                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARIA J. MORALES,                     No. 14-35944
            Plaintiff-Appellant,
                                         D.C. No.
               v.                   2:12-cv-02235-JCC

SONYA FRY, Officer, Member of
the Seattle Police Department;
MICHELLE GALLEGOS, Officer,
Member of the Seattle Police
Department; CITY OF SEATTLE;
BRIAN REES, Officer, Member of
the Seattle Police Department,
            Defendants-Appellees.
2                   MORALES V. FRY


MARIA J. MORALES,                         No. 14-35991
            Plaintiff-Appellee,
                                          D.C. No.
               v.                    2:12-cv-02235-JCC

SONYA FRY, Officer, Member of
the Seattle Police Department,             OPINION
                      Defendant,

              and

BRIAN REES, Officer, Member of
the Seattle Police Department,
             Defendant-Appellant.



      Appeal from the United States District Court
        for the Western District of Washington
     John C. Coughenour, District Judge, Presiding

          Argued and Submitted May 10, 2017
                 Seattle, Washington

                 Filed October 16, 2017

    Before: M. Margaret McKeown, Carlos T. Bea,
         and N. Randy Smith, Circuit Judges.

             Opinion by Judge McKeown;
                Dissent by Judge Bea
                         MORALES V. FRY                             3

                          SUMMARY *


                           Civil Rights

    The panel affirmed in part and vacated in part the district
court’s judgment entered following a jury trial, in an action
alleging that plaintiff was subjected to excessive force by
police officers during a May Day protest in Seattle, and
remanded.

    The jury found for plaintiff on her excessive force claim
against Officer Rees, but not on her unlawful arrest and
excessive force against Officer Fry, and awarded plaintiff $0
damages. After trial, the parties stipulated to $1 in nominal
damages and the district court awarded plaintiff $165,405 in
attorney’s fees as the prevailing party against Rees. Plaintiff
appealed, arguing that two jury instructions impermissibly
submitted the legal question of qualified immunity to the
jury. On cross-appeal, the officers challenge the denial of
qualified immunity to Rees on his Rule 50(b) motion for
judgment as a matter of law, and the award of attorney’s fees.

    The panel held the question of whether a particular
constitutional right is “clearly established,” as part of the
qualified immunity analysis, is a question of law that must
ultimately be decided by a judge. The panel stated only a
jury can decide disputed factual issues, while only a judge
can decide whether the right was clearly established once the
factual issues are resolved. The panel concluded that the
district court erred in submitting the “clearly established”

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4                     MORALES V. FRY

inquiry to the jury and that the error was not harmless with
respect to plaintiff’s claims against Officer Fry. The panel
vacated the verdict with respect to plaintiff’s unlawful arrest
and excessive force claims against Officer Fry and remanded
for a new trial on these claims.

    The panel held that the district court properly denied
Officer Rees’s motion for judgment as a matter of law on the
issue of qualified immunity. The panel stated that because
the jury found in favor of plaintiff on her excessive force
claim against Officer Rees, the district court was required to
construe the trial evidence in the light most favorable to
plaintiff in determining whether her rights were clearly
established. Based on the evidence presented at trial, the
panel concluded that the jury could have reasonably decided
that Officer Rees’s use of the pepper spray against plaintiff
was retaliatory. The panel held that plaintiff had a clearly
established right not to have pepper spray used against her
for purposes of retaliation or intimidation and that
intentionally pepper-spraying plaintiff for no legitimate law
enforcement reason would likely constitute an obvious case
of excessive force.

    The panel held that the district court did not abuse its
discretion in awarding plaintiff $165,405 in attorney’s fees.
The panel held that the district court properly weighed all
three factors set forth in Justice O’Conner’s concurrence in
Farrar v. Hobby, 506 U.S. 103 (1992).

    Dissenting, Judge Bea stated that the district court did
not err in submitting the jury instructions pertaining to
qualified immunity to the jury, but even if submission of the
instructions were error, plaintiff failed to preserve the issue
for appeal.
                     MORALES V. FRY                        5

                        COUNSEL

Darryl Parker (argued), Civil Rights Justice Center PLLC,
Seattle, Washington, for Plaintiff-Appellant/Cross-
Appellee.

Robert L. Christie (argued), Christie Law Group PLLC,
Seattle, Washington; Peter S. Holmes, City Attorney;
Christine L. Olson, Assistant City Attorney; Seattle City
Attorney’s Office, Seattle, Washington; for Defendants-
Appellees/Cross-Appellants.


