Case 1:10-cv-00553-JB-DJS Document 219 Filed 10/20/17 Page 1 of 99
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`TONY NELSON,
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`Plaintiff,
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`vs.
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` No. CIV 10-0553 JB/DJS
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`CITY OF ALBUQUERQUE, a political
`subdivision of the STATE OF NEW MEXICO,
`R.T. JOHNSTON, an Officer of the
`Albuquerque Police Department, Individually,
`D. HUGHS, an Officer of the Albuquerque
`Police Department, Individually,
`A. LIMON, an Officer of the Albuquerque
`Police Department, Individually,
`S. WEIMERSKIRCH, an Officer of the
`Albuquerque Police Department, Individually,
`and JOHN AND JANE DOES 1-X,
`an Officer of the Albuquerque Police Department,
`Individually,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`THIS MATTER comes before the Court on the Defendants’ Rule 50(b) Motion, and
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`Memorandum in Support, Requesting for the Judgment on the Jury Verdict to Stand; to Find
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`Defendants Have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of
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`Defendants, filed July 26, 2012 (Doc. 201)(“Motion”). The Court held a hearing on June 14,
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`2013. The primary issues are: (i) whether the Defendants’ Motion was timely under rule 50(b)
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`of the Federal Rules of Civil Procedure; (ii) whether the Court may overrule a prior judgment as
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`a matter of law on a rule 50(b) motion; (iii) whether the Defendants properly preserved their
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`qualified immunity argument in their rule 50(b) motion; and (iv) whether the Court may alter the
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`prior judgment in the Plaintiff’s favor by construing the Defendants’ rule 50(b) motion as a rule
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`59(e) motion. The Court concludes that: (i) the Defendants’ Motion was timely; (ii) rule 50(b) is
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`an improper vehicle for overturning a judgment as a matter of law; (iii) the Defendants’ did not
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`preserve
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`their qualified
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`immunity argument -- regarding whether
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`the
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`law was clearly
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`established -- under rule 50(b); and (iv) the Court may construe the Defendants’ rule 50(b)
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`motion as a rule 59(e) motion. Because it can construe the Defendants’ rule 50(b) motion as a
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`rule 59(e) motion to alter or amend, it will alter the prior judgment rendered under rule 50(b) in
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`the Plaintiff’s favor. Although the facts of this case are disquieting, drawing all inferences in the
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`Defendants’ favor, a reasonable jury could have found for the Defendants. Furthermore, because
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`there are no sufficiently analogous cases from the United States Court of Appeals for the Tenth
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`Circuit or the Supreme Court of the United States of America, the Defendants are entitled to
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`qualified immunity. The Court, accordingly, grants the Motion in part and denies it in part.
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`FACTUAL BACKGROUND
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`On the morning of March 4, 2009, Tony Nelson, a sixty-two year old American Indian,
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`drank some beers with his friend, Jeffery Patterson, in Patterson’s home. See Official Transcript
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`of Trial Proceedings before the Court at 19:12-17 (dated October 24, 2011), filed June 29, 2012
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`(Doc. 189)(“Trial Tr.”); id. at 28:18-29:2; id. at 29:17; id. at 30:21-22 id. at 31:9-11 (Hawk,
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`Nelson). After running low on beer, the two argued over whether they should buy more. See
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`Trial Tr. at 32:14-19 (Nelson). The argument became heated and Patterson left his home to call
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`the police. See Trial Tr. at 33:18-19 (Nelson). Patterson returned home, they argued some more,
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`and Patterson left again. See Trial Tr. at 34:10-12 (Nelson). The last thing Nelson remembers
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`from March 4, 2009, was being “dead drunk” and lying down to get some sleep. Trial Tr. at
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`34:16-35:8 (Hawk, Nelson). See id. at 33:18-19; id. at 34:16-19 (Nelson).
