F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

H U N G L A M , individually
, throug h his

nex t friend, Kathy

L am, Plaintiff-Appellee
,

v

.

C I T Y O F S A

N J O S E , a municipal corporation; D O N D I W E S T , individually and in her official position as a San J ose Police Officer; L A R R Y E S Q U I V E L , in his capacity as Chief of Police for the City of San J ose, Defendants-Appellants. N o. 16-16052

D.C. No. 5:14-cv-00877- PSG

OPI NI ON

Appeal from the United States District Court for the Northern District of California Paul S. Grewal, Mag istrate J udg e, Presiding

Arg ued and Submitted J une 15, 2017 San F rancisco, California

F iled September 5, 2017L A M V

. C I T Y O F S A N J O S E 2

B efore: Mary

M. Schroeder, D. Michael F isher, * and N. Randy

Smith, Circuit J udg es.
Opinion by

J udg e N.R. Smith

SUMMARY * *

Civil Rights

The panel affirmed the district court’s judg ment, entered following a jury verdict, in f av o r o f p l aintiff in an action broug ht under 42 U.S.C. § 1983 and state law alleg ing that a police officer used ex cessive force when she shot plaintiff in the back during a response to a 911 call, rendering plaintiff a parapleg ic.

T h e panel held that the district court did not abuse i t s discretion by denying the officer’s motion for a new trial because the evidence presented at trial provided a reasonable basis to support the jury ’s verdict. N or d id the d istrict court abuse its discretion by failing to g ive to th e jury special interrog atories, a deadly force i nstruction, or an instruction
reg arding officer tactics. The panel held that the district court has broad d iscretion in the formulation of jury instructions, and the instructions adequately covered the issues p resented, correctly stated t h e law, and were not misleading

. F inally
,

* T h e Ho n o rab le D. Mich ael Fish er, Un ited States Circu it J u d g e f or th e U.S. Co urt o f

A p p eals f o r th e T h ird Circu i t, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.L A M V

. C I T Y O F S A N J O S E 3

the panel declined to reach the officer’s argument relating to qualified immunity
, b ecause she did not preserve the defense for a ppeal by f

iling motions for judg ment as a matter of law pursuant to F ed. R. Civ. P. 50.

COUNSEL

Clifford S. Greenberg (arg ued), Senior Deputy City Attorney ; Nora F rimann, Assistant City Attorney ; Richard Doy le, City Attorney ; Office of the City Attor ney , San J ose, California; for Defendants-Appellants.

B enjamin Nisenbaum (arg ued), Ay ana Curry
, a

nd J ohn L

. B u r ris, L aw Offices of J o hn L

. B urris, O akland, California, for Plaintiff-Appellee.

OP INION

N.R. SMI TH, Circuit J udg e :

This case a

rises from a shooting that occurred when San J ose Police D e p a r t m ent Officer Dondi West responded to a 911 dispatch reg arding two people arguin g a n d one o f them—Hung L am—having a knife. Officer W est arrived on the scene and a ttempted to subdue L am (the details of which

are disputed), which resulted in Officer W est shooting L am in the back and rendering him a parapleg ic. L am sued Officer W e st, the City

of San J ose, and the San J ose police chief for violations of his state and federal rig h ts. A jury found Officer W e st used u n r easonable f orce ag a inst L am, interfered with the e x ercise of L am’s constitutional rig hts, and act e dL A M V

. C I T Y O F S A N J O S E 4

neg lig ently toward L a m

. However, the jury also f ound Officer W e st did not commit battery

. The district court did not abuse its discretion by denying Officer W est’s motion for a n ew trial, because the evidence presented at trial prov i d e d a reasonable basis to support the jury ’s verdict. N o r did the district court abuse its discretion by failing to g ive to the jury special interrog atories, a deadly force instruction, or an instruction reg arding officer tac t i cs. The district c ourt has broad discretion in the formulati on o f jury instructions, and the instructions adequately covered the issues presented, c o r r e ctly stated the law, and were not misleading

. F inally
, w e do not r each Officer West’s argument relating to q ualified immunity
, because she did not preserve the defense for appeal.

