FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT CONTRERAS, No. 13-55100
Plaintiff - Appellee, D.C. No. 2:11-cv-01480-SVW-SH
v.
MEMORANDUM*
CITY OF LOS ANGELES,
Defendant,
and
JULIO BENAVIDES; MARIO FLORES,
Defendants - Appellants.
ROBERT CONTRERAS, No. 13-55692
Plaintiff - Appellee, D.C. No. 2:11-cv-01480-SVW-SH
v.
CITY OF LOS ANGELES; JULIO
BENAVIDES; MARIO FLORES,
Defendants - Appellants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 9, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and SHEA,** Senior District
Judge.
Plaintiff Robert Contreras sued Defendant LAPD Officers Julio Benavides
and Mario Flores, under 42 U.S.C. § 1983, for using excessive force in violation of
the Fourth Amendment. Defendants shot Plaintiff four times in the back, in the
course of arresting him in connection with a drive-by shooting. A jury found in
favor of Plaintiff and awarded him $5.725 million in damages. Defendants timely
appeal from the district court’s denial of their motions to dismiss and for judgment
as a matter of law. Reviewing de novo, we affirm. See Sanders v. Kennedy, 794
F.2d 478, 481 (9th Cir. 1986) (per curiam) (stating the standard of review for a
motion to dismiss); Acosta v. City of Costa Mesa, 718 F.3d 800, 828 (9th Cir.
2013) (per curiam) (stating the standard of review for a renewed motion for
judgment as a matter of law).
**
The Honorable Edward F. Shea, Senior United States District Judge for
the Eastern District of Washington, sitting by designation.
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1. The district court correctly denied Defendants’ motion to dismiss this
action as barred by the statute of limitations. Although Defendants raised the
statute of limitations as one of nine affirmative defenses in their answer to the
complaint, they did not include the statute of limitations as a defense that they
would pursue in the pretrial order, and they argued for the first time that the statute
of limitations barred this action in a post-liability-verdict motion. Defendants thus
waived this defense. See United States v. First Nat’l Bank of Circle, 652 F.2d 882,
886 (9th Cir. 1981) (holding that, because the parties are bound by the pretrial
order, a party may not advance a theory at trial if it is not included in the order or if
it contradicts the terms of the order).
2. Similarly, the district court correctly declined to consider Defendants’
"fleeing felon" theory because they expressly disclaimed that theory in their
pretrial conference memorandum and argued it for the first time in a post-verdict
motion. See Local 159, 342, 343 & 444 v. Nor-Cal Plumbing, Inc., 185 F.3d 978,
981 n.3 (9th Cir. 1999) (considering an argument raised for the first time in a Fed.
R. Civ. P. 50 motion only because a challenge to federal subject matter jurisdiction
is not waiveable).
3. Plaintiff introduced evidence that (1) he was shot in the back despite
Defendants’ claim that Plaintiff was facing them and threatening them with a gun
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and (2) no gun was recovered from the scene. Viewing the facts in the light most
favorable to the verdict, sufficient evidence supports the jury’s rejection of
Defendants’ theories of self-defense and defense of others. See A.D. v. Cal.
Highway Patrol, 712 F.3d 446, 457 (9th Cir.) (holding that "the jury’s view of the
facts must govern our analysis once litigation has ended with a jury’s verdict"),
cert. denied, 134 S. Ct. 531 (2013).
4. Defendants are not entitled to qualified immunity because the law was
clearly established that shooting an unarmed, physically trapped suspect in the
back four times is excessive force. Tennessee v. Garner, 471 U.S. 1, 11 (1985).
Plaintiff’s 20-second flight from the police is not like the one-hour flight of the
armed plaintiff in Forrett v. Richardson, 112 F.3d 416, 421 (9th Cir. 1997),
superseded by rule on other grounds as stated in Chroma Lighting v. GTE Prods.
Corp., 127 F.3d 1136 (9th Cir. 1997) (order). Moreover, Plaintiff introduced
evidence that, although it was feasible to do so, Defendants did not warn Plaintiff
before using deadly force, and the verdict demonstrates that the jury believed that
evidence. See Garner, 471 U.S. at 11–12.
AFFIRMED.
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