United States District Court, S.D. Indiana, Evansville Division
ORDER ON PLAINTIFF'S RULE 59 MOTION FOR NEW
WALTON PRATT, JUDGE United States District Court.
matter is before the Court on a Motion for New Trial filed
pursuant to Federal Rule of Civil Procedure 59 by Plaintiff
Jamie Becker (“Becker”) (Filing No.
232). After a three-day jury trial on Becker's
claims against the City of Evansville (“the
City”) and Zachary Elfreich (“Elfreich”)
(collectively, “Defendants”), for excessive force
and municipal liability, the jury returned a verdict in favor
of the Defendants on each of Becker's claims. Becker
filed a Motion for New Trial, requesting that the Court
determine the jury verdict is against the weight of the
evidence and to grant him a new trial. For the following
reasons, the Court DENIES Becker's
is a resident of Evansville, Indiana. Elfreich is a police
officer for the Evansville Police Department
(“EPD”). The City of Evansville is a political
subdivision of the State of Indiana. Becker filed this action
alleging that Elfreich used excessive force in effectuating
his arrest pursuant to an outstanding arrest warrant. He also
alleged that EPD and the City demonstrated a custom and
policy of deliberate indifference to the constitutional
rights of its citizens.
time of the incident between Becker and Elfreich, the City
had in effect a “Canine Unit Policy, ” codified
as EPD Standard Operating Procedure 359.03, wherein police
dogs are trained to bite and hold when apprehending a suspect
and further authorizes the dog's handler to unleash the
dog resulting in the dog not being under the officer's
complete control and within the line of sight of the officer.
EPD also has a policy and practice of training their canine
handlers to recall the dog before it bites a person if the
officer observes the suspect surrendering while the dog is
approaching the suspect.
the early evening hours of March 11, 2011, Becker was at his
mother's house, where he lived, located at 617 North Hess
Avenue, Evansville, Indiana. Becker was in bed in his bedroom
upstairs with his girlfriend. He had recently returned home
from work. Elfreich and his canine partner, Axel, along with
other EPD officers, arrived at the residence to execute an
arrest warrant for Becker. An arrest warrant had been issued
for an incident that occurred approximately one month
earlier. Becker had threatened to kill his brother-in-law
while he held a large kitchen knife to his neck.
Elfreich and the other officers arrived at the Becker
residence, they spoke with Becker's mother, Brinda
Becker, and asked if Becker was home because they had a
warrant for his arrest. Brinda Becker initially responded
that she was uncertain whether he was home but then later
advised that he was upstairs asleep and said she would go get
him. Brinda Becker went to the stairs leading to the second
floor of the house and yelled upstairs to Becker that police
officers were there to arrest him. Becker testified that he
responded he was getting dressed and would come downstairs.
did not promptly appear because he was getting dressed.
Elfreich prepared to use Axel and yelled from the entryway of
the house, “Police department K-9, come out now or I
will release my dog and you will get bit.”
Approximately thirty seconds after issuing the warning and
hearing no response, Elfreich unleashed Axel and instructed
him to find Becker, knowing that Axel would bite and hold the
first person he encountered. Like all of EPD's dogs, Axel
was trained in the “bite-and-hold” technique. On
command, Axel will search for a person, bite the first person
he finds, and hold that person with his teeth until Elfreich
commands him to release.
unleashed, Axel ran from the front door to the back of the
house and began up the stairs. At the same time, Becker and
his girlfriend had begun to descend the stairs. Becker was
holding his hands on top of his head so the police would know
he was surrendering and was not a threat to their safety.
After walking a few steps, Becker reached a landing where he
felt Axel brush against his leg and then bite him. Becker
shouted to Elfreich to call off Axel because he was coming
downstairs. Elfreich ran to the stairs toward Becker's
voice. Elfreich saw that Axel had bitten Becker's leg but
did not command him to release Becker; rather, he commanded
Becker to get on the floor. Becker's girlfriend was
screaming and there was a lot of commotion. Becker testified
that he did not hear Elfreich's command to get on the
he was bitten, Becker remained standing on the landing of the
stairs with his hands on his head. Elfreich grabbed Becker by
the front of his shirt collar and pulled him down the
remaining three stairs. Becker's eyeglasses fell off his
face, and he landed hard on the floor on his chest and head.
Axel, who had lost his grip when Elfreich pulled Becker down
the stairs, ran to Becker and started biting Becker's
left calf and shook his head violently. Becker lay still on
the ground with his hands behind his back, not resisting
arrest. Elfreich placed his knee in Becker's back,
handcuffed him, and then ordered Axel to release his grip.
Axel complied with the order to release his bite on Becker.
Becker testified that it felt like Axel was biting him for
many minutes but that in reality it was about a minute. An
ambulance was called to treat Becker's dog bite, and when
advised that the ambulance would take approximately ten
minutes, an EPD officer placed Becker into a police cruiser,
and he was taken to a hospital where he underwent surgery for
the injuries he sustained.
filed this action on October 19, 2012, asserting various
civil rights and tort claims against Elfreich, the City, and
other defendants. After motions for judgment on the
pleadings, summary judgment motions, an appeal to the Seventh
Circuit, and remand, Becker's claims for excessive force
and municipal liability against Elfreich and the City were
tried by a jury on November 29 through December 1, 2016. On
December 1, 2016, the jury returned a verdict in favor of the
Defendants. Judgment was entered against Becker on December
2, 2016, and Becker filed his Motion for New Trial on
December 28, 2016.
Trial Rule 59, district courts have broad discretion to grant
or deny a new trial. On a motion for a new trial, the court
considers whether the verdict is against the weight of the
evidence, the damages are excessive, or the trial was not
fair to the moving party. Marcus & Millichap Inv.
Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 313
(7th Cir. 2011); see also Venson v. Altamirano, 749
F.3d 641, 656 (7th Cir. 2014) (“new trial is
appropriate if the jury's verdict is against the manifest
weight of the evidence or if the trial was in some way unfair
to the moving party”). “[T]he district
court's decision to deny the request for a new trial [is
reviewed] for abuse of discretion.” Venson,
749 F.3d at 656.
seeking a new trial or amendment to a verdict under Rule 59
“bear a particularly heavy burden because a court will
set aside a verdict as contrary to the manifest weight of the
evidence only if no rational jury could have rendered the
verdict.” Sekulovski, 639 F.3d at 314.
“Rule 59(a) is not intended to allow parties to merely
relitigate old matters or to present the case under new
theories; rather, a motion for a new trial not predicated on
the discovery of new evidence is intended to correct manifest
errors of law or fact.” Int'l Paper Co. v.
Androscoggin Energy LLC, 2005 U.S. Dist. LEXIS 22066, at
*8 (N.D. Ill. Sept. 30, 2005). “With a jury verdict in
their favor, the defendants are entitled to a favorable
interpretation of the evidence ...