F ACTS

Two day s before the inc i dent a t issue, L am b eg an behaving e rratically

. He spent much of the day in the driveway of his San J o s e h o me that he shared with his boy friend, Kevin W ade. He refused to g o i n t o t h eir house, b e cause he w as afraid someone mig ht be inside. L a m eventually called the police himself a nd was placed under an involuntary psy chiatric hold a t a nearby h ospital. The hospital released L am two day s later.

After L am was released from t h e h o spital, he and Wade stopped at th e i r h o u s e o n the way to visit L am’s family

. W h en they a

rrived at their house, L am started to act strang ely
ag ain. He picked up a knife and told W ade that someone was in the house. W ade walked outside and L am followed h im. W a d e a ttempted to convince L am to g ive him the knife
, b u t L am refused and threatened to cut himself. Wade flag g edL A M V

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down their nex t-d o o r n eig hbors, Herman and Helen Anders o n, and asked them to call the police. Herman Anderson went inside his house to c all the police. Helen Anderson (“Anderson”), a r e tired deputy sheriff, walked
tow a r d L am (but remained on her lawn at a distance she estimated to be 10 to 15 feet from L am) and beg an talking with him. The conversation between L am and Anderson was calm, but L am was still ag itated a nd periodically motioned a s if to cut his wrist with the knife.

Herman Anderson c alled dispatch and told them that two people were arg uing
, and one of them had a k n ife. Up o n receiving the dispatch, the dispatcher informed Officer W e st about the call and told her that a retired sheriff’s deputy was talking to the man with a knife. A few moments later, Officer W e st arrived at the scene. At this point, the stories diverg e.

Helen Anderson had a clear view of the entire incident. She testified that, when Officer W est arrived at the scene, she had her g un drawn in a shooting position a n d s h e quickly approached the property line of the Andersons’ lawn a n d L am’s lawn. Of

fi c e r W est ordered Anderson to move back (and she did, approx imately eig ht to ten feet) and ordered L am to drop the knife a nd g e t down on the g rou n d

. L am

never dropped the k

nife but threw a c ell phone on the g round. L am, who was standing in the middle of his lawn
approx i mately 10 to 15 f eet away f

rom Officer W est, then turned his back to Officer W es t a n d started making motions with the knife toward his stomach, as if he were s t a bbing himself. I mmediately
, Officer West shot L a m in the back twice in rapid successi o n , a n d L am fell to the g round. Photog raphs introduced at trial confirm that L am w as shot in the back. Anderson testif i e d that L am did not move a fter Officer W est arrived at the scene. However, the photog raphsL A M V

. C I T Y O F S A N J O S E 6

introduced at trial depict L am’s clothes were cut off near the tree, with L am’s cell phone approx imately 14 feet a way from L am’s clothes. Anderson also testified that the shooting happened within approx i m a t e l y 10 to 15 seconds o f Officer W e s t e x i t i n g h e r v e h i c l e

. H o w e v e r , t h e p o l i c e communications tape de m o n s t r ates that o ver a minute elapsed between when Officer W est announced that she arrived at the

scene and when the officers announced that shots were fired. Ander s on never saw Officer W est move into L am’s y ard where a tree a n d s hrubbery were located, nor did she see Officer Phelan on the scene until after L am was shot.

Officer West r ecalled the incident very differently

. She testified that, w hen she arrived at the scene, L am had a knife
to his throat and stood approx imat e l y an arms leng th away from Helen Anderson. Offic e r W e st moved quickly toward L am with her g un d

rawn, ordering that Anderson move back and that L am drop the knife. 1 As Officer W est approached the property line between Anderson’s y a rd and L am’s y ard (approx imately 15 feet away from L am), L am threw an item
to the g r ound. Officer W est believed it was the knife (thoug h she later learned it was a cell phone). J ust after L am dropped the item on the g round, a second officer, Dan Phelan, arrived

on the scene in his patrol c ar. B e l i e v i ng L am w as unarmed, Officer W est a

nd O fficer Phelan approached Lam to subdue him. W hen Officer W est w a s w ithin three or four f eet o f L am, sh e s aw L am pull a knife out o f his waistband. She
y elled “knife” and backed away from L am. L am walked away from Officer West and looked as if h e were pushing the knife into his stomach. Officer Phelan ran back to his patrol c ar to

1 Of f icer W est testif

ied th at sh e o rd ered L am to d ro p t h e k n i f e ap p ro x im ately 1 5 tim es, u sin g d if f eren t w o rd s an d d if

f eren t to n es, in o rd er to g et L am

to resp o n d

.L A M V

. C I T Y O F S A N J O S E 7

retrieve a less leth al w eapon (a “40”) that shoots rubber bullets.

