Tan Lam v. City of Los Banos

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAN LAM, as Successor-In-Interest No. 18-17404

to decedent Sonny Lam (aka Son

Tung Lam), D.C. No.

Plaintiff-Appellee, 2:15-cv-00531-

MCE-KJN

v.

CITY OF LOS BANOS, a Municipal OPINION

Corporation,

Defendant,

and

JAIRO ACOSTA, Police Officer for the

City of Los Banos,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted May 12, 2020

San Francisco, California

Filed September 25, 2020

2 LAM V. ACOSTA

Before: Sidney R. Thomas, Chief Judge, and Michelle T.

Friedland and Mark J. Bennett, Circuit Judges.

Opinion by Chief Judge Thomas;

Dissent by Judge Bennett

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s (1) judgment for plaintiff following a jury verdict; and

(2) denial of defendant’s motion pursuant to Fed. R. Civ. P.

50(b) for judgment as a matter of law in an action brought

pursuant to 42 U.S.C. § 1983 and state law alleging that

defendant, a police officer, used excessive deadly force when

he shot plaintiff’s son.

A jury specifically found that plaintiff’s son, Sonny Lam,

had stabbed Officer Acosta in the forearm with a pair of

scissors prior to Acosta firing his first shot, that Acosta had

retreated, and that Sonny did not approach Acosta with

scissors before Acosta fired a fatal second shot.

The panel held that this case was largely controlled by

deferential standards of review. The panel held that viewing

the evidence in the light most favorable to plaintiff, as it was

required to do at this juncture, the evidence sufficiently

supported the jury’s special findings that Sonny did not

*

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. ACOSTA 3

approach Officer Acosta with scissors prior to Acosta firing

the second shot. The panel therefore concluded that the

district court did not err in denying Acosta’s Rule 50(b)

sufficiency of the evidence motion.

The panel held that the district court properly denied the

Rule 50(b) motion on qualified immunity as to plaintiff’s

Fourth Amendment claim. The panel held that the law was

clearly established at the time of the shooting that an officer

could not constitutionally kill a person who did not pose an

immediate threat. The law was also clearly established at the

time of the incident that firing a second shot at a person who

had previously been aggressive, but posed no threat to the

officer at the time of the second shot, would violate the

victim’s rights. In sum, the trial evidence, construed in the

light most favorable to plaintiff, did not compel the

conclusion that Acosta was entitled to qualified immunity.

The panel held that there was insufficient evidence to

support the jury’s verdict in favor of plaintiff on his

Fourteenth Amendment claim for loss of a familial

relationship. The panel held that there was insufficient

evidence showing that Acosta acted with a purpose to harm

unrelated to a legitimate law enforcement objective. Because

the record was devoid of this evidence and the jury found

only that Acosta acted “with a purpose to harm,” and not a

purpose to harm unrelated to a legitimate law enforcement

objective, plaintiff failed to show that Acosta committed a

Fourteenth Amendment violation. Therefore, the panel

reversed the jury’s verdict for plaintiff on the Fourteenth

Amendment claim and remanded to the district court for

further proceedings.

4 LAM V. ACOSTA

The panel held that district court did not commit plain

error in its admission of evidence that Acosta had

experienced post-traumatic stress disorder (“PTSD”). The

panel further noted that Acosta did not appeal the merits of

the jury’s decisions on the state law negligence claims.

Dissenting, Judge Bennett stated that Officer Acosta was

entitled to qualified immunity on plaintiff’s Fourth

Amendment claim because plaintiff identified no clearly

established law that would have put Officer Acosta on notice

that his actions violated the Fourth Amendment. Judge

Bennett further stated that given the complete lack of

evidence showing that Officer Acosta suffered from PTSD at

the time of the 2013 incident in question, the district court

plainly erred in allowing plaintiff to admit evidence of

Officer Acosta’s 2011 PTSD diagnosis.

COUNSEL

Suzanne M. Nicholson (argued), Sacramento, California;

Kevin P. Allen, Allen Glaessner Hazelwood & Werth LLP,

San Francisco, California; for Defendant-Appellant.

Adanté D. Pointer (argued), Ayana C. Curry, and John L.

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

for Plaintiff-Appellee.

Lee H. Roistacher, Daley & Heft LLP, Solana Beach,

California, for Amici Curiae California State Association of

Counties and League of California Cities.

LAM V. ACOSTA 5

James R. Touchstone and Denise L. Rocawich, Jones &

Mayer, Fullerton, California, for Amici Curiae California

State Sheriffs’ Association, California Police Chiefs

Association, and California Peace Officers’ Association.

OPINION

THOMAS, Chief Judge:

Sonny Lam died after he was shot twice inside his home

by a City of Los Banos police officer. A jury specifically

found that Sonny had stabbed the officer in the forearm with

a pair of scissors prior to the first shot, that the officer had

retreated after firing the first shot, and that Sonny did not

approach the officer with scissors before the officer fired the

fatal second shot. Sonny’s father, Tan Lam, filed a complaint

alleging violations of constitutional rights under 42 U.S.C.

§ 1983 and state law negligence claims. The officer appeals

the jury verdict in Lam’s favor on those claims.

Giving deference to the jury’s findings and drawing all

reasonable inferences in Lam’s favor, see Ostad v. Or. Health

Scis. Univ., 327 F.3d 876, 881 (9th Cir. 2003), we affirm the

district court’s judgment on the Fourth Amendment claim.

On the Fourteenth Amendment claim, we reverse the district

court’s denial of the officer’s renewed motion for judgment

as a matter of law and remand to the district court for further

proceedings.

6 LAM V. ACOSTA

I

A1

At the time of the incident, Tan Lam—then 80 years

old—lived with his 42-year-old son, Sonny Lam, at Sonny’s

home in Los Banos, California. Sonny had Type 2 diabetes

and a history of mental health issues that included symptoms

such as “hearing voices.” In the past, Sonny generally

managed these mental health issues with medication, but he

had stopped taking his medications, which caused his mental

and physical health to deteriorate. At the time of this

incident, Sonny was 5’ 8”, weighed 136 pounds, and was very

frail. In the afternoon of September 2, 2013, Sonny became

agitated, swearing at and unsuccessfully attempting to hit

Lam, so Lam drove to a neighbor’s house and asked her to

call 911. Lam was under the impression that the police would

make Sonny take his medication, and Lam testified that he

had been advised by “an agency specialized in mental health”

that the police could take Sonny to a “specialized hospital for

treatment.”

Officer Jairo Acosta was dispatched to investigate the call

as a possible assault, and he met Lam outside Sonny’s home.

Lam told Acosta that Sonny had “lost his mind” before the

two entered the home through the garage.2 When Lam and

1

The evidence at trial regarding the events described below conflicted

on certain points. Consistent with our obligation to draw inferences in

Lam’s favor, we provide the version of events most favorable to Lam

when recounting conflicting testimony, unless otherwise indicated.

2

The layout of Sonny’s home is relevant to putting the events at issue

in context. The home was set up with an entrance through the garage,

which opened into a laundry room. The laundry room opened into the

LAM V. ACOSTA 7

Acosta arrived outside Sonny’s bedroom, Acosta pushed open

the bedroom door and found Sonny sitting at his desk,

unarmed and wearing nothing but basketball shorts. Sonny

immediately started yelling at Acosta and Lam to get out of

the room. Acosta approached Sonny and grabbed Sonny’s

shoulder to get Sonny to leave the room with him. Lam

testified that when Sonny refused to leave his room, Acosta

challenged Sonny, saying, “Beat me, beat me,” as Sonny

yelled, “No, no, no” and made punching motions through the

air. Sonny then stood up and began pushing Acosta out of his

room, forcing both Lam and Acosta into the main hallway.

Lam retreated down the hallway into the turning point so that

he was behind Acosta and could no longer see Sonny. Acosta

radioed dispatch with a non-urgent request for back-up.

Sonny did not have any weapon in his hands at this point.

According to Acosta, Sonny then went to a desk drawer

and grabbed what Acosta thought was a knife, but turned out

to be a pair of scissors. Acosta testified that he then pulled

out his gun and took a step back as Sonny approached him

with the scissors, and that he told Sonny to drop the scissors.

Lam testified he did not hear Acosta give a warning. Sonny

stabbed Acosta in the left forearm with the scissors, and

Acosta then shot Sonny in the right calf, with the bullet

passing through his leg.

After Acosta fired the first shot, Lam ran to Acosta and

asked him why he shot Sonny, and Acosta replied that Sonny

had a knife. Lam testified that he could not see any weapon,

but Acosta yelled, “Go back, go back.” Acosta retreated

main hallway, with Sonny’s room immediately on the right. The main

hallway stretched 16 feet before it turned at a 90-degree angle to the left,

then continued into the kitchen and living room area.

8 LAM V. ACOSTA

down the hall, and took the time to clear his handgun, which

had jammed, using a “tap, rack[,] and roll” technique.

Acosta continued backing down the hallway so that Lam

was behind him. When Acosta was positioned near the turn

of the hallway, he fired the second shot at Sonny, who was

still in the main hallway. It is undisputed that Acosta did not

provide a warning to Sonny before firing the second shot.

The second shot hit Sonny in the chest at a downward angle,

and he fell to the ground.

Lam rushed to Sonny, who was lying face-up on the floor,

bleeding and screaming. Backup arrived shortly thereafter,

and Sonny was handcuffed before being placed on a stretcher

and taken outside while Lam was told to wait in the living

room. Officer Teresa Provencio was the first officer to arrive

after the shooting, entering through the garage and walking

past Sonny and down the hallway. She did not see any

scissors or other weapon near Sonny, nor did Acosta warn her

that Sonny had been armed or that he had stabbed Acosta

with the scissors. Officer Christopher Borchardt was the next

to arrive on-scene, and Acosta reported to Borchardt that

Sonny had stabbed him with scissors, and Acosta revealed a

small puncture wound on his forearm. Borchardt testified

that he observed a pair of scissors under Sonny’s thigh, but

the position of the scissors was never confirmed by

photograph because Borchardt testified that he slid the

scissors away from Sonny and that the scissors were then

moved to a different room. Sonny was taken to the hospital,

where he died during surgery.

LAM V. ACOSTA 9

B

Lam filed a complaint against both the City of Los Banos

and Acosta, alleging violations of constitutional rights under

42 U.S.C. § 1983 as well as state law claims. The district

court granted summary judgment for the City on all claims.

