Hung Lam v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HUNG LAM, individually, through his No. 16-16052
next friend, Kathy Lam,
Plaintiff-Appellee, D.C. No.
5:14-cv-00877-
v. PSG

CITY OF SAN JOSE, a municipal
corporation; DONDI WEST, OPINION
individually and in her official
position as a San Jose Police Officer;
LARRY ESQUIVEL, in his capacity as
Chief of Police for the City of San
Jose,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding

Argued and Submitted June 15, 2017
San Francisco, California

Filed September 5, 2017
2 LAM V. CITY OF SAN JOSE

Before: Mary M. Schroeder, D. Michael Fisher,*
and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

SUMMARY**

Civil Rights

The panel affirmed the district court’s judgment, entered
following a jury verdict, in favor of plaintiff in an action
brought under 42 U.S.C. § 1983 and state law alleging that a
police officer used excessive force when she shot plaintiff in
the back during a response to a 911 call, rendering plaintiff a
paraplegic.

The panel held that the district court did not abuse its
discretion by denying the officer’s motion for a new trial
because the evidence presented at trial provided a reasonable
basis to support the jury’s verdict. Nor did the district court
abuse its discretion by failing to give to the jury special
interrogatories, a deadly force instruction, or an instruction
regarding officer tactics. The panel held that the district court
has broad discretion in the formulation of jury instructions,
and the instructions adequately covered the issues presented,
correctly stated the law, and were not misleading. Finally,

*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
**
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. CITY OF SAN JOSE 3

the panel declined to reach the officer’s argument relating to
qualified immunity, because she did not preserve the defense
for appeal by filing motions for judgment as a matter of law
pursuant to Fed. R. Civ. P. 50.

COUNSEL

Clifford S. Greenberg (argued), Senior Deputy City Attorney;
Nora Frimann, Assistant City Attorney; Richard Doyle, City
Attorney; Office of the City Attorney, San Jose, California;
for Defendants-Appellants.

Benjamin Nisenbaum (argued), Ayana Curry, and John L.
Burris, Law Offices of John L. Burris, Oakland, California,
for Plaintiff-Appellee.

OPINION

N.R. SMITH, Circuit Judge:

This case arises from a shooting that occurred when San
Jose Police Department Officer Dondi West responded to a
911 dispatch regarding two people arguing and one of
them—Hung Lam—having a knife. Officer West arrived on
the scene and attempted to subdue Lam (the details of which
are disputed), which resulted in Officer West shooting Lam
in the back and rendering him a paraplegic. Lam sued Officer
West, the City of San Jose, and the San Jose police chief for
violations of his state and federal rights. A jury found Officer
West used unreasonable force against Lam, interfered with
the exercise of Lam’s constitutional rights, and acted
4 LAM V. CITY OF SAN JOSE

negligently toward Lam. However, the jury also found
Officer West did not commit battery.

The district court did not abuse its discretion by denying
Officer West’s motion for a new trial, because the evidence
presented at trial provided a reasonable basis to support the
jury’s verdict. Nor did the district court abuse its discretion
by failing to give to the jury special interrogatories, a deadly
force instruction, or an instruction regarding officer tactics.
The district court has broad discretion in the formulation of
jury instructions, and the instructions adequately covered the
issues presented, correctly stated the law, and were not
misleading. Finally, we do not reach Officer West’s argument
relating to qualified immunity, because she did not preserve
the defense for appeal.

FACTS

Two days before the incident at issue, Lam began
behaving erratically. He spent much of the day in the
driveway of his San Jose home that he shared with his
boyfriend, Kevin Wade. He refused to go into their house,
because he was afraid someone might be inside. Lam
eventually called the police himself and was placed under an
involuntary psychiatric hold at a nearby hospital. The hospital
released Lam two days later.