                        OPINION

McKEOWN, Circuit Judge:

    The primary issue in this appeal is whether the “clearly
established” prong of the qualified immunity analysis should
be submitted to a jury. Following the lead of nearly all of
our sister circuits, we conclude that it is a question of law
that must ultimately be decided by a judge.

                       Background

    This case arises from Maria Morales’s arrest during the
May 1, 2012 “May Day” protests in Seattle. Morales, who
was attending one of the rallies, was in downtown Seattle
when Seattle Police Department officers began forming a
“bike perimeter” on Pike Street to create a zone where a
person who was arrested earlier could be safely moved to a
transport van.

    Officer Brian Rees asked Morales, who is five feet tall,
110 pounds, to move away from the street so that he could
place his bicycle on the sidewalk as part of the perimeter.
6                       MORALES V. FRY

When Morales did not appear to hear him, he placed his right
hand on her left shoulder to gain her attention. Rees testified
that Morales pulled her arm away from him abruptly and
said, “Get your fucking hand off of me” before stepping
back. 1 Rees then lost sight of Morales.

    Morales ended up squeezed between the sidewalk wall
and the outside of the bike perimeter. She heard conflicting
instructions from officers to move either east or west away
from the perimeter. Eventually, there was an opening on the
west side and Morales began to follow others who were
moving west single file between the wall and the bike
perimeter.

    The way was narrow and Morales testified that she
needed to turn Officer Sonya Fry’s protruding bicycle
handlebar to the side to create room to pass. Fry testified
that she simultaneously perceived what felt like a punch to
her chest. Seeing Morales closest to her, Fry believed that
Morales had punched her and yanked Morales headlong over
the bike, causing Morales to fall on her back on top of other
bikes within the bike perimeter zone. Multiple officers then
converged upon Morales while she was on the ground.

    At some point during this altercation, with several
officers holding Morales, Morales briefly lurched off the
ground onto her feet. At this point, Rees, who had not been
involved in subduing Morales, reached over and discharged
his pepper spray in Morales’s eyes for approximately one
quarter of a second. The surrounding officers, including
Rees, then physically subdued Morales.


   1
     In a video of the incident, Morales is heard saying repeatedly,
“Don’t touch me,” but not using profanity.
                      MORALES V. FRY                         7

    Morales was arrested and charged with assault for the
blow that Officer Fry perceived. Fry’s initial police report
stated that Morales yelled “Okay, bitch!” before punching
her in the chest with a closed fist. When video of the incident
surfaced online, the charges against Morales were dismissed.
At trial, Fry conceded that she never heard Morales say
“Okay, bitch!”, that no one can be heard uttering those words
on the video, and that she never saw Morales punch her in
the chest.

    Morales brought suit against the City of Seattle and
several of the officers involved, making unlawful arrest and
excessive force claims against Officer Fry and an excessive
force claim against Officer Rees (collectively, the
“Officers”). At summary judgment, the district court ruled
that disputed factual issues, including whether Morales had
said “Okay, bitch!” and whether she had punched Officer
Fry, precluded granting Fry qualified immunity on the
unlawful arrest and excessive force claims. The district
court also ruled that disputed factual issues, including
whether Officer Rees’s use of pepper spray was accidental
or intentional, precluded granting Rees qualified immunity
on the excessive force claim.

    The case then proceeded to a five-day jury trial. At the
close of Morales’s case-in-chief, the district court denied the
Officers’ motion for judgment as a matter of law under Fed.
R. Civ. P. 50(a). The district court gave the jury instructions
on the unlawful arrest and excessive force claims. Morales
objected to Jury Instruction Nos. 20 and 21, arguing that they
impermissibly submitted the legal question of qualified
immunity to the jury.

   The jury found for Morales on her excessive force claim
against Rees, but not on her unlawful arrest and excessive
8                      MORALES V. FRY

force claims against Fry. The jury awarded $0 in damages
to Morales.

    After trial, the parties stipulated to $1 in nominal
damages as required under Floyd v. Laws, 929 F.2d 1390,
1402–03 (9th Cir. 1991) (mandating an award of nominal
damages where a jury finds a constitutional violation). The
district court then denied Rees’s renewed motion for
judgment as a matter of law under Fed. R. Civ. P. 50(b), and
awarded Morales $165,405 in attorney’s fees as the
prevailing party against Rees.

    The Officers cross-appeal the district court’s denial of
qualified immunity to Rees on his Rule 50(b) motion, as well
as the district court’s award of attorney’s fees to Morales as
the prevailing party against Rees.

