                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CHRISTOPHER ARMONDO TORTU,               
                  Plaintiff-Appellant,
                  v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; BILL YOUNG, in his
official capacity as Sheriff of the
Las Vegas Metropolitan Police
Department; RICHARD CASHTON,
individually and in his official
capacity as a Police Officer of the
Las Vegas Metropolitan Police
Department; EUGENE L. ENGLE,
individually and in his official              No. 06-16663
capacity as a Police Officer of the
Las Vegas Metropolitan Police                  D.C. No.
                                             CV-03-00783-RCJ
Department; DUANE COWLEY,
                                                OPINION
individually and in his official
capacity as a Police Officer of the
Las Vegas Metropolitan Police
Department; ALBERT REEDER,
individually and in his official
capacity as a Police Officer of the
Las Vegas Metropolitan Police
Department; JULIUS PRATOR,
individually and in his official
capacity as a Police Officer of the
Las Vegas Metropolitan Police
Department,
              Defendants-Appellees.
                                         


                              2459
2460           TORTU v. LAS VEGAS METRO. POLICE
         Appeal from the United States District Court
                  for the District of Nevada
          Robert C. Jones, District Judge, Presiding

                   Argued and Submitted
           May 12, 2008—San Francisco, California

                     Filed March 3, 2009

       Before: Procter Hug, Jr., Andrew J. Kleinfeld, and
                N. Randy Smith, Circuit Judges.

                 Opinion by Judge Hug;
Partial Concurrence and Partial Dissent by Judge N. Smith
             TORTU v. LAS VEGAS METRO. POLICE        2463




                       COUNSEL

Paola M. Armeni and Dominic P. Gentile, Gordon & Silver,
Ltd., Las Vegas, Nevada, for the appellant.

Thomas D. Dillard, Jr. and Peter M. Angulo, Olson, Cannon,
Gormley & Desruisseaux, Las Vegas, Nevada, for the appel-
lees.
2464           TORTU v. LAS VEGAS METRO. POLICE
                          OPINION

HUG, Circuit Judge:

   Christopher Tortu appeals the district court’s order granting
defendant Officer Eugene Engle’s motion for judgment as a
matter of law and, in the alternative, his motion for a new
trial. After the jury returned a verdict in favor of Officers
Richard Cashton and Duane Cowley but finding Engle liable,
the district court granted Engle’s Fed. R. Civ. P. 50(b) motion
for judgment as a matter of law and, alternatively, his Rule 59
motion for a new trial. However, neither Engle nor the other
two officers filed a Rule 50(a) motion for judgment as a mat-
ter of law. Tortu claims this procedural error should have pre-
vented Engle from filing a Rule 50(b) motion, and further
claims the district court abused its discretion when it granted
Engle’s motion for a new trial. Alternatively, Tortu argues the
district court erroneously found Engle protected by qualified
immunity.

   We have jurisdiction pursuant to 28 U.S.C. § 1291 and hold
that the district court should not have entertained Engle’s
Rule 50(b) motion because he failed to file a Rule 50(a)
motion, which must be filed before a court can consider a
Rule 50(b) motion. We also conclude the district court abused
its discretion when it granted Engle’s Rule 59 motion for a
new trial because the verdict was not against the clear weight
of the evidence. For the reasons discussed below, we reverse
the district court and remand with instructions to reinstate the
jury’s verdict and enter judgment accordingly.

          I.   Factual and Procedural Background

   This case arises out of Christopher Tortu’s arrest at the
McCarran International Airport in Las Vegas, Nevada on July
9, 2001. After filing his complaint seeking redress for the
alleged unreasonable force applied by the officers, the district
court granted defendants’ partial motion for summary judg-
                TORTU v. LAS VEGAS METRO. POLICE                 2465
ment and dismissed many of Tortu’s claims. The case then
proceeded to trial on the only issue remaining: whether Offi-
cers Richard Cashton, Duane Cowley, and Eugene Engle used
excessive force while arresting Tortu.

