Robert Contreras v. Julio Benavides , 603 F. App'x 530 ( 2015 )


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    NOT FOR PUBLICATION                              FEB 20 2015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