In Lam v. City of Los Banos, published September 25, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part denial of an FRCP 50(b) motion after jury verdict. The defendant officer was called to the plaintiff's house to assist the plaintiff in dealing with his son, who was displaying mental illness symptoms. When the officer and plaintiff came to the son's room, the son grabbed a pair of scissors and stabbed the officer. The officer shot the son in the leg. He and the plaintiff retreated down a hallway. The officer's firearm jammed, and he used a method to clear the jam. He then shot the son again, fatally. Before trial, the officer moved in limine to bar evidence that he had suffered from post-traumatic stress disorder two years before the incident. The district court denied the motion, without prejudice to objecting to the evidence at trial. The defendant did not renew the objection at trial. The jury found that the son had stabbed the officer; that the officer had retreated; and that the son did not approach the officer with scissors before the officer filed the second, fatal shot. The jury found that the officer used force with an intent to harm. The officer was found liable for violating the decedent's Fourth Amendment rights and the plaintiff's Fourteenth Amendment right to familial relationship.
The panel majority affirmed the denial of the Rule 50(b) motion as to the Fourth Amendment claim. Although the evidence established that the first use of deadly force, when the son stabbed the officer, was probably reasonable, the officer's use of deadly force after he and the plaintiff had retreated and the son was no longer armed, after the officer had time to clear his weapon, and in the absence of a warning to the son, supported the jury's finding that the use of force for the second shot was unreasonable. The majority also ruled that denial of qualified immunity was proper, because the second use of force violated clearly established law. Precedent from the Ninth Circuit had established that use of deadly force toward a suspect who had previously been armed or wielded a weapon, but was no longer doing so at the time force was used, was unreasonable. Similarly, precedent established the fact that a suspect had wounded an officer or other person did not render use of deadly force against a suspect who no longer posed a threat reasonable. The panel unanimously ruled, however, that the evidence did not support the finding of liability under the Fourteenth Amendment. The time that passed was not sufficient for deliberation before the second shot was fired, so the test for violation of the Fourteenth Amendment--whether the conduct shocked the conscience--was whether the officer used force with an intent to harm that was unrelated to a legitimate law enforcement objective. The jury's finding of acting with an intent to harm was not sufficient. There was no evidence the officer used the force to bully the suspect, or out of retaliation. Finally, the majority ruled that because the defendant did not renew the objection to the PTSD evidence, it could constitute error only if the district court committed plain error in allowing it. Because the officer's ability to recall and self-report the events was at issue, the district court did not commit plain error in allowing the evidence.
The dissenting judge opined that because no previous case was sufficiently similar to the facts of this matter, the law did not clearly establish the second shot was unreasonable, and thus the officer was entitled to qualified immunity. The judge also opined that allowing the PTSD evidence in was plain error absent evidence the officer suffered from PTSD at the time of the incident.
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