However, the district court concluded that there remained

issues of triable facts on some of Lam’s claims against

Acosta, including his Fourth Amendment excessive use of

force claim, his Fourteenth Amendment loss of familial

relationship claim, his state law negligence and negligent

infliction of emotional distress claims, and the question of

qualified immunity. Among other issues, the court concluded

that disputed material issues of fact existed as to whether

(1) Acosta was aware that Sonny suffered from mental illness

prior to entering Sonny’s home; (2) Sonny was armed with

scissors at any point; (3) Sonny stabbed Acosta with scissors;

(4) Sonny attempted to take Acosta’s gun; and (5) after being

shot the first time, Sonny continued to pose a threat to

Acosta.

Prior to trial, Acosta filed a motion in limine to exclude

evidence of his 2011 post-traumatic stress disorder (“PTSD”)

diagnosis by a Veterans Affairs (“VA”) psychologist and to

exclude expert testimony related to that diagnosis. At the

pretrial conference, the district court denied Acosta’s motion

to exclude all PTSD evidence and stated, “That’s without

prejudice though, because there is a lot of things that are

involved in PTSD that may or may not be relevant as we

move through. But for right now I’m denying it without

prejudice.” In response to subsequent comments made by

Acosta’s counsel about the challenge to the expert testimony,

the district court reiterated that the motion in limine to

10 LAM V. ACOSTA

exclude PTSD evidence had been denied: “[I]t is going to

wait. So the motion has been denied.”

At trial, deposition testimony from Nurse Practitioner

Mary Jimenez and Dr. Joseph Shuman—VA healthcare

providers who personally examined Acosta in relation to his

PTSD symptoms in February and June of 2011,

respectively—was read to the jury. Jimenez’s testimony

reflected that Acosta had described experiencing difficulty

making decisions, forgetfulness, irritability, poor frustration

tolerance, and that he felt depressed and was easily angered.

Dr. Shuman evaluated Acosta after Jimenez completed her

evaluation, and he diagnosed Acosta with prolonged PTSD,

meaning that Acosta had experienced PTSD symptoms for a

period longer than 90 days. Similar to Jimenez’s testimony,

Dr. Shuman’s testimony reflected that Acosta reported

irritability, “difficulty concentrating that . . . contributes often

to short term memory problems,” hypervigilance, and an

exaggerated startle response. Dr. Shuman’s testimony noted

that Acosta’s PTSD symptom of “feeling as if the traumatic

event was recurring” could potentially be triggered by certain

on-the-job experiences, such as by clearing houses and

drawing his weapon. Acosta’s counsel did not object to this

testimony at trial.

Lam’s expert, Dr. Kris Mohandie, also testified at trial

about how Acosta’s PTSD would have affected his reactions

to stressful situations that he encountered while on the job.

Acosta raised an objection under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), to

Dr. Mohandie’s testimony, on the ground that the testimony

lacked foundation because Dr. Mohandie never personally

examined Acosta. Acosta’s objection was overruled.

LAM V. ACOSTA 11

At the close of the evidence, Acosta made a motion for

judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50(a), in which he attempted to renew his summary

judgment motion. The following exchange between Acosta’s

counsel and the district court took place:

Counsel: So, as far as the Fourth Amendment

claim slash Fourteenth Amendment claim of

excessive force, I would renew our summary

judgment as a 50(a) motion, orally.

*******

District Court: Just so I’m clear, are you

making a Rule 50(a) [motion], or renewing

the summary judgment [motion], 56, or both?

Counsel: Because I’m not an expert on my

FRCP, perhaps I should be better at, I was in

a trial where a district court judge renewed the

summary judgment sua sponte based on the

last evidence that was presented just prior to

trial starting.

District Court: Just so we’re clear, I’m not

going to do that.

Counsel: Okay. So it’s a 50(a) motion.

The district court then denied the motion.

The jury returned a verdict in Lam’s favor on his Fourth

Amendment, Fourteenth Amendment, and state negligence

and negligent infliction of emotional distress claims

12 LAM V. ACOSTA

(apportioning 70% of the fault to Acosta). The jury awarded

Lam $250,000 for Sonny’s pain and suffering prior to his

death, $2,000,000 for Lam’s past and future loss of Sonny’s

love and companionship, and $500,000 for Lam’s emotional

distress, for a total award of $2.75 million. The jury also

made the following findings in response to special

interrogatories:

(1) Sonny stabbed Acosta with a pair of

scissors;

(2) Sonny did not grab Acosta’s gun prior to

Acosta firing the first shot;

(3) Acosta retreated from Sonny after firing

the first shot; and

(4) Sonny did not approach Acosta with

scissors before Acosta fired his gun the

second time.

After the judgment was entered against him, Acosta

timely filed a Rule 50(b) renewed motion for judgment as a

matter of law or, in the alternative, a Rule 59 motion for a

new trial. Acosta asserted that judgment as a matter of law

was warranted on his federal claims because his use of force

was objectively reasonable, he lacked the requisite purpose to

harm required for a Fourteenth Amendment due process

violation, and he was entitled to qualified immunity. The

district court denied the motion. It concluded that there was

sufficient evidence to support the jury’s award in Lam’s favor

and that Acosta was not entitled to qualified immunity. On

the qualified immunity issue, the district court stated,

LAM V. ACOSTA 13

Given [the jury’s special findings], even if the

Court could determine that Officer Acosta

was entitled to qualified immunity regarding

the first gunshot, the jury found with respect

to the second shot that Officer Acosta was

retreating and was no longer being

approached with scissors. There is simply no

way given the factual determinations reached

by the jury that the Court can determine

Officer Acosta is entitled to immunity with

regard to the second gunshot.

Acosta timely appealed, arguing that the district court

erred in denying Acosta’s Rule 50(b) motion because

insufficient evidence supported the jury’s special finding that

Sonny did not approach Acosta with scissors before Acosta

fired the second shot, and the jury’s finding that Acosta acted

with a purpose to harm unrelated to a legitimate law

enforcement objective. Acosta further argued that his use of

force was reasonable and, even if there was a constitutional

violation here, he is entitled to qualified immunity. He also

contends that the district court erred in admitting the evidence

related to his PTSD diagnosis. Aside from his evidentiary

challenge to the PTSD evidence, Acosta did not appeal the

merits of the jury verdict on the state law claims.

II

The district court properly held that there was sufficient

evidence to sustain the jury’s special verdict finding that

Sonny did not approach Acosta with scissors prior to the

second shot and thus the district court properly denied

Acosta’s Rule 50(b) motion on that claim.

14 LAM V. ACOSTA

We review the district court’s denial of Acosta’s Rule

50(b) motion de novo, drawing all reasonable inferences in

Lam’s favor, see Reese v. County of Sacramento, 888 F.3d

1030, 1036 (9th Cir. 2018), and we take special care not to

reweigh the evidence in our consideration, see Lam v. City of

San Jose, 869 F.3d 1077, 1085 (9th Cir. 2017) (“Our role is

not to overturn the verdict merely because the jury could have

reached the opposite conclusion based on the evidence.”).

We may not make credibility determinations, Lytle v.

Household Mfg., Inc., 494 U.S. 545, 554–55 (1990), and we

“must disregard all evidence favorable to the moving party

that the jury is not required to believe,” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000). “The

test applied is whether the evidence permits only one

reasonable conclusion, and that conclusion is contrary to the

jury’s verdict.” E.E.O.C. v. Go Daddy Software, Inc.,

581 F.3d 951, 961 (9th Cir. 2009) (quoting Josephs v. Pac

Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)). Drawing all

reasonable inferences in Lam’s favor, we conclude that there

was sufficient evidence to support the jury’s special finding.

Acosta specifically challenges the jury’s fourth special

finding—that Sonny did not approach Acosta with scissors

before Acosta shot him the second time. We reject Acosta’s

argument that this finding is unsupported by the evidence in

the record. The special interrogatory asked whether “Sonny

Lam approach[ed] Officer Acosta with scissors before

Officer Acosta fired his gun the second time,” to which the

jury answered “NO.” Both parties agree that Sonny

“approach[ed]” Acosta prior to the second shot, but they

disagree on the manner in which Sonny approached Acosta.

After carefully examining the record, we conclude that

the jury did not contravene the weight of the evidence in

LAM V. ACOSTA 15

making the special finding that Sonny did not have scissors

as he approached Acosta before the second shot. See Atlantic

& Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355,

364 (1962) (“Where there is a view of the case that makes the

jury’s answers to special interrogatories consistent, they must

be resolved that way.”).

First, Tan Lam was present for the events in question as

a percipient witness.3 According to Lam, when Acosta and

Sonny started struggling in the bedroom, he backed away

three to four meters outside the bedroom. Lam testified that,

after he heard the first shot, he ran to Acosta and asked him

why he shot Sonny. Acosta told him that Sonny had a knife.

Lam then tried to run over to see what happened, but Acosta

told him to go back. Lam was standing behind Acosta when

Acosta fired the second shot, and after that shot Lam ran to

Sonny and saw him lying face up. Crucially, Lam testified

that he saw police “turn[] [Sonny] upside down, face down,

and . . . handcuff[] him”—but that he did not see a pair of

scissors near Sonny. In fact, Lam did not see a pair of

scissors until after police had left the home.

Second, consistent with Lam’s testimony that he did not

observe a pair of scissors near Sonny after the second shot,

Officer Provencio—who was the first officer to arrive on the

scene and walked right past Sonny—testified that she did not

observe a pair of scissors near Sonny. The testimony from

3

Acosta, citing Gregory v. County of Maui, 523 F.3d 1103 (9th Cir.

2008), contends that the jury should not have credited Lam’s testimony

because he was standing behind Acosta when the shooting took place.

This argument is unavailing. Whereas the purported witnesses in Gregory

were not even inside the building in which the deadly force incident

occurred, see id. at 1106 n.3, Lam was within several yards of Acosta and

Sonny during the shooting.

16 LAM V. ACOSTA

Lam and Provencio is sufficient to support the jury’s finding

that Sonny did not have scissors prior to the second shot.

Third, Acosta gave inconsistent accounts of whether

Sonny advanced on him with the scissors, and the jury was

entitled to take those inconsistencies into consideration. At

trial, Acosta gave two different versions of which hand Sonny

used to hold the scissors. His officer-involved-shooting

interview, conducted just a few hours after the event,

contradicted his trial testimony. In addition, he told the

interviewers that Sonny had dropped the scissors after the

first shot. At trial, he testified that Sonny had never dropped

the scissors. He told interviewers that Sonny had fallen to the

ground after the first shot, but at trial he claimed Sonny did

not fall after the first shot. At trial, he had difficulty

remembering what he said to arriving officers or the sequence

of events. In short, Acosta’s testimony was significantly

impeached by his prior inconsistent statements and his

inconsistent testimony at trial.

