Hung Lam v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUNG LAM, individually, through his No. 16-16052

next friend, Kathy Lam,

Plaintiff-Appellee, D.C. No.

5:14-cv-00877-

v. PSG

CITY OF SAN JOSE, a municipal

corporation; DONDI WEST, OPINION

individually and in her official

position as a San Jose Police Officer;

LARRY ESQUIVEL, in his capacity as

Chief of Police for the City of San

Jose,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Paul S. Grewal, Magistrate Judge, Presiding

Argued and Submitted June 15, 2017

San Francisco, California

Filed September 5, 2017

2 LAM V. CITY OF SAN JOSE

Before: Mary M. Schroeder, D. Michael Fisher,*

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

SUMMARY**

Civil Rights

The panel affirmed the district court’s judgment, entered

following a jury verdict, in favor of plaintiff in an action

brought under 42 U.S.C. § 1983 and state law alleging that a

police officer used excessive force when she shot plaintiff in

the back during a response to a 911 call, rendering plaintiff a

paraplegic.

The panel held that the district court did not abuse its

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. Nor did the district court

abuse its discretion by failing to give to the jury special

interrogatories, a deadly force instruction, or an instruction

regarding officer tactics. The panel held that the district court

has broad discretion in the formulation of jury instructions,

and the instructions adequately covered the issues presented,

correctly stated the law, and were not misleading. Finally,

*

The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LAM V. CITY OF SAN JOSE 3

the panel declined to reach the officer’s argument relating to

qualified immunity, because she did not preserve the defense

for appeal by filing motions for judgment as a matter of law

pursuant to Fed. R. Civ. P. 50.

COUNSEL

Clifford S. Greenberg (argued), Senior Deputy City Attorney;

Nora Frimann, Assistant City Attorney; Richard Doyle, City

Attorney; Office of the City Attorney, San Jose, California;

for Defendants-Appellants.

Benjamin Nisenbaum (argued), Ayana Curry, and John L.

Burris, Law Offices of John L. Burris, Oakland, California,

for Plaintiff-Appellee.

OPINION

N.R. SMITH, Circuit Judge:

This case arises from a shooting that occurred when San

Jose Police Department Officer Dondi West responded to a

911 dispatch regarding two people arguing and one of

them—Hung Lam—having a knife. Officer West arrived on

the scene and attempted to subdue Lam (the details of which

are disputed), which resulted in Officer West shooting Lam

in the back and rendering him a paraplegic. Lam sued Officer

West, the City of San Jose, and the San Jose police chief for

violations of his state and federal rights. A jury found Officer

West used unreasonable force against Lam, interfered with

the exercise of Lam’s constitutional rights, and acted

4 LAM V. CITY OF SAN JOSE

negligently toward Lam. However, the jury also found

Officer West did not commit battery.

The district court did not abuse its discretion by denying

Officer West’s motion for a new trial, because the evidence

presented at trial provided a reasonable basis to support the

jury’s verdict. Nor did the district court abuse its discretion

by failing to give to the jury special interrogatories, a deadly

force instruction, or an instruction regarding officer tactics.

The district court has broad discretion in the formulation of

jury instructions, and the instructions adequately covered the

issues presented, correctly stated the law, and were not

misleading. Finally, we do not reach Officer West’s argument

relating to qualified immunity, because she did not preserve

the defense for appeal.

FACTS

Two days before the incident at issue, Lam began

behaving erratically. He spent much of the day in the

driveway of his San Jose home that he shared with his

boyfriend, Kevin Wade. He refused to go into their house,

because he was afraid someone might be inside. Lam

eventually called the police himself and was placed under an

involuntary psychiatric hold at a nearby hospital. The hospital

released Lam two days later.

After Lam was released from the hospital, he and Wade

stopped at their house on the way to visit Lam’s family.

When they arrived at their house, Lam started to act strangely

again. He picked up a knife and told Wade that someone was

in the house. Wade walked outside and Lam followed him.

