*

The Honorable Karen K. Caldwell, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0270P (6th Cir.)

File Name: 04a0270p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

CALVIN B. CHAMPION et al.,

Plaintiffs-Appellees,

v.

OUTLOOK NASHVILLE, INC. et

al.,

Defendants,

DEBBIE MILLER et al.,

Defendants-Appellants.

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No. 03-5068

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 00-00568—Todd J. Campbell, District Judge.

Argued: April 21, 2004

Decided and Filed: August 19, 2004 

Before: BATCHELDER and MOORE, Circuit Judges;

CALDWELL, District Judge.*

2 Champion et al. v. Outlook

Nashville, Inc. et al.

No. 03-5068

_________________

COUNSEL

ARGUED: Francis H. Young, METROPOLITAN

DEPARTMENT OF LAW, Nashville, Tennessee, for

Appellants. Trent A. McCain, COCHRAN, CHERRY,

GIVENS, SMITH & MONTGOMERY, Chicago, Illinois, for

Appellees. ON BRIEF: Francis H. Young,

METROPOLITAN DEPARTMENT OF LAW, Nashville,

Tennessee, for Appellants. Trent A. McCain, James D.

Montgomery, Thomas C. Marszewski, COCHRAN,

CHERRY, GIVENS, SMITH & MONTGOMERY, Chicago,

Illinois, for Appellees.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. The death of

Calvin D. Champion (“Champion”) shortly after being

detained, restrained, and subdued by Nashville PoliceOfficers

presents us with a difficult issue of whether the Officers are

entitled to qualified immunity such that we should reverse a

jury verdict rendered against them. On April 30, 1999,

Champion overwhelmed the facilities of his caregiver,

promoting a response by the Nasvhille Police. Three

Nashville Police Officers, Defendants-Appellants Debbie

Miller (“Miller”), Richard Woodside (“Woodside”), and

Craig Dickhaus (“Dickhaus”) (collectively “Defendants” or

“Officers”), subdued Champion with pepper spray and

physical restraints. At trial, five different witnesses testified

that after Champion was handcuffed and his feet were bound,

the Officers continued to pepper spray Champion and to apply

pressure to Champion’s back as he lay on his stomach.

Champion died en route to the hospital shortly after this

incident. Champion’s father, Calvin B. Champion, and
No. 03-5068 Champion et al. v. Outlook

Nashville, Inc. et al.

3

1

Champion’s father brought the action individually and as the

personal representative of Champion’s estate. Champion’s sister was a

plaintiff in her individual capacity only.

Champion’s sister, Jetonne Champion-Collins, (together

“Plaintiffs”),1 brought an action against the Officers pursuant

to 42 U.S.C. § 1983. A jury awarded the Plaintiffs $900,000

in damages for Champion’s physical and mental pain and

suffering. Following the return of the verdict, the district

court denied the Officers’ motion for a judgment as a matter

of law or a new trial or remittitur, in which they argued that

they were entitled to qualified immunity and that the verdict

was excessive.

While the Officers undoubtedly faced unenviable choices

in their interactions with Champion, they are not entitled to

qualified immunity. Based upon the testimony presented at

trial, the Officers’ actions in this particular situation violated

Champion’s clearly established rights. Consequently, we

AFFIRMthe judgment of the district court, which upheld the

jury’s verdict.

I. FACTS AND PROCEDURE

A. Factual Background

The parties mostly agree on the anguishing series of events

that culminated in Champion’s death, but they differ with

regards to the most crucial moments of the incident.

Champion, who was 32 years old at the time of his death,

completely lacked the ability to care for himself on account

of his autism. He was nonresponsive and unable to speak.

Outlook Nashville, Inc. (“Outlook”), which provided care for

developmentally disabled individuals, was responsible for his

well-being. On April 30, 2000, Jolene Delelys (“Delelys”),

an Outlook employee, watched over Champion. Upon

departing from a Nashville Babies ‘R’ Us store, where

4 Champion et al. v. Outlook

Nashville, Inc. et al.

No. 03-5068

Delelys had taken Champion and her three-year-old son

Devin, Champion began to have a “behavior.” Delelys had

neglected to seatbelt Champion, and Champion began to

move around Delelys’s minivan, hitting himself in the face

and biting his hand, which was a type of “behavior”

Champion frequently exhibited. Delelys stated that

Champion was very agitated, “slapping his own head harder

than usual, biting his own hand harder than usual, slapping

the top of [Devin]’s head, shaking [Devin]’s hand.” Joint

Appendix (“J.A.”) at 165.

Delelys stopped the van, fearing that Champion’s behavior

would further escalate. Delelys and Champion both exited

the van. Champion grabbed Delelys’s right hand and started

to rub her hand all over his head, a response which,

unbeknownst to Delelys, had helped Champion to calm down

in the past. Delelys became frightened. She broke away from

Champion and locked herself in the van, realizing she had lost

control. Delelys tried to get help. She failed in her repeated

attempts to call the Outlook emergency number. Finally,

Delelys called 911. Right after she finished her phone call,

Officer Debbie Miller appeared at the driver-side window,

having been alerted to the developing problem by other

Babies ‘R’ Us customers who had phoned 911. Delelys

informed Miller that Champion was mentally ill, but Delelys

did not tell Miller that Champion was nonverbal and

nonresponsive.

Miller approached Champion, asking him for his name and

to explain the reason for his agitation. Champion was hitting

and biting himself as he began to approach Miller. Miller told

Champion to stop, but Champion kept advancing towards

Miller. Miller had walked backwards about fifty feet through

the parking lot, retreating from Champion, when Champion

grabbed Miller’s shirt. Miller pushed Champion’s hand away

and delivered a short burst of pepper spray to Champion’s

face.
No. 03-5068 Champion et al. v. Outlook

Nashville, Inc. et al.