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`Case 1:10-cv-00553-JB-DJS Document 219 Filed 10/20/17 Page 3 of 99
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`Patterson called the police again and this time reported that Nelson had “threatened [him]
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`with [a] rifle . . . and a knife.” Trial Tr. at 134:16-22 (Hawk, Johnston).1 Subsequently, forty-
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`seven police personnel, which included seventeen SWAT police team members and eight K-9
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`officers, arrived at Patterson’s home. See Trial Tr. at 141:19-21; id. at 142:8; id. at 234:15-16
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`(taken October 25, 2012), filed June 29, 2012 (Doc. 190)(Hawk, Johnston). Someone --
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`presumably Patterson -- told the police that Nelson had been drinking, and that the rifle with
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`which Nelson had threatened Patterson was either a pellet rifle2 or a “308 bolt-action rifle.” Trial
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`Tr. at 131:15-17 (Johnston). See id. at 298:9-10 (Hawk, Johnston). A 308 bolt-action rifle is a
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`“large caliber rifle” that is “devastating in close range and at distance.” Trial Tr. at 77:11-12
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`(Brown); id. at 243:2 (Johnston). When the police officers arrived at the scene, they did not
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`clarify whether Nelson had threatened Patterson with a pellet rifle or a 308 bolt-action rifle. See
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`Trial Tr. at 132:6-11 (Hawk, Johnston); id. at 243:14-20 (Griffin, Johnston).
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`The SWAT team arrived with a Bearcat -- an armored police vehicle. See Trial Tr. at
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`84:16-19 (Brown); id. at 312:11-12 (Hawk, Hughes). At least two officers positioned themselves
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`on roofs nearby with sniper scopes and rifles, and other police personnel established a perimeter
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`around the house with an officer stationed off each corner of it. See Trial Tr. at 78:7-79:5
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`(Brown, Hawk); id. at 83:8-18 (Brown, Hawk); id. at 144:13-20 (Hawk, Johnston); id. at 455:15-
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`17 (Limon)(taken October 26, 2011), filed June 29, 2012 (Doc. 191). The property was almost
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`entirely enclosed by an eight-foot-tall fence with razor wire at the top. See Trial Tr. at 150:6-
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`151:19 (Hawk, Johnston).
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`1Nelson does not appear to recall threatening Patterson with those weapons, but, Nelson
`did plead guilty to aggravated assault with a deadly weapon. See Trial Tr. at 37:23-38-1 (Hawk,
`Nelson).
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`2A pellet rifle is a type of BB gun. See Younger v. City of New York, 480 F. Supp. 2d
`723, 728 (S.D.N.Y. 2007)(“A pellet rifle, (i.e., a BB gun).”).
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`After setting up a perimeter, Defendant Officer Armando Limon called out to Nelson,
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`who was still in the house, to exit the home and walk towards the police team near the driveway.
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`See Trial Tr. at 167:25-168:2 (Hawk, Johnston); id. at 169:4-10 (Hawk, Johnston); id. at 245:14-
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`18 (Griffin, Johnston); id. at 456:11-16 (Hawk, Limon). The police team was positioned behind
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`the Bearcat. See Trial Tr. at 152:3-5 (Johnston). After some time, Nelson appeared in the
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`doorway and motioned for the officers to come toward him; Nelson had a knife in his hand, but
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`at the time, the officers could not tell what Nelson was holding. See Trial Tr. at 172:3-9
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`(Johnston); id. at 350:3-10 (Hughes); id. at 457:20-23 (Limon). Officer Limon again ordered
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`Nelson to come out, and to turn around. See Trial Tr. at 500:1-4 (Limon). Nelson went back
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`into the house, however, and dropped the knife. Trial Tr. at 171:7-9 (Johnston); id. 172:17-18
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`(Johnston); id. at 350:12 (Hughes); id. at 457:5-17 (Hawk, Limon). Nelson then exited the
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`house, walking slowly south towards the officers with his “[h]ands to his side.” Trial Tr. at
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`98:16-17, 20 (Brown). See id. at 170:19-24 (Hawk, Johnston); id. at 352:12-13 (Hughes); id. at
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`460:14-15 (Limon). Nelson’s hands were empty. See Trial Tr. at 105:19-106:5 (Brown, Hawk);
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`id. at 297:5-9 (Hawk, Johnston). The officer in charge, Defendant Sergeant Robert Johnston did
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`not see Nelson holding a rifle and thought it would be “hard to hide a rifle with the way [Nelson]
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`was dressed.” Trial Tr. at 171:10-14 (Hawk, Johnston). Although he had cleared Nelson’s
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`hands, the SWAT team sniper could not confirm whether Nelson had any weapon in his
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`waistband and also observed that Nelson was “looking around” and “appeared to be attempting
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`to identify the position of other officers around the perimeter, or possibly avenues of escape.”
