Nelson v. City of Albuquerque
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Opinion
James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting for the Judgment on the Jury Verdict to Stand; to Find Defendants Have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants, filed July 26, 2012 (Doc. 201)("Motion"). The Court held a hearing on June 14, 2013. The primary issues are: (i) whether the Defendants' Motion was timely under rule 50(b) of the Federal Rules of Civil Procedure ; (ii) whether the Court may overrule a prior judgment as a matter of law on a rule 50(b) motion; (iii) whether the Defendants properly preserved their qualified immunity argument in their rule 50(b) motion; and (iv) whether the Court may alter *1054the prior judgment in the Plaintiff's favor by construing the Defendants' rule 50(b) motion as a rule 59(e) motion. The Court concludes that: (i) the Defendants' Motion was timely; (ii) rule 50(b) is an improper vehicle for overturning a judgment as a matter of law; (iii) the Defendants' did not preserve their qualified immunity argument-regarding whether the law was clearly established-under rule 50(b) ; and (iv) the Court may construe the Defendants' rule 50(b) motion as a rule 59(e) motion. Because it can construe the Defendants' rule 50(b) motion as a rule 59(e) motion to alter or amend, it will alter the prior judgment rendered under rule 50(b) in the Plaintiff's favor. Although the facts of this case are disquieting, drawing all inferences in the Defendants' favor, a reasonable jury could have found for the Defendants. Furthermore, because there are no sufficiently analogous cases from the United States Court of Appeals for the Tenth Circuit or the Supreme Court of the United States of America, the Defendants are entitled to qualified immunity. The Court, accordingly, grants the Motion in part and denies it in part.
FACTUAL BACKGROUND
On the morning of March 4, 2009, Tony Nelson, a sixty-two year old American Indian, drank some beers with his friend, Jeffery Patterson, in Patterson's home. See Official Transcript of Trial Proceedings before the Court at 19:12-17 (dated October 24, 2011), filed June 29, 2012 (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, Nelson). After running low on beer, the two argued over whether they should buy more. See Trial Tr. at 32:14-19 (Nelson). The argument became heated and Patterson left his home to call the police. See Trial Tr. at 33:18-19 (Nelson). Patterson returned home, they argued some more, and Patterson left again. See Trial Tr. at 34:10-12 (Nelson). The last thing Nelson remembers from March 4, 2009, was being "dead drunk" and lying down to get some sleep. Trial Tr. at 34:16-35:8 (Hawk, Nelson). See id. at 33:18-19; id. at 34:16-19 (Nelson).
Patterson called the police again and this time reported that Nelson had "threatened [him] with [a] rifle ... and a knife." Trial Tr. at 134:16-22 (Hawk, Johnston).1 Subsequently, forty-seven police personnel, which included seventeen SWAT police team members and eight K-9 officers, arrived at Patterson's home. See Trial Tr. at 141:19-21; id. at 142:8; id. at 234:15-16 (taken October 25, 2012), filed June 29, 2012 (Doc. 190)(Hawk, Johnston). Someone-presumably Patterson-told the police that Nelson had been drinking, and that the rifle with which Nelson had threatened Patterson was either a pellet rifle2 or a "308 bolt-action rifle." Trial Tr. at 131:15-17 (Johnston). See id. at 298:9-10 (Hawk, Johnston). A 308 bolt-action rifle is a "large caliber rifle" that is "devastating in close range and at distance." Trial Tr. at 77:11-12 (Brown); id. at 243:2 (Johnston). When the police officers arrived at the scene, they did not clarify whether Nelson had threatened Patterson with a pellet rifle or a 308 bolt-action rifle. See Trial Tr. at 132:6-11 (Hawk, Johnston); id. at 243:14-20 (Griffin, Johnston).
The SWAT team arrived with a Bearcat-an armored police vehicle. See Trial Tr. at 84:16-19 (Brown); id. at 312:11-12 (Hawk, Hughes). At least two officers positioned *1055themselves on roofs nearby with sniper scopes and rifles, and other police personnel established a perimeter around the house with an officer stationed off each corner of it. See Trial Tr. at 78:7-79:5 (Brown, Hawk); id. at 83:8-18 (Brown, Hawk); id. at 144:13-20 (Hawk, Johnston); id. at 455:15-17 (Limon)(taken October 26, 2011), filed June 29, 2012 (Doc. 191). The property was almost entirely enclosed by an eight-foot-tall fence with razor wire at the top. See Trial Tr. at 150:6-151:19 (Hawk, Johnston).
After setting up a perimeter, Defendant Officer Armando Limon called out to Nelson, who was still in the house, to exit the home and walk towards the police team near the driveway. See Trial Tr. at 167:25-168:2 (Hawk, Johnston); id. at 169:4-10 (Hawk, Johnston); id. at 245:14-18 (Griffin, Johnston); id. at 456:11-16 (Hawk, Limon). The police team was positioned behind the Bearcat. See Trial Tr. at 152:3-5 (Johnston). After some time, Nelson appeared in the doorway and motioned for the officers to come toward him; Nelson had a knife in his hand, but at the time, the officers could not tell what Nelson was holding. See Trial Tr. at 172:3-9 (Johnston); id. at 350:3-10 (Hughes); id. at 457:20-23 (Limon). Officer Limon again ordered Nelson to come out, and to turn around. See Trial Tr. at 500:1-4 (Limon). Nelson went back into the house, however, and dropped the knife. Trial Tr. at 171:7-9 (Johnston); id. 172:17-18 (Johnston); id. at 350:12 (Hughes); id. at 457:5-17 (Hawk, Limon). Nelson then exited the house, walking slowly south towards the officers with his "[h]ands to his side." Trial Tr. at 98:16-17, 20 (Brown). See id. at 170:19-24 (Hawk, Johnston); id. at 352:12-13 (Hughes); id. at 460:14-15 (Limon). Nelson's hands were empty. See Trial Tr. at 105:19-106:5 (Brown, Hawk); id. at 297:5-9 (Hawk, Johnston). The officer in charge, Defendant Sergeant Robert Johnston did not see Nelson holding a rifle and thought it would be "hard to hide a rifle with the way [Nelson] was dressed." Trial Tr. at 171:10-14 (Hawk, Johnston). Although he had cleared Nelson's hands, the SWAT team sniper could not confirm whether Nelson had any weapon in his waistband and also observed that Nelson was "looking around" and "appeared to be attempting to identify the position of other officers around the perimeter, or possibly avenues of escape." Trial Tr. at 99:19-100:2 (Brown, Griffin). See id. at 99:12-14 (Brown, Griffin).
As Nelson walked down the driveway, the police ordered Nelson several times to raise his hands, but Nelson did not raise them. See Trial Tr. at 258:11-19 (Griffin, Johnston); id. at 495:23-24 (Limon). Officers also heard Nelson speaking or yelling as he approached, but could not understand him. See Trial Tr. at 291:15-18 (Hawk, Johnston); id. at 352:16-19 (Hughes).
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James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting for the Judgment on the Jury Verdict to Stand; to Find Defendants Have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants, filed July 26, 2012 (Doc. 201)("Motion"). The Court held a hearing on June 14, 2013. The primary issues are: (i) whether the Defendants' Motion was timely under rule 50(b) of the Federal Rules of Civil Procedure ; (ii) whether the Court may overrule a prior judgment as a matter of law on a rule 50(b) motion; (iii) whether the Defendants properly preserved their qualified immunity argument in their rule 50(b) motion; and (iv) whether the Court may alter *1054the prior judgment in the Plaintiff's favor by construing the Defendants' rule 50(b) motion as a rule 59(e) motion. The Court concludes that: (i) the Defendants' Motion was timely; (ii) rule 50(b) is an improper vehicle for overturning a judgment as a matter of law; (iii) the Defendants' did not preserve their qualified immunity argument-regarding whether the law was clearly established-under rule 50(b) ; and (iv) the Court may construe the Defendants' rule 50(b) motion as a rule 59(e) motion. Because it can construe the Defendants' rule 50(b) motion as a rule 59(e) motion to alter or amend, it will alter the prior judgment rendered under rule 50(b) in the Plaintiff's favor. Although the facts of this case are disquieting, drawing all inferences in the Defendants' favor, a reasonable jury could have found for the Defendants. Furthermore, because there are no sufficiently analogous cases from the United States Court of Appeals for the Tenth Circuit or the Supreme Court of the United States of America, the Defendants are entitled to qualified immunity. The Court, accordingly, grants the Motion in part and denies it in part.
FACTUAL BACKGROUND
On the morning of March 4, 2009, Tony Nelson, a sixty-two year old American Indian, drank some beers with his friend, Jeffery Patterson, in Patterson's home. See Official Transcript of Trial Proceedings before the Court at 19:12-17 (dated October 24, 2011), filed June 29, 2012 (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, Nelson). After running low on beer, the two argued over whether they should buy more. See Trial Tr. at 32:14-19 (Nelson). The argument became heated and Patterson left his home to call the police. See Trial Tr. at 33:18-19 (Nelson). Patterson returned home, they argued some more, and Patterson left again. See Trial Tr. at 34:10-12 (Nelson). The last thing Nelson remembers from March 4, 2009, was being "dead drunk" and lying down to get some sleep. Trial Tr. at 34:16-35:8 (Hawk, Nelson). See id. at 33:18-19; id. at 34:16-19 (Nelson).
Patterson called the police again and this time reported that Nelson had "threatened [him] with [a] rifle ... and a knife." Trial Tr. at 134:16-22 (Hawk, Johnston).1 Subsequently, forty-seven police personnel, which included seventeen SWAT police team members and eight K-9 officers, arrived at Patterson's home. See Trial Tr. at 141:19-21; id. at 142:8; id. at 234:15-16 (taken October 25, 2012), filed June 29, 2012 (Doc. 190)(Hawk, Johnston). Someone-presumably Patterson-told the police that Nelson had been drinking, and that the rifle with which Nelson had threatened Patterson was either a pellet rifle2 or a "308 bolt-action rifle." Trial Tr. at 131:15-17 (Johnston). See id. at 298:9-10 (Hawk, Johnston). A 308 bolt-action rifle is a "large caliber rifle" that is "devastating in close range and at distance." Trial Tr. at 77:11-12 (Brown); id. at 243:2 (Johnston). When the police officers arrived at the scene, they did not clarify whether Nelson had threatened Patterson with a pellet rifle or a 308 bolt-action rifle. See Trial Tr. at 132:6-11 (Hawk, Johnston); id. at 243:14-20 (Griffin, Johnston).
The SWAT team arrived with a Bearcat-an armored police vehicle. See Trial Tr. at 84:16-19 (Brown); id. at 312:11-12 (Hawk, Hughes). At least two officers positioned *1055themselves on roofs nearby with sniper scopes and rifles, and other police personnel established a perimeter around the house with an officer stationed off each corner of it. See Trial Tr. at 78:7-79:5 (Brown, Hawk); id. at 83:8-18 (Brown, Hawk); id. at 144:13-20 (Hawk, Johnston); id. at 455:15-17 (Limon)(taken October 26, 2011), filed June 29, 2012 (Doc. 191). The property was almost entirely enclosed by an eight-foot-tall fence with razor wire at the top. See Trial Tr. at 150:6-151:19 (Hawk, Johnston).
