The opinion
WALKER, Circuit Judge,
concurring:
I fully agree with the majority’s decision to affirm the district court’s grant of qualified immunity to Officer Nandlal. However, I arrive at that result by different reasoning. In short, I believe that (1) the district court abused its discretion by giving the jury what amounted to a question of law regarding Officer Nandlal’s qualified immunity defense, and (2) that there is no inconsistency between the jury’s general verdict and its answer to the special interrogatory. I ultimately conclude that no remand is required, however, because on the undisputed facts adduced at trial, Officer Nandlal was entitled to qualified immunity.
A. The district court improperly submitted a question of law to the jury
The district court effectively gave the qualified immunity ruling to the jury by asking it to determine whether the officer made an objectively reasonable mistake. The court should have asked the jury to resolve specific factual disputes, such as whether Montero was out of control, or reaching for Nandlal’s gun. See Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002) (noting that special interrogatories relating to a qualified immunity defense should be limited to the “who-what-when-where-why type of historical fact issues”). Based on the jury’s answers to those questions, the court should have determined for itself and without jury input whether Nandlal made an objectively reasonable mistake of fact in believing that Montero posed such a threat to him as to warrant the use of deadly force, and thus whether he had arguable probable cause to use such force. See Ansley v. Heinrich, 925 F.2d 1339, 1348 (11th Cir. 1991) (“[0]nce the defense of qualified immunity has been denied pretrial due to disputed issues of material facts, the jury should determine the factual issues without any mention of qualified immunity.”).
This method of resolving Nandlal’s qualified immunity defense is consistent with the weight of federal precedent, which holds that the “objective reasonableness” of an officer’s use of force is a question of law for the court alone to resolve. See Harris v. Coweta Cty., 21 F.3d 388, 390 (11th Cir. 1994) (holding that, for purposes of qualified immunity, the question of “whether the law allegedly violated was clearly established at the time of the complained-about conduct, and, if it was, whether the official’s conduct was objectively reasonable in light of the information known to the official at the time,” are “objective, albeit fact-specific, inquiries, which we undertake as questions of law”) (citation omitted); see also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (“Whether an official’s conduct was objectively reasonable is a question of law for the court, not a matter of fact for the jury.”); Engleman v. Deputy Murray, 546 F.3d 944, 947 (8th Cir. 2008) (“Whether an official’s conduct was objectively reasonable is a question of law.”) (quoting Ripson v. Alles, 21 F.3d 805, 808 (8th Cir. 1994)); Pitt v. District of Columbia, 491 F.3d 494, 509-10 (D.C. Cir. 2007) (“[Wjhether an objectively reasonable officer would have believed his conduct to be lawful, in light of clearly established law ... is a question of law that must be resolved by the court, not the jury.”); Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (“Once the jury has resolved any disputed facts that are material.to the qualified immunity issue, the ultimate determination of whether the officer’s conduct was objectively reasonable is to be made by the court.”); Cole v. Ruidoso Mun. Sch., 947 F.2d 903 , 905 (10th Cir. 1991) (“The question[ ] of ... whether the official’s acts were objectively reasonable, [is a] question[ ] of law for the court to determine.” (quoting Campbell v. *719 Mercer, 926 F.2d 990, 992 (10th Cir. 1991))).
This precedent makes perfect sense because, in the context of an alleged violation of the Fourth Amendment, whether an officer’s conduct is objectively reasonable in light of the surrounding circumstances is a question of constitutional law that only a court can decide. The reasonableness of an officer’s use of force is subject to the same analysis as the Fourth Amendment standard for “reasonable” seizures. See Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) (“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” (citations omitted)); Zellner, 494 F.3d at 368 (“If there is no dispute as to the material historical facts, the matter of whether the officer’s conduct was objectively reasonable is an issue of law to be determined by the court. If there is such a dispute, however, the factual questions must be resolved by the factfinder.” (citations and internal quotation marks omitted)); cf. Penley v. Eslinger, 605 F.3d 843, 848-49 (11th Cir. 2010) (once all factual disputes regarding qualified immunity defense have been resolved at summary judgment, “the reasonableness of the officer’s actions is a pure question of law”) (alteration, citation, and internal quotation marks omitted). Thus, the question of what circumstances existed at the time that the defendant effected a seizure is a question of fact for the jury. The question of whether the defendant’s actions or perceptions were “objectively reasonable” under those circumstances is a question of constitutional law for the court. See Heien v. North Carolina, — U.S. —, 135 S.Ct. 530, 542 , 190 L.Ed.2d 475 (U.S. 2014) (“The issue is whether the facts satisfy the relevant statutory or constitutional standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”) (alteration, citation, and internal quotation marks omitted).
I believe that the Plaintiff Estate’s proposed special interrogatory, which asked discrete factual questions such as whether Montero attempted to grab a gun during the struggle, more accurately reflected the role of special interrogatories in resolving a motion for judgment as a matter of law on qualified immunity grounds. My view is that it was error for the district court to submit to the jury the question of whether Officer Nandlal made an “objectively reasonable mistake,” and then to rely upon that finding to conclude that there was qualified immunity.