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`Trial Tr. at 99:19-100:2 (Brown, Griffin). See id. at 99:12-14 (Brown, Griffin).
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`As Nelson walked down the driveway, the police ordered Nelson several times to raise
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`his hands, but Nelson did not raise them. See Trial Tr. at 258:11-19 (Griffin, Johnston); id. at
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`Case 1:10-cv-00553-JB-DJS Document 219 Filed 10/20/17 Page 5 of 99
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`495:23-24 (Limon). Officers also heard Nelson speaking or yelling as he approached, but could
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`not understand him. See Trial Tr. at 291:15-18 (Hawk, Johnston); id. at 352:16-19 (Hughes).
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`Officer Limon, however, heard Nelson say: “Get the fuck out of here.” Trial Tr. at 499:3
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`(Limon). After some time, Nelson stopped at the driveway’s edge, about twenty feet from the
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`officers. See Trial Tr. at 173:14-15 (Hawk, Johnston). He made a motion with his hands, which
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`one officer interpreted as “go-away” and another interpreted as “come to me, come to me.” Trial
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`Tr. at 353:22-354:1 (Hughes); id. at 497:17-18 (Limon).
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`Nelson then made a motion to turn to his left, towards the north, away from the officers.
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`Trial Tr. at 262:23-263:24 (Griffin, Johnston). Although Officer Limon had ordered Nelson to
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`turn around when he made “initial contact with” Nelson, see Trial Tr. at 500:1-4 (Griffin,
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`Limon), the officers interpreted Nelson’s motion as an attempt to return to the house to retrieve
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`weapons, and Johnston ordered his subordinate, Defendant Officer Daniel Hughes, to “deploy
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`his weapon and ‘[b]ag him,’” Trial Tr. at 176:23-177:2 (Hawk, Johnston). See id. at 177:5-6
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`(Johnston); id. at 268:1-5 (Johnston)(“[W]e were not going to let him go back in the
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`house . . . [b]ecause there w[ere] deadly weapons in the house.”); id. at 321:19-22 (Hawk,
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`Hughes). Officer Hughes “immediately” fired five “bean bag” rounds from a non-lethal,
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`shotgun-style weapon. Trial Tr. at 354:19-23 (Hughes). See id. at 182:14 (Johnston). Johnston
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`also fired a wooden-baton round from a similar weapon. See Trial Tr. at 185:21-22 (Johnston).
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`Another officer launched a “flash bang” diversionary device to “overwhelm” and “disorient”
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`Nelson. Trial Tr. at 182:15-24 (Hawk, Johnston).3 The officers fired their weapons from a non-
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`lethal range. See Trial Tr. at 271:11-22 (Griffin, Johnston).
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`3A flash bang, also known as a stun grenade, emits bright light and loud noises upon
`detonation. See Boyd v. Benton County, 374 F.3d 773, 776 (9th Cir. 2004).
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`Afterwards -- with Nelson’s back toward the officers and without warning Nelson --
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` Defendant Officer Scott Weimerskirch, a K-9 officer, released a police dog who bit Nelson on
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`the left arm, drawing blood. See Tr. at 189:12-190:2 (Hawk, Johnston); id. at 393:12-16 (Hawk,
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`Weimerskirch).4 Nelson staggered to a wrought-iron fence post, “trying to shake the dog off,”
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`and several officers approached Nelson with the dog still clinging to his left arm. Trial Tr. at
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`274:9-15 (Griffin, Johnston). See id. at 192:17-193:1 (Hawk, Johnston). Both of Nelson’s hands
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`were visible, and neither held a weapon. See Trial Tr. at 362:8-11 (Hughes); id. at 454:8-18
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`(Hawk, Limon). Officers ordered Nelson to let go of the fence, but he did not respond to that
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`command. See Trial Tr. at 364:15-25 (Hughes).