After setting up a perimeter, Defendant Officer Armando Limon called out to Nelson, who was still in the house, to exit the home and walk towards the police team near the driveway. See Trial Tr. at 167:25-168:2 (Hawk, Johnston); id. at 169:4-10 (Hawk, Johnston); id. at 245:14-18 (Griffin, Johnston); id. at 456:11-16 (Hawk, Limon). The police team was positioned behind the Bearcat. See Trial Tr. at 152:3-5 (Johnston). After some time, Nelson appeared in the doorway and motioned for the officers to come toward him; Nelson had a knife in his hand, but at the time, the officers could not tell what Nelson was holding. See Trial Tr. at 172:3-9 (Johnston); id. at 350:3-10 (Hughes); id. at 457:20-23 (Limon). Officer Limon again ordered Nelson to come out, and to turn around. See Trial Tr. at 500:1-4 (Limon). Nelson went back into the house, however, and dropped the knife. Trial Tr. at 171:7-9 (Johnston); id. 172:17-18 (Johnston); id. at 350:12 (Hughes); id. at 457:5-17 (Hawk, Limon). Nelson then exited the house, walking slowly south towards the officers with his "[h]ands to his side." Trial Tr. at 98:16-17, 20 (Brown). See id. at 170:19-24 (Hawk, Johnston); id. at 352:12-13 (Hughes); id. at 460:14-15 (Limon). Nelson's hands were empty. See Trial Tr. at 105:19-106:5 (Brown, Hawk); id. at 297:5-9 (Hawk, Johnston). The officer in charge, Defendant Sergeant Robert Johnston did not see Nelson holding a rifle and thought it would be "hard to hide a rifle with the way [Nelson] was dressed." Trial Tr. at 171:10-14 (Hawk, Johnston). Although he had cleared Nelson's hands, the SWAT team sniper could not confirm whether Nelson had any weapon in his waistband and also observed that Nelson was "looking around" and "appeared to be attempting to identify the position of other officers around the perimeter, or possibly avenues of escape." Trial Tr. at 99:19-100:2 (Brown, Griffin). See id. at 99:12-14 (Brown, Griffin).
As Nelson walked down the driveway, the police ordered Nelson several times to raise his hands, but Nelson did not raise them. See Trial Tr. at 258:11-19 (Griffin, Johnston); id. at 495:23-24 (Limon). Officers also heard Nelson speaking or yelling as he approached, but could not understand him. See Trial Tr. at 291:15-18 (Hawk, Johnston); id. at 352:16-19 (Hughes). Officer Limon, however, heard Nelson say: "Get the fuck out of here." Trial Tr. at 499:3 (Limon). After some time, Nelson stopped at the driveway's edge, about twenty feet from the officers. See Trial Tr. at 173:14-15 (Hawk, Johnston). He made a motion with his hands, which one officer interpreted as "go-away" and another interpreted as "come to me, come to me." Trial Tr. at 353:22-354:1 (Hughes); id. at 497:17-18 (Limon).
Nelson then made a motion to turn to his left, towards the north, away from the officers. Trial Tr. at 262:23-263:24 (Griffin, Johnston). Although Officer Limon had ordered Nelson to turn around when he made "initial contact with" Nelson, see Trial Tr. at 500:1-4 (Griffin, Limon), the officers interpreted Nelson's motion as an attempt to return to the house to retrieve weapons, and Johnston ordered his subordinate, Defendant Officer Daniel Hughes, to "deploy his weapon and '[b]ag him,' " Trial Tr. at 176:23-177:2 (Hawk, Johnston).
*1056See id. at 177:5-6 (Johnston); id. at 268:1-5 (Johnston)("[W]e were not going to let him go back in the house ... [b]ecause there w[ere] deadly weapons in the house."); id. at 321:19-22 (Hawk, Hughes). Officer Hughes "immediately" fired five "bean bag" rounds from a non-lethal, shotgun-style weapon. Trial Tr. at 354:19-23 (Hughes). See id. at 182:14 (Johnston). Johnston also fired a wooden-baton round from a similar weapon. See Trial Tr. at 185:21-22 (Johnston). Another officer launched a "flash bang" diversionary device to "overwhelm" and "disorient" Nelson. Trial Tr. at 182:15-24 (Hawk, Johnston).3 The officers fired their weapons from a non-lethal range. See Trial Tr. at 271:11-22 (Griffin, Johnston).
Afterwards-with Nelson's back toward the officers and without warning Nelson-Defendant Officer Scott Weimerskirch, a K-9 officer, released a police dog who bit Nelson on the left arm, drawing blood. See Tr. at 189:12-190:2 (Hawk, Johnston); id. at 393:12-16 (Hawk, Weimerskirch).4 Nelson staggered to a wrought-iron fence post, "trying to shake the dog off," and several officers approached Nelson with the dog still clinging to his left arm. Trial Tr. at 274:9-15 (Griffin, Johnston). See id. at 192:17-193:1 (Hawk, Johnston). Both of Nelson's hands were visible, and neither held a weapon. See Trial Tr. at 362:8-11 (Hughes); id. at 454:8-18 (Hawk, Limon). Officers ordered Nelson to let go of the fence, but he did not respond to that command. See Trial Tr. at 364:15-25 (Hughes).
Officer Limon fired his Taser at Nelson, but, after the Taser darts struck Nelson, Officers Hughes and Limon perceived "no change to [his] behavior.... He didn't look like ... he was being tased." Trial Tr. at 364:5-9 (Hughes). See id. at 451:1-11. Officer Limon heard his Taser make the sound it usually makes when operating effectively, however. See Trial Tr. at 452:17-20 (Hawk, Limon). Officer Hughes then fired his Taser at Nelson, and one of his Taser darts struck Nelson in the neck. See Tr. at 331:25-332:3; id. at 365:10-12 (Hawk, Hughes).5 Officer Hughes cycled6 his Taser six times delivering six shocks over a thirty-seven second period. See Trial Tr. at 336:11-13 (Hawk, Hughes); id. at 368:19-23 (Griffin, Hughes); Plaintiff's Exhibit 47 at 2, filed November 23, 2011 (Doc. 158-4). Officer Hughes explained that he shocked Nelson six times, because he "was still holding onto the fence and appeared to be fighting with the dog." Trial Tr. at 368:24-369:4 (Griffin, Hughes). After the sixth shock, Officer Hughes determined "we were not going to get any compliance from him more than we had," stopped shocking him, and grabbed Nelson's left hand. Trial Tr. at 370:9-11 (Hughes). Nelson was subsequently arrested and hospitalized. See Trial Tr. at 35:11-12 (Nelson); id. at 35:22-23 (Nelson); id. at 370:24 (Hughes). Nelson pled guilty to "aggravated assault with a deadly weapon," but the judge dismissed the charge after Nelson served his probation. Trial Tr. at 37:23-38:6 (Hawk, Nelson).
*1057PROCEDURAL BACKGROUND
On May 10, 2010, Nelson filed suit in the Second Judicial District Court, County of Bernalillo, State of New Mexico, asserting tort and civil rights violations by Defendants Bernalillo County, the City of Albuquerque, and Albuquerque police officers. See Complaint For Civil Rights Violations & Violation of the New Mexico Tort Claims Act at 1, filed June 8, 2010 (dated May 10, 2010)(Doc. 1-1)("State Complaint"). Nelson alleges, among other things, that: (i) police officers used "excessive and unnecessary ... force in the course of arrest and custody" violating his rights under the Fourth Amendment to the Constitution of the United States of America and Article II, Section 10 of the New Mexico Constitution ; (ii) the City of Albuquerque and Bernalillo County "maintain[ ] official policies" or a "de facto" policy permitting the excessive use of force; and (iii) the City of Albuquerque and Bernalillo County "failed to train" and supervise their police officers in the proper use of force and were, accordingly, deliberately indifferent to Nelson's rights. State Complaint ¶¶ 28, 34, 43, 48-50 at 5-6, 8-9 (emphasis omitted). The City of Albuquerque removed the case to federal court, and Nelson amended his Complaint, but continued to allege the same substantive violations. See Notice of Removal at 1, filed June 8, 2010 (Doc. 1); Amended Complaint for Civil Rights Violations & Violation of the New Mexico Tort Claims Act ¶¶ 28-35, 44, 49-51 at 5-6, 8-9 filed July 15, 2010 (Doc. 21).
On April 6, 2011, the Defendants moved for summary judgment on the excessive use of force claim, arguing, generally, that the police officers' use of force was " 'objectively reasonable' under the circumstances," and alternatively, that they were entitled to qualified immunity. Defendants' Motion for Summary Judgment, and Memorandum in Support, Requesting Dismissal of Counts I and II of Plaintiff's Amended Complaint with Prejudice at 8-11, filed April 6, 2011 (Doc. 66)("1st SJ Motion"). The City of Albuquerque subsequently filed a second Summary Judgment Motion, arguing that: (i) the City of Albuquerque could not be liable for excessive use of force, because Nelson could not identify any City of Albuquerque policies that were "the 'moving force' behind [Nelson's] alleged injury"; and (ii) the City of Albuquerque could also not be liable for failing to train and supervise its police officers, because their officers "ha[d] undergone extensive law enforcement training" and there were several policies in place "ensur[ing] that subordinate officers [were] being supervise[d]." Defendant City of Albuquerque's Motion, and Memorandum in Support, For Summary Judgment Requesting Dismissal of Counts III and IV of Plaintiff's Amended Complaint at 9-10, filed April 7, 2011 (Doc. 72)("2d SJ Motion")(quoting Board of Cty. Com'rs v. Brown,
On October 24, 2011, Judge Black held a six-day jury trial. See Clerk's Minutes, filed November 4, 2011 (Doc. 152). After Nelson rested, the Defendants renewed their qualified immunity summary judgment motion, arguing that Quezada v. Bernalillo Cty.,
At the close of evidence, the Defendants renewed their "summary judgment on qualified immunity" motion, "as well as the Rule 50 motion that we made at the close of the plaintiff's case." See Defendants' Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and 181, or in the Alternative, Motion for Relief from Judgment or Order Entered in Docs 168, 169, and 171 at 2:8-11 (Griffin) [at 42:8-11 on CM/ECF], filed May 8, 2012 (Doc. 173-4)(" Rule 50 Tr."). Judge Black denied the motion, because "both of these [motions] turn on the interpretation of the facts and the experts used. Obviously, there is a discrepancy as to what occurred at the scene. And I will, therefore, deny these and submit the matter to the jury." Rule 50 Tr. at 3:12-17. Nelson also moved for judgment as a matter of law pursuant to rule 50(a), see Plaintiffs' Renewed Motion for a Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for New Trial Pursuant to Rule 59(a) at 1, filed November 23, 2011 (Doc.
*1059158)("RJMOL"), and the Court also denied that Motion. On October 31, 2011, the Jury determined that the Defendants did not use excessive force. See Verdict Form at 1-3, filed October 31, 2011 (Doc. 155). Consequently, Nelson recovered nothing. See Verdict Form at 3. The Court entered judgment on November 8, 2011. See Judgment, filed November 8, 2011 (Doc. 147).
1. Nelson's Renewed Motion for Judgment as a Matter of Law .
On November 23, 2011, Nelson renewed his motion for judgment as a matter of law under rule 50(b), and also moved for a new trial under rule 59(a). See RJMOL at 1. In summary, he argues that, given the circumstances, the police used excessive force when they fired five beanbag shots, fired the wooden-baton rounds, sent the dog at him, and repeatedly Tased him such that no reasonable jury could have found for the Defendants. See RJMOL at 3-9.
First, Nelson argues that, under the excessive-force standard, a court must "analyze the factual circumstances of every case" and determine "whether the subject poses an immediate threat to the safety of officers and others," and whether "the subject is actively resisting arrest or attempting to evade arrest by flight." RJMOL at 2. Nelson avers that, based on that standard, "at the time Defendant Hughes deployed his beanbag shotgun, [Nelson] did not pose an immediate threat to officers or others." RJMOL at 3. According to Nelson, he posed no immediate threat, because the police had established a "safe perimeter," Nelson could only exit through one door of the house, "all sides of the house had lethal police coverage," "any egress from the property was further hampered ... by two razor wired fences" and that the SWAT team had high-ground snipers trained on the property. RJMOL at 3. Nelson argues, further, that "there is no evidence that Plaintiff posed an immediate threat to [the police] once he exited the house," because Nelson "followed commands to walk towards" the police team, he "slowly walked" towards them "empty handed," and Nelson "stopped as ordered" at least twenty feet away from the officers. RJMOL at 3-4.
