Tortu v. Lvmpd

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER ARMONDO TORTU, 

Plaintiff-Appellant,

v.

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; BILL YOUNG, in his

official capacity as Sheriff of the

Las Vegas Metropolitan Police

Department; RICHARD CASHTON,

individually and in his official

capacity as a Police Officer of the

Las Vegas Metropolitan Police

Department; EUGENE L. ENGLE,

individually and in his official No. 06-16663

capacity as a Police Officer of the

Las Vegas Metropolitan Police  D.C. No.

CV-03-00783-RCJ

Department; DUANE COWLEY,

OPINION

individually and in his official

capacity as a Police Officer of the

Las Vegas Metropolitan Police

Department; ALBERT REEDER,

individually and in his official

capacity as a Police Officer of the

Las Vegas Metropolitan Police

Department; JULIUS PRATOR,

individually and in his official

capacity as a Police Officer of the

Las Vegas Metropolitan Police

Department,

Defendants-Appellees.



2459

2460 TORTU v. LAS VEGAS METRO. POLICE

Appeal from the United States District Court

for the District of Nevada

Robert C. Jones, District Judge, Presiding

Argued and Submitted

May 12, 2008—San Francisco, California

Filed March 3, 2009

Before: Procter Hug, Jr., Andrew J. Kleinfeld, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Hug;

Partial Concurrence and Partial Dissent by Judge N. Smith

TORTU v. LAS VEGAS METRO. POLICE 2463

COUNSEL

Paola M. Armeni and Dominic P. Gentile, Gordon & Silver,

Ltd., Las Vegas, Nevada, for the appellant.

Thomas D. Dillard, Jr. and Peter M. Angulo, Olson, Cannon,

Gormley & Desruisseaux, Las Vegas, Nevada, for the appel-

lees.

2464 TORTU v. LAS VEGAS METRO. POLICE

OPINION

HUG, Circuit Judge:

Christopher Tortu appeals the district court’s order granting

defendant Officer Eugene Engle’s motion for judgment as a

matter of law and, in the alternative, his motion for a new

trial. After the jury returned a verdict in favor of Officers

Richard Cashton and Duane Cowley but finding Engle liable,

the district court granted Engle’s Fed. R. Civ. P. 50(b) motion

for judgment as a matter of law and, alternatively, his Rule 59

motion for a new trial. However, neither Engle nor the other

two officers filed a Rule 50(a) motion for judgment as a mat-

ter of law. Tortu claims this procedural error should have pre-

vented Engle from filing a Rule 50(b) motion, and further

claims the district court abused its discretion when it granted

Engle’s motion for a new trial. Alternatively, Tortu argues the

district court erroneously found Engle protected by qualified

immunity.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and hold

that the district court should not have entertained Engle’s

Rule 50(b) motion because he failed to file a Rule 50(a)

motion, which must be filed before a court can consider a

Rule 50(b) motion. We also conclude the district court abused

its discretion when it granted Engle’s Rule 59 motion for a

new trial because the verdict was not against the clear weight

of the evidence. For the reasons discussed below, we reverse

the district court and remand with instructions to reinstate the

jury’s verdict and enter judgment accordingly.

I. Factual and Procedural Background

This case arises out of Christopher Tortu’s arrest at the

McCarran International Airport in Las Vegas, Nevada on July

9, 2001. After filing his complaint seeking redress for the

alleged unreasonable force applied by the officers, the district

court granted defendants’ partial motion for summary judg-

TORTU v. LAS VEGAS METRO. POLICE 2465

ment and dismissed many of Tortu’s claims. The case then

proceeded to trial on the only issue remaining: whether Offi-

cers Richard Cashton, Duane Cowley, and Eugene Engle used

excessive force while arresting Tortu.

A. Trial Proceedings

During trial, both parties presented widely divergent

accounts of the events that transpired during Tortu’s arrest. In

its post-trial order, the district court heavily relied on these

vast differences in testimony as well as the significant amount

of testimony from the officers and their witnesses to grant

Engle’s post-trial motions. Accordingly, we provide a sum-

mary of the testimony presented at trial and include each

party’s account of the events when the two versions substan-

tially differed. To better understand the jury’s verdict, we sep-

arate the events into three acts: (1) the incident in the

terminal, (2) the incident in the jetway, and (3) the incidents

on the tarmac and in the police SUV.

1. The Terminal

Tortu, along with his traveling companion Kiley Fox,

arrived at the airport early for their Southwest Airlines flight

to Los Angeles. While playing video poker and waiting for

the plane, Tortu misplaced their tickets. The tickets were dis-

covered by an airport employee and turned in at the security

checkpoint. Fox left to retrieve the tickets at the security

checkpoint where the tickets were being held.1 As Fox was

retrieving the tickets, the gate agent closed the jetway door

and Tortu went up to the agent and asked to board the plane.

The gate agent told him he could not board the plane without

a ticket. Disregarding this instruction, Tortu followed the

agent and boarded the plane as the agent led another passen-

ger down the jetway.

1

At this Las Vegas airport, the checkpoint is a considerable distance

from the boarding gates and requires a tram ride.

2466 TORTU v. LAS VEGAS METRO. POLICE

Once on the plane, the Southwest employees asked him to

leave because he had no ticket. He refused. A Southwest offi-

cial then called the police, and an officer escorted Tortu off

the plane. As he was exiting the jetway, Tortu yelled at a

Southwest manager and angrily walked away from the gate.

The officers at the scene walked toward Tortu and asked

him to stop walking away. Once he finally stopped, Tortu and

the officers engaged in a verbal altercation that grew in sever-

ity. Tortu testified that at least three officers then jumped him

from behind and handcuffed him. The officers, however,

stated that Tortu forcibly resisted their questioning and arrest

attempt, requiring the officers to force Tortu onto the ground

to handcuff him. Tortu contended that, after securing the

handcuffs, the officers continuously beat him—a claim the

officers denied. The three defendant officers, Cashton, Cow-

ley and Engle, then took Tortu to an empty jetway.

