Tan Lam v. City of Los Banos ( 2020 )


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  •                  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.
    

Document Info

Docket Number: 18-17404

Filed Date: 9/25/2020

Precedential Status: Precedential

Modified Date: 9/25/2020

Authorities (50)

Diaz-Fonseca v. Commonwealth of PR , 451 F.3d 13 ( 2006 )

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Boyd v. City and County of San Francisco , 576 F.3d 938 ( 2009 )

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