5

Champion walked dazedly into the Babies ‘R’ Us. Miller

followed him into the store, and after a few minutes she

touched him on the arm and ordered him to leave. Champion

responded to this command, giving Miller the false

impression that Champion actually understood her. Just as

the two exited the store, Officer Richard Woodside arrived.

Miller informed Woodside that Champion was “10-35” —

police code for “mentally ill individual” — and that she had

previously sprayed Champion with pepper spray. Miller and

Woodside attempted to arrest Champion outside the store, but

the Officers struggled with Champion until Officer Craig

Dickhaus arrived. The Officers decided to take Champion to

the ground in the entrance foyer of the store, an area with

carpeting. As Miller described it, “Woodside bends or squats

down to where he has his arms wrapped around, a bear hug

position if you will, of Champion’s lower legs. And as

Officer Dickhaus and myself step forward, we bring

Champion down to his knees, and then from his knees we

gently lay him from his knees, his knees to his stomach, and

down on his chest to the ground.” J.A. at 248.

Once on the ground Champion struggled. The Officers

handcuffed Champion using two sets of handcuffs so as to

allow Champion more movement. Champion continued to

squirm and move around. Because Woodside had difficulty

controlling Champion’s feet, which were kicking high into

the air, Miller and Dickhaus decided to restrain Champion

further through the use of a “hobble device,” which

essentially binds an individual’s ankles together. The

Officers had difficulty putting on the hobble device because

Champion was still kicking violently, but they eventually

“hobbled” him.

The parties’ divergent recounting of what occurred in the

seventeen minutes between the application of the hobbling

device and the arrival of the emergency medical technicians

(“EMT”) was one of the most significant factual issues at trial

and is the axis around which this appeal revolves. The

6 Champion et al. v. Outlook

Nashville, Inc. et al.

No. 03-5068

Plaintiffs have not suggested that the Officers acted

improperly before Champion was handcuffed and hobbled.

Indeed, the Plaintiffs’ entire § 1983 claim is premised on the

Officers’ alleged use of pepper spray and application of

asphyxiating pressure after Champion’s incapacitation. The

parties disagreed during trial, and continue to diverge, in their

respective understandings of how much force the Officers

used after Champion was incapacitated on the ground.

After several minutes of being on the ground, Champion

began to vomit. Woodside immediately called for an

ambulance. Between Champion’s first regurgitation and the

arrival of the EMTs, Champion vomited two more times.

Each time, according to the officers, Dickhaus and Miller

pulled Champion back by the arms so that he would not be

lying in his own vomit. They also checked Champion’s

mouth and nose to ensure that he was still breathing. The

Officers reported that after vomiting, Champion was alert,

blinking, breathing, and moving his head from side-to-side.

The EMTs entered the store shortly after Champion

vomited for a third time. The first EMT to view Champion

was Douglas Baggett (“Baggett”). Baggett testified that as he

stepped over Champion, he noticed that Champion’s legs

moved a couple of inches, which gave Baggett the impression

that Champion was alive. Then, Champion’s “belly rose, his

back rose up, and then he vomited,” J.A. at 153 (Baggett

Test.), such that Baggett thought he was watching Champion

“take his last breath.” J.A. at 154. Baggett failed to find a

pulse on Champion and asked the Officers to remove the

handcuffs, which they promptly did. Champion went into

cardiac arrest; despite effort to resuscitate him, he was

pronounced dead on arrival at the hospital.

All three Officers claim that none of them put pressure on

Champion’s back or pressed Champion’s face into the floor

such that he could not breathe during this entire time period.

See J.A. at 181, 185 (Dickhaus Test.); J.A. at 255-56 (Miller
No. 03-5068 Champion et al. v. Outlook

Nashville, Inc. et al.

7

Test.) (“Not only did I not [lie across Champion’s back, lie

across his legs, or kick him], I took extra care myself to make

sure that Champion did not receive any injuries from the

ground . . . . [W]e knew he had a mental problem.”); J.A. at

298 (Woodside Test.). Additionally, the Officers claimed that

Champion was not sprayed again with chemicals after he was

on the ground. J.A. at 185 (Dickhaus Test.); J.A. at 298

(Woodside Test.). Paramedic Douglas Sleighter, who is

extremely sensitive to pepper spray such that he feels its

effects if it is sprayed near him or on another individual near

him, testified that he did not detect any pepper spray on

Champion during the course of the ambulance ride.

However, five different lay witnesses testified that the

Officers continued to sit or otherwise put pressure on

Champion’s back while he was prone on the ground with his

face towards the carpet. J.A. at 156 (Ballenger Test.)

(recalling that the Officers were lying on top of Champion);

J.A. at 158 (Buford Test.) (“They were laying on him, like

how wrestlers do in the ring, they were just all — upper body

was on him, all their strength was on him.”); J.A. at 228

(Jamerson Test.); (“I saw three officers on top of him.”); J.A.

at 230-31 (Martinez Test.) (“They were holding him down,

laying on top of him after he was already down . . . . [T]hey

are on top of him and with their elbows, and basically laying

on top of him.”); J.A. at 265 (Simpson Test.) (“I believe there

was another officer with his knee in the middle of his back

. . . .”). Additionally, these witnesses testified that the

Officers continued to use pepper spray on Champion after he

was subdued on the ground and had stopped resisting. J.A. at

156 (Ballenger Test.) (“[Champion] turned his head to move

and breathe . . . and the female officer maced him.”); J.A. at

229 (Jamerson Test.) (testifying that Miller sprayed

Champion twice and that Champion subsequently turned

white); J.A. at 231-32 (Martinez Test.) (“Well, he was on the

ground already and [Miller] maced him again after he was

already handcuffed.”); J.A. at 265 (Simpson Test.) (“He

turned his face to breathe and then he got sprayed again.”).

