Concurring in Part, Dissenting in Part:
The majority, in Part II.B of its opinion, holds that the district court abused its discretion by granting a new trial. In making that decision regarding the motion for a new trial, the majority fails to accord the trial judge’s decision the appropriate deference when applying an “abuse of discretion” standard. While only reading the trial transcripts, the majority substitutes its contested view of the trial evidence and calls the trial court’s view of the same evidence an abuse. Therefore, I dissent from that part of the opinion.
I. Application of the Abuse of Discretion Standard
The Federal Rules of Civil Procedure require that, in cases in which a party has moved for judgment as a matter of law, “the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for a new trial.” Fed. R.Civ.P. 50(b).
Our law requires us to affirm a district court’s discretionary decision in granting a new trial, if any of its grounds for granting a new trial are reasonable. Oltz v. St. Peter’s Cmty. Hosp., 861 F.2d 1440, 1452 (9th Cir.1988) (citations omitted). Under this standard, even if substantial evidence supports the jury’s verdict, a trial court may grant a new trial (1) if the verdict is (a) contrary to the clear weight of the evidence or (b) is based upon evidence which is false, (2) to prevent a miscarriage of justice, or (3) if the award of compensation is excessive. See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir.1999) (citation omitted); Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir.1990). In determining the clear weight of the evidence, a district court has “the duty[] to weigh the evidence as[the court] saw it, and to set aside the verdict of the jury, even though supported by substantial evidence, where, in [the court’s] conscientious opinion, the verdict is contrary to the clear weight of the evidence.... ” Murphy, 914 F.2d at 187 (quoting Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246, 256 (9th Cir.1957)). When it is necessary to prevent, in the sound discretion of the trial judge, a miscarriage of justice the district court may also weigh the evidence and set aside the verdict. Id. The district court may also grant a new trial when in his judgment the trial judge finds that the “amount of compensation awarded is excessive.” Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir.1976) (citation and internal quotation marks omitted); see also Fenner v. Dependable Trucking Co., Inc., 716 F.2d 598, 603 (9th Cir.1983) (stating “[o]nce the trial court finds a verdict excessive, the court cannot allow it to stand.”). Therefore, in a nut shell, the district court may grant a new trial “[i]f, having given full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... ” *1088Landes Constr. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.1987).
The law grants trial courts judicial discretion in making this decision for two reasons: (1) the trial judge is the only objective person (with legal training), who was at the trial and able to see, hear, and evaluate the situation using firsthand knowledge; and (2) it would be impossible to construct any strict rule, which would be applicable to every conceivable motion for a new trial. Therefore, to reverse a district court under the abuse of discretion standard, an “appellate court[has to be] convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.2000). I emphasize this is not the review of a trial court’s determination of a motion for summary judgment (de novo review) or a motion for a judgment as a matter of law (de novo review), which motion is generally made at the same time as the motion for new trial. Instead, we are reviewing whether the trial judge (vested by law to use his discretion in the four above mentioned circumstances) abused it in granting a new trial.
In this case, the district court granted the motion for a new trial on the grounds that (1) the jury’s verdict was against the clear weight of the evidence, (2) Officer Engle was protected by the doctrine of qualified immunity, and (3) the jury’s award was excessive and based on speculation. Given this record, the district court did not abuse its discretion.
II. Clear Weight of the Evidence
The district court did not abuse its discretion, when it granted a new trial because the jury’s verdict was against the clear weight of the evidence. Again, when a motion for a new trial is made, on the ground that the weight of the evidence is contrary to the jury’s verdict, the judge is free to weigh the evidence for himself. See Murphy, 914 F.2d at 187; see also 11 Charles Alan Wright et al., Federal Practice and Procedure § 2806 (2008) (citations omitted).
Two very different stories were told at trial, describing what transpired on July 9, 2001. Reviewing the evidence, it clearly indicated that Tortu’s testimony, (regarding the events that occurred in the terminal and jetway) was wholly inaccurate and unbelievable. After weighing the evidence, the district court found that, to arrive at its verdict (that Officer Cashton and Officer Cowley did not use an unreasonable amount of force, but Officer Engle did use an unreasonable amount of force), the jury would have had to believe the officers’ testimony on every issue, except as to Officer Engle’s conduct on the Tarmac and in the police SUV. The jury also would have had to disbelieve all of Tortu’s story except that his injuries were caused by Officer Engle’s conduct. Having been at the trial and therefore able to see, hear, and evaluate the testimony first hand, the district court found that the verdict was against the clear weight of the evidence.
