Nelson v. City of Albuquerque (283 F. Supp. 3d 1048, 2017)

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting for the Judgment on the Jury Verdict to Stand; to Find Defendants Have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants, filed July 26, 2012 (Doc. 201)("Motion"). The Court held a hearing on June 14, 2013. The primary issues are: (i) whether the Defendants' Motion was timely under rule 50(b) of the Federal Rules of Civil Procedure ; (ii) whether the Court may overrule a prior judgment as a matter of law on a rule 50(b) motion; (iii) whether the Defendants properly preserved their qualified immunity argument in their rule 50(b) motion; and (iv) whether the Court may alter the prior judgment in the Plaintiff's favor by construing the Defendants' rule 50(b) motion as a rule 59(e) motion. The Court concludes that: (i) the Defendants' Motion was timely; (ii) rule 50(b) is an improper vehicle for overturning a judgment as a matter of law; (iii) the Defendants' did not preserve their qualified immunity argument-regarding whether the law was clearly established-under rule 50(b) ; and (iv) the Court may construe the Defendants' rule 50(b) motion as a rule 59(e) motion. Because it can construe the Defendants' rule 50(b) motion as a rule 59(e) motion to alter or amend, it will alter the prior judgment rendered under rule 50(b) in the Plaintiff's favor. Although the facts of this case are disquieting, drawing all inferences in the Defendants' favor, a reasonable jury could have found for the Defendants. Furthermore, because there are no sufficiently analogous cases from the United States Court of Appeals for the Tenth Circuit or the Supreme Court of the United States of America, the Defendants are entitled to qualified immunity. The Court, accordingly, grants the Motion in part and denies it in part.

FACTUAL BACKGROUND

On the morning of March 4, 2009, Tony Nelson, a sixty-two year old American Indian, drank some beers with his friend, Jeffery Patterson, in Patterson's home. See Official Transcript of Trial Proceedings before the Court at 19:12-17 (dated October 24, 2011), filed June 29, 2012 (Doc. 189)("Trial Tr."); id. at 28:18-29:2; id. at 29:17; id. at 30:21-22; id. at 31:9-11 (Hawk, Nelson). After running low on beer, the two argued over whether they should buy more. See Trial Tr. at 32:14-19 (Nelson). The argument became heated and Patterson left his home to call the police. See Trial Tr. at 33:18-19 (Nelson). Patterson returned home, they argued some more, and Patterson left again. See Trial Tr. at 34:10-12 (Nelson). The last thing Nelson remembers from March 4, 2009, was being "dead drunk" and lying down to get some sleep. Trial Tr. at 34:16-35:8 (Hawk, Nelson). See id. at 33:18-19; id. at 34:16-19 (Nelson).

Patterson called the police again and this time reported that Nelson had "threatened [him] with [a] rifle ... and a knife." Trial Tr. at 134:16-22 (Hawk, Johnston). Subsequently, forty-seven police personnel, which included seventeen SWAT police team members and eight K-9 officers, arrived at Patterson's home. See Trial Tr. at 141:19-21; id. at 142:8; id. at 234:15-16 (taken October 25, 2012), filed June 29, 2012 (Doc. 190)(Hawk, Johnston). Someone-presumably Patterson-told the police that Nelson had been drinking, and that the rifle with which Nelson had threatened Patterson was either a pellet rifle or a "308 bolt-action rifle." Trial Tr. at 131:15-17 (Johnston). See id. at 298:9-10 (Hawk, Johnston). A 308 bolt-action rifle is a "large caliber rifle" that is "devastating in close range and at distance." Trial Tr. at 77:11-12 (Brown); id. at 243:2 (Johnston). When the police officers arrived at the scene, they did not clarify whether Nelson had threatened Patterson with a pellet rifle or a 308 bolt-action rifle. See Trial Tr. at 132:6-11 (Hawk, Johnston); id. at 243:14-20 (Griffin, Johnston).

The SWAT team arrived with a Bearcat-an armored police vehicle. See Trial Tr. at 84:16-19 (Brown); id. at 312:11-12 (Hawk, Hughes). At least two officers positioned themselves on roofs nearby with sniper scopes and rifles, and other police personnel established a perimeter around the house with an officer stationed off each corner of it. See Trial Tr. at 78:7-79:5 (Brown, Hawk); id. at 83:8-18 (Brown, Hawk); id. at 144:13-20 (Hawk, Johnston); id. at 455:15-17 (Limon)(taken October 26, 2011), filed June 29, 2012 (Doc. 191). The property was almost entirely enclosed by an eight-foot-tall fence with razor wire at the top. See Trial Tr. at 150:6-151:19 (Hawk, Johnston).

After setting up a perimeter, Defendant Officer Armando Limon called out to Nelson, who was still in the house, to exit the home and walk towards the police team near the driveway. See Trial Tr. at 167:25-168:2 (Hawk, Johnston); id. at 169:4-10 (Hawk, Johnston); id. at 245:14-18 (Griffin, Johnston); id. at 456:11-16 (Hawk, Limon). The police team was positioned behind the Bearcat. See Trial Tr. at 152:3-5 (Johnston). After some time, Nelson appeared in the doorway and motioned for the officers to come toward him; Nelson had a knife in his hand, but at the time, the officers could not tell what Nelson was holding. See Trial Tr. at 172:3-9 (Johnston); id. at 350:3-10 (Hughes); id. at 457:20-23 (Limon). Officer Limon again ordered Nelson to come out, and to turn around. See Trial Tr. at 500:1-4 (Limon). Nelson went back into the house, however, and dropped the knife. Trial Tr. at 171:7-9 (Johnston); id. 172:17-18 (Johnston); id. at 350:12 (Hughes); id. at 457:5-17 (Hawk, Limon). Nelson then exited the house, walking slowly south towards the officers with his "[h]ands to his side." Trial Tr. at 98:16-17, 20 (Brown). See id. at 170:19-24 (Hawk, Johnston); id. at 352:12-13 (Hughes); id. at 460:14-15 (Limon). Nelson's hands were empty. See Trial Tr. at 105:19-106:5 (Brown, Hawk); id. at 297:5-9 (Hawk, Johnston). The officer in charge, Defendant Sergeant Robert Johnston did not see Nelson holding a rifle and thought it would be "hard to hide a rifle with the way [Nelson] was dressed." Trial Tr. at 171:10-14 (Hawk, Johnston). Although he had cleared Nelson's hands, the SWAT team sniper could not confirm whether Nelson had any weapon in his waistband and also observed that Nelson was "looking around" and "appeared to be attempting to identify the position of other officers around the perimeter, or possibly avenues of escape." Trial Tr. at 99:19-100:2 (Brown, Griffin). See id. at 99:12-14 (Brown, Griffin).

