Heredia v. Roscoe

125 F.4th 34

• Court: Court of Appeals for the First Circuit
• Decided: January 6, 2025
• Docket: 23-1353
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1353

CHASRICK HEREDIA,

Plaintiff, Appellee,

v.

MICHAEL ROSCOE,

Defendant, Appellant,

CANADA STEWART; MATTHEW NOCELLA; NATHAN HARRINGTON; OTHER UNKNOWN MANCHESTER POLICE OFFICERS,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

Keelan B. Forey, with whom Matthew V. Burrows and Gallagher, Callahan & Gartrell, P.C., were on brief, for appellant.

Seth J. Hipple, with whom Stephen T. Martin and The Law Offices of Martin & Hipple, PLLC, were on brief, for appellee.

January 6, 2025 MONTECALVO, Circuit Judge. In the early hours of the

morning on May 11, 2018, while celebrating his birthday with a

group of friends, plaintiff Chasrick Heredia encountered police

officers in an interaction that quickly escalated to violence. As

a result of that incident, Heredia filed a complaint against

several of the officers involved, alleging violations of his

constitutional rights. At a trial against four officers, the jury

found Officer Michael Roscoe liable for use of excessive force and

awarded Heredia nominal and punitive damages. Subsequently, the

district court denied Roscoe's motion for judgment as a matter of

law (JMOL), concluding that a reasonable juror could find that

Roscoe violated Heredia's constitutional rights and that qualified

immunity did not apply. The district court also denied Roscoe's

motion for remittitur of the punitive damages award. Roscoe now

appeals the district court's denial of both motions. For the

reasons that follow, we affirm.

I. Background

On May 11, 2018, Heredia had a violent interaction with

officers from the Manchester Police Department, including Roscoe.

As a result, Heredia filed a complaint alleging claims under

42 U.S.C. § 1983 for excessive force and violations of his right

to due process (alleging both failure to provide medical care and

fabrication of evidence). The circumstances surrounding the

interaction were hotly contested by the parties throughout the

- 2 - case. Because this case now comes before us on an appeal from a

motion for JMOL, which was denied after the jury rendered a verdict

in favor of Heredia, we summarize the evidence presented at trial

in the light most favorable to the verdict. Jones ex rel. United

States v. Mass. Gen. Hosp., 780 F.3d 479, 487 (1st Cir. 2015).

The evidence included testimony from people present at

the scene, including: Heredia; the four defendants, Officers

Roscoe, Canada Stewart, Matthew Nocella, and Nathan Harrington;

Allyson Mateo, an employee for the nightclub outside of which the

interaction occurred; and Harley Valley, Heredia's friend. A

defense expert, Eric Daigle, also testified. Additionally, video

evidence was presented at trial; that recording was made by Valley

on his cell phone.1

A. Video and Eyewitness Testimony

1. Lead-up to the Altercation

Heredia testified that he and his friends, including his

brother, Joshua,2 and Valley, arrived at a nightclub called GlowBar

to celebrate his birthday around "10:00 to 11:00" p.m. on May 10,

2018.

1This recording is part of the appellate record, and we have reviewed it. See Bannon v. Godin, 99 F.4th 63, 69-70 (1st Cir. 2024) (reviewing "[t]raffic camera footage, officer body-worn cameras, and civilian cell phone footage"). 2Joshua Heredia is referred to by his first name to avoid confusion.

- 3 - Allyson Mateo, the GlowBar employee, was working that

night and recalled that Joshua was asked to leave due to his

behavior. Mateo followed the security guard and Joshua outside to

observe their conversation. Mateo testified that Joshua was not

being threatening or causing a scene, but the employees told him

that he could not go back inside. Some of Joshua's friends came

outside and began debating what they were going to do next and

whether they should go somewhere else or split up. The group was

asked to move away from the door while they were having this

discussion, but they were not fighting, pushing each other, or

threatening anyone.

Roscoe and Harrington testified that either very late on

May 10, 2018, or in the early hours of May 11, 2018, they responded

to a noise complaint at GlowBar, apparently unrelated to the

incident with Joshua. Although Roscoe and Harrington cleared the

noise complaint, they became concerned about some individuals who

seemed to be arguing with a bouncer in front of the bar. Roscoe

saw Joshua take off his shirt and speak to the employees in an

animated manner. Although police presence was not requested by

GlowBar staff, Roscoe decided to approach. Harrington and Stewart,

who had since arrived on the scene, each testified that the GlowBar

bouncer separately told them that the group needed to leave,

although Roscoe testified that he heard the bouncer tell Joshua's

- 4 - group that they had the option of going back inside GlowBar until

closing.

Roscoe saw the group twice walk a bit away from GlowBar

and then turn around and walk back. At this point, although the

police still had not been asked to intervene by the GlowBar

employees, Roscoe approached the group and ordered them to leave

the area and get out of the public street. Harrington similarly

ordered the group to get out of the street and to leave the area.