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`Officer Limon fired his Taser at Nelson, but, after the Taser darts struck Nelson, Officers
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`Hughes and Limon perceived “no change to [his] behavior. . . . He didn’t look like . . . he was
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`being tased.” Trial Tr. at 364:5-9 (Hughes). See id. at 451:1-11. Officer Limon heard his Taser
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`make the sound it usually makes when operating effectively, however. See Trial Tr. at 452:17-
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`20 (Hawk, Limon). Officer Hughes then fired his Taser at Nelson, and one of his Taser darts
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`struck Nelson in the neck. See Tr. at 331:25-332:3; id. at 365:10-12 (Hawk, Hughes).5 Officer
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`Hughes cycled6 his Taser six times delivering six shocks over a thirty-seven second period. See
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`Trial Tr. at 336:11-13 (Hawk, Hughes); id. at 368:19-23 (Griffin, Hughes); Plaintiff’s Exhibit 47
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`at 2, filed November 23, 2011 (Doc. 158-4). Officer Hughes explained that he shocked Nelson
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`4The Albuquerque Police Department’s K-9 policy provides that it is acceptable to
`release a dog without warning if “[t]he need to deploy a police service dog develops so suddenly
`that the handler does not have a reasonable opportunity or no time to give warning prior to
`deployment.” Trial Tr. at 426:19-427:3 (Wiemerskirch).
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`5Officers are taught to avoid striking anyone with a Taser dart in the neck. See Trial Tr.
`at 366:16-19 (Griffin, Hughes).
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`6Cycling a Taser means to trigger it to deliver a shock. See Trial Tr. at 318:20-320:5
`(Hawk, Hughes).
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`six times, because he “was still holding onto the fence and appeared to be fighting with the dog.”
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`Trial Tr. at 368:24-369:4 (Griffin, Hughes). After the sixth shock, Officer Hughes determined
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`“we were not going to get any compliance from him more than we had,” stopped shocking him,
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`and grabbed Nelson’s left hand. Trial Tr. at 370:9-11 (Hughes). Nelson was subsequently
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`arrested and hospitalized. See Trial Tr. at 35:11-12 (Nelson); id. at 35:22-23 (Nelson); id. at
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`370:24 (Hughes). Nelson pled guilty to “aggravated assault with a deadly weapon,” but the
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`judge dismissed the charge after Nelson served his probation. Trial Tr. at 37:23-38:6 (Hawk,
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`Nelson).
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`PROCEDURAL BACKGROUND
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`On May 10, 2010, Nelson filed suit in the Second Judicial District Court, County of
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`Bernalillo, State of New Mexico, asserting tort and civil rights violations by Defendants
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`Bernalillo County, the City of Albuquerque, and Albuquerque police officers. See Complaint
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`For Civil Rights Violations & Violation of the New Mexico Tort Claims Act at 1, filed June 8,
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`2010 (dated May 10, 2010)(Doc. 1-1)(“State Complaint”). Nelson alleges, among other things,
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`that: (i) police officers used “excessive and unnecessary . . . force in the course of arrest and
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`custody” violating his rights under the Fourth Amendment to the Constitution of the United
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`States of America and Article II, Section 10 of the New Mexico Constitution; (ii) the City of
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`Albuquerque and Bernalillo County “maintain[] official policies” or a “de facto” policy
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`permitting the excessive use of force; and (iii) the City of Albuquerque and Bernalillo County
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`“failed to train” and supervise their police officers in the proper use of force and were,
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`accordingly, deliberately indifferent to Nelson’s rights. State Complaint ¶¶ 28, 34, 43, 48-50 at
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`5-6, 8-9 (emphasis omitted). The City of Albuquerque removed the case to federal court, and
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`Nelson amended his Complaint, but continued to allege the same substantive violations. See
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`Notice of Removal at 1, filed June 8, 2010 (Doc. 1); Amended Complaint for Civil Rights
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`Violations & Violation of the New Mexico Tort Claims Act ¶¶ 28-35, 44, 49-51 at 5-6, 8-9 filed
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`July 15, 2010 (Doc. 21).