Officer West a

n d L am were still approx imately 15 feet

a p art. W ith the knife o ut, L am then turned to face Of fi c e r W e st and started taking small st e p s toward her—at times turning to walk backwards while looki n g a t her over his shoulder and at times facing her. Officer W est poi n t ed her
g un at L am and started backing a wa y from him. She knew there w as a tree in the y ard and continued backing up toward the tree, intending to use it f o r cover. L am continued to slowly walk backwards toward Officer W est with the knife in his rig ht hand. Officer West backed up past the tree and then moved to p osition the tree between herself and L am. A s she moved behind the tree, h er r ig ht foot became stuck. Of fi c e r W e st looked down, b ut could n ot tel l w h a t was holding her foot. As she looked up at L am, she saw that L am was closer to her and was starting to turn toward her with the knife still in his h and. Officer W est believed that, if she a t tempted to

move h er stuck foot, she would f all and L am would stab her. As L am w as facing Officer W est approx imately 10 feet away , Officer W est f

ired her g un at L am , but did not h it him. L am then turned his back tow a rd Officer W est and walked backwards to ward her for two or three more steps, while looking at her over his shoulder. O fficer W est fired ag ain, this time hitting L am in the back. L am fell immedi at e ly on the
g round toward Officer W est, and rolled on his back.

W a de and O f

f i c e r Phelan also offered their accounts at trial. According to Wade, wh e n Officer W est arrived on the
scene, she pointed h er g un at L am and y elled at L am to drop the knife. L am pointed t h e k n ife a t his stomach and told Officer W est that if she go t close to him, he would hurt himself. L am then turned his back to Officer W est. WadeL A M V

. C I T Y O F S A N J O S E 8

started to run ac r o s s the street. He saw Officer Phelan park his patrol car, walk a short dista nce toward the Andersons’
y ard, and immediately r e turn to the patrol car to retrieve the 40. At some point, W ade looked back a n d saw L am standing in the c enter of his y ard w i t h his back facing Officer W e st and Officer W est in the Andersons’ y ard pointing her gun at L am. B y the time Wa d e r e a c hed the other side of the street, two shots h ad been fired. W ade testified t h a t L am never moved from the middle of his y ard, and Officer West stay ed close to the Andersons’ y ard.

Officer Phelan testified that, when he arriv e d on the
scene, L am and Officer W est stood 1 5 feet apart. L am had his h a n d s raised in the air and they w ere empty

. Officer Phel a n g ot out of his car and ran to assist O fficer W est in the y ard. Officer W est told Officer Phelan that L am d r o p p e d a knife. B oth officers, with their g uns pointed at L am, ordered L am to g et on the g r ound. L am turned around and shuffled his feet but stay ed in the same g eneral area. O ffic e r W est then told Officer Phelan that L am now had a knife, and Officer Phelan retreated to his patrol car to retrieve a 40. W hile stopping to look back briefly

toward the house, O fficer Phelan saw L am try ing to impale himself with the knife. At that point, Officer Phelan broadcast over the police radio that he was “g etting the 4 0 ” and that L am was “stabbing himself.” After r etrieving and loading the 40, w hich took approx imately 30 seconds, Officer Phelan started to r un back to the y ard and saw Officer W e st standing near the tree and facing L am, app rox imately five to seve n feet apart. B ecause Officer Phelan approached from d irectly behind Officer W est, his view was obstructed and he could not fully s ee L a m o r tell whether L am was moving toward Officer West

. Officer Phelan could tell that L am was facing Officer W est d uring th e f

irst shot, but twisting a way f rom Officer W est during the second shot. L amL A M V

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t e stified at trial, but had n o recollection of speaking t o Anderson before the shooting
, the officers arriving on the scene, or how the shooting occurred.