After noticing blue lights outside, Heredia exited the

bar around this time, followed by Valley, to see what was

happening. They then saw two to three police officers speaking

with Joshua. Heredia began to ask the officers what was happening,

and the officers responded that he "had to leave." Heredia

testified that he told the officers that he was "going back inside"

GlowBar, but the officers told him that "there would be

consequences" if he did. Heredia and Valley then took out their

cell phones to record the incident.3

Valley's video shows a group of people, including

Heredia, being directed by officers to "get out of the street."

Heredia admitted that when the officers continued to tell him he

had to leave, he "became frustrated" and "rais[ed] [his] voice."

Heredia was upset because he felt he "had done nothing wrong at

3 Any recording taken by Heredia was not presented at trial.

- 5 - the time" and "was just trying to go back inside." Heredia told

the officers that they were "public servants." Stewart also

recalled that Heredia shouted that the officers were racist, that

they were public servants, and that it was his birthday.

Heredia's friends began telling him to leave and were

"grabbing [his] arm [and] pulling [him]." Valley testified that

up until this point, he did not see anyone engage in physical

violence or hear anyone make threats. In the video, Heredia can

then be heard telling someone, "stop fucking touching me," which

the parties agree was directed at Heredia's friends. Roscoe,

Stewart, and Harrington recalled the group "pushing and shoving"

each other in the middle of the busy street even though they were

told to stop.

2. Initial Takedown of Heredia

In the video, someone can be heard calmly saying, "you're

under arrest," at the same time that Heredia seems to be yelling

at his friends, but it is unclear who said this and to whom.

Shortly thereafter, an officer can be seen in the video grabbing

Heredia from behind and forcing him against a parked car.

Consistent with his report, Harrington testified that Roscoe then

attempted to arrest Heredia, and several members of the group tried

to pull Heredia away from Roscoe; however, only one other member

of the group can be seen in the video when Harrington and Roscoe

attempt to arrest Heredia, and it is unclear whether he is

- 6 - attempting to pull Heredia away. Roscoe testified that when he

attempted to effectuate the arrest, Heredia was not attempting to

attack him or any other officer.

Roscoe testified that to effectuate the arrest, he

"placed" Heredia against a vehicle and deployed "soft hand

techniques" such as attempting to put Heredia's hands behind his

back and putting him in an arm bar. Roscoe testified that Heredia

removed his arm from Roscoe's grip and then continued to "pull[]

his elbow back . . . to prevent [Roscoe] from maintaining that

grip on his wrist and elbow."

Heredia's perspective of this initial arrest differed.

When he was first thrown against the car, he "thought it might

have been [his friend]" who did it. Because of this, he

"immediately spun around to see who had just . . . thrown [him]

into the vehicle," but when he realized it was an officer, he

"immediately showed [the officer his] hands." The video also shows

Heredia quickly turning around and then putting his hands in the

air, one of which is holding his cell phone. Heredia testified

that once he showed his hands in submission, he "thought [Roscoe]

was just going to spin [him] around" again.

In the video, after Heredia puts his hands up, Roscoe

grabs Heredia by the waist and throws him to the ground. Roscoe

described this act as a takedown, whereby both Roscoe and Heredia

ended up on the ground. Roscoe testified that he did this by

- 7 - "lock[ing his] arms around [Heredia's] waist and . . . arch[ing

his] hips." Heredia described this takedown as Roscoe "pick[ing]

[him] up" and "slamm[ing] [him] off [his] head on the pavement."

Heredia felt blood dripping onto his face. Heredia testified that

after he hit his head, the impact "knocked [him] kind of out of

consciousness and [he was] going in and out at this point." After

the takedown, Heredia believed that the officers were not trying

to arrest him and instead wanted to hurt him.

Roscoe testified that he was then able to immediately

get on top of Heredia. Other officers also quickly surrounded

Heredia. Roscoe testified that another member of Heredia's group

then approached and pushed him, knocking him off balance. Roscoe

stepped away from Heredia to push that person back and try to

handcuff them.

3. Punches to Heredia's Head

Heredia testified that the next thing he remembered

after the takedown was being on the ground on his side, with one

arm underneath him holding his cell phone, and Stewart on top of

him. At this time, other members of the group were physically

involved with the officers. Stewart testified that she attempted

to gain control of Heredia's legs, but Heredia kicked her in the

chest and caused her "to fall off balance." Heredia can be seen

in the video using both of his feet to push against or kick Stewart

- 8 - in her chest. Heredia described this action as trying to use his

feet to "lightly push[]" Stewart off of him.

While other officers were engaged with the rest of the

group, Stewart remained on the ground with Heredia. In the video,

Heredia can be seen grabbing Stewart by her hair bun with his left

hand, while he is lying on the ground on his right side, and she

is on top of him. Heredia testified that he grabbed Stewart by

her hair with one hand to "get [her] off [him]" and held onto her

hair for "a little over a second . . . at the most." Heredia also

testified that while her hair was in one of his hands, his phone

remained in the other.

Stewart testified that when she attempted to arrest

Heredia, "he reached up and grabbed [her] hair and brought [her]

head down to the ground and started punching [her] in the face."