In sum, we cannot say that, in this case, “the evidence

permits only one reasonable conclusion, and that conclusion

is contrary to the jury’s verdict.” Go Daddy Software, Inc.,

581 F.3d at 961 (quoting Josephs, 443 F.3d at 1062).

Viewing the evidence in the light most favorable to Lam,

which we must do at this juncture, the evidence sufficiently

supports the jury’s special findings. We are not permitted to

make credibility determinations in reviewing a denial of a

Rule 50(b) evidence sufficiency motion. Lytle, 494 U.S.

at 554–55. And, indeed, we “must disregard all evidence

favorable to the moving party that the jury is not required to

believe.” Reeves, 530 U.S. at 150–51. Applying these

standards, we conclude that the district court did not err in

LAM V. ACOSTA 17

denying Acosta’s Rule 50(b) sufficiency of the evidence

motion.

III

The district court did not err in denying Acosta’s Rule

50(b) motion challenging the jury’s verdict on Lam’s Fourth

Amendment claim. Acosta argues that Lam failed to

establish a Fourth Amendment violation because Acosta’s use

of force was objectively reasonable and that, even if there

were a constitutional violation, he is entitled to qualified

immunity.

A

The district court properly rejected Acosta’s argument

that the jury improperly found that Acosta’s use of deadly

force was unreasonable. We evaluate Fourth Amendment

excessive use of force claims for objective reasonableness,

asking “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances

confronting them.” Graham v. Connor, 490 U.S. 386, 397

(1989). “[B]ecause questions of reasonableness are not well-

suited to precise legal determination, the propriety of a

particular use of force is generally an issue for the jury.”

Barnard v. Theobald, 721 F.3d 1069, 1076 (9th Cir. 2013)

(quoting Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir.

2013) (quoting Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.

1994))). Given the jury’s special findings that Acosta had

retreated from Sonny after firing the first shot, and that Sonny

did not have scissors as he approached Acosta before the

second shot, the district court did not err in concluding that

Sonny’s constitutional rights were violated as a result of

Acosta’s objectively unreasonable use of deadly force.

18 LAM V. ACOSTA

B

The district court also did not err in denying Acosta’s

Rule 50(b) motion for judgment as a matter of law based on

his assertion of qualified immunity, a decision we review de

novo.4 Reese, 888 F.3d at 1036. “Qualified immunity is an

affirmative defense that the government has the burden of

pleading and proving.” Frudden v. Pilling, 877 F.3d 821, 831

(9th Cir. 2017) (citing Houghton v. South, 965 F.2d 1532,

1536 (9th Cir. 1992)). In evaluating a renewed qualified

immunity motion under Rule 50(b) after a jury trial, we

analyze the motion based on the facts established at trial, see

Reese, 888 F.3d at 1036, viewing the evidence in the light

most favorable to the nonmoving party, and drawing all

reasonable inferences in favor of the nonmoving party, see

Barnard, 721 F.3d at 1075.

“Qualified immunity balances two important interests—

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009). We ask two questions when determining whether

an officer is entitled to qualified immunity: “(1) whether there

has been a violation of a constitutional right; and (2) whether

that right was clearly established at the time of the officer’s

alleged misconduct.” Estate of Lopez ex rel. Lopez v.

Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (quoting Lal v.

California, 746 F.3d 1112, 1116 (9th Cir. 2014)).

4

We reject Lam’s contention that Acosta waived the issue of

qualified immunity by failing to raise it in his Rule 50(a) motion. The

factual arguments Acosta made in support of his Rule 50(a) motion are the

same arguments underlying Acosta’s asserted claim to qualified immunity.

LAM V. ACOSTA 19

1

In considering whether a constitutional violation

occurred, our analysis includes three steps: First, we consider

the type and amount of force inflicted to establish the severity

of the intrusion on the individual’s Fourth Amendment rights;

second, we consider the government’s interest in the use of

that force; and third, we weigh the “gravity of the intrusion on

the individual against the government’s need for that

intrusion.” See Glenn v. Washington Cnty., 673 F.3d 864,

871 (9th Cir. 2011) (citation omitted).

a

As to the type and amount of force inflicted, Acosta

employed deadly force when he shot Sonny. See Bryan v.

MacPherson, 630 F.3d 805, 825 n.6 (9th Cir. 2010) (“‘Lethal

force’ is force that creates a substantial risk of death or

serious bodily injury.”) (citing Smith v. City of Hemet,

394 F.3d 689, 705–07 (9th Cir. 2005) (en banc)). The

Supreme Court has recognized that “[t]he intrusiveness of a

seizure by means of deadly force is unmatched.” Tennessee

v. Garner, 471 U.S. 1, 9 (1985). In short, the use of deadly

force against Sonny was the greatest degree of force possible,

and therefore the most severe intrusion on his Fourth

Amendment rights.

b

We next consider the government’s interest in the amount

of force used, and we must “examine the totality of the

circumstances and consider ‘whatever specific factors may be

appropriate in a particular case.’” Bryan, 630 F.3d at 826

(quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.

20 LAM V. ACOSTA

1994)). When evaluating the government’s interest, the most

important factor is whether the person posed an immediate

threat to the safety of the officer or another. See id.

(explaining that other, less important factors that we consider

are “the severity of the crime at issue” and whether the person

“is actively resisting arrest or attempting to evade arrest by

flight” (quoting Graham, 490 U.S. at 396)). “A desire to

resolve quickly a potentially dangerous situation is not the

type of governmental interest that, standing alone, justifies

the use of force that may cause serious injury.” Id. (quoting

Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)).

Here, objective evidence supported the conclusion that

Sonny was not a threat to Acosta between the first and second

shot. It is undisputed (and the jury so found) that Acosta

backed down the hallway after the first shot. Additionally,

Acosta not only had time to speak to Lam, but also had time

to clear his jammed handgun using a “tap, rack[,] and roll”

technique. Further, there was testimony about the bullet

trajectory that suggested that Sonny was not fully upright

when he was shot the second time. Finally, the jury found

that, in the moments before the second shot, Sonny was not

approaching Acosta with scissors. Because the weight of the

evidence indicates that Sonny did not pose an immediate

threat to Acosta or anyone else between the first and the

second shot, this factor favors Lam. Cf. Garner, 471 U.S.

at 11 (“Where the suspect poses no immediate threat to the

officer and no threat to others, the harm resulting from failing

to apprehend him does not justify the use of deadly force to

do so.”).

Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) (per

curiam), overruled on other grounds by Saucier v. Katz,

533 U.S. 194 (2001), involved facts analogous to those here.

LAM V. ACOSTA 21

Hopkins compels us to conclude that Sonny did not pose an

immediate threat to Acosta or Lam between the first and

second shot. In Hopkins, according to the officer, the

decedent grabbed the officer’s baton and “us[ed] it to hit the

officer ten or twenty times over his head, back, shoulders and

arms.” Id. at 886.5 The officer shot the decedent “six times

at a range of three to four feet,” injuring but not killing the

decedent. Id. at 883.6 The officer moved away from the

decedent after firing that round of shots, and the decedent

“followed at a brisk pace,” though he no longer had the baton

in his hands. Id. at 887. The officer “yelled at [the decedent]

to stop and leave him alone,” but apparently the decedent

continued to advance. Id. The officer then shot the decedent

four times, id., and the decedent died after the second round

of shots, id. at 884.

We held, based on this version of events, that only the

first use of deadly force could be justified because the

decedent was “allegedly beating” the officer. Id. at 887. We

could not “say as a matter of law that [the officer] acted

reasonably” when he fired the second round of shots because

“it was far from clear that [the officer] reasonably feared for

his life.” Id. At the time the officer fired those shots, the

decedent “had been wounded and was unarmed,” and the

officer “had already called for help; he needed only to delay

[the decedent] for a short period of time”—which he could

5

Medical evidence undercut the officer’s story, indicating that the

officer “was hit only once or twice with the baton.” Hopkins, 958 F.2d

at 886. Additionally, an eyewitness contradicted the officer’s version of

events. Id. at 884.

6

The officer alleged that he warned the decedent before opening fire,

but his version of events was contradicted by a percipient eyewitness.

Hopkins, 958 F.2d at 883–84.

22 LAM V. ACOSTA

have done by evading the decedent or “attempt[ing] to subdue

him with his fists, his feet, his baton or the butt of his gun.”

Id.

Here, as in Hopkins, though Acosta’s first shot—fired

after Sonny had stabbed him with scissors—was likely an

objectively reasonable use of force, Acosta’s second shot was

not an objectively reasonable use of force. When Acosta

fired the second shot, Sonny no longer posed an immediate

threat: Sonny was injured and was not approaching Acosta

with scissors, and Acosta was retreating from Sonny. Acosta

could have retreated further, even out of the house, and

waited for backup. Indeed, he had already radioed for

backup, which was on the way.

We may also consider “the availability of less intrusive

alternatives to the force employed, [and] whether proper

warnings were given” before the officer used deadly force.

Glenn, 673 F.3d at 872. Less intrusive alternatives to the

deadly force were available to Acosta. He had a baton and

pepper spray on his person, and he could have held his fire

“unless and until [Sonny] showed signs of danger.” See Zion

v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017).

“To endorse [Acosta’s] chosen course of action”—firing a

fatal shot when Sonny no longer posed an immediate

threat—“would be to say that a police officer may reasonably

fire repeatedly upon an unarmed, wounded civilian even when

alternative courses of action are open to him.” Hopkins,

958 F.2d at 887.

Finally, though the parties dispute whether Acosta warned

Sonny before the first shot, it is undisputed that he did not

warn Sonny before firing the second shot. Between the first

and the second shot, Acosta was able to tell Lam that Sonny

LAM V. ACOSTA 23

“had a knife,” direct Lam to “go back,” retreat down the

hallway, and clear his gun. Thus, “there was ‘ample time to

give that order or warning and no reason whatsoever not to do

so.’” Bryan, 630 F.3d at 831 (quoting Deorle, 272 F.3d

at 1284).

c

In short, Sonny had an undeniable Fourth Amendment

interest in his own life, Garner, 471 U.S. at 11, and Acosta’s

use of deadly force in firing the second shot was objectively

unreasonable in light of the facts that Sonny did not pose an

immediate threat, alternative methods of force were available

to Acosta, and Acosta did not warn Sonny before firing the

second shot. Accordingly, the district court properly

concluded that Acosta violated Sonny’s Fourth Amendment

right.

2

Moving to the second prong of our qualified immunity

analysis, we recognize that even where an officer violates a

constitutional right, the officer will be granted qualified

immunity if the use of force was rooted in a reasonable belief

that, under the law at the time of the incident, the use of force

was lawful. See Bryan, 630 F.3d at 832. The district court

did not err in concluding that Acosta was not entitled to

qualified immunity regarding the second shot he fired

because the law was clearly established that an officer may

not shoot a previously armed person who no longer posed a

threat.

