Tan Lam v. City of L. Banos

• Decision Date: 25 September 2020
• Docket Number: No. 18-17404,18-17404
• Citation: 976 F.3d 986
• Parties: TAN LAM, as Successor-In-Interest to decedent Sonny Lam (aka Son Tung Lam), Plaintiff-Appellee, v. CITY OF LOS BANOS, a Municipal Corporation, Defendant, and Jairo Acosta, Police Officer for the City of Los Banos, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

976 F.3d 986

TAN LAM, as Successor-In-Interest to decedent Sonny Lam (aka Son Tung Lam), Plaintiff-Appellee,

v. CITY OF LOS BANOS, a Municipal Corporation, Defendant,andJairo Acosta, Police Officer for the City of Los Banos, Defendant-Appellant.

No. 18-17404

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2020 San Francisco, California

Filed September 25, 2020

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.

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 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 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.

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 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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.

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

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