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`On April 6, 2011, the Defendants moved for summary judgment on the excessive use of
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`force claim, arguing, generally, that the police officers’ use of force was “‘objectively
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`reasonable’ under the circumstances,” and alternatively, that they were entitled to qualified
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`immunity. Defendants’ Motion for Summary Judgment, and Memorandum in Support,
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`Requesting Dismissal of Counts I and II of Plaintiff’s Amended Complaint with Prejudice at 8-
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`11, filed April 6, 2011 (Doc. 66)(“1st SJ Motion”). The City of Albuquerque subsequently filed
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`a second Summary Judgment Motion, arguing that: (i) the City of Albuquerque could not be
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`liable for excessive use of force, because Nelson could not identify any City of Albuquerque
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`policies that were “the ‘moving force’ behind [Nelson’s] alleged injury”; and (ii) the City of
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`Albuquerque could also not be liable for failing to train and supervise its police officers, because
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`their officers “ha[d] undergone extensive law enforcement training” and there were several
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`policies in place “ensur[ing] that subordinate officers [were] being supervise[d].” Defendant
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`City of Albuquerque’s Motion, and Memorandum in Support, For Summary Judgment
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`Requesting Dismissal of Counts III and IV of Plaintiff’s Amended Complaint at 9-10, filed April
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`7, 2011 (Doc. 72)(“2d SJ Motion”)(quoting Board of Cty. Com’rs v. Brown, 520 U.S. 397, 404-
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`05 (1997)). The Judge Black denied the City of Albuquerque’s 1st SJ Motion, because there
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`were disputes of material fact regarding whether Nelson “posed a threat prior to the[ police’s]
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`use of force” and whether Nelson was “flee[ing] or resist[ing] arrest,” which would allow the
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`police officers to apply a higher level of force. Memorandum Opinion at 4-5, filed October 5,
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`2011 (Doc. 123)(“SJ Opinion”). Regarding qualified immunity, Judge Black determined that
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`“the Officers are not entitled to qualified immunity,” because “a reasonable factfinder could find
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`that [Nelson]’s right to be free of excessive force was violated,” and that the “objectively
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`reasonable standard under which that right is analyzed” was “‘clearly established’” on March 4,
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`2009. SJ Opinion at 6-7. Judge Black, however, granted in part Albuquerque’s 2d SJ Motion,
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`because Nelson had evidence of only a “single unconstitutional act of excessive of force,” which
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`could not, by itself, demonstrate a citywide practice, policy, or custom that would give rise to
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`municipal liability. SJ Opinion at 7-8. Nevertheless, Judge Black rejected the City of
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`Albuquerque’s argument
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`that
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`it adequately
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`trained
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`its officers, because
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`the City of
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`Albuquerque’s police procedures “require[] officers [when facing a mentally ill subject] to ‘calm
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`the situation,’ ‘assume a quiet, non-threatening manner when approaching the subject,’ and ‘not
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`threaten the subject with arrest or physical harm,’” but the record demonstrates that the
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`“[o]fficers instead relied on an imposing presence and swift physical force to arrest [Nelson].”
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`SJ opinion at 8-9. Judge Black noted that, “[w]hile the record is rife with evidence of Officers’
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`general training, it lacks evidence of training on this specific procedure, or the efficacy of such
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`training,” and concluded that “[t]he failure to train claim, while thin, is not proper for summary
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`judgment.” SJ Opinion at 10.
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`On October 24, 2011, Judge Black held a six-day jury trial. See Clerk’s Minutes, filed
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`November 4, 2011 (Doc. 152). After Nelson rested, the Defendants renewed their qualified
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`immunity summary judgment motion, arguing that Quezeda v. Bernalillo Cty., 944 F.2d 710
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`(10th Cir. 1991) affords defendants an opportunity to renew a qualified immunity argument “at
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`the Rule 50 stage.” Trial Tr. at 720:3-8 (Griffin). Judge Black denied it concluding “there’s a
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`factual dispute,” because of Nelson’s expert’s testimony. Trial Tr. at 720:11-12 (Court). See id.