P ROCEDURAL HISTORY

L am filed suit ag ainst Defendants for (1) ex cessive force and malicious prosecution under the F ourth Amendment; (2) state law a ssault and battery ; (3 ) s t a t e law intentional infliction of e motional distress, ( 4) v iolation of the B ane A ct (California s t a te law action for intentional interference with civil rig hts b y threats, intimidation, or coercion); (5) state law
neg lig ence, and (6) improper tra i ning in the use of force
ag ainst p e rsons w ho a ppear suicidal under M onell v

. Department of Social Services of City of New Y ork
, 436 U.S. 658 (1978). D efendants moved for summary judg ment based

on qualified immunity
, arguing Officer W est did not violate L am’s F ourth Amendment rig hts and the r e was no case law that prohibited her actions. F inding that the evidence, viewed in t h e lig ht most favorable to L am, demonstrated a constitutional violation of clearly established law, the district
court denied Officer W est’s m o t i o n based on qualified immunity

. 2 Officer W est never appealed the denial o f qualified immunity

.

I n her trial brief, O fficer W est requested that the district
court s u b mit special interrog atories to the jury so that the
court could rul e o n Officer West’s entitlement to qualified immunity pursuant to a motion for judg ment as a m a t t er o f law under F e deral Rule of Civil Procedure 5 0(a). H o we ver,

2 T h e d i strict co urt g ran ted su m m ary j u dg m en t to th e po lice ch i ef an d th e City o f San Jo s e o n th e Mo nell claim

. T h e rem ain in g claim s p ro ceed ed
to trial ag ain s t Of

f icer W est.L A M V

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Officer W est did not submit proposed special interrog atories
to the district court, and the court did not include any special interrog atories in the jury instructions.

The case proceeded to a jury trial. The jury

unanimously found (1) Officer W est used unreasonable force ag ainst L am; (2) Officer W est did n ot c o m mit battery ; (3) Officer W e st violated the B a

ne Act; a nd ( 4) Officer W es t was neg lig ent 3 with reg a rd to the shooting

. 4 The jury awarded L am $ 1 1 .3 million in economic and nonec o n o m i c d a mag es. O fficer W e st did not file Rule 50(a) or (b) motions.

Officer W est filed a motion for a new trial under F ederal Rule of Civil Pro c e d u re 5 9, arguing the verdict was not supported by the clear weig h t of the evidence; the jur y was im p r operly instructed on F o urth Amendment liability ; and the district court’s failure to submit special interrog atories to the jury deprived Officer W e s t of a q ualified immunity determination. The district court denied O f f icer W est’s motion in full. Officer W est appealed, a r g uing the district
court erred by concluding the verdict w a s supported by the clear weig ht o f the evidence, the e x c e s sive f orce instruction did n ot adequately ex plain the law, and the district court abused its d i s c retion by failing to submit special interrog ator i e s to the jury

. F or the reasons ex plained below, we affirm.

3 T h e j ury ap p o r t i o n e d 65 % f au lt to Of f icer W est an d 3 5 % f

au lt to L am

.

4 T h e j ury w as n o t in stru cted o n t h e in ten tio n al in f

lictio n o f em o tio n al d istress claim

o r th e m alicio u s p ro secu tio n claim

.L A M V

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D ISCUSSION

I.

“W e review a district court’s denial of a motion for a new trial under F ederal Rule of Civil Procedure 59(a) for an abuse of discretion.” Molski v. M .J. Cable, Inc.
, 481 F .3d 724, 728 (9th Cir. 2007). This review permits us to reverse the district
court only if it “reaches a result that is illog ical, implausible, or without support in the inferences that may be drawn from the record.” Kode v. Carlson
, 5 9 6 F. 3 d 608, 612 (9th Cir. 2010). “ T h e a

buse of d iscretion standard requires us to

u p hold a district court’s d etermination that falls within a broad rang e of permissible conclusions, provided the district
court did not appl y t h e law e rroneously .” Id. W e have

re cog niz ed the “limited nature of o ur appellate function” in reviewing the district court’s denial o f a motio n f or a new trial, id.
, an d w e will g enerally “not r everse the denial o f a

new trial motion if there was some ‘reasonable basis’ f or the jury ’s verdict,” Molksi
, 481 F

. 3d at 729. I n s u m , “where the basis of a Rule 59 ruling is that the v erdict is n ot ag a inst the weig ht of the evidence, the district court’s denial of a Rule 59 motion is virtually unassailable. I n such cases, we reverse for

a clear abuse of discretion o nly wh e n t h e r e is an absolute absence of evidence to support the jury ’s ve r d i ct.” Kode
, 596 F .3d at 612 (quotation marks and citation omitted).