As Nelson walked down the driveway, the police ordered Nelson several times to raise his hands, but Nelson did not raise them. See Trial Tr. at 258:11-19 (Griffin, Johnston); id. at 495:23-24 (Limon). Officers also heard Nelson speaking or yelling as he approached, but could not understand him. See Trial Tr. at 291:15-18 (Hawk, Johnston); id. at 352:16-19 (Hughes). Officer Limon, however, heard Nelson say: "Get the fuck out of here." Trial Tr. at 499:3 (Limon). After some time, Nelson stopped at the driveway's edge, about twenty feet from the officers. See Trial Tr. at 173:14-15 (Hawk, Johnston). He made a motion with his hands, which one officer interpreted as "go-away" and another interpreted as "come to me, come to me." Trial Tr. at 353:22-354:1 (Hughes); id. at 497:17-18 (Limon).

Nelson then made a motion to turn to his left, towards the north, away from the officers. Trial Tr. at 262:23-263:24 (Griffin, Johnston). Although Officer Limon had ordered Nelson to turn around when he made "initial contact with" Nelson, see Trial Tr. at 500:1-4 (Griffin, Limon), the officers interpreted Nelson's motion as an attempt to return to the house to retrieve weapons, and Johnston ordered his subordinate, Defendant Officer Daniel Hughes, to "deploy his weapon and '[b]ag him,' " Trial Tr. at 176:23-177:2 (Hawk, Johnston).

See id. at 177:5-6 (Johnston); id. at 268:1-5 (Johnston)("[W]e were not going to let him go back in the house ... [b]ecause there w[ere] deadly weapons in the house."); id. at 321:19-22 (Hawk, Hughes). Officer Hughes "immediately" fired five "bean bag" rounds from a non-lethal, shotgun-style weapon. Trial Tr. at 354:19-23 (Hughes). See id. at 182:14 (Johnston). Johnston also fired a wooden-baton round from a similar weapon. See Trial Tr. at 185:21-22 (Johnston). Another officer launched a "flash bang" diversionary device to "overwhelm" and "disorient" Nelson. Trial Tr. at 182:15-24 (Hawk, Johnston). The officers fired their weapons from a non-lethal range. See Trial Tr. at 271:11-22 (Griffin, Johnston).

Afterwards-with Nelson's back toward the officers and without warning Nelson-Defendant Officer Scott Weimerskirch, a K-9 officer, released a police dog who bit Nelson on the left arm, drawing blood. See Tr. at 189:12-190:2 (Hawk, Johnston); id. at 393:12-16 (Hawk, Weimerskirch). Nelson staggered to a wrought-iron fence post, "trying to shake the dog off," and several officers approached Nelson with the dog still clinging to his left arm. Trial Tr. at 274:9-15 (Griffin, Johnston). See id. at 192:17-193:1 (Hawk, Johnston). Both of Nelson's hands were visible, and neither held a weapon. See Trial Tr. at 362:8-11 (Hughes); id. at 454:8-18 (Hawk, Limon). Officers ordered Nelson to let go of the fence, but he did not respond to that command. See Trial Tr. at 364:15-25 (Hughes).

Officer Limon fired his Taser at Nelson, but, after the Taser darts struck Nelson, Officers Hughes and Limon perceived "no change to [his] behavior.... He didn't look like ... he was being tased." Trial Tr. at 364:5-9 (Hughes). See id. at 451:1-11. Officer Limon heard his Taser make the sound it usually makes when operating effectively, however. See Trial Tr. at 452:17-20 (Hawk, Limon). Officer Hughes then fired his Taser at Nelson, and one of his Taser darts struck Nelson in the neck. See Tr. at 331:25-332:3; id. at 365:10-12 (Hawk, Hughes). Officer Hughes cycled his Taser six times delivering six shocks over a thirty-seven second period. See Trial Tr. at 336:11-13 (Hawk, Hughes); id. at 368:19-23 (Griffin, Hughes); Plaintiff's Exhibit 47 at 2, filed November 23, 2011 (Doc. 158-4). Officer Hughes explained that he shocked Nelson six times, because he "was still holding onto the fence and appeared to be fighting with the dog." Trial Tr. at 368:24-369:4 (Griffin, Hughes). After the sixth shock, Officer Hughes determined "we were not going to get any compliance from him more than we had," stopped shocking him, and grabbed Nelson's left hand. Trial Tr. at 370:9-11 (Hughes). Nelson was subsequently arrested and hospitalized. See Trial Tr. at 35:11-12 (Nelson); id. at 35:22-23 (Nelson); id. at 370:24 (Hughes). Nelson pled guilty to "aggravated assault with a deadly weapon," but the judge dismissed the charge after Nelson served his probation. Trial Tr. at 37:23-38:6 (Hawk, Nelson).

PROCEDURAL BACKGROUND

On May 10, 2010, Nelson filed suit in the Second Judicial District Court, County of Bernalillo, State of New Mexico, asserting tort and civil rights violations by Defendants Bernalillo County, the City of Albuquerque, and Albuquerque police officers. See Complaint For Civil Rights Violations & Violation of the New Mexico Tort Claims Act at 1, filed June 8, 2010 (dated May 10, 2010)(Doc. 1-1)("State Complaint"). Nelson alleges, among other things, that: (i) police officers used "excessive and unnecessary ... force in the course of arrest and custody" violating his rights under the Fourth Amendment to the Constitution of the United States of America and Article II, Section 10 of the New Mexico Constitution ; (ii) the City of Albuquerque and Bernalillo County "maintain[ ] official policies" or a "de facto" policy permitting the excessive use of force; and (iii) the City of Albuquerque and Bernalillo County "failed to train" and supervise their police officers in the proper use of force and were, accordingly, deliberately indifferent to Nelson's rights. State Complaint ¶¶ 28, 34, 43, 48-50 at 5-6, 8-9 (emphasis omitted). The City of Albuquerque removed the case to federal court, and Nelson amended his Complaint, but continued to allege the same substantive violations. See Notice of Removal at 1, filed June 8, 2010 (Doc. 1); Amended Complaint for Civil Rights Violations & Violation of the New Mexico Tort Claims Act ¶¶ 28-35, 44, 49-51 at 5-6, 8-9 filed July 15, 2010 (Doc. 21).