Regarding the inference that Nelson turned around to "retreat to the house rather than turning around in compliance with [police] orders to turn around," Nelson argues that no "reasonable officer, could infer that Plaintiff was turning around to retreat," because photographic evidence "shows that Hughes was facing [Nelson] at the time of the shots." RJMOL at 4. Nelson also argues that photographic evidence demonstrates that the first two beanbag shots hit Nelson in his sternum and "epigastrium"-the center of his body-refuted the police officer's testimony that Nelson "turned to his left in a quick manner." RJMOL at 4. According to Nelson, the remaining three shots hit his rib cage and back, because Nelson was "obviously turn[ing] away from the shots." RJMOL at 4-5. Nelson also argues that Hughes' five consecutive beanbag shots were excessive, because Hughes failed to take "appropriate tactical pauses between each shot." RJMOL at 5. Nelson avers that, under proper police protocols, a "tactical pause is required ... to assess whether a subject is ... complying with orders," but the evidence "clearly indicates there was no tactical pause"-the first two shots hit Nelson near each other, "in the midline." RJMOL at 5.
Second, Nelson adds that the wooden-baton rounds were excessive. See RJMOL at 5-6. According to Nelson, Johnston "launched his wooden rounds" when Nelson's "back was facing the [police] team." RJMOL at 5. Nelson further avers that, on top of having his back turned, Nelson "posed no immediate threat," because, again, his "hands were clear," he was "disoriented *1060by the flash-bang diversionary device," already "injured by beanbag rounds," and "intoxicated." RJMOL at 5-6.
Third, Nelson argues that releasing the dog after the beanbag shots, the wooden-baton rounds, and the flash-bang device established excessive force. See RJMOL at 6-7. He also contends that the force was exacerbated, because Weimerskirch released the dog "without warning" when Nelson "had his back towards" the police team. RJMOL at 6. Finally, he asserts that Weimerskirch's command to the dog to "retrieve ... in an effort to pull [Nelson] to Weimerskirch" demonstrates excessive force. RJMOL at 6.
Finally, Nelson contends that, after the dog, the shots, and the flash-bang device, the evidence establishes excessive force, because, while Nelson "clutched onto the metal fence," two officers deployed their Tasers and one "cycled it six times," at "five seconds per cycle," delivering six shocks in thirty seconds. RJMOL at 7. He further contends that, like the required "tactical pause" for shooting the beanbag charges, police protocol requires a tactical pause before cycling the Taser, but Hughes did not observe that protocol. RJMOL at 7. Nelson argues that, instead, "[Hughes] only waited 1 second between cycles one through four before cycling again." RJMOL at 7. "Without a tactical pause," Nelson argues, "Hughes could not have assessed [Nelson's] compliance [with orders], and therefore, clearly used excessive force." RJMOL at 8. Nelson also avers that the Taser strike was excessive because it occurred after two officers had determined "that it was safe to approach [Nelson]." RJMOL at 7.
Nelson states that under Tenth Circuit caselaw, it is "excessive" to use a Taser "without having a reason to believe that a lesser amount of force or verbal command can exact compliance." RJMOL at 8 (citing Casey v. City of Federal Heights,
2. Defendants' Response to Nelson's RJMOL .
On December 16, 2011, the Defendants responded to Nelson's RJMOL, arguing broadly that the evidence supported the jury's verdict. See Defendants' Response to Plaintiff's Renewed Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for New Trial Pursuant to Rule 59(a) at 4, filed December 16, 2011 (Doc. 161)("RJMOL Resp."). First, the Defendants argue that the officers were attempting to catch a "non-compliant," suspected felon who "attempt[ed] to return to the residence" where known weapons were located. RJMOL Resp. at 12. They also contend that the officers' use of "less lethal munitions" to stop Nelson's return to the home was reasonable under Tenth Circuit caselaw. RJMOL Resp. at 12 (citing Medina v. Cram,
The Defendants finally argue that Nelson's RJMOL fails, because he "primarily relies upon the arguments and assertions of his legal counsel, which are not evidence." RJMOL Resp. at 4 (citing *1061Fritzsche v. Albuquerque Municipal Sch. Dist.,
3. Nelson's RJMOL Reply.
On January 13, 2012, Nelson replied to the RJMOL Resp. and argues that the RJMOL Resp. neglects the excessive force standard, because the Defendants rely on the officers' "subjective beliefs" as opposed to "objective reasonableness." Plaintiff's Reply to his Renewed Motion for a Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for New Trial Pursuant to Rule 59(a) at 1, filed January 13, 2012 (Doc. 164)("RJMOL Reply")(citing Graham v. Connor,
Next, invoking the third prong of the excessive force standard, the suspect's flight or resistance, Nelson contends that he did not attempt to flee. See RJMOL Reply at 5. In support of that contention, Nelson lists the following "undisputed facts": "[Nelson] came out of the house and dropped his knife after being commanded to do so," "walked slowly towards [the driveway], and then stopped where he was told to stop" twenty-to-thirty feet away from the officers, and the officer shot his "beanbag shot gun" when Nelson "started" to turn around. RJMOL Reply at 5-9. Nelson also argues that he did not attempt to flee, because he "made no attempt to run even after being struck by five successive beanbag rounds and at least two wooden batons from behind." RJMOL Reply at 10.
Regarding the dog's release, Nelson preserves his prior argument that the dog's use was excessive given that his back was turned, that he was disoriented by the flash-bang device, that he was intoxicated, that he had been shot seven times between the beanbag and wooden-baton rounds, and that "he was confined in a small area" enclosed by a razor wire fence on two sides, a chain-link fence on the third side, and a police team on the fourth. RJMOL
*1062Reply at 10. Nelson also maintains that he posed no risk after the dog attacked him, because the dog handler "testified that it was safe to approach." RJMOL Reply at 11. Nelson concludes that, notwithstanding the officer's subjective belief in being able to safely approach, two other officers Tased Nelson and one cycled the charges six times. See RJMOL Reply at 11.
4. Judge Black's Memorandum Opinion in Support of Judgment as a Matter of Law .
Judge Black ruled that judgment as a matter of law in Nelson's favor was appropriate. See Memorandum Opinion in Support of Judgment as a Matter of Law at 1, filed April 11, 2012 (Doc. 168); Amended Memorandum Opinion in Support of Judgment as a Matter of Law, filed April 12, 2012 (Doc. 171)("Black's Opinion"). He determined broadly that, based on the evidence "no reasonable jury could find for the defendants" and concluded that "[t]he jury may have been confused by the disorganized presentation of Plaintiff's case, and the underwhelming credentials of Plaintiff's expert." Black's Opinion at 1-2.
In discussing his conclusion, Judge Black divided his analysis into the three excessive force factors: (i) the crime's severity; (ii) whether the suspect poses an immediate threat to officers and the public; and (iii) whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. See Black's Opinion at 5 (citing Graham,
Next, Judge Black considered whether Nelson posed a safety threat, and subdivided that analysis into four more factors: (i) the suspect's compliance with police commands, including a command to "drop his weapon"; (ii) whether the suspect made any hostile motions with a weapon towards the officers; (iii) the distance between the officers and the suspect; and (iv) the "manifest intentions of the suspect." Black's Opinion at 6 (quoting Estate of Larsen ex rel. Sturdivan v. Murr,
Considering next Nelson's active resistance, or lack thereof, Judge Black determined that "no reasonable officer could deem" Nelson's failure to promptly comply with every command as "active resistance." Black's Opinion at 8 (citing Headwaters Forest Def. v. Cty. of Humboldt,
The officers' decision to escalate their force ... did not come in response to escalated resistance on Nelson's part. Nor did the officers pause to see the effects of the force already used.... Even though Nelson was immobilized, the officers continued escalating their force until Nelson collapsed to the ground. Thus, as the Officers continued to escalate their force, their decisions became increasingly unreasonable.
Black's Opinion at 10-11 (citing Holland v. Harrington,
5. Defendants' Motion to Alter or Amend Judge Black's Judgment.
The Defendants moved to overturn Black's Opinion, asserting that "the Court made several errors" in granting Nelson's RJMOL. Defendants' Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and 171, or in the Alternative, Motion for Relief From Judgment or Order Entered in Docs 168, 169, and 171 at 1, filed May 8, 2012 (Doc. 173)("Motion to Alter"). Invoking a right to relief under rules 59(e) and 60(b)(6) of the Federal Rules of Civil Procedure, the Defendants argue that there were five reasons that Judge Black should alter Black's Opinion. See Motion to Alter at 2. First, according to the Defendants, *1064Judge Black committed clear error "by utilizing the incorrect standard of review." Motion to Alter at 2. Second, they argue that Judge Black committed clear error, "because it exceeded its jurisdictional authority under Rule 50(b)" by "resolv[ing] questions of fact, instead of questions of law." Motion to Alter at 2. Third, they contend that Judge Black misconstrued the facts with "material omissions" and "inaccuracies." Motion to Alter at 2. Fourth, they say that Judge Black "improperly weigh[ed] the evidence" in granting Nelson's RJMOL. Fifth, they conclude that Judge Black committed clear error, because the Defendants were entitled to qualified immunity. See Motion to Alter at 2. The Court details these five arguments in turn.
Turning first to the argument that Judge Black deployed the wrong standard of review, the Defendants argue that Judge Black disregarded rule 50(b)'s standard by failing to "draw[ ] all reasonable inferences in favor of the non-moving party." Motion to Alter 2-4. The Defendants further contend that Judge Black's factual background demonstrates clear error "by weighing the evidence, judging witness credibility, challenging the factual conclusions of the jury, and ultimately substituting its judgment for that of the jury." Motion to Alter at 5.
Second, the Defendants argue that Judge Black's close-of-evidence comment that, "[o]bviously, there is a discrepancy as to what occurred at the scene" demonstrates that Judge Black exceeded his jurisdictional authority by deciding "factual questions." Motion to Alter at 5-7. The Defendants also aver that Black's Opinion's footnote two, explaining that the court had to "conduct its own research," further demonstrates that Judge Black "improperly weighed evidence, judged witness credibility, challenged the factual conclusions of the jury, and ultimately substituted its judgment for that of the jury." Motion to Alter at 7.9
Third, the Defendants argue that Judge Black's material factual omissions from the opinion constituted clear error. See Motion to Alter at 7. In support of that argument, the Defendants note that Judge Black omitted their expert's testimony from Black's Opinion's statement of facts, which is highly relevant, given Judge Black's close-of-evidence comment that "I think both of these [ rule 50 motions] turn on the interpretation of the facts that the experts used." Motion to Alter at 7-9. The Defendants also contend the following omitted facts demonstrate clear error: (i) Nelson partially concealed himself at the door; (ii) Nelson dropped the knife at the door; (iii) Nelson failed to raise his hands when ordered to; (iv) officers did not know whether Nelson had a weapon in his waistband; (v) Nelson continued to disregard commands as he walked toward the officers; (vi) Nelson said "[g]et the F[u]ck out of here" to the officers; (vii) Nelson failed to stop right when he was commanded to do so and "where the officers wanted to take him into custody"; (vii) Nelson glanced around, looking as if he was looking for an escape route; (viii) Nelson turned from the southwest to the south when Johnston ordered Hughes to fire his beanbag shotgun; (ix) Nelson turned without being given a command to turn "just before he actually did turn"; (x) Nelson continued to turn towards the residence as he was shot; (xi) Nelson continued to turn around "even *1065after Sergeant Johnston deployed the wood baton launcher"; (xii) Nelson turned towards the residence as Weimerskirch released the dog; (xiii) Nelson resisted being pulled down by the dog; (xiv) officers cycled their Tasers so that Nelson would remove his arm from the fence; (xv) Nelson did not remove his arm from the fence in compliance with the officers' orders even though he was being Tased and attacked by a dog; (xvi) Nelson continued to move as he was Tased and in between each Taser cycle; and (xvii) officers removed Nelson's hand from the fence after the sixth Taser cycle. Motion to Alter at 9-14.10 The Defendants also argue that Judge Black committed clear error by omitting any mention that Nelson pled guilty to aggravated assault with a deadly weapon. See Motion to Alter at 15.