After Lam was released from the hospital, he and Wade
stopped at their house on the way to visit Lam’s family.
When they arrived at their house, Lam started to act strangely
again. He picked up a knife and told Wade that someone was
in the house. Wade walked outside and Lam followed him.
Wade attempted to convince Lam to give him the knife, but
Lam refused and threatened to cut himself. Wade flagged
 LAM V. CITY OF SAN JOSE 5

down their next-door neighbors, Herman and Helen
Anderson, and asked them to call the police. Herman
Anderson went inside his house to call the police. Helen
Anderson (“Anderson”), a retired deputy sheriff, walked
toward Lam (but remained on her lawn at a distance she
estimated to be 10 to 15 feet from Lam) and began talking
with him. The conversation between Lam and Anderson was
calm, but Lam was still agitated and periodically motioned as
if to cut his wrist with the knife.

Herman Anderson called dispatch and told them that two
people were arguing, and one of them had a knife. Upon
receiving the dispatch, the dispatcher informed Officer West
about the call and told her that a retired sheriff’s deputy was
talking to the man with a knife. A few moments later, Officer
West arrived at the scene. At this point, the stories diverge.

Helen Anderson had a clear view of the entire incident.
She testified that, when Officer West arrived at the scene, she
had her gun drawn in a shooting position and she quickly
approached the property line of the Andersons’ lawn and
Lam’s lawn. Officer West ordered Anderson to move back
(and she did, approximately eight to ten feet) and ordered
Lam to drop the knife and get down on the ground. Lam
never dropped the knife but threw a cell phone on the ground.
Lam, who was standing in the middle of his lawn
approximately 10 to 15 feet away from Officer West, then
turned his back to Officer West and started making motions
with the knife toward his stomach, as if he were stabbing
himself. Immediately, Officer West shot Lam in the back
twice in rapid succession, and Lam fell to the ground.
Photographs introduced at trial confirm that Lam was shot in
the back. Anderson testified that Lam did not move after
Officer West arrived at the scene. However, the photographs
6 LAM V. CITY OF SAN JOSE

introduced at trial depict Lam’s clothes were cut off near the
tree, with Lam’s cell phone approximately 14 feet away from
Lam’s clothes. Anderson also testified that the shooting
happened within approximately 10 to 15 seconds of Officer
West exiting her vehicle. However, the police
communications tape demonstrates that over a minute elapsed
between when Officer West announced that she arrived at the
scene and when the officers announced that shots were fired.
Anderson never saw Officer West move into Lam’s yard
where a tree and shrubbery were located, nor did she see
Officer Phelan on the scene until after Lam was shot.

Officer West recalled the incident very differently. She
testified that, when she arrived at the scene, Lam had a knife
to his throat and stood approximately an arms length away
from Helen Anderson. Officer West moved quickly toward
Lam with her gun drawn, ordering that Anderson move back
and that Lam drop the knife.1 As Officer West approached the
property line between Anderson’s yard and Lam’s yard
(approximately 15 feet away from Lam), Lam threw an item
to the ground. Officer West believed it was the knife (though
she later learned it was a cell phone). Just after Lam dropped
the item on the ground, a second officer, Dan Phelan, arrived
on the scene in his patrol car. Believing Lam was unarmed,
Officer West and Officer Phelan approached Lam to subdue
him. When Officer West was within three or four feet of
Lam, she saw Lam pull a knife out of his waistband. She
yelled “knife” and backed away from Lam. Lam walked away
from Officer West and looked as if he were pushing the knife
into his stomach. Officer Phelan ran back to his patrol car to

1
Officer West testified that she ordered Lam to drop the knife
approximately 15 times, using different words and different tones, in order
to get Lam to respond.
 LAM V. CITY OF SAN JOSE 7

retrieve a less lethal weapon (a “40”) that shoots rubber
bullets.