2. The Jetway

Once in the jetway, the officers testified that Tortu became

combative and fought them as they led him down the jetway.

Tortu, however, claimed the officers continuously roughed

him up while bringing him down the jetway. Specifically,

Tortu stated they stuck him in a luggage-sizing bin at the end

of the jetway and beat him. Tortu claimed these beatings were

so severe that, while punching him, Officer Cashton’s pecto-

ral muscle detached from the bone and tore his rotator cuff.

The officers denied beating Tortu and testified that these inju-

ries occurred when Tortu lowered his shoulder into Cashton,

slamming him into the jetway wall. Three Southwest employ-

ees observed the actions in the jetway and substantiated the

defendants’ contentions.

The officers then led Tortu down the jetway stairs and onto

the tarmac. While the officers brought Tortu down the stairs,

they testified he was very disruptive and stuck his feet

between the steps, purposefully impeding their progress.

TORTU v. LAS VEGAS METRO. POLICE 2467

Tortu, however, claimed the officers forcibly dragged him

down the staircase.

3. The Tarmac and Police SUV

Once on the tarmac, Tortu testified that the officers threw

him to the ground and Officer Engle punched him in the back

of the head, bruising and cutting Engle’s hand. Engle, in con-

trast, testified that Tortu caused these hand injuries during the

scuffle in the jetway.

After being thrown on the ground, Tortu testified that the

officers threw him on the hood of the police SUV and forced

him into the back seat of the SUV. With Tortu still hand-

cuffed, the officers sat him between Officers Cashton and

Cowley in the back seat. Tortu testified that Officer Engle

then reached back between the two front seats and squeezed

Tortu’s testicles as hard as he could for about ten seconds.

Tortu stated the pain was so severe that he could not breathe.

All three officers denied squeezing or in any way intention-

ally harming Tortu’s testicles. After this final incident, Engle

drove Tortu, along with Cashton and Cowley, to the airport

police substation and then on to the Clark County Detention

Center. The Southwest employees did not observe the inci-

dents on the tarmac or in the vehicle.

4. Medical Evidence of Tortu’s Injuries

At trial, Tortu presented significant medical evidence of his

injuries from these events including testimony of examining

doctors.

The day after Tortu got out of jail, he visited a primary care

physician to examine his injuries. The doctor noted that the

left side of Tortu’s face was swollen with bruises, he had a

lump on the back of his head and also large bruises on the

side of his body. The doctor then examined Tortu’s testicles

and found them very swollen, tender, and bruised. During this

2468 TORTU v. LAS VEGAS METRO. POLICE

examination, Tortu complained of exceptional pain when the

doctor touched his testicles. The doctor ordered an ultrasound,

which indicated blood in the testes. Because of this test result

and the rest of Tortu’s injuries, the doctor referred Tortu to a

urologist, a neurologist, and an orthopedic surgeon. The medi-

cal bills from these visits totaled nearly $4400.

Eleven days after the incident, the urologist’s exam

revealed a hematoma in Tortu’s scrotum, a significant bruise

on the scrotal skin, and tenderness along the spermatic cords

on both sides of his testicles. The urologist further noted

Tortu experienced extreme pain and tenderness when he

touched Tortu’s testicles. The urologist testified that squeez-

ing Tortu’s testicles could have led to these testicular and

scrotal injuries.

5. Jury Instructions and Verdict

After four days of trial, the judge and counsel for the par-

ties discussed the proposed jury instructions. The defendants

offered a proposed jury instruction on qualified immunity.

The judge refused the instruction. He explained his reason as

follows:

I don’t think it’s appropriate to give this [qualified

immunity] instruction here. It’s a matter for the

Court if the jury concludes and comes back with a

finding of liability. You’re at liberty, either in the

context of a motion for new trial or motion for judg-

ment notwithstanding, to argue that th[e] second

prong . . . has not been met by the plaintiff; that is,

even though the jury found unreasonable use of

force, that’s the factual issue, it would be reasonable

for an officer to conclude that the use of a strike to

the groin in counteracting a resistance to arrest was

a reasonable misinterpretation under the current case

law. . . . [T]herefore, I’ve stricken this instruction

and believe that the more appropriate place is either

TORTU v. LAS VEGAS METRO. POLICE 2469

in a motion for summary judgment up front or in a

motion for judgment notwithstanding or otherwise.

The judge later added that qualified immunity is “a legal

question that the jury just shouldn’t answer.” Both parties

agree that the qualified immunity determination is an issue of

law for the judge.

Engle argues these statements and indications by Judge

Jones directed the officers not to file a Rule 50(a) motion for

judgment as a matter of law before the case was submitted to

the jury. Engle contends the judge led the officers to believe

that he did not want and would not require them to file the

Rule 50(a) motion. Therefore, none of the officers filed a Rule

50(a) motion before the matter was submitted to the jury.

After receiving instructions and deliberating for a few

hours, the jury returned a verdict finding Cashton and Cowley

not liable, but finding Engle liable. The jury was not provided

with special interrogatories. It only answered the question of

whether each officer was liable and, if so, the amount of dam-

ages. The jury awarded Tortu $175,000 in compensatory dam-

ages and $5,000 in punitive damages.

B. Post-Verdict Proceedings

After the verdict, Engle filed a Rule 50(b) motion for judg-

ment as a matter of law and, in the alternative, a Rule 59

motion for a new trial. The district court entertained the Rule

50(b) motion despite not having received a Rule 50(a) motion

before the court submitted the case to the jury. The district

court then granted the Rule 50(b) motion and, alternatively,

the motion for a new trial.

1. The Rule 50(b) Motion for Judgment as a Matter of

Law

In its post-trial order, the district court stated that it “indi-

cated at trial that it would consider the qualified immunity

2470 TORTU v. LAS VEGAS METRO. POLICE

defense, if necessary, after trial since it necessitates a legal

determination.” The district court then considered Engle’s

motions and found him entitled to judgment as a matter of law

because “(1) the jury reached an unreasonable conclusion, and

(2) Officer Engle is protected by qualified immunity in this

case.”