Officer W est argues the d istrict court erroneously denied her motion f

or a new trial, because there is no evidence to support the jury ’ s v e r dict. Specifically
, Officer W est contends that A nderson’s testimony —which is the only eviden c e that supports the jury ’s verdic t

— i s n ot e ntitled to any weig ht, because it is inconsistent with the phy sical evidence that wasL A M V

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presented at tria l

. Officer W est does not argue the district court misapplied the law.

The district court did not abuse its discretion by denying Officer W est’s motion fo r a new trial. The district court acknowledg ed Anderson’s t e stimony c ould not, in some

res p e c t s , be reconciled with the phy sical or documentary evidence. I t n evertheless concluded that the jury was entitled
to g ive Anderson’s testimony weig h t, because Anderson perceived th e entire incident and some phy sical evidence supported Anderson’s testimony

. Given the standard o f review for the denial of a motion for a new trial, we ag ree.

I t is true Anderson’s te s t i m o ny , reg a rding the timing o f the incident and the precis e l ocation of each person, is difficult to reconcile with some o f the phy sical evidence that

was presented at trial. H owever, n o n e o f the p h y sical o r documentary evidence or ex pert testi m o n y provides i n c o n trovertible p r oof that Anderson’s version of the incident—that Officer West shot L am in the back when L am

was not threa t ening Officer W est—was impossible. Ad ditionally
, portions of W a de’s testimony corroborates Anderson’s testimony

. Despite some inconsi s t e ncies in the details of Anderson’s testimony
, h e r testimony nonetheless provides substantial evidence u pon which the jury could have reached its verdict.

W e d ecline to assess Anderson’s credibility o n appeal, Union Oil Co. of Cal. v. Terrible Herbst, Inc.
, 331 F .3d 735, 743 (9th Cir. 2 0 0 3 ) ( “I t is not the courts’ place to substitute

our e valuations for those of the jurors.”), and w e also decline Officer W est’s invitation to reweig h the evidence, L a n des Constr. Co. v. Royal Bank o f Ca n ada
, 8 33 F .2d 1365, 1372 (9th Cir. 1987) ( “[ W ] e cannot weig h the evidence forL A M V

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ourselves

. . . . ” )

. O u r role is not to overturn the verdict merely becau s e t h e jury could have reached the opposite

c o nclusion based on the evidence. See id. I nstead, we l o o k

on l y to whether the district court’s conclusion “was outside of a broad r ang e o f permissible conclusions.” Kode
, 596 F .3d

a t 6 13. I t was n ot. The jury ’s v erdict is supported by a percipient witness’s testimony
, which is substantial evidence
upon which the district court’s denial of the motion for a new trial can be affirmed.

II.

W e review de novo whether a district c ourt’s jury instructions accurately state the law, and we review for abuse of d iscretion a district court’s formulation of jury in structions. Hunter v. Cty. of Sacramento
, 652 F

. 3 d 1225, 1232 (9th Cir. 2011). “[ J ] ury instructions must fairly and adequately c o v er the issues presented, must correctly state the law, a n d must not be misleading .” Id. (quoting Dang v. Cross
, 422 F .3d 800, 804 (9th Cir. 2005)).

Officer W est argues that she is entitled to a ne w t r ial, because the jury instructions w ere erroneous in three reg ards: (1) the district court did not g ive special interrog atories to the j u r y ; (2) the district court did not g ive a deadly force instruction to the jury ; and (3) the district court erred b y failing to instruct the jury that an o fficer’s “ b ad tactics” a re insufficient to establish constitutional liability

.

A.

