                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 20 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

ROBERT CONTRERAS,                                No. 13-55100

              Plaintiff - Appellee,              D.C. No. 2:11-cv-01480-SVW-SH

  v.
                                                 MEMORANDUM*
CITY OF LOS ANGELES,

              Defendant,

  and

JULIO BENAVIDES; MARIO FLORES,

              Defendants - Appellants.



ROBERT CONTRERAS,                                No. 13-55692

              Plaintiff - Appellee,              D.C. No. 2:11-cv-01480-SVW-SH

  v.

CITY OF LOS ANGELES; JULIO
BENAVIDES; MARIO FLORES,

              Defendants - Appellants.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted February 9, 2015
                               Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and SHEA,** Senior District
Judge.

      Plaintiff Robert Contreras sued Defendant LAPD Officers Julio Benavides

and Mario Flores, under 42 U.S.C. § 1983, for using excessive force in violation of

the Fourth Amendment. Defendants shot Plaintiff four times in the back, in the

course of arresting him in connection with a drive-by shooting. A jury found in

favor of Plaintiff and awarded him $5.725 million in damages. Defendants timely

appeal from the district court’s denial of their motions to dismiss and for judgment

as a matter of law. Reviewing de novo, we affirm. See Sanders v. Kennedy, 794

F.2d 478, 481 (9th Cir. 1986) (per curiam) (stating the standard of review for a

motion to dismiss); Acosta v. City of Costa Mesa, 718 F.3d 800, 828 (9th Cir.

2013) (per curiam) (stating the standard of review for a renewed motion for

judgment as a matter of law).




       **
         The Honorable Edward F. Shea, Senior United States District Judge for
the Eastern District of Washington, sitting by designation.
                                          2
      1. The district court correctly denied Defendants’ motion to dismiss this

action as barred by the statute of limitations. Although Defendants raised the

statute of limitations as one of nine affirmative defenses in their answer to the

complaint, they did not include the statute of limitations as a defense that they

would pursue in the pretrial order, and they argued for the first time that the statute

of limitations barred this action in a post-liability-verdict motion. Defendants thus

waived this defense. See United States v. First Nat’l Bank of Circle, 652 F.2d 882,

886 (9th Cir. 1981) (holding that, because the parties are bound by the pretrial

order, a party may not advance a theory at trial if it is not included in the order or if

it contradicts the terms of the order).

      2. Similarly, the district court correctly declined to consider Defendants’

"fleeing felon" theory because they expressly disclaimed that theory in their

pretrial conference memorandum and argued it for the first time in a post-verdict

motion. See Local 159, 342, 343 & 444 v. Nor-Cal Plumbing, Inc., 185 F.3d 978,

981 n.3 (9th Cir. 1999) (considering an argument raised for the first time in a Fed.

R. Civ. P. 50 motion only because a challenge to federal subject matter jurisdiction

is not waiveable).

      3. Plaintiff introduced evidence that (1) he was shot in the back despite

Defendants’ claim that Plaintiff was facing them and threatening them with a gun


                                            3
and (2) no gun was recovered from the scene. Viewing the facts in the light most

favorable to the verdict, sufficient evidence supports the jury’s rejection of

Defendants’ theories of self-defense and defense of others. See A.D. v. Cal.

Highway Patrol, 712 F.3d 446, 457 (9th Cir.) (holding that "the jury’s view of the

facts must govern our analysis once litigation has ended with a jury’s verdict"),

cert. denied, 134 S. Ct. 531 (2013).

      4. Defendants are not entitled to qualified immunity because the law was

clearly established that shooting an unarmed, physically trapped suspect in the

back four times is excessive force. Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Plaintiff’s 20-second flight from the police is not like the one-hour flight of the

armed plaintiff in Forrett v. Richardson, 112 F.3d 416, 421 (9th Cir. 1997),

superseded by rule on other grounds as stated in Chroma Lighting v. GTE Prods.

Corp., 127 F.3d 1136 (9th Cir. 1997) (order). Moreover, Plaintiff introduced

evidence that, although it was feasible to do so, Defendants did not warn Plaintiff

before using deadly force, and the verdict demonstrates that the jury believed that

evidence. See Garner, 471 U.S. at 11–12.

      AFFIRMED.




                                           4