In its discussion granting qualified immunity to Engle, the

district court noted that it had declined to address this issue

until after the jury rendered its verdict. After conducting an

analysis under Saucier v. Katz, 533 U.S. 194 (2001), the dis-

trict court found Engle protected by qualified immunity

because his actions were reasonable while he acted under his

authority as a law enforcement officer.

2. The Rule 59 Motion for a New Trial

The district court also granted Engle’s alternative motion

for a new trial. In granting this motion, the district court again

cited an unreasonable jury verdict that was against the clear

weight of the evidence, as well as the court’s finding that

Engle was protected by qualified immunity. The district court

also found that the jury awarded excessive damages to Tortu.

The district court did not provide for a remittitur in lieu of a

new trial, but just granted Engle’s Rule 59 motion for new

trial. Tortu timely filed this appeal.

II. Analysis

A. Rule 50(b) Motion for Judgment as a Matter of Law

Tortu first contends the district court improperly enter-

tained and granted Engle’s Rule 50(b) motion for judgment as

a matter of law. We review the district court’s grant of a

motion for judgment as a matter of law de novo. Wallace v.

City of San Diego, 479 F.3d 616, 624 (9th Cir. 2007).

Tortu’s appeal requires us to address the procedural

requirements of Rule 50 of the Federal Rules of Civil Proce-

TORTU v. LAS VEGAS METRO. POLICE 2471

dure. In particular, Rule 50 requires a party seeking judgment

as a matter of law to file a Rule 50(a) motion at any time

before the case is submitted to the jury. If the jury later

returns a verdict against the moving party, this party may then

file a Rule 50(b) motion for judgment as a matter of law.

[1] To explain these procedural requirements in greater

detail, we begin with the plain language of Rule 50(b):

(b) Renewing the Motion After Trial; Alternative

Motion for a New Trial. If the court does not grant

a motion for judgment as a matter of law made under

Rule 50(a), the court is considered to have submitted

the action to the jury subject to the court’s later

deciding the legal questions raised by the motion. No

later than 10 days after the entry of judgment—or if

the motion addresses a jury issue not decided by a

verdict, no later than 10 days after the jury was

discharged—the movant may file a renewed motion

for judgment as a matter of law and may include an

alternative or joint request for a new trial under Rule

59.

Fed. R. Civ. P. 50(b). As explicitly stated in the Rule, a Rule

50(b) motion may be considered only if a Rule 50(a) motion

for judgment as a matter of law has been previously made.

Further, the advisory committee notes to Rule 50 explicitly

emphasized this requirement in the 1963 amendments: “A

motion for judgment notwithstanding the verdict will not lie

unless it was preceded by a motion for a directed verdict

made at the close of all the evidence.”2 Fed. R. Civ. P. 50

advisory committee’s note on 1963 amendments (emphasis

added). Later, the notes to the 1991 amendments reiterated

this requirement. “This provision retains the concept of the

2

The terms “judgment notwithstanding the verdict” and “directed ver-

dict” have now been combined and simply termed “judgment as a matter

of law.”

2472 TORTU v. LAS VEGAS METRO. POLICE

former rule that the post-verdict motion is a renewal of an ear-

lier motion made at the close of the evidence. . . . A post-trial

motion for judgment can be granted only on grounds

advanced in the pre-verdict motion.” Fed. R. Civ. P. 50 advi-

sory committee’s note on 1991 amendments. The Rule itself,

as well as these amendments, explicitly require a previous

motion to be made before submission to the jury.

[2] As Rule 50 and its notes clearly instruct, we strictly

construe the procedural requirement of filing a Rule 50(a)

motion before filing a Rule 50(b) motion. Janes v. Wal-Mart

Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002); see also Image

Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195,

1212 (9th Cir. 1997) (“We strictly adhere to the requirements

of Rule 50(b), which prohibit a party from moving for a judg-

ment as a matter of law after the jury’s verdict unless that

motion was first presented at the close of evidence.”) (citation

omitted).3 Fed. R. Civ. P. 50(a)(2) states that:

A motion for judgment as a matter of law may be

made at any time before the case is submitted to the

jury. The motion must specify the judgment sought

and the law and facts that entitle the movant to the

judgment.

Although Engle admits that he failed to file a Rule 50(a)

motion, he argues that the rule “is not one of technical preci-

sion” and must be “interpreted according to its underlying

purposes.” Engle’s contentions here parallel the unsuccessful

arguments of Wal-Mart in Janes. In Janes, Wal-Mart failed to

move for judgment as a matter of law but argued that its

motion for summary judgment and trial brief satisfied the

requirements for a Rule 50(a) motion. Janes, 279 F.3d at 886-

87. We disagreed and held the trial brief and summary judg-

ment motion were insufficient to establish a proper motion

3

This requirement has since been clarified to mean before submission

to the jury. See infra note 4.

TORTU v. LAS VEGAS METRO. POLICE 2473

and that “substantial compliance is not enough.” Id. at 887.

Wal-Mart’s failure to file a Rule 50(a) motion therefore pro-

hibited the district court from entertaining its Rule 50(b)

motion.

[3] Here, Engle similarly urges that his motions made pre-

trial and during trial should suffice for a Rule 50(a) motion.

We fail to see a rational distinction from Janes. Engle com-

mitted the error of failing to file a Rule 50(a) motion just as

Wal-Mart did. Accordingly, we conclude that Engle’s other

motions do not compensate for his failure to file a Rule 50(a)

motion.

Engle next argues that he fits an exception to the require-

ment of filing a Rule 50(a) motion at the close of the case,

which allows a Rule 50(b) motion to be considered when an

earlier motion has been taken under advisement by the trial

judge. This exception, however, is carved out of a “strictly

observed” requirement that counsel properly follow Rule 50

procedures. Farley Transp. Co. v. Santa Fe Trail Transp. Co.,

786 F.2d 1342, 1346 (9th Cir. 1985).

Our decision in Farley only created an exception to the

requirement that the motion be made at the close of the

evidence—an exception adopted by and added into the Rule

by the 2006 Amendments.4 Fed. R. Civ. P. 50 advisory com-

4

The note to the 2006 Amendments states, in pertinent part:

Rule 50(b) is amended to permit renewal of any Rule 50(a)

motion for judgment as a matter of law, deleting the requirement

that a motion be made at the close of all the evidence. Because

the Rule 50(b) motion is only a renewal of the preverdict motion,

it can be granted only on grounds advanced in the preverdict

motion. . . .