Officer West and Lam were still approximately 15 feet
apart. With the knife out, Lam then turned to face Officer
West and started taking small steps toward her—at times
turning to walk backwards while looking at her over his
shoulder and at times facing her. Officer West pointed her
gun at Lam and started backing away from him. She knew
there was a tree in the yard and continued backing up toward
the tree, intending to use it for cover. Lam continued to
slowly walk backwards toward Officer West with the knife in
his right hand. Officer West backed up past the tree and then
moved to position the tree between herself and Lam. As she
moved behind the tree, her right foot became stuck. Officer
West looked down, but could not tell what was holding her
foot. As she looked up at Lam, she saw that Lam was closer
to her and was starting to turn toward her with the knife still
in his hand. Officer West believed that, if she attempted to
move her stuck foot, she would fall and Lam would stab her.
As Lam was facing Officer West approximately 10 feet away,
Officer West fired her gun at Lam, but did not hit him. Lam
then turned his back toward Officer West and walked
backwards toward her for two or three more steps, while
looking at her over his shoulder. Officer West fired again, this
time hitting Lam in the back. Lam fell immediately on the
ground toward Officer West, and rolled on his back.

Wade and Officer Phelan also offered their accounts at
trial. According to Wade, when Officer West arrived on the
scene, she pointed her gun at Lam and yelled at Lam to drop
the knife. Lam pointed the knife at his stomach and told
Officer West that if she got close to him, he would hurt
himself. Lam then turned his back to Officer West. Wade
8 LAM V. CITY OF SAN JOSE

started to run across the street. He saw Officer Phelan park
his patrol car, walk a short distance toward the Andersons’
yard, and immediately return to the patrol car to retrieve the
40. At some point, Wade looked back and saw Lam standing
in the center of his yard with his back facing Officer West
and Officer West in the Andersons’ yard pointing her gun at
Lam. By the time Wade reached the other side of the street,
two shots had been fired. Wade testified that Lam never
moved from the middle of his yard, and Officer West stayed
close to the Andersons’ yard.

Officer Phelan testified that, when he arrived on the
scene, Lam and Officer West stood 15 feet apart. Lam had his
hands raised in the air and they were empty. Officer Phelan
got out of his car and ran to assist Officer West in the yard.
Officer West told Officer Phelan that Lam dropped a knife.
Both officers, with their guns pointed at Lam, ordered Lam to
get on the ground. Lam turned around and shuffled his feet
but stayed in the same general area. Officer West then told
Officer Phelan that Lam now had a knife, and Officer Phelan
retreated to his patrol car to retrieve a 40. While stopping to
look back briefly toward the house, Officer Phelan saw Lam
trying to impale himself with the knife. At that point, Officer
Phelan broadcast over the police radio that he was “getting
the 40” and that Lam was “stabbing himself.” After retrieving
and loading the 40, which took approximately 30 seconds,
Officer Phelan started to run back to the yard and saw Officer
West standing near the tree and facing Lam, approximately
five to seven feet apart. Because Officer Phelan approached
from directly behind Officer West, his view was obstructed
and he could not fully see Lam or tell whether Lam was
moving toward Officer West. Officer Phelan could tell that
Lam was facing Officer West during the first shot, but
twisting away from Officer West during the second shot. Lam
 LAM V. CITY OF SAN JOSE 9

testified at trial, but had no recollection of speaking to
Anderson before the shooting, the officers arriving on the
scene, or how the shooting occurred.

PROCEDURAL HISTORY

Lam filed suit against Defendants for (1) excessive force
and malicious prosecution under the Fourth Amendment;
(2) state law assault and battery; (3) state law intentional
infliction of emotional distress, (4) violation of the Bane Act
(California state law action for intentional interference with
civil rights by threats, intimidation, or coercion); (5) state law
negligence, and (6) improper training in the use of force
against persons who appear suicidal under Monell v.
Department of Social Services of City of New York, 436 U.S.
658 (1978). Defendants moved for summary judgment based
on qualified immunity, arguing Officer West did not violate
Lam’s Fourth Amendment rights and there was no case law
that prohibited her actions. Finding that the evidence, viewed
in the light most favorable to Lam, demonstrated a
constitutional violation of clearly established law, the district
court denied Officer West’s motion based on qualified
immunity.2 Officer West never appealed the denial of
qualified immunity.