Wade attempted to convince Lam to give him the knife, but

Lam refused and threatened to cut himself. Wade flagged

LAM V. CITY OF SAN JOSE 5

down their next-door neighbors, Herman and Helen

Anderson, and asked them to call the police. Herman

Anderson went inside his house to call the police. Helen

Anderson (“Anderson”), a retired deputy sheriff, walked

toward Lam (but remained on her lawn at a distance she

estimated to be 10 to 15 feet from Lam) and began talking

with him. The conversation between Lam and Anderson was

calm, but Lam was still agitated and periodically motioned as

if to cut his wrist with the knife.

Herman Anderson called dispatch and told them that two

people were arguing, and one of them had a knife. Upon

receiving the dispatch, the dispatcher informed Officer West

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

West arrived at the scene. At this point, the stories diverge.

Helen Anderson had a clear view of the entire incident.

She testified that, when Officer West arrived at the scene, she

had her gun drawn in a shooting position and she quickly

approached the property line of the Andersons’ lawn and

Lam’s lawn. Officer West ordered Anderson to move back

(and she did, approximately eight to ten feet) and ordered

Lam to drop the knife and get down on the ground. Lam

never dropped the knife but threw a cell phone on the ground.

Lam, who was standing in the middle of his lawn

approximately 10 to 15 feet away from Officer West, then

turned his back to Officer West and started making motions

with the knife toward his stomach, as if he were stabbing

himself. Immediately, Officer West shot Lam in the back

twice in rapid succession, and Lam fell to the ground.

Photographs introduced at trial confirm that Lam was shot in

the back. Anderson testified that Lam did not move after

Officer West arrived at the scene. However, the photographs

6 LAM V. CITY OF SAN JOSE

introduced at trial depict Lam’s clothes were cut off near the

tree, with Lam’s cell phone approximately 14 feet away from

Lam’s clothes. Anderson also testified that the shooting

happened within approximately 10 to 15 seconds of Officer

West exiting her vehicle. However, the police

communications tape demonstrates that over a minute elapsed

between when Officer West announced that she arrived at the

scene and when the officers announced that shots were fired.

Anderson never saw Officer West move into Lam’s yard

where a tree and shrubbery were located, nor did she see

Officer Phelan on the scene until after Lam was shot.

Officer West recalled the incident very differently. She

testified that, when she arrived at the scene, Lam had a knife

to his throat and stood approximately an arms length away

from Helen Anderson. Officer West moved quickly toward

Lam with her gun drawn, ordering that Anderson move back

and that Lam drop the knife.1 As Officer West approached the

property line between Anderson’s yard and Lam’s yard

(approximately 15 feet away from Lam), Lam threw an item

to the ground. Officer West believed it was the knife (though

she later learned it was a cell phone). Just after Lam dropped

the item on the ground, a second officer, Dan Phelan, arrived

on the scene in his patrol car. Believing Lam was unarmed,

Officer West and Officer Phelan approached Lam to subdue

him. When Officer West was within three or four feet of

Lam, she saw Lam pull a knife out of his waistband. She

yelled “knife” and backed away from Lam. Lam walked away

from Officer West and looked as if he were pushing the knife

into his stomach. Officer Phelan ran back to his patrol car to

1

Officer West testified that she ordered Lam to drop the knife

approximately 15 times, using different words and different tones, in order

to get Lam to respond.

LAM V. CITY OF SAN JOSE 7

retrieve a less lethal weapon (a “40”) that shoots rubber

bullets.

Officer West and Lam were still approximately 15 feet

apart. With the knife out, Lam then turned to face Officer

West and started taking small steps toward her—at times

turning to walk backwards while looking at her over his

shoulder and at times facing her. Officer West pointed her

gun at Lam and started backing away from him. She knew

there was a tree in the yard and continued backing up toward

the tree, intending to use it for cover. Lam continued to

slowly walk backwards toward Officer West with the knife in

his right hand. Officer West backed up past the tree and then

moved to position the tree between herself and Lam. As she

moved behind the tree, her right foot became stuck. Officer

West looked down, but could not tell what was holding her

foot. As she looked up at Lam, she saw that Lam was closer

to her and was starting to turn toward her with the knife still

in his hand. Officer West believed that, if she attempted to

move her stuck foot, she would fall and Lam would stab her.