                           Analysis

I. Challenge      to   Jury    Instructions    on    Qualified
   Immunity

    A. Role of Judge or Jury as Decider

    Qualified immunity shields government officials from
civil liability unless a plaintiff establishes that: (1) the
official violated a constitutional right; and (2) that right was
“clearly established” at the time of the challenged conduct,
such that “every reasonable official” would have understood
that what he is doing violates that right. Ashcroft v. al-Kidd,
563 U.S. 731, 735, 741 (2011) (citation and internal
quotation mark omitted). The chief issue in this appeal is
whether the second prong of the qualified immunity
analysis, whether the constitutional right was “clearly
                             MORALES V. FRY                            9

established,” should have been submitted to the jury. 2 We
hold that the “clearly established” inquiry is a question of
law that only a judge can decide.

   Morales’s appeal of the jury’s verdict in favor of Fry
centers on Jury Instruction Nos. 20 3 and 21 4. The parties and

    2
      Morales preserved this issue for appeal. Her counsel objected that
the issue of qualified immunity necessarily involves a question of law
and so no jury instruction could be proper on that point. Having objected
to having the jury decide the legal issue in the first place, Morales did
not need to propose an instruction. The heart of her objection was
abundantly clear from the colloquy with the court.

    3
        In its entirety, Jury Instruction No. 20 stated:

                This instruction relates to Plaintiff’s federal law
           claim for unlawful arrest against Defendant Sonya
           Fry.

                Defendant Fry contends that her arrest of Plaintiff
           was justified by her reasonable belief that this action
           was permitted or required and, therefore, lawful. If
           Defendant Fry reasonably believed that probable
           cause existed to arrest Plaintiff, and acted on the basis
           of that belief, then her reasonable belief would
           constitute a complete defense to the Plaintiff’s claim
           even if, in fact, the arrest was not lawful. Put another
           way, even if you find that Defendant Fry violated
           Plaintiff’s constitutional rights by unlawfully arresting
           her, Defendant Fry cannot be liable if she reasonably
           believed at the time she acted that her actions were in
           accordance with the law. But keep in mind that this
           reasonableness inquiry is an objective one. The
           question is whether every reasonable officer under
           those same circumstances would believe that there was
           no reasonable basis for the arrest.

    4
        Jury Instruction No. 21 stated in almost identical terms:
10                      MORALES V. FRY

the district court agree that those instructions capture the
“clearly established” question. That understanding is
reflected in their text. Both instructions stated that “even if
you find that [the Defendants] violated Plaintiff’s
constitutional rights . . . [the Defendants] cannot be liable if
[they] reasonably believed at the time [they] acted that
[their] actions were in accordance with the law. But keep in
mind that this reasonableness inquiry is an objective one.
The question is whether every reasonable officer under those
same circumstances would believe that” the action was
unlawful. Rather than focusing on whether Morales’s
constitutional rights were violated, these instructions look to
whether the officers would have known their conduct
violated Morales’s rights, an inquiry that requires the court
to determine whether the law was “clearly established.” See


           This instruction relates to Plaintiff’s federal law
       claim for excessive force against Defendants Sonya
       Fry and Brian Rees.

            Defendants Fry and Rees contend that their use of
       force on Plaintiff was justified by their reasonable
       beliefs that their actions were permitted or required
       and, therefore, lawful. If the officers reasonably
       believed that the force used was lawful, and acted on
       the basis of that belief, then their reasonable beliefs
       would constitute a complete defense to the Plaintiff’s
       claim even if, in fact, the force was not lawful. Put
       another way, even if you find that Defendants Fry or
       Rees violated Plaintiff’s constitutional rights by using
       excessive force, Defendants cannot be liable if they
       reasonably believed at the time they acted that their
       actions were in accordance with the law. But keep in
       mind that this reasonableness inquiry is an objective
       one. The question is whether every reasonable officer
       under those same circumstances would believe that the
       use of force was unlawful.
                       MORALES V. FRY                         11

Ashcroft, 563 U.S. at 741; Pearson v. Callahan, 555 U.S.
223, 244 (2009).

    It was error for the district court to submit this inquiry to
the jury. To understand why, it is useful to start with the
foundations of the doctrine of qualified immunity. The
doctrine protects public officials “from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson, 555 U.S.
at 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). Accordingly, the two prongs of qualified
immunity balance two important, competing interests: the
need to hold public officials accountable for irresponsible
actions, and the need to shield them from liability when they
make reasonable mistakes. Id.