This change responds to many decisions that have begun to

move away from requiring a motion for judgment as a matter of

law at the literal close of all the evidence. . . . The courts are

slowly working away from the formal requirement.

Fed. R. Civ. P. 50 advisory committee’s note on 2006 amendments.

2474 TORTU v. LAS VEGAS METRO. POLICE

mittee’s note on 2006 amendments; Farley, 786 F.2d at 1346.

Although the motion is no longer required to be made at the

close of the evidence, a motion must be made before the judge

submits the case to the jury. Failing to make a Rule 50(a)

motion before the case is submitted to the jury forecloses the

possibility of considering a Rule 50(b) motion. Simply put,

Farley still requires the filing of a 50(a) motion. See Farley,

786 F.2d at 1345-47; Janes, 279 F.3d at 886-88. Engle’s fail-

ure to do so defeats his argument.

Finally, Engle asserts that the district court induced him not

to file the 50(a) motion. This argument relies on the district

court’s statement that qualified immunity should only be

argued if the jury returned a verdict against Engle or one of

the other defendants. See supra Part I.A.5, p. 2468-69. Engle

contends that this statement constituted an instruction not to

file a Rule 50(a) motion and therefore created an exception to

the requirement of filing a Rule 50(a) motion.

This argument is without merit. The district court denied

Engle’s request for a jury instruction because it determined

that qualified immunity was to be decided by the court as a

matter of law, not to absolve Engle of the procedural obliga-

tion to file a Rule 50(a) motion. While the court did indicate

that Engle was at liberty in the context of a motion for judg-

ment as a matter of law to argue that he was entitled to quali-

fied immunity, it did not specify how that issue could

properly be brought before the court. Engle could have filed

a Rule 50(a) motion at that time because it was before the

matter had been submitted to the jury. Instead, he disregarded

the Rule’s clear requirements and did not file the motion.

[4] This failure to file a Rule 50(a) motion precludes con-

sideration of a Rule 50(b) motion for judgment as a matter of

law. We hold that the district court should not have consid-

ered Engle’s Rule 50(b) motion because it was procedurally

foreclosed by Engle’s failure to file a Rule 50(a) motion.

When a qualified immunity claim cannot be resolved before

TORTU v. LAS VEGAS METRO. POLICE 2475

trial due to a factual conflict, it is a litigant’s responsibility to

preserve the legal issue for determination after the jury

resolves the factual conflict. A Rule 50(a) motion meets this

requirement.

B. Rule 59 Motion for a New Trial

Tortu also argues that the district court improperly granted

Engle’s alternate Rule 59 motion for a new trial. We review

the district court’s grant of a new trial for an abuse of discre-

tion. Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d

735, 742 (9th Cir. 2003). “The trial court may grant a new

trial only if the jury’s verdict was against the clear weight of

the evidence.” Id. We may conclude that the district court

abused its discretion if the jury’s verdict is not against the

clear weight of the evidence. Id. As the district court con-

cluded that Engle was entitled to a new trial on three distinct

bases, we address each basis separately.

1. Unreasonable Jury Verdict

The district court based its decision that the jury’s verdict

was against the clear weight of the evidence largely on the

ground that its verdict for Officers Cashton and Cowley was

inconsistent with a verdict against Officer Engle. The court

stated that “by finding that Officers Cashton and Cowley did

not use unreasonable force, the jury concluded that Plaintiff

was lying at least about (1) the events in the terminal at the

time of the arrest . . . , (2) the beating in the jetway . . ., and

(3) the kidney punches delivered after the officers threw

Plaintiff over the hood of the police vehicle.”

[5] Contrary to the district court’s view, the jury verdict

only demonstrates that Tortu did not bear his burden of proof

by a preponderance of the evidence that all of the officers

used excessive force in effecting the arrest. As we have

pointed out, the record contains conflicting accounts of the

type of force used by all of the officers at various stages of

2476 TORTU v. LAS VEGAS METRO. POLICE

the arrest and Tortu’s level of resistance throughout the pro-

cess. From the verdict, we cannot say the jury found that

either Tortu’s or the officers’ version of the events involving

all the defendants was truthful or correct, as there were no

special interrogatories.

[6] As to Officer Engle, there was separate evidence of his

excessive use of force, principally involving his squeezing of

Tortu’s testicles for ten seconds while Tortu was handcuffed

and seated in the police car. Though the defendants, and an

additional officer at the scene, denied that the testicle squeez-

ing occurred, the medical evidence showed definite injury to

the testicles for which Engle afforded no explanation. Dr.

Debellis, who examined Tortu after he got out of jail, palpated

Tortu’s testicles and found that they were swollen, tender, and

bruised and that Tortu complained of severe pain during the

palpation. The doctor ordered an ultrasound and the results

indicated blood in the testicles. Dr. Debellis sent Tortu to Dr.

Zapinsky, a urologist. Dr. Zapinsky found hematoma of the

scrotum, tenderness along the spermatic cords, and that the

testicles were quite tender to the touch.

The jury’s verdict is also supported by parsing the events

of Tortu’s arrest into three segments: the terminal, the jetway,

and the tarmac/SUV. In the first two segments (the terminal

and the jetway), the officers presented significant evidence

that Tortu violently protested being arrested. Notably, this

evidence consisted of testimony from non-parties that was

consistent with the officers’ testimony.