24 LAM V. ACOSTA

a

We analyze the clearly-established prong of our qualified

immunity inquiry by “considering the jury’s factual findings

in the special interrogatories and construing the evidence

regarding the remaining factual disputes most favorably to”

Lam. Jones v. Treubig, 963 F.3d 214, 228 (2d Cir. 2020).

Therefore, we must reject Acosta’s argument that one piece

of physical evidence—namely, the trail of bloody

footprints—compels the conclusion that Acosta is entitled to

qualified immunity. Although Acosta testified that Sonny

was “walking towards” him, the jury was entitled to

“disbelieve” his “self-serving testimony,” see Baker v. Delta

Air Lines, Inc., 6 F.3d 632, 645 (9th Cir. 1993) (quoting

Uffelman v. Lone Star Steel Co., 863 F.2d 404, 409 (5th Cir.

1989)), particularly because other parts of Acosta’s testimony

were inconsistent or weak, and evidence in the record

supports the jury’s finding. See generally Smith, 394 F.3d

at 701 (explaining that in excessive use of force cases, the

jury’s role in making factual and credibility determinations is

exceptionally important).

It is undisputed that the first shot hit and went through

Sonny’s leg. The jury could have reasonably inferred from

this fact that Sonny stumbled down the hallway after being

injured by the first shot Acosta fired. Indeed, the bullet

trajectory evidence showing that the second shot entered

Sonny’s body at a “pretty steep,” “downward trajectory” was

consistent with Sonny not having been upright when the fatal

shot was fired.

In sum, the trial evidence, construed in the light most

favorable to Lam, does not compel the conclusion that Acosta

was entitled to qualified immunity.

LAM V. ACOSTA 25

b

As to our consideration of applicable law, it has long been

clearly established that an officer could not use deadly force

on an unarmed, nonthreatening suspect and any belief to the

contrary was not reasonable. As the Supreme Court plainly

put it in Garner: “A police officer may not seize an unarmed,

nondangerous suspect by shooting him dead.” 471 U.S.

at 11–12. Beyond that level of generality, as forceful as it is,

we must decide whether, at the time this shooting occurred,

it was apparently unlawful for a police officer to shoot a

mentally ill man in deteriorating health in his own home,

who—though previously armed—was incapacitated and no

longer posed a threat. We conclude that it was.

Hopkins is instructive and clearly established that

Acosta’s second shot violated the Fourth Amendment at the

time of the incident. Here, as in Hopkins, an officer’s initial

shot was in response to an armed person who had injured

him. See 958 F.2d at 886. Further, when the person—by

then wounded and unarmed—approached the officer, in both

instances the officer shot again, despite being in no imminent

danger. Id. at 887. Although the officer in Hopkins

apparently had a minute or two to regroup between the first

and second round of shots, see id. at 883, while the events

here unfolded more rapidly, such a distinction is not

ultimately meaningful because Acosta nonetheless had time

to reevaluate whether Sonny posed an immediate, significant

threat between the first and second shots. Hopkins should

have made it clear to Acosta that it was unreasonable to shoot

Sonny a second time while he stumbled down the hallway

toward Acosta—without any weapon, without making any

threatening gesture, and after being severely wounded by the

26 LAM V. ACOSTA

first shot. Thus, Hopkins put Acosta on notice that firing the

second shot was unlawful.

Because it was clearly established that shooting a non-

threatening suspect would violate the suspect’s constitutional

rights, Acosta failed to meet his burden of showing that he is

entitled to qualified immunity. Our conclusion is further

supported by two other lines of precedent.

First, though Acosta makes much of the fact that Sonny

was armed with scissors immediately prior to the first shot,

our precedent has long made clear that the suspect’s

possession of a weapon at some point in the incident does not

provide an officer with carte blanche to use deadly force.

Take, for example, our decision in Deorle. In Deorle,

plaintiff Deorle began behaving erratically so his wife placed

a 911 call because he had “lost control of himself” and she

was “[i]n search of someone to help her with her distressed

husband.” 272 F.3d at 1276. When police arrived, Deorle

refused to let them in the home without a warrant and exited

the home while hurling verbal abuse at the officers. Id. He

also brandished a hatchet, carried an unloaded crossbow, and

screamed at an officer that he would “kick his ass.” Id.

at 1276–77. One officer ordered Deorle to put down the bow,

and he did so, but then he began walking toward the officer,

who fired a “beanbag round” at Deorle’s face without

warning, seriously injuring him. Id. at 1277–78.

We reversed and remanded the district court’s grant of

summary judgment on qualified immunity grounds for the

officer’s excessive use of force. We explained that, despite

the plaintiff’s having previously armed himself and verbally

threatening the officer, the plaintiff “present[ed] no

objectively reasonable threat” at the time the officer deployed

LAM V. ACOSTA 27

the force, and “[e]very police officer should know that it is

objectively unreasonable to shoot” in such a situation. See id.

at 1285; see also, e.g., George v. Morris, 736 F.3d 829,

838–39 (9th Cir. 2013) (reviewing our caselaw, which has

made clear “that the fact that the ‘suspect was armed with a

deadly weapon’ does not render the officers’ response per se

reasonable under the Fourth Amendment,” and holding that

summary judgment for the officers was inappropriate given

evidence that the suspect was pointing a gun away from the

officers when they shot him) (quoting Glenn, 673 F.3d

at 872)); Robinson v. Solano Cnty., 278 F.3d 1007, 1014 (9th

Cir. 2002) (en banc) (concluding that “[t]he only

circumstance[] in this case favoring the use of force was the

fact that plaintiff had earlier been armed” and that

“[plaintiff’s] earlier use of a weapon, that he clearly no longer

carried, is insufficient to justify the intrusion on [his] personal

security”).

Second, precedent forecloses Acosta’s argument that he

is entitled to qualified immunity because “Sonny had already

stabbed Acosta with scissors” at the time of the second shot.

At the time of the incident, caselaw had made clear that an

officer violates the Fourth Amendment by shooting a person

who had previously injured someone but no longer posed an

immediate threat.

The reasoning from Zion is persuasive. See 874 F.3d

at 1075–76. The shooting in Zion occurred 22 days after the

shooting at issue here, and Zion was decided after the

shooting at issue here. Nonetheless, we may still look to Zion

to help us discern whether Acosta’s use of force violated

clearly established law. When a case involves analogous

conduct that occurred around the same time as the underlying

incident in the matter before us, and the case holds that the

28 LAM V. ACOSTA

conduct at issue there violated clearly established law, then

that case may indicate that the claim for qualified immunity

presently before us should likewise be rejected. See Curnow

ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 &

n.*** (9th Cir. 1991) (applying a later-decided case that

involved an event occurring in the same time period as the

incident in question). Thus, although Zion had not been

decided before this shooting, the events underlying our

decision in Zion occurred in the same timeframe as the events

at issue here, and so it is relevant as to what a reasonable

officer would have known was unlawful at the time Sonny

was shot. See id. at 325.

In Zion, police were called after the decedent “bit his

mother and cut her and his roommate with a kitchen knife.”

874 F.3d at 1075. When an officer responded to the scene,

the decedent “ran at him and stabbed him in the arms.” Id.

Subsequently, another officer shot nine rounds at the

decedent in quick succession, after which the decedent fell to

the ground. Id. The officer then approached the prone

decedent and fired nine more shots at him. Id.

Reversing and remanding the district court’s grant of

summary judgment in favor of the defendants, we held that if

a jury were to find that the decedent “no longer posed an

immediate threat” between the first round of shots and the

second round of shots, id. at 1076, then the officer would

have been “on notice that [firing the second round of shots]

would be clearly unlawful,” id. (quoting Saucier, 533 U.S. at

202). We may look to the same law on which we relied in

Zion to reach the conclusion that an officer violates a clearly

established right when he shoots an incapacitated suspect who

no longer poses a threat, even if the suspect previously had a

weapon and stabbed an officer. See id. at 1075; see also id.

LAM V. ACOSTA 29

at 1076 (“We have cases holding that the use of deadly force

against a non-threatening suspect is unreasonable.” (citing

Garner, 471 U.S. at 11–12; Harris v. Roderick, 126 F.3d

1189, 1201 (9th Cir. 1997))).

Not only is Zion’s analysis of the law persuasive, it is in

accord with the decisions of our sister circuits. See, e.g.,

Estate of Jones by Jones v. City of Martinsburg, 961 F.3d

661, 668–70 (4th Cir. 2020) (officers not entitled to qualified

immunity in 2013 incident where they fatally shot suspect

after he ceased to pose a threat, when he had previously hit

and stabbed an officer); Estate of Smart by Smart v. City of

Wichita, 951 F.3d 1161, 1175 (10th Cir. 2020) (officer not

entitled to qualified immunity in a 2012 incident when he

fatally shot a person whom police suspected had been an

active shooter after suspect no longer posed a threat); Harris

v. Pittman, 927 F.3d 266, 281 (4th Cir. 2019) (qualified

immunity denied as to officer’s second shot in 2012 incident

after the officer had already wounded and disabled the

suspect with the initial shot); Fancher v. Barrientos,

723 F.3d 1191, 1201 (10th Cir. 2013) (officer not entitled to

qualified immunity when he fired fatal shots after suspect was

no longer a danger following the suspect’s initial assault on

the officer); Meyers v. Baltimore Cnty., 713 F.3d 723, 735

(4th Cir. 2013) (qualified immunity denied when officers

continued to tase suspect who had been involved in a family

dispute after he was no longer a threat); Brockington v.

Boykins, 637 F.3d 503, 507 (4th Cir. 2011) (qualified

immunity denied as to subsequent shots fired at a wounded

suspect).

In sum, the district court properly denied the Rule 50(b)

motion on qualified immunity as to Lam’s Fourth

Amendment claim. The law was clearly established at the

30 LAM V. ACOSTA

time of the shooting that an officer could not constitutionally

kill a person who did not pose an immediate threat. The law

was also clearly established at the time of the incident that

firing a second shot at a person who had previously been

aggressive, but posed no threat to the officer at the time of the

second shot, would violate the victim’s rights. The facts as

found by the jury adequately supported the conclusion that a

Fourth Amendment violation had occurred. The district court

was correct in denying qualified immunity as a matter of law.

C

In short, the district court did not err in denying Acosta’s

Rule 50(b) motion challenging the jury’s verdict on Lam’s

Fourth Amendment claim. The district court properly

concluded that sufficient evidence supported the jury’s

conclusion that Acosta’s use of deadly force was

unreasonable, and the district court properly held that, given

the jury findings, Acosta was not entitled to qualified

immunity.

IV

The district court erred in denying Acosta’s Rule 50(b)

motion on Lam’s Fourteenth Amendment due process claim

because there was insufficient evidence in the record to

support a constitutional violation.