8 Champion et al. v. Outlook

Nashville, Inc. et al.

No. 03-5068

All of these witnesses stated that they did not see Champion

struggle during this time. There were some inconsistencies,

however, in the witnesses’ stories, particularly with regard to

the length of time that various activities regarding Champion

went on and the number of Officers who were lying on him

after they brought him to the ground.

B. Procedural History

Plaintiffs filed their action on June 15, 2000. The

complaint featured several different claims against an array of

defendants, but most of the claims were dismissed, leaving

only: 1) negligence claims against Outlook and Delelys; and

2) § 1983 claims against the three Officers premised upon

violations of Champion’s rights under the Fourth Amendment

(excessive force) and Fourteenth Amendment (failure to

render medical assistance). Following discovery, the

government defendantsfiled a motion for summary judgment,

alleging for the first time that qualified immunity insulated

the Officers from liability. The district court ruled that the

Officers were not entitled to qualified immunity and denied

the Officers’ motion for summary judgment. The Officers did

not appeal this ruling.

The parties prepared for trial. On July 31, 2002, the

Officers filed a motion in limine objecting to the inclusion of

the testimony of the Plaintiffs’ three experts, Michael F.

Dorsey (“Dorsey”), Kris Sperry (“Sperry”), and Geoffrey

Alpert (“Alpert”). The district court denied the motion in

part, permitting Sperry and Alpert to testify.

The trial began on August 20, 2002. The jury heard

contradictory testimony from the Officers, the witnesses, and

several experts regarding the amount of force exerted against

Champion, Champion’s cause of death, and the level of pain

and suffering Champion might have endured. Before the jury

retired, the Officers filed a motion for a judgment as a matter

of law, which was denied. The jury returned a verdict on
No. 03-5068 Champion et al. v. Outlook

Nashville, Inc. et al.

9

August 29, 2002. It found Outlook and Delelys liable in the

amount of $3.5 million for their negligence. The jury also

found each police officer liable to the Plaintiffs in the amount

of $300,000 each.

The Officers filed a combined post-verdict motion,

renewing their motion for a judgment as a matter of law, or in

the alternative, seeking a new trial or remittitur. The Officers

based their renewed motion for judgment as a matter of law

on qualified immunity. J.A. at 123. The district court denied

the Officers’ motion on November 21, 2002, ruling that

“[b]ased on the facts at trial, taken in the light most favorable

to the Plaintiff, the officers’ conduct violated the Plaintiff’s

constitutional right not to be subjected to excessive force and

that right was clearly established at the time of the officers’

conduct.” J.A. at 127-28 (Dist. Ct. Or. 11/21/02). The

district court also ruled that the $300,000 verdicts against the

Officers were not excessive.

The Officers timely appealed several of the district court’s

rulings, including: 1) the order denying in part the motion for

summary judgment; 2) the district court’s ruling on Alpert’s

testimony; and 3) the denial of the Officers’ motion for

judgment as a matter of law, or in the alternative a new trial

and/or remittitur.

II. ANALYSIS

A. Standards of Review

We evaluate the decisions of the district court through

several different lenses. The Officers ask us to review both

the denial of their motion for summary judgment and the

denial of their motion for a judgment as a matter of law,

which was initially filed before the jury retired pursuant to

Federal Rule of Civil Procedure 50(a) and was renewed after

the return of the jury’s verdict pursuant to Rule 50(b). See

Fed. R. Civ. P. 50(a)-(b). All of these motions concerned the

10 Champion et al. v. Outlook

Nashville, Inc. et al.

No. 03-5068

Officers’ alleged qualified immunity from liability. “[I]n

cases where an appellant made a Rule 56 motion for summary

judgment that was denied, makes those same arguments in a

Rule 50(a) motion at the close of evidence that was also

denied, lost in front of a jury, then renewed its arguments in

a rejected Rule 50(b) motion after the entry of judgment, we

will review only the denial of the Rule 50(b) motion.” K &

T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 174 (6th Cir.

1996). “[R]eviewing a Rule 50 determination is preferable to

reviewing a summary judgment decision because the Rule 50

decision is based on the complete trial record and not the

incomplete pretrial record available at summary judgment.”

Id. (quotation omitted).

Thus, we review de novo the denial of the Rule 50(b)

motion, but our de novo review is narrowed by the test for

evaluating a renewed Rule 50(b) motion. Garrison v.

Cassens Transp. Co., 334 F.3d 528, 537 (6th Cir. 2003);

Monday v. Oullette, 118 F.3d 1099, 1101 (6th Cir. 1997).

The Supreme Court has held,

[I]n entertaining a motion for judgment as a matter of

law, the court should review all of the evidence in the

record.

In doing so, however, the court must draw all

reasonable inferences in favor of the nonmoving party,

and it may not make credibility determinations or weigh

the evidence. . . . [A]lthough the court should review the

record as a whole, it must disregard all evidence

favorable to the moving party that the jury is not required

to believe. That is, the court should give credence to the

evidence favoring the nonmovant aswell as that evidence

supporting the moving party that is uncontradicted and

unimpeached, at least to the extent that that evidence

comes from disinterested witnesses.
No. 03-5068 Champion et al. v. Outlook

Nashville, Inc. et al.

11

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150-51 (2000) (citations and quotations omitted). “The

motion should be granted, and the district court reversed, only

if reasonable minds could not come to a conclusion other than

one favoring the movant.” Garrison, 334 F.3d at 537-38

(quotation omitted).