The third segment involved testimony from the parties and

one deputy, who showed up on the scene. The medical evi-

dence presented at trial, however, provided irrefutable evi-

dence that there had been injury to the testicles. Engle offered

no alternative explanation as to how Tortu’s injury may have

occurred other than Engle’s squeezing of Tortu’s testicles.5

5

Although the district court cited some evidence that the configuration

of the police car would have made it impossible for Engle to have reached

TORTU v. LAS VEGAS METRO. POLICE 2477

[7] In finding the jury’s decision mistaken and ungrounded,

the district court took its own view of the medical evidence

in place of the jury’s—an impermissible practice. See Silver

Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d

814, 819 (9th Cir. 2001). In its order, the district court noted

that it did not believe Tortu suffered significant injuries

because he did not return for follow-up visits. While the dis-

trict court may view the case in this light, the jury, on the

basis of reasonable evidence, viewed the facts in a different

light. The district court cannot substitute its “evaluations for

those of the jurors.” Terrible Herbst, Inc., 331 F.3d at 743;

see also Silver Sage Partners, Ltd., 251 F.3d at 819 (“[A] dis-

trict court may not grant a new trial simply because it would

have arrived at a different verdict.”). Here, the district court

did that when it discounted Tortu’s medical evidence. We

conclude that the jury’s verdict on the issue of liability is not

against the clear weight of the evidence.6

Tortu’s testicles, the jury’s finding to the contrary was also not against the

clear weight of the evidence, especially because it is clear there was seri-

ous injury to the testicles that was otherwise unexplained.

6

The dissent relies upon the district court’s rationale that the jury could

not have reached its verdict against Engle alone unless the jury believed

all of the officers’ stories except what happened on the tarmac and in the

SUV. See infra, pp. 2484-85. The vital evidence upon which the jury obvi-

ously relied is the squeezing of Tortu’s testicles in the SUV. This evidence

is very distinct from the conflicting evidence as to the beatings and resis-

tance to arrest in the airport, in the jetway, and on the tarmac. The jury did

not have to decide that it believed Tortu or Officers Cashton or Crowley

on these issues. The only finding necessary was that Tortu did not carry

his burden of proof in showing that the officers’ force was excessive in

light of his resistance.

No testimony or other evidence indicates that Tortu was resisting arrest

at the time of the testicle squeezing. He was handcuffed and seated in the

rear seat of the SUV between two police officers. Tortu testified that

Engle reached back and squeezed his testicles for ten seconds. The injury

to the testicles was well supported by medical evidence. Engle offered no

evidence of how else that injury could have occurred. The jury’s finding

on that distinct issue was not against the clear weight of the evidence.

2478 TORTU v. LAS VEGAS METRO. POLICE

2. Qualified Immunity

In Pearson v. Callahan, 555 U.S. ___, No. 07-751 (Jan. 21,

2009), the Supreme Court revisited its discussion of qualified

immunity in Saucier v. Katz, 533 U.S. 194 (2001). The Court

in Pearson succinctly summarized as follows the require-

ments necessary for government officials to establish quali-

fied immunity:

In Saucier, this Court mandated a two-step

sequence for resolving government officials’ quali-

fied immunity claims. First, a court must decide

whether the facts that a plaintiff has alleged (see Fed.

Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules

50, 56) make out a violation of a constitutional right.

Second, if the plaintiff has satisfied this first step, the

court must decide whether the right at issue was

“clearly established” at the time of defendant’s

alleged misconduct.

Slip op. at 6 (citations omitted).7 The Court “stressed the

importance of resolving immunity questions at the earliest

possible stage in litigation.” Id. (quotation marks omitted). In

this case, there was no attempt to resolve the immunity issue

at the Rule 12(b)(6) dismissal stage or at the Rule 56 sum-

mary judgment stage. As we have discussed, no proper

motion was made at the Rule 50 stage to resolve the issue as

a matter of law.8

7

Pearson only modified Saucier on procedural grounds. Whereas Sau-

cier set forth a mandatory requirement that step one be considered before

step two, 533 U.S. at 200, the Pearson Court held that this sequence is no

longer a mandatory, inflexible requirement. Slip op. at 10. Indeed, the

Court provided several situations in which following the Saucier sequence

is not advisable. Id. at 11-17.

8

In the case cited by the dissent, Torres v. City of Los Angeles, 548 F.3d

1197 (9th Cir. 2008), the issue of qualified immunity was also not brought

at an early stage in the litigation; however, the defendants’ properly made

a Rule 50(a) motion before the jury verdict, and the court then resolved

the issue of immunity as a matter of law. Id. at 1210-11.

TORTU v. LAS VEGAS METRO. POLICE 2479

[8] In applying the Supreme Court authority, we conclude

that a qualified immunity analysis consists of two steps. The

first step analyzes whether a constitutional right was violated,

which is a question of fact. The second examines whether the

right was clearly established, which is a question of law. Step

two serves the aim of refining the legal standard and is solely

a question of law for the judge. Saucier, 533 U.S. at 201. The

district court recognized this principle in declining a jury

instruction on this issue. As a question of law, the second part

of this analysis, when brought at this late stage, is an issue for

a judgment as a matter of law under Rule 50(a) and (b), which

was not properly brought before the court. This legal matter

cannot be appropriately considered on a motion for a new

trial, where the issue is whether the jury’s verdict is against

the clear weight of the evidence.9

3. Excessive Damages

The district court’s other basis for a new trial was that the

“jury awarded speculative, excessive damages unsupported by

the evidence.” We review a district court order granting a new

trial because of excessive damages for an abuse of discretion.

Simpson v. Union Oil Co. of Cal., 411 F.2d 897, 907-08 (9th

Cir. 1969), rev’d on other grounds, 396 U.S. 13 (1969); see

also 11 Charles Alan Wright, Arthur R. Miller, & Mary Kay

Kane, Federal Practice and Procedure § 2820, p. 219 (2d ed.

1995).

9

The dissent contends that a new trial can properly be granted on the

independent ground of qualified immunity. The determination of qualified

immunity at step two is strictly a legal question of whether, even though

the facts alleged by the plaintiff make out a constitutional violation, that

constitutional right was not clearly established. That issue could have been

raised by a motion under Rule 50(a), as was done in Torres, 548 F.3d at

1210. However, without the requisite Rule 50(a) motion, this purely legal

issue could not be revived under Rule 50(b). There is no authority that this

legal issue could be revived as a ground for a new trial under Rule 59.