As a parent, Lam had “a Fourteenth Amendment liberty

interest in the companionship and society of [Sonny].”

Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).

Therefore, the question is whether substantial evidence

supports the jury’s verdict that Acosta’s conduct in shooting

Sonny and depriving Lam of his Fourteenth Amendment

LAM V. ACOSTA 31

interest “shocks the conscience.” Id. This standard differs

from a Fourth Amendment inquiry. Thus, there may be a

Fourth Amendment violation because of an unreasonable use

of force, but the circumstances may not rise to the level of a

Fourteenth Amendment “shock the conscience” violation.

Zion, 874 F.3d at 1077.

Our inquiry begins by asking “whether the circumstances

are such that actual deliberation” by Acosta before his use of

force was “practical.” Wilkinson, 610 F.3d at 554 (quoting

Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). If

actual deliberation was not practical, we cannot conclude that

Acosta violated the Fourteenth Amendment unless substantial

evidence indicates that he acted “with a purpose to harm

unrelated to legitimate law enforcement objectives.” Id.

(emphasis added).

Here, precedent compels us to conclude that actual

deliberation sufficient for Acosta to develop a purpose to

harm unrelated to a legitimate law enforcement objective was

not practical before Acosta shot Sonny the second time. See,

e.g., S.R. Nehad v. Browder, 929 F.3d 1125, 1139 (9th Cir.

2019) (applying the purpose to harm standard where there

was “some evidence that a suspect posed no danger” but

where there was “no evidence that [the officer] fired on [the

suspect] for any other purpose than self-defense,

notwithstanding the evidence that the use of force was

unreasonable”); Zion, 874 F.3d at 1077 (applying the purpose

to harm standard when “the two volleys [of shots] came in

rapid succession”); Wilkinson, 610 F.3d at 554 (explaining

that the purpose to harm standard applies where a situation

evolves quickly and forces an officer to respond quickly).

Even where an officer has the time to “consider what he was

doing before he acted,” Porter, 546 F.3d at 1139—as Acosta

32 LAM V. ACOSTA

did here—we must apply the heightened purpose to harm

standard because “‘deliberation’ for purposes of the shocks

the conscience test is not so literal a concept,” id.

“The purpose to harm standard is a subjective standard of

culpability” and an officer “violates the due process clause if

he used force with only an illegitimate purpose in mind.”

A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir.

2013) (citing Porter, 546 F.3d at 1140). An officer acts with

a legitimate purpose when he acts with the objectives of

arrest, self-defense, or the protection of the public in mind,

see id. at 454, while he acts with an illegitimate purpose if he

acts with the objectives to “bully a suspect or get even,”

Wilkinson, 610 F.3d at 554 (internal quotation marks and

citation omitted).

There are insufficient facts in the record to show that

Acosta acted with a purpose to harm unrelated to a legitimate

law enforcement objective.7 The jury found that Sonny had

stabbed Acosta with scissors prior to the first shot, so Acosta

acted with the legitimate purpose of self-defense in firing the

first shot. On the second shot, Acosta told Lam that Sonny

7

Though the evidence does not show that Acosta acted with a

purpose to harm unrelated to a legitimate law enforcement objective, that

does not mean that his use of force was objectively reasonable. The

“purpose to harm” inquiry is independent of the reasonableness inquiry,

and our conclusion on this issue does not foreclose our conclusion above.

See, e.g., S.R. Nehad, 929 F.3d at 1139 (“Although objective

reasonableness is one means of assessing whether conduct meets the

shocks the conscience standard, an unreasonable use of force does not

necessarily constitute a Fourteenth Amendment substantive due process

violation.”) (internal quotation marks, alteration, and citation omitted);

Zion, 874 F.3d at 1077 (“Whether excessive or not, the shootings served

the legitimate purpose of stopping a dangerous suspect.”).

LAM V. ACOSTA 33

“had a knife” and yelled for Lam to get back, evidencing that

he still perceived Sonny as a threat. Although there was a

short time interval between the shootings, there was no

evidence that Acosta acted with the sort of malicious or

vengeful intent required to satisfy the heightened purpose to

harm standard. See Porter, 546 F.3d at 1141; see also Zion,

874 F.3d at 1075–77 (holding that there was no Fourteenth

Amendment violation when an officer fired a second round

of shots at an individual who had already been shot “nine

times at relatively close range,” had already “dropped to the

ground,” and was “making no threatening gestures”).

Because the record is devoid of this evidence and the jury

found only that Acosta acted “with a purpose to harm,” and

not a purpose to harm unrelated to a legitimate law

enforcement objective, Lam failed to show that Acosta

committed a Fourteenth Amendment violation. Therefore,

we reverse the jury’s verdict for Lam on the Fourteenth

Amendment claim and remand to the district court for further

proceedings.8

8

It is not clear that reversal on the Fourteenth Amendment claim

requires reducing the jury’s award of damages. “Sometimes, a jury’s

verdict may stand on a legally viable theory even if a legally defective

theory also was presented.” Webb v. Sloan, 330 F.3d 1158, 1166 (9th Cir.

2003). The jury here awarded Lam $2,000,000 in “damages for [the] past

and future loss of Decedent Sonny Lam’s love, companionship, comfort,

care, assistance, protection, affection, society, and moral support.” And

separately from Lam’s Fourteenth Amendment claim, his state law

negligence claim alleged that he had “sustained pecuniary loss resulting

from the loss of comfort, society, attention, services, and support of his

son.” We leave it to the district court to determine on remand whether the

$2,000,000 portion of the jury award can remain in full in light of Lam’s

state law negligence claim.

34 LAM V. ACOSTA

V

Finally, Acosta challenges the district court’s admission

of evidence that he had experienced PTSD. Specifically,

Acosta argues that his PTSD diagnosis was irrelevant because

it was more than two years old at the time of the incident and

that any probative value of the diagnosis was substantially

outweighed by its potential to unfairly prejudice the jury.

Acosta also argues that the expert testimony regarding his

diagnosis amounted to improper character evidence.

As a general rule, we review the district court’s

evidentiary decisions under the deferential abuse of discretion

standard, and we will not reverse “unless the ruling is

manifestly erroneous.” Gen. Elec. Co. v. Joiner, 522 U.S.

136, 141–42 (1997) (quoting Spring Co. v. Edgar, 99 U.S.

645, 658 (1879)). Here, in addition to our general deference

to the trial court’s evidentiary decisions, Acosta faces a much

higher hurdle because he failed to preserve his objection to

the evidence for appeal. He raised the matter in a pre-trial

motion in limine, which the district court denied without

prejudice to renewal at trial. However, Acosta did not renew

his objection to the PTSD evidence at trial. Additionally,

though Acosta objected to the expert testimony at trial, his

primary objection was that the requirements for admitting

expert testimony under Daubert were not satisfied, and he did

not raise the improper character evidence objection he now

attempts to raise on appeal.

A party may preserve an objection for appeal by raising

the objection solely in a motion in limine “where the

substance of the objection has been thoroughly explored

during the hearing on the motion in limine, and the trial

court’s ruling permitting introduction of evidence was

LAM V. ACOSTA 35

explicit and definitive.” Palmerin v. City of Riverside,

794 F.2d 1409, 1413 (9th Cir. 1986). If, however, there is an

indication that the objection “might be subject to

reconsideration,” or if the disputed evidence is introduced in

an unforeseen way at trial that casts doubt on the applicability

of the court’s in limine ruling, then we do not treat the district

court’s in limine ruling as definitive, and the party must

renew the objection to preserve it for appeal. See id.; see also

Jerden v. Amstutz, 430 F.3d 1231, 1236 (9th Cir. 2005) (“The

requirement of timely and specific objections ‘serves to

ensure that the “nature of the error [is] called to the attention

of the judge, so as to alert him [or her] to the proper course of

action and enable opposing counsel to take corrective

measures.”’” (quoting United States v. Gomez-Norena,

908 F.2d 497, 500 (9th Cir. 1990) (quoting Advisory

Committee’s Note to Rule 103(a), 56 F.R.D. 183, 195 (1972))

(first alteration in original))).

Acosta concedes he did not object to the PTSD evidence

at trial, which he needed to do in order to preserve the

objection given the district court’s language that it denied the

motion in limine “without prejudice” because there were “a

lot of things that are involved in PTSD that may or may not

be relevant.” The district court’s explanation and denial

without prejudice put Acosta on notice that the ruling was

“subject to reconsideration,” so the ruling was not definitive.

See Palmerin, 794 F.2d at 1413.

Acosta was presented with numerous opportunities to

object. References to the PTSD diagnosis were made in voir

dire, the opening statement, the testimony of VA Nurse

Practitioner Mary Jimenez, the testimony of expert clinical

psychologist Dr. Kris Mohandie, the testimony of treating VA

Clinical Psychologist Dr. Joseph Shuman, and in Acosta’s

36 LAM V. ACOSTA

own testimony. Far from objecting, Acosta’s attorney made

multiple references to the PTSD evidence during his opening

and closing statements and conducted vigorous cross-

examination about it. He also did not object to Lam’s

counsel’s closing argument discussing the issue, nor does he

claim on appeal that the argument was unfair or constituted

misconduct.9

“By failing to object to evidence at trial and request a

ruling on such an objection, a party waives the right to raise

admissibility issues on appeal.” Marbled Murrelet v. Babbitt,

83 F.3d 1060, 1066 (9th Cir. 1996). Thus, because Acosta

did not properly renew his objection to the admission of the

PTSD evidence at trial, he has waived his right to appeal the

district court’s evidentiary rulings.

Nonetheless, we may review the evidentiary rulings for

plain error. See Gomez-Norena, 908 F.2d at 500; Fed. R.

Evid. 103(e). Plain error requires an error that is plain or

obvious and that it is so prejudicial that it affects the party’s

substantial rights such that review is necessary to prevent a

miscarriage of justice. Draper v. Rosario, 836 F.3d 1072,

1085 (9th Cir. 2016). An error creates a miscarriage of

justice if it “seriously impaired the fairness, integrity, or

public reputation of judicial proceedings.” C.B. v. City of

9

We are not persuaded by Acosta’s argument that any objection at

trial to the PTSD evidence would have been futile because the PTSD

evidence was “the very first piece of evidence presented to the jury” and

so there were no new “facts” that could have caused the district court to

reconsider its in limine ruling. This argument misunderstands the district

court’s language in ruling on the motion in limine; if anything, the district

court’s language suggested that in the absence of additional facts, it was

inclined to exclude the evidence, as Acosta had urged it to do, had he

made a contemporaneous objection at trial.