                      A.        Trial Proceedings

   During trial, both parties presented widely divergent
accounts of the events that transpired during Tortu’s arrest. In
its post-trial order, the district court heavily relied on these
vast differences in testimony as well as the significant amount
of testimony from the officers and their witnesses to grant
Engle’s post-trial motions. Accordingly, we provide a sum-
mary of the testimony presented at trial and include each
party’s account of the events when the two versions substan-
tially differed. To better understand the jury’s verdict, we sep-
arate the events into three acts: (1) the incident in the
terminal, (2) the incident in the jetway, and (3) the incidents
on the tarmac and in the police SUV.

                           1.    The Terminal

   Tortu, along with his traveling companion Kiley Fox,
arrived at the airport early for their Southwest Airlines flight
to Los Angeles. While playing video poker and waiting for
the plane, Tortu misplaced their tickets. The tickets were dis-
covered by an airport employee and turned in at the security
checkpoint. Fox left to retrieve the tickets at the security
checkpoint where the tickets were being held.1 As Fox was
retrieving the tickets, the gate agent closed the jetway door
and Tortu went up to the agent and asked to board the plane.
The gate agent told him he could not board the plane without
a ticket. Disregarding this instruction, Tortu followed the
agent and boarded the plane as the agent led another passen-
ger down the jetway.
  1
   At this Las Vegas airport, the checkpoint is a considerable distance
from the boarding gates and requires a tram ride.
2466          TORTU v. LAS VEGAS METRO. POLICE
   Once on the plane, the Southwest employees asked him to
leave because he had no ticket. He refused. A Southwest offi-
cial then called the police, and an officer escorted Tortu off
the plane. As he was exiting the jetway, Tortu yelled at a
Southwest manager and angrily walked away from the gate.

   The officers at the scene walked toward Tortu and asked
him to stop walking away. Once he finally stopped, Tortu and
the officers engaged in a verbal altercation that grew in sever-
ity. Tortu testified that at least three officers then jumped him
from behind and handcuffed him. The officers, however,
stated that Tortu forcibly resisted their questioning and arrest
attempt, requiring the officers to force Tortu onto the ground
to handcuff him. Tortu contended that, after securing the
handcuffs, the officers continuously beat him—a claim the
officers denied. The three defendant officers, Cashton, Cow-
ley and Engle, then took Tortu to an empty jetway.

                       2.    The Jetway

   Once in the jetway, the officers testified that Tortu became
combative and fought them as they led him down the jetway.
Tortu, however, claimed the officers continuously roughed
him up while bringing him down the jetway. Specifically,
Tortu stated they stuck him in a luggage-sizing bin at the end
of the jetway and beat him. Tortu claimed these beatings were
so severe that, while punching him, Officer Cashton’s pecto-
ral muscle detached from the bone and tore his rotator cuff.
The officers denied beating Tortu and testified that these inju-
ries occurred when Tortu lowered his shoulder into Cashton,
slamming him into the jetway wall. Three Southwest employ-
ees observed the actions in the jetway and substantiated the
defendants’ contentions.

   The officers then led Tortu down the jetway stairs and onto
the tarmac. While the officers brought Tortu down the stairs,
they testified he was very disruptive and stuck his feet
between the steps, purposefully impeding their progress.
               TORTU v. LAS VEGAS METRO. POLICE             2467
Tortu, however, claimed the officers forcibly dragged him
down the staircase.

               3.   The Tarmac and Police SUV

   Once on the tarmac, Tortu testified that the officers threw
him to the ground and Officer Engle punched him in the back
of the head, bruising and cutting Engle’s hand. Engle, in con-
trast, testified that Tortu caused these hand injuries during the
scuffle in the jetway.

   After being thrown on the ground, Tortu testified that the
officers threw him on the hood of the police SUV and forced
him into the back seat of the SUV. With Tortu still hand-
cuffed, the officers sat him between Officers Cashton and
Cowley in the back seat. Tortu testified that Officer Engle
then reached back between the two front seats and squeezed
Tortu’s testicles as hard as he could for about ten seconds.
Tortu stated the pain was so severe that he could not breathe.
All three officers denied squeezing or in any way intention-
ally harming Tortu’s testicles. After this final incident, Engle
drove Tortu, along with Cashton and Cowley, to the airport
police substation and then on to the Clark County Detention
Center. The Southwest employees did not observe the inci-
dents on the tarmac or in the vehicle.