2480 TORTU v. LAS VEGAS METRO. POLICE

In determining that the damages award was speculative and

excessive, the district court cited three types of evidence from

which the jury could have calculated the amount of damages

(medical bills, Tortu’s physical pain, and his lost job). It then

determined that the only evidence from which the jury could

properly calculate damages were the medical bills and two

weeks of pain and discomfort. The district court had elimi-

nated consideration of lost wages with its explicit instruction

to the jury that Tortu’s testimony was insufficient to support

a claim for lost wages. In reaching the two-week time frame

for pain and suffering, the court noted that Tortu never

returned to the doctors for requested follow-up visits.

[9] The district court found that Tortu’s injuries could not

justify an award of $175,000 in compensatory and $5,000 in

punitive damages. It surmised that the jury awarded the dam-

ages, in part, because Tortu lost his job. In closing, the district

court stated that it did not believe the jury’s award was rea-

sonable and should not have included the lost wages. There

was no basis for the court to find that the jury ignored its

explicit instruction not to award damages for lost wages, nor

was the jury required to limit its findings of pain and suffering

to only two weeks because Tortu did not return to the doctors.

The jury could reasonably have determined that Tortu thought

there was nothing further the doctors could do.

The district court’s discussion of excessive damages omit-

ted any mention of the personal humiliation and emotional

suffering that Tortu experienced. This omission is inconsistent

with the district court’s own jury instruction that “[d]amages

means the amount of money which will reasonably and fairly

compensate the plaintiff for any injury . . . [including] emo-

tional pain and suffering.” Furthermore, the Supreme Court

has stated that § 1983 damages may include “impairment of

reputation, personal humiliation, and mental anguish and suf-

fering.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,

307 (1986) (internal punctuation and citation omitted).

TORTU v. LAS VEGAS METRO. POLICE 2481

[10] The district court’s failure to consider emotional injury

reflects an inaccurate view of the law. “[C]ompensatory dam-

ages may be awarded for humiliation and emotional distress

established by testimony or inferred from the circumstances,

whether or not plaintiffs submit evidence of economic loss or

mental or physical symptoms.” Johnson v. Hale, 13 F.3d

1351, 1352 (9th Cir. 1994). Here the jury found that Engle

used unreasonable force against Tortu. Tortu testified before

the jury that this force was primarily applied to his testicles,

and medical evidence supported this claim. Tortu also testi-

fied that the incident caused him excruciating pain, humiliated

him, and caused him ongoing embarrassment. We conclude

that the jury’s verdict is not against the clear weight of the

evidence. The district court abused its discretion in granting

a new trial.

III. Conclusion

For the reasons stated above, we REVERSE the district

court and REMAND with instructions to reinstate the jury’s

verdict and enter judgment accordingly.

N. RANDY SMITH, Circuit Judge, Concurring in Part, Dis-

senting in Part:

The majority, in Part II.B of its opinion, holds that the dis-

trict court abused its discretion by granting a new trial. In

making that decision regarding the motion for a new trial, the

majority fails to accord the trial judge’s decision the appropri-

ate deference when applying an “abuse of discretion” stan-

dard. While only reading the trial transcripts, the majority

substitutes its contested view of the trial evidence and calls

the trial court’s view of the same evidence an abuse. There-

fore, I dissent from that part of the opinion.

2482 TORTU v. LAS VEGAS METRO. POLICE

I. Application of the Abuse of Discretion Standard

The Federal Rules of Civil Procedure require that, in cases

in which a party has moved for judgment as a matter of law,

“the court shall also rule on the motion for a new trial, if any,

by determining whether it should be granted if the judgment

is thereafter vacated or reversed, and shall specify the grounds

for granting or denying the motion for a new trial.” Fed. R.

Civ. P. 50(b).

Our law requires us to affirm a district court’s discretionary

decision in granting a new trial, if any of its grounds for

granting a new trial are reasonable. Oltz v. St. Peter’s Cmty.

Hosp., 861 F.2d 1440, 1452 (9th Cir. 1988) (citations omit-

ted). Under this standard, even if substantial evidence sup-

ports the jury’s verdict, a trial court may grant a new trial (1)

if the verdict is (a) contrary to the clear weight of the evidence

or (b) is based upon evidence which is false, (2) to prevent a

miscarriage of justice, or (3) if the award of compensation is

excessive. See Montgomery Ward & Co. v. Duncan, 311 U.S.

243, 251 (1940); United States v. 4.0 Acres of Land, 175 F.3d

1133, 1139 (9th Cir. 1999) (citation omitted); Murphy v. City

of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990). In deter-

mining the clear weight of the evidence, a district court has

“the duty[ ] to weigh the evidence as [the court] saw it, and

to set aside the verdict of the jury, even though supported by

substantial evidence, where, in [the court’s] conscientious

opinion, the verdict is contrary to the clear weight of the evi-

dence . . . .” Murphy, 914 F.2d at 187 (quoting Moist Cold

Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246, 256 (9th

Cir. 1957)). When it is necessary to prevent, in the sound dis-

cretion of the trial judge, a miscarriage of justice the district

court may also weigh the evidence and set aside the verdict.

Id. The district court may also grant a new trial when in his

judgment the trial judge finds that the “amount of compensa-

tion awarded is excessive.” Hanson v. Shell Oil Co., 541 F.2d

1352, 1359 (9th Cir. 1976) (citation and internal quotation

marks omitted); see also Fenner v. Dependable Trucking Co.,

TORTU v. LAS VEGAS METRO. POLICE 2483

Inc., 716 F.2d 598, 603 (9th Cir. 1983) (stating “[o]nce the

trial court finds a verdict excessive, the court cannot allow it

to stand.”). Therefore, in a nut shell, the district court may

grant a new trial “[i]f, having given full respect to the jury’s

findings, the judge on the entire evidence is left with the defi-

nite and firm conviction that a mistake has been committed

. . . .” Landes Constr. Co., Inc. v. Royal Bank of Canada, 833

F.2d 1365, 1371-72 (9th Cir. 1987).