LAM V. ACOSTA 37

Sonora, 769 F.3d 1005, 1019 (9th Cir. 2014) (en banc)

(quoting Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st

Cir. 2006)). Plain error is not only a high standard to meet in

non-evidentiary challenges, but poses an even higher burden

in evidentiary appeals. As a result, “[a]ppellate decisions

reversing a judgment in a civil case for plain error in applying

Rules of Evidence are very rare.” 1 C. Mueller & L.

Kirkpatrick, Federal Evidence § 1:22 (4th ed. 2013).

Under Federal Rules of Evidence 401 and 402, relevant

admissible evidence includes evidence having “any tendency

to make a fact more or less probable” so long as “the fact is

of consequence in determining the action.” In this case, one

of the key questions for the jury to decide was what weight to

afford Acosta’s testimony regarding what happened—making

relevant whether Acosta testified credibly about the events

that unfolded, and whether his recollection could be

challenged. “[W]here what the officer perceived just prior to

the use of force is in dispute, evidence that may support one

version of events over another is relevant and admissible.”

Boyd v. City & County of San Francisco, 576 F.3d 938, 944

(9th Cir. 2009) (citing Graham, 490 U.S. at 399 n.12

(factfinder may consider outside evidence “in assessing the

credibility of an officer’s account of the circumstances that

prompted the use of force”)); see also United States v.

Kohring, 637 F.3d 895, 910–11 (9th Cir. 2011) (explaining

that “[e]vidence of a witness’s psychological history” may be

admissible on the issue of credibility if the witness’s

condition “may have affected her ability to perceive or to

recall events or to testify accurately” (quoting United States

v. Sasso, 59 F.3d 341, 347–48 (2d Cir. 1995))).

In this case, much of the PTSD evidence could reasonably

be considered relevant to ascertaining Acosta’s credibility as

38 LAM V. ACOSTA

the evidence went to his ability to accurately perceive and

recall the incident in question. For instance, Jimenez testified

that Acosta suffered from “forgetfulness.” Similarly, treating

psychologist Dr. Shuman testified that Acosta had not

completed his course of treatment. Dr. Shuman further

testified that, based on Acosta’s own self reporting, Acosta’s

PTSD diagnosis meant that certain situations could be

triggers for a PTSD episode, and listed clearing houses and

drawing weapons as such situations. He testified that if such

triggering events occurred, Acosta could experience “intense

psychological distress” and “hypervigilance.” Dr. Mohandie

testified that when trigger situations arose, a person with

PTSD could experience “overreaction, oversensitivity,

impulsive reactions instead of being able to flexibly assess

and decide what to do in a situation.” Dr. Mohandie also

testified that for individuals with prolonged PTSD, symptoms

are likely to continue without treatment. To the extent this

testimony indicated that Acosta’s PTSD may have caused

him to misperceive reality and consequently overreact to

certain situations, it was probative of his credibility.

These descriptions of Acosta’s self-reports were relevant

as they bore directly on his credibility, which was properly

before the jury. In rejecting Acosta’s argument that the

evidence of his PTSD diagnosis was irrelevant because he

had been diagnosed two years before the incident in question

and “there [was] no evidence that Acosta suffered from

PTSD” at the time he shot Sonny, we join our sister circuits

who have deemed admissible evidence of a witness’s

psychological condition even when there was an interval of

several years between the contested diagnostic evidence and

the events to which the witness testified. See, e.g., United

States v. Love, 329 F.3d 981, 985 (8th Cir. 2003) (holding

that a diagnosis of impaired memory five years earlier was

LAM V. ACOSTA 39

not too remote to be admissible); United States v. Smith,

77 F.3d 511, 516–17 (D.C. Cir. 1996) (indicating that

evidence of severe depression about two years earlier could

be admissible).

Thus, it was not “obvious” or “plain” error for the district

court to admit the evidence. See Draper, 836 F.3d at 1085.

Because the admission of the evidence was not obviously

erroneous, the fact that Acosta’s PTSD diagnosis was more

than two years old went to the weight of the evidence rather

than to its admissibility. In addition, the PTSD evidence was

contested by Acosta and others, and Acosta’s attorney

conducted significant cross-examination on those issues. The

issue was fully and fairly aired before the jury. There was no

“manifest error” in admitting the evidence.10

And, even assuming, arguendo, that the PTSD evidence

was admitted in error, the admission did not constitute a

“miscarriage of justice,” such that plain error reversal is

warranted. The admission of relevant evidence, on its face,

did not “impair[] the fairness, integrity, or public reputation

of judicial proceedings.” C.B., 769 F.3d at 1019. In the

context of the trial, the critical issues were the ones resolved

by the jury in its verdict. As the jury was properly instructed,

under applicable federal and state law, a police officer may

not fatally shoot an unarmed, nonthreatening suspect who

was not attempting to flee. Here, from the cumulative

evidence, the jury concluded that Acosta retreated from

Sonny after firing the first shot, and that Sonny did not

10

We are also unpersuaded that our decision will discourage officers

from seeking mental health treatment. The district court informed Acosta

that it was likely to reconsider its ruling in limine regarding the PTSD

evidence if Acosta objected at trial, and he failed to do so.

40 LAM V. ACOSTA

approach Acosta with scissors before the officer fired the

fatal shot. Those conclusions were amply supported by

evidence in the record that had no relation to the PTSD

diagnosis. Admission of the evidence therefore did not

constitute a miscarriage of justice seriously impairing the

fairness, integrity, or public reputation of the judicial

proceeding. See C.B., 769 F.3d at 1019.

VI

In sum, this case is largely controlled by our deferential

standards of review. There was sufficient evidence to support

the jury verdict. In light of the jury verdict, the district court

did not err in denying Acosta qualified immunity on Lam’s

Fourth Amendment claim. The district court did not commit

plain error in its evidentiary rulings. And Acosta did not

appeal the merits of the jury’s decisions on the state law

negligence claims. We affirm the judgment of the district

court on these claims.

However, we conclude that there is insufficient evidence

to support the jury’s verdict in favor of Lam on his

Fourteenth Amendment claim for loss of a familial

relationship with Sonny. We therefore reverse the district

court’s denial of Acosta’s Rule 50(b) motion on that claim

and remand to the district court for further proceedings. Lam

is awarded costs on appeal.

AFFIRMED in Part, REVERSED in Part;

REMANDED.

LAM V. ACOSTA 41

BENNETT, Circuit Judge, dissenting:

I respectfully dissent for two reasons. First, Officer Jairo

Acosta is entitled to qualified immunity on Plaintiff-Appellee

Tan Lam’s Fourth Amendment claim because Lam identifies

no clearly established law that would have put Officer Acosta

on notice that his actions violated the Fourth Amendment.

Second, given the complete lack of evidence showing that

Officer Acosta suffered from post-traumatic stress disorder

(“PTSD”) at the time of the 2013 incident in question, the

district court plainly erred in allowing Lam to admit evidence

of Officer Acosta’s 2011 PTSD diagnosis.1

I. Relevant Background

A. The Incident2

On September 2, 2013, Lam asked his neighbor to call the

police because his son, Sonny Lam (“Sonny”), had tried to

slap him. Officer Acosta responded to the call and arrived at

Lam’s home. Lam told Officer Acosta that Sonny had “lost

his mind.” Lam then escorted Officer Acosta into his home,

and they went into Sonny’s bedroom. Sonny was sitting on

a chair. Officer Acosta grabbed Sonny’s shoulder and tried

to pull him out of the room. Sonny, still sitting in the chair,

said, “no, no,” and made punching motions in the air.

According to Lam, Officer Acosta responded by saying to

1

Although I believe that a new trial is warranted as to all claims, I

agree with the majority’s reversal of Lam’s Fourteenth Amendment claim.

2

I recite the relevant facts, giving deference to the jury’s findings and

drawing all reasonable inferences in Lam’s favor. See A.D. v. Cal.

Highway Patrol, 712 F.3d 446, 459 (9th Cir. 2013).

42 LAM V. ACOSTA

Sonny, “beat me, beat me.” Sonny then stood up and pushed

Officer Acosta out of the bedroom. Officer Acosta and

Sonny got into a struggle outside the bedroom door, and Lam

moved away from them, about ten feet down the hallway.

Sonny had nothing in his hands during this struggle with

Officer Acosta.

Sonny then grabbed a pair of scissors and stabbed Officer

Acosta on his forearm near his wrist, and Officer Acosta shot

Sonny in the leg. Officer Acosta retreated from Sonny in the

confined hallway, and Lam ran toward Officer Acosta after

the shot to find out what had happened. Officer Acosta told

Lam that Sonny “had a knife,” he “yelled, go back, go back,”

and he cleared his handgun because it had become jammed.

In the meantime, Sonny continued to advance toward Officer

Acosta, although with no scissors. Right after Lam stepped

back as instructed by Officer Acosta, he heard Officer Acosta

fire a second shot. That shot hit Sonny in the chest in a

downward angle, and Sonny fell to the ground.3 Sonny was

taken to the hospital and died during surgery.

3

Even drawing all reasonable inferences in Lam’s favor, the evidence

shows that Sonny continued to advance toward Officer Acosta after the

first shot. The bullet hole from the first shot that went through Sonny’s

leg was found in Sonny’s bedroom floor, confirming that Sonny was in or

near his bedroom at the time of the first shot. Lam testified that Sonny

was lying on the ground in front of Lam’s bedroom after the second shot.

Since the two bedrooms were about ten feet apart according to a diagram

of the home introduced into evidence, Sonny moved about ten feet down

the hallway toward Officer Acosta before the second shot. While the jury

made the special finding that Sonny did not approach Officer Acosta with

scissors before Officer Acosta fired his gun the second time, the jury never

found that Sonny did not approach Officer Acosta after the first shot; it

only found that Sonny did not approach him with scissors.

LAM V. ACOSTA 43

B. The PTSD Evidence

Officer Acosta is an Iraq war veteran and was discharged

from the Army in 2006. Before trial, Officer Acosta moved

in limine to exclude as irrelevant and unduly prejudicial

evidence that he had been diagnosed with PTSD in 2011,

more than two years before the shooting. He emphasized that

Lam failed to show that the evidence was relevant, as Lam

presented no evidence that he suffered from PTSD at the time

of the shooting. Lam argued that the evidence was relevant

because it showed that Officer Acosta acted unreasonably

during the incident, and it was relevant to Officer Acosta’s

credibility because he had not disclosed his PTSD diagnosis

to his employer. Lam, however, pointed to no evidence

showing that Officer Acosta suffered from PTSD during the

incident. The district court denied the motion to exclude the

PTSD diagnosis “without prejudice,” noting that “there [are]

a lot of things that are involved in PTSD that may or may not

be relevant as we move through.”4

At trial, Lam’s central theory was that Officer Acosta

acted unreasonably because of his PTSD. Indeed, Lam’s

counsel began his opening statement by highlighting that

Officer Acosta’s PTSD caused him to act irrationally: “You

will hear testimony through the course of this trial that prior

to the shooting, defendant, Police Officer Acosta, was

4

I disagree with the majority’s contention that this statement

“suggested that in the absence of additional facts, [the court] was inclined

to exclude the evidence . . . had [Officer Acosta] made a contemporaneous

objection at trial.” Maj. Op. at 36 n.9. Indeed, the fact that the court

allowed Lam during his opening statement to refer to Officer Acosta’s

PTSD (before any additional facts had been admitted) reveals the

opposite—that the court was inclined to admit the PTSD evidence without

any additional facts.