As Lam was facing Officer West approximately 10 feet away,

Officer West fired her gun at Lam, but did not hit him. Lam

then turned his back toward Officer West and walked

backwards toward her for two or three more steps, while

looking at her over his shoulder. Officer West fired again, this

time hitting Lam in the back. Lam fell immediately on the

ground toward Officer West, and rolled on his back.

Wade and Officer Phelan also offered their accounts at

trial. According to Wade, when Officer West arrived on the

scene, she pointed her gun at Lam and yelled at Lam to drop

the knife. Lam pointed the knife at his stomach and told

Officer West that if she got close to him, he would hurt

himself. Lam then turned his back to Officer West. Wade

8 LAM V. CITY OF SAN JOSE

started to run across the street. He saw Officer Phelan park

his patrol car, walk a short distance toward the Andersons’

yard, and immediately return to the patrol car to retrieve the

40. At some point, Wade looked back and saw Lam standing

in the center of his yard with his back facing Officer West

and Officer West in the Andersons’ yard pointing her gun at

Lam. By the time Wade reached the other side of the street,

two shots had been fired. Wade testified that Lam never

moved from the middle of his yard, and Officer West stayed

close to the Andersons’ yard.

Officer Phelan testified that, when he arrived on the

scene, Lam and Officer West stood 15 feet apart. Lam had his

hands raised in the air and they were empty. Officer Phelan

got out of his car and ran to assist Officer West in the yard.

Officer West told Officer Phelan that Lam dropped a knife.

Both officers, with their guns pointed at Lam, ordered Lam to

get on the ground. Lam turned around and shuffled his feet

but stayed in the same general area. Officer West then told

Officer Phelan that Lam now had a knife, and Officer Phelan

retreated to his patrol car to retrieve a 40. While stopping to

look back briefly toward the house, Officer Phelan saw Lam

trying to impale himself with the knife. At that point, Officer

Phelan broadcast over the police radio that he was “getting

the 40” and that Lam was “stabbing himself.” After retrieving

and loading the 40, which took approximately 30 seconds,

Officer Phelan started to run back to the yard and saw Officer

West standing near the tree and facing Lam, approximately

five to seven feet apart. Because Officer Phelan approached

from directly behind Officer West, his view was obstructed

and he could not fully see Lam or tell whether Lam was

moving toward Officer West. Officer Phelan could tell that

Lam was facing Officer West during the first shot, but

twisting away from Officer West during the second shot. Lam

LAM V. CITY OF SAN JOSE 9

testified at trial, but had no recollection of speaking to

Anderson before the shooting, the officers arriving on the

scene, or how the shooting occurred.

PROCEDURAL HISTORY

Lam filed suit against Defendants for (1) excessive force

and malicious prosecution under the Fourth Amendment;

(2) state law assault and battery; (3) state law intentional

infliction of emotional distress, (4) violation of the Bane Act

(California state law action for intentional interference with

civil rights by threats, intimidation, or coercion); (5) state law

negligence, and (6) improper training in the use of force

against persons who appear suicidal under Monell v.

Department of Social Services of City of New York, 436 U.S.

658 (1978). Defendants moved for summary judgment based

on qualified immunity, arguing Officer West did not violate

Lam’s Fourth Amendment rights and there was no case law

that prohibited her actions. Finding that the evidence, viewed

in the light most favorable to Lam, demonstrated a

constitutional violation of clearly established law, the district

court denied Officer West’s motion based on qualified

immunity.2 Officer West never appealed the denial of

qualified immunity.