The law grants trial courts judicial discretion in making this

decision for two reasons: (1) the trial judge is the only objec-

tive person (with legal training), who was at the trial and able

to see, hear, and evaluate the situation using firsthand knowl-

edge; and (2) it would be impossible to construct any strict

rule, which would be applicable to every conceivable motion

for a new trial. Therefore, to reverse a district court under the

abuse of discretion standard, an “appellate court [has to be]

convinced firmly that the reviewed decision lies beyond the

pale of reasonable justification under the circumstances.”

Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). I

emphasize this is not the review of a trial court’s determina-

tion of a motion for summary judgment (de novo review) or

a motion for a judgment as a matter of law (de novo review),

which motion is generally made at the same time as the

motion for new trial. Instead, we are reviewing whether the

trial judge (vested by law to use his discretion in the four

above mentioned circumstances) abused it in granting a new

trial.

In this case, the district court granted the motion for a new

trial on the grounds that (1) the jury’s verdict was against the

clear weight of the evidence, (2) Officer Engle was protected

by the doctrine of qualified immunity, and (3) the jury’s

award was excessive and based on speculation. Given this

record, the district court did not abuse its discretion.

II. Clear Weight of the Evidence

The district court did not abuse its discretion, when it

granted a new trial because the jury’s verdict was against the

2484 TORTU v. LAS VEGAS METRO. POLICE

clear weight of the evidence. Again, when a motion for a new

trial is made, on the ground that the weight of the evidence

is contrary to the jury’s verdict, the judge is free to weigh the

evidence for himself. See Murphy, 914 F.2d at 187; see also

11 Charles Alan Wright et al., Federal Practice and Proce-

dure § 2806 (2008) (citations omitted).

Two very different stories were told at trial, describing

what transpired on July 9, 2001. Reviewing the evidence, it

clearly indicated that Tortu’s testimony, (regarding the events

that occurred in the terminal and jetway) was wholly inaccu-

rate and unbelievable. After weighing the evidence, the dis-

trict court found that, to arrive at its verdict (that Officer

Cashton and Officer Cowley did not use an unreasonable

amount of force, but Officer Engle did use an unreasonable

amount of force), the jury would have had to believe the offi-

cers’ testimony on every issue, except as to Officer Engle’s

conduct on the Tarmac and in the police SUV. The jury also

would have had to disbelieve all of Tortu’s story except that

his injuries were caused by Officer Engle’s conduct. Having

been at the trial and therefore able to see, hear, and evaluate

the testimony first hand, the district court found that the ver-

dict was against the clear weight of the evidence.

These facts, among others, substantiate the district court’s

reasoning. Tortu alleged that Officer Engle (while standing

outside the driver’s door) reached between the front seats and

the mounted mobile computer terminal and squeezed Tortu’s

testicles (who at the time was seated in the middle back seat

of the Ford Excursion police SUV). Officer Engle’s ability to

make these maneuvers (while standing outside the car) seems

highly improbable, if not impossible. Tortu also could not

conclusively identify which officer, if any, actually squeezed

his testicles.1 All of the other witnesses credibly testified that

1

On direct examination, Tortu stated that Officer Engle squeezed his

testicles. However, on cross examination, Tortu admitted that he testified

during his deposition that he was not sure whether it was Officer Engle or

Officer Cowley.

TORTU v. LAS VEGAS METRO. POLICE 2485

no officer squeezed Tortu’s testicles. Further, there is no evi-

dence (absent Tortu’s testimony) that Officer Engle punched

Tortu in the back of the head or threw him on the tarmac. All

other witnesses testified that Tortu was not thrown on the tar-

mac or punched in the back of the head. The tarmac was very

dirty and oily, and yet Tortu’s light-colored shirt showed no

signs of dirt or grime.

While these facts support the court’s decision, the majority

ignores them in its decision. Instead, after reading the tran-

script, the majority accepts Tortu’s otherwise wholly incredi-

ble testimony, and the medical evidence regarding his injury,

and declares that the clear weight of the evidence supported

the jury’s verdict. I question their view. It is not enough to say

that the medical evidence demonstrates that Tortu sustained

injuries to his testicles. It is not enough to say that “Engle had

no evidence of how else that injury could have occurred.”

Engle had no evidentiary burden to prove how the injury

occurred. Given this altercation between Tortu and the offi-

cers, the injury very well could have happened without Offi-

cer Engle having been responsible.

I make this point, not to suggest that either the district court

or the majority are right. My point is that this argument about

facts (in which the majority involves itself) does not support

a finding of abuse of discretion. Evaluating the evidence, the

district judge had a definite and firm conviction that the jury

made a mistake when it held Officer Engle responsible.

Reviewing the record, I cannot find abuse in the district

court’s discretionary decision.

III. Qualified Immunity

The district court did not abuse its discretion when it

ordered a new trial to determine qualified immunity. The

Supreme Court has stated that qualified immunity issues

should be resolved as early on as possible. See Saucier v.

Katz, 533 U.S. 194, 200 (2001) (“Where the defendant seeks

2486 TORTU v. LAS VEGAS METRO. POLICE

qualified immunity, a ruling on that issue should be made

early in the proceedings so that the costs and expenses of trial

are avoided where the defense is dispositive.”). Generally

issues of qualified immunity are resolved by the court on

summary judgment. However, when material issues of fact

are in dispute, the jury must determine the facts regarding

immunity issues. See Torres v. City of Los Angeles, 548 F.3d

1197, 1210-11 (9th Cir. 2008) (citing Sloman v. Tadlock, 21

F.3d 1462, 1468 (9th Cir. 1994) (explaining that the reasons

for the existence of the qualified immunity doctrine “do not

. . . suggest that a judicial determination at [the trial] stage is

necessarily better than a jury verdict.” (emphasis and alter-

ations in original)). Neither party moved for summary judg-

ment on the qualified immunity issue prior to trial. Engle first

raised it, just prior to asking the jury to deliberate and render

a verdict. The district court declined to address the issue at

that time, instead taking the issue under advisement.