    By design, the issue of qualified immunity is usually
resolved “long before trial.” See Hunter v. Bryant, 502 U.S.
224, 228 (1991) (per curiam). The Supreme Court has
repeatedly stressed the importance of deciding qualified
immunity “at the earliest possible stage in litigation” in order
to preserve the doctrine’s status as a true “immunity from suit
rather than a mere defense to liability.” See id. at 227
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Early determination is often possible “because qualified
immunity most often turns on legal determinations, not
disputed facts.” Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th
Cir. 1994). In addition, courts are now empowered to
address the two prongs in whichever order would expedite
resolution of the case. See Pearson, 555 U.S. at 236–39
(noting that it is frequently “quick[er] and easi[e]r” to
determine whether a constitutional right was clearly
established than whether it was violated), overruling Saucier
v. Katz, 533 U.S. 194 (2001).
12                    MORALES V. FRY

    In particular, the question of whether a particular
constitutional right is “clearly established” is one that the
Supreme Court has increasingly emphasized is within the
province of the judge. To be sure, this inquiry has always
involved examining established precedent at a certain level
of granularity.

    The Court first adopted the “clearly established”
standard in 1982 in Harlow v. Fitzgerald out of concern that
whether officials met the previous “good faith” standard,
which included a subjective element, was too frequently
being considered a question of fact for juries to decide. See
457 U.S. at 815–17 & n.27. The Court hoped that an
objective inquiry into whether an official’s conduct
“violate[d] clearly established statutory or constitutional
rights of which a reasonable person would have known”
would by contrast “permit the resolution of many
insubstantial claims on summary judgment.” See id. at 818.

    In recent years, the Court has tightened the inquiry to
focus closely on an analysis of existing precedent. In 2011,
the Court clarified that while it “do[es] not require a case
directly on point . . . existing precedent must have placed the
statutory or constitutional question beyond debate,” such
that “every” reasonable official—not just “a” reasonable
official—would have understood that he was violating a
clearly established right. Ashcroft, 563 U.S. at 741
(emphasis added). In later cases, the Court reiterated that
clearly established law should not be defined “at a high level
of generality” and that the “dispositive question” is “whether
the violative nature of particular conduct is clearly
established.” See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (quoting Ashcroft, 563 U.S. at 742).
And this year in White v. Pauly, the Court stated that barring
an “obvious case” under Graham v. Connor, 490 U.S. 386
                      MORALES V. FRY                         13

(1989), or Tennessee v. Garner, 471 U.S. 1 (1985), the
“clearly established” analysis in the excessive force context
requires the court to “identify a case where an officer acting
under similar circumstances . . . was held to have violated
the Fourth Amendment.” 137 S. Ct. 548, 552 (2017) (per
curiam) (emphasis added).

    The upshot is that qualified immunity was conceived as
a summary judgment vehicle, and the trend of the Court’s
qualified immunity jurisprudence has been toward resolving
qualified immunity as a legal issue before trial whenever
possible. This approach presents a dilemma when, as here,
a qualified immunity case goes to trial because disputed
factual issues remain.         Qualified immunity is then
transformed from a doctrine providing immunity from suit
to one providing a defense at trial. See Torres v. City of Los
Angeles, 548 F.3d 1197, 1211 n.9 (9th Cir. 2008).
Nonetheless, comparing a given case with existing statutory
or constitutional precedent is quintessentially a question of
law for the judge, not the jury. A bifurcation of duties is
unavoidable: only the jury can decide the disputed factual
issues, while only the judge can decide whether the right was
clearly established once the factual issues are resolved. See,
e.g., Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (“The
controlling distinction between the power of the court and
that of the jury is that the former is the power to determine
the law and the latter to determine the facts.”).

    We recognized this principle in Tortu v. Las Vegas
Metropolitan Police Department, where we explained that
“whether a constitutional right was violated . . . is a question
of fact” for the jury, while “whether the right was clearly
established . . . is a question of law” for the judge. 556 F.3d
1075, 1085 (9th Cir. 2009). Similarly, in Act Up!/Portland
v. Bagley, we acknowledged that although facts related to an
14                    MORALES V. FRY

officer’s knowledge and what conduct actually occurred
could be disputed material facts to be determined by the fact
finder, “whether the law governing the conduct at issue is
clearly established is a question of law for the court.”
988 F.2d 868, 873 (9th Cir. 1993).

    The Ninth Circuit’s Model Civil Jury Instructions
support our view. They state that the Ninth Circuit Jury
Instructions Committee “has not formulated any instructions
concerning qualified immunity because most issues of
qualified immunity are resolved before trial, or the ultimate
question of qualified immunity is reserved for the judge to
be decided after trial based on the jury’s resolution of the
disputed facts.” Ninth Circuit Model Civil Jury Instruction
9.34 (2017) (noting that “qualified immunity is a question of
law, not a question of fact.”). As the Model Instructions
explain, “[w]hen there are disputed factual issues that are
necessary to a qualified immunity decision, these issues
must first be determined by the jury before the court can rule
on qualified immunity. The issue can then be raised in a
[Federal Rule of Civil Procedure] Rule 50(a) motion at the
close of evidence.” Id. (citing Tortu, 556 F.3d at 1083).

