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Lam v. City of San Jose

United States Court of Appeals, Ninth Circuit

September 5, 2017

Hung Lam, individually, through his next friend, Kathy Lam, Plaintiff-Appellee,
v.
City of San Jose, a municipal corporation; Dondi West, individually and in her official position as a San Jose Police Officer; Larry Esquivel, in his capacity as Chief of Police for the City of San Jose, Defendants-Appellants.

          Argued and Submitted June 15, 2017 San Francisco, California

         Appeal from the United States District Court for the Northern District of California D.C. No. 5:14-cv-00877-PSG Paul S. Grewal, Magistrate Judge, Presiding

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

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

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

         SUMMARY [**]

         Civil Rights

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

         The panel held that the district court did not abuse its discretion by denying the officer's motion for a new trial because the evidence presented at trial provided a reasonable basis to support the jury's verdict. Nor did the district court abuse its discretion by failing to give to the jury special interrogatories, a deadly force instruction, or an instruction regarding officer tactics. The panel held that the district court has broad discretion in the formulation of jury instructions, and the instructions adequately covered the issues presented, correctly stated the law, and were not misleading. Finally, the panel declined to reach the officer's argument relating to qualified immunity, because she did not preserve the defense for appeal by filing motions for judgment as a matter of law pursuant to Fed.R.Civ.P. 50.

          OPINION

          N.R. SMITH, Circuit Judge

         This case arises from a shooting that occurred when San Jose Police Department Officer Dondi West responded to a 911 dispatch regarding two people arguing and one of them-Hung Lam-having a knife. Officer West arrived on the scene and attempted to subdue Lam (the details of which are disputed), which resulted in Officer West shooting Lam in the back and rendering him a paraplegic. Lam sued Officer West, the City of San Jose, and the San Jose police chief for violations of his state and federal rights. A jury found Officer West used unreasonable force against Lam, interfered with the exercise of Lam's constitutional rights, and acted negligently toward Lam. However, the jury also found Officer West did not commit battery.

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

         FACTS

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

         After Lam was released from the hospital, he and Wade stopped at their house on the way to visit Lam's family. When they arrived at their house, Lam started to act strangely again. He picked up a knife and told Wade that someone was in the house. Wade walked outside and Lam followed him. Wade attempted to convince Lam to give him the knife, but Lam refused and threatened to cut himself. Wade flagged down their next-door neighbors, Herman and Helen Anderson, and asked them to call the police. Herman Anderson went inside his house to call the police. Helen Anderson ("Anderson"), a retired deputy sheriff, walked toward Lam (but remained on her lawn at a distance she estimated to be 10 to 15 feet from Lam) and began talking with him. The conversation between Lam and Anderson was calm, but Lam was still agitated and periodically motioned as if to cut his wrist with the knife.

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

         Helen Anderson had a clear view of the entire incident. She testified that, when Officer West arrived at the scene, she had her gun drawn in a shooting position and she quickly approached the property line of the Andersons' lawn and Lam's lawn. Officer West ordered Anderson to move back (and she did, approximately eight to ten feet) and ordered Lam to drop the knife and get down on the ground. Lam never dropped the knife but threw a cell phone on the ground. Lam, who was standing in the middle of his lawn approximately 10 to 15 feet away from Officer West, then turned his back to Officer West and started making motions with the knife toward his stomach, as if he were stabbing himself. Immediately, Officer West shot Lam in the back twice in rapid succession, and Lam fell to the ground. Photographs introduced at trial confirm that Lam was shot in the back. Anderson testified that Lam did not move after Officer West arrived at the scene. However, the photographs introduced at trial depict Lam's clothes were cut off near the tree, with Lam's cell phone approximately 14 feet away from Lam's clothes. Anderson also testified that the shooting happened within approximately 10 to 15 seconds of Officer West exiting her vehicle. However, the police communications tape demonstrates that over a minute elapsed between when Officer West announced that she arrived at the scene and when the officers announced that shots were fired. Anderson never saw Officer West move into Lam's yard where a tree and shrubbery were located, nor did she see Officer Phelan on the scene until after Lam was shot.

         Officer West recalled the incident very differently. She testified that, when she arrived at the scene, Lam had a knife to his throat and stood approximately an arms length away from Helen Anderson. Officer West moved quickly toward Lam with her gun drawn, ordering that Anderson move back and that Lam drop the knife.[1] As Officer West approached the property line between Anderson's yard and Lam's yard (approximately 15 feet away from Lam), Lam threw an item to the ground. Officer West believed it was the knife (though she later learned it was a cell phone). Just after Lam dropped the item on the ground, a second officer, Dan Phelan, arrived on the scene in his patrol car. Believing Lam was unarmed, Officer West and Officer Phelan approached Lam to subdue him. When Officer West was within three or four feet of Lam, she saw Lam pull a knife out of his waistband. She yelled "knife" and backed away from Lam. Lam walked away from Officer West and looked as if he were pushing the knife into his stomach. Officer Phelan ran back to his patrol car to retrieve a less lethal weapon (a "40") that shoots rubber bullets.

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

         Wade and Officer Phelan also offered their accounts at trial. According to Wade, when Officer West arrived on the scene, she pointed her gun at Lam and yelled at Lam to drop the knife. Lam pointed the knife at his stomach and told Officer West that if she got close to him, he would hurt himself. Lam then turned his back to Officer West. Wade started to run across the street. He saw Officer Phelan park his patrol car, walk a short distance toward the Andersons' yard, and immediately return to the patrol car to retrieve the 40. At some point, Wade looked back and saw Lam standing in the center of his yard with his back facing Officer West and Officer West in the Andersons' yard pointing her gun at Lam. By the ...


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