She said she threw two to three punches at Heredia in response.4

Stewart testified that she was also screaming for Heredia to get

off of her and to stop hitting her. Roscoe testified that he heard

4 The video only shows about a second of Heredia holding onto Stewart's hair before panning to the rest of the group; it does not show when he released her hair or any punches or hits exchanged between the two. Mateo testified that although he could see what was happening, he did not see Stewart or Heredia punch each other. Roscoe's report stated that he saw Heredia punch Stewart in the face at least two times. But Heredia testified that he never punched Stewart or pinned her head or face to the ground. Valley also testified that he never saw Heredia punch any of the officers. Based on the conflicting testimony, a reasonable juror could have found that Heredia did not punch Stewart.

- 9 - Stewart yell out, and he "could hear the stress in her voice."5

Roscoe then dropped his handcuffs and ran over to Stewart and

Heredia.

The parties agree that Roscoe approached Heredia from

above and behind.6 Heredia testified that "immediately after" he

let go of Stewart, Roscoe "punch[ed him] in the head." Roscoe

described these hits as "hard hand techniques" or punches on the

back of Heredia's head and face. Heredia testified that he had

his phone in one of his hands up to that point, but after Roscoe

started punching him "it went flying somewhere."7 Mateo saw Roscoe

punch Heredia in the head "more than . . . seven or eight times."

Roscoe testified that the purpose of these punches was

"to make [Heredia] stop what he's doing with his hands and cover

his face." Roscoe also testified that there was a time where

Heredia "wasn't resisting, that he had his arms out, and [Roscoe]

continued to punch." When Heredia can next be seen in the video,

Roscoe is on top of him and repeatedly punching him in the head.

5 At this time, Roscoe and Stewart were in an intimate romantic

relationship. 6 Stewart agreed that Roscoe then came back over and began "administering punches." However, she testified that she could not see his exact position because Heredia was holding her hair so that she was faced towards the ground. 7 Heredia noted where in the video he believed you could see his phone in his right hand; around this time in the video, there does appear to be a rectangular object in his hand.

- 10 - Stewart can be seen in a portion of the video, but it is unclear

whether Heredia is still holding onto her; during at least some of

the punches, Heredia's hands can be clearly seen not holding onto

Stewart.

Roscoe stopped punching Heredia when Joshua came over

and punched Roscoe. In response, Roscoe turned his attention to

Joshua. Heredia was then "able to get up." Stewart also testified

that after Roscoe was pulled away from Heredia, she was able to

stand up and observed Heredia standing. Valley testified that

after he observed officers punching Heredia, when Heredia was able

to stand up, Valley told him to run.

4. Use of Taser Against Heredia

Heredia can then be seen attempting to move away from

the officers. Stewart, joined by Nocella who had just arrived on

the scene, tried to arrest him. Heredia was then pinned against

a car by the officers. In the video, Stewart can be seen continuing

to attempt to arrest Heredia, pushing him against a car with

Nocella's help. Heredia testified that, during the struggle,

Nocella "knee[d] [him] in the ribs or various areas in [his] body,"

which was consistent with Nocella's testimony and the video.

Roscoe testified that once he saw Stewart and Nocella

trying to arrest Heredia, he unsuccessfully attempted to use his

taser on Heredia. Stewart testified that she was instead shot by

the taser in her left hand; in the video, Stewart appears to have

- 11 - a physical reaction to the taser after its deployment. Heredia

can be seen in the video continuing to struggle with the two

officers against the vehicle when Roscoe first deploys his taser.

In the video, Nocella then takes Heredia to the ground.

The video again pans away from Heredia, but a taser can be heard

deploying in the background. Roscoe testified that he had again

fired his taser at Heredia when Heredia was on the ground with

Nocella. Heredia testified that he was telling the officers that

he was trying to put his hand behind his back when the taser was

deployed for the second time.

When Heredia can next be seen in the video, approximately

fifteen seconds after initially being taken to the ground by

Nocella, he is lying on the ground on his stomach with one hand

behind his back and is surrounded by several officers, including

one with a dog. Heredia testified that "[his] arm [was] kind of

stuck up against the curb and . . . [he] couldn't really move it."

In the video, officers can be heard repeatedly telling Heredia to

put his hands behind his back. In response, Heredia told the

officers that he was trying to do so. After a couple of seconds

of back and forth, officers can be seen putting handcuffs on

5. Removal of Taser Prongs

During this portion of the video, Roscoe can be seen in

the background holding his taser with the wires extending from his

- 12 - taser to Heredia's back. Heredia testified that after he was

tasered, the prongs of the taser were "ripped out of [his] back."

Heredia believed that Roscoe was the officer who took the prongs

out.

The last Heredia is seen on the video, he is being lifted

onto his feet by officers and escorted away.

6. Injuries Sustained

Roscoe was taken to the hospital in an ambulance and

described his injuries as a concussion, cervical strain of the

neck, and minor scrapes and cuts. He described Heredia's injuries

as merely minor cuts and scrapes to the face. Roscoe also

testified at trial that "[i]f this exact scenario played out

again," he would respond in the same way.

Stewart was also taken by ambulance to the hospital,

where she told staff that she received multiple blows to the head.