On April 6, 2011, the Defendants moved for summary judgment on the excessive use of force claim, arguing, generally, that the police officers' use of force was " 'objectively reasonable' under the circumstances," and alternatively, that they were entitled to qualified immunity. Defendants' Motion for Summary Judgment, and Memorandum in Support, Requesting Dismissal of Counts I and II of Plaintiff's Amended Complaint with Prejudice at 8-11, filed April 6, 2011 (Doc. 66)("1st SJ Motion"). The City of Albuquerque subsequently filed a second Summary Judgment Motion, arguing that: (i) the City of Albuquerque could not be liable for excessive use of force, because Nelson could not identify any City of Albuquerque policies that were "the 'moving force' behind [Nelson's] alleged injury"; and (ii) the City of Albuquerque could also not be liable for failing to train and supervise its police officers, because their officers "ha[d] undergone extensive law enforcement training" and there were several policies in place "ensur[ing] that subordinate officers [were] being supervise[d]." Defendant City of Albuquerque's Motion, and Memorandum in Support, For Summary Judgment Requesting Dismissal of Counts III and IV of Plaintiff's Amended Complaint at 9-10, filed April 7, 2011 (Doc. 72)("2d SJ Motion")(quoting Board of Cty. Com'rs v. Brown, 520 U.S. 397, 404-05, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). The Judge Black denied the City of Albuquerque's 1st SJ Motion, because there were disputes of material fact regarding whether Nelson "posed a threat prior to the[ police's] use of force" and whether Nelson was "flee[ing] or resist[ing] arrest," which would allow the police officers to apply a higher level of force. Memorandum Opinion at 4-5, filed October 5, 2011 (Doc. 123)("SJ Opinion"). Regarding qualified immunity, Judge Black determined that "the Officers are not entitled to qualified immunity," because "a reasonable factfinder could find that [Nelson]'s right to be free of excessive force was violated," and that the "objectively reasonable standard under which that right is analyzed" was " 'clearly established' " on March 4, 2009. SJ Opinion at 6-7. Judge Black, however, granted in part Albuquerque's 2d SJ Motion, because Nelson had evidence of only a "single unconstitutional act of excessive of force," which could not, by itself, demonstrate a citywide practice, policy, or custom that would give rise to municipal liability. SJ Opinion at 7-8. Nevertheless, Judge Black rejected the City of Albuquerque's argument that it adequately trained its officers, because the City of Albuquerque's police procedures "require[ ] officers [when facing a mentally ill subject] to 'calm the situation,' 'assume a quiet, non-threatening manner when approaching the subject,' and 'not threaten the subject with arrest or physical harm,' " but the record demonstrates that the "[o]fficers instead relied on an imposing presence and swift physical force to arrest [Nelson]." SJ opinion at 8-9. Judge Black noted that, "[w]hile the record is rife with evidence of Officers' general training, it lacks evidence of training on this specific procedure, or the efficacy of such training," and concluded that "[t]he failure to train claim, while thin, is not proper for summary judgment." SJ Opinion at 10.

On October 24, 2011, Judge Black held a six-day jury trial. See Clerk's Minutes, filed November 4, 2011 (Doc. 152). After Nelson rested, the Defendants renewed their qualified immunity summary judgment motion, arguing that Quezada v. Bernalillo Cty., 944 F.2d 710 (10th Cir. 1991) affords defendants an opportunity to renew a qualified immunity argument "at the Rule 50 stage." Trial Tr. at 720:3-8 (Griffin). Judge Black denied it concluding "there's a factual dispute," because of Nelson's expert's testimony. Trial Tr. at 720:11-12 (Court). See id. at 720:22-23 (Court). The Defendants subsequently moved for a judgment as a matter of law on the excessive force allegation, and Judge Black also denied that motion based on factual disputes. See Tr. at 721:1-722:25 (Court, Griffin). The Defendants finally motioned under rule 50 on the inadequate training allegation, and the Court took "that motion under advisement," because Nelson did not demonstrate Taser or K-9 police training that the City of Albuquerque failed to teach their police officers or that the police officers disregarded. Trial Tr. at 723:1-726:2 (Court, Griffin, Hawk).

At the close of evidence, the Defendants renewed their "summary judgment on qualified immunity" motion, "as well as the Rule 50 motion that we made at the close of the plaintiff's case." See Defendants' Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and 181, or in the Alternative, Motion for Relief from Judgment or Order Entered in Docs 168, 169, and 171 at 2:8-11 (Griffin) [at 42:8-11 on CM/ECF], filed May 8, 2012 (Doc. 173-4)(" Rule 50 Tr."). Judge Black denied the motion, because "both of these [motions] turn on the interpretation of the facts and the experts used. Obviously, there is a discrepancy as to what occurred at the scene. And I will, therefore, deny these and submit the matter to the jury." Rule 50 Tr. at 3:12-17. Nelson also moved for judgment as a matter of law pursuant to rule 50(a), see Plaintiffs' Renewed Motion for a Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for New Trial Pursuant to Rule 59(a) at 1, filed November 23, 2011 (Doc.

158)("RJMOL"), and the Court also denied that Motion. On October 31, 2011, the Jury determined that the Defendants did not use excessive force. See Verdict Form at 1-3, filed October 31, 2011 (Doc. 155). Consequently, Nelson recovered nothing. See Verdict Form at 3. The Court entered judgment on November 8, 2011. See Judgment, filed November 8, 2011 (Doc. 147).

1. Nelson's Renewed Motion for Judgment as a Matter of Law .

On November 23, 2011, Nelson renewed his motion for judgment as a matter of law under rule 50(b), and also moved for a new trial under rule 59(a). See RJMOL at 1. In summary, he argues that, given the circumstances, the police used excessive force when they fired five beanbag shots, fired the wooden-baton rounds, sent the dog at him, and repeatedly Tased him such that no reasonable jury could have found for the Defendants. See RJMOL at 3-9.

First, Nelson argues that, under the excessive-force standard, a court must "analyze the factual circumstances of every case" and determine "whether the subject poses an immediate threat to the safety of officers and others," and whether "the subject is actively resisting arrest or attempting to evade arrest by flight." RJMOL at 2. Nelson avers that, based on that standard, "at the time Defendant Hughes deployed his beanbag shotgun, [Nelson] did not pose an immediate threat to officers or others." RJMOL at 3. According to Nelson, he posed no immediate threat, because the police had established a "safe perimeter," Nelson could only exit through one door of the house, "all sides of the house had lethal police coverage," "any egress from the property was further hampered ... by two razor wired fences" and that the SWAT team had high-ground snipers trained on the property. RJMOL at 3. Nelson argues, further, that "there is no evidence that Plaintiff posed an immediate threat to [the police] once he exited the house," because Nelson "followed commands to walk towards" the police team, he "slowly walked" towards them "empty handed," and Nelson "stopped as ordered" at least twenty feet away from the officers. RJMOL at 3-4.

Regarding the inference that Nelson turned around to "retreat to the house rather than turning around in compliance with [police] orders to turn around," Nelson argues that no "reasonable officer, could infer that Plaintiff was turning around to retreat," because photographic evidence "shows that Hughes was facing [Nelson] at the time of the shots." RJMOL at 4. Nelson also argues that photographic evidence demonstrates that the first two beanbag shots hit Nelson in his sternum and "epigastrium"-the center of his body-refuted the police officer's testimony that Nelson "turned to his left in a quick manner." RJMOL at 4. According to Nelson, the remaining three shots hit his rib cage and back, because Nelson was "obviously turn[ing] away from the shots." RJMOL at 4-5. Nelson also argues that Hughes' five consecutive beanbag shots were excessive, because Hughes failed to take "appropriate tactical pauses between each shot." RJMOL at 5. Nelson avers that, under proper police protocols, a "tactical pause is required ... to assess whether a subject is ... complying with orders," but the evidence "clearly indicates there was no tactical pause"-the first two shots hit Nelson near each other, "in the midline." RJMOL at 5.

