasonable" standard for excessive force claims  brought by a pretrial detainee and an involuntarily committed mental  patient.  See Johnson-El v. Schoemehl, 878 F.2d 1043, 1048-49 (8th  Cir.) cert. denied, 493 U.S. 824, 871 (1989) (applying objectively  reasonable standard to pretrial detainee's excessive force claim); Andrews, 253 F.3d at 1061 (applying standard to involuntarily  committed patient's excessive force claim).12


61
An early failure to intervene case, Byrd v. Brishke, 466  F.2d 6, said that a state actor who is under an affirmative duty to  act "is responsible if his omission is unreasonable in light of the  circumstances."  Id. at 10.  O'Neill and Gaudreault, however, did not  use the "objectively reasonable" language for the failure to intervene  claims.  See O'Neill, 839 F.2d at 11-12; Gaudreault, 923 F.2d at 207  n.3.  Instead, they refined the Byrd standard for a failure to  intervene case by dividing it into four specific elements.  The first  two elements of the Gaudreault standard are actor-specific, focusing  on whether the defendant was present at the scene and saw the use of  force.  The third and fourth elements ask the jury whether the  defendant could realistically have prevented the alleged use of  excessive force and whether there was sufficient time to do so.  The  operative words of these elements, "realistically" and "sufficient,"  focus the jury's attention on the attendant circumstances, and whether  those circumstances, under any reasonable view, permitted  intervention.  Given these objective components of the Gaudreault instruction, the omission of the "objectively reasonable" language,  if error at all, was assuredly not plain error.

2. Sufficiency of the Evidence

62
The appellants argue that there was insufficient evidence  for a reasonable jury to have found that Davis's constitutional rights  were violated by their failure to intervene to prevent Bragg from  using excessive force.  As we have said, the trial judge instructed  the jury under Gaudreault that each defendant could only be found  liable if he or she was present when excessive force was used;  observed the use of excessive force; was in a position where he or she  could realistically prevent that force; and had sufficient time to do  so.  We must affirm the jury's findings on questions of fact "unless  the record is devoid of evidence upon which the jury might reasonably  base its conclusion."  Coastal Fuels v. Caribbean Petroleum Corp., 79  F.3d 182, 196 (1st Cir. 1996) (internal quotation marks omitted).


63
a. Evidence that the Appellants Saw Bragg Punch  Davis


64
With the exception of Tassone, the appellants begin  by arguing that there was no evidence that any of them observed Bragg  use excessive force during the hallway restraint.  However, there was  testimony that Fitzpatrick, Gillis, and Hanlon were each within three  feet of Davis's head, holding on to part of his upper body or arm,  when the punching and neck twisting occurred.  Plesh testified that  he felt and heard the thudding of the punches through the floor, and  then looked up and saw what Bragg was doing.  Tassone testified that  he heard Plesh call out and, in response, he looked up and saw Bragg  punch Davis.  The jury could have reasonably inferred from Plesh and  Tassone's testimony and the proximity of Fitzpatrick, Gillis, and  Hanlon to Davis's head that the three of them must have observed  Bragg's actions.


65
Moreover, the jury's finding of no liability for Jeffrey  Flowers suggests that it carefully weighed the evidence about the  position and degree of awareness of each MHW.13  When asked at trial  whether he saw Bragg punch Davis, Flowers answered: "My head was  tucked down when I was on this guy's leg, and I saw nothing. . . I can  tell you exactly why I didn't look at the head . . . Because this was  a big, strong man, and when I had him by the leg -- this guy was built  like a body-builder.  I'm not that big of a man."  None of the other  MHWs explained why their position on Davis's body and their struggle  to subdue him would have distracted them from seeing what Bragg was  doing.  Moreover, they were closer to Davis's head than Flowers was.


66
Plesh also testified that Wiegers was standing next to him  a few feet from Davis's legs, and that he turned to her and asked "Did  you see that?" when the punches began.  Wiegers herself said that she  was "in the vicinity" of the restraint, four or five feet away.  Based  on her testimony and Plesh's, the jury could have reasonably inferred  that Wiegers also saw what was happening.


67
The facts vary with regard to Rennie.  Several witnesses,  including Davis, testified that Davis kicked Rennie hard in the  stomach as the two came out of the quiet room, in the moment before  the hallway restraint.  Rennie said of his reaction to the kick: "All  I remember really -- I just remember being kicked very hard in the  hallway, and I felt like I was out for the count. . . . I stayed there  on the floor for -- I don't know.  It seemed like a long time."  When  asked if he saw "a group of people" during the hallway restraint,  Rennie said: "I don't think I did, no. . . . I don't recall."  Based  on this account, Rennie argues on appeal that he was incapacitated by  the kick and so cannot be held liable for failing to prevent Bragg's  use of excessive force during the hallway restraint.


68
Tassone and Davis, however, testified that Rennie was  present when Bragg punched Davis.  When Davis's counsel asked Tassone  on direct examination if Rennie was holding Davis's right arm during  the hallway restraint, Tassone answered "yes."  Later on direct  examination, Tassone expressed some uncertainty on this point,  concluding: "I thought Paul [Rennie] came back to continue holding on  the arm, but I can't say for sure."  Davis testified that Rennie made  aggressive comments to him in the quiet room and initiated the first  restraint.  He said that when he was hit by someone as he was brought  to the floor a second time in the hallway: "I assumed it was Paul."


69
The evidence that Rennie participated in the hallway  restraint, and so could have seen Bragg punch Davis, is thinner than  the evidence relating to the other appellants.  However, based on  Tassone's and Davis's testimony, a reasonable jury could have found  that Rennie participated in the hallway restraint and so must have  seen Bragg's use of excessive force.  While Tassone said that he could  not be sure that Rennie was holding Davis's arm, he did not retract  his testimony.  Davis also said that he thought Rennie was involved. The jury was thus faced with competing accounts of Rennie's  participation, and we cannot say that its choice to credit Tassone's  and Davis's accounts over Rennie's self-serving account was  unreasonable.


70
b. Evidence that the Appellants Had a Realistic  Opportunity and Sufficient Time to Intervene


71
The appellants next argue that there was not enough  evidence to support a finding that they had a realistic opportunity  and sufficient time to intervene because only seconds elapsed during  the punching, and not even Plesh was able to intervene in time to stop  it.  The appellants are correct that courts have shown special concern  about imposing liability on state actors "forced to make split-second  judgments--in circumstances that are tense, uncertain, and rapidly  evolving."  Graham, 490 U.S. at 397; see also Andrews, 253 F.3d at  1062 n.8 (distinguishing a case in which security staff must "act  quickly and effectively" to protect involuntarily committed mental  patients from those in which patients may be protected "through  before-the-fact measures"); O'Neill, 839 F.2d at 11-12 (three blows  struck in rapid succession by one police officer not of sufficient  duration to impose duty to intervene on another officer who stood by).