    Nearly all our sister circuits agree with the position we
adopt here. The First, Second, Third, Fourth, Sixth, Seventh,
Eighth, Eleventh, and D.C. Circuits take the view that
whether a right is clearly established is a legal issue for the
judge to decide, although special interrogatories to the jury
can be used to establish disputed material facts. See, e.g.,
Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007) (noting
that a district court that submits the clearly established
inquiry to the jury commits “reversible error”); Pitt v. Dist.
of Columbia, 491 F.3d 494, 509–10 (D.C. Cir. 2007);
Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005);
Littrell v. Franklin, 388 F.3d 578, 584 (8th Cir. 2004);
                          MORALES V. FRY                               15

Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.
2004); Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st
Cir. 2003); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th
Cir. 2002) (“Qualified immunity is a legal issue to be
decided by the court, and the jury interrogatories should not
even mention the term. Instead, the jury interrogatories
should be restricted to the who-what-when-where-why type
of historical fact issues.” (citation omitted)); Pouillon v. City
of Owosso, 206 F.3d 711, 718 (6th Cir. 2000); Warlick v.
Cross, 969 F.2d 303, 305 (7th Cir. 1992). 5 By contrast, only
the Fifth Circuit has unequivocally endorsed the jury
determining whether the right was clearly established if
qualified immunity is not decided until trial. See McCoy v.
Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).

    The Officers argue that the jury instructions were proper
because we have previously allowed the issue of qualified
immunity to be asserted at trial, citing three cases: Sloman v.
Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994), Ortega v.
O’Connor, 146 F.3d 1149, 1155 (9th Cir. 1998), and
Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988). None of
these cases is persuasive. Sloman explicitly reserved the
question “whether judge or jury should be the ultimate
decider once disputed foundational facts have been decided
by the jury.” 21 F.3d at 1468. In Ortega, the question
whether a jury should be instructed on qualified immunity
was not at issue: instead, “the only actual question on appeal
as to the qualified immunity issue [wa]s whether substantive

    5
        The Tenth Circuit also considers this the “better approach,”
although it acknowledges certain rare and “exceptional circumstances
where historical facts are so intertwined with the law” that the court can
permissibly “define the clearly established law for the jury” and then
allow the jury to “determine [whether] what the defendant actually did
. . . was reasonable in light of the clearly established law.” See Gonzales
v. Duran, 590 F.3d 855, 860-61 (10th Cir. 2009).
16                     MORALES V. FRY

law that the court set forth in the jury instructions was correct
and whether i[t] was clearly established in 1981.” 146 F.3d
at 1156. And to the extent that Ortega and Thorsted
suggested that the “clearly established” prong could be
submitted to the jury, we conclude that those cases are
clearly irreconcilable with intervening Supreme Court
authority. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc) (explaining that cases are clearly
irreconcilable where the higher court “ha[s] undercut the
theory or reasoning underlying the prior circuit precedent”).
Ortega and Thorsted employed a qualified immunity method
of analysis evoking “double reasonableness” that has now
been explicitly repudiated by the Supreme Court. See
Saucier, 533 U.S. at 202–03; Katz v. United States, 194 F.3d
962, 965 (9th Cir. 1999), overruled by 533 U.S. 194; Ortega,
146 F.3d at 1155–56; Thorsted, 858 F.2d at 575.

    For these reasons, the district court erred in submitting
the “clearly established” inquiry to the jury. The district
court did not determine as a matter of law what the
“established law” was nor did it offer the jury the
opportunity to decide separately any factual determinations
related to this prong of qualified immunity.

     B. Harmlessness

    In light of the jury instruction error, we consider whether
the error was harmless. See Dang v. Cross, 422 F.3d 800,
804, 811 (9th Cir. 2005) (explaining that reversal is not
required when “it is more probable than not that the jury
would have reached the same verdict”). We conclude that
                          MORALES V. FRY                               17

the error was not harmless with respect to Morales’s claims
against Officer Fry. 6

    Here, the special verdict forms only asked the jury:

         Question 1: Do you find for Plaintiff Maria
         Morales on her federal-law (§ 1983) claim
         for unlawful arrest against Defendant Sonya
         Fry?

              Answer: _ (Yes) X (No)

         Question 2: Do you find for Plaintiff Maria
         Morales on her federal-law (§ 1983) claim
         for excessive force against Defendant Sonya
         Fry?