According to the Defendants, Judge Black's inclusion of the following inaccuracies amounts to clear error: (i) he noted that forty-seven officers were at Patterson's house "to effect Nelson's arrest," but the Defendants argue that only seven or eight out of the forty-seven officers were charged with arresting Nelson; (ii) Judge Black wrote that the Bearcat armored van "brought a battery of lethal and less-lethal weapons," but the Defendants contend that there is no testimony to that effect, that the Bearcat "was used to rescue the victim," and that "Officer Limon drove the Bearcat to the inner perimeter and organized SWAT officers in a position of cover"; (iii) Judge Black determined that "Patterson was sitting outside of his house" where officers arrested him, but the Defendants aver that there is no such statement in the record; (iv) Judge Black wrote that Patterson was assaulted only with a knife and a pellet rifle, but the Defendants contend that Patterson advised officers that he was threatened with a knife, and a rifle described as an air rifle, a pellet rifle, or a 308 rifle; (v) Judge Black determined that Nelson was "completely surrounded," but the Defendants note that Johnston did not make any of these statements in the five pages that Judge Black cited; (vi) Judge Black noted that "Nelson appeared intoxicated, disoriented, slow to react, and unable to maintain a straight line," but the Defendants report that the testimony cited "does not contain this statement" or "even a reasonable inference" of the statement; (vii) Judge Black wrote, "[a]fter some delay, Nelson stopped," but the Defendants rejoined that "this statement is clearly misleading," because Nelson repeatedly failed to comply; (vii) Judge Black determined that "[e]ach of the five shots hit Nelson before Nelson had turned enough to face the house," but the Defendants gainsay that this is "opinion, not fact," because the testimony cited lacks that statement "or even a reasonable inference that Officer Hughes made this statement"; (viii) Judge Black wrote "[t]he flash-bang device is a loud, bright explosive that disorients suspects and interferes with their ability to both see and hear clearly," but the Defendants argue that only when the flash-bang is detonated inside a dark room does it have this effect; in an open air environment, disorientation is less likely, its effect on vision or hearing is temporary, and "there is no evidence in the record that [Nelson] was disoriented by the flash bang device"; (ix) Judge Black recorded that the police service dog is trained to bite and hold suspects "indefinitely," but the Defendants contend that "indefinite" is incorrect, because the dog is trained to stop biting when his handler calls him off; (x) Judge Black determined that the officers used the Tasers "just *1066because [Nelson] was standing upright," but the Defendants argue that the Taser was "used to gain compliance from [Nelson] so that he could be placed into custody"; (xi) Judge Black wrote that after officers "pried [Nelson's hand] from the fence, [Nelson] 'collapsed to the ground, and ceased to move,' " but the Defendants rejoin there is no testimony that supports this "opinion" or a statement leading to "a reasonable inference that Officer Limon made this statement"; and (xii) Judge Black stated that "the officers then carried Nelson's unconscious body to the Bearcat, leaving a trail of blood and urine," but the Defendants argue that "[t]his statement is pure fiction," because "there is no evidence that [Nelson] lost consciousness or that he was carried leaving a trail [of] blood and urine," and there was testimony that officers did not see him "carried or taken back to" the Bearcat. Motion to Alter 16-21 (quoting Black's Opinion at 2-5).
Fourth, the Defendants argue that Judge Black improperly weighed the evidence. See Motion to Alter at 21. The Defendants contend that, in addition to the inaccuracies and omissions as detailed above, Judge Black improperly weighed the evidence by conducting an "imminent safety threat" analysis, because that was an improper "deadly force analysis." Motion to Alter at 22. Fifth, the Defendants argue that, even though rule 59(e) normally precludes reviving a previously-made-and-rejected argument, they were entitled to qualified immunity and the Court could have and should have considered it, because qualified immunity is an exception to rule 59(e). See Motion to Alter at 24 (citing Quezada v. Cty. of Bernalillo,
6. Nelson's Response to the Defendants' Motion to Alter or Amend Judge Black's Judgment.
Nelson responds to the Defendants' Motion to Alter Judgment, contending that rule 59(e) relief from Black's Opinion is inappropriate. See Plaintiff Tony Nelson's Response to Defendants' Motion to Alter or Amend Judgment Pursuant to Rule 59(e), or, Alternatively, Relief from Judgment Pursuant to Rule 60(b) [Doc. 173] at 1, filed May 25, 2012 (Doc. 178)("Motion to Alter Resp."). To summarize Nelson's position, he avers that Black's Opinion applied the appropriate standard, a district court is allowed to rule on a rule 50(b) motion even if it declined to grant a rule 50(a) (or a summary judgment motion), Judge Black did not mischaracterize or improperly weigh evidence, and the Defendants *1067do not have qualified immunity. See Motion to Alter Resp. at 4-20. First, Nelson argues that the Defendants' contention that, because Judge Black did not mention the standard of review in Black's opinion he must have applied the wrong standard of review, does not "necessarily" mean "the Court in fact failed to [apply the correct standard]." Motion to Alter Resp. at 5. Next, Nelson contests the Defendants' argument that, because Judge Black premised his Rule 50(a) denial on factual disputes, he must "have exceeded [his] authority" in ruling on the Rule 50(b) motion. Motion to Alter Resp. at 7. Nelson explains that, even if there are factual disputes, "it does not follow that the Court must have therefore resolved questions of fact rather than legal questions" as rule 50(b) allows Judge Black to decide legal questions. Motion to Alter Resp. at 7. Nelson further argues that the Defendants improperly attached "additional supporting facts" in their rule 59(e) motion, so Judge Black should, consequently, deny their motion. Motion to Alter Resp. at 8 (citing Van Skiver v. United States,
Nelson also contends that Judge Black considered only the appropriate facts and did not omit any material ones. See Motion to Alter. Resp. 10-16. Regarding the Defendants' contention that Judge Black omitted facts about the " 'potential' threat" that Nelson posed, Nelson argues that there was no error, because the correct legal standard is immediate threat. Motion to Alter Resp. at 11. Nelson also notes the following facts that the Defendants failed to dispute: Nelson "dropped his only weapon, the knife, after being commanded to do so"; Nelson was "clearly" not holding the only other known weapon; Nelson did not hold any other weapons; Nelson was over twenty feet from officers; and the officers stood in tactically shielded positions. Motion to Alter Resp. at 12. Nelson further argues that Judge Black's statement that Nelson "appeared intoxicated, disoriented, slow to react, and unable to maintain a straight line" was "accurate" given certain testimony that Nelson spoke incoherently, he had been drinking, and had other observed intoxication behaviors. Motion to Alter Resp. at 13-14.
Nelson states that Judge Black also accurately determined that Nelson did not actively resist arrest or attempt to evade arrest. See Motion to Alter Resp. at 14. Nelson argues that there was enough testimony for the Court to make a reasonable inference that officers shot at Nelson before he turned around to face the house. See Motion to Alter Resp. at 15. In support of that contention, Nelson cites Hughes' testimony that he " 'immediately' deployed his weapon in response to Johnston's order," and that he did so when Nelson " 'started' to turn around." Motion to Alter Resp. at 15. Nelson also argues that there is sufficient evidence to demonstrate that officers surrounded Nelson. See Motion to Alter Resp. at 15-16.
Finally, Nelson argues that the Defendants are not entitled to qualified immunity. See Motion to Alter Resp. at 17-19. Nelson notes that the Tenth Circuit has determined that, under qualified immunity's clearly established prong, "because excessive force jurisprudence requires an all-things-considered inquiry with careful attention to the facts and circumstances of each particular case ... there will almost never be a previously published opinion involving exactly the same circumstances." Motion to Alter Resp. at 18 (citing Casey,
*10687. Judge Black's Order Denying the Defendants' Motion to Alter.
On June 1, 2012, Judge Black denied the Defendants' Motion to Alter in a two-page order, before the Defendants could file a reply brief. See Order at 1-2, filed June 1, 2012 (Doc. 179)(Black's First Order). After noting that the "Federal Rules of Civil Procedure do not recognize a specific 'motion to alter or amend judgment,' " Judge Black determined that the relevant rule was rule 60(b)(1), because it provided relief for "mistake, inadvertence, surprise, or excludable neglect." Black's First Order at 1. Judge Black stated that rule 59 is inappropriate, because the Defendants filed their Motion to Alter at least ten days after judgment. See Black's First Order at 1 n.1. He concluded that, notwithstanding the Defendants' contention that "numerous facts ... were allegedly errant or overlooked," he considered those facts, he did not need to "delve into irrelevant details," and rule 60 did not require him to use the Defendants' "chosen rhetoric." Black's First Order at 2. Furthermore, Judge Black noted that he used the "proper standard of review," granting all reasonable inferences in Defendants' favor based on the trial evidence. Black's First Order at 2. Accordingly, he denied the Defendants' Motion to Alter. See Black's First Order at 2. In denying the Defendants' Motion to Alter, Judge Black did not specifically address qualified immunity. See Black's First Order at 1-2.
8. The Defendants' Motion For Relief From Black's First Order.
On June 1, 2012, the Defendants filed a motion for relief, arguing that Judge Black erroneously determined that rule 60 was appropriate instead of rule 59. See Defendants' Motion for Relief From Order Entered on 6/1/2012 [Doc. 179] Denying Defendants' Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and 171, or in the Alternative, Motion for Relief from Judgment or Order Entered in Docs 168, 169, and 171 at 1, filed June 1, 2012 (Doc. 180)("Mot. for Relief"). The Defendants argue that Judge Black "made a mistake" when he determined that the Federal Rules of Civil Procedure provides no rule that recognized a motion to alter or amend a judgment, citing rule 59(e). Mot. for Relief ¶ 5, at 2. They also argue that, pursuant to a December 1, 2009 amendment, a party is entitled twenty-eight days to file a motion to alter or amend a judgment under rule 59(e), so Judge Black's determination that Rule 60 applied is inappropriate, because the Defendants had filed their motion within twenty-eight days. See Mot. for Relief ¶¶ 6-9, at 2. Accordingly, the Defendants request that Judge Black set aside Black's First Order and reconsider the Defendants' arguments contained within its Motion to Alter. See Mot. for Relief ¶ 10, at 3.
9. Nelson's Response to the Defendants' Motion for Relief.
Nelson filed a response to the Defendants' Motion for Relief on June 5, 2012. See Plaintiff Tony Nelson's Response in Opposition to Defendants' Motion for Relief from Order entered on 6/1/2012 [Doc. 180] at 1, filed June 5, 2012 (Doc. 182)("Mot. for Relief Resp."). Nelson argues that the invited error doctrine bars the Defendants' requested relief. See Mot. for Relief Resp. at 2-3 (citing United States v. LaHue,
10. Judge Black's Second Order Denying the Defendants' Motion to Alter.
On June 12, 2012, Judge Black issued a second order denying Defendants' Motion to Alter. See Order at 1-2, filed June 12, 2012 (Doc. 183)("Black's Second Order"). Although noting that the "Defendants rightly assert that the motion [to alter] may be considered under Fed. R. Civ. P. 59(e)," he concluded that, "for the reasons explained in" his prior order, there were no mistakes or "clear errors" warranting an amended judgment. Black's Second Order at 1-2. Accordingly, he denied the Defendants' Motion for Relief and ordered a trial on damages. See Black's Second Order at 2. In denying the Defendants' Motion for Relief, Judge Black did not specifically mention qualified immunity. See Black's Second Order at 1-2.
