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Narragansett member's case remanded to lower court

BOSTON - A 1st Circuit Court of Appeals panel majority has reinstated a $301,000 jury award to a Narragansett Indian Tribe member whose ankle was twisted and broken by a state trooper during a raid on the tribe's smoke shop four years ago.

But in their Aug. 17 ruling, Judges Juan Torruella and Kermit Lipez remanded the case back to a lower court that had earlier vacated the jury ruling, and asked that court to decide whether to grant Rhode Island State Police Trooper Ken Jones' request for a new trial and a reduction of the monetary award to Narragansett member Adam Jennings, whose ankle he broke.

The case evolved from a notorious state police raid in July 2003 when troopers and a canine unit stormed the tribe's reservation on a search warrant to shut down its tax-free cigarette shop. The members tried to protect their property, and in the ensuing melee Jones wrestled Jennings to the ground and used an ''ankle turn control technique'' that broke Jennings' ankle, according to court documents.

Jennings, a smoke shop worker, sued Jones and other troopers in district court, claiming they had violated his Fourth Amendment rights by using excessive force to restrain him.

After a five-day civil trial in U.S. District Court in March 2005, a jury exonerated the other troopers but found Jones had used excessive force in twisting and breaking Jennings' ankle after he had stopped resisting arrest and had warned Jones of a previous injury on the ankle. The jury awarded Jennings $301,000 in damages.

Following the jury decision, Jones filed a motion for a judgment as a matter of law, claiming for the first time that he was immune from prosecution. He also filed motions for a new trial and ''remittitur,'' or a reduction in the monetary award.

District Court Chief Judge Ernest Torres reviewed the case and vacated the jury decision, withdrawing the monetary award to Jennings and ruling that Jones had ''qualified immunity'' from civil liability because he was doing his job as a law enforcement officer in a reasonable matter.

Torres did not rule on Jones' motions for a new trial or damages reduction, on the ground that these issues were now moot because he had essentially acquitted Jones under the immunity ruling.

On appeal to the 1st Circuit, Jennings challenged the district court's determination on his Fourth Amendment claim; and last March, an appeals panel said Jones did violate Jennings constitutional right to be free of excessive force and reinstated Jennings' $301,000 jury award. Jones filed a petition for a rehearing en banc, that is, in front of the full appeals court.

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In the Aug. 17 ruling, Torruella and Lipez said the district court erred in concluding that Jones had immunity and once again reinstated the jury award.

As a matter of law, Lipez wrote, where a jury has issued a general verdict, the judge is required to ''view the facts in the light most favorable to the verdict.''

A ''critical factual dispute'' in the case centers on whether Jones increased the force he applied after Jennings already had ceased resisting, Lipez wrote.

Jennings had testified that after he told Jones about a previous injury on that leg and asked him to stop the pressure because his ankle was going to break, Jones increased the pressure and broke Jennings' ankle. Two eye witnesses, Domino Monroe and Daniel Piccoli, both tribal members, substantiated Jennings' testimony.

''This version of events correctly construes the facts 'in the light most favorable to the [jury] verdict,''' Lipez wrote, but the district court refused to believe Jones or the witnesses.

''In its written decision granting judgment as a matter of law to Jones on the basis of qualified immunity, the district court stated that the testimony of the police officers was more credible than the contrary testimony of Jennings, Piccoli and Monroe. Therefore, it did not believe that Jones continued to twist Jennings' ankle after Jennings had stopped resisting and was under control,'' Lipez wrote.

There is no mention in the court document whether Torres, the district court judge, said why he did not believe Jennings and the two witnesses.

Judge Sandra Lynch, the third panel member, dissented from Lipez and Torruella's ruling reaffirming the lower court error and reinstating Jones' award, but joined Chief Justice Michael Boudin in a statement concurring with the decision to remand the case back to the district court for a decision on a retrial.

''At this time a new trial, in which all issues can be assessed afresh, appears to us the best solution. If the district court grants the motion for a new trial and sets aside the jury verdict, [Jones] will have an adequate opportunity to defend himself on a fresh record and with proper instructions,'' they wrote.

If the district court orders a new trial, Jennings would have the right to appeal the order to the 1st Circuit.