72
Here, however, the jury reasonably could have found that  the MHW appellants had the time and the opportunity to intervene.  The  MHWs were all on the floor within about three feet of Davis's head. Plesh, by contrast, was standing the length of Davis's body and three  feet away.  The jury could have inferred that if Plesh had time and  opportunity to ask Wiegers about stopping the beating and then to  respond as an "extra" man at the scene when she failed to act, the  MHWs   whose job it was to execute the restraint -- had time and  opportunity to take effective action.  The fact that Plesh did not  move in time to stop the punching is irrelevant to whether the MHWs,  who were closer to Davis's head, could have intervened to prevent some  of the beating and neck twisting.


73
Wiegers was farther from Davis and Bragg than the MHWs  were.  As a nurse who was directing rather than carrying out the  restraint, she did not have the same duty to physically intervene that  the MHWs had.  However, Wiegers could have intervened simply by  calling to Bragg to stop.  In Durham v. Nu'Man, 97 F.3d 862 (6th Cir.  1996), the Sixth Circuit found that a nurse who stood by while  hospital security officers beat an involuntarily committed mental  patient could be found liable because she failed to direct the  officers to stop their attack.  Id. at 868.  The court pointed out  that "[c]oming to [the patient's] aid would not have required [the  nurse] to become physically involved in the incident."  Id.  The same  is true here.


74
Wiegers attempts to distinguish Durham by stressing that  the beating in that case lasted ten minutes, whereas she had far less  time to intervene.  However, since Plesh was able to climb over the  MHWs and push Bragg away during the time span from the punching to the  neck twisting, the jury could have found that there was enough time  for Wiegers to call out and order Bragg to stop and so avoid some of  the beating.  In sum, there was sufficient evidence to support the  jury's finding that the appellants failed to intervene to protect  Davis.

B. The Unreasonable Bodily Restraint Claim
1. The General Verdict

75
The appellants also argue that the judge erred in  instructing the jury on the claim that the appellants violated Davis's right to freedom from unreasonable bodily restraint, and that there  was insufficient evidence to support a finding of liability based on  this claim.  Before turning to these arguments, there is a threshold  issue that we must address.  The liability verdict slips used in this  case asked only one question of the jury about liability pursuant to  42 U.S.C. § 1983: "Do you find that Jason Davis has proved by a  preponderance of the evidence that [each defendant] deprived Jason  Davis of his constitutional rights on August 12, 1993?"  The verdict  slips thus do not tell us whether the jury found the appellants  liable, and awarded damages, for their failure to intervene to protect  Davis from Bragg's use of excessive force, or for their violation of  Davis's right to freedom from unreasonable bodily restraint, or for  both.


76
Without arguing the point directly, the appellants assume  that they are entitled to a new trial if we find reversible error on  either theory submitted to the jury.  The source of this arguable  right is Sunkist Growers v. Winckler & Smith Citrus Prods. Co., 370  U.S. 19, 29-30 (1962) and United New York & New Jersey Sandy Hook  Pilots Ass'n v. Halecki, 358 U.S. 613, 619 (1959).  In these cases,  the Supreme Court reversed and remanded for a new trial when one of  multiple claims submitted to the jury was tainted by legal error,  saying that the generality of the verdict "prevents us from perceiving  upon which plea [the jury] found.  If, therefore, upon any one issue  error was committed, either in the admission of evidence, or in the  charge of the court, the verdict cannot be upheld."  Sunkist, 370 U.S.  19, 30 (quoting Maryland v. Baldwin, 112 U.S. 490, 493 (1884)).


77
Citing Sunkist and Sandy Hook, some courts have  automatically reversed and remanded for a new trial when there is any error in one of multiple claims on which the general verdict may rest.  See Elizabeth Cain Moore, General Verdicts in Multi-Claim Litigation,  21 Mem. St. U. L. Rev. 705, 711-12 & n.41 (1991) (collecting cases). However, other courts have analyzed whether it was harmless error to  submit to the jury a theory encompassed in a general verdict form when  that theory was tainted by legal error.14  In Sunkist and Sandy Hook  Pilots, the Supreme Court explained its rationale for reversing when  one of multiple claims submitted was erroneous, saying "there is no  way to know that the invalid claim . . . was not the sole basis for  the verdict."  Sandy Hook Pilots, 358 U.S. at 619.  The harmless error  approach addresses this concern by requiring reversal unless the  reviewing court concludes that it is "reasonably certain that the jury  was not significantly influenced by issues erroneously submitted to  it."  E.I. Du Pont De Nemours & Co. v. Berkeley & Co., 620 F.2d 1247,  1258 n.8 (8th Cir. 1980).  As the Tenth Circuit has said, Sunkist "does not paint with as broad a brush as appears from the language  quoted.  As with all errors committed at trial, a litmus test for  reversal is whether the appellant was thereby unjustly prejudiced." Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1504 (10th  Cir. 1984).


78
We have implied approval of this harmless error approach in  other cases, analyzing whether an error in one of multiple claims  submitted to the jury was harmless.  See Fleet Nat'l Bank v. Anchor  Media Tel., Inc., 45 F.3d 546, 555 (1st Cir. 1995) (while the invalid  claim "was not the primary focus of [appellee's] case," counsel  mentioned it in opening and closing arguments and called a witness  specifically to testify to this aspect of the case); Kassel v. Gannett  Co., 875 F.2d 935, 950 (1st Cir. 1989) ("In this instance, we cannot  say the error was harmless.  A substantial amount of plaintiff's proof  addressed the [erroneous claim]"); Brochu v. Ortho Pharm. Corp., 642  F.2d 652, 662 (1st Cir. 1981) (holding that "defendant was not harmed"  by submission of invalid fraud claim).  We follow the harmless error  approach here in our analysis of the unreasonably bodily restraint  claim.  First, we address the appellants' arguments that there was  error in the jury instructions on the unreasonable restraint claim and  insufficient evidence to support a finding that each of the appellants  was liable for unreasonably restraining Davis.  Concluding that there  was no error in the jury instruction, but that the evidence was  insufficient to support an unreasonable restraint finding for any of  the appellants save Rennie, we ask whether we can be reasonably  certain that the jury's verdict did not rest on this erroneous basis.