Second, Nelson adds that the wooden-baton rounds were excessive. See RJMOL at 5-6. According to Nelson, Johnston "launched his wooden rounds" when Nelson's "back was facing the [police] team." RJMOL at 5. Nelson further avers that, on top of having his back turned, Nelson "posed no immediate threat," because, again, his "hands were clear," he was "disoriented by the flash-bang diversionary device," already "injured by beanbag rounds," and "intoxicated." RJMOL at 5-6.

Third, Nelson argues that releasing the dog after the beanbag shots, the wooden-baton rounds, and the flash-bang device established excessive force. See RJMOL at 6-7. He also contends that the force was exacerbated, because Weimerskirch released the dog "without warning" when Nelson "had his back towards" the police team. RJMOL at 6. Finally, he asserts that Weimerskirch's command to the dog to "retrieve ... in an effort to pull [Nelson] to Weimerskirch" demonstrates excessive force. RJMOL at 6.

Finally, Nelson contends that, after the dog, the shots, and the flash-bang device, the evidence establishes excessive force, because, while Nelson "clutched onto the metal fence," two officers deployed their Tasers and one "cycled it six times," at "five seconds per cycle," delivering six shocks in thirty seconds. RJMOL at 7. He further contends that, like the required "tactical pause" for shooting the beanbag charges, police protocol requires a tactical pause before cycling the Taser, but Hughes did not observe that protocol. RJMOL at 7. Nelson argues that, instead, "[Hughes] only waited 1 second between cycles one through four before cycling again." RJMOL at 7. "Without a tactical pause," Nelson argues, "Hughes could not have assessed [Nelson's] compliance [with orders], and therefore, clearly used excessive force." RJMOL at 8. Nelson also avers that the Taser strike was excessive because it occurred after two officers had determined "that it was safe to approach [Nelson]." RJMOL at 7.

Nelson states that under Tenth Circuit caselaw, it is "excessive" to use a Taser "without having a reason to believe that a lesser amount of force or verbal command can exact compliance." RJMOL at 8 (citing Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (" Casey")). Here, according to Nelson, the officers violated Casey, because "there was no reason to believe that [Nelson] could not be removed from the fence with less force" than the Taser shots and six charges. RJMOL at 8. He concludes that the need for less force was apparent, because "after everything was said and done" the officers were able to ply Nelson away from the fence "by merely lifting Nelson's thumb." RJMOL at 8.

2. Defendants' Response to Nelson's RJMOL .

On December 16, 2011, the Defendants responded to Nelson's RJMOL, arguing broadly that the evidence supported the jury's verdict. See Defendants' Response to Plaintiff's Renewed Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for New Trial Pursuant to Rule 59(a) at 4, filed December 16, 2011 (Doc. 161)("RJMOL Resp."). First, the Defendants argue that the officers were attempting to catch a "non-compliant," suspected felon who "attempt[ed] to return to the residence" where known weapons were located. RJMOL Resp. at 12. They also contend that the officers' use of "less lethal munitions" to stop Nelson's return to the home was reasonable under Tenth Circuit caselaw. RJMOL Resp. at 12 (citing Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001) ). The Defendants further aver that Nelson posed a "high" potential threat, because "he already demonstrated his intent to bait the officers to come to him while holding a knife in his hand." RJMOL Resp. at 12.

The Defendants finally argue that Nelson's RJMOL fails, because he "primarily relies upon the arguments and assertions of his legal counsel, which are not evidence." RJMOL Resp. at 4 (citing Fritzsche v. Albuquerque Municipal Sch. Dist., 194 F.Supp.2d 1194, 1206 (D.N.M. 2002) (Black, J.)). The Defendants conclude that, based on this evidence, "the jury has spoken as to these issues and accordingly, the jury found in favor of the Defendants.... Therefore the jury's verdict must stand because no plain error or substantial prejudice occurred." RJMOL Resp. at 13-14.

3. Nelson's RJMOL Reply.

On January 13, 2012, Nelson replied to the RJMOL Resp. and argues that the RJMOL Resp. neglects the excessive force standard, because the Defendants rely on the officers' "subjective beliefs" as opposed to "objective reasonableness." Plaintiff's Reply to his Renewed Motion for a Judgment as a Matter of Law Pursuant to Rule 50(b) and, Alternatively, Motion for New Trial Pursuant to Rule 59(a) at 1, filed January 13, 2012 (Doc. 164)("RJMOL Reply")(citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (" Graham")). The proper analysis, he contends, is to follow the Graham factors. First, Nelson maintains that no reasonable officer would believe that Nelson posed an immediate threat. See RJMOL Reply at 2. Nelson argues that point by listing the following "undisputed facts": (i) "47 officers [were] present"; (ii) "[e]ach officer ... had a lethal weapon"; (iii) two officers were positioned on the roof with snipers; and (iv) and those snipers were prepared to "sho[o]t Mr. Nelson if ... [they]needed to, if Mr. Nelson made any threats." RJMOL Reply at 2-3. Nelson argues that those facts undermined the officers "subjective belief that [Nelson] nonetheless posed a possible risk to their safety." RJMOL Reply at 3. Finally, Nelson avers that, even subjectively, the officers did not believe Nelson posed an "immediate threat," because "after all the testimony surrounding subjective concerns that [Nelson] may have had a weapon in his waistband," both officers "agree that they deployed the beanbags not in response to any threat by [Nelson], but rather in response to a subjective belief that" Nelson was returning to the house for weapons. RJMOL Reply at 5.

Next, invoking the third prong of the excessive force standard, the suspect's flight or resistance, Nelson contends that he did not attempt to flee. See RJMOL Reply at 5. In support of that contention, Nelson lists the following "undisputed facts": "[Nelson] came out of the house and dropped his knife after being commanded to do so," "walked slowly towards [the driveway], and then stopped where he was told to stop" twenty-to-thirty feet away from the officers, and the officer shot his "beanbag shot gun" when Nelson "started" to turn around. RJMOL Reply at 5-9. Nelson also argues that he did not attempt to flee, because he "made no attempt to run even after being struck by five successive beanbag rounds and at least two wooden batons from behind." RJMOL Reply at 10.

Regarding the dog's release, Nelson preserves his prior argument that the dog's use was excessive given that his back was turned, that he was disoriented by the flash-bang device, that he was intoxicated, that he had been shot seven times between the beanbag and wooden-baton rounds, and that "he was confined in a small area" enclosed by a razor wire fence on two sides, a chain-link fence on the third side, and a police team on the fourth. RJMOL

Reply at 10. Nelson also maintains that he posed no risk after the dog attacked him, because the dog handler "testified that it was safe to approach." RJMOL Reply at 11. Nelson concludes that, notwithstanding the officer's subjective belief in being able to safely approach, two other officers Tased Nelson and one cycled the charges six times. See RJMOL Reply at 11.