In her trial brief, Officer West requested that the district

court submit special interrogatories to the jury so that the

court could rule on Officer West’s entitlement to qualified

immunity pursuant to a motion for judgment as a matter of

law under Federal Rule of Civil Procedure 50(a). However,

2

The district court granted summary judgment to the police chief and

the City of San Jose on the Monell claim. The remaining claims proceeded

to trial against Officer West.

10 LAM V. CITY OF SAN JOSE

Officer West did not submit proposed special interrogatories

to the district court, and the court did not include any special

interrogatories in the jury instructions.

The case proceeded to a jury trial. The jury unanimously

found (1) Officer West used unreasonable force against Lam;

(2) Officer West did not commit battery; (3) Officer West

violated the Bane Act; and (4) Officer West was negligent3

with regard to the shooting.4 The jury awarded Lam $11.3

million in economic and noneconomic damages. Officer West

did not file Rule 50(a) or (b) motions.

Officer West filed a motion for a new trial under Federal

Rule of Civil Procedure 59, arguing the verdict was not

supported by the clear weight of the evidence; the jury was

improperly instructed on Fourth Amendment liability; and the

district court’s failure to submit special interrogatories to the

jury deprived Officer West of a qualified immunity

determination. The district court denied Officer West’s

motion in full. Officer West appealed, arguing the district

court erred by concluding the verdict was supported by the

clear weight of the evidence, the excessive force instruction

did not adequately explain the law, and the district court

abused its discretion by failing to submit special

interrogatories to the jury. For the reasons explained below,

we affirm.

3

The jury apportioned 65% fault to Officer West and 35% fault to

Lam.

4

The jury was not instructed on the intentional infliction of emotional

distress claim or the malicious prosecution claim.

LAM V. CITY OF SAN JOSE 11

DISCUSSION

I.

“We review a district court’s denial of a motion for a new

trial under Federal 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 illogical, implausible,

or without support in the inferences that may be drawn from

the record.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir.

2010). “The abuse of discretion standard requires us to

uphold a district court’s determination that falls within a

broad range of permissible conclusions, provided the district

court did not apply the law erroneously.” Id. We have

recognized the “limited nature of our appellate function” in

reviewing the district court’s denial of a motion for a new

trial, id., and we will generally “not reverse the denial of a

new trial motion if there was some ‘reasonable basis’ for the

jury’s verdict,” Molksi, 481 F.3d at 729. In sum, “where the

basis of a Rule 59 ruling is that the verdict is not against the

weight of the evidence, the district court’s denial of a Rule 59

motion is virtually unassailable. In such cases, we reverse for

a clear abuse of discretion only when there is an absolute

absence of evidence to support the jury’s verdict.” Kode,

596 F.3d at 612 (quotation marks and citation omitted).

Officer West argues the district court erroneously denied

her motion for a new trial, because there is no evidence to

support the jury’s verdict. Specifically, Officer West contends

that Anderson’s testimony—which is the only evidence that

supports the jury’s verdict—is not entitled to any weight,

because it is inconsistent with the physical evidence that was

12 LAM V. CITY OF SAN JOSE

presented at trial. Officer West does not argue the district

court misapplied the law.

The district court did not abuse its discretion by denying

Officer West’s motion for a new trial. The district court

acknowledged Anderson’s testimony could not, in some

respects, be reconciled with the physical or documentary

evidence. It nevertheless concluded that the jury was entitled

to give Anderson’s testimony weight, because Anderson

perceived the entire incident and some physical evidence

supported Anderson’s testimony. Given the standard of

review for the denial of a motion for a new trial, we agree.

It is true Anderson’s testimony, regarding the timing of

the incident and the precise location of each person, is

difficult to reconcile with some of the physical evidence that

was presented at trial. However, none of the physical or

documentary evidence or expert testimony provides

incontrovertible proof that Anderson’s version of the

incident—that Officer West shot Lam in the back when Lam

was not threatening Officer West—was impossible.