              Answer: _ (Yes) X (No)

    Because the jury answered “No” to both questions, we
cannot determine if they found a constitutional violation.
One possibility is that the jury believed Officer Fry’s version
of events, found no underlying constitutional violation, and
so did not need to consider application of the clearly
established rule set out in Jury Instruction Nos. 20 and 21.
And even if the jury did so, whatever it found under these
instructions would be surplusage. In that scenario, the jury
would have found against Morales regardless. The district



    6
      No party challenges the jury instructions with respect to Morales’s
excessive force claim against Officer Rees. Officer Rees waived any
challenge to the jury instructions, since he offered them, and Morales
does not challenge the jury instructions since she prevailed on this claim.
18                         MORALES V. FRY

court’s ability to make a contrary finding would have been
extremely constrained.

    However, another very realistic scenario is that the jury
believed Morales’s version of events, found one or more
underlying constitutional violations, but also concluded that
Fry reasonably believed her actions were in accordance with
the law (although it was not defined for the jury). Had there
been a jury finding of a constitutional violation, the question
of clearly established law then would have been put to the
district court on a Rule 50(b) motion. The district court
could then have either granted or denied Fry qualified
immunity.

   We have no way of divining which scenario actually
happened. As a result, we cannot conclude that it is more
probable than not that Morales would have lost her claims
against Fry had the jury been properly instructed. See Dang,
422 F.3d at 804, 811. 7 Consequently, we must vacate the
verdict with respect to Morales’s unlawful arrest and
excessive force claims against Officer Fry and remand for a
new trial on these claims.

    On remand, the district court has discretion to employ
either a general verdict form, or submit special
interrogatories to the jury regarding the disputed issues of
material fact. See Fed. R. Civ. P. 49. Either way, once the

     7
        Nor can we determine as a matter of law that Morales’s
constitutional rights were not clearly established. Whether Officer Fry
had probable cause to arrest Morales, and therefore reasonably believed
that it was lawful to pull her over the bicycle, depends on disputed factual
issues that the jury never resolved in specific interrogatories, including
whether Morales said “Okay, bitch!” and whether she punched Officer
Fry.
                          MORALES V. FRY                               19

jury returns its verdict, the ultimate determination of whether
Officer Fry violated Morales’s clearly established rights is a
question reserved for the court. 8

II. Rule 50(b) Motion

    The district court properly denied Officer Rees’s
renewed motion for judgment as a matter of law on qualified
immunity. Because the jury found in favor of Morales on
her excessive force claim against Officer Rees, the district
court was required to construe the trial evidence in the light
most favorable to Morales in determining whether her rights
were clearly established. See Cal. Highway Patrol, 712 F.3d
at 453.

    Based on the evidence presented at trial, the jury could
have reasonably decided that Rees’s use of the pepper spray
against Morales was retaliatory. Rees testified that several
minutes before the incident between Officer Fry and
Morales, he had a prior encounter with Morales where he
placed a hand on her shoulder while informing her that she
needed to move in a certain direction, and Morales had
responded with “something to the effect of, ‘Get your
fucking hand off of me.’” Rees testified that he subsequently

    8
       We note that, as here, the difficulty of inferring how the jury
decided disputed factual issues based on a general verdict has often
resulted in multiple rounds of litigation. See, e.g., Curley, 499 F.3d 199
(3d Cir. 2007) (“Curley II”); Curley v. Klem, 298 F.3d 271 (3d Cir. 2002)
(“Curley I”); see also Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003).
Accordingly, the better practice may be for the district court to include
the factual interrogatories. See, e.g., Curley, 499 F.3d at 203–04
(providing examples of specific interrogatories); Stephenson, 332 F.3d
at 81 (same). Nonetheless, if the district court employs a general verdict,
it can still decide the clearly established issue on a Rule 50(b) motion by
resolving all factual disputes in favor of the prevailing party. See, e.g.,
A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013).
20                    MORALES V. FRY

lost track of Morales but recognized her again when she “got
back up onto her feet” after being pulled over the bike by
Fry. As the district court suggested, the jury could have
believed that, having recognized Morales from the earlier
encounter, Rees intentionally pepper-sprayed her in
retaliation for her earlier rudeness, and then claimed that he
discharged his pepper spray accidentally.