79
We make one additional point before beginning this  analysis, prompted by the absence of any objection by the appellants  to the general verdict form or a request for interrogatories to  separately ask the jury about the failure to intervene and  unreasonable restraint claims.  The Eighth Circuit has adopted the  following waiver rule: if the complaining party does not object to a  general verdict form or request interrogatories, a verdict that  encompasses multiple claims of liability may be affirmed as long as  there is substantial evidence to support one of the theories  presented, irrespective of any reversible errors in other claims  submitted to the jury.  See Gen. Ind. Corp. v. Hartz Mountain Corp.,  810 F.2d 795, 801 (8th Cir. 1987) (because appellant did not challenge  the general verdict form's wording at trial or on appeal, "it is  sufficient for purposes of upholding the jury's damage award that .  . . we affirm the jury's verdict that Hartz violated § 2 of the  Sherman Act."); Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039,  1054 (8th Cir. 2000) (distinguishing instant case from Hartz on the  ground that the appellant specifically objected to the general verdict  form at trial).  The Seventh and Tenth Circuits have applied the same  rule in some cases.  See Eastern Trading Co. v. Refco, Inc., 229 F.3d  617, 622 (7th Cir. 2000) (where jury heard instruction on theory for  which there was no evidentiary support and opposing party did not  request interrogatory, party "has only itself to blame for its  inability to demonstrate that the jury was confused by the  instruction"); Kossman v. Northeast Ill. Reg. Commuter R.R. Corp., 211  F.3d 1031, 1037 (7th Cir. 2000) ("Because the defendant never  requested any special form of verdict, the jury only returned a  general verdict for Kossman.  And when a jury only returns a general  verdict, we need only find support in the record for one of the  theories presented to the jury in order to affirm the jury award."); Union Pac. R.R. Co. v. Lumbert, 401 F.2d 699, 701 (10th Cir. 1968)  ("In the absence of a pertinent objection to the charge or a request  for a specific interrogatory a general verdict is upheld where there  is substantial evidence supporting any ground of recovery in favor of  an appellee.) (internal quotation marks omitted); see also Anixter v. Home-State Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996) (stating  without applying Lumbert rule).


80
By contrast, we have on at least one occasion applied the  multiple-claims reversal rule attributed to Sunkist without requiring  an objection to the general verdict form.  See Lattimore v. Polaroid  Corp., 99 F.3d 456, 468 (1996) (reversing because one of four claims  presented to the jury was time-barred and two others were supported  by insufficient evidence).  However, in Kassel and in Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997), we noted in  reversing that the appellant at trial either requested a special  verdict form or objected when multiple claims were submitted to the  jury, which returned only a general verdict.  875 F.2d at 950 and 127  F.3d at 134; see also Lattimore, 99 F.3d at 469 (Selya, J.,  concurring) (emphasizing "for the benefit of the trial bench and bar  in days to come" that a request for a separate verdict on each claim  submitted would have averted the need for a new trial).  Although we  do not adopt or apply a waiver rule in this case, opting instead for  the continued application of the harmless error approach, we emphasize  that Lattimore neither discusses nor rules on the possibility of  waiver based on failure to object to the general form of the verdict,  and so does not preclude a future panel of this court from  establishing such a waiver rule if persuaded by its merits.

2. The Jury Instructions

81
In his complaint, Davis charged that the appellants could  be found liable for violating his right to freedom from unreasonable  bodily restraint based on any of their actions in connection with the  two restraints.  In response, the appellants argued that they could  not be held liable simply for carrying out the restraints, and that  the judge should charge the jury that it could not find them liable  for using excessive force to restrain Davis unless their conduct  "shocks the conscience."  The judge agreed with the first point but  not with the second,  instructing the jury as follows:


82
Mr. Davis charges that the two so-called "take-downs" of him on August 12, 1993 VIOLATED HIS  CONSTITUTIONAL RIGHT TO BE FREE FROM  UNREASONABLE BODILY RESTRAINT.  In determining  whether there was any such unreasonable  restraint, you should consider all the  circumstances existing at the time and decide as  to each defendant separately whether in light of  those circumstances it was appropriate for that  defendant to use the force that was used.


83
After a post-charge conference, in which both sides sought  clarification of this charge and the appellants objected to the lack  of a "shocks the conscience" instruction, the judge told the jury:


84
The Group Two Defendants [i.e., the appellants]  are accused of having used excessive force in  connection with the two take-downs.  I want you  to understand that they cannot be - none of them  can be held liable simply for taking Mr. Davis  into . . . the quiet room, or simply for . . . putting him into a four-point restraint alone. They can be - in order to find them liable in  connection with the put-downs or the four-point  restraint, you must find that excessive force  was used.


85
The appellants renew their argument that the judge erred by  omitting a "shocks the conscience" instruction.  This argument has  slightly more force here than in the context of the failure to  intervene claim.  When Davis kicked in the air in the quiet room or  kicked Rennie as he entered the hallway, the appellants were faced  with a physical outburst requiring an immediate response.  However,  without minimizing the difficulties posed by Davis's conduct, Davis's  kicks were far removed from the high-speed chase or prison riot  central to the "shocks the conscience" analysis in Lewis, both of  which involve extreme conduct posing significant threat to the safety  of innocent bystanders as well as to the safety of the officer or  guard.  Sadly, it is not unusual for  a seriously ill mental patient  to act out physically in the controlled and confined setting of a  hospital.  Davis's kicks fall within the norm of what mental health  workers are expected to handle, and were less threatening than the  circumstances described in Lewis.  We agree, therefore, with the  Eighth Circuit that the usual standard for an excessive force claim  brought by an involuntarily committed mental patient is whether the  force used was "objectively reasonable" under all the circumstances. See Andrews, 253 F.3d at 1061.  The circumstances of the hallway and  quiet room restraints do not persuade us to impose a higher standard.


86
Alternately, the appellants attack the trial court's use of  the word "appropriate" in its instructions, saying that it allowed the  jury to find liability if the force used was "subjectively  inappropriate."  We do not agree that the word "appropriate" connotes  subjectivity.  Instead, we think that "appropriate under all the  circumstances" approximates "objectively reasonable under all the  circumstances."  When an appellant asks us to "scrutinize a trial  judge's choice of words, the central inquiry reduces to whether,  taking the charge as a whole, the instructions adequately illuminate  the law applicable to the controlling issues in the case without  unduly complicating matters or misleading the jury."  Elliott v. S.D.  Warren Co., 134 F.3d 1, 6 (1st Cir. 1998) (internal quotation marks  omitted).  Although we think the more familiar "objectively reasonable  under the circumstances" would have been the better word choice, the  judge's instruction passes that test.  See Interstate Litho Corp. v. Brown, 255 F.3d 19, 29 (1st Cir. 2001) ("[T]he wording of instructions  is within the trial judge's discretion.").  Accordingly, we find no  error in the judge's instructions on the unreasonable bodily restraint  claim.