In a report, Stewart also stated that she sustained a concussion,

bruises, scratches, and whiplash. A photo of Stewart at the end

of the night did not show any visible marks or bleeding on her

face. Although Valley had continued to speak with and record the

officers after the incident, he testified that he did not see any

visible injuries on Stewart. Stewart also reported that Heredia

sustained scratches based on his booking photo.

In contrast with the officers' testimony, Heredia

testified that he had welts on his head and a cut on his nose, he

- 13 - was bleeding from his face or head, and he could feel blood

saturating the back of his shirt from having the taser prongs

ripped out. Valley also testified that Heredia's clothes had been

ripped and that he was bleeding when arrested. Heredia did not

receive medical attention at the scene, despite telling the

officers that he was hurt. He also did not go to the hospital.

Photographs of Heredia from several days after the incident showed

that his knuckles and tops of his hands did not have any markings

or injuries. He had two black eyes, which were swollen, and a cut

on his nose. Injuries could also be seen where the taser prongs

were removed from Heredia's back.

7. Criminal Charges

After the incident, Heredia was charged with attempted

murder for allegedly punching Stewart in the head, based on the

officers' reports and statements. He was also charged with several

other felony and misdemeanor counts. Ultimately, Heredia pled

guilty to one count of felony riot, one count of misdemeanor

disorderly conduct,8 two counts of misdemeanor resisting arrest

for his struggles with Roscoe and Nocella, and one count of felony

resisting arrest for his struggle with Stewart. Heredia testified

8 AlthoughHeredia's guilty plea to the misdemeanor disorderly conduct was not included in the appellate record, the parties and the court repeatedly referred to the plea at trial. Because it does not change the outcome of our analysis (see Section II.A below), we assume, consistent with the record, that Heredia pled guilty to misdemeanor disorderly conduct.

- 14 - that, at his plea colloquy, he made clear that he was not admitting

to punching Stewart; the plea was ultimately accepted by the court

because the punch was not a necessary element of the offense.

B. Defendants' Expert Testimony

At trial, the defendants called Eric Daigle as an expert.

Daigle owns a law firm focused on "law enforcement operations and

corrections operations and the security industry." Daigle opined

that the force used by each officer "was necessary based on the

facts and circumstances that they faced[,] and it was in line with

department policy and industry standards applicable to use of

force." Specifically, he testified that the takedown used by

Roscoe was effective and would limit injury because Roscoe wrapped

his arms around Heredia and fell in such a way that Heredia would

fall on top of Roscoe. As to the "hard hand techniques" or punches

used by Roscoe, Daigle opined that those too were necessary "based

on the fact that Detective Stewart was kicked, that the bun of her

hair was grabbed, and her head was slammed down to the ground and

that there was [sic] punches that . . . was [sic] received by

Detective Stewart at that time."

On cross-examination, Daigle testified that in forming

his opinions he watched the video and reviewed testimony and

evidence; to the extent the video was not clear at certain times,

he primarily relied on the officers' version of events to analyze

their use of force. Daigle also testified that his review of the

- 15 - evidence led him to conclude that Heredia was actively resisting

arrest prior to the initial takedown but that the jury may have a

different interpretation that leads them to a different

conclusion. Further, Daigle testified that if Heredia was not

actively kicking, pulling the hair of, or punching Stewart, it

would be "inappropriate" for Roscoe to have punched Heredia.

Similarly, he testified that if Heredia went "limp" while Roscoe

was punching him, it would not be appropriate for Roscoe to

continue doing so.

C. Motions Following the Close of Evidence

Prior to closing arguments, defendants moved for

directed verdict as to all four officers in relation to all claims.

The court granted JMOL as to Roscoe, Stewart, and Harrington on

the medical care claims and as to Nocella and Harrington on the

fabrication of evidence claims. The district court "reserv[ed]

judgment" as to the remaining claims, allowing the failure to

provide medical care claim against Nocella, the fabrication of

evidence claims against Stewart and Roscoe, and the excessive force

claims against all four defendants to go to the jury.

D. Jury Verdict

The jury found in favor of Heredia on the excessive force

claim against Roscoe and awarded Heredia $1 in nominal damages and

- 16 - $2,000 in punitive damages. The jury found in favor of the

defendants on all other claims.

E. Post-trial Motions

After the verdict was rendered, the district court asked

the parties to file post-trial briefs on the reserved JMOL motion,

including argument on the sufficiency of the evidence to support

a punitive damages award. Roscoe also renewed his motion under

Rules 50(a) and 50(b) of the Federal Rules of Civil Procedure "with

regard to moving for judgment on two grounds: Number one,

insufficient evidence to support the claim as well as the punitive

damage claim; and, secondly, the application of qualified immunity

by the [c]ourt." He also moved for a new trial or to alter or

amend the judgment under Rule 59.9

In his post-trial brief, Roscoe asked the court to grant

JMOL in his favor on the excessive force claim or, in the

alternative, remit the jury's award of punitive damages. Roscoe

argued that his use of force was objectively reasonable under the

circumstances. Roscoe also argued that, even if the force used

was excessive, he was entitled to qualified immunity. Lastly, in

In his written briefing and on appeal before this court, 9

Roscoe only refers to Rule 59 in request of "a remittitur of punitive damages." The only reference to a request for a new trial is in passing below; there is no developed argument related to a motion for a new trial request either before the district court or before us now on appeal. Thus, our review is limited to the motion for JMOL and for remittitur of the punitive damages.