In her trial brief, Officer West requested that the district
court submit special interrogatories to the jury so that the
court could rule on Officer West’s entitlement to qualified
immunity pursuant to a motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a). However,

2
The district court granted summary judgment to the police chief and
the City of San Jose on the Monell claim. The remaining claims proceeded
to trial against Officer West.
10 LAM V. CITY OF SAN JOSE

Officer West did not submit proposed special interrogatories
to the district court, and the court did not include any special
interrogatories in the jury instructions.

The case proceeded to a jury trial. The jury unanimously
found (1) Officer West used unreasonable force against Lam;
(2) Officer West did not commit battery; (3) Officer West
violated the Bane Act; and (4) Officer West was negligent3
with regard to the shooting.4 The jury awarded Lam $11.3
million in economic and noneconomic damages. Officer West
did not file Rule 50(a) or (b) motions.

Officer West filed a motion for a new trial under Federal
Rule of Civil Procedure 59, arguing the verdict was not
supported by the clear weight of the evidence; the jury was
improperly instructed on Fourth Amendment liability; and the
district court’s failure to submit special interrogatories to the
jury deprived Officer West of a qualified immunity
determination. The district court denied Officer West’s
motion in full. Officer West appealed, arguing the district
court erred by concluding the verdict was supported by the
clear weight of the evidence, the excessive force instruction
did not adequately explain the law, and the district court
abused its discretion by failing to submit special
interrogatories to the jury. For the reasons explained below,
we affirm.

3
The jury apportioned 65% fault to Officer West and 35% fault to
Lam.
4
The jury was not instructed on the intentional infliction of emotional
distress claim or the malicious prosecution claim.
 LAM V. CITY OF SAN JOSE 11

DISCUSSION

I.

“We review a district court’s denial of a motion for a new
trial under Federal Rule of Civil Procedure 59(a) for an abuse
of discretion.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 728
(9th Cir. 2007). This review permits us to reverse the district
court only if it “reaches a result that is illogical, implausible,
or without support in the inferences that may be drawn from
the record.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir.
2010). “The abuse of discretion standard requires us to
uphold a district court’s determination that falls within a
broad range of permissible conclusions, provided the district
court did not apply the law erroneously.” Id. We have
recognized the “limited nature of our appellate function” in
reviewing the district court’s denial of a motion for a new
trial, id., and we will generally “not reverse the denial of a
new trial motion if there was some ‘reasonable basis’ for the
jury’s verdict,” Molksi, 481 F.3d at 729. In sum, “where the
basis of a Rule 59 ruling is that the verdict is not against the
weight of the evidence, the district court’s denial of a Rule 59
motion is virtually unassailable. In such cases, we reverse for
a clear abuse of discretion only when there is an absolute
absence of evidence to support the jury’s verdict.” Kode,
596 F.3d at 612 (quotation marks and citation omitted).

Officer West argues the district court erroneously denied
her motion for a new trial, because there is no evidence to
support the jury’s verdict. Specifically, Officer West contends
that Anderson’s testimony—which is the only evidence that
supports the jury’s verdict—is not entitled to any weight,
because it is inconsistent with the physical evidence that was
12 LAM V. CITY OF SAN JOSE

presented at trial. Officer West does not argue the district
court misapplied the law.

The district court did not abuse its discretion by denying
Officer West’s motion for a new trial. The district court
acknowledged Anderson’s testimony could not, in some
respects, be reconciled with the physical or documentary
evidence. It nevertheless concluded that the jury was entitled
to give Anderson’s testimony weight, because Anderson
perceived the entire incident and some physical evidence
supported Anderson’s testimony. Given the standard of
review for the denial of a motion for a new trial, we agree.

It is true Anderson’s testimony, regarding the timing of
the incident and the precise location of each person, is
difficult to reconcile with some of the physical evidence that
was presented at trial. However, none of the physical or
documentary evidence or expert testimony provides
incontrovertible proof that Anderson’s version of the
incident—that Officer West shot Lam in the back when Lam
was not threatening Officer West—was impossible.
Additionally, portions of Wade’s testimony corroborates
Anderson’s testimony. Despite some inconsistencies in the
details of Anderson’s testimony, her testimony nonetheless
provides substantial evidence upon which the jury could have
reached its verdict.