Officer W est first argues that, in qualified immunity cases i nvolving disputed issues of material fact (like here), the district court is required to g ive special interrog atories to theL A M V

. C I T Y O F S A N J O S E 14

jury

. She is mistake n as t o the precedent in our circuit. I nstead, “ [ t] he decision ‘whether to submit special interrog atories to the jury is a matter committ e d t o t he di s c r e t ion of the district c ourt.’” Ruvalcaba v. City of Los Ang e l e s , 167 F .3d 514, 521 ( 9th Cir. 1999) (alteration omitted) (quoting Acosta v. City and Cty. of San F rancisco, 83 F .3d 1143, 114 9 (9 th Cir. 1996), a brogated on other grounds by Saucier v. Katz
, 533 U.S. 194 (2001)); Cancellier

v. Federa t e d D e

p ’t S tores , 672 F .2d 1312, 1317 (9th Cir. 1982). The district court found s p ecial interrog atories were unnecessary

. I n its discretion, the d istrict court reasoned that, if the jury found Anderson’s version of th e fa c t s to be true, then Officer W est would not be entitled to qualif i ed immunity
, because it is a violation o f c learly established law for an officer to use deadly force ag ainst someone who poses

no threat o f serious harm to the officers or others. The district
court did n ot abuse its discretion b y declining to g ive special interrog atories based on this rationale.

W e r ecog niz e that other circuits hav e encourag ed o r required district courts to use special interrog atories in qualified immunity cases inv o lving disputed issues o f
mat erial fact. However, Officer W est has provided no authority from this circuit s u p p orting the proposition that special interrog a t o r i e s are required for the purpose o f evaluating a post-verdict qualified immunity defense. Additionally
, Officer W est failed to submit proposed special interrog atories to the d istri c t court and provides no

ex p lanation, c o n s i stent with o ur case law, as to how the district court a

bused its discretion by declining to g ive special interrog atories.L A M V

. C I T Y O F S A N J O S E 15

B.

Officer W est nex t a

rg ues the district court’s instructions failed to convey the p roper standards as to objectively reasonable force. Specifically
, Officer W est argues t h at Tennessee v. Garner established a c o nstitutional justification for the use of dead l y force—an officer c an use deadly force if she is confronted with a n imminent risk of death o r serious bodily injury

—and that, by failing to instruct the jury on this specific justificati o n , t he court left the jurors inadequately informed as to the law. W e disag ree.

I n Tennessee v. Garner
, the Supreme Court addressed the reasonablene s s of an officer’s use of force when the officer shot an unarmed fleeing suspect. 471 U.S. 1, 3–6 (1985). The Court concluded that deadly force is reasonable if “ the officer has p robable cause to believe tha t t he suspect poses a

s i gn i ficant threat of death or serious phy sical injury to the officer or others.” Id. at 3. F ollowing Garner
, our court h eld that, “in a police shooting c ase

. . . , wh e r e there was no dispute that d e adly force was u sed, the d i s t r i c t court abuses its discretion by not g iving a G a r ner deadly force instruction.” Monroe v. City o f Pho e n i x , 248 F

. 3d 851, 860 (9th Cir. 2 001), o v e rruled b y A c osta v. Hill
, 504 F .3d 1323 (9th Cir. 2007). W e noted that a g eneral “ex c e s s i v e force instruction is not a substitute for a G arner d e a d ly force instruction.” I

d. at 859.

However, the Supreme Court’s more recent decision in Scott v. Harris rejected the view that Garner c reated a special rule in deadly force cases. See 550 U.S. 372, 3 8 2 ( 2007). I n Scott
, the plaintiff argu ed that the preconditions set fo rth in Garner (including whether the suspect posed an immediate threat o f serious phy sical harm to the officer or others) shouldL A M V

. C I T Y O F S A N J O S E 16

determine whether the use of d eadly f orce was appropriate

. Id. at 381–82. The Supreme Court r ejected th a t a p proach, reasoning
, “ Garner did not establish a mag ical on/off switch that trig g ers rig id preconditions whenever an officer’s actions constitute ‘deadly force

. ’ ” Id. at 382. Rather, the Court

ex p lained, “ Garner was simply an application of the Fo u r t h Amendment’s ‘reasonableness’ test to the use o f a particular ty pe of force in a particular situatio n.” Id. (internal citation omitted).