- 17 - the alternative, Roscoe argued that the judgment should be altered

to eliminate the award of punitive damages "because there is no

evidence that [he] acted with evil motive or evil intent" and

"there was no evidence that [his] conduct was the sort that called

for deterrence and punishment over and above that provided by

compensatory damages."

In response, Heredia argued that "[t]he [j]ury had

substantial evidence before it to conclude that the force Roscoe

used was objectively unreasonable in light of the circumstances

confronting him." Further, Roscoe was not entitled to qualified

immunity because "no reasonable officer could presume that the

force used in those circumstances was appropriate." Lastly,

Heredia argued that "the [j]ury could have found that . . .

[Roscoe] did not care that the force was excessive and did it

solely to punish [Heredia] rather than lawfully effect his arrest,"

and therefore the punitive damages were appropriate.

On March 14, 2023, the district court denied the motions

for JMOL and for remittitur in a text order, stating, "I deny the

motion for the reasons set forth in the plaintiff's objection."

On March 17, 2023, the judgment was entered against Roscoe on the

excessive force claim and reflected the nominal and punitive

damages that had been awarded to Heredia.

On April 13, 2023, Roscoe filed a notice of appeal as to

the entry of judgment against him.

- 18 - II. Discussion

We review the denial of the motion for JMOL and the

denial of the motion for remittitur in turn.

A. Motion for Judgment as a Matter of Law

On appeal, Roscoe argues that we should reverse the

district court's denial of his motion for JMOL because he believes

the trial evidence "overwhelmingly" favors him under the analysis

established in Graham v. Connor, 490 U.S. 386 (1989), and so his

use of force was reasonable. See id. at 396. And, even if Roscoe

violated Heredia's constitutional rights, Roscoe argues that an

officer in his position would not have understood that his use of

force in these circumstances was excessive; thus, qualified

immunity should apply. For the reasons that follow, we disagree

on both points.

1. Standard of Review

We review the denial of a motion for JMOL "de novo,

examining the evidence and reasonable inferences therefrom in the

light most favorable to the nonmovant." Jones, 780 F.3d at 487

(quoting Estate of Berganzo-Colón ex rel. Berganzo v. Ambush, 704

F.3d 33, 38 (1st Cir. 2013)). "This standard is demanding, and 'a

party seeking to overturn a jury verdict faces an uphill battle.'"

Id. (quoting Estate of Berganzo-Colón, 704 F.3d at 38). We "will

uphold the verdict unless the facts and inferences, viewed in the

light most favorable to the verdict, 'point so strongly and

- 19 - overwhelmingly in favor of the movant that a reasonable jury could

not have returned the verdict.'" Acevedo-Diaz v. Aponte, 1 F.3d

62, 66 (1st Cir. 1993) (cleaned up) (quoting Hendricks & Assocs.,

Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir. 1991)).

2. Constitutional Violation

Heredia asserts that Roscoe used excessive force in at

least four instances: (1) when he performed the initial takedown

on Heredia, (2) when he repeatedly punched Heredia in the head

while Heredia was on the ground, (3) when he tasered Heredia for

the second time while he was on the ground and surrendering, and

(4) when he removed the taser prongs from Heredia's back. To

affirm the denial of JMOL, we need only determine that, taking the

facts in the light most favorable to Heredia, a reasonable jury

could have found excessive force in any one of these instances.

Because further analysis is unnecessary, we focus our inquiry on

the first alleged instance of excessive force: Roscoe's initial

takedown of Heredia.

We first briefly summarize the facts a jury could have

found, resolving all factual disputes in favor of the jury verdict.

From the evidence before it, the jury could have found the

following: Heredia was yelling at officers who were giving him

lawful orders and at his friends, several of whom were encouraging

him to leave the area. At some point, without warning, Roscoe

grabbed Heredia from behind in an attempt to arrest him and put

- 20 - him in an arm bar. Heredia, thinking he was being grabbed by a

friend, struggled against Roscoe until he was able to turn around.

Once facing Roscoe and realizing that an officer had grabbed him,

Heredia raised both hands with his palms faced outward,

surrendering to arrest. At this point, after Heredia had

submitted, Roscoe increased his use of force and performed a

takedown, which involved bringing Heredia onto the ground and

hitting Heredia's head on the pavement.

In light of these facts, we evaluate whether this

takedown was an excessive use of force under the circumstances.

To establish an excessive force claim under the Fourth

Amendment, "a plaintiff must show that the defendant officer

employed force that was unreasonable under the circumstances."

Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007). The

reasonableness of the use of force "must be judged from the

perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight." Id. (quoting Graham, 490 U.S. at

396). This is an objective inquiry, "to be determined 'in light

of the facts and circumstances confronting the officers, without

regard to their underlying intent or motivation.'" Id. (cleaned

up) (quoting Graham, 490 U.S. at 397).