    If Rees had done so, he would have violated Morales’s
clearly established right not to have pepper spray used “to
intimidate . . . or retaliate against” her. Young v. Cty. of Los
Angeles, 655 F.3d 1156, 1162 (9th Cir. 2011). In addition,
intentionally pepper-spraying Morales for no legitimate law
enforcement reason would likely constitute an “obvious
case” of excessive force “where Graham and Garner alone
offer a basis for decision.” See Brosseau v. Haugen,
543 U.S. 194, 199 (2004) (per curiam) (citing Graham,
490 U.S. 386; Garner, 471 U.S. 1). Accordingly, we affirm
the district court’s denial of qualified immunity as to Officer
Rees.

III.   Attorney’s Fees

    The district court did not abuse its discretion in awarding
Morales $165,405 in attorney’s fees. In a § 1983 action, “the
court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs.” 42 U.S.C.
§ 1988(b). A plaintiff who receives a nominal damage
award for a § 1983 claim is a prevailing party under § 1988,
but “[i]f a district court chooses to award fees after a
judgment for only nominal damages, it must point to some
way in which the litigation succeeded, in addition to
obtaining a judgment for nominal damage.” Mahach-
Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010)
(citation omitted).
                      MORALES V. FRY                        21

     The Ninth Circuit has adopted Justice O’Connor’s
concurrence in Farrar v. Hobby, which set forth three factors
a district court should consider in determining whether a
plaintiff succeeded in some way beyond the judgment for
nominal damages. See Mahach-Watkins, 593 F.3d at 1059
(citing Farrar v. Hobby, 506 U.S. 103, 121 (1992)
(O’Connor, J., concurring)). The three factors are: (1) the
difference between the amount recovered and the damages
sought, which in most nominal damages cases will disfavor
an award of fees; (2) the significance of the legal issue on
which the plaintiff claims to have prevailed; and (3) whether
the plaintiff accomplished some public goal. Id. (citing
Farrar, 506 U.S. at 121 (O’Connor, J., concurring)). We
have held that “where the district court properly has weighed
these three factors, the resulting award of attorney’s fees is
not an abuse of its discretion.” See id. at 1060 (internal
quotation marks and citation omitted).

    Here, the district court properly weighed all three factors
in its fee order. The district court first noted that Morales
only received $1 in nominal damages, as opposed to the
approximately $62,500 Morales sought on her excessive
force claim against Officer Rees. The district court
acknowledged that this factor weighed against Morales, but
noted that it was not dispositive, since otherwise attorney’s
fees would never be awarded in nominal damages cases. See
id. We note, however, that the difference between the
damages sought and those awarded here is less dramatic than
in other cases where courts have denied fees. In Farrar, the
Supreme Court denied fees where the plaintiff asked for $17
million in damages and received $1. 506 U.S. at 121
(O’Connor, J., concurring). And we have denied attorney’s
fees where plaintiffs had sought $2 million dollars in
compensatory and punitive damages, but requested only
22                    MORALES V. FRY

“some sum like one dollar” at closing argument. Romberg
v. Nichols, 48 F.3d 453, 454 (9th Cir. 1995).

    The second factor compares the significance of the legal
issue on which the plaintiff claims prevailed to other issues
that circuit courts have held to qualify as important under
this factor. Rees argues that the use of “a split second” of
pepper spray is not as legally significant as an officer’s use
of deadly force. We don’t disagree, but the district court
found that the use of pepper spray is deemed to be
intermediate force that is capable of “inflicting significant
pain and causing serious injury.” Young, 655 F.3d at 1161.
While the use of pepper spray is “less severe than deadly
force, [it] nonetheless present[s] a significant intrusion upon
an individual’s liberty interests.” Id. at 1161–62. In
Mahach, we favorably contrasted the importance of an
officer’s use of deadly force to that of other issues such as
the right to be free from discrimination in school-sponsored
contact sports, the right to be free from illegal detention, and
the right to be free from cruel and unusual punishment. See
593 F.3d at 1062. Compared to these other issues, the use of
pepper spray on protestors constitutes a significant legal
issue.

    The third factor looks to whether the plaintiff
accomplished some public goal. Rees argues that the
precedential value of the excessive force finding is limited,
since Rees claims that he “had no memory of deploying the
spray” in the “chaotic and unclear circumstances” of the
protest. But as Rees concedes, the jury must have decided
that his use of pepper spray on Morales was intentional. The
district court found that Morales had accomplished a public
goal, because the jury’s excessive force finding put police
officers on notice that intentionally “pepper spray[ing]
unarmed, already-restrained but mildly-resistant suspects,
                         MORALES V. FRY                             23

even in loud and chaotic protest situations” violated clearly
established law, and it was likely that “in light of the
heightened civil protests this past year . . . the police will
find themselves in strikingly similar situations.” This
finding is consistent with Mahach, where we concluded that
the nominal damages award accomplished a public goal of
having a deterrent effect on police officers, even if the police
department involved in the shooting did not change its
formal policies or practices as a result of the lawsuit.
593 F.3d at 1062. 9