These facts, among others, substantiate the district court’s reasoning. Tortu alleged that Officer Engle (while standing outside the driver’s door) reached between the front seats and the mounted mobile computer terminal and squeezed Tortu’s testicles (who at the time was seated in the middle back seat of the Ford Excursion police SUV). Officer Engle’s ability to make these maneuvers (while standing outside the car) seems highly improbable, if not impossible. Tortu also could not conclusively identify which officer, if any, actually squeezed his testicles.1 All of the *1089other witnesses credibly testified that no officer squeezed Tortu’s testicles. Further, there is no evidence (absent Tortu’s testimony) that Officer Engle punched Tortu in the back of the head or threw him on the tarmac. All other witnesses testified that Tortu was not thrown on the tarmac or punched in the back of the head. The tarmac was very dirty and oily, and yet Tortu’s light-colored shirt showed no signs of dirt or grime.
While these facts support the court’s decision, the majority ignores them in its decision. Instead, after reading the transcript, the majority accepts Tortu’s otherwise wholly incredible testimony, and the medical evidence regarding his injury, and declares that the clear weight of the evidence supported the jury’s verdict. I question their view. It is not enough to say that the medical evidence demonstrates that Tortu sustained injuries to his testicles. It is not enough to say that “Engle had no evidence of how else that injury could have occurred.” Engle had no evidentiary burden to prove how the injury occurred. Given this altercation between Tortu and the officers, the injury very well could have happened without Officer Engle having been responsible.
I make this point, not to suggest that either the district court or the majority are right. My point is that this argument about facts (in which the majority involves itself) does not support a finding of abuse of discretion. Evaluating the evidence, the district judge had a definite and firm conviction that the jury made a mistake when it held Officer Engle responsible. Reviewing the record, I cannot find abuse in the district court’s discretionary decision.
III. Qualified Immunity
The district court did not abuse its discretion when it ordered a new trial to determine qualified immunity. The Supreme Court has stated that qualified immunity issues should be resolved as early on as possible. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.”). Generally issues of qualified immunity are resolved by the court on summary judgment. However, when material issues of fact are in dispute, the jury must determine the facts regarding immunity issues. See Torres v. City of Los Angeles, 548 F.3d 1197, 1210-11 (9th Cir.2008) (citing Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir.1994)) (explaining that the reasons for the existence of the qualified immunity doctrine “do not ... suggest that a judicial determination at [the trial] stage is necessarily better than a jury verdict.” (emphasis and alterations in original)). Neither party moved for summary judgment on the qualified immunity issue prior to trial. Engle first raised it, just prior to asking the jury to deliberate and render a verdict. The district court declined to address the issue at that time, instead taking the issue under advisement.
The majority correctly states “[w]hen a police officer asserts qualified immunity, we apply a two-part analysis under Saucier.” Id. at 1210. The first question is whether “the officer’s conduct violated a constitutional right.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. The second question under Saucier is whether the right was “clearly established.” Id. at 202, 121 S.Ct. *10902151. In determining whether a right was “clearly established” the question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.
The jury found that Officer Engle “used an unreasonable amount of force on Plaintiff.” The jury also found that “the excessive force used against him caused him $175,000 in compensatory damage.” Those findings indicate that the evidence satisfied the first step of the Saucier analysis. However, the district court found that verdict to be against the clear weight of the evidence.
When a case proceeds to trial, “qualified immunity can no longer rightly be called an ‘immunity from suit’ (since the suit has already proceeded to its conclusion); rather, it is now effectively a defense.” Slo-man, 21 F.3d at 1468 n. 6. Given its decision regarding the evidence, the district court did not abuse its discretion in granting Officer Engle a new trial, in order to determine whether he had violated Tortu’s constitutional rights. Officer Engle should not lose his defense of qualified immunity, when the court found the verdict to be against the clear weight of evidence.
