Calvin B. Champion v. Outlook Nashville, Inc.

*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 Police Officers
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

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1Champio n’s father brought the action individually and as the
personal representative of Champion’s estate. Champ ion’s sister was a
plaintiff in her individ ual cap acity 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
AFFIRM the 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.

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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
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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

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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 defendants filed 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

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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
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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 as well as that evidence
supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.

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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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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

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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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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

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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
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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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2The Officers cite several cases that purportedly show that the
app lication o f pressure to a suspect’s back while he or she is lying prone
is not a clearly established co nstitutional violation. See Wagner v. Bay
City, 227 F.3d 316 , 323 -24 (5 th Cir. 2000); Estate of Phillips v. City of
Milwaukee, 123 F.3d 586, 594 (7th Cir. 1997); Cottrell v. Caldwe ll, 85
F.3d 1480, 1488, 14 91, 1492 (11th Cir. 1996). However, all three cases
are inapposite because they involve an arrestee who se 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
18 Champion et al. v. Outlook
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No. 03-5068
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
20 Champion et al. v. Outlook
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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 Feathers inquiries 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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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.
22 Champion et al. v. Outlook
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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 mechanistically measure
24 Champion et al. v. Outlook
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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 about the 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.

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