44 LAM V. ACOSTA

diagnosed with a mental health issue, a condition which

interfered with his ability to do his job. . . . The result of [his

PTSD] was that he ignored his training and shot my client’s

mentally ill son in their own home.”

Lam introduced, without further objection by Officer

Acosta, substantial evidence related to Officer Acosta’s

PTSD diagnosis. Portions of the deposition testimony of two

Veterans Affairs (“VA”) healthcare providers were read to

the jury. The jury learned the following through this

evidence.

Mary Jimenez, VA nurse practitioner, examined Officer

Acosta in February 2011. At that time, Officer Acosta self-

reported various symptoms he had been experiencing,

including sensitivity to noise, forgetfulness, feeling anxious

or tense, being easily annoyed and angered, and feeling easily

overwhelmed. He also reported that his symptoms had

interfered with his work in the prior 30 days. Nurse Jimenez,

in consultation with a physiatrist, concluded that Officer

Acosta suffered from PTSD.

VA Dr. Joseph Shuman, a clinical psychologist, examined

Officer Acosta in June 2011. Dr. Shuman diagnosed Officer

Acosta with “prolonged PTSD,” meaning the symptoms of

PTSD had lasted longer than three months. Dr. Shuman’s

notes revealed that Officer Acosta’s “triggers” included

“clearing houses [and] drawing his weapon.” And that these

“triggers” can cause him to “re-experience[] the trauma” and

are “intensely distressing psychologically.” Dr. Shuman

testified that Officer Acosta reported “irritability, outbursts of

anger which he thinks stems from being repeatedly exposed

to potential danger from IEDs in Iraq,” and his notes

described Officer Acosta as hypervigilant, meaning he “has

LAM V. ACOSTA 45

a tendency to scan his . . . environment for threats and to be

more on guard against a potential threat than a person might

ordinarily be.” Dr. Shuman met with Officer Acosta once.

Lam also called an expert clinical psychologist, Dr. Kris

Mohandie, who provided testimony related to Officer

Acosta’s PTSD diagnosis based on his review of Officer

Acosta’s medical records, disciplinary records, and other

materials. Dr. Mohandie never examined Officer Acosta.

Dr. Mohandie testified that a prolonged PTSD diagnosis

means that the “symptoms are likely to continue” without

treatment, but he never opined on whether Officer Acosta

suffered from PTSD at the time of the incident. He also

testified that an officer who is experiencing symptoms like

the symptoms that Officer Acosta reported in 2011 would

have a duty to disclose those symptoms to his employer.

Lam presented no evidence at trial showing that Officer

Acosta suffered from PTSD or experienced any PTSD-related

symptoms at (or even around) the time of the incident.

Despite the complete lack of evidence, Lam argued

extensively during closing that Officer Acosta was suffering

from PTSD on the day of the incident and that it caused him

to overreact to the situation: “Officer Acosta knew it was

dangerous to go about performing his duties as a police

officer when he was carrying these demons; demons which he

brought with him back from the time that he served our

country in Iraq”; Officer Acosta’s “judgment may be clouded

because of the horrors that he experienced at war”; Officer

Acosta’s PTSD symptoms “are all characteristics and

feelings, demons, . . . that were inside of him that he was

taking with him every day to work”; Officer Acosta reported

“outbursts of anger” and “he brought those feelings with him

46 LAM V. ACOSTA

into the Lam family household”; and “Officer Acosta showed

up that day with his demons with him.”

II. Analysis

A. Officer Acosta is Entitled to Qualified Immunity

An officer is entitled to qualified immunity if his conduct

did not violate clearly established law. See Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011). “[C]onduct violates clearly

established law when, at the time of the challenged conduct,

‘the contours of a right are sufficiently clear’ that every

‘reasonable official would have understood that what he is

doing violates that right.’” Id. at 741 (internal alterations

omitted and emphasis added) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “[T]he clearly

established right must be defined with specificity” and not “at

a high level of generality.” City of Escondido v. Emmons,

139 S. Ct. 500, 503 (2019) (per curiam). Indeed, the Supreme

Court has repeatedly reminded our court of the requirement

to define clearly established law with specificity. See, e.g.,

id. at 503 (“Under our precedents, the [Ninth Circuit’s]

formulation of the clearly established right was far too

general.”); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(per curiam) (“This Court has repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly established

law at a high level of generality.” (quotation marks omitted)

(quoting City and Cnty. of San Francisco v. Sheehan, 135 S.

Ct. 1765, 1775–76 (2015))).

“Specificity is especially important in the Fourth

Amendment context, where the Court has recognized that it

is sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply to the

LAM V. ACOSTA 47

factual situation the officer confronts.” Kisela, 138 S. Ct.

at 1152 (alterations omitted) (quoting Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (per curiam)). And the plaintiff

bears the burden of identifying “sufficiently specific

constitutional precedents to alert [an officer] that his

particular conduct was unlawful.” Shafer v. Cnty. of Santa

Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). This means

that Lam must “identify a case where an officer acting under

similar circumstances as Officer [Acosta] was held to have

violated the Fourth Amendment.” White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam).

Lam fails to meet this burden, as he does not identify a

single case in which an officer acting under similar

circumstances as Officer Acosta was found to have violated

the Fourth Amendment. And under the Supreme Court’s

teachings, similar circumstances means similar to what

happened here—a one-on-one confrontation, in a confined

space, in which a suspect used a deadly weapon to wound a

police officer, was not disabled by a first shot, and the deadly

shot was fired very shortly after the first.

Lam first argues that Officer Acosta violated clearly

established law because Tennessee v. Garner, 471 U.S. 1

(1985), established “that the use of deadly force against a

non-threatening unarmed suspect is unreasonable.” But the

Supreme Court has already explained that Garner “lay[s] out

excessive-force principles at only a general level” and

therefore, Garner “do[es] not by [itself] create clearly

established law outside ‘an obvious case.’” White, 137 S. Ct.

at 552 (quoting Brosseau v. Haugen, 543 U.S. 194, 199

(2004)). Because Lam does not argue that this is an obvious

case, his reliance on Garner is misplaced.

48 LAM V. ACOSTA

Even if Lam had argued that this is an obvious case, the

argument would have been unavailing given the

circumstances. The events unfolded and escalated quickly.

Consistent with Lam’s warning that Sonny had “lost his

mind,” Sonny acted erratically by punching into the air and

pushing Officer Acosta out of the room. Sonny then grabbed

a deadly weapon and, using deadly force, stabbed Officer

Acosta. He could have killed Officer Acosta. Officer Acosta

retreated, but he was in a very tense situation. He had just

been attacked with deadly force, he was in a confined hallway

(and was presumably unfamiliar with the home’s layout), his

handgun had jammed, and Sonny continued to move toward

him, although with no scissors. In that moment, Officer

Acosta had to make an immediate judgment call—stop Sonny

or wait and see what he would do next, which could again

include a felonious assault with a deadly weapon.5 Officer

Acosta decided to fire a second shot. These facts differ

significantly from the facts in cases in which this court has

found obvious constitutional violations. See, e.g., Harris v.

Roderick, 126 F.3d 1189, 1203–04 (9th Cir. 1997) (sniper

safely hidden on a hill shot a retreating suspect who had not

threatened the officers in any way).

The remaining cases Lam relies on are equally unhelpful.

Two cases, Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir.

2017), and Hayes v. County of San Diego, 736 F.3d 1223 (9th

Cir. 2013), were decided after the events here occurred, so

they could not have given Officer Acosta notice that his

5

See Cal. Penal Code § 245(a)(1), (c). The fact that Sonny moved

without scissors does not mean that an officer under these circumstances

would have known for certain that Sonny did not have ready access to the

scissors or some other weapon (even viewing the evidence in the light

most favorable to Lam).

LAM V. ACOSTA 49

actions would violate clearly established law. See Kisela,

138 S. Ct. at 1154 (“[A] reasonable officer is not required to

foresee judicial decisions that do not yet exist in instances

where the requirements of the Fourth Amendment are far

from obvious.”). Moreover, these cases, as well as the rest of

the cases Lam cites, are all materially different on the facts.

See Lopez, 871 F.3d at 1010–13 (evidence supporting that the

suspect did not threaten officers when he was carrying a

weapon that looked like an AK-47, pointed down at the

ground, had displayed no aggressive behavior, and turned

around after an officer shouted “drop the gun”); Hayes,

736 F.3d at 1235 (evidence supporting that the suspect was

complying with an officer’s orders “when he raised the knife

and posed no clear threat at the time he was shot without

warning”); Glenn v. Washington Cnty., 673 F.3d 864, 867–69

(9th Cir. 2011) (three responding officers confronted the

suspect outside his home and the suspect had not threatened

anyone with the knife or brandished it before the officers

fired); Ellis v. Wynalda, 999 F.2d 243, 245 (7th Cir. 1993)

(officer confronted a suspect, the suspect tossed a jacket and

mesh bag toward the officer and ran away, and the officer

shot the suspect in the back); Curnow v. Ridgecrest Police,

952 F.2d 321, 323, 325 (9th Cir. 1991) (evidence supporting

that the suspect did not reach for a gun before being shot, did

not point the gun at the officers before being shot, and was

not facing them when he was shot). None of these cases

involved a suspect who had attacked and injured an officer

with a deadly weapon moments before the officer used deadly

force.6

6

Lam also cites Zion v. County of Orange, 874 F.3d 1072 (9th Cir.

2017). But this case is of no use in showing that Officer Acosta’s conduct

violated clearly established law because it was decided after the events

here occurred. See Kisela, 138 S. Ct. at 1154. The majority relies on

50 LAM V. ACOSTA

The majority discusses two other cases, only one of which

Lam cites, to support its position that the law was clearly

established, Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992),

and Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001).

But, like all of the other cases that Lam points to, these cases

are materially different on the facts.

In Hopkins, the suspect attacked the officer in a parking

lot, and the officer responded by firing several shots.