Additionally, portions of Wade’s testimony corroborates

Anderson’s testimony. Despite some inconsistencies in the

details of Anderson’s testimony, her testimony nonetheless

provides substantial evidence upon which the jury could have

reached its verdict.

We decline to assess Anderson’s credibility on appeal,

Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735,

743 (9th Cir. 2003) (“It is not the courts’ place to substitute

our evaluations for those of the jurors.”), and we also decline

Officer West’s invitation to reweigh the evidence, Landes

Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1372

(9th Cir. 1987) (“[W]e cannot weigh the evidence for

LAM V. CITY OF SAN JOSE 13

ourselves . . . .”). Our role is not to overturn the verdict

merely because the jury could have reached the opposite

conclusion based on the evidence. See id. Instead, we look

only to whether the district court’s conclusion “was outside

of a broad range of permissible conclusions.” Kode, 596 F.3d

at 613. It was not. The jury’s verdict 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.

We review de novo whether a district court’s jury

instructions accurately state the law, and we review for abuse

of discretion a district court’s formulation of jury instructions.

Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir.

2011). “[J]ury instructions must fairly and adequately cover

the issues presented, must correctly state the law, and must

not be misleading.” Id. (quoting Dang v. Cross, 422 F.3d 800,

804 (9th Cir. 2005)).

Officer West argues that she is entitled to a new trial,

because the jury instructions were erroneous in three regards:

(1) the district court did not give special interrogatories to the

jury; (2) the district court did not give a deadly force

instruction to the jury; and (3) the district court erred by

failing to instruct the jury that an officer’s “bad tactics” are

insufficient to establish constitutional liability.

A.

Officer West first argues that, in qualified immunity cases

involving disputed issues of material fact (like here), the

district court is required to give special interrogatories to the

14 LAM V. CITY OF SAN JOSE

jury. She is mistaken as to the precedent in our circuit.

Instead, “[t]he decision ‘whether to submit special

interrogatories to the jury is a matter committed to the

discretion of the district court.’” Ruvalcaba v. City of Los

Angeles, 167 F.3d 514, 521 (9th Cir. 1999) (alteration

omitted) (quoting Acosta v. City and Cty. of San Francisco,

83 F.3d 1143, 1149 (9th Cir. 1996), abrogated on other

grounds by Saucier v. Katz, 533 U.S. 194 (2001)); Cancellier

v. Federated Dep’t Stores, 672 F.2d 1312, 1317 (9th Cir.

1982). The district court found special interrogatories were

unnecessary. In its discretion, the district court reasoned that,

if the jury found Anderson’s version of the facts to be true,

then Officer West would not be entitled to qualified

immunity, because it is a violation of clearly established law

for an officer to use deadly force against someone who poses

no threat of serious harm to the officers or others. The district

court did not abuse its discretion by declining to give special

interrogatories based on this rationale.

We recognize that other circuits have encouraged or

required district courts to use special interrogatories in

qualified immunity cases involving disputed issues of

material fact. However, Officer West has provided no

authority from this circuit supporting the proposition that

special interrogatories are required for the purpose of

evaluating a post-verdict qualified immunity defense.

Additionally, Officer West failed to submit proposed special

interrogatories to the district court and provides no

explanation, consistent with our case law, as to how the

district court abused its discretion by declining to give special

interrogatories.

LAM V. CITY OF SAN JOSE 15

B.

Officer West next argues the district court’s instructions

failed to convey the proper standards as to objectively

reasonable force. Specifically, Officer West argues that

Tennessee v. Garner established a constitutional justification

for the use of deadly force—an officer can use deadly force

if she is confronted with an imminent risk of death or serious

bodily injury—and that, by failing to instruct the jury on this

specific justification, the court left the jurors inadequately

informed as to the law. We disagree.