3. Sufficiency of the Evidence

87
a. Fitzpatrick, Gillis, Hanlon, Tassone, and Wiegers


88
Here, with the exception of Rennie, the appellants'15 attack  on the jury findings hits the mark.  Our close review of the record  reveals no significantly probative evidence that any of them used  excessive force to unreasonably restrain Davis.  Fitzpatrick, Gillis,  Hanlon, Tassone and Wiegers were not present during the first  restraint in the quiet room.  Hanlon was present, but Davis did not  testify that he participated in the restraint performed by Rennie. During the second restraint in the hallway, Fitpatrick, Gillis,  Hanlon, and Tassone held Davis down while Bragg punched him, but did  not participate in the blows.  Wiegers was standing a few feet away. Davis did not testify that any of these appellants themselves used  force on him.  Officer Plesh testified that until Bragg began to punch  Davis, the MHWs' actions in performing the second restraint were  appropriate and professional.  Accordingly, there is insufficient evidence to support a finding that the appellants used excessive force  to unreasonably restrain Davis.


89
As a result, we must address whether the submission of the  claim of unreasonable restraint through the use of excessive force to  the jury for these appellants was harmless error under the standards  we set in Fleet and Kassel.16  Davis's case against the appellants  focused on their failure to intervene to prevent Bragg's use of  excessive force rather than on their own use of excessive force. Indeed, no witness, not even Davis, testified that the appellants used  excessive force to unreasonably restrain the patient.  Moreover, when  Davis's counsel used the words "they beat him" in closing argument to  describe the appellants' conduct, their counsel objected, prompting  Davis's counsel to make the argument that was suggested by the  evidence: "Ladies and gentlemen, when seven or eight people pin one  guy to the ground and the other guy beats the person, then they're all  part of it because they all had an opportunity to intercede . . . They  saw that beating going down . . . Pinning him down so Phillip Bragg  could do it. Everybody looked the other way."17


90
It is not surprising that Davis presented no proof that  these five appellants used excessive force, because that was not his  theory of the unreasonable restraint claim.  At the post-charge  conference, Davis's counsel said to the judge: "Your Honor, I just  think, to clarify, if I could . . . in terms of the placement in the  four-point restraint, . . . I don't believe that you would have to  show that there was excessive force relative to that placement."  The  judge disagreed with Davis on this point when he charged the jury that  it could only find the appellants liable for unreasonably restraining  Davis through their own use of excessive force.


91
By contrast, as we have explained, there was substantial  evidence that the appellants failed to intervene when the punching  occurred.  Thus the jury heard two legally adequate instructions  relating to the claims against the appellants, one of which was  supported by the evidence and one of which was not.  In such a  circumstance, "[i]t cannot just be assumed that the jury must have  been confused and therefore that the verdict is tainted, unreliable." Eastern Trading Co. v. Refco, Inc., 229 F.3d 617, 622 (7th Cir. 2000); see also Burhmaster v. Overnite Transp. Co., 61 F.3d  461, 463-64 (6th  Cir. 1995) (when a jury instruction accurately states the law but is  not supported by the facts, "[t]he jury will conclude for itself that  there is insufficient evidence to support an application of the  instruction, and thus reject it as mere surplusage.") (internal  quotation marks omitted).


92
Here, a clarifying instruction that the judge gave the jury  during mid-deliberation further assuages any concern that the jury may  have found the appellants liable for an unreasonable restraint theory  unsupported by the evidence.  In response to the jury's request for  clarification on the first verdict question, which asked whether each  appellant deprived Davis of his constitutional rights, the judge  responded by repeating only the failure to intervene instructions,  saying:


93
The first charge with regard to The Group Two  Defendants [i.e., the appellants] is what I  described as failing to intervene to protect  him, that is, Mr. Davis, from Mr. Bragg's  assault. . . . So, the way for you to proceed is  to answer - is to look at this sheet and see  whether you find that any defendant, for  example, is liable for failing to intervene.


94
Given the lack of proof or argument at trial relating to  the claim that the appellants unreasonably restrained Davis by using  excessive force, and the judge's clarifying instruction, we may be  "reasonably certain that the jury was not significantly influenced by  issues erroneously submitted to it."  E.I. Du Pont, 620 F.2d at 1258  n.8.  Accordingly, we find that the erroneous submission to the jury  of the claim of unreasonable restraint through the use of excessive  force was harmless.


95
b. Rennie


96
In contrast to the case against the other appellants, Davis  presented substantial evidence that Rennie used excessive force during  the physical restraint in the quiet room.  As we have said, Davis  testified that he started doing karate kicks into the air in response  to Rennie's and Bragg's taunts, and that Rennie then choked him and  threw him to the mat.  Davis said: "That was an assault . . . What  Paul Rennie had done, grabbing someone by the neck and throwing them  down is not a restraint."  Plesh corroborated much of Davis's account  of the events leading up to the restraint, though he did not witness  the take-down itself.


97
Although the prison setting obviously differs from the  mental hospital setting, the factors identified by the Supreme Court  in Hudson v. McMillian, 503 U.S. 1 (1992), a case involving an Eighth  Amendment excessive force claim brought by a prisoner, are useful in  evaluating whether this evidence was sufficient to support a jury  finding that Rennie used excessive force to unreasonably restrain  Davis.  The Court said that it may "be proper to evaluate the need for  application of force, the relationship between that need and the  amount of force used, the threat reasonably perceived by the  responsible officials, and any efforts made to temper the severity of  a forceful response."  Id. at 7 (internal quotation marks omitted). We applied a similar test to a Fourth Amendment excessive force claim  brought by an arrestee.  See United States v. McQueeney, 674 F.2d 109,  113 (1st Cir. 1982) ("a police officer may use only such force as is  reasonably necessary to effect an arrest or to defend himself or  others from bodily harm").


98
When Rennie took Davis to the mattress, the patient was by  himself in an empty room.  It is difficult to see how Rennie could  have reasonably perceived a threat to himself or the other MHWs  standing by, all of whom could have moved out of the way or closed the  door when Davis began karate kicking.  Yet Rennie did not try to avert  the need for force by taking such measures.  Viewed in the light most  favorable to the verdict, the evidence showed that Rennie provoked  Davis by taunting him, and then, after the patient reacted, choked him  and threw him to the mat.