On July 3, 2012, the parties filed a stipulation setting damages at $385,000, but the Defendants reserved their right to appeal Black's Opinion granting Nelson judgment as a matter of law and his orders. See Stipulation as to the Amount of Damages With Respect to the Claims on which the Court Granted Plaintiff Judgment as a Matter of Law at 1-2, filed July 3, 2012 (Doc. 194). On July 5, 2012, Judge Black entered Final Judgment vacating the damage trial, and dismissing all other claims with prejudice, except for attorney's fees. See Final Judgment at 1, filed July 5, 2012 (Doc. 196).
11. The Defendants' Judgment as a Matter of Law Motion.
After Judge Black entered Final Judgment, the Defendants filed a motion for judgment as a matter of law requesting the verdict to stand and a determination that the Defendants have qualified immunity. See Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting For the Judgment on the Jury Verdict to Stand; to Find Defendants have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants at 1, filed July 26, 2012 (Doc. 201)("Motion"). The Defendants argue that the evidence supports the verdict. See Motion at 13. In making this argument, the Defendants incorporate by reference their arguments from their Motion to Alter and Motion for Relief. See Motion at 13-14.
Regarding qualified immunity, the Defendants begin by making the same arguments that would be relevant to determine whether the evidence supports the verdict-they argue that the officers' conduct was "objectively reasonable." Motion at 14. The Defendants assert that the officers' actions were reasonable, in part, because they were attempting to apprehend "a suspected felon who was non-compliant with the majority of their commands" and who resisted arrest "by attempting to return to the residence" known to contain weapons. Motion at 15. They further argue that Nelson attempted to bait the officers to come to him while he was holding a knife, and this threat remained active after Nelson exited the house, because "it was unknown if [Nelson] had any weapons on [ ]his person." Motion at 15. They also assert that "the potential threat increased" when Nelson "attempted to return to the residence," because "he was closing distance to where it was known there were weapons." Motion at 15. They conclude that these facts, taken together, demonstrate that the officers' actions were reasonable. See Motion at 15.
Turning to whether the officers used lethal force, which would bear on whether the officers' conduct was reasonable, the Defendants argue that all of the weapons *1070were less-than-lethal. See Motion at 15. The beanbag shotgun and wooden-baton launcher were not lethal, because officers deployed the weapons at greater than ten feet, and the dog was not lethal, because he bit Nelson's arm, and is not trained to bite the neck, groin, or any other area that would cause serious bodily injury or death. See Motion at 15.
The Defendants also analogize to Medina v. Cram,
Turning to qualified immunity's second prong, the Defendants contend that, even if they used excessive force, the officers reasonably believed their actions were legal. See Motion at 18 (citing Saucier v. Katz,
Finally, regarding state tort liability, the Defendants argue that the police never waived their immunity under the New Mexico Tort Claims Act. See Motion at 19-20. They argue that liability attaches to police officers only if the officers commit an intentional tort, thereby waiving their immunity. See Motion at 20. The conclude that, because the evidence demonstrates that "the officers' actions were lawful and ... done in good faith," Nelson has no viable battery claim. Motion at 20 (citing Mead v. O'Connor,
12. Nelson's Response to the Defendants' Judgment as a Matter of Law Motion on Qualified Immunity.
Nelson responds to the Defendants' Motion by arguing that, as an initial matter, for all the same reasons Judge Black granted his RJMOL, the Court should deny the Defendants' Motion.12 See Plaintiff's *1071Response to Defendants' Rule 50(b) Motion [Doc. 201] at 2, filed August 12, 2012 (Doc. 202); Plaintiff's Amended Response to Defendants' Rule 50(b) Motion [Doc. 201] at 2, Filed August 13, 2012 (Doc. 203)("Response").13 Nelson also contends that the Defendants misconstrue the qualified immunity requirements. See Response at 2. In support of that argument, he contends that, although generally a Tenth Circuit case must be "on point" for qualified immunity to fail, the Tenth Circuit, in essence, created an exception for excessive force. Response at 2 (citing Casey,
Turning to whether there was a clear constitutional violation, Nelson largely repeats his arguments from his RJMOL and his Motion to Alter Resp. See Response at 9-15. He concedes that the underlying crime, aggravated assault, was a serious crime, but avers that, as Judge Black noted, the crime was "temporally separated" from the police encounter. Response at 9-10. Nelson also contends that he posed no immediate threat to the officers, because, among other things, he had no weapon, there was an enclosed perimeter, Nelson never attempted to "rush[ ] ... or quickly close the distance between [himself] and the officers," and he was a "slow moving 62 year old" man. Response at 11-13. Finally, Nelson argues that his delayed compliance could not be active resistance to arrest, Nelson's turn toward the house would not give rise to a reasonable belief that he was returning to the house, and, even if the turn indicates Nelson's intention to return to house, it did not justify a "split-split second decision to deploy the beanbag shotguns," sending the dog, or firing the Tasers without first reassessing if such force was appropriate. Response at 13-15.14
13. The Defendants' Reply.
The Defendants' replied to Nelson's Response on August 27, 2012. See Defendants' Reply to Plaintiff's Response to Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting for the Judgment on the Jury Verdict to Stand; to find Defendants Have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants at 1, filed August 27, 2012 (Doc. 204)("Reply"). They contend, first, that Nelson misconstrues the facts in his Response and urge the Court to rely upon the trial record. See Reply at 1. Second, they further aver that Nelson's emphatic assertion that he held no weapons is misplaced given that officers had not cleared his waistband. See Reply at 2. Third, the Defendants contend that the Court should afford the crime's seriousness more weight given Nelson's noncompliance, the "tense, uncertain, and rapidly evolving" situation, and Nelson's "turn towards the residence" where weapons *1072existed. Reply at 3-4. Fourth, the Defendants argue that there "is no Tenth Circuit Case" demonstrating that the Defendants would be on notice that their conduct was unlawful, so urge the Court to conclude that the officers are entitled to qualified immunity. Reply at 7. Fifth, and finally, they maintain that Nelson's battery claim fails for the same reason that his excessive force claim fails. See Reply at 7.
14. The Hearing.
On March 1, 2013, the Court was reassigned this case from Judge Black. See Clerk's Notice of Reassignment, filed March 1, 2013 (Doc. 206). The Court held a hearing on June 14, 2013. See Draft Transcript of Motion Hearing (taken June 14, 2013)("Tr.").15 The Defendants opened by detailing the case's procedural history, emphasizing that no facts had changed between the jury verdict and Black's opinion, but that he had still overturned the jury's verdict. See Tr. at 3:14-6:23 (Court, Griffin). The Defendants further argued that they timely filed their rule 50(b) motion for qualified immunity, because the "time triggered for me to file" once "judgment was entered stipulating as to damages." Tr. at 5:22-6:3 (Griffin)(citing Ortiz v. Jordan,
Turning to qualified immunity, the Defendants maintained their position that there is no caselaw in the Tenth Circuit that would have put the Defendants on notice that they were using excessive force. See Tr. at 8:18-23 (Griffin). Regarding the state-law battery claim, they contended that, under Mead v. O'Connor,
The Court subsequently asked Nelson whether there is "any procedural timeliness jurisdictional issues" regarding the Defendants' rule 50(b) motion. Tr. at 12:17-18 (Court). Nelson responded that, yes, there is a jurisdictional threshold issue, *1073because "[o]n its face, Rule 50(b) is available basically to the party who loses at trial." Tr. at 12:24-25 (Hawk). Nelson argued that a motion can only be heard under rule 50(b)
if the Court does not grant[ ] a motion for judgment as a matter of law made under rule 50 [ (a),] the Court is considered to have submitted the action to the jury subject to the Court's later deciding the legal requests raised by the [ rule 50(b) ] motion and then no later than 28 days
after the entry of judgment. Tr. at 13:1-5 (Hawk). The Court responded by asking how that rule applied in this case and whether there was anything in the rules that prohibited it from hearing the qualified immunity argument. See Tr. at 16:4-6 (Court). Nelson conceded that "it is my understanding ... that qualified immunity can be raised at any time during the trial process even post trial." Tr. at 16:7-12 (Hawk). Nelson argued, however, that, nevertheless, the qualified immunity issue has already been litigated, and Judge Black has already denied it. See Tr. at 16:13-19 (Hawk). From that analysis, Nelson contended that the Defendants' Motion should be construed as nothing more than "a motion to reconsider." Tr. at 16:21-22 (Hawk). Nelson then argued that, as a motion to reconsider, rule 59(e) governs, and Judge Black had already decided a 59(e) motion, so the Court should deny this Motion too. See Tr. at 17:8-10 (Hawk). Nelson then concluded that the "only issue before the Court today is the issue of qualified immunity." Tr. at 17:12-13 (Hawk).
The Court noted that "normally what you would do with a motion to dismiss or summary judgment on qualified immunity is to ask the Court whether there is a triable issue on the constitutional [violation]," but given the procedural posture that a jury trial had happened and Judge Black had ruled on Nelson's rule 50(b) motion, it asked if it "den[ied] the motion and sa[id] there were triable issues, where does that leave [the parties]." Tr. at 17:17-18:6 (Court). The Court expanded that it believed the Defendants' 50(b) motion was a request for the Court "to go back to th[e] point [before it was submitted to the jury] and rule as to whether this was a triable issue or not." Tr. at 19:19-22 (Court). To that context and query, Nelson argued that the Defendants should have raised their motion "within 28 days of the Court[ ] granting the Plaintiff's 50[ (b) ] motion," because the "judgment on the merits in this case occurred on April 12th of 2012." Tr. at 19:12-20:3 (Hawk). He argued, accordingly, that the Motion is untimely. Tr. at 19:19-22 (Court). Nelson conceded, however, that the April 12, 2012, order "was not a final judgment," but that the Motion was still "untimely." Tr. at 20:6-10 (Hawk). Nelson averred his position again that the Defendants' Motion is "really a motion to reconsider a previous decision," it should be viewed through the lens of rule 59(e), the issue has already been litigated, and Tenth Circuit courts prohibit using "motions for reconsideration" as vehicles for "old issues already decided." Tr. at 20:23-21:14 (Hawk)(citing Wilson v. Brennan,
The Defendants responded that, under Ortiz v. Jordan,
Turning to the Court's query concerning what happens if the Court agrees with Judge Black that there is a factual issue that had to go to the jury, the Defendants argued that "[t]h[e]n you go back in time and you say, okay, Judge Black has already found factual issues, a jury has already determined those factual issues, and, therefore, the jury verdict stands." Tr. at 25:2-20 (Griffin). The Defendants noted, however, that they were unable to find any case with this particular procedural posture and, accordingly, none that concluded that the jury verdict must stand with this particular procedural posture. See Tr. at 27:11-15 (Griffin). Responding to the Court's question that it did not "see the authority under [ rule] 50 [ (b) ] to go back and reinstate the verdict," Tr. at 31:2-4 (Court), the Defendants answered:
I don't think that there's a rule or case that really tells us [ ] what we're s[upposed] to do. But I think logically ... [if there is a factual] discrep[ancy] ... and [the Court] submit[ted] the matter to the [ ] jury, then the jury [as] the fact-finder has already made that determination,
Tr. at 32:13-22 (Griffin). The Defendants also argued that their motion should not be converted into a rule 59 motion, because "this is [ ] purely a [r]ule 50(b) motion that I am raising to preserve the issue for appeal." Tr. at 28:19-23 (Griffin).