Even though it found the jury’s verdict to be against the clear weight of evidence, the district court also applied the second step of the Saucier analysis to determine if Officer Engle was entitled to immunity. Because the jury had not been questioned in the verdict form regarding its basis in determining that Officer Engle had used excessive force on Tortu, the court was forced to undertake the Saucier analysis using all of the facts the jury could have used to make the determination. The district court found that there were two reasons for which the jury could have found excessive force on the part of Officer En-gle: (1) squeezing Tortu’s testicles and (2) punching Tortu on the back of the head.2 Quoting Supreme Court precedent to find the correct law to apply to those facts, the district court then reasoned that (1) Tor-tu’s constitutional rights were not clearly established; and (2) any mistake of fact, Officer Engle made, was reasonable given the circumstances of Tortu’s arrest. While an appellate court may disagree with the district court’s determination of this issue, these circumstances do not present a situation where granting a new trial would be an abuse of discretion. Granting a new trial, rather than determining the issue of qualified immunity using disputed facts from the trial, cannot be an abuse of discretion. The disputed facts are still unresolved by the trial, because (1) the jury verdict was against the clear weight of the evidence or (2) the jury was not asked enough questions to resolve the disputed facts. The majority attempts to gloss over this point, by stating that the application of the second prong of the Saucier analysis is merely a question of law. On that point, they err. When the facts are undisputed and the jury has properly found a violation of constitutional rights, then determining whether those rights are clearly established (based on those same undisputed facts) is a question of law. However, when the facts are disputed and a trial does not resolve which facts are a violation of a constitutional right, a court cannot determine, as a matter of law, whether those rights are clearly established.
*1091Those are the very circumstances of this case. From reading their opinions, both the district court and the majority agree that punching Tortu on the head would be an action in which Engle could engage and yet be entitled to immunity in these circumstances. Only when applying the qualified immunity analysis to Tortu’s testicle injury do they disagree. Yet the jury was never asked the basis of their finding of unreasonable force, therefore the majority’s analysis fails. Again, we are not here on summary judgment with de novo review and construing the facts in Tortu’s favor. We also should not speculate (as the majority seemingly does) as to which facts the jury found to be in violation of Tortu’s constitutional rights, and decide if those rights were clearly established.
A new trial to determine those facts is therefore not an abuse. We must be certain “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” See Saucier, 533 U.S. at 202, 121 S.Ct. 2151.
IV. Speculative Damages Award
The district court found that Officer En-gle was entitled to a new trial, because the jury’s award of damages was speculative, excessive, and unsupported by clear weight of the evidence. The damages were speculative, because the minimal injuries suffered by Tortu could not support such a wide differential between the cost of Tortu’s medical treatment (an amount of less than $5,000) and the ultimate award ($175,000). Accordingly, to avoid a miscarriage of justice, the district court concluded that a new trial was necessary.
Tortu presented evidence that his medical bills amounted to less than $5,000. Tortu’s pain and suffering lasted no longer than two weeks. There was no evidence presented that the injury prevented Tortu from performing any ordinary tasks, or that he suffered even minimal discomfort after two weeks. The trial judge is in the best position to weigh the evidence of Tor-tu’s embarrassment and humiliation. These facts support the conclusion that the clear weight of the evidence in the record did not support the jury’s award. While one may disagree with the trial court, one cannot say that it abused its discretion in making the decision. These facts support its view.
We have also affirmed other district courts in similar situations. Oltz, 861 F.2d at 1453 (affirming the trial court’s grant of motion for new trial based on its findings that damages were excessive); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1050 (9th Cir.1981) (same); Hanson, 541 F.2d at 1359 (same).
V Conclusion
I disagree with the majority. The district court’s granting of the motion for a new trial does not lie beyond the pale of reasonable justification under these circumstances. We must affirm if any of the grounds for granting a new trial are reasonable. Oltz, 861 F.2d at 1452.
. On direct examination, Tortu stated that Officer Engle squeezed his testicles. However, on cross examination, Tortu admitted that *1089he testified during his deposition that he was not sure whether it was Officer Engle or Officer Cowley.
. While the majority states that “the vital evidence upon which the jury obviously relied is the squeezing of Tortu’s testicles in the SUV,” there is absolutely no jury finding in this record to support that view. The district court, who attended the trial, disagrees. That vacuum in the record is the reason the district court had to conduct the second step of the Saucier analysis using both the squeezing action and punching Tortu on the back of the head.