4. Judge Black's Memorandum Opinion in Support of Judgment as a Matter of Law .

Judge Black ruled that judgment as a matter of law in Nelson's favor was appropriate. See Memorandum Opinion in Support of Judgment as a Matter of Law at 1, filed April 11, 2012 (Doc. 168); Amended Memorandum Opinion in Support of Judgment as a Matter of Law, filed April 12, 2012 (Doc. 171)("Black's Opinion"). He determined broadly that, based on the evidence "no reasonable jury could find for the defendants" and concluded that "[t]he jury may have been confused by the disorganized presentation of Plaintiff's case, and the underwhelming credentials of Plaintiff's expert." Black's Opinion at 1-2.

In discussing his conclusion, Judge Black divided his analysis into the three excessive force factors: (i) the crime's severity; (ii) whether the suspect poses an immediate threat to officers and the public; and (iii) whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. See Black's Opinion at 5 (citing Graham, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989) ; Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir. 2008) ). Turning first to the crime's severity, he concluded that "aggravated assault" was "a serious crime" that heightened the police's need to conduct a cautious and successful arrest. Black's Opinion at 5. Yet, he also noted that the time between Nelson's assault of Patterson and Nelson's police encounter was over an hour, which may have lessened that factor's importance. See Black's Opinion at 5-6.

Next, Judge Black considered whether Nelson posed a safety threat, and subdivided that analysis into four more factors: (i) the suspect's compliance with police commands, including a command to "drop his weapon"; (ii) whether the suspect made any hostile motions with a weapon towards the officers; (iii) the distance between the officers and the suspect; and (iv) the "manifest intentions of the suspect." Black's Opinion at 6 (quoting Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) ). From those factors, Black highlighted the following facts to conclude that Nelson did not "constitute a threat": (i) "Nelson was slow to react, slow to move, and extremely intoxicated"; (ii) he could not walk in a straight line, "form coherent words, let alone make physical or verbal threats"; (iii) "[a]t the command of the officers, Nelson dropped his only weapon"; (iv) Nelson was not "holding the only other known weapon," the air rifle, as "he staggered down the driveway"; (v) officers knew "that Nelson's hands were clear of weapons"; (vi) "Nelson was not close to any weapons or any cover"; (vii) Nelson was over twenty feet from the officers when they fired on him; (viii) "[t]he officers, in turn stood in tactically shielded positions"; and (ix) "Nelson was a single suspect" against several armed police officers "who had him surrounded, and under sniper surveillance." Black's Opinion at 6-7 (citing Zia Trust Co. v. Montoya, 597 F.3d 1150, 1155 (10th Cir. 2010) ; Walker v. City of Orem, 451 F.3d 1139, 1159-60 (10th Cir. 2006) ; Phong Duong v. Telford Borough, 186 Fed.Appx. 214, 216-17 (3d Cir. 2006) (unpublished); Diaz v. Salazar, 924 F.Supp. 1088, 1095-95 (D.N.M. 1996) (Hansen, J.)). "In sum," Judge Black concluded, "no reasonable person could believe that an inhibited, slow-moving, 60-year-old individual, who made no physical or verbal threats, and wielded no weapons, could constitute a threat to the safety of any of the forty-seven armed and shielded police officers who stood over twenty feet away." Black's Opinion at 7 (citing Murphy v. Bitsoih, 320 F.Supp.2d 1174, 1189 (D.N.M. 2004) (Vazquez J.)).

Considering next Nelson's active resistance, or lack thereof, Judge Black determined that "no reasonable officer could deem" Nelson's failure to promptly comply with every command as "active resistance." Black's Opinion at 8 (citing Headwaters Forest Def. v. Cty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) ). He noted, however, that, even if Nelson's sluggishness was "active resistance," it still did not "justify the abundant force used." Black's Opinion at 8. Judge Black explained, for example, that Nelson's "belated turn" back toward the house did not justify "all four officers to presume Nelson was fleeing rather than slowly obeying," because Nelson did not even have time to "face the house" before opening fire. Black's Opinion at 9 (citing Ruffin v. Fuller, 125 F.Supp.2d 105, 110 (S.D.N.Y. 2000) (Chin, J.)). Judge Black also noted that "the Tenth Circuit [has] held that even reasonable force becomes excessive if it is sustained longer than necessary" and concluded that, here, the officer's use of force "was excessive from the outset," and then the officers "escalated it." Black's Opinion at 9-10 (citing Weigel v. Broad, 544 F.3d at 1151-53 ). Specifically, he concluded that the dog's release and the Taser strike to Nelson's neck improperly escalated the use of force against Nelson. See Black's Opinion at 10. Judge Black also noted:

The officers' decision to escalate their force ... did not come in response to escalated resistance on Nelson's part. Nor did the officers pause to see the effects of the force already used.... Even though Nelson was immobilized, the officers continued escalating their force until Nelson collapsed to the ground. Thus, as the Officers continued to escalate their force, their decisions became increasingly unreasonable.

Black's Opinion at 10-11 (citing Holland v. Harrington, 268 F.3d 1179, 1193 (10th Cir. 2001) ; Murphy v. Bitsoih, 320 F.Supp.2d at 1190 )). He concluded that, although the officers subjectively believed that force was necessary, "nothing at trial showed that such tactics were even remotely objectively necessary to effectuate Nelson's safe and successful arrest," and that "an officer's privilege to use reasonable force during an arrest, does not encompass an unqualified privilege to beat non-threatening suspects into submission." Black's Opinion at 12 (citing Weigel v. Broad, 544 F.3d at 1151-53 ; Sanchez v. Hialeah Police Dep't, 357 Fed.Appx. 229, 232 (11th Cir. 2009) (unpublished); Bridges v. Yeager, 352 Fed.Appx. 255, 259-60 (10th Cir. 2009) (unpublished); Buck v. City of Albuquerque, 549 F.3d 1269, 1289 (10th Cir. 2008) ). Thus, Judge Black overturned the verdict, and granted Nelson's renewed motion for judgment as a matter of law. See Black's Opinion at 12.

5. Defendants' Motion to Alter or Amend Judge Black's Judgment.

The Defendants moved to overturn Black's Opinion, asserting that "the Court made several errors" in granting Nelson's RJMOL. Defendants' Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and 171, or in the Alternative, Motion for Relief From Judgment or Order Entered in Docs 168, 169, and 171 at 1, filed May 8, 2012 (Doc. 173)("Motion to Alter"). Invoking a right to relief under rules 59(e) and 60(b)(6) of the Federal Rules of Civil Procedure, the Defendants argue that there were five reasons that Judge Black should alter Black's Opinion. See Motion to Alter at 2. First, according to the Defendants, Judge Black committed clear error "by utilizing the incorrect standard of review." Motion to Alter at 2. Second, they argue that Judge Black committed clear error, "because it exceeded its jurisdictional authority under Rule 50(b)" by "resolv[ing] questions of fact, instead of questions of law." Motion to Alter at 2. Third, they contend that Judge Black misconstrued the facts with "material omissions" and "inaccuracies." Motion to Alter at 2. Fourth, they say that Judge Black "improperly weigh[ed] the evidence" in granting Nelson's RJMOL. Fifth, they conclude that Judge Black committed clear error, because the Defendants were entitled to qualified immunity. See Motion to Alter at 2. The Court details these five arguments in turn.