99
Citing Dean v. City of Worcester, 924 F.2d 364 (1st Cir.  1991), Rennie argues that Davis cannot prove an unreasonable restraint  claim based on the use of excessive force in the quiet room take-down  because he suffered no injuries from it.  In Dean, we found an  arrestee's minor physical injuries insufficient to support a finding  that the arresting officer used excessive force.  Id. at 368 (citing Graham, 490 U.S. at 397).  Our conclusion in Dean does not imply that  a mental patient must sustain physical injuries to prevail on a claim  that he was the victim of unreasonable restraint through the use of  excessive force.  Davis's treating psychiatrist testified, and the  jury must have found, that Davis suffered PTSD as a result of the  restraints at issue in this case.  It would be artificial, if not  impossible, to attempt to separate out the psychological harm suffered  as a result of one restraint as opposed to the other.  The jury thus  could have attributed some of Davis's mental injury to Rennie's use  of excessive force to unreasonably restrain Davis during the quiet  room restraint.


100
We recognize the difficulties faced by staff who must deal  with possibly violent mental patients.  In this context, as in an  arrest, "not every push or shove, even if it may later seem  unnecessary in the peace of a judge's chambers, . . . amounts to a"  fourteenth amendment violation.  Dean, 924 F.2d at 368 (citation and  internal quotation marks omitted). On the other hand, the state's duty  to protect those it confines because of mental illness requires that  force be used as sparingly as possible.  In light of the circumstances  here, particularly Rennie's role in provoking Davis, we cannot say  that the jury erred in finding that the level of force Rennie used was  unreasonable.  Accordingly, we affirm the verdict against Rennie  pursuant to § 1983.

C. The Massachusetts Civil Rights Act Claim

101
The jury found that the appellants violated Davis's  Massachusetts civil rights as well as his Fourteenth Amendment rights. To prevail under the Massachusetts Civil Rights Act (MCRA), Mass. Gen.  Laws ch. 12, § 11(I), plaintiffs must prove that "(1) their exercise  or enjoyment of rights secured by the Constitution or laws of either  the United States or of the Commonwealth, (2) have been interfered  with, or attempted to be interfered with, and (3) that the  interference or attempted interference was by 'threats, intimidation,  or coercion.'"  Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333,  337 (Mass. 1996) (internal quotation marks omitted).


102
Since we have already affirmed the jury's findings of a  constitutional violation, only the third prong of the state law test  is at issue.  The Massachusetts Supreme Judicial Court has defined the  key terms in MCRA as follows:


103
'Threat' in this context involves the  intentional exertion of pressure to make another  fearful or apprehensive of injury or harm. . .  . 'Intimidation' involves putting in fear for  the purpose of compelling or deterring conduct.  . . . coercion . . . [is] 'the application to  another of such force, either physical or moral  as to constrain him to do against his will  something he would not otherwise have done.'


104
Planned Parenthood League of Mass., Inc. v. Blake, 631 N.E.2d 985, 990  (Mass. 1994) (quoting Webster's New Int'l Dictionary 519 (2d ed.  1959)).  The SJC has affirmed findings of MCRA violations in a variety  of contexts.  See Redgrave v. Boston Symphony Orchestra, 502 N.E.2d  1375 (Mass. 1987) (threats, intimidation and coercion found where  third party's threat of disruption motivated defendant to cancel  performance contract); Batchelder v. Allied Stores Corp., 473 N.E.2d  1128 (Mass. 1985)(intimidation or coercion found for implied threat  of arrest or removal by security guard); Bell v. Mazza, 474 N.E.2d  1111 (Mass. 1985) (threats, intimidation, or coercion found where  homeowners threatened to keep plaintiffs from constructing a tennis  court).


105
The appellants argue that there is insufficient evidence to  support a finding that they intimidated or coerced Davis in connection  with the failure to intervene claim because that claim involved an  omission rather than an act.  This characterization of the conduct of  the MHW appellants is unconvincing.  Fitzpatrick, Gillis, Hanlon,  Rennie, and Tassone helped to restrain Davis while he was being beaten  by Bragg rather than intervening to help him.18  The SJC has said that  the Act "imposes no express or implied requirement that [the] actor specifically intend to deprive a person of a secured right." Redgrave, 502 N.E.2d at 1378 (emphasis added).  Instead, a defendant  may be held liable for interfering with a plaintiff's rights "by  threats, intimidation or coercion" if the defendant acquiesced to  pressure from a third-party who intended a rights violation.  Id. (emphasis added).  Here, the MHWs' acts of continuing to hold Davis  down was a form of acquiescence to Bragg, who clearly intended to  violate Davis's rights.  Thus in MCRA's terms, the "interfer[ence]  with" Davis's enjoyment of his Fourteenth Amendment rights was Bragg's  beating, and the "coercion" was the appellants' physical restraint of  Davis while the beating took place.  Given these facts, a jury could  reasonably have found that the appellants' acts constituted coercion  within the meaning of MCRA.  As for the unreasonable restraint claim  against Rennie, the jury could have found that his use of excessive  force to unreasonably restrain Davis during the take-down in the quiet  room was itself intimidating and coercive.


106
Different facts support the jury's finding that Wiegers  violated Davis's rights "by threats, intimidation, or coercion."  According to Plesh, Wiegers got down next to Davis after the hallway  restraint and said: "This is what you get when you act -- this is what  you get when you act like this."  Wiegers argues that since Plesh  testified that she made this statement after the restraint concluded,  it could not constitute a threat made in connection with her failure  to intervene to prevent the use of excessive force.  We reject this  attempt to limit the relevant time frame.  Because Wiegers spoke to  Davis immediately after the beating, her words implied that Davis  would be subject to more of the same treatment if he did not  cooperate.  The jury could have found that Wiegers's comment was a  threat made in connection with her failure to intervene on her  patient's behalf.  Accordingly, we affirm the findings of liability  against the appellants under the Massachusetts Civil Rights Act.

D. Qualified Immunity

107
In their answers to Davis's complaint and their motions for  judgment as a matter of law, the appellants, with the exception of  Wiegers,19 argued that they were entitled to qualified immunity. Following trial, the district court rejected the appellants' qualified  immunity defense.


108
On appeal, Wiegers argues that she is entitled to qualified  immunity because no court has held "that a nurse who observed the use  of excessive force on an involuntary patient in the presence of a  police officer had a duty to intervene."  Fitzpatrick, Gillis, Hanlon,  Rennie, and Tassone argue that they are shielded because no court has  imposed a constitutional duty on mental health workers "to intervene  to prevent a criminal assault by a co-worker upon a patient."  Rennie  also argues that "no objectively reasonable MHW confronted with the  same circumstances as Rennie would know that the force he used to  restrain Davis in the Quiet Room would somehow violate a clearly  established constitutional right."  The district court found that  because Gaudreault had been decided in 1990 and Youngberg v. Romeo had  been decided in 1982, the law governing the appellants' duties to  Davis was "clearly established" when the restraints took place.