958 F.2d at 883, 886. The officer retreated by “cross[ing] a

major thoroughfare, reach[ing] a gas station and put[ting] a

car between himself and his assailant.” Id. at 887. The

unarmed suspect continued to follow the officer, and the

officer fired several more shots at close range. Id. at 883,

887. Significantly, the “second use of force occurred several

minutes” after the first shooting. Id. at 886.

In Deorle, at least thirteen officers responded to a 911

call, surrounded Deorle’s home, and were waiting for

negotiators to arrive at the scene. 272 F.3d at 1276. One

officer, who had been at the scene for forty minutes, “simply

fired at Deorle when he arrived at a spot [the officer] had

predetermined.” Id. at 1275, 1281–82. Before the shooting,

Deorle had been “emotionally disturbed” but he “was

unarmed, had not attacked or even touched anyone, had

Zion, reasoning that two cases cited in Zion show that the law was clearly

established at the time of the incident here. Maj. Op. at 28–29. The two

cases cited in Zion are Garner, 471 U.S. 1, and Harris, 126 F.3d 1189. As

discussed above, however, Garner “do[es] not by [itself] create clearly

established law outside ‘an obvious case,’” White, 137 S. Ct. at 552

(quoting Brosseau, 543 U.S. at 199), and Lam does not argue that this is

an obvious case. And the facts in Harris are not at all similar to this case,

and so Harris did not clearly establish that Officer Acosta’s actions were

unlawful. See Harris, 126 F.3d at 1203.

LAM V. ACOSTA 51

generally obeyed the instructions given him by various police

officers, and had not committed any serious offense.” Id. at

1275.

The differences between Hopkins and Deorle and this

case “leap from the page.” Kisela, 138 S. Ct. at 1154

(quoting Sheehan, 135 S. Ct. at 1776). Neither case involved

a solo officer in a confined space who, after having just been

stabbed with a deadly weapon, had to make a quick judgment

call on whether he should risk his life by waiting and seeing

what would happen next or use deadly force.7

In sum, Lam identifies no clearly established law showing

that every reasonable officer in Officer Acosta’s position

would have known that it was a Fourth Amendment violation

to fire the second shot. Officer Acosta is therefore entitled to

qualified immunity on the Fourth Amendment claim.

B. The District Court Plainly Erred in Admitting the

PTSD Evidence

The admission of the PTSD evidence is subject to plain

error review because Officer Acosta failed to object below.8

7

The majority cites several out-of-circuit cases to support its

conclusion that Officer Acosta’s actions violated clearly established law.

Maj. Op. at 29. But clearly established law in our circuit “must be

‘controlling’—from the Ninth Circuit or Supreme Court—or otherwise be

embraced by a ‘consensus’ of courts outside the relevant jurisdiction.”

8

I am sympathetic to Officer Acosta’s contention that his motion in

limine preserved his objections, as the district court necessarily rejected

his primary contention—that absent evidence he was suffering from PTSD

at the time of the shooting, nothing about PTSD could come into evidence.

And, of course, Lam started down the PTSD road in his opening statement

52 LAM V. ACOSTA

“In the civil context, ‘[p]lain error review requires: (1) an

error, (2) the error is plain or obvious, (3) the error was

prejudicial or [a]ffects substantial rights, and (4) review is

necessary to prevent a miscarriage of justice.’” Draper v.

Rosario, 836 F.3d 1072, 1085 (9th Cir. 2016) (alterations in

original) (quoting Hemmings v. Tidyman’s Inc., 285 F.3d

1174, 1193 (9th Cir. 2002)).

The district court erred in admitting the PTSD evidence.

Officer Acosta’s 2011 self-reported symptoms and PTSD

diagnosis alone were irrelevant to his ability to perceive and

react reasonably more than two years later. See Fed. R. Evid.

401 (“Evidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining

the action.”). Put another way, with no evidence that he

suffered from the same or similar symptoms in or around

September 2013, his two-year-old diagnosis fails to show that

it is more or less probable that he had trouble perceiving or

reacting reasonably to events at the time of the incident.9

and introduced his PTSD evidence with no showing that Officer Acosta

was suffering from PTSD at the time of the shooting. Nonetheless, the

district court denied the motion “without prejudice” (though without a

reasoned explanation for the denial), and so Officer Acosta needed to

object at trial to avoid plain error review.

9

The majority appears to conclude that the PTSD evidence was

relevant to Officer Acosta’s ability to accurately perceive and recall the

incident. Maj. Op. at 37–38. But this wrongly assumes that Officer

Acosta suffered from PTSD at the time of the incident. There was no

evidence that Officer Acosta suffered from PTSD at the time of the

incident.

LAM V. ACOSTA 53

Lam contends that Officer Acosta’s failure to report his

diagnosis to his employer in 2011 bears on his credibility.

But even if the PTSD evidence were slightly relevant to

Officer Acosta’s credibility, it would be improper to admit

the evidence if there were “even a modest likelihood of unfair

prejudice or a small risk of misleading the jury.” United

States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). Here, there

was substantially more than a “modest likelihood of unfair

prejudice” or “a small risk of misleading the jury.” Id.

Indeed, the record shows that Lam did not merely use the

PTSD evidence to implicate Officer Acosta’s credibility.

Rather, Lam used the evidence to improperly urge the jury to

find that Officer Acosta acted unreasonably at the time of the

incident because he was then suffering from PTSD: “Officer

Acosta showed up that day with his demons with him,” and

“Officer Acosta knew it was dangerous to go about

performing his duties as a police officer when he was

carrying these demons; demons which he brought with him

back from the time that he served our country in Iraq.”

The error was plain. Before trial, Officer Acosta’s motion

in limine notified the district court that the PTSD evidence

was irrelevant because Lam had produced no evidence that

Officer Acosta suffered from PTSD at the time of the

incident. Though the district court denied the motion, it

questioned the relevancy of the evidence. Lam then

presented no evidence during trial showing that Officer

Acosta suffered from PTSD at the time of the incident. Even

so, Lam repeatedly told the jury that Officer Acosta suffered

from PTSD on the day of the incident and that his PTSD had

caused him to act unreasonably. Thus the record reveals that

Officer Acosta put the court on clear notice that the evidence

was irrelevant, the court expressed uncertainty about its

relevancy, Lam admitted no evidence showing that Officer

54 LAM V. ACOSTA

Acosta suffered from PTSD at the time of the incident, and

Lam clearly used the evidence for that improper purpose.

These circumstances show that the error was obvious.10

The third plain error factor is satisfied because Officer

Acosta was prejudiced, as there is a “reasonable probability

that the error affected the outcome of the trial.” United States

v. Marcus, 560 U.S. 258, 262 (2010). First, the district court

acknowledged that this was a close case: “[T]he evidence

seems to be pointing – to go one way or the other, but that’s

up to the seven jurors . . . .” Second, the PTSD evidence as

presented by Lam was (improperly) compelling, as according

to Lam’s counsel, it showed that the events at Lam’s home

triggered Officer Acosta’s PTSD, causing him severe

psychological distress and to overreact to the situation. Lam

essentially argued that it was Officer Acosta’s PTSD that

10

Relying on two out-of-circuit cases, the majority appears to hold

that evidence of Officer Acosta’s PTSD was admissible because it bore on

his credibility, regardless of whether he suffered from PTSD at the time

of the incident. Maj. Op. at 38. The cases the majority cites, however, do

not support its holding. Indeed, in United States v. Love, 329 F.3d 981

(8th Cir. 2003), the court considered certain factors including “whether the

witness suffered from the condition at the time of the events to which the

witness will testify,” before concluding evidence of the witness’s

psychological condition had been improperly excluded. Id. at 984–85.

The court in United States v. Smith, 77 F.3d 511 (D.C. Cir. 1996), never

determined whether the evidence was admissible but suggested that it

could be admissible if the witness’s medical records “indicated a relevant,

ongoing problem.” Id. at 517 (emphasis added). Significantly, the court

noted that “mental illness is not necessarily admissible as impeachment

evidence” and a court must “consider the medical history of the specific

witness in question so as to render an informed decision regarding the

relevance of that history.” Id. at 516. Thus, contrary to the majority’s

view, these cases do not support that evidence of a witness’s

psychological condition, which could bear on the witness’s credibility, is

per se admissible.

LAM V. ACOSTA 55

caused him to fatally shoot Sonny. Indeed, Lam made sure

to remind the jury during closing that Officer Acosta’s PTSD

was triggered by house searches and drawing his weapon, the

very “two things that Officer Acosta did on September 2nd of

2013.” Third, Lam focused on the PTSD evidence

throughout trial to show that Officer Acosta acted

unreasonably. Lam referred to Officer Acosta’s PTSD at the

very beginning of his opening statement, he admitted

substantial evidence at trial that highlighted Officer Acosta’s

PTSD, and he stressed again and again during closing that

Officer Acosta suffered from his PTSD “demons” on the day

of the incident. Though there was no evidence Officer

Acosta suffered from PTSD on the day of the shooting, Lam

used the PTSD evidence to demonize Officer Acosta—both

literally and rhetorically. Given that this was a close case,

that the PTSD evidence was compelling, and that Lam’s main

theory was that Officer Acosta unreasonably shot Sonny

because of his PTSD, there is, at the very least, a “reasonable

probability that the error affected the outcome of the trial.”

Id.

Finally, review is necessary to prevent a miscarriage of

justice, as “the error seriously impaired the fairness, integrity,

or public reputation of judicial proceedings.” C.B. v. City of

Sonora, 769 F.3d 1005, 1019 (9th Cir. 2014) (en banc)

(quoting Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st

Cir. 2006)). Officer Acosta’s PTSD diagnosis and symptoms

were irrelevant to his actions on the day of the incident, and

the court should have never allowed the evidence to be

admitted. Lam, however, used this irrelevant evidence to

support his central theory; indeed it was a crucial building

block, and thus the evidence tainted the entire trial. It is a

serious injustice to allow a party to use wholly irrelevant,

improperly compelling evidence, to secure a jury verdict.

56 LAM V. ACOSTA

Under the circumstances, I believe that this is a case in which

we should correct the error to prevent a miscarriage of

justice.11

III. Conclusion

For the reasons stated above, I respectfully dissent. I

would find that Officer Acosta is entitled to qualified

immunity on the Fourth Amendment claim and that the

admission of the PTSD evidence was plain error requiring a

new trial as to all claims.

11

As pointed out in an amicus brief filed in support of Officer Acosta,

allowing the district court’s error to stand will likely discourage officers

from seeking mental health treatment. See Brief of California State

Sheriffs’ Assoc. et al. as Amici Curiae, Dkt No. 17 at 11–18. Officers

should be allowed to seek the treatment they need without fear that a

plaintiff in a civil suit could freely use a years-old diagnosis against them

without even showing it is relevant to the issues at trial.