We decline to assess Anderson’s credibility on appeal,
Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735,
743 (9th Cir. 2003) (“It is not the courts’ place to substitute
our evaluations for those of the jurors.”), and we also decline
Officer West’s invitation to reweigh the evidence, Landes
Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1372
(9th Cir. 1987) (“[W]e cannot weigh the evidence for
 LAM V. CITY OF SAN JOSE 13

ourselves . . . .”). Our role is not to overturn the verdict
merely because the jury could have reached the opposite
conclusion based on the evidence. See id. Instead, we look
only to whether the district court’s conclusion “was outside
of a broad range of permissible conclusions.” Kode, 596 F.3d
at 613. It was not. The jury’s verdict is supported by a
percipient witness’s testimony, which is substantial evidence
upon which the district court’s denial of the motion for a new
trial can be affirmed.

II.

We review de novo whether a district court’s jury
instructions accurately state the law, and we review for abuse
of discretion a district court’s formulation of jury instructions.
Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir.
2011). “[J]ury instructions must fairly and adequately cover
the issues presented, must correctly state the law, and must
not be misleading.” Id. (quoting Dang v. Cross, 422 F.3d 800,
804 (9th Cir. 2005)).

Officer West argues that she is entitled to a new trial,
because the jury instructions were erroneous in three regards:
(1) the district court did not give special interrogatories to the
jury; (2) the district court did not give a deadly force
instruction to the jury; and (3) the district court erred by
failing to instruct the jury that an officer’s “bad tactics” are
insufficient to establish constitutional liability.

A.

Officer West first argues that, in qualified immunity cases
involving disputed issues of material fact (like here), the
district court is required to give special interrogatories to the
14 LAM V. CITY OF SAN JOSE

jury. She is mistaken as to the precedent in our circuit.
Instead, “[t]he decision ‘whether to submit special
interrogatories to the jury is a matter committed to the
discretion of the district court.’” Ruvalcaba v. City of Los
Angeles, 167 F.3d 514, 521 (9th Cir. 1999) (alteration
omitted) (quoting Acosta v. City and Cty. of San Francisco,
83 F.3d 1143, 1149 (9th Cir. 1996), abrogated on other
grounds by Saucier v. Katz, 533 U.S. 194 (2001)); Cancellier
v. Federated Dep’t Stores, 672 F.2d 1312, 1317 (9th Cir.
1982). The district court found special interrogatories were
unnecessary. In its discretion, the district court reasoned that,
if the jury found Anderson’s version of the facts to be true,
then Officer West would not be entitled to qualified
immunity, because it is a violation of clearly established law
for an officer to use deadly force against someone who poses
no threat of serious harm to the officers or others. The district
court did not abuse its discretion by declining to give special
interrogatories based on this rationale.

We recognize that other circuits have encouraged or
required district courts to use special interrogatories in
qualified immunity cases involving disputed issues of
material fact. However, Officer West has provided no
authority from this circuit supporting the proposition that
special interrogatories are required for the purpose of
evaluating a post-verdict qualified immunity defense.
Additionally, Officer West failed to submit proposed special
interrogatories to the district court and provides no
explanation, consistent with our case law, as to how the
district court abused its discretion by declining to give special
interrogatories.
 LAM V. CITY OF SAN JOSE 15

B.

Officer West next argues the district court’s instructions
failed to convey the proper standards as to objectively
reasonable force. Specifically, Officer West argues that
Tennessee v. Garner established a constitutional justification
for the use of deadly force—an officer can use deadly force
if she is confronted with an imminent risk of death or serious
bodily injury—and that, by failing to instruct the jury on this
specific justification, the court left the jurors inadequately
informed as to the law. We disagree.