109
A district court's denial of qualified immunity is a legal  question that we review de novo.  See Iacobucci v. Boulter, 193 F.3d  14, 22 (1st Cir. 1999).  When a court grants or denies qualified  immunity before trial, we "align[] the evidence most favorably to the  non-movant and draw[] all reasonable inferences in his favor."  Id. When we review a post-trial qualified immunity ruling, evidence  pertaining to factual findings "must be construed in the light most  hospitable to the party that prevailed at trial."   Id. at 23.


110
Qualified immunity protects state actors "from liability  for civil damages insofar as their conduct does not violate clearly  established statutory or constitutional rights of which a reasonable  person would have known."  Harlow v. Fitzgerald, 457 U.S. 800, 818  (1982).  In discussing the "level of generality at which the relevant  'legal rule' is to be identified," the Supreme Court has said:


111
[T]he right the official is alleged to have  violated must have been 'clearly established' in  a more particularized, and hence more relevant,  sense: The contours of the right must be  sufficiently clear that a reasonable official  would understand that what he is doing violates  the right. This is not to say that an official  action is protected by qualified immunity unless  the very action in question has previously been  held unlawful . . . but it is to say that in the  light of pre-existing law the unlawfulness must  be apparent.


112
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).  Thus "[t]he  relevant, dispositive inquiry in determining whether a right is  clearly established is whether it would be clear to a reasonable  officer that his conduct was unlawful in the situation he confronted." Saucier   v. Katz,  121 S. Ct. 2151, 2156 (2001).


113
There is no doubt that Gaudreault and O'Neill clearly  established that a police officer has a duty to act when he sees  another officer using excessive force against an arrestee or pretrial  detainee if the officer could realistically prevent that force and had  sufficient time to do so.  See also Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (per curiam) ("a law enforcement officer can be  liable under § 1983 when by his inaction he fails to perform a  statutorily imposed duty to enforce the laws equally and fairly . .  . Acts of omission are actionable in this context to the same extent  as are acts of commission"); Putnam v. Gerloff, 639 F.2d 415 (8th Cir.  1981) (subordinate officer may be liable for failing to intervene to  prevent superior officer's use of excessive force).  The question is  whether it would be clear to a reasonable supervising nurse or mental  health worker who saw another MHW use excessive force against a  patient that he or she had a legal duty to intervene.


114
A police officer has a duty to intervene in cases in which  a fellow officer uses excessive force because his office  carries with  it an affirmative duty to act.  See Byrd, 466 F.2d at 11 ("We believe  it is clear that one who is given the badge of authority of a police  officer may not ignore the duty imposed by his office and fail to stop  other officers who summarily punish a third person in his presence.").  For the same reason, at least one court has held that a prison guard  must intervene when another guard uses excessive force against a  prisoner.  See McHenry v. Chadwick, 896 F.2d 184, 189 (6th Cir. 1990).


115
The cases involving police and prison guards clearly  established at least the same duty for mental hospital staff at a  state institution.  See Durham, 97 F.3d at 868 (rejecting qualified  immunity defense for hospital security officers and nurse because "the  precedent holding police officers and correctional officers liable for  failure to intervene was sufficient to place [them] on notice").  When  an individual "is unable by reason of the deprivation of his liberty  to care for himself, it is only just that the State be required to  care for him." DeShaney, 489 U.S. at 199 (internal quotation marks  omitted).  As the Supreme Court has said: "[A] general constitutional  rule already identified in the decisional law may apply with obvious  clarity to the specific conduct in question, even though the very  action in question has not previously been held unlawful."  United  States v. Lanier, 520 U.S. 259, 271 (1997) (internal quotation marks  omitted).


116
As staff members at a state mental hospital, Nurse Wiegers  and the MHWs had a duty to care for Davis, an involuntarily committed  patient, comparable to that of the duty of the police officers to the  pretrial detainee in Gaudreault.  Bragg was Nurse Wiegers's supervisee  when he assaulted Davis, and he was acting under color of state law. Nurse Wiegers's argument that she had no duty to intervene because  Plesh, a security officer, was also present draws too fine a  distinction between the facts here and existing case law.  See Lanier,  520 U.S. at 271.  As we have said, Nurse Wiegers could have tried to  stop Bragg by calling out rather than physically intervening.  As  Bragg's supervisor, she had the responsibility to do so, and it is  reasonable to expect her to have known that.


117
Fitzpatrick, Gillis, Hanlon, Rennie, and Tassone also  reasonably may be expected to have known that the principles governing  failure to intervene claims laid out in Gaudreault applied in these  circumstances to them as Bragg's co-workers.20  Indeed, a finding that  any of the appellants were shielded by qualified immunity where a  police officer or prison guard would not have been would place Davis  at a disadvantage vis a vis pretrial detainees and prisoners in  asserting his constitutional rights as a mental patient.  As we have  discussed, such a result is at odds with the Supreme Court's statement  that involuntarily committed patients are entitled to greater  protection than those "whose conditions of confinement are designed  to punish."  Youngberg, 457 U.S. at 321-22.


118
We evaluate Rennie's qualified immunity defense for his use  of force in the quiet room take-down in light of Youngberg and McQueeney.  Youngberg established that the right to liberty from  bodily restraint "survive[s] involuntary commitment."  457 U.S. at  316.  In McQueeney, we held that "a police officer may use only such  force as is reasonably necessary to effect an arrest or to defend  himself or others from bodily harm."  674 F.2d at 113.  In light of  this conclusion and Youngberg's statement that involuntarily committed  mental patients merit at least the same protection as prisoners and  arrestees, we reject Rennie's defense of qualified immunity.

E. Punitive Damages

119
As we have noted, the jury awarded punitive damages of  $500,000 each against Bragg and Wiegers, $250,000 against Rennie, and  $100,000 each against Fitzpatrick, Gillis, and Hanlon.  With the  exception of Bragg, who did not contest the damages award, the trial  judge remitted these awards by half.  On appeal, the appellants  challenge the punitive damages awards on the ground that there is no  evidence in the record to suggest that any of the appellants "harbored  any ill will towards Davis," the standard used by the court in its  jury instructions.