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`at 720:22-23 (Court). The Defendants subsequently moved for a judgment as a matter of law on
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`the excessive force allegation, and Judge Black also denied that motion based on factual
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`disputes. See Tr. at 721:1- 722:25 (Court, Griffin). The Defendants finally motioned under rule
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`50 on the inadequate training allegation, and the Court took “that motion under advisement,”
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`because Nelson did not demonstrate Taser or K-9 police training that the City of Albuquerque
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`failed to teach their police officers or that the police officers disregarded. Trial Tr. at 723:1-726:2
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`(Court, Griffin, Hawk).7
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`At the close of evidence, the Defendants renewed their “summary judgment on qualified
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`immunity” motion, “as well as the Rule 50 motion that we made at the close of the plaintiff’s
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`case.” See Defendants’ Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and
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`181, or in the Alternative, Motion for Relief from Judgment or Order Entered in Docs 168, 169,
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`and 171 at 2:8-11 (Griffin) [at 42:8-11 on CM/ECF], filed May 8, 2012 (Doc. 173-4)(“Rule 50
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`Tr.”). Judge Black denied the motion, because “both of these [motions] turn on the interpretation
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`of the facts and the experts used. Obviously, there is a discrepancy as to what occurred at the
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`scene. And I will, therefore, deny these and submit the matter to the jury.” Rule 50 Tr. at 3:12-
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`17. Nelson also moved for judgment as a matter of law pursuant to rule 50(a), see Plaintiffs’
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`Renewed Motion for a Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively,
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`Motion for New Trial Pursuant to Rule 59(a) at 1, filed November 23, 2011 (Doc.
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`158)(“RJMOL”), and the Court also denied that Motion. On October 31, 2011, the Jury
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`7The Court concludes that Judge Black must have dismissed the failure-to-train
`allegations. The jury instructions did not instruct the jury about the failure-to-train claim’s
`elements, and the jury verdict form has no question concerning the City of Albuquerque’s failure
`to train. See Court’s Instructions to the Jury at 1-32, filed October 31, 2011 (Doc. 153); Verdict
`Form at 1-3, filed October 31, 2011 (Doc. 155). The Court, however, cannot locate where Judge
`Black ruled on the motion. It is likely he ruled on it during the rule 50 arguments after the
`Defendants ended their case-in-chief, but the trial transcript on CM/ECF does not contain those
`rule 50 arguments. See Transcript of Trial Proceedings, filed June 29, 2012 (Doc. 192 &
`Doc. 193).
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`determined that the Defendants did not use excessive force. See Verdict Form at 1-3, filed
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`October 31, 2011 (Doc. 155). Consequently, Nelson recovered nothing. See Verdict Form at 3.
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`The Court entered judgment on November 8, 2011. See Judgment, filed November 8, 2011
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`(Doc. 147).
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`1.
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`Nelson’s Renewed Motion for Judgment as a Matter of Law.
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`On November 23, 2011, Nelson renewed his motion for judgment as a matter of law
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`under rule 50(b), and also moved for a new trial under rule 59(a). See RJMOL at 1. In
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`summary, he argues that, given the circumstances, the police used excessive force when they
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`fired five beanbag shots, fired the wooden-baton rounds, sent the dog at him, and repeatedly
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`Tased him such that no reasonable jury could have found for the Defendants. See RJMOL at 3-
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`9.
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`First, Nelson argues that, under the excessive-force standard, a court must “analyze the
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`factual circumstances of every case” and determine “whether the subject poses an immediate
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`threat to the safety of officers and others,” and whether “the subject is actively resisting arrest or
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`attempting to evade arrest by flight.” RJMOL at 2. Nelson avers that, based on that standard, “at
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`the time Defendant Hughes deployed his beanbag shotgun, [Nelson] did not pose an immediate
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`threat to officers or others.” RJMOL at 3. According to Nelson, he posed no immediate threat,
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`because the police had established a “safe perimeter,” Nelson could only exit through one door
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`of the house, “all sides of the house had lethal police coverage,” “any egress from the property
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`was further hampered . . . by two razor wired fences” and that the SWAT team had high-ground
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`snipers trained on the property. RJMOL at 3. Nelson argues, further, that “there is no evidence
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`that Plaintiff posed an immediate threat to [the police] once he exited the house,” because
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`Nelson “followed commands to walk towards” the police team, he “slowly walked” towards
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`them “empty handed,” and Nelson “stopped as ordered” at least twenty feet away from the
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`officers. RJMOL at 3-4.