Our review is further complicated by the underlying

qualified immunity question. The issue of “whether qualified

immunity is applicable to an official’s actions is a question of

law.” Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.

1996). “However, where the legal question of qualified

immunity turns upon which version of the facts one accepts,

the jury, not the judge, must determine liability.” Pouillon v.

City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000) (quotation

and ellipses omitted). Thus, to the extent that there is

disagreement about the facts, such as whether the Officers put

their body weight on Champion and pepper-sprayed him after

he was handcuffed and hobbled, we must review the evidence

in the light most favorable to the Plaintiffs, taking all

inferences in their favor. We cannot weigh the evidence or

make credibility assessments, and we are acutely aware that

a jury, faced directly with the tasks we cannot undertake,

believed the evidence presented by the Plaintiffs.

We employ a different method of review for the two other

issues raised on appeal by the Officers. We review for an

abuse of discretion the district court’s denial of the Officers’

post-trial motion for a new trial and/or remittitur filed

pursuant to Federal Rule of Civil Procedure 59. Gregory v.

Shelby County, 220 F.3d 433, 443 (6th Cir. 2000). We also

review for an abuse of discretion the district court’s decision

to allow Geoffrey Alpert’s expert testimony. Pride v. BIC

Corp., 218 F.3d 566, 575 (6th Cir. 2000).

12 Champion et al. v. Outlook

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No. 03-5068

B. Qualified Immunity

In actions involving the alleged abuse of government

power, the defense of qualified immunity accommodates the

tension between permitting litigants to recover damages,

which is often “the only realistic avenue for vindication of

constitutional guarantees,” Harlow v. Fitzgerald, 457 U.S.

800, 814 (1982), and the “social costs” of such suits,

including “the expenses of litigation, the diversion of official

energy from pressing public issues, and the deterrence of able

citizens from acceptance of public office.” Id. Qualified

immunity provides “that government officials performing

discretionary functions generally are shielded from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Id. at 818. We

employ a three-step inquiry for determining whether qualified

immunity is proper:

First, we determine whether, based upon the applicable

law, the facts viewed in the light most favorable to the

plaintiffs show that a constitutional violation has

occurred. Second, we consider whether the violation

involved a clearly established constitutional right of

which a reasonable person would have known. Third, we

determine whether the plaintiff has offered sufficient

evidence to indicate that what the official allegedly did

was objectively unreasonable in light of the clearly

established constitutional rights.

Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (emphasis

added) (quotation omitted). If the answer to all three

questions is “yes,” qualified immunity is not proper.

1. The Occurrence of a Constitutional Violation

First, we consider whether the facts, when taken in the light

most favorable to the Plaintiffs, demonstrate the occurrence
No. 03-5068 Champion et al. v. Outlook

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13

of a constitutional violation. See Saucier v. Katz, 533 U.S.

194, 201 (2001) (“Taken in the light most favorable to the

party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right? This must be

the initial inquiry.”). This is a threshold question that often

requires the setting forth of legal principles “which will

become the basis for a holding that a right is clearly

established.” Id. “[A]ll claims that law enforcement officers

have used excessive force — deadly or not — in the course of

an arrest, investigatory stop, or other ‘seizure’ of a free citizen

should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard.” Graham v. Connor, 490 U.S.

386, 395 (1989). The test’s “proper application requires

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. at 396. To

take the facts in a light most favorable to Plaintiffs is to

assume that the Officers lay on top of Champion, a mentally

retarded individual who had stopped resisting arrest and

posed no flight risk, and sprayed him with pepper spray even

after he was immobilized by handcuffs and a hobbling device.

The use of such force is not objectively reasonable, as the

Officers conceded at oral argument for the purposes of

focusing on the question of whether Champion’s right to be

free from this particular type of force was clearly established.

2. A “Clearly Established” Right?

The first Feathers inquiry bleeds into the second question

of whether the constitutional right was clearly established,

which is the focus of the parties on appeal. “If the law at that

time was not clearly established, an official could not . . .

fairly be said to ‘know’ that the law forbade conduct not

previously identified as unlawful.” Harlow, 457 U.S. at 818.

“[T]he right the official is alleged to have violated must have

been ‘clearly established’ in a more particularized, and hence

14 Champion et al. v. Outlook

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No. 03-5068

more relevant, sense: The contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Officials do not enjoy

qualified immunity simply because the exact action in

question has not previously been held unlawful by a court, but

“in the light of pre-existing law the unlawfulness must be

apparent.” Id. In the excess-force context, it is not enough

for a plaintiff to demonstrate that an officer’s use of force

exceeded the objective standard of reasonableness articulated

in Graham. Saucier, 533 U.S. at 201-202 (2001). Rather,

qualified immunity is proper unless “it would be clear to a

reasonable officer” that his use of excessive force “was

unlawful in the situation he confronted.” Id. at 202.

The Supreme Court has refused to require that a plaintiff

demonstrate the existence of a “fundamentally similar” or

“materially similar” case. Hope v. Pelzer, 536 U.S. 730, 741

(2002). There can be “notable factual distinctions between

the precedents relied on . . . so long as the prior decisions

g[i]ve reasonable warning that the conduct then at issue

violated constitutional rights.” Id. at 740 (quotation omitted).

