In Lam v. City of San Jose, published September 5, 2017, the 9th Circuit Court of Appeals affirmed a district court's denial of a police officer's new trial motion after an $11.5 million verdict against her based on excessive force. There were competing factual versions of what happened during the defendant officer's shooting of the plaintiff. A third-party witness testified that when the plaintiff was 10-15 feet away from the officer, he turned his back on her and started to stab himself before the officer shot her. Among other grounds for new trial, the officer complained that the district court failed to give her requested jury instructions, failed to give special interrogatories to the jury on qualified immunity, and should have ruled for her on qualified immunity.
The 9th Circuit ruled that the officer waived her qualified immunity argument. Although she moved for summary judgment based on qualified immunity before trial,which was denied based on triable issues of fact, she failed to make a Rule 50(a) (motion for judgment as a matter of law motion before the case was submitted to the jury. When qualified immunity depends on issues of fact, the defendant must make a Rule 50(a) motion before the case is submitted to the jury to preserve the qualified immunity issue. She cannot require the court to submit special interrogatories to the jury on qualified immunity and then make a Rule 50(b) motion (revived motion for judgment as matter of law) after the jury answers the interrogatories. The officer did not have a right to special interrogatories, and further did not submit special interrogatories to the court to give to the jury. She therefore waived her qualified immunity argument for purposes of new trial and appeal.
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