In Tennessee v. Garner, the Supreme Court addressed the

reasonableness 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 probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.” Id. at 3. Following Garner, our court held

that, “in a police shooting case . . . , where there was no

dispute that deadly force was used, the district court abuses

its discretion by not giving a Garner deadly force

instruction.” Monroe v. City of Phoenix, 248 F.3d 851, 860

(9th Cir. 2001), overruled by Acosta v. Hill, 504 F.3d 1323

(9th Cir. 2007). We noted that a general “excessive force

instruction is not a substitute for a Garner deadly force

instruction.” Id. at 859.

However, the Supreme Court’s more recent decision in

Scott v. Harris rejected the view that Garner created a special

rule in deadly force cases. See 550 U.S. 372, 382 (2007). In

Scott, the plaintiff argued that the preconditions set forth in

Garner (including whether the suspect posed an immediate

threat of serious physical harm to the officer or others) should

16 LAM V. CITY OF SAN JOSE

determine whether the use of deadly force was appropriate.

Id. at 381–82. The Supreme Court rejected that approach,

reasoning, “Garner did not establish a magical on/off switch

that triggers rigid preconditions whenever an officer’s actions

constitute ‘deadly force.’” Id. at 382. Rather, the Court

explained, “Garner was simply an application of the Fourth

Amendment’s ‘reasonableness’ test to the use of a particular

type of force in a particular situation.” Id. (internal citation

omitted).

We have since recognized that Scott overruled our prior

precedent and district courts are no longer required to give a

separate deadly force instruction. See Acosta, 504 F.3d at

1324. Therefore, Officer West’s argument that the district

court was required to give a separate deadly force instruction

fails as a matter of law.

C.

Officer West argues the district court erred by failing to

give an instruction that explained to the jury that Fourth

Amendment liability cannot be premised solely on an

officer’s “bad tactics.” Excessive force claims “should be

analyzed under the Fourth Amendment and its

‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386,

395 (1989). “[P]roper application [of the reasonableness test]

requires careful attention to the facts and circumstances of

each particular case.” Id. at 396. The events leading up to the

shooting, such as the officer’s tactics, are encompassed in

those facts and circumstances.

Following the pattern jury instructions, the district court

submitted the case to the jury under the general rubric of

reasonableness. The district court’s charge covered the

LAM V. CITY OF SAN JOSE 17

appropriate legal standard and left counsel more than enough

room to argue the facts in light of that standard. We cannot

hold that the district court abused its discretion by declining

to single out one factor in the reasonableness inquiry, when

the instructions properly charged the jury to consider all of

the circumstances.

III.

Officer West contends the district court deprived her of

the right to a qualified immunity determination. We need not

reach the question of qualified immunity, because Officer

West did not preserve the issue for appeal.

Defendants have the burden to assert qualified immunity,

which is an affirmative defense that must ordinarily be

pleaded in the answer. Siegert v. Gilley, 500 U.S. 226, 231

(1991). However, the “defendants may raise an affirmative

defense for the first time in a motion for summary judgment

. . . if the delay does not prejudice the plaintiff.” Magana v.

Commonwealth of N. Mariana Islands, 107 F.3d 1436, 1446

(9th Cir. 1997). If the district court denies summary judgment

on qualified immunity, the order is immediately appealable

as a collateral order if the judgment is made as a matter of

law and “the issue appealed concerns whether the facts

demonstrated a violation of clearly established law.” Rodis v.

City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir.

2009) (citation omitted). If the district court denies summary

judgment on qualified immunity, the right of appeal is limited

to the purely legal question of whether, assuming the

factually supported version of events offered by the plaintiffs

is correct, the district court erred by denying qualified

immunity. Pauluk v. Savage, 836 F.3d 1117, 1120–21 (9th

Cir. 2016).