“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Id. at

741. Moreover, the fact that various courts have “not agreed

on one verbal formulation of the controlling standard” does

not by itself entitle an officer to qualified immunity. Saucier,

533 U.S. at 203.

To demonstrate that the Officers unreasonably violated a

clearly established right, the Plaintiffs must therefore show

the prior articulation of a prohibition against the type of

excess force exerted here. “In inquiring whether a

constitutional right is clearly established, we must look first

to decisions of the Supreme Court, then to decisions of this

court and other courts within our circuit, and finally to

decisions of other circuits.” Higgason v. Stephens, 288 F.3d

868, 876 (6th Cir. 2002). “[A]n action’s unlawfulness can be
No. 03-5068 Champion et al. v. Outlook

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15

apparent from direct holdings, from specific examples

described as prohibited, or from the general reasoning that a

court employs.” Feathers, 319 F.3d at 848. Other sources

can also demonstrate the existence of a clearly established

constitutional right; in Hope, the Supreme Court considered

Alabama state regulations and communications between the

U.S. Department of Justice and the Alabama Department of

Corrections as evidence that the corporal punishment at issue

in Hope was clearly proscribed. Hope, 536 U.S. at 744-45.

Our caselaw and the evidence presented at trial about the

training that the Officers received demonstrate that the force

exerted against Champion violated his clearly established

Fourth Amendment rights. We have repeatedly stated that

“the right to be free from excessive force is a clearly

established Fourth Amendment right.” Neague v. Cynkar,

258 F.3d 504, 507 (6th Cir. 2001) (decided after Saucier).

For example, we have articulated a clearly established right to

be free from specific types of non-deadly excessive force,

such as handcuffing an individual too tightly. See Walton v.

City of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993). We

have also consistently held that various types of force applied

after the subduing of a suspect are unreasonable and a

violation of a clearly established right. See, e.g., Phelps v.

Coy, 286 F.3d 295, 301 (6th Cir. 2002) (“[T]here was simply

no governmental interest in continuing to beat Phelps after he

had been neutralized, nor could a reasonable officer have

thought there was.”); McDowell v. Rogers, 863 F.2d 1302,

1307 (6th Cir. 1988) (“[A] totally gratuitous blow with a

policeman’s nightstick may cross the constitutional line.”);

Lewis v. Downs, 774 F.2d 711, 715 (6th Cir. 1985) (“The

unprovoked and unnecessary striking of a handcuffed citizen

in the mouth with a nightstick is clearly excessive.”).

The particular type of physical force exerted against

Champion was unreasonable, and the Officers should have

been aware that they were violating Champion’s rights. First,

it is clearly established that the Officers’ use of pepper spray

16 Champion et al. v. Outlook

Nashville, Inc. et al.

No. 03-5068

against Champion after he was handcuffed and hobbled was

excessive. In Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994),

a plaintiff was sprayed with mace by authorities. Id. at 378.

The police then handcuffed the plaintiff, placed him in his

car, and according to the plaintiff and two witnesses,

continued to spray mace in the plaintiff’s face even though he

was already blinded and incapacitated. Id. We held that this

use of force was excessive, and we denied the officers

qualified immunity because “[a] reasonable person would

know that spraying mace on a blinded and incapacitated

person . . . would violate the right to be free from excessive

force.” Id. at 387; see also Vinyard v. Wilson, 311 F.3d 1340,

1348 (11th Cir. 2002) (“Courts have consistently concluded

that using pepper spray is excessive force in cases where . . .

the arrestee surrenders, is secured, and is not acting violently,

and there is no threat to the officers or anyone else.”).

In addition to prior precedent, the Officers’ training

demonstrates that they were aware of Champion’s clearly

established right to be free from this type of excessive force.

The Officers were taught that pepper spraying a suspect after

the individual was incapacitated constitutes excessive force.

Sergeant Robert Allen, who testified about the training the

Nashville Police Officers received, agreed that if Champion

were handcuffed and hobbled, spraying him with pepper

spray would be excessive.

Second, it also clearly established that putting substantial

or significant pressure on a suspect’s back while that suspect

is in a face-down prone position after being subdued and/or

incapacitated constitutes excessive force. This appeal gives

us no cause to consider whether leaving a bound suspect on

his or her stomach without more constitutes excessive force

that violates a suspect’s clearly established Fourth

Amendment rights. This is neither a “positional asphyxia”

case nor a case in which the officers lightly touched or placed

incidental pressure on Champion’s back while he was face

down. The asphyxia was caused by the combination of the
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2

The Officers cite several cases that purportedly show that the

application of pressure to a suspect’s back while he or she is lying prone

is not a clearly established constitutional violation. See Wagner v. Bay

City, 227 F.3d 316, 323-24 (5th Cir. 2000); Estate of Phillips v. City of

Milwaukee, 123 F.3d 586, 594 (7th Cir. 1997); Cottrell v. Caldwell, 85

F.3d 1480, 1488, 1491, 1492 (11th Cir. 1996). However, all three cases

are inapposite because they involve an arrestee whose positional asphyxia

was caused solely as a result of the officers leaving the arrestee on his or

her stomach, but without applying pressure to the back. Because we are

not confronted with such a situation, we need not decide whether such

behavior violates a clearly established right.

Officers placing their weight upon Champion’s body by lying

across his back and simultaneously pepper spraying him.2

Creating asphyxiating conditions by putting substantial or

significant pressure, such as body weight, on the back of an

incapacitated and bound suspect constitutes objectively

unreasonable excessive force. For example, in Simpson v.