W e h a v e since recog niz ed that Scott overruled our prior precedent and district c ourts are no long er required to g ive a separate deadly force instruction. S ee Acosta
, 5 0 4 F .3d at 1324. T herefore, Officer W est’s argument tha t the district
court was required to g ive a separate deadly force instruction fails as a matter of law.

C.

Officer W est argues the district court erred by failing to g ive an instruction that e x plained to t h e j ury that F ourth Amendment liability cannot be premised solely o n an officer’s “bad tactics.” E x cessive force claims “ should be

a n a l yz e d u n d e r t h e F o u r t h A m e n d m e n t a n d i t s ‘reasonableness’ standar d

. ” G r a h a m v

. Connor
, 490 U.S. 386, 395 (1989). “[ P] roper application [ of the reasonableness test] require s careful attention to the facts a nd c ircumstances o f each particular case.” Id. at 396. The events leading up to the shooting
, su ch a s the o fficer’s tactics, are e ncompassed in those facts and circumstances.

F ol l o w ing the pattern jury instructions, the district court submitted the case to the jury under the g eneral rubric o f reasonableness. The district court’s charg e covered theL A M V

. C I T Y O F S A N J O S E 17

appropriate leg al standard and left counsel more than enoug h

room to arg ue the facts in lig ht o f that standard. We cannot hold that the district court abused its discretion b y declining
to s ing le out one factor in the reasonableness inquiry
, when the instructions properly char g e d the jury to c onsider all o f the circumstances.

III.

Officer W est c o n t ends the district court deprived her o f the rig ht to a q

ualified immunity determination. W e need not reach the q

uestion o f qualified i m m u nity
, because Officer W e st did not preserve the issu e for appeal.

Defendants have the burden to assert qualified immunity
, which is an affirmative def ense that must ordinarily be pleaded in the answer. Siegert v. Gilley
, 500 U. S

. 2 2 6
, 231 (1991). However, the “defendants may r a ise a n affirmative defense for the first time in a motion for summary judg ment

. . . i f the delay d oes not prejudice the p laintiff.” Magana v

. Commonwealth of N. Mariana I slands
, 1 07 F .3d 1 436, 1446 (9th Cir. 1997). I f the district court denies summary judg ment

on qualified immunity
, the o rder is immediately appealable

as a collateral order if the judg ment is made as a matter o f law and “the issue appealed concern s w h e t her the facts demonstrated a violation of clearly established law.” Rodis v

. City & Cty. of San Francisco
, 558 F .3d 964, 96 8 ( 9 th Cir. 2009) (citation omitted). I f the district court d enies summary judg ment on qualified immunity
, the rig ht of a ppeal is limited
to the purely leg al q

uestion of w hether, assuming the factually supported version of events offered by the plaintiffs is correct, the district court erred by denying qua l i f i ed im munity

. Pauluk v. Savage
, 836 F .3d 1117, 1120–21 (9th Cir. 2016).L A M V

. C I T Y O F S A N J O S E 18

Here, Officer W es t m oved for summary judg ment on g rounds of qualified immunity

. The district court denied the motion, because the evidence, viewed in the lig ht most favorable to L am, demonstrated a constitutional violation of clearly established law. O f f icer West did not appeal this decision. I nstead, in the pretrial conference statement, Officer W e st acknowledg ed the ex istence of disputed materia l f a c ts and st a t e d that there was a leg al issue in dispute as to “[ w] hether O fficer W est is e n t itled to qualified immunity
, a nd th e p r o cess that may be used at trial to make that determination.” I n her trial brief, Officer W est requested the jury make factual finding s on the disputed issues, but Officer W e st did not prop o s e s pecial interrog atories to the district court. The case proceeded to trial.