Regarding the merits, the Defendants argued that "the issue" they had with "Judge Black's Opinion ... is [that] he used the deadly force standard analysis." Tr. at 33:21-23 (Griffin). The Defendants then contended that, even if there were deadly force, "the clearly established prong ... would not have put these officers on fair notice that the less lethal munitions" would amount to deadly force. Tr. at 34:19-22 (Griffin). The Defendants concluded that there were no further factual issues they wished to raise, and that "I think we're just dealing with ... legal issues and probably the procedural posture." Tr. at 35:2-3 (Griffin).
Nelson responded that, although Judge Black noted that the deadly force factors might be "instructional," he did not use the deadly force legal standard in his analysis, because he relied on the Graham factors. Tr. at 35:14-36:1 (Hawk). Nelson also emphasized that the appropriate standard for the threat analysis under Graham, is not "potential threat," as the Defendants' argued, but "immediate threat" and "imminent threat." Tr. at 36:2-8 (Hawk). Regarding qualified immunity, Nelson insisted that the clearly established prong is less strict in excessive force cases and there need not be a factually identical published Tenth Circuit case. See Tr. at 36:23-37:6 (Hawk). He argued that, instead, a "sliding scale" analysis is appropriate-"the more egregious the behavior, the l[ess] specificity in the law is required to find qualified immunity." Tr. at 37:7-10 (Hawk). Nelson concluded by noting that rule 59(b) permits a judge to reconsider the facts and overturn a jury verdict, "because no reasonably jury could find" as it did. Tr. at 42:8-19 (Hawk).
LAW REGARDING RULE 50
Rule 50 presents two ways a party may secure a judgment in its favor after a trial has begun. In effect, rule 50(a) allows a movant to bring a motion for summary judgment on the trial record. Such motions raise a legal issue of the sufficiency of the *1075non-moving party's evidence on an issue. Rule 50(b) allows a movant to attack the sufficiency of the evidence after the trial has ended.
1. Rule 50(a).
Judgment as a matter of law is proper where "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a)(1). This standard for a directed verdict mirrors the standard for summary judgment. See Anderson v. Liberty Lobby,
In determining whether to grant judgment as a matter of law, a court may not weigh the evidence or make its own credibility determination, and must draw all reasonable inferences in favor of the nonmoving party. See Wagner v. Live Nation Motor Sports, Inc.,
Moreover, rule 50(a) "expressly requires a motion for a directed verdict to 'state the specific grounds therefor.' " First Sec. Bank of Beaver v. Taylor,
2. Rule 50(b).
" Rule 50(b) ... sets forth the procedural requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment." Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury *1076subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment ... the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b). Much like a rule 50(a) motion, "[a] renewed motion for judgment as a matter of law under Rule 50(b) ... must state the grounds on which it was made." 9B C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2537, at 604-05 (3d ed. 2008).
The standard for ruling on a rule 50(b) motion is similar to that for ruling on a rule 50(a) motion-whether there was sufficient evidence upon which a reasonable jury could have arrived at the jury verdict returned. See Wagner v. Live Nation Motor Sports, Inc.,
A prerequisite to a rule 50(b) motion, and one implicit in its nature as a renewed motion for judgment as a matter of law, is that the moving party must have made a rule 50(a) motion for judgment as a matter of law during trial and that the party raise in the rule 50(a) motion all issues it seeks to raise in the subsequent rule 50(b) motion. See M.D. Mark, Inc. v. Kerr-McGee Corp.,
" Rule 50(b) allows a motion for a new trial under Rule 59 to be joined in the alternative with a renewed motion for judgment as a matter of law; subdivisions (c) and (d) make elaborate provision for when the two motions are made in the alternative." 9B C. Wright & A. Miller, § 2521, at 222. The rule states: "[T]he movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59." Fed. R. Civ. P. 50(b). Even if no rule 50(a) motion was made and therefore the court cannot grant a rule 50(b) motion for judgment as a matter of law, the court is still permitted to entertain a rule 59 motion for new trial on the basis that the verdict was based on a quantum of evidence that is insufficient as a matter of law. See Fed. R. Civ. P. 59. As Professors Charles Alan Wright and Arthur Miller state:
[I]f the verdict winner's evidence was insufficient as a matter of law but no motion for judgment as a matter of law was made under Rule 50(a), even though the district court cannot grant judgment as a matter of law under Rule 50(b) for the party against whom the verdict is rendered, it can set aside the verdict and order a new trial.
9B C. Wright & A. Miller, supra, § 2537, at 604.
LAW REGARDING MOTION TO ALTER OR AMEND UNDER RULE 59(E)
Motions to reconsider in civil cases fall into three categories:
(i) a motion to reconsider filed within twenty-eight17 days of the entry of judgment *1078is treated as a motion to alter or amend the judgment under rule 59(e) ; (ii) a motion to reconsider filed more than [twenty-eight] days after judgment is considered a motion for relief from judgment under rule 60(b) ; and (iii) a motion to reconsider any order that is not final is a general motion directed at the Court's inherent power to reopen any interlocutory matter in its discretion.
Pedroza v. Lomas Auto Mall, Inc.,
Whether a motion for reconsideration should be considered a motion under rule 59 or rule 60 is not only a question of timing, but also "depends on the reasons expressed by the movant." Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc.,
[o]n motion and just terms, the court may relieve a party or its legal representatives from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ;
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Neither a rule 59 nor a rule 60 motion for reconsideration are appropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion.... Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.
Servants of Paraclete v. Does,
The Tenth Circuit reviews a district court's ruling on a motion to alter or amend "under an abuse of discretion standard." Phelps v. Hamilton,
LAW REGARDING EXCESSIVE FORCE
An excessive force claim "must ... be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized 'excessive force' standard." Graham,
1. Relevant Factors in Determining Whether Officers' Actions Were Objectively Reasonable.
Graham provides three factors that a court must consider in determining whether an officer's actions were objectively reasonable: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham,
A court assesses "objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case." Estate of Larsen ex. rel Sturdivan v. Murr,
*1080Cortez v. McCauley,
Caselaw need not establish that the exact police procedure at issue is unreasonable for a district court to conclude that it violates the Fourth Amendment. In Weigel v. Broad, two police officers accidentally caused the death of a suspect by using excessive force in arresting and handcuffing him. See
The Tenth Circuit held that the district court should not have granted summary judgment for the officers on qualified immunity grounds. It reasoned that whether the officers' actions were reasonable was a jury question, because there was evidence that a reasonable officer would have known that: (i) the pressure created a risk of asphyxiation ; and (ii) the pressure was unnecessary to restrain the suspect. See
Similarly, the Tenth Circuit has made clear that, although officers may use force to apprehend a suspect, the level of force they use must be necessary to accomplish their objectives. See Buck v. City of Albuquerque,
2. Least-or Less-Forceful Alternatives in Excessive-Force Cases.
"To avoid a 'Monday morning quarterback' approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham." James v. Chavez,
*1081Graham,
In Mich. Dep't of State Police v. Sitz,
was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with government officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.
Mich. Dep't of State Police v. Sitz,
In United States v. Sokolow,
a creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of police might have been accomplished. But "[t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable."
In United States v. Melendez-Garcia,
*1082Schulz v. Long,
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald,
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents,
*1083Camreta v. Greene,
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan,
1. Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand."
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage," and "the precise factual basis for the ... claim ... may be hard to identify"; (v) tackling the first element *1084"may create a risk of bad decisionmaking," because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Kerns v. Bader,
2. Clearly Established Rights in the Qualified Immunity Analysis.
To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist.,
"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran,
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd,
"[A] case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," but the law is not clearly established where "a distinction might make a constitutional difference." Kerns v. Bader,
Although the Tenth Circuit has recognized a sliding scale for qualified immunity's clearly-established inquiry, see Casey,
We erred ... by relying on excessive-force cases markedly different from this one. Although we cited Graham,490 U.S. 386 ,109 S.Ct. 1865 (1989) to lead off our clearly-established-law discussion, we did not just repeat its general rule and conclude that the officers' conduct had violated it. Instead, we turned to our circuit's sliding-scale approach measuring degrees of egregiousness in affirming the denial of qualified immunity. We also relied on several cases resolving excessive-force claims. But none of those cases remotely involved a situation as here.
The Tenth Circuit further noted that its sliding-scale approach may have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer,
To show clearly established law, the Hope Court did not require earlier cases with "fundamentally similar" facts, noting that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741,122 S.Ct. 2508 . This calls to mind our sliding-scale approach measuring the egregiousness of conduct. See *1088Morris v. Noe ,672 F.3d 1185 , 1196 (10th Cir. 2012). But the Supreme Court has vacated our opinion here and remanded for us to reconsider our opinion in view of Mullenix , which reversed the Fifth Circuit after finding that the cases it relied on were "simply too factually distinct to speak clearly to the specific circumstances here."136 S.Ct. at 312 . We also note that the majority opinion in Mullenix does not cite Hope v. Pelzer ,536 U.S. 730 ,122 S.Ct. 2508 ,153 L.Ed.2d 666 (2002). As can happen over time, the Supreme Court might be emphasizing different portions of its earlier decisions.
Aldaba II,
ANALYSIS
The case's procedural history guides the Court's analysis and merits a brief summary here. A jury delivered a verdict for the Defendants. Nelson attacked that verdict via a rule 50(b) motion. Judge Black vacated the verdict and entered judgment as a matter of law, concluding that no reasonable juror could have found for the Defendants. The Defendants challenged Judge Black's determination under rule 59(e) and rule 60, but Judge Black did not alter or overrule his previous judgment. Now, the Court must rule on a second rule 50(b) motion-this one brought by the Defendants-which entails determining whether the Defendants' rule 50(b) motion may undo a judgment as a matter of law rendered by Judge Black. The Court determines that rule 50(b) is an improper vehicle for attacking Judge Black's previous ruling. However, the Court construes the Defendants' rule 50(b) motion as a second rule 59(e) motion, and grants the motion.
In coming to this determination, the Court concludes that: (i) the Defendants' motion is timely, because they filed it within 28 days of final judgment; (ii) based on rule 50(b)'s text and purpose, a second rule 50(b) motion is not the correct vehicle to challenge prior rulings under rules 50(b), 59(e), and 60 on substantially the same issues; (iii) the Defendants did not adequately preserve their clearly established qualified immunity argument under rule 50(a) for the Court to consider it under rule 50(b) ; and (iv) construing the motion as a rule 59(e) motion, a reasonable juror could have found for the Defendants, and the Defendants are also entitled to qualified immunity. Accordingly, the Court will alter the final judgment.
I. THE DEFENDANTS' MOTION WAS TIMELY .
The Defendants' rule 50(b) motion was timely, because it occurred within twenty-eight days after entry of final judgment. Under rule 50(b), a movant "may file *1089a renewed motion for judgment as a matter of law," as long as they motion "[n]o later than 28 days after the entry of judgment." Fed. R. Civ. P. 50(b).20 Judge Black entered Final Judgment on July 5, 2012. See Final Judgment at 2. The Defendants filed their Motion twenty-one days later on July 26, 2012. See Motion at 21.
Nelson, however, argues that the clock started running for the Defendants once Judge Black issued his opinion and order granting the RJMOL on April 12, 2012. See Tr. at 19:12-20:3. According to Nelson, the clock commenced then, because a judgment on the merits triggers the rule 50(b) clock. See Tr. at 20:6-10 (Hawk). The Defendants counter that rule 50(b)'s language refers to final judgment, and, accordingly, their motion was timely. See Tr. at 23:22-24:9 (Griffin).