Turning first to the argument that Judge Black deployed the wrong standard of review, the Defendants argue that Judge Black disregarded rule 50(b)'s standard by failing to "draw[ ] all reasonable inferences in favor of the non-moving party." Motion to Alter 2-4. The Defendants further contend that Judge Black's factual background demonstrates clear error "by weighing the evidence, judging witness credibility, challenging the factual conclusions of the jury, and ultimately substituting its judgment for that of the jury." Motion to Alter at 5.

Second, the Defendants argue that Judge Black's close-of-evidence comment that, "[o]bviously, there is a discrepancy as to what occurred at the scene" demonstrates that Judge Black exceeded his jurisdictional authority by deciding "factual questions." Motion to Alter at 5-7. The Defendants also aver that Black's Opinion's footnote two, explaining that the court had to "conduct its own research," further demonstrates that Judge Black "improperly weighed evidence, judged witness credibility, challenged the factual conclusions of the jury, and ultimately substituted its judgment for that of the jury." Motion to Alter at 7.

Third, the Defendants argue that Judge Black's material factual omissions from the opinion constituted clear error. See Motion to Alter at 7. In support of that argument, the Defendants note that Judge Black omitted their expert's testimony from Black's Opinion's statement of facts, which is highly relevant, given Judge Black's close-of-evidence comment that "I think both of these [ rule 50 motions] turn on the interpretation of the facts that the experts used." Motion to Alter at 7-9. The Defendants also contend the following omitted facts demonstrate clear error: (i) Nelson partially concealed himself at the door; (ii) Nelson dropped the knife at the door; (iii) Nelson failed to raise his hands when ordered to; (iv) officers did not know whether Nelson had a weapon in his waistband; (v) Nelson continued to disregard commands as he walked toward the officers; (vi) Nelson said "[g]et the F[u]ck out of here" to the officers; (vii) Nelson failed to stop right when he was commanded to do so and "where the officers wanted to take him into custody"; (vii) Nelson glanced around, looking as if he was looking for an escape route; (viii) Nelson turned from the southwest to the south when Johnston ordered Hughes to fire his beanbag shotgun; (ix) Nelson turned without being given a command to turn "just before he actually did turn"; (x) Nelson continued to turn towards the residence as he was shot; (xi) Nelson continued to turn around "even after Sergeant Johnston deployed the wood baton launcher"; (xii) Nelson turned towards the residence as Weimerskirch released the dog; (xiii) Nelson resisted being pulled down by the dog; (xiv) officers cycled their Tasers so that Nelson would remove his arm from the fence; (xv) Nelson did not remove his arm from the fence in compliance with the officers' orders even though he was being Tased and attacked by a dog; (xvi) Nelson continued to move as he was Tased and in between each Taser cycle; and (xvii) officers removed Nelson's hand from the fence after the sixth Taser cycle. Motion to Alter at 9-14. The Defendants also argue that Judge Black committed clear error by omitting any mention that Nelson pled guilty to aggravated assault with a deadly weapon. See Motion to Alter at 15.

According to the Defendants, Judge Black's inclusion of the following inaccuracies amounts to clear error: (i) he noted that forty-seven officers were at Patterson's house "to effect Nelson's arrest," but the Defendants argue that only seven or eight out of the forty-seven officers were charged with arresting Nelson; (ii) Judge Black wrote that the Bearcat armored van "brought a battery of lethal and less-lethal weapons," but the Defendants contend that there is no testimony to that effect, that the Bearcat "was used to rescue the victim," and that "Officer Limon drove the Bearcat to the inner perimeter and organized SWAT officers in a position of cover"; (iii) Judge Black determined that "Patterson was sitting outside of his house" where officers arrested him, but the Defendants aver that there is no such statement in the record; (iv) Judge Black wrote that Patterson was assaulted only with a knife and a pellet rifle, but the Defendants contend that Patterson advised officers that he was threatened with a knife, and a rifle described as an air rifle, a pellet rifle, or a 308 rifle; (v) Judge Black determined that Nelson was "completely surrounded," but the Defendants note that Johnston did not make any of these statements in the five pages that Judge Black cited; (vi) Judge Black noted that "Nelson appeared intoxicated, disoriented, slow to react, and unable to maintain a straight line," but the Defendants report that the testimony cited "does not contain this statement" or "even a reasonable inference" of the statement; (vii) Judge Black wrote, "[a]fter some delay, Nelson stopped," but the Defendants rejoined that "this statement is clearly misleading," because Nelson repeatedly failed to comply; (vii) Judge Black determined that "[e]ach of the five shots hit Nelson before Nelson had turned enough to face the house," but the Defendants gainsay that this is "opinion, not fact," because the testimony cited lacks that statement "or even a reasonable inference that Officer Hughes made this statement"; (viii) Judge Black wrote "[t]he flash-bang device is a loud, bright explosive that disorients suspects and interferes with their ability to both see and hear clearly," but the Defendants argue that only when the flash-bang is detonated inside a dark room does it have this effect; in an open air environment, disorientation is less likely, its effect on vision or hearing is temporary, and "there is no evidence in the record that [Nelson] was disoriented by the flash bang device"; (ix) Judge Black recorded that the police service dog is trained to bite and hold suspects "indefinitely," but the Defendants contend that "indefinite" is incorrect, because the dog is trained to stop biting when his handler calls him off; (x) Judge Black determined that the officers used the Tasers "just because [Nelson] was standing upright," but the Defendants argue that the Taser was "used to gain compliance from [Nelson] so that he could be placed into custody"; (xi) Judge Black wrote that after officers "pried [Nelson's hand] from the fence, [Nelson] 'collapsed to the ground, and ceased to move,' " but the Defendants rejoin there is no testimony that supports this "opinion" or a statement leading to "a reasonable inference that Officer Limon made this statement"; and (xii) Judge Black stated that "the officers then carried Nelson's unconscious body to the Bearcat, leaving a trail of blood and urine," but the Defendants argue that "[t]his statement is pure fiction," because "there is no evidence that [Nelson] lost consciousness or that he was carried leaving a trail [of] blood and urine," and there was testimony that officers did not see him "carried or taken back to" the Bearcat. Motion to Alter 16-21 (quoting Black's Opinion at 2-5).