          4.   Medical Evidence of Tortu’s Injuries

   At trial, Tortu presented significant medical evidence of his
injuries from these events including testimony of examining
doctors.

   The day after Tortu got out of jail, he visited a primary care
physician to examine his injuries. The doctor noted that the
left side of Tortu’s face was swollen with bruises, he had a
lump on the back of his head and also large bruises on the
side of his body. The doctor then examined Tortu’s testicles
and found them very swollen, tender, and bruised. During this
2468          TORTU v. LAS VEGAS METRO. POLICE
examination, Tortu complained of exceptional pain when the
doctor touched his testicles. The doctor ordered an ultrasound,
which indicated blood in the testes. Because of this test result
and the rest of Tortu’s injuries, the doctor referred Tortu to a
urologist, a neurologist, and an orthopedic surgeon. The medi-
cal bills from these visits totaled nearly $4400.

   Eleven days after the incident, the urologist’s exam
revealed a hematoma in Tortu’s scrotum, a significant bruise
on the scrotal skin, and tenderness along the spermatic cords
on both sides of his testicles. The urologist further noted
Tortu experienced extreme pain and tenderness when he
touched Tortu’s testicles. The urologist testified that squeez-
ing Tortu’s testicles could have led to these testicular and
scrotal injuries.

             5.    Jury Instructions and Verdict

   After four days of trial, the judge and counsel for the par-
ties discussed the proposed jury instructions. The defendants
offered a proposed jury instruction on qualified immunity.
The judge refused the instruction. He explained his reason as
follows:

    I don’t think it’s appropriate to give this [qualified
    immunity] instruction here. It’s a matter for the
    Court if the jury concludes and comes back with a
    finding of liability. You’re at liberty, either in the
    context of a motion for new trial or motion for judg-
    ment notwithstanding, to argue that th[e] second
    prong . . . has not been met by the plaintiff; that is,
    even though the jury found unreasonable use of
    force, that’s the factual issue, it would be reasonable
    for an officer to conclude that the use of a strike to
    the groin in counteracting a resistance to arrest was
    a reasonable misinterpretation under the current case
    law. . . . [T]herefore, I’ve stricken this instruction
    and believe that the more appropriate place is either
               TORTU v. LAS VEGAS METRO. POLICE               2469
      in a motion for summary judgment up front or in a
      motion for judgment notwithstanding or otherwise.

The judge later added that qualified immunity is “a legal
question that the jury just shouldn’t answer.” Both parties
agree that the qualified immunity determination is an issue of
law for the judge.

   Engle argues these statements and indications by Judge
Jones directed the officers not to file a Rule 50(a) motion for
judgment as a matter of law before the case was submitted to
the jury. Engle contends the judge led the officers to believe
that he did not want and would not require them to file the
Rule 50(a) motion. Therefore, none of the officers filed a Rule
50(a) motion before the matter was submitted to the jury.

  After receiving instructions and deliberating for a few
hours, the jury returned a verdict finding Cashton and Cowley
not liable, but finding Engle liable. The jury was not provided
with special interrogatories. It only answered the question of
whether each officer was liable and, if so, the amount of dam-
ages. The jury awarded Tortu $175,000 in compensatory dam-
ages and $5,000 in punitive damages.

                 B.   Post-Verdict Proceedings

   After the verdict, Engle filed a Rule 50(b) motion for judg-
ment as a matter of law and, in the alternative, a Rule 59
motion for a new trial. The district court entertained the Rule
50(b) motion despite not having received a Rule 50(a) motion
before the court submitted the case to the jury. The district
court then granted the Rule 50(b) motion and, alternatively,
the motion for a new trial.

 1.     The Rule 50(b) Motion for Judgment as a Matter of
                              Law

  In its post-trial order, the district court stated that it “indi-
cated at trial that it would consider the qualified immunity
2470           TORTU v. LAS VEGAS METRO. POLICE
defense, if necessary, after trial since it necessitates a legal
determination.” The district court then considered Engle’s
motions and found him entitled to judgment as a matter of law
because “(1) the jury reached an unreasonable conclusion, and
(2) Officer Engle is protected by qualified immunity in this
case.”