The majority correctly states “[w]hen a police officer

asserts qualified immunity, we apply a two-part analysis

under Saucier.” Id. at 1210. The first question is whether “the

officer’s conduct violated a constitutional right.” Saucier, 533

U.S. at 201. The second question under Saucier is whether the

right was “clearly established.” Id. at 202. In determining

whether a right was “clearly established” the question is

whether it would be clear to a reasonable officer that his con-

duct was unlawful in the situation he confronted. Id.

The jury found that Officer Engle “used an unreasonable

amount of force on Plaintiff.” The jury also found that “the

excessive force used against him caused him $175,000 in

compensatory damage.” Those findings indicate that the evi-

dence satisfied the first step of the Saucier analysis. However,

the district court found that verdict to be against the clear

weight of the evidence.

When a case proceeds to trial, “qualified immunity can no

longer rightly be called an ‘immunity from suit’ (since the suit

TORTU v. LAS VEGAS METRO. POLICE 2487

has already proceeded to its conclusion); rather, it is now

effectively a defense.” Sloman, 21 F.3d at 1468 n.6. Given its

decision regarding the evidence, the district court did not

abuse its discretion in granting Officer Engle a new trial, in

order to determine whether he had violated Tortu’s constitu-

tional rights. Officer Engle should not lose his defense of

qualified immunity, when the court found the verdict to be

against the clear weight of evidence.

Even though it found the jury’s verdict to be against the

clear weight of evidence, the district court also applied the

second step of the Saucier analysis to determine if Officer

Engle was entitled to immunity. Because the jury had not

been questioned in the verdict form regarding its basis in

determining that Officer Engle had used excessive force on

Tortu, the court was forced to undertake the Saucier analysis

using all of the facts the jury could have used to make the

determination. The district court found that there were two

reasons for which the jury could have found excessive force

on the part of Officer Engle: (1) squeezing Tortu’s testicles

and (2) punching Tortu on the back of the head.2 Quoting

Supreme Court precedent to find the correct law to apply to

those facts, the district court then reasoned that (1) Tortu’s

constitutional rights were not clearly established; and (2) any

mistake of fact, Officer Engle made, was reasonable given the

circumstances of Tortu’s arrest. While an appellate court may

disagree with the district court’s determination of this issue,

these circumstances do not present a situation where granting

a new trial would be an abuse of discretion. Granting a new

trial, rather than determining the issue of qualified immunity

using disputed facts from the trial, cannot be an abuse of dis-

2

While the majority states that “the vital evidence upon which the jury

obviously relied is the squeezing of Tortu’s testicles in the SUV,” there

is absolutely no jury finding in this record to support that view. The dis-

trict court, who attended the trial, disagrees. That vacuum in the record is

the reason the district court had to conduct the second step of the Saucier

analysis using both the squeezing action and punching Tortu on the back

of the head.

2488 TORTU v. LAS VEGAS METRO. POLICE

cretion. The disputed facts are still unresolved by the trial,

because (1) the jury verdict was against the clear weight of

the evidence or (2) the jury was not asked enough questions

to resolve the disputed facts. The majority attempts to gloss

over this point, by stating that the application of the second

prong of the Saucier analysis is merely a question of law. On

that point, they err. When the facts are undisputed and the

jury has properly found a violation of constitutional rights,

then determining whether those rights are clearly established

(based on those same undisputed facts) is a question of law.

However, when the facts are disputed and a trial does not

resolve which facts are a violation of a constitutional right, a

court cannot determine, as a matter of law, whether those

rights are clearly established.

Those are the very circumstances of this case. From reading

their opinions, both the district court and the majority agree

that punching Tortu on the head would be an action in which

Engle could engage and yet be entitled to immunity in these

circumstances. Only when applying the qualified immunity

analysis to Tortu’s testicle injury do they disagree. Yet the

jury was never asked the basis of their finding of unreason-

able force, therefore the majority’s analysis fails. Again, we

are not here on summary judgment with de novo review and

construing the facts in Tortu’s favor. We also should not spec-

ulate (as the majority seemingly does) as to which facts the

jury found to be in violation of Tortu’s constitutional rights,

and decide if those rights were clearly established.

A new trial to determine those facts is therefore not an

abuse. We must be certain “whether it would be clear to a rea-

sonable officer that his conduct was unlawful in the situation

he confronted.” See Saucier, 533 U.S. at 202.

IV. Speculative Damages Award

The district court found that Officer Engle was entitled to

a new trial, because the jury’s award of damages was specula-

TORTU v. LAS VEGAS METRO. POLICE 2489

tive, excessive, and unsupported by clear weight of the evi-

dence. The damages were speculative, because the minimal

injuries suffered by Tortu could not support such a wide dif-

ferential between the cost of Tortu’s medical treatment (an

amount of less than $5,000) and the ultimate award

($175,000). Accordingly, to avoid a miscarriage of justice, the

district court concluded that a new trial was necessary.

Tortu presented evidence that his medical bills amounted to

less than $5,000. Tortu’s pain and suffering lasted no longer

than two weeks. There was no evidence presented that the

injury prevented Tortu from performing any ordinary tasks, or

that he suffered even minimal discomfort after two weeks.

The trial judge is in the best position to weigh the evidence

of Tortu’s embarrassment and humiliation. These facts sup-

port the conclusion that the clear weight of the evidence in the

record did not support the jury’s award. While one may dis-

agree with the trial court, one cannot say that it abused its dis-

cretion in making the decision. These facts support its view.

We have also affirmed other district courts in similar situa-

tions. Oltz, 861 F.2d at 1453 (affirming the trial court’s grant

of motion for new trial based on its findings that damages

were excessive); William Inglis & Sons Baking Co. v. ITT

Continental Baking Co., 668 F.2d 1014, 1050 (9th Cir. 1981)

(same); Hanson, 541 F.2d at 1359 (same).

V. Conclusion

I disagree with the majority. The district court’s granting of

the motion for a new trial does not lie beyond the pale of rea-

sonable justification under these circumstances. We must

affirm if any of the grounds for granting a new trial are rea-

sonable. Oltz, 861 F.2d at 1452.