Fourth, the Defendants argue that Judge Black improperly weighed the evidence. See Motion to Alter at 21. The Defendants contend that, in addition to the inaccuracies and omissions as detailed above, Judge Black improperly weighed the evidence by conducting an "imminent safety threat" analysis, because that was an improper "deadly force analysis." Motion to Alter at 22. Fifth, the Defendants argue that, even though rule 59(e) normally precludes reviving a previously-made-and-rejected argument, they were entitled to qualified immunity and the Court could have and should have considered it, because qualified immunity is an exception to rule 59(e). See Motion to Alter at 24 (citing Quezada v. Cty. of Bernalillo, 944 F.2d 710 (10th Cir. 1991) ). The Defendants contend that, because Judge Black noted in Black's Opinion that Nelson's expert had "underwhelming credentials," Judge Black must have given "no weight ... to his testimony." Motion to Alter at 25. From that premise, the Defendants argue that, because Judge Black precluded the Defendants' rule 50 qualified immunity motion on Nelson's expert's testimony, he committed clear error in Black's Opinion by not reversing himself on that finding. See Motion to Alter at 25. The Defendants further aver that, because Judge Black omitted and misrepresented material facts, he committed clear error by failing to evaluate whether, based on the totality of the circumstances, the "Defendants committed a clearly established constitutional violation." Motion to Alter 25-26. The Defendants also argued that, even if the Defendants committed a constitutional violation, considering Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001), a reasonable officer would have believed their conduct was lawful. See Motion to Alter at 26. Finally, turning to Nelson's state law claim, the Defendants argue that Nelson's claim failed, because "the officers' actions were lawful and done in good faith." Motion to Alter at 26 (citing Mead v. O'Connor, 1959-NMSC-077, ¶ 4, 66 N.M. 170, 344 P.2d 478, 479-80 ).

6. Nelson's Response to the Defendants' Motion to Alter or Amend Judge Black's Judgment.

Nelson responds to the Defendants' Motion to Alter Judgment, contending that rule 59(e) relief from Black's Opinion is inappropriate. See Plaintiff Tony Nelson's Response to Defendants' Motion to Alter or Amend Judgment Pursuant to Rule 59(e), or, Alternatively, Relief from Judgment Pursuant to Rule 60(b) [Doc. 173] at 1, filed May 25, 2012 (Doc. 178)("Motion to Alter Resp."). To summarize Nelson's position, he avers that Black's Opinion applied the appropriate standard, a district court is allowed to rule on a rule 50(b) motion even if it declined to grant a rule 50(a) (or a summary judgment motion), Judge Black did not mischaracterize or improperly weigh evidence, and the Defendants do not have qualified immunity. See Motion to Alter Resp. at 4-20. First, Nelson argues that the Defendants' contention that, because Judge Black did not mention the standard of review in Black's opinion he must have applied the wrong standard of review, does not "necessarily" mean "the Court in fact failed to [apply the correct standard]." Motion to Alter Resp. at 5. Next, Nelson contests the Defendants' argument that, because Judge Black premised his Rule 50(a) denial on factual disputes, he must "have exceeded [his] authority" in ruling on the Rule 50(b) motion. Motion to Alter Resp. at 7. Nelson explains that, even if there are factual disputes, "it does not follow that the Court must have therefore resolved questions of fact rather than legal questions" as rule 50(b) allows Judge Black to decide legal questions. Motion to Alter Resp. at 7. Nelson further argues that the Defendants improperly attached "additional supporting facts" in their rule 59(e) motion, so Judge Black should, consequently, deny their motion. Motion to Alter Resp. at 8 (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) ).

Nelson also contends that Judge Black considered only the appropriate facts and did not omit any material ones. See Motion to Alter. Resp. 10-16. Regarding the Defendants' contention that Judge Black omitted facts about the " 'potential' threat" that Nelson posed, Nelson argues that there was no error, because the correct legal standard is immediate threat. Motion to Alter Resp. at 11. Nelson also notes the following facts that the Defendants failed to dispute: Nelson "dropped his only weapon, the knife, after being commanded to do so"; Nelson was "clearly" not holding the only other known weapon; Nelson did not hold any other weapons; Nelson was over twenty feet from officers; and the officers stood in tactically shielded positions. Motion to Alter Resp. at 12. Nelson further argues that Judge Black's statement that Nelson "appeared intoxicated, disoriented, slow to react, and unable to maintain a straight line" was "accurate" given certain testimony that Nelson spoke incoherently, he had been drinking, and had other observed intoxication behaviors. Motion to Alter Resp. at 13-14.

Nelson states that Judge Black also accurately determined that Nelson did not actively resist arrest or attempt to evade arrest. See Motion to Alter Resp. at 14. Nelson argues that there was enough testimony for the Court to make a reasonable inference that officers shot at Nelson before he turned around to face the house. See Motion to Alter Resp. at 15. In support of that contention, Nelson cites Hughes' testimony that he " 'immediately' deployed his weapon in response to Johnston's order," and that he did so when Nelson " 'started' to turn around." Motion to Alter Resp. at 15. Nelson also argues that there is sufficient evidence to demonstrate that officers surrounded Nelson. See Motion to Alter Resp. at 15-16.

Finally, Nelson argues that the Defendants are not entitled to qualified immunity. See Motion to Alter Resp. at 17-19. Nelson notes that the Tenth Circuit has determined that, under qualified immunity's clearly established prong, "because excessive force jurisprudence requires an all-things-considered inquiry with careful attention to the facts and circumstances of each particular case ... there will almost never be a previously published opinion involving exactly the same circumstances." Motion to Alter Resp. at 18 (citing Casey, 509 F.3d at 1284-85 ). Nelson concludes that, for all the reasons that Judge Black previously denied qualified immunity in Black's Opinion, qualified immunity is still inappropriate. See Motion to Alter Resp. at 19.

7. Judge Black's Order Denying the Defendants' Motion to Alter.

On June 1, 2012, Judge Black denied the Defendants' Motion to Alter in a two-page order, before the Defendants could file a reply brief. See Order at 1-2, filed June 1, 2012 (Doc. 179)(Black's First Order). After noting that the "Federal Rules of Civil Procedure do not recognize a specific 'motion to alter or amend judgment,' " Judge Black determined that the relevant rule was rule 60(b)(1), because it provided relief for "mistake, inadvertence, surprise, or excludable neglect." Black's First Order at 1. Judge Black stated that rule 59 is inappropriate, because the Defendants filed their Motion to Alter at least ten days after judgment. See Black's First Order at 1 n.1. He concluded that, notwithstanding the Defendants' contention that "numerous facts ... were allegedly errant or overlooked," he considered those facts, he did not need to "delve into irrelevant details," and rule 60 did not require him to use the Defendants' "chosen rhetoric." Black's First Order at 2. Furthermore, Judge Black noted that he used the "proper standard of review," granting all reasonable inferences in Defendants' favor based on the trial evidence. Black's First Order at 2. Accordingly, he denied the Defendants' Motion to Alter. See Black's First Order at 2. In denying the Defendants' Motion to Alter, Judge Black did not specifically address qualified immunity. See Black's First Order at 1-2.