Hines, 903 F.2d 400 (5th Cir. 1990), several police officers

entered an inmate’s cell, placed the inmate in a neckhold, and

put strong pressure upon his chest. Id. at 403. The inmate

died as a result, and a physician’s report suggested that the

inmate may have died as a result of the pressure placed upon

his chest. Id. The Fifth Circuit denied qualified immunity to

the officers, ruling that any reasonable officer would have

known that the force exerted was excessive and thus

constitutionally deficient. Id. Other district courts in our

circuit have highlighted the dangers of putting pressure on a

prone, bound, and agitated detainee. Swans v. City of

Lansing, 65 F. Supp. 2d 625, 633-34 (W.D. Mich. 1998) (jury

awarded verdict to a mentally ill arrestee who was hog-tied);

Johnson v. City of Cincinnati, 39 F. Supp. 2d 1013, 1019-20

(S.D. Ohio 1999) (finding that information existed in the law

enforcement community, which put officers on notice of the

dangers of positional asphyxiation).

Additionally, the Officers’ training outlined the boundaries

of excessive force and made clear that lying on a suspect can

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cause asphyxiation. All three Officers admitted that they

were aware of the potential danger of putting pressure on an

individual’s back or diaphragm. J.A. at 187 (Dickhaus Test.)

(“I believe our training was once he is under control we are to

sit him up physically . . . .”); J.A. at 262 (Miller Test.). J.A.

at 305 (Woodside Test.). Additionally, Sergeant Allen

testified that he taught his officers that lying across an

individual’s back when that person is on his or her stomach

increases the possibility of asphyxia. Just as the Supreme

Court determined that the Alabama Department of

Corrections Regulations and the communications between the

U.S. Department of Justice and the State of Alabama put the

state on notice about what constituted cruel and unusual

punishment, so too here the training these Officers received

alerted them to the potential danger of this particular type of

excessive force. See Hope, 536 U.S. at 744-45.

It cannot be forgotten that the police were confronting an

individual whom they knew to be mentally ill or retarded,

even though the Officers may not have known the full extent

of Champion’s autism and his unresponsiveness. The

diminished capacity of an unarmed detainee must be taken

into account when assessing the amount of force exerted. See

Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001)

(“[W]here it is or should be apparent to the officers that the

individual involved is emotionally disturbed, that is a factor

that must be considered in determining . . . the reasonableness

of the force employed.”). For example, in Drummond v. City

of Anaheim, 343 F.3d 1052 (9th Cir. 2003), officers

handcuffed a mentally ill individual and leaned their body

weight onto his upper torso. Id. at 1054. The officers then

applied a hobble device. Drummond fell into respiratory

distress and eventually a coma. Id. at 1055. The court held

that the district court’s grant of summary judgment on the

basis of qualified immunity was not proper because the

officers had violated Drummond’s clearly established rights.

Id. at 1062. It stated, “Any reasonable officer should have

known that such conduct constituted the use of excessive
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force.” Id. at 1061. Drummond postdated the events that led

to Champion’s death, but it relies on cases decided before

April 30, 2000 (including the Swans case) and notes that

when officers receive training explaining the dangers of

asphyxia, they are on notice that applying pressure to an

arrestee’s back is objectively unreasonable.

Consequently, the right to be free from the two types of

excessive force exerted against Champion was clearly

established by the law of this circuit and by the training of the

Officers. Either action by itself violated a clearly established

right, and the combination of the actions bolsters the

conclusion that no reasonable officer could believe that

excessive force was not being used. We recognize that the

Officers perhaps did not intend to harm Champion; indeed,

they may have believed they were helping him. Such a

consideration is immaterial, however, because the qualified

immunity doctrine is an objective one; motive is irrelevant.

The evidence presented in the light most favorable to

Champion, and in the light accepted by the jury, demonstrates

that the Officers unreasonably applied excessive force to

Champion after he had been incapacitated in violation of

Champion’s clearly established rights. No reasonable officer

would have continued to spray a chemical agent in the face of

a handcuffed and hobbled mentally retarded arrestee, who

was moving his or her head from side to side in an attempt to

breathe, after the arrestee vomited several times. No

reasonable officer would continue to put pressure on that

arrestee’s back after the arrestee was subdued by handcuffs,

an ankle restraint, and a police officer holding the arrestee’s

legs.

The Officers concentrate their efforts on the evidence

presented at trial that Champion may have died from a

preexisting medical condition unrelated to his treatment by

the police and that the pepper spray was unlikely to contribute

to Champion’s vomiting or his death. In particular, the

Defendants’ medical expert, Dr. Wetli, testified that

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Champion’s injuries were inconsistent with a death caused by

Officers lying across Champion’s back. J.A. at 284-86 (Wetli

Test.). This evidence is unavailing for two reasons. First, the

Plaintiffs presented contradictory evidence, and the jury

believed the Plaintiffs’experts (and the witnesses who viewed

the Officers lying on Champion’s back) more than the

Defendants’ witnesses. Second, the Officers’ argument

sidesteps the point: even if Champion had not died, but had

only been injured, his clearly established rights were no less

violated.

3. Sufficiency of Evidence

Finally, the panel must determine “whether the plaintiff

offered sufficient evidence to indicate that what the official

allegedly did was objectively unreasonable in light of the

clearly established constitutional rights.” Feathers, 319 F.3d

at 848. As described in detail above, the Plaintiffs presented

such evidence at trial. The fact that a jury found in his favor

further underscores the sufficiency of the evidence.

4. Conclusion

In sum, all three Feathersinquiries have been answered in

the affirmative. We therefore affirm the district court’s denial

of qualified immunity to the Officers.

C. The Verdict Amount

The Officers contend that they are entitled to a new trial, or

at least a remittitur, because the jury award of $900,000

($300,000 per Officer), which only compensates for

Champion’s physical and mental pain and suffering, is

excessive. In essence, the Officers suggest that “a cumulative

verdict of $900,000 against the Officers for at most a 17-

minute period of physical and mental pain and suffering is

excessive.” Def. Br. at 38. Because the Officers ask us to

undertake a Sissiphyean task of comparing Champion’s pain
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21

and suffering to other forms of pain and suffering and because

the award does not shock the conscience, we hold that the

district court did not abuse its discretion in denying the

Officers’ motion.