“W hen a q

ualified immunity claim ca n not be resolved before trial due to a f actual conflict, i t i s a litig ant’s responsibility to preserve the leg a l issue for deter m i n a tion after the jury resolves the factual confli c t.” Tortu v. Las Vegas Metro. Police Dep’t
, 556 F .3d 1075, 1 0 8 3 (9th Cir. 2009). To preserve the determination of qualified immunity
, a defendant must make a motion for judg ment as a matter of law under Rule 50(a). Id. The Rule 50(a) motion may be filed “at any time b efor e the c ase is submitted to the jury .” I d. at 1081. I f the d i s t r i c t c ourt denies the Rule 50(a) motion, the defendant must then renew the motion for j u d g ment as a matter o f l a w under Rule 50(b) to preserve the qualified immunity defense. I

d. However, a “failure to file a Rule 50(a) motion precludes consideration of a Rule 5 0 (b) motion for judg ment as a mater of law.” Id. at 1 083. Once there has been

a trial, the filing of a motion for summary judg ment o r r aising the defense in a pre-trial submission is not sufficient to avoid a waiver. Id. at 1082.L A M V

. C I T Y O F S A N J O S E 19

Officer West did not file a Rule 50(a) mo t i on for judg ment as a matter of law before the case was submitted to the jury
, nor d id O fficer W est file a renewed m o t i o n for judg ment as a matter of law pursuant to Rule 50(b) after the verdict was rendered. Thus, O fficer W est never provided the d i s t rict court an opportunity to rule on the question of whether, o n the f

a ct s established at trial, she was entitled to qualified immunity

. Therefore, O fficer W est did not preserve her post-trial assertion of q ualified immunity fo r appeal. F ollowing Tortu
, if an officer has forfeited her q u alified immunity defense by failing to follow proscribed procedures for the preservation of the d efense, we should not consider it for the first time on appeal. See id. at 1085 n.9 (“There is no authority that [ qualified immunit y ] could b e revived as a g round for a new trial under Rule 59.”).

Officer W est argues that the d istrict court’s failure to g ive special interrog atories to the jury deprived her of a qualified immunity determination. That argument is w ithout merit. W ithout properly preserving qualified immunity a nd providing the district court a forum to rule on the d efense, it

was O fficer West, not the district court, who precluded a qualified immunity determin a t i o n

. O f f i c e r We s t a l s o contends
t h a t , by requesting that the d istrict court g ive speci al interrog atories to the jury
, she p ro perly r aised qualifiedL A M V

. C I T Y O F S A N J O S E 20

immunity

. 5 Our precedent, as ex plained above, forecloses this
arg ument.

F inally
, O fficer W est argues the district court abused its discretion, because it applied the incorrect substantive law in

ex p laining why it d id n o t gi v e special interrog atories to the jury

. B ecause the district court did n ot a ddres s the merits o f the qualified immunity d etermination, it d id not, as Officer W e st arg u es, “ appl[ y ] the in co rr e c t substantive law.” The district court recog niz ed that the merits of the q u al ified immunity d efense were foreclosed by Officer W est’s failure to preserve the defense by filing Rule 50 motions.

IV.

Officer W est makes a curso r y reference to the B ane A ct in the opening brief, r equesting that “the Court

. . . reverse the judg ment

. . . reg arding the B ane Act (which is d e pendent on constitutional liability ).” B e cause Off i c er W e st failed to provide any argument or authority to s u p p ort this claim on appeal, we do not consider it. See United States v. Graf
, 61 0 F. 3d 1148, 1 166 ( 9th Cir. 2010) (“Arg uments made in

5 In Of f icer W est’ s trial b rief

, sh e w ro te, “ Sh o u ld th e j ury resp o n d to in terro g ato ries an d f

in d th at th e i n cid en t o ccu rred as d escrib ed b y Of f icer W est, Def

en d an ts w ou ld th en b e ab le to m o v e un d er Ru le 50 f o r qu alif ied im m un ity on th e part o f th e o f

f icer.” T h is seq u en ce is w

ro n g

. A p arty m

u st f ile a Ru le 5 0(a) m o t i o n a t an y tim e b efo r e t h e case is su

b m itted to th e j ury

. If Of

f icer W est w aited un til after th e case w as su b m itted to th e j ury

an d af ter th e j u ry reso lv ed f

actu al d isp u

tes in h er f

av o r, th e m o tio n w ou ld h av e been un tim ely
, an d w ou ld h av e p reclu ded a Ru le 5 0 (b ) m o tio n

. S ee To rtu , 5 5 6 F.3 d at 1 0 8 3.L A M V

. C I T Y O F S A N J O S E 21

passing and not supported by citations to the record o r to case authority are g enerally deemed waived.”).

AF F IRMED.