120
There was sufficient evidence to support the jury's finding  that the appellants acted with "evil motive" toward Davis.  Smith v. Wade, 461 U.S. 30, 56 (1983); Iacobucci, 193 F.3d at 26.  First, the  jury could have found that Rennie taunted Davis in the quiet room to  provoke him, and then used excessive force to unreasonably restrain  Davis in the quiet room in response to the behavior he provoked. These facts justify the jury's decision to award greater damages  against him than against the other MHWs.  The jury also could have  found that Fitzpatrick, Gillis, Hanlon, and Rennie held Davis to the  ground knowing that Bragg was punching him, and that Wiegers stood a  few feet away, saw the punching, and did nothing to protect her  patient, even after Plesh turned to her as the supervising nurse and  said "Did you see that?"  In addition, the jury could have found that  Wiegers told Davis in the moments after the incident: "This is what  you get."


121
Furthermore, a punitive damages award may be "justified not  only by defendants' actions on [the date in question] but also by  their subsequent behavior."  Hall v. Ochs, 817 F.2d 920, 927 (1st Cir.  1987).  Here the jury could have found that Wiegers tried to cover up  the assault by writing "Unknown when or how injury sustained" and  "Unknown to writer precipitants to occurrence" in her report of the  incident.  Similarly, the jury could have found that Fitpatrick and  Gillis were trying to cover up their own wrongdoing when they filed  a groundless complaint against Plesh for allegedly twisting Davis's  handcuffs.  Finally, the jury could have found that Wiegers,  Fitzpatrick, Gillis, Hanlon, and Rennie lied when they testified that  they did not see Bragg punch Davis, unlike Tassone, who admitted that  he saw the punching take place and was spared by the jury from an  award of punitive damages.  Comparing the testimony of these  appellants with the testimony of Davis, Plesh, and Tassone, "a  fact finder might infer that the stark clash could not have resulted  from innocent misrecollection and that its intentional quality  intensified any need the jury may have found for punishment and  deterrence."  Id. at 928.


122
Relying on Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535  (1999), the appellants also argue that the evidence does not support  a finding that they "acted with any conscious perceived risk that they  would violate Mr. Davis's constitutional rights."  In Kolstad, the  Supreme Court held that "[t]he special showing needed to trigger  eligibility for punitive damages . . . 'evil motive' or 'reckless or  callous indifference' . . . pertains to the defendant's 'knowledge  that [he] may be acting in violation of federal law, not [his]  awareness that [he] is engaging in discrimination.'"  Iacobucci, 193  F.3d at 26 (internal citation omitted) (quoting Kolstad, 527 U.S. at  535).  Not surprisingly, since Kolstad was decided after the trial in  this case, the trial judge did not give an instruction tying the evil  motive or indifferent state of mind finding to a violation of Davis's  civil rights, and the appellants did not object to the omission.  We  review for plain error and find that this is not "the exceptional case  where the error has seriously affected the fairness, integrity, or  public reputation of judicial proceedings."  Toscano, 934 F.2d at 385  (citation and internal quotation marks omitted).  We note that our  conclusion "is consistent with post-Kolstad opinions from other  courts, none of which have required a new trial under its standards  after a jury considered the issue pre-Kolstad."  Rubinstein v. Admins.  of the Tulane Educ. Fund, 218 F.3d 392, 406 n.7 (5th Cir. 2000)  (collecting cases) (internal quotation marks omitted).


123
Pursuant to other recent authority from the Supreme Court,  we review de novo whether the proportionality between punitive damages  and compensatory damages is constitutional.  Cooper Indus., Inc., v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S. Ct. 1678, 1685-86  (2001).  In assessing the reasonableness of a punitive damages award,  we consider "(1) the degree of reprehensibility of a defendant's  conduct; (2) the ratio between punitive and actual and potential  damages; and (3) a comparison of the punitive damages figure and other  civil and criminal penalties imposed for comparable conduct."   Romano v. U-Haul Int'l, 233 F.3d 655, 672-73 (1st Cir. 2000) (citing BMW of  North Am., Inc. v. Gore, 517 U.S. 559, 574 (1996)); see also Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 81 (1st Cir. 2001) .


124
Here, each of the BMW criteria is easily satisfied.  First,  the "level of reprehensibility of appellants' alleged misconduct is  'perhaps the most important indicium.'" Romano, 233 F.3d at 673  (quoting BMW, 517 U.S. at 575). For the reasons we have discussed, the  misconduct of each of the appellants was reprehensible enough to  justify the award against him or her.


125
Second, the punitive damages award was reasonable in  comparison to the compensatory damages award.  After remittitur,  Fitpatrick, Gillis, and Hanlon will pay $50,000 each in punitive  damages, Rennie will pay $125,000, and Wiegers will pay $250,000,  compared to $100,000 in compensatory damages.  Even if we include the  $500,000 award against Bragg and consider the total punitive damages  award of $1.025 million in the aggregate, the ratio between Davis's  punitive and compensatory damages is about 10 to 1.  In Romano, we  upheld a 19 to 1 ratio between punitive and compensatory damages,  noting that the Supreme Court has  "dismissed any simple, mathematical  formula in favor of general inquiry into reasonableness."  233 F.3d  at 673.  Here, the evidence supports a finding of significant actual  and potential harm.  According to Dr. Zeidman, the psychological harm  Davis has suffered from the incident has seriously affected his  quality of life, causing a range of PTSD symptoms, demonstrating the  reasonable relationship between the injury and the amount of the  award.


126
Finally, we consider the third BMW factor requiring us to  assess the punitive damages award "in light of the complex of  statutory schemes developed to respond to the same sort of underlying  conduct."  Zimmerman,  at 82.  In making this assessment, the  correct comparison is to other statutes and regulations proscribing  the same conduct and then to decided cases.  Id. at 82.  "Moreover,  a reviewing court should search for comparisons solely to determine  whether a particular defendant was given fair notice as to its  potential liability for particular misconduct, not to determine an  acceptable range into which an award might fall."  Id.  Since § 1983  does not address damage amounts, we consider whether the awards we  have allowed to stand in other § 1983 cases give fair notice of the  award here, and find that they do.  See Nydam v. Lennerton, 948 F.2d  808, 811 (1st Cir. 1991) (affirming two awards of $100,000 each in  punitive damages for excessive force claim); Gutierrez-Rodriguez v. Soto, 882 F.2d 553, 580-81 (1st Cir. 1989) (affirming total award of  $600,000 in punitive damages for police shooting); Hall, 817 F.2d at  927 (affirming total award of $200,000 in punitive damages for  battery, false arrest, and imprisonment claims).

III.

127
For the foregoing reasons, we affirm the judgment against  all of the appellants.


128
Affirmed.

APPENDIX 1

129
[Tabular or Graphical Material Omitted]

APPENDIX 2

130
[Tabular or Graphical Material Omitted]



Notes:


1
  Tassone also testified that he later tried to talk to another  Westborough staff member about the incident off the record, and that  the employee told him to report what had happened to the Disabled  Persons Protection Commission.  Tassone said he was afraid to make the  report and left his job at Westborough a few days later.