"There must be 'careful attention to the facts and

circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat

- 21 - to the safety of the officers or others, and whether [they are]

actively resisting arrest or attempting to evade arrest by

flight.'" Id. (quoting Graham, 490 U.S. at 396). Roscoe argues

that each of these factors described in Graham weigh in his favor.

As to the first factor -- the severity of the crime at

issue -- Roscoe argues that because Heredia pled guilty to several

felony and misdemeanor level offenses related to this incident

generally, this factor must weigh in his favor. Roscoe does not

focus on any particular instance of use of force during the

incident, but rather the situation as a whole. However, this court

has favored a segmented approach in reviewing use of force claims

when appropriate, particularly when the circumstances between uses

of force change. See Lachance v. Town of Charlton, 990 F.3d 14,

24-25 (1st Cir. 2021). "After all, if the reasonableness of an

officer's use of force depends on the information available to

that officer under a particular set of circumstances, which appear

to have meaningfully changed between one use of force and another,

then it only makes sense to consider those uses separately." Id.

at 25-26. Here, Roscoe does not isolate any of Heredia's conduct

prior to the takedown as the basis for any of the charges he pled

to. In reviewing the charges Heredia pled guilty to, the only

charges that could reasonably be based on Heredia's behavior prior

to the takedown were the misdemeanor charges of disorderly conduct

and resisting arrest "when Chasrick Heredia struggled with Officer

- 22 - Roscoe as he attempted to handcuff him."10 Thus, although resisting

arrest, in particular, is not a slight infraction, the severity of

the crimes at issue is not so significantly weighted in Roscoe's

favor as he contends.

When faced with the second Graham factor -- whether the

suspect poses an immediate threat to the safety of the officers or

others -- Roscoe asserts that this again weighs in his favor

because Heredia held Stewart's hair and Stewart was screaming for

help. However, those alleged acts again occurred after the

takedown at issue and so are irrelevant to our analysis of whether

the takedown constituted an excessive use of force. Roscoe says

nothing about the risk to officers or others before he initially

attempted to arrest Heredia or in the moments before the takedown

occurred. In fact, Roscoe specifically testified that prior to

the initial attempted arrest, Heredia was not attempting to attack

anyone. Even so, a risk to others was not entirely absent. The

members of the group were pushing and grabbing each other on or

near a busy public street, and Heredia initially resisted arrest.

However, Roscoe does not identify any threat after Heredia turned

around, realized it was an officer who pushed him against the

10 Heredia did not challenge that the officers had probable cause to arrest him prior to this specific count of resisting arrest. However, Roscoe has not developed any argument as to what other crimes Heredia's conduct amounted to prior to the attempted arrest and how "severe" those crimes would be to justify the use of force.

- 23 - vehicle, and raised his hands in submission. For these reasons,

Roscoe has simply not pointed to an "immediate threat" that

justified the takedown.

Roscoe's argument on the third Graham factor -- whether

an arrestee is actively resisting arrest or attempting to evade

arrest by flight -- suffers from the same deficiencies that his

argument on the first factor does. Roscoe again relies on

Heredia's guilty plea to three counts of resisting arrest to argue

that this factor indisputably weighs in his favor. But Roscoe

does not identify which parts of Heredia's conduct, if any, might

have justified the takedown. And Roscoe again has not addressed

Heredia's testimony that he was no longer actively resisting arrest

at the time of the takedown and, instead, was raising his hands in

surrender.

Thus, where the severity of the crime was not so

substantial, the threat involved was no longer "immediate," and

Heredia was not "actively" resisting arrest, the Graham factors

collectively weigh in favor of finding that Roscoe's use of force

in effectuating the takedown was unreasonable. And Roscoe has not

presented any particularized argument to the contrary with respect

to the takedown.

Surely, much like the situation presented in Jennings,

the police here faced a challenging situation. See 499 F.3d at

11. Like the plaintiff there, Heredia was indisputably challenging

- 24 - authority and, at times, resisting arrest. See id. Thus, we

similarly recognize that "[i]n making an arrest, a police officer

has 'the right to use some degree of physical coercion or threat

thereof to effect it.'" Id. (quoting Graham, 490 U.S. at 396).

However, again like in Jennings, Heredia focuses not just on the

use of force, but the increased use of force in performing the

takedown after he had already put both hands up and submitted to

officers. See id. at 11-12.

In addition to his broader Graham argument, Roscoe

argues, as another basis for reversal, that Heredia did not present

any evidence regarding the reasonableness of Roscoe's conduct and

points specifically to the lack of expert testimony in Heredia's

favor. However, he ignores our precedent, which does not require

expert testimony in every circumstance. Instead, "evidence may be

in the form of 'expert testimony, lay testimony, or other

evidence,' as long as 'the jury could evaluate the reasonableness

of [the officer's] conduct.'" Raiche v. Pietroski, 623 F.3d 30,

36 (1st Cir. 2010) (quoting Jennings, 499 F.3d at 15 n.15). In

particular, "case[s] involving force applied with bare hands, d[o]

not [necessarily] require expert testimony to establish whether

the force used was reasonable." Jennings, 499 F.3d at 15. "[T]his

case involves the common sense proposition that it is not

reasonable for police officers to increase their use of physical

- 25 - force after an arrestee who has been resisting arrest stops

resisting" and puts his hands up in submission. See id.