    Finally, the district court did not abuse its discretion in
the amount of fees awarded. The district court reduced the
fees from the $298,762 requested to $165,405. In so doing,
the district court reduced Morales’s attorneys’ hourly fees,
determined the reasonable number of hours needed to secure
Morales’s victory on her excessive force claim, and reduced
the amount of hours billed by one-third to one-half to
generate the lodestar amount. By contrast, Rees’s proposal
that Morales should only be awarded $6,494.83 because she




     9
       Rees points to Benton v. Oregon Student Assistance Commission
as support for the proposition that Morales should not be awarded
attorney’s fees because the litigation did not accomplish a public goal.
421 F.3d 901 (9th Cir. 2005). Notably in Benton, we found that no public
goal was accomplished because the defendant had voluntarily rectified
his wrongful conduct before the district court’s finding of a
constitutional violation and award of nominal damages. Id. at 907. Here,
there is no evidence that Rees or the Seattle Police Department
voluntarily admitted fault at any point in the proceedings, or that the
Seattle Police Department has modified its policies on pepper spray.
24                    MORALES V. FRY

only prevailed on 1 of the 46 claims in her original complaint
is an unreasonable metric.

    AFFIRMED IN PART, VACATED IN PART, and
REMANDED IN PART. Each party shall pay its own
costs on appeal.



BEA, Circuit Judge, dissenting.

    I respectfully dissent because I believe the district court
did not err in submitting Jury Instructions Nos. 20 and 21.
But even if submission of the instructions were error,
Morales failed to preserve the issue for appeal.

    First, the district court did not ask the jury to determine
a question of law. Counsel for plaintiff did not and does not
say what language in the jury instructions directed the jury
to decide what was the “clearly established” law at the time
of Morales’s arrest. Nor did counsel for plaintiff identify any
language in the jury instructions which told the jury that it
was their duty to determine the “clearly established” law.
Therefore, the district court did not err because the jury
instructions did not submit any question of law to the jury.

    Second, even if the jury instructions were deficient
because they did not sufficiently explain to the jury what was
the “clearly established” law at the time (or what conduct
would be “in accordance with the law”), Morales did not
specifically object to the jury instructions on that
basis. See Dist. Ct. Dkt. No. 121 at 2 (“It’s my view that
qualified immunity is a legal question, and that the jurors
should be submitted factual questions, not questions of
mixed fact and law, in the Ninth Circuit. So I would argue
that those two instructions, 20 and 21, are not proper.”); see
                      MORALES V. FRY                        25

also Fed. R. Civ. P. 51(c) (“A party who objects to an
instruction or the failure to give an instruction must do so on
the record, stating distinctly the matter objected to and the
grounds for the objection.”). Morales objected on the
grounds that Jury Instructions Nos. 20 and 21 submitted a
“legal question,” or, alternatively, a “question[ ] of mixed
fact and law” to the jury. She did not identify the legal
question (or question of mixed fact and law) which the
instructions purportedly submitted to the jury. That “legal
question” as to “qualified immunity” was precisely what was
the “clearly established” law which any reasonable officer
would know. Indeed, she did not object to the fact that the
jury instructions failed to inform the jury of the “clearly
established” law at the time. Nor did she “distinctly” state
what was the “clearly established” law that the district court
should have instructed the jury. Therefore, I would hold that
Morales waived any argument that the jury instructions
failed to explain to the jury what was the “clearly
established” law at the time of her arrest because she failed
to object distinctly to the instructions on that ground before
the district court.

    Although I disagree with the majority’s conclusion that
the district court erred in submitting the two instructions to
the jury, I agree with the conclusion that the error (assuming
now that there is one) was not harmless. It is impossible to
determine on the basis of the special verdict form whether
the jury decided that Officer Fry had not violated Morales’s
constitutional rights at all, or that Officer Fry had violated
Morales’s constitutional rights, but that those rights were not
clearly established. It is not “more probable than not that the
jury would have reached the same verdict had it been
properly instructed.” Dang v. Cross, 422 F.3d 800, 811 (9th
Cir. 2005) (quoting Galdamez v. Potter, 415 F.3d 1015,
26                   MORALES V. FRY

1025 (9th Cir. 2005)). Therefore, I agree that if the
instruction were error, then it would not have been harmless.

    However, because I continue to believe the district court
did not err in submitting Jury Instructions Nos. 20 and 21 to
the jury, I respectfully dissent.