We undertake a highly deferential review of the district

court, which itself is sharply limited in its ability to remit a

jury verdict. “[A] jury verdict should not be remitted by a

court unless it is beyond the maximum damages that the jury

reasonably could find to be compensatory for a party’s loss.”

Gregory v. Shelby County, 220 F.3d 433, 443 (6th Cir. 2000)

(quotation omitted). Our remittitur standard favors

maintaining the award, “[u]nless the award is (1) beyond the

range supportable by proof or (2) so excessive as to shock the

conscience, . . . or (3) the result of a mistake.” Bickel v.

Korean Air Lines Co., 96 F.3d 151, 156 (6th Cir. 1996)

(quotation omitted) “A trial court is within its discretion in

remitting a verdict only when, after reviewing all evidence in

the light most favorable to the awardee, it is convinced that

the verdict is clearly excessive, resulted from passion, bias or

prejudice; or is so excessive or inadequate as to shock the

judicial conscience of the court.” Gregory, 220 F.3d at 443.

The Officers attempt to prove that the award shocked the

conscience in two ways. First, they suggest that the medical

evidence is insufficient to support a $900,000 award. Citing

the testimony of both sides’ medical experts, the Officers

charge that Champion suffered only superficial abrasions and

hemorrhaging, which would not have caused severe pain.

Additionally, the experts portray Champion’s death as being

relatively peaceful by showing that any of the three potential,

and possibly cumulative, causes of Champion’s death —

positional asphyxia, asphyxia resulting from gastric

aspiration, or cardiac arrest prompted by Champion’s

angulated right coronary artery — would not have been

particularly painful.

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However, other testimony averred that Champion may have

suffered physical pain. First, Plaintiffs’ expert Dr. Gerber

located a contusion on Champion’s lung that may have

resulted from pressure applied by the Officers. Second, the

autopsy revealed evidence of “extensive aspiration of gastric

contents,” J.A. at 270 (Sperry Test.), which may have

signaled that Champion was choking on his own vomit.

Third, Dr. Gerber agreed that “someone suffering from

positional asphyxia would be gasping for breath,” which

generates psychic pain stemming from anxiety and fear. J.A.

at 221 (Gerber Test.).

The jury heard inconsistent evidence attesting to the level

of Champion’s pain. We do not attempt to measure it anew.

No one but Champion can ever know the full amount of

physical and mental pain and suffering experienced during his

seventeen-minute ordeal, but the jury heard various and

conflicting pieces of evidence and believed that Champion

suffered. Their verdict does not lack an evidentiary basis,

particularly given that the verdict encompassed not only

physical pain, but also mental pain and suffering. The panic

of being unable to breathe and the pressure limiting one’s

breath cannot be discounted. See J.A. at 224-25 (Gerber

Test.) (stating that from a physiological standpoint, an

individual during asphyxiation would feel “fear, agitation and

struggle; air hunger is something that causes fear”). Simply

put, there is evidence sufficient to support the jury’s award

such that the district court did not err in denying the motion

to remit the judgment.

Second, the Officers cite to several cases in which

decedents received smaller awards for what the Officers

construe as greater pain and suffering than that endured by

Champion. Endeavoring to compare awards is difficult and

often unfruitful, because the factual circumstances of each

case differ so widely and because it places reviewing courts

in the position of making awkward assessments of pain and

suffering better left to a jury. Layne v. Wal-Mart Stores, Inc.,
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No. 00-5607, 2001 WL1480736, at * 4 (6th Cir. Nov. 19,

2001) (“[C]omparable decisions are ‘instructive’ but ‘not

controlling’ when we review for abuses of discretion.”);

Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814, 827

(6th Cir. 1980) (“[C]ases involving similar injuries are in no

sense controlling.”). The Defendants cite several cases that

they believe demonstrate the unconscionability of the award

given the relatively brief period of his pain and suffering.

Compare Gregory, 220 F.3d at 433-44 ($778,000 award not

remitted when decedent was beaten horribly by a fellow

prisoner and lay in his cell for ten hours before being

discovered); Tatum v. Land, No. 95-6378, 1997 WL 85144,

at *5 (6th Cir. Feb. 26, 1997) ($600,000 award not remitted

when decedent suffered severe injuries to shoulder, pelvis,

and face as a result of a car accident and who survived for

five hours after the accident); with Sharpe v. City of

Lewisburg, 677 F. Supp. 1362, 1365 (M.D. Tenn. 1988)

($100,000 award for pain and suffering reduced after

decedent was shot eight times and died within minutes of the

shooting.). The plaintiffs respond by citing our decision in

Bickel, when we affirmed the district court’s denial of

remittitur for several pain and suffering awards exceeding $1

million when the decedents, passengers on a Korea-bound

plane attacked by the Soviet Union, “remained conscious

during the twelve minute descent into the Sea of Japan,

suffering the physical effects of decompression and

recompression along the way, as well as the horror of

knowing that death was imminent.” Bickel, 96 F.3d at 155.

The Officers ask us to make an impossible comparison

between Champion’s pain and the pain of others. We cannot

ascertain whether Champion’s mental and physical pain and

suffering, magnified by his likely inability to comprehend

what was happening, equaled the pain and suffering of the

airplane passengers plummeting out of the sky for twelve

minutes in Bickel or the ten hours of slow death endured by

the decedent in Gregory. Such comparisons are impossible

and improper, because one cannot so mechanisticallymeasure

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pain and suffering. In Bickel, we wrote: “It is impossible to

determine the exact value of the pain and suffering which the

decedents may have endured. . . . One simply cannot quantify

the mental and physical pain and suffering such an experience

would cause, and thus we cannot conclude that the evidence

does not support the awards.” Id. at 156. The award granted

here by the jury, which was capable of judging credibility and

actually heard live testimony regarding the incident as

opposed to the written record before us, is not unreasonable,

excessive, or conscience-shocking. We therefore hold that the

district court did not abuse its discretion in denying the

Officers’ motion for remittitur.