18 LAM V. CITY OF SAN JOSE

Here, Officer West moved for summary judgment on

grounds of qualified immunity. The district court denied the

motion, because the evidence, viewed in the light most

favorable to Lam, demonstrated a constitutional violation of

clearly established law. Officer West did not appeal this

decision. Instead, in the pretrial conference statement, Officer

West acknowledged the existence of disputed material facts

and stated that there was a legal issue in dispute as to

“[w]hether Officer West is entitled to qualified immunity, and

the process that may be used at trial to make that

determination.” In her trial brief, Officer West requested the

jury make factual findings on the disputed issues, but Officer

West did not propose special interrogatories to the district

court. The case proceeded to trial.

“When a qualified immunity claim cannot be resolved

before 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.” Tortu v. Las

Vegas Metro. Police Dep’t, 556 F.3d 1075, 1083 (9th Cir.

2009). To preserve the determination of qualified immunity,

a defendant must make a motion for judgment as a matter of

law under Rule 50(a). Id. The Rule 50(a) motion may be filed

“at any time before the case is submitted to the jury.” Id. at

1081. If the district court denies the Rule 50(a) motion, the

defendant must then renew the motion for judgment as a

matter of law under Rule 50(b) to preserve the qualified

immunity defense. Id. However, a “failure to file a Rule 50(a)

motion precludes consideration of a Rule 50(b) motion for

judgment as a mater of law.” Id. at 1083. Once there has been

a trial, the filing of a motion for summary judgment or raising

the defense in a pre-trial submission is not sufficient to avoid

a waiver. Id. at 1082.

LAM V. CITY OF SAN JOSE 19

Officer West did not file a Rule 50(a) motion for

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

the jury, nor did Officer West file a renewed motion for

judgment as a matter of law pursuant to Rule 50(b) after the

verdict was rendered. Thus, Officer West never provided the

district court an opportunity to rule on the question of

whether, on the facts established at trial, she was entitled to

qualified immunity. Therefore, Officer West did not preserve

her post-trial assertion of qualified immunity for appeal.

Following Tortu, if an officer has forfeited her qualified

immunity defense by failing to follow proscribed procedures

for the preservation of the defense, we should not consider it

for the first time on appeal. See id. at 1085 n.9 (“There is no

authority that [qualified immunity] could be revived as a

ground for a new trial under Rule 59.”).

Officer West argues that the district court’s failure to give

special interrogatories to the jury deprived her of a qualified

immunity determination. That argument is without merit.

Without properly preserving qualified immunity and

providing the district court a forum to rule on the defense, it

was Officer West, not the district court, who precluded a

qualified immunity determination. Officer West also contends

that, by requesting that the district court give special

interrogatories to the jury, she properly raised qualified

20 LAM V. CITY OF SAN JOSE

immunity.5 Our precedent, as explained above, forecloses this

argument.

Finally, Officer West argues the district court abused its

discretion, because it applied the incorrect substantive law in

explaining why it did not give special interrogatories to the

jury. Because the district court did not address the merits of

the qualified immunity determination, it did not, as Officer

West argues, “appl[y] the incorrect substantive law.” The

district court recognized that the merits of the qualified

immunity defense were foreclosed by Officer West’s failure

to preserve the defense by filing Rule 50 motions.

IV.

Officer West makes a cursory reference to the Bane Act

in the opening brief, requesting that “the Court . . . reverse the

judgment . . . regarding the Bane Act (which is dependent on

constitutional liability).” Because Officer West failed to

provide any argument or authority to support this claim on

appeal, we do not consider it. See United States v. Graf,

610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in

5

In Officer West’s trial brief, she wrote, “Should the jury respond to

interrogatories and find that the incident occurred as described by Officer

West, Defendants would then be able to move under Rule 50 for qualified

immunity on the part of the officer.” This sequence is wrong. A party must

file a Rule 50(a) motion at any time before the case is submitted to the

jury. If Officer West waited until after the case was submitted to the jury

and after the jury resolved factual disputes in her favor, the motion would

have been untimely, and would have precluded a Rule 50(b) motion. See

Tortu, 556 F.3d at 1083.

LAM V. CITY OF SAN JOSE 21

passing and not supported by citations to the record or to case

authority are generally deemed waived.”).

AFFIRMED.