8. The Defendants' Motion For Relief From Black's First Order.

On June 1, 2012, the Defendants filed a motion for relief, arguing that Judge Black erroneously determined that rule 60 was appropriate instead of rule 59. See Defendants' Motion for Relief From Order Entered on 6/1/2012 [Doc. 179] Denying Defendants' Motion to Alter or Amend Judgment Entered in Docs. 168, 169, and 171, or in the Alternative, Motion for Relief from Judgment or Order Entered in Docs 168, 169, and 171 at 1, filed June 1, 2012 (Doc. 180)("Mot. for Relief"). The Defendants argue that Judge Black "made a mistake" when he determined that the Federal Rules of Civil Procedure provides no rule that recognized a motion to alter or amend a judgment, citing rule 59(e). Mot. for Relief ¶ 5, at 2. They also argue that, pursuant to a December 1, 2009 amendment, a party is entitled twenty-eight days to file a motion to alter or amend a judgment under rule 59(e), so Judge Black's determination that Rule 60 applied is inappropriate, because the Defendants had filed their motion within twenty-eight days. See Mot. for Relief ¶¶ 6-9, at 2. Accordingly, the Defendants request that Judge Black set aside Black's First Order and reconsider the Defendants' arguments contained within its Motion to Alter. See Mot. for Relief ¶ 10, at 3.

9. Nelson's Response to the Defendants' Motion for Relief.

Nelson filed a response to the Defendants' Motion for Relief on June 5, 2012. See Plaintiff Tony Nelson's Response in Opposition to Defendants' Motion for Relief from Order entered on 6/1/2012 [Doc. 180] at 1, filed June 5, 2012 (Doc. 182)("Mot. for Relief Resp."). Nelson argues that the invited error doctrine bars the Defendants' requested relief. See Mot. for Relief Resp. at 2-3 (citing United States v. LaHue, 261 F.3d 993, 1011 (10th Cir. 2001) ). Nelson avers that, because the Defendants request relief from judgment pursuant to Rule 60(b), "Defendants are in no position to now challenge the Court's denial of their motion premised on Rule 60(b)." Mot. for Relief Resp. at 3. Nelson otherwise preserves his arguments from his Motion to Alter Resp. See Motion for Relief Resp. 3-19.

10. Judge Black's Second Order Denying the Defendants' Motion to Alter.

On June 12, 2012, Judge Black issued a second order denying Defendants' Motion to Alter. See Order at 1-2, filed June 12, 2012 (Doc. 183)("Black's Second Order"). Although noting that the "Defendants rightly assert that the motion [to alter] may be considered under Fed. R. Civ. P. 59(e)," he concluded that, "for the reasons explained in" his prior order, there were no mistakes or "clear errors" warranting an amended judgment. Black's Second Order at 1-2. Accordingly, he denied the Defendants' Motion for Relief and ordered a trial on damages. See Black's Second Order at 2. In denying the Defendants' Motion for Relief, Judge Black did not specifically mention qualified immunity. See Black's Second Order at 1-2.

On July 3, 2012, the parties filed a stipulation setting damages at $385,000, but the Defendants reserved their right to appeal Black's Opinion granting Nelson judgment as a matter of law and his orders. See Stipulation as to the Amount of Damages With Respect to the Claims on which the Court Granted Plaintiff Judgment as a Matter of Law at 1-2, filed July 3, 2012 (Doc. 194). On July 5, 2012, Judge Black entered Final Judgment vacating the damage trial, and dismissing all other claims with prejudice, except for attorney's fees. See Final Judgment at 1, filed July 5, 2012 (Doc. 196).

11. The Defendants' Judgment as a Matter of Law Motion.

After Judge Black entered Final Judgment, the Defendants filed a motion for judgment as a matter of law requesting the verdict to stand and a determination that the Defendants have qualified immunity. See Defendants' Rule 50(b) Motion, and Memorandum in Support, Requesting For the Judgment on the Jury Verdict to Stand; to Find Defendants have Qualified Immunity; and to Enter Judgment as a Matter of Law in Favor of Defendants at 1, filed July 26, 2012 (Doc. 201)("Motion"). The Defendants argue that the evidence supports the verdict. See Motion at 13. In making this argument, the Defendants incorporate by reference their arguments from their Motion to Alter and Motion for Relief. See Motion at 13-14.

Regarding qualified immunity, the Defendants begin by making the same arguments that would be relevant to determine whether the evidence supports the verdict-they argue that the officers' conduct was "objectively reasonable." Motion at 14. The Defendants assert that the officers' actions were reasonable, in part, because they were attempting to apprehend "a suspected felon who was non-compliant with the majority of their commands" and who resisted arrest "by attempting to return to the residence" known to contain weapons. Motion at 15. They further argue that Nelson attempted to bait the officers to come to him while he was holding a knife, and this threat remained active after Nelson exited the house, because "it was unknown if [Nelson] had any weapons on [ ]his person." Motion at 15. They also assert that "the potential threat increased" when Nelson "attempted to return to the residence," because "he was closing distance to where it was known there were weapons." Motion at 15. They conclude that these facts, taken together, demonstrate that the officers' actions were reasonable. See Motion at 15.

Turning to whether the officers used lethal force, which would bear on whether the officers' conduct was reasonable, the Defendants argue that all of the weapons were less-than-lethal. See Motion at 15. The beanbag shotgun and wooden-baton launcher were not lethal, because officers deployed the weapons at greater than ten feet, and the dog was not lethal, because he bit Nelson's arm, and is not trained to bite the neck, groin, or any other area that would cause serious bodily injury or death. See Motion at 15.

The Defendants also analogize to Medina v. Cram, 252 F.3d 1124, 1124-27, 1132 (10th Cir. 2001) (" Medina"), and argue that, based on the facts already listed, the officers acted reasonably. See Motion at 15-18. They contend that, in Medina, the defendant, Medina, threatened a bail bondsmen with a gun. See Motion at 16 (citing Medina, 252 F.3d at 1124 ). The Defendants detail that, in Medina, the police responded, Medina refused to leave the house at first, instead deciding to snort cocaine and drink rum, but later emerged from the house with a "left hand in a cup and his right hand wrapped in a towel concealing a staple gun." Motion at 16 (citing Medina, 252 F.3d at 1126-27 ). They assert next that Medina refused to obey stop commands, Medina "continued to walk toward and into the street," officers subsequently fired beanbag rounds at Medina, when those measures failed to stop Medina, an officer released an attack dog, Medina then dropped the staple gun, "turned to the left, causing [an officer] to conclude he and other officers were in a line of fire," and the officer fired three times with his automatic weapon into Medina's stomach. Motion at 16-17 (citing Medina, 252 F.3d at 1126-27 ). They conclude that the Tenth Circuit determined the officers' actions were reasonable under the circumstances, and, accordingly, the Defendants' actions are similarly reasonable. See Motion at 17-18 (citing Medina, 252 F.3d at 1132 ).

Turning to qualified immunity's second prong, the Defendants contend that, even if they used excessive force, the officers reasonably believed their actions were legal. See Motion at 18 (citing Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). They argue that, based on Medina's facts, the officers "certainly would have had a reasonable belief that their conduct was lawful." Motion at 18 (citing Medina, 252 F.3d at 1126-27 ). The Defendants then assert that they are also entitled to qualified immunity, because, for a law to be clearly established, there must be a Tenth Circuit decision on point or the clear weight of authority must favor the Plaintiffs, and, here, there is no