D. Alpert’s Testimony

Finally, we evaluate the Officers’ claim that the district

court erred in permitting Alpert’s expert testimony. The

Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993), established the standard for

admissibility of scientific expert testimony under Federal

Rule of Evidence 702. The requirement that “any and all

scientific testimony or evidence admitted [be] not only

relevant, but reliable,” Id. at 589, “entails a preliminary

assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether

that reasoning or methodology properly can be applied to the

facts in issue.” Id. at 592-93. This test has also been applied

to non-scientific expert testimony, such as Alpert’s. Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).

The Officers argue that Alpert did not present any

specialized knowledge that was reliable or of any assistance

to the jury. The Officers rely principally on Berry v. City of

Detroit, 25 F.3d 1342 (6th Cir. 1994), in which we held that

the plaintiff’s expert, a so-called specialist in the field of

“police policies and practices” was not qualified to speak

about the city government’s policy of disciplining officers for

alleged uses of excessive force. Id. at 1348-54. In Berry, we
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stated that “there is no such ‘field’ as ‘police policies and

practices,’” mainly because we believed that the concept of

such a field as presented by that “expert” was far too broad.

Id. at 1352. We analogized to the legal profession, stating

that labeling the individual in Berry as an expert when he did

not demonstrate that he had experience in any particular

aspect of studying the police was “like declaring an attorney

an expert in the ‘law.’” Id. However, by reasoning that a

divorce lawyer was no more an expert on patent law than

anyone else, we implicitly recognized that individuals with

specialized knowledge could most certainly serve as experts,

i.e., patent lawyers can serve as experts in patent law. We did

not hold that an individual cannot ever testify as an expert

about some aspect of police affairs. Rather, the holding in

Berry reasoned that unqualified individuals could not broadly

testify about an area in which they possessed no specialized

knowledge. While “police practices” in the broadest sense of

the phrase may not be a field, surely criminology is.

Indeed, the chief reason for our decision in Berry was that

the expert’s credentials demonstrated that he had no specific

expertise about police activities. He had limited experience,

given that he was appointed as a deputy sheriff, a post that

required almost no qualifications, and he had been fired twice

from the position. Furthermore, he lacked any formal training

or experience on the subject of criminology or police actions.

Compounding the problem was his ungrounded and

methodologically flawed testimony regarding what effect the

City of Detroit’s procedural shortcomings would have upon

the future conduct of 5,000 police officers who would be

confronted with a diverse and unpredictable array of

situations in which force would be used. See Dickerson, 101

F.3d at 1163-64 (relying on the affidavit of a criminology

professor, which opined that an officer used excessive force,

in deciding that material fact issues remained regarding

qualified immunity);Estate of Boncher v. Brown County, 272

F.3d 484, 486 (7th Cir. 2001) (recognizing implicitly the field

of criminology by labeling the expert a reputable

26 Champion et al. v. Outlook

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criminologist, but excluding expert’s affidavit as useless

because it was too general).

By contrast, the Plaintiffs’ expert, Alpert, testified about a

discrete aspect of police practices, namely use of excessive

force, based upon his particularized knowledge aboutthe area.

In contrast to the expert in Berry, Alpert’s credentials are

much more extensive and substantial. Alpert has a PhD in

sociology from Washington State University, is employed by

the University of South Carolina’s Department of

Criminology, teaches classes on police procedures and

practices, has been involved with federal research funded by

the Department of Justice that evaluates the use of force by

officers, trains officers in the use of force, works with police

departments to create use-of-force policies, has testified

before Congress and state legislatures about police policies,

and has authored forty to fifty articles on the subject of police

procedures, many of which have appeared in peer-reviewed

journals. Alpert Test., Transcript Vol III at 428-32 (Attached

to Motion to Take Judicial Notice). Unlike the expert in

Berry, Alpert testified about much more specific issues: the

continuum of force employed by officers generally, the

specific training the Officers received, and Alpert’s opinion

that if the witnesses’ testimony is credited, the Officers’

actions violated nationally recognized police standards

governing excessive force. The critical difference between

testifying about the impact of police policies upon a large

group of officers and testifying about the proper actions of

individual officers in one discrete situation highlights the

inapplicability of Berry. Courts have permitted experts to

testify about discrete police-practice issues when those

experts are properly credentialed and their testimony assists

the trier of fact. See Dickerson, 101 F.3d at 1163-64; Kladis

v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987). Because

Alpert had considerable experience in the field of criminology

and because he was testifying concerning a discrete area of

police practices about which he had specialized knowledge,
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we hold that the district court did not abuse its considerable

discretion in admitting Alpert’s testimony.

III. CONCLUSION

We AFFIRM the rulings and judgment of the district court.

First, the district court properly denied the Officers’ Rule

50(b) motion for qualified immunity, because on a view of

the facts in the light most favorable to the Plaintiffs, the

Officers violated Champion’s clearly established right to be

free from the specific types of forces administered after

Champion was subdued and restrained. Second, the district

court did not abuse its discretion in denying the Officers’

motion to remit the size of the pain-and-suffering award

because the award was supported by evidence and it did not

shock the conscience. Third, the district court did not abuse

its discretion in admitting Alpert’s testimony. We AFFIRM.