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`Regarding the inference that Nelson turned around to “retreat to the house rather than
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`turning around in compliance with [police] orders to turn around,” Nelson argues that no
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`“reasonable officer, could infer that Plaintiff was turning around to retreat,” because
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`photographic evidence “shows that Hughes was facing [Nelson] at the time of the shots.”
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`RJMOL at 4. Nelson also argues that photographic evidence demonstrates that the first two
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`beanbag shots hit Nelson in his sternum and “epigastrium” -- the center of his body -- refuted the
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`police officer’s testimony that Nelson “turned to his left in a quick manner.” RJMOL at 4.
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`According to Nelson, the remaining three shots hit his rib cage and back, because Nelson was
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`“obviously turn[ing] away from the shots.” RJMOL at 4-5. Nelson also argues that Hughes’
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`five consecutive beanbag shots were excessive, because Hughes failed to take “appropriate
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`tactical pauses between each shot.” RJMOL at 5. Nelson avers that, under proper police
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`protocols, a “tactical pause is required . . . to assess whether a subject is . . . complying with
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`orders,” but the evidence “clearly indicates there was no tactical pause” -- the first two shots hit
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`Nelson near each other, “in the midline.” RJMOL at 5.
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`
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`Second, Nelson adds that the wooden-baton rounds were excessive. See RJMOL at 5-6.
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`According to Nelson, Johnston “launched his wooden rounds” when Nelson’s “back was facing
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`the [police] team.” RJMOL at 5. Nelson further avers that, on top of having his back turned,
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`Nelson “posed no immediate threat,” because, again, his “hands were clear,” he was “disoriented
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`by the flash-bang diversionary device,” already “injured by beanbag rounds,” and “intoxicated.”
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`RJMOL at 5-6.
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` Third, Nelson argues that releasing the dog after the beanbag shots, the wooden-baton
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`rounds, and the flash-bang device established excessive force. See  RJMOL at 6-7. He also
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`contends that the force was exacerbated, because Weimerskirch released the dog “without
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`warning” when Nelson “had his back towards” the police team. RJMOL at 6. Finally, he asserts
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`that Weimerskirch’s command to the dog to “retrieve . . . in an effort to pull [Nelson] to
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`Weimerskirch” demonstrates excessive force. RJMOL at 6.
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`
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`Finally, Nelson contends that, after the dog, the shots, and the flash-bang device, the
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`evidence establishes excessive force, because, while Nelson “clutched onto the metal fence,” two
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`officers deployed their Tasers and one “cycled it six times,” at “five seconds per cycle,”
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`delivering six shocks in thirty seconds. RJMOL at 7. He further contends that, like the required
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`“tactical pause” for shooting the beanbag charges, police protocol requires a tactical pause before
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`cycling the Taser, but Hughes did not observe that protocol. RJMOL at 7. Nelson argues that,
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`instead, “[Hughes] only waited 1 second between cycles one through four before cycling again.”
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`RJMOL at 7. “Without a tactical pause,” Nelson argues, “Hughes could not have assessed
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`[Nelson’s] compliance [with orders], and therefore, clearly used excessive force.” RJMOL at 8.
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`Nelson also avers that the Taser strike was excessive because it occurred after two officers had
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`determined “that it was safe to approach [Nelson].” RJMOL at 7.
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`Nelson states that under Tenth Circuit caselaw, it is “excessive” to use a Taser “without
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`having a reason to believe that a lesser amount of force or verbal command can exact
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`compliance.” RJMOL at 8 (citing Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th
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`Cir. 2007)(“Casey”)). Here, according to Nelson, the officers violated Casey, because “there
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`was no reason to believe that [Nelson] could not be removed from the fence with less force” than
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`the Taser shots and six charges. RJMOL at 8. He concludes that the need for less force was
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`apparent, because “after everything was said and done” the officers were able to ply Nelson
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`away from the fence “by merely lifting Nelson’s thumb.” RJMOL at 8.