Indeed, a jury could have used common sense to conclude

that throwing Heredia to the ground and causing his head to hit

the pavement after he raised his hands and submitted to arrest was

unreasonable. See Raiche, 623 F.3d at 37 n.2. But Heredia also

elicited testimony on cross-examination of defendants' expert

witness that there was an interpretation of the facts here that

could lead to the conclusion that the force used by Roscoe was

excessive. For these reasons, the jury had sufficient evidence

before it to evaluate the reasonableness of Roscoe's conduct.

Thus, a reasonable jury could conclude from the evidence

that Roscoe unreasonably escalated his use of force in performing

the takedown after Heredia had stopped resisting arrest and that

this use of excessive force violated Heredia's Fourth Amendment

rights.

3. Qualified Immunity

Roscoe next argues that, even if Heredia's

constitutional rights were violated, he is shielded from liability

under the doctrine of qualified immunity.

"[T]he availability of qualified immunity after a trial

is a legal question informed by the jury's findings of fact, but

ultimately committed to the court's judgment." Raiche, 623 F.3d

at 35 (quoting Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st

- 26 - Cir. 2003)). "[T]o determine whether qualified immunity applies

in a given case, we must determine: (1) whether a public official

has violated a plaintiff's constitutionally protected right; and

(2) whether the particular right that the official has violated

was clearly established at the time of the violation." Id.

"Clearly established means that, at the time of the officer's

conduct, the law was sufficiently clear that every reasonable

official would understand that what they are doing is unlawful."

Segrain v. Duffy, 118 F.4th 45, 57 (1st Cir. 2024) (cleaned up)

(quoting District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)).

In the Fourth Amendment context, "[a]lthough excessive force is by

definition unreasonable force, 'reasonable people sometimes make

mistaken judgments, and a reasonable officer sometimes may use

unreasonable force.'" Mlodzinski v. Lewis, 648 F.3d 24, 33 (1st

Cir. 2011) (quoting Morelli v. Webster, 552 F.3d 12, 24 (1st Cir.

2009)).

We have already determined above that a jury could find

from the evidence that Roscoe violated Heredia's constitutional

rights under the Fourth Amendment by using excessive force in

performing the takedown. Thus, we focus the remainder of our

qualified immunity analysis on the second prong: was the right to

be free from an increased use of force, after the arrestee had

submitted to arrest and put up his hands, clearly established at

the time of the incident?

- 27 - "[A] violation is clear 'either if courts have

previously ruled that materially similar conduct was

unconstitutional,' or if the conduct was 'such an obvious violation

of the Fourth Amendment's general prohibition on unreasonable

force that a reasonable officer would not have required prior case

law on point to be on notice that his conduct was unlawful.'"

Raiche, 623 F.3d at 38 (quoting Jennings, 499 F.3d at 16-17).

Here, we ask whether precedent put Roscoe on notice that it was

unconstitutional for him to effectuate the takedown or whether the

takedown was such an obvious violation of the Fourth Amendment

that prior case law was not required given the other surrounding

circumstances.

Our precedent has clearly established that the conduct

here was a violation of the Fourth Amendment. In Jennings,11 after

finding that the constitutional violation there was obvious, this

court noted other cases concluding that "the law was clearly

11 Roscoe argues that Heredia "did not set forth any precedent"

upon which the district court could have relied in denying qualified immunity. However, Heredia cited to Jennings both in his filing below and before us. Essentially, what Roscoe argues instead is that, viewing the facts in the light most favorable to him, Jennings does not apply. This is not how we conduct our review; taking the facts in the light most favorable to the jury verdict, Jennings clearly has applicability here. Further, we are not limited to the cases cited by the parties. Barton v. Clancy, 632 F.3d 9, 22 (1st Cir. 2011) ("In conducting a qualified immunity analysis, a court should 'use its full knowledge of its own and other relevant precedents.'" (cleaned up) (quoting Elder v. Holloway, 510 U.S. 510, 516 (1994))).

- 28 - established against the use of increased force on a suspect no

longer offering resistance because 'the unlawfulness of the

conduct is readily apparent even without clarifying case[ ]law.'"

499 F.3d at 17 (quoting Smith v. Mattox, 127 F.3d 1416, 1420 (11th

Cir. 1997)). This conclusion was reiterated in Raiche, where this

court held that "[a] reasonable officer with training on the Use

of Force Continuum would not have needed prior case law on point

to recognize that it is unconstitutional to tackle a person who

has already stopped in response to the officer's command to stop

and who presents no indications of dangerousness." 623 F.3d at

39. Thus, under Jennings and Raiche, we find that it was clearly

established that it is unconstitutional for an officer to use a

takedown maneuver to take an arrestee to the ground, hitting the

arrestee's head on the pavement, after the arrestee had already

shown his hands and submitted to arrest.12

Every reasonable officer would understand that this

conduct was unlawful based on our prior case law. See Segrain,

118 F.4th at 57. This case has significant overlap with those

12Roscoe cites only one, nonprecedential in-circuit case to rebut the argument that the takedown constituted a clearly established violation of the Fourth Amendment. That case involved a significantly different factual scenario than the one at present. See Therrien v. Town of Jay, 483 F. Supp. 2d 19 (D. Me. 2007). In Therrien, an officer effectuated a takedown only after an extended chase of the arrestee, during which the arrestee once stopped for officers and then again drove off. Id. at 26. The officer there was also alone when he decided to effectuate the takedown. Id. Thus, Therrien does not put our prior case law in question.

