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.