B. The general verdict finding liability was not inconsistent with the separate finding that the officer was entitled to qualified immunity
I further believe that the jury’s finding in the general verdict that Officer Nandlal used excessive force can be reconciled with a finding that he is entitled to qualified immunity. I start with the principle that “jury verdicts must be interpreted so as to avoid inconsistency whenever possible.” Freeman v. Chi Park Dist., 189 F.3d 613, 615 (7th Cir. 1999). A court should only take the unusual step of finding verdicts to be inconsistent when “there is ‘no rational, non-speculative way to reconcile ... two essential jury findings.’ ” Reider v. Philip Morris USA, Inc., 793 F.3d 1254, 1259 (11th Cir. 2015) (quoting Witt v. Norfe, Inc., 725 F.2d 1277, 1278 (11th Cir. 1984)). If “there is a view of the case which makes the jury’s answers consistent, the court must adopt that view and enter judgment accordingly.” Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983) (quot *720 ing Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973)).
On appeal, the Plaintiff Estate argues that the jury’s verdicts are inconsistent because in the general verdict it found that Officer Nandlal “intentionally” used “excessive” force, while in the special interrogatory it found that he had made an “objectively reasonable” mistake of fact as to whether Montero was dangerous. While I believe the jury should not have been asked about the “reasonableness” of Nand-lal’s conduct, the Estate’s position is merit-less. Courts frequently reach the conclusion that an officer violated the Fourth Amendment by using excessive force without probable cause, but that he should nonetheless be entitled to qualified immunity because the use of force was justified by arguable probable cause (i.e., reasonable officers could have disagreed as to whether probable existed). Cf. Turner v. Jones, 415 Fed.Appx. 196, 201 (11th Cir. 2011) (“Probable cause to arrest exists when law enforcement officials have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime. When determining whether an official is entitled to qualified immunity, however, the issue is not actual probable cause, but only arguable probable cause.” (citation and internal quotation marks omitted)). In other words, there is nothing inconsistent in a court concluding that the officer’s conduct violated the Constitution, but that the officer reasonably believed that it did not. That is precisely what happened here in the context of the use of excessive force. In such a case, the verdicts are not inconsistent, and Fed. R. Civ. P. 49 is not implicated. Rather, the defendant is entitled to seek judgment as a matter of law on his qualified immunity defense under Fed. R. Civ. P. 50. Wilkerson v. Seymour, 626 Fed.Appx, 816, 817 (11th Cir. 2015) (“When, as here, the affirmative defense of qualified immunity has been properly pled and preserved at trial through a Rule 50 motion, a defendant is entitled to renew a motion for judgment as a matter of law on the basis of qualified immunity.” (citation and internal quotation marks omitted)).
To the extent that the majority believes the jury’s verdicts were inconsistent because the general verdict form listed a specific dollar amount of damages to which the Estate was entitled, while the special interrogatory afforded Nandlal qualified immunity, I must disagree. The general verdict asked the jury whether Officer Nandlal intentionally used excessive force, and if so the amount of money in damages for which he was liable. The jury found that Nandlal did use excessive force, and calculated a damages amount. The jury then proceeded to answer in the affirmative what was (in the majority’s interpretation) a question of fact: Whether Nandlal had made an “objectively reasonable” mistake of fact as to Montero’s dangerousness. Relying on that answer, the court (not the jury) confirmed that Officer Nandlal was entitled to qualified immunity, and therefore not liable.
I believe the inconsistency issue would have been even easier to resolve had the jury simply been asked to determine discrete questions of narrative fact in the interrogatories, and the court alone had determined qualified immunity, but in any event there is no inconsistency here. The jury found Officer Nandlal liable for damages, but it also made a (consistent) finding, on the basis of which the court confirmed that qualified immunity applied. Such results are routinely sustained by appellate courts. See, e.g., Chaney v. City of Orlando, 291 Fed.Appx. 238, 240 (11th Cir. 2008) (affirming the district court’s grant of defendant police officer’s Rule 50 motion for judgment as a matter of law on *721 qualified immunity grounds, based on the jury’s answer to certain special interrogatories, notwithstanding the jury’s general verdict that the defendant had used excessive force). They do not fall into the very narrow category of cases in which there is “no rational, non-speculative way to reconcile ... two essential jury findings.” Reider, 793 F.3d at 1259 (citation omitted).
C. Notwithstanding its error, the district court’s grant of qualified immunity should be sustained based on undisputed facts contained in the record
Ultimately, however, the district court’s error in submitting what amounted to a question of law to the jury does not require remand for a new trial. The record developed at trial contains ample evidence from which the only reasonable conclusion is that qualified immunity was warranted. Indeed, the relevant portions of the officers’ testimony were largely corroborated by the independent witnesses. Specifically, uncontradicted testimony at trial established that Montero had “red, bloodshot, watery eyes” and “smelled strongly of alcohol” during the time of the arrest. Montero’s girlfriend testified that once Montero was told that his car would be towed, a “huge struggle ensued” in which there was “cussing and yelling” and “lots of struggling and fighting.” Eventually, Montero, Nandlal, and Nandlal’s partner, Blackman, “all ended up down on the ground in a pile again, fighting and [with the officers] trying to cuff him.” At one point, Montero yelled “I’m going to rip your balls off,” and the' officers unsuccessfully tried to stop him with a taser.
Notwithstanding the trial court’s denial of summary judgment upon a limited record, I am convinced that the full record at trial properly understood and taken in the light most favorable to the plaintiff compels the conclusion that Nandlal acted with arguable probable cause when he shot Montero. The officers had tried without success every non-lethal method at hand to bring the enraged Montero under control, and therefore it was reasonable for Officer Nandlal to conclude that the use of deadly force was necessary.