2
  Bragg was eventually found not guilty of the charges.  Tassone  did not testify at his trial.


3
  Wiegers also helped bail Bragg out of jail.  She and Bragg  testified that they had a social relationship.  Bragg said that he and  his children were living in Wiegers's home at the time that the  events  at issue here took place.  Wiegers denied that, saying that Bragg moved  in with her for a short period a few weeks or months later.


4
  Davis also brought claims pursuant to 42 U.S.C. § 1985  (conspiracy to interfere with civil rights), which the trial judge  dismissed at the close of evidence, and for false imprisonment, which  the jury rejected.  Neither side challenges these dispositions on  appeal.


5
  Davis also sued two former commissioners of the Massachusetts  Department of Mental Health and a former chief operating officer of  Westborough.  Davis alleged that the department's policies violated his  civil rights because they  allowed Bragg to be hired as a convicted  felon.  The jury rejected these claims, and this aspect of the verdict  is not challenged on appeal.


6
  Wiegers did not offer this defense in her answer or in her  motion for judgment as a matter of law under Fed. R. Civ. P. 50(a).


7
  A sample verdict slip for liability and the verdict slip for  damages are attached as appendices to this opinion.


8
  In advance of full appellate briefing, Davis filed two motions  to dismiss the appeal as untimely filed and to restrict the issues that  the appellants may raise on appeal.  He incorporates these motions into  his appellate brief.  Davis's arguments are without merit, and we  reject them.


9
   A convicted prisoner may bring a claim for use of excessive  force under the Eighth Amendment.  See Hudson v. McMillan, 503 U.S. 1,  4 (1992).  At least one court has found that a prison guard has a duty  to protect a prisoner from the use of excessive force by another prison  guard.  See McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990).


10
  Gaudreault brought suit against four officers who allegedly were present when another unidentified officer attacked him.  We noted  that nonfeasance offered a "potential basis of liability." Gaudreault,  923 F.2d at 207 n.3.  Since Gaudreault's complaint said that the attack  "was over in a matter of seconds," we found no liability because the  officers did not have a realistic opportunity to intercede.  Id.


11
  In Martinez, a police officer accidentally shot another officer  during a harassment incident.  We found that the victim's § 1983 claim  against other officers who witnessed the incident was precluded because  the assailant was engaged in a clearly personal pursuit when he shot  the victim, and so was not acting under color of state law, as § 1983  requires.  See Alexis v. McDonald's Rest., 67 F.3d 341, 351 (1st Cir.  1995) ("A Section 1983 claim does not lie absent state action.").  Martinez is distinguishable from both Gaudreault and the case at hand  because there is no dispute that the appellants, as employees at a  state mental hospital, were acting under color of state law.


12
  The Seventh Circuit has used the "objectively reasonable"  standard for a schoolchild's excessive force claim.  See Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1015 (7th Cir. 1995).  Other  circuits have rejected the "objectively reasonable" standard for  excessive force claims brought by pretrial detainees.  See Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000); Taylor v. McDuffie, 155 F.3d  479, 483 (4th Cir. 1998) (collecting cases).


13
  The jury also found no liability for Frantz Joseph, who was not  present at the second restraint.


14
  See, e.g., Braun v. Flynt, 726 F.2d 245, 251 (5th Cir. 1984)  (remanding for new trial because of "substantial likelihood" that  damages award was based at least in part on erroneous claim); Morrissey v. Nat'l Maritime Union of Am., 544 F.2d 19, 27 (2d Cir. 1976) ("no  sufficient basis for confidence" that verdict would not have been  rendered without the erroneous claim); Collum v. Butler, 421 F.2d 1257,  1260 (7th Cir. 1970) ("the results of the present trial would not have  been substantially affected if these  [erroneous] issues had not been  submitted to the jury"); see also Traver v. Meshriy, 627 F.2d 934, 938  (9th Cir. 1980) (when one of multiple theories of liability is unsound,  a "reviewing court has discretion to construe a general verdict as  attributable to another theory if it was supported by substantial  evidence and was submitted to the jury free from error"); Adkins v. Ford Motor Co., 446 F.2d 1105, 1108 (6th Cir. 1971) (same).


15
  In this section, "appellants" does not include Rennie.


16
  In doing so, we clarify one point.  If there was evidence that  the appellants had planned with Bragg to hold Davis down so that Bragg  could beat him, Bragg's use of excessive force would obviously be  attributable to the appellants.  Although Davis may have contemplated  such a theory, that theory of the case did not go to the jury.  At the  close of evidence, the judge dismissed Davis's claim that the  defendants conspired to interfere with his civil rights in violation of  42 U.S.C. § 1985.  The judge said: "As I see the facts, there's no  evidence whatsoever of an express agreement . . . and I see no basis  for implying an agreement on the part of what I call the fellow worker  defendants."  The judge also dismissed the § 1985 claim on legal  grounds, citing Aulson v. Blanchard, 83 F.3d 1 (1st Cir. 1996).


17
  The judge overruled the appellants' objection.  The colloquy was  as follows:
APPELLANTS' COUNSEL: Your Honor, I have to object  to 'they beat him.'  I mean, that's just way  beyond the scope of any evidence here, your  Honor.  This is really way crossing the line.
THE COURT: It is [a] question for the jury to  decide.  But they may feel there's exaggeration  here; and if that's disturbance, I don't know.


18
  We recognize that absent Bragg's punching, the appellants  participation in the restraint would not have violated Davis's rights  under MCRA.  See Longval v. Comm'r of Correction, 535 N.E.2d 588, 593  (Mass. 1989) ("no coercion, within the meaning of the State Civil  Rights Act, simply from the use of force by prison officials").  That,  of course, is not the case before us.


19
  The district court excused Wiegers's failure to plead a  qualified immunity defense "in light of the Court's repeated  declarations to all counsel that qualified immunity would be addressed  on Rule 50(b) motions."  Without deciding the question, we assume that  Wiegers may assert the defense on appeal.


20
  We also reject the MHW appellants' attempt to rely on our  statement in Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691  (1st Cir. 1994), that "the Supreme Court intends to surround the police  who make these on-the-spot choices in dangerous situations with a  fairly wide zone of protection in close cases."  Id. at 695.  Davis's  behavior in this case is easily distinguishable from that of Roy, who  resisted arrest by advancing on police officers with knives while  drunk.  See id. at 694.  The qualified immunity to which the officers  in Roy were entitled because of the danger they confronted does not  apply here.