The Court agrees with the Defendants. The Tenth Circuit has not ruled on whether rule 50(b)'s reference to "judgment" means "final judgment," but other courts have determined that it has that meaning. See Weatherly v. Alabama State Univ.,
II. RULE 50(B) DOES NOT PROVIDE THE RELIEF THE DEFENDANTS SEEK.
The Defendants' rule 50(b) motion requests that the Court reinstate the jury verdict, a finding that the Defendants have qualified immunity, and, to enter Judgment as a Matter of Law in Favor of the Defendants. See Motion at 1. In their Motion, the Defendants advance many of the same arguments that they advanced previously before Judge Black, namely: (i) the trial evidence demonstrates that the officers *1090acted reasonably; (ii) clearly established law did not put the officers' on notice that their conduct would be unreasonable; and (iii) the officers are immune to state tort liability, because they acted lawfully and in good faith. See Motion at 14-20. Nelson responds that the Court should deny the Defendants' Motion as a third bite "at this same apple," because they have made those arguments before and the Court should deny the Motion for the same reasons. See Response at 2.
In presenting their Motion, the Defendants overlook the normal inquiry that the Court must undertake when deciding a rule 50(b) motion. Although the procedural posture here is not always present-a second rule 50(b) motion by the party who lost the first rule 50(b) motion-the Court sees no reason why the normal rule 50(b) guideposts should vanish. Accordingly, the standard for ruling on a second rule 50(b) motion is similar to that for ruling on a rule 50(a) motion-whether there was sufficient evidence upon which a reasonable jury could have found for the non-moving party. See Wagner v. Live Nation Motor Sports, Inc.,
Here, there is sufficient evidence that a reasonable jury could have found for Nelson. Drawing all inferences in Nelson's favor, the Court determines that a reasonable jury could have concluded that Nelson was unarmed, and that Nelson's turn back toward the house was not a motion to return to the home for more weapons, but was a motion to comply, belatedly, with the officers' command to turn around and get on the ground. Regarding whether Nelson was unarmed, it is undisputed that: (i) Nelson dropped the knife in the house;22 (ii) the police sniper cleared Nelson's hands of weapons before Nelson stopped at the end of the driveway;23 and (iii) Johnston testified that "it's kind of hard to hide a rifle" in what Nelson was wearing.24 Although *1091the officers never cleared Nelson's waistband,25 drawing all inferences in his favor, the Court concludes a reasonable jury could determine that Nelson was unarmed, because the knife and the rifle were the only two weapons Patterson reported.26 Regarding Nelson's turn, Nelson complied, belatedly, with other commands,27 so, again, drawing all inferences in his favor, a reasonable jury could conclude that Nelson was complying, belatedly, to turn around and go to the ground.28
With these two inferences in mind, a reasonable jury could conclude that the officers used excessive force when they fired five beanbag shotgun shots and a wooden-baton round, released a police dog without warning, and cycled a Taser six times in thirty-seven seconds on an unarmed, drunken, sixty-two year old man, belatedly complying with officer's orders. See Cavanaugh v. Woods Cross City,
The facts that the Defendants highlight do not alter the Court's conclusion. For instance, they note that, although seventeen SWAT team members responded to the call, only "four or five officers actually engaged [Nelson]." Motion at 6. A reasonable jury, however, could still conclude that the officers used excessive force, because the "four or five officers" were armed, were protected by an armored vehicle, and outnumbered an unarmed sixty-two year old man. The Defendants also point to several instances where the officers subjectively perceived a threat from Nelson. For example, they note that "Sergeant Johnston saw Plaintiff moving his hands around his waistband area which caused him concern," Motion at 7, and "[Nelson] kept coming towards the officers instead of stopping where he was told; [Nelson] was closing the distance and thus compromising their safety," Motion to Alter at 11. Given the excessive force standard, a reasonable jury may discount these subjective concerns and subjective inferences *1092that the officers' safety was compromised, because the relevant inquiry is whether the officer's use of force was objectively reasonable under the circumstances. Graham, 490 U.S. at 398,
The Defendants also note several other facts that the Court need not accept as true on a rule 50(b) motion. For example, they characterize Nelson's struggle with the police dog as Nelson "resist[ing]" and acting "non-compliant," Motion at 11, to officers' orders to "let go of the fence," Motion to Alter at 13. Although undisputed that Nelson pulled up on the police dog and that Nelson did not let go of the fence immediately after commanded to do so, the Court does not need to infer under rule 50(b) that Nelson was "resisting" arrest or acting non-compliant, justifying the officers' Taser strike. Whether a suspect is "resisting" is a legal determination. See Graham,
A reasonable jury could also determine that Tasing Nelson six times in an effort to make him let go of a fence constituted excessive force. "[I]t is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force-or a verbal command-could not exact compliance." Casey,
Because a reasonable jury could have found for Nelson, the Court turns to the three remedies rule 50(b) provides. It reads:
In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b). The Court declines to direct judgment as a matter of law for the Defendants, because a reasonable jury could have found for Nelson. It also declines to order a new trial, because the Defendants have not asked for one. See Tr. at 31:19 (Griffin)("I'm not asking for a new trial.").
The Defendants urge the Court to order the final remedy-allow judgment on the jury verdict. See Motion at 13-14; Tr. at 25:2-20 (Griffin). That remedy, however, in this circumstance, is inappropriate. The effect of "allow[ing] judgment on the verdict" would be to alter Judge Black's judgment as a matter of law for Nelson. Rule 50 affords the Court no appellate power to undo another District Judge's determination, or even the power to alter a previous determination made by that District Judge or the Court. As the United States Court of Appeals for the Fifth Circuit has explained, "rule [50] serves two fundamental purposes: to enable the trial court to re-examine the sufficiency of the evidence as a matter of law ... and to alert the opposing party to the insufficiency of his case before being submitted to the jury." Delano-Pyle v. Victoria Cty.,
Rule 59(e) buttresses this conclusion, because it explicitly provides the mechanism to amend or alter or a judgment. Moreover, courts have noted that, notwithstanding a motion's title, where a motion's substance seeks to alter or amend, the proper course is to interpret that motion as a rule 59(e) motion. See Yost v. Stout,
Accordingly, to the extent that the Motion is a rule 50(b) motion and to the extent that the Defendants request the Court to alter a determination made by Judge Black under rule 50(b), the Court *1094denies the motion. Although rule 50(b)'s remedies do not explicitly list denial as an option, rule 50(e) contemplates that a court, nonetheless, may deny a rule 50(b) motion. See Rule 50(e) ("If the court denies the motion for judgment as a matter of law ..."). Indeed, courts frequently deny rule 50(b) motions. See, e.g., In re USA Commercial Mortg. Co.,
III. TO THE EXTENT THAT THE DEFENDANTS' MOTION IS A RULE 50(B) MOTION AND RAISES QUESTIONS NOT DECIDED BY JUDGE BLACK, THE COURT DENIES THE MOTION.
Although Judge Black clearly determined that, regarding the constitutional violation, judgment as a matter of law for Nelson was appropriate, the Defendants arguably raise two issues in their motion that Judge Black may not have addressed in Black's Opinion or subsequent orders: (i) whether the law was clearly established for qualified immunity's purposes; and (ii) whether the Defendants are immune to the state-law battery claim. Because Judge Black's rulings did not decide those questions, the Defendants are not requesting the Court to alter or amend a previous judgment as to those issues. Rule 50(b) affords the Court the power to review legal questions raised under rule 50(a). See rule 50(b) ("If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion."). Rule 50(b) is, thus, a proper vehicle for the Defendants to raise qualified immunity's clearly established inquiry as a purely legal question and to raise the state-law battery immunity as a question not answered by Judge Black. The Court addresses those issues in reverse order.
Nelson alleges a common-law battery claim against the Defendants pursuant to the New Mexico Tort Claims Act. See Amended Complaint ¶¶ 36-41, at 7. Under
Turning to qualified immunity, it appears that Judge Black did not rule on qualified immunity's clearly established prong in Black's Opinion granting Nelson judgment as a matter of law. See Black's Opinion at 1-9.29 The Defendants, however, did not raise the clearly established prong in that motion's briefing. See RJMOL Resp. at 1-14. They did, nonetheless, raise that issue in the Motion to Alter. See Motion to Alter at 26. Black's First Order may have addressed their clearly established argument by noting "[a]dditionally, Defendants elaborate several facts and arguments that are simply in error," but he did not address qualified immunity's second requirement by name. Black's First Order at 2. Black's Second Order may have also addressed it, because he wrote, "there are no mistakes or 'clear errors' warranting an amended judgment," but again, he did not mention the clearly established prong specifically. Black's Second Order at 1-2. Judge Black, however, did address the clearly established prong specifically in his SJ Opinion denying Defendants' Summary Judgment on the excessive force claim. SJ Opinion at 6 ("[T]he right to be free from excessive force, and the objectively reasonable standard under which that right is analyzed, are both 'clearly established' for the purposes of qualified immunity.")(citing Olsen v. Layton Hills Mall,
The Court concludes that it can reconsider a prior summary judgment order with a rule 50(b) motion on a purely legal issue. Rule 50(b)'s text establishes that purely legal questions can be raised at the post-trial phase. See Fed. R. Civ. P. 50(b) ("[T]he court is considered to have submitted the action to the jury subject to *1096the court's later deciding the legal questions raised by the motion."). Caselaw further supports that purely legal matters can be reexamined under rule 50(b). For example, several courts have reexamined orders denying summary judgment on qualified immunity's clearly established prong after a rule 50(b) motion. See Hill v. Crum,
The Defendants did not, however, properly preserve this purely legal issue for the Court to now review. A prerequisite to a rule 50(b) motion, and one implicit in its nature as a renewed motion for judgment as a matter of law, is that the moving party must make a rule 50(a) motion for judgment as a matter of law, and must raise in that motion all issues it seeks to raise in their subsequent rule 50(b) motion. See M.D. Mark, Inc. v. Kerr-McGee Corp.,
Here, the Defendants made the two following oral motions at trial:
The 10th Circuit, has held that defendants who have asserted a qualified immunity motion on summary judgment grounds may renew it at the Rule 50 stage. So for-at this stage, I would like to formally renew the [summary judgment] motion that was filed on April 6th of 2011 ... and just incorporate by reference the arguments already made with regard to that motion.
*1097Trial Tr. at 720:2-10 (Griffin). The Defendants, later, at the close of evidence stated: "Your honor, I just briefly want to renew the summary judgment on qualified immunity, as well as the Rule 50 motion that we made at the close of plaintiff's case." Rule 50 Tr. at 2:8-11 (Griffin).
Although the Defendants' rule 50(a) motion incorporated their summary judgment motion, they did not adequately preserve the qualified immunity issue, because their summary judgment motion did not argue qualified immunity's clearly established prong. To be sure, the Defendants' SJ Motion laid out the test for qualified immunity, specifically noting that "in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point," Defendants' SJ Motion at 6-7, but their argument centers on whether there was a constitutional violation, see Defendants SJ Motion at 10-11, not the absence of Tenth Circuit or Supreme Court caselaw clearly establishing the right. Their conclusion in their qualified immunity analysis demonstrates that they failed to argue the clearly established element: "[B]ased upon the totality of these circumstances, a reasonable amount of force was used by all of the defendant officers in this case and accordingly, they are each entitled to qualified immunity against Plaintiff's excessive force claim." Defendants SJ Motion at 11.31 The Defendants' SJ Motion Reply similarly focuses on the officers' reasonableness, i.e., the underlying constitutional violation, not the clearly-established element. See SJ Motion Reply at 2-5. Although their summary judgment reply noted that "there is no established legal precedent within the Tenth Circuit which holds that the use of a bean-bag shot-gun is deadly force," SJ Reply at 7, this sentence did not sufficiently preserve the argument, because it is specific to deadly force and it does not address the officers' conduct beyond the beanbag shotgun.