In Tennessee v. Garner, the Supreme Court addressed the
reasonableness of an officer’s use of force when the officer
shot an unarmed fleeing suspect. 471 U.S. 1, 3–6 (1985). The
Court concluded that deadly force is reasonable if “the officer
has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.” Id. at 3. Following Garner, our court held
that, “in a police shooting case . . . , where there was no
dispute that deadly force was used, the district court abuses
its discretion by not giving a Garner deadly force
instruction.” Monroe v. City of Phoenix, 248 F.3d 851, 860
(9th Cir. 2001), overruled by Acosta v. Hill, 504 F.3d 1323
(9th Cir. 2007). We noted that a general “excessive force
instruction is not a substitute for a Garner deadly force
instruction.” Id. at 859.

However, the Supreme Court’s more recent decision in
Scott v. Harris rejected the view that Garner created a special
rule in deadly force cases. See 550 U.S. 372, 382 (2007). In
Scott, the plaintiff argued that the preconditions set forth in
Garner (including whether the suspect posed an immediate
threat of serious physical harm to the officer or others) should
16 LAM V. CITY OF SAN JOSE

determine whether the use of deadly force was appropriate.
Id. at 381–82. The Supreme Court rejected that approach,
reasoning, “Garner did not establish a magical on/off switch
that triggers rigid preconditions whenever an officer’s actions
constitute ‘deadly force.’” Id. at 382. Rather, the Court
explained, “Garner was simply an application of the Fourth
Amendment’s ‘reasonableness’ test to the use of a particular
type of force in a particular situation.” Id. (internal citation
omitted).

We have since recognized that Scott overruled our prior
precedent and district courts are no longer required to give a
separate deadly force instruction. See Acosta, 504 F.3d at
1324. Therefore, Officer West’s argument that the district
court was required to give a separate deadly force instruction
fails as a matter of law.

C.

Officer West argues the district court erred by failing to
give an instruction that explained to the jury that Fourth
Amendment liability cannot be premised solely on an
officer’s “bad tactics.” Excessive force claims “should be
analyzed under the Fourth Amendment and its
‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386,
395 (1989). “[P]roper application [of the reasonableness test]
requires careful attention to the facts and circumstances of
each particular case.” Id. at 396. The events leading up to the
shooting, such as the officer’s tactics, are encompassed in
those facts and circumstances.

Following the pattern jury instructions, the district court
submitted the case to the jury under the general rubric of
reasonableness. The district court’s charge covered the
 LAM V. CITY OF SAN JOSE 17

appropriate legal standard and left counsel more than enough
room to argue the facts in light of that standard. We cannot
hold that the district court abused its discretion by declining
to single out one factor in the reasonableness inquiry, when
the instructions properly charged the jury to consider all of
the circumstances.

III.

Officer West contends the district court deprived her of
the right to a qualified immunity determination. We need not
reach the question of qualified immunity, because Officer
West did not preserve the issue for appeal.

Defendants have the burden to assert qualified immunity,
which is an affirmative defense that must ordinarily be
pleaded in the answer. Siegert v. Gilley, 500 U.S. 226, 231
(1991). However, the “defendants may raise an affirmative
defense for the first time in a motion for summary judgment
. . . if the delay does not prejudice the plaintiff.” Magana v.
Commonwealth of N. Mariana Islands, 107 F.3d 1436, 1446
(9th Cir. 1997). If the district court denies summary judgment
on qualified immunity, the order is immediately appealable
as a collateral order if the judgment is made as a matter of
law and “the issue appealed concerns whether the facts
demonstrated a violation of clearly established law.” Rodis v.
City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir.
2009) (citation omitted). If the district court denies summary
judgment on qualified immunity, the right of appeal is limited
to the purely legal question of whether, assuming the
factually supported version of events offered by the plaintiffs
is correct, the district court erred by denying qualified
immunity. Pauluk v. Savage, 836 F.3d 1117, 1120–21 (9th
Cir. 2016).
18 LAM V. CITY OF SAN JOSE

Here, Officer West moved for summary judgment on
grounds of qualified immunity. The district court denied the
motion, because the evidence, viewed in the light most
favorable to Lam, demonstrated a constitutional violation of
clearly established law. Officer West did not appeal this
decision. Instead, in the pretrial conference statement, Officer
West acknowledged the existence of disputed material facts
and stated that there was a legal issue in dispute as to
“[w]hether Officer West is entitled to qualified immunity, and
the process that may be used at trial to make that
determination.” In her trial brief, Officer West requested the
jury make factual findings on the disputed issues, but Officer
West did not propose special interrogatories to the district
court. The case proceeded to trial.