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`2.
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`Defendants’ Response to Nelson’s RJMOL.
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`On December 16, 2011, the Defendants responded to Nelson’s RJMOL, arguing broadly
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`that the evidence supported the jury’s verdict. See Defendants’ Response to Plaintiff’s Renewed
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`Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for
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`New Trial Pursuant to Rule 59(a) at 4, filed December 16, 2011 (Doc. 161)(“RJMOL Resp.”).
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`First, the Defendants argue that the officers were attempting to catch a “non-compliant,”
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`suspected felon who “attempt[ed] to return to the residence” where known weapons were
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`located. RJMOL Resp. at 12. They also contend that the officers’ use of “less lethal munitions”
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`to stop Nelson’s return to the home was reasonable under Tenth Circuit caselaw. RJMOL Resp.
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`at 12 (citing Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001)). The Defendants further
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`aver that Nelson posed a “high” potential threat, because “he already demonstrated his intent to
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`bait the officers to come to him while holding a knife in his hand.” RJMOL Resp. at 12.
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`The Defendants finally argue that Nelson’s RJMOL fails, because he “primarily relies
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`upon the arguments and assertions of his legal counsel, which are not evidence.” RJMOL Resp.
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`at 4 (citing Frizcke v. Albuquerque Municipal Sch. Dist., 194 F. Supp. 2d 1194, 1206 (D.N.M.
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`2002)(Black, J.)).8 The Defendants conclude that, based on this evidence, “the jury has spoken
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`as to these issues and accordingly, the jury found in favor of the Defendants. . . . Therefore the
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`jury’s verdict must stand because no plain error or substantial prejudice occurred.” RJMOL
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`Resp. at 13-14.
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`                                                            
`8The Defendants also “note” that, over their objection, “the jury was given a deadly force
`instruction,” and renewed their argument that this instruction was improper, but concluded that
`the “jury obviously weighed [the deadly force] evidence” and determined that deadly force was
`not used. RJMOL Resp. at 13.
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`3.
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`Nelson’s RJMOL Reply.
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`On January 13, 2012, Nelson replied to the RJMOL Resp. and argues that the RJMOL
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`Resp. neglects the excessive force standard, because the Defendants rely on the officers’
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`“subjective beliefs” as opposed to “objective reasonableness.” Plaintiff’s Reply to his Renewed
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`Motion for a Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for
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`New Trial Pursuant to Rule 59(a) at 1, filed January 13, 2012 (Doc. 164)(“RJMOL
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`Reply”)(citing Graham v. Connor, 490 U.S. 386, 395 (1989)(“Graham”)). The proper analysis,
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`he contends, is to follow the Graham factors. First, Nelson maintains that no reasonable officer
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`would believe that Nelson posed an immediate threat. See RJMOL Reply at 2. Nelson argues
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`that point by listing the following “undisputed facts”: (i) “47 officers [were] present”; (ii) “[e]ach
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`officer . . . had a lethal weapon”; (iii) two officers were positioned on the roof with snipers; and
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`(iv) and those snipers were prepared to “sho[o]t Mr. Nelson if . . . [they]needed to, if Mr. Nelson
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`made any threats.” RJMOL Reply at 2-3. Nelson argues that those facts undermined the officers
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`“subjective belief that [Nelson] nonetheless posed a possible risk to their safety.” RJMOL Reply
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`at 3. Finally, Nelson avers that, even subjectively, the officers did not believe Nelson posed an
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`“immediate threat,” because “after all the testimony surrounding subjective concerns that
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`[Nelson] may have had a weapon in his waistband,” both officers “agree that they deployed the
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`beanbags not in response to any threat by [Nelson], but rather in response to a subjective belief
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`that” Nelson was returning to the house for weapons. RJMOL Reply at 5.
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`Next, invoking the third prong of the excessive force standard, the suspect’s flight or
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`resistance, Nelson contends that he did not attempt to flee.