- 29 - cases where this court has previously found Fourth Amendment

violations and where officers were not protected by qualified

immunity. A jury could find: that Heredia was not given any

warning before he was initially grabbed by an officer, see Ciolino

v. Gikas, 861 F.3d 296, 304 (1st Cir. 2017) (plaintiff "was not

given a chance to submit peacefully to arrest before significant

force was used to subdue him"); that prior to Roscoe grabbing him,

Heredia did not present an immediate threat to officers, see

Morelli v. Webster, 552 F.3d 12, 24 (1st Cir. 2009) (describing

"the absence of any evidence of either dangerousness or attempted

flight[] and the presence of a cadre of other officers at the

scene" as factors that tip against the reasonableness of the use

of force); that after initially resisting, Heredia ultimately

submitted to arrest and Roscoe increased the use of force, see

Jennings, 499 F.3d at 19 (finding that "an objectively reasonable

officer in [defendant's] circumstances would not have believed

that it was lawful to increase the amount of force that he used

after [plaintiff] ceased resisting and stated that [defendant] was

hurting him"); and that Roscoe used significant force in throwing

Heredia on his head onto the pavement, see Raiche, 623 F.3d at 39

("[I]t is unconstitutional to tackle a person who has already

stopped in response to the officer's command to stop and who

presents no indications of dangerousness."). Under these

circumstances, in view of our prior case law, every reasonable

- 30 - officer would have known this conduct violated Heredia's

constitutional rights.

Accordingly, we affirm the denial of Roscoe's motion for

JMOL on Heredia's § 1983 excessive force claim.

B. Motion for Remittitur

In the alternative, Roscoe argues that we should remit

the punitive damages award. He argues that there was no evidence

that he harbored any malice or acted with reckless indifference to

Heredia's constitutional rights, and, therefore, the punitive

damages award cannot be justified. Essentially, Roscoe asks the

court to remit the punitive damages award to zero.

"A jury may levy punitive damages in a section 1983

action when a defendant's conduct is 'shown to be motivated by

evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.'"

Casillas-Díaz v. Palau, 463 F.3d 77, 84 (1st Cir. 2006) (quoting

Smith v. Wade, 461 U.S. 30, 56 (1983)). "[P]unitive damages are

reserved for instances where the defendant's conduct is of the

sort that calls for deterrence and punishment over and above that

provided by compensatory damages." Davet v. Maccarone, 973 F.2d

22, 27 (1st Cir. 1992) (quoting Hernández-Tirado v. Artau, 874

F.2d 866, 869 (1st Cir. 1989)).

We need not belabor the resolution of this issue. On

the evidence recounted above, a jury could find that Roscoe acted

- 31 - with a reckless indifference to Heredia's Fourth Amendment rights.

A jury could have found that, with other officers in the vicinity,

Roscoe decided to throw Heredia to the ground, hitting his head,

after Heredia had submitted to arrest. Roscoe also testified that

he did not think Heredia presented an immediate risk to the

officers at the time Roscoe initially grabbed him. The cases cited

above also put Roscoe and officers on notice that such actions

risk violating the law. See Méndez-Matos v. Mun. of Guaynabo, 557

F.3d 36, 49 (1st Cir. 2009) ("The existence of an extensive body

of federal law on a particular issue also may suggest that the

defendant must have been aware of the risk of violating that

law."). Given these facts and the other surrounding circumstances,

a jury could find that punitive damages were appropriate here.

As to the extent of a punitive damages award, "[t]he

review of a preserved challenge to a punitive damages award 'is de

novo, and the award will stand unless we find it certain that the

amount in question exceeds that necessary to punish and deter the

alleged misconduct.'" Acevedo-Garcia, 351 F.3d at 566 (quoting

Romano v. U-Haul Int'l, 233 F.3d 655, 672 (1st Cir. 2000)).

"Consequently, defendants bear the onerous burden of proving to

our satisfaction that the damage award was 'grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand.'" Id.

- 32 - (quoting Correa v. Hosp. San Francisco, 69 F.3d 1184, 1197 (1st

Cir. 1995)).

Roscoe has not met his burden here. Although he

presented argument as to whether punitive damages were appropriate

at all, which we have rejected, he did not present any argument as

to why, if such damages are generally appropriate, the $2,000

awarded here was excessive. Thus, any such argument is waived.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It

is not enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel's work, create the

ossature for the argument, and put flesh on its bones.").

For these reasons, we affirm the denial of the motion

for remittitur.

III. Conclusion

For the foregoing reasons, we affirm the district

court's denials of the motions for JMOL and remittitur.

- 33 -