The Defendants' actions or lack thereof during their rule 50(a) motions at trial further supports the conclusion that the Defendants did not preserve or even argue the clearly established element. After the Defendants made their rule 50(a) motion at the close of Nelson's case-in-chief, Judge Black ruled from the bench: "I find that there's a factual dispute as to that, so I will deny that at this time." Trial Tr. at 720:22-23 (Court). Instead of correcting Judge Black that they were also arguing a purely legal issue, the Defendants continued to argue about the evidence at trial until Judge Black cut them off, and they moved on to another motion. See Trial Tr. at 720:24-722:25 (Court, Griffin). Similarly, at the close of their case-in-chief, the Defendants again argued qualified immunity, and again Judge Black denied it based on "the interpretation of the facts that the experts used." Rule 50 Tr. at 3:13-14 (Court). The Defendants still did not correct Judge Black that they were making a purely legal argument as well. Rule 50 Tr. at 3:13-20 (Court).
Accordingly, the Defendants' rule 50(a) motions incorporating their Summary Judgment Motion did not adequately preserve qualified immunity's clearly established element. The Court therefore denies their rule 50(b) motion concerning that purely legal issue. Cf. Blissett v. Coughlin,
IV. THE COURT CONSTRUES THE DEFENDANTS' RULE 50(B) MOTION AS A MOTION TO ALTER OR AMEND A JUDGMENT PURSUANT TO RULE 59(E), AND WILL AMEND THE JUDGMENT.
As explained above, the Defendants ask for a remedy that rule 50(b) does not provide-namely, they seek to alter or amend Judge Black's judgment. There is a rule, however, that grants the remedy the Defendants seek- rule 59(e).33 The Court has discretion to interpret a rule 50(b) motion as a motion to alter or amend if the motion's substance is one to alter or amend a judgment. See United States v. Amado,
*1099motion was "the functional equivalent of a rule 50(b) motion."). Because the Defendants' Motion effectively asks the Court to overrule Judge Black's order granting Nelson judgment as a matter of law, see Motion at 13-14 ("incorporating by reference their arguments, points, and authorities in [the] Defendants['] Motion to Alter ... [asserting] that the jury verdict should stand"), the Court will consider it as a motion to alter or amend Judge Black's judgment pursuant to rule 59(e).34
Under rule 59(e)'s framework, the Court is not restricted to rule 50(b)'s remedies and may alter the judgment when there is: "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does,
The Court concludes that Judge Black did not correctly rule Nelson's RJMOL. Because clear error is one ground on which the Court can amend a judgment, the Court will alter Judge Black's ruling granting judgment as a matter of law for Nelson and the Final Judgment.35 Had Judge Black drawn all inferences in the Defendants' favor, he could not have properly *1100concluded that no reasonable juror could have found for the Defendants. There was sufficient evidence to reasonably infer that Nelson: (i) could have hidden a weapon in his waistband; (ii) acted with hostility before the confrontation; and (iii) could have been attempting to escape from officers after they opened fire on him. Additionally, Judge Black clearly erred by ruling that qualified immunity did not apply, because the law was not clearly established.36
A. THE COURT ALTERS THE JUDGMENT, BECAUSE A REASONABLE JUROR COULD HAVE FOUND FOR THE DEFENDANTS.
A reasonable jury could have found for the Defendants. As explained above, the standard for ruling on a rule 50(b) motion is similar to that for ruling on a rule 50(a) motion-whether there was sufficient evidence upon which a reasonable jury could have found for the non-moving party. See Wagner v. Live Nation Motor Sports, Inc.,
Here, a reasonable jury could have inferred that Nelson had a weapon on him, or could have concluded that a reasonable police officer could have believed that Nelson was concealing a weapon-making Nelson an immediate threat. Although it is undisputed that the sniper cleared Nelson's hands, it is also undisputed that Nelson wore a heavy black leather jacket.37 Several officers subjectively believed that the leather jacket could have concealed a weapon in Nelson's waistband, which the sniper was not able to clear for weapons.38 It is also undisputed that Nelson never put *1101his hands up as ordered, which also prevented the officers from clearing his waistband.39 Although the officers had accounted for the knife and rifle, a reasonable jury could have inferred that Nelson concealed another weapon. Accordingly, they could have concluded that Nelson posed an immediate threat before the officers opened fire with their non-lethal weapons;
When viewed from the perspective of a reasonable officer on the scene, and in the light most favorable to Officer Hackett, the situation presented a man ... who would not respond to any of the officers' repeated demands to emerge, and who kept his hands hidden in such a manner as to conceal a weapon ... we determine that the record contains substantial evidence to support the verdict.
Gutierrez v. Hackett,
A reasonable jury could have also concluded that Nelson actively resisted arrest. Although one reasonable inference is that Nelson belatedly complied with all of the officers' orders, another reasonable inference is that Nelson, who was so drunk that he could not remember what happened, was behaving drunkenly-erratic, belligerent, and unpredictable. Cf. Navarette v. California, --- U.S. ----,
*1102Given the facts that Nelson had threatened his friend with weapons, potentially had a weapon, and acted with hostility or resisted the police's attempts to arrest him, a reasonable jury could have concluded that Nelson posed an immediate threat and was resisting arrest. They could have also concluded, accordingly, that the officers' use of the following non-lethal weapons was reasonable: (i) the beanbag shot-gun; (ii) the wooden-baton rounds; (iii) the flash bang diversionary device; (iv) and the dog. See Gutierrez v. Hackett,
The Court also concludes that a reasonable juror could have found, under the circumstances, that Tasing Nelson six times was reasonable. As Hughes testified, *1103a Taser is a "step down" in force from using a beanbag shotgun, and is typically used "when someone is resisting passively or actively" arrest. Trial Tr. at 342:24-343:2 (Hughes). The facts further illustrate that a reasonable jury could have concluded that the force employed was reasonable. After the police dog latched onto Nelson's left arm and Nelson clutched the fence with his right, Limon and Hughes approached Nelson. See Trial Tr. at 362:8-11 (Hughes). As they approached, one of the officers gave Nelson several commands to "let go of the fence." Trial Tr. at 364:15-25 (Hughes). Officer Limon then fired his Taser at Nelson. 363:16-17 (Hughes). Limon's Taser, however, appeared ineffective. See Trial Tr. at 364:8-9 (Hughes)("[Nelson] didn't look like-he looked like he was being Tased."). Hughes then fired his own Taser from ten feet away from Nelson. See Trial Tr. at 365:11-12 (Hughes). He testified that Nelson was moving "a great deal" as he deployed his Taser, and that Nelson was not complying with an order to let go of the fence. See Trial Tr. at 364:21-25 (Griffin, Hughes); id. at 366:23-25 (Griffin, Hughes); id. at 368:6-7 (Hughes). Hughes subsequently cycled the Taser six times over thirty-seven seconds, in part because Nelson "was still holding onto the fence and appeared to be fighting with the dog" and also in part to put Nelson in a position that would decrease the likelihood Nelson could "stage an attack" against officers "or run away again." Trial Tr. 369:3-370:13 (Hughes). Hughes' Taser also appeared to have little effect on Nelson, because he continued to move and "pull away from the dog" even while Hughes cycled his Taser. Trial Tr. 367:11-19 (Griffin, Hughes).
The Tenth Circuit has had many occasions to comment on Taser use. Under binding Tenth Circuit case law "it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force-or a verbal command-could not exact compliance." Casey,
Given this binding precedent, a reasonable jury could conclude that, even after the wooden-baton rounds, the beanbag rounds, and the dog, firing the Taser six times was reasonable. Although Nelson's arms were occupied, a reasonable jury could still conclude that Nelson posed an immediate threat if he had a weapon on him and there was reasonable possibility that one arm could break free. With Nelson struggling against the dog, it is reasonable to infer that, in the moment, he could have escaped from the dog or he could have gained enough leverage to liberate his right hand from the fence to reach for a weapon. There was also evidence that Nelson continued to resist the officers. For example, the officers gave Nelson verbal commands to let go of the fence so they could safely arrest him, but Nelson did not comply with those commands. See Trial Tr. at 364:15-25 (Griffin, Hughes); id. at 368:6-7 (Hughes). Given the Tenth Circuit's emphasis that failure to comply with verbal orders balances toward finding force reasonable, see Cavanagh I,
*1105For largely the same reasons, the Court also determines that a reasonable jury could have found either that the officers did not commit a battery or that the officers acted reasonably or in good faith, shielding them from liability under New Mexico Law. See Mead v. O'Connor,
B. The Court Alters the Judgment, Because the Officers Are Entitled to Qualified Immunity.
The Defendants also assert that they are entitled to qualified immunity for two reasons. First, there was no constitutional violation, and second the law was not clearly established in March, 2009.43 Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan,
The Tenth Circuit has recognized a sliding scale for qualified immunity's clearly-established inquiry. Casey,
We erred ... by relying on excessive-force cases markedly different from this one. Although we cited Graham,490 U.S. 386 ,109 S.Ct. 1865 (1989) to lead off our clearly-established-law discussion, we did not just repeat its general rule and conclude that the officers' conduct had violated it. Instead, we turned to our circuit's sliding-scale approach measuring degrees of egregiousness in affirming the denial of qualified immunity. We also relied on several cases resolving excessive-force claims. But none of those cases remotely involved a situation as here.
Aldaba II,
To show clearly established law, the Hope [v. Pelzer ] Court did not require earlier cases with "fundamentally similar" facts, noting that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741,122 S.Ct. 2508 . This calls to mind our sliding-scale approach measuring the egregiousness of conduct. See Morris v. Noe ,672 F.3d 1185 , 1196 (10th Cir. 2012). But the Supreme Court has vacated our opinion here and remanded for us to reconsider our opinion in view of Mullenix , which reversed the Fifth Circuit after finding that the cases it relied on were "simply too factually distinct to speak clearly to the specific circumstances here."136 S.Ct. at 312 . We also note that the majority opinion in Mullenix [v. Luna ] does not cite Hope v. Pelzer ,536 U.S. 730 ,122 S.Ct. 2508 ,153 L.Ed.2d 666 (2002). As can happen over time, the Supreme Court might be emphasizing different portions of its earlier decisions.
Aldaba II,
White v. Pauly, is one of several cases the Supreme Court has decided in the past several years reversing Courts of Appeals on qualified immunity's clearly-established prong. See City and Cty. of San Francisco v. Sheehan, --- U.S. ----,
With that string of Supreme Court rulings emphasizing the need for factually specific cases to conclude that a law was clearly established, the Court rules that the Defendants are entitled to qualified immunity. The Court was unable to locate any Tenth Circuit or Supreme Court cases decided before 2009 that were factually specific enough to the officers' conduct to put them on notice that their conduct was unconstitutional. That reality alone dictates that the officers are entitled to qualified immunity. Nelson's briefing only offers arguments that the conduct is so egregious under Graham that the officers are not entitled to qualified immunity. See SJ Resp. at 15-21; Motion to Alter Resp. at 18-19. While recognizing that the Supreme Court has left open the door that an "obvious case" under Graham may be clearly established for qualified immunity, White v. Pauly,
The most analogous case it could find buttresses the Court's conclusion. See Medina,
*1108IT IS ORDERED that the requests in Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting for the Judgment on the Jury Verdict to Stand; to Find Defendants Have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants, filed July 26, 2012 (Doc. 201), are granted in part and denied in part. The Court will amend the Final Judgment.
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