“When a qualified immunity claim cannot be resolved
before trial due to a factual conflict, it is a litigant’s
responsibility to preserve the legal issue for determination
after the jury resolves the factual conflict.” Tortu v. Las
Vegas Metro. Police Dep’t, 556 F.3d 1075, 1083 (9th Cir.
2009). To preserve the determination of qualified immunity,
a defendant must make a motion for judgment as a matter of
law under Rule 50(a). Id. The Rule 50(a) motion may be filed
“at any time before the case is submitted to the jury.” Id. at
1081. If the district court denies the Rule 50(a) motion, the
defendant must then renew the motion for judgment as a
matter of law under Rule 50(b) to preserve the qualified
immunity defense. Id. However, a “failure to file a Rule 50(a)
motion precludes consideration of a Rule 50(b) motion for
judgment as a mater of law.” Id. at 1083. Once there has been
a trial, the filing of a motion for summary judgment or raising
the defense in a pre-trial submission is not sufficient to avoid
a waiver. Id. at 1082.
 LAM V. CITY OF SAN JOSE 19

Officer West did not file a Rule 50(a) motion for
judgment as a matter of law before the case was submitted to
the jury, nor did Officer West file a renewed motion for
judgment as a matter of law pursuant to Rule 50(b) after the
verdict was rendered. Thus, Officer West never provided the
district court an opportunity to rule on the question of
whether, on the facts established at trial, she was entitled to
qualified immunity. Therefore, Officer West did not preserve
her post-trial assertion of qualified immunity for appeal.
Following Tortu, if an officer has forfeited her qualified
immunity defense by failing to follow proscribed procedures
for the preservation of the defense, we should not consider it
for the first time on appeal. See id. at 1085 n.9 (“There is no
authority that [qualified immunity] could be revived as a
ground for a new trial under Rule 59.”).

Officer West argues that the district court’s failure to give
special interrogatories to the jury deprived her of a qualified
immunity determination. That argument is without merit.
Without properly preserving qualified immunity and
providing the district court a forum to rule on the defense, it
was Officer West, not the district court, who precluded a
qualified immunity determination. Officer West also contends
that, by requesting that the district court give special
interrogatories to the jury, she properly raised qualified
20 LAM V. CITY OF SAN JOSE

immunity.5 Our precedent, as explained above, forecloses this
argument.

Finally, Officer West argues the district court abused its
discretion, because it applied the incorrect substantive law in
explaining why it did not give special interrogatories to the
jury. Because the district court did not address the merits of
the qualified immunity determination, it did not, as Officer
West argues, “appl[y] the incorrect substantive law.” The
district court recognized that the merits of the qualified
immunity defense were foreclosed by Officer West’s failure
to preserve the defense by filing Rule 50 motions.

IV.

Officer West makes a cursory reference to the Bane Act
in the opening brief, requesting that “the Court . . . reverse the
judgment . . . regarding the Bane Act (which is dependent on
constitutional liability).” Because Officer West failed to
provide any argument or authority to support this claim on
appeal, we do not consider it. See United States v. Graf,
610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in

5
In Officer West’s trial brief, she wrote, “Should the jury respond to
interrogatories and find that the incident occurred as described by Officer
West, Defendants would then be able to move under Rule 50 for qualified
immunity on the part of the officer.” This sequence is wrong. A party must
file a Rule 50(a) motion at any time before the case is submitted to the
jury. If Officer West waited until after the case was submitted to the jury
and after the jury resolved factual disputes in her favor, the motion would
have been untimely, and would have precluded a Rule 50(b) motion. See
Tortu, 556 F.3d at 1083.
 LAM V. CITY OF SAN JOSE 21

passing and not supported by citations to the record or to case
authority are generally deemed waived.”).

AFFIRMED.