   In its discussion granting qualified immunity to Engle, the
district court noted that it had declined to address this issue
until after the jury rendered its verdict. After conducting an
analysis under Saucier v. Katz, 533 U.S. 194 (2001), the dis-
trict court found Engle protected by qualified immunity
because his actions were reasonable while he acted under his
authority as a law enforcement officer.

          2.   The Rule 59 Motion for a New Trial

   The district court also granted Engle’s alternative motion
for a new trial. In granting this motion, the district court again
cited an unreasonable jury verdict that was against the clear
weight of the evidence, as well as the court’s finding that
Engle was protected by qualified immunity. The district court
also found that the jury awarded excessive damages to Tortu.
The district court did not provide for a remittitur in lieu of a
new trial, but just granted Engle’s Rule 59 motion for new
trial. Tortu timely filed this appeal.

                         II.   Analysis

 A.    Rule 50(b) Motion for Judgment as a Matter of Law

   Tortu first contends the district court improperly enter-
tained and granted Engle’s Rule 50(b) motion for judgment as
a matter of law. We review the district court’s grant of a
motion for judgment as a matter of law de novo. Wallace v.
City of San Diego, 479 F.3d 616, 624 (9th Cir. 2007).

  Tortu’s appeal requires us to address the procedural
requirements of Rule 50 of the Federal Rules of Civil Proce-
                TORTU v. LAS VEGAS METRO. POLICE                 2471
dure. In particular, Rule 50 requires a party seeking judgment
as a matter of law to file a Rule 50(a) motion at any time
before the case is submitted to the jury. If the jury later
returns a verdict against the moving party, this party may then
file a Rule 50(b) motion for judgment as a matter of law.

  [1] To explain these procedural requirements in greater
detail, we begin with the plain language of Rule 50(b):

      (b) Renewing the Motion After Trial; Alternative
      Motion for a New Trial. If the court does not grant
      a motion for judgment as a matter of law made under
      Rule 50(a), the court is considered to have submitted
      the action to the jury subject to the court’s later
      deciding the legal questions raised by the motion. No
      later than 10 days after the entry of judgment—or if
      the motion addresses a jury issue not decided by a
      verdict, no later than 10 days after the jury was
      discharged—the movant may file a renewed motion
      for judgment as a matter of law and may include an
      alternative or joint request for a new trial under Rule
      59.

Fed. R. Civ. P. 50(b). As explicitly stated in the Rule, a Rule
50(b) motion may be considered only if a Rule 50(a) motion
for judgment as a matter of law has been previously made.
Further, the advisory committee notes to Rule 50 explicitly
emphasized this requirement in the 1963 amendments: “A
motion for judgment notwithstanding the verdict will not lie
unless it was preceded by a motion for a directed verdict
made at the close of all the evidence.”2 Fed. R. Civ. P. 50
advisory committee’s note on 1963 amendments (emphasis
added). Later, the notes to the 1991 amendments reiterated
this requirement. “This provision retains the concept of the
  2
    The terms “judgment notwithstanding the verdict” and “directed ver-
dict” have now been combined and simply termed “judgment as a matter
of law.”
2472            TORTU v. LAS VEGAS METRO. POLICE
former rule that the post-verdict motion is a renewal of an ear-
lier motion made at the close of the evidence. . . . A post-trial
motion for judgment can be granted only on grounds
advanced in the pre-verdict motion.” Fed. R. Civ. P. 50 advi-
sory committee’s note on 1991 amendments. The Rule itself,
as well as these amendments, explicitly require a previous
motion to be made before submission to the jury.

   [2] As Rule 50 and its notes clearly instruct, we strictly
construe the procedural requirement of filing a Rule 50(a)
motion before filing a Rule 50(b) motion. Janes v. Wal-Mart
Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002); see also Image
Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195,
1212 (9th Cir. 1997) (“We strictly adhere to the requirements
of Rule 50(b), which prohibit a party from moving for a judg-
ment as a matter of law after the jury’s verdict unless that
motion was first presented at the close of evidence.”) (citation
omitted).3 Fed. R. Civ. P. 50(a)(2) states that:

      A motion for judgment as a matter of law may be
      made at any time before the case is submitted to the
      jury. The motion must specify the judgment sought
      and the law and facts that entitle the movant to the
      judgment.

   Although Engle admits that he failed to file a Rule 50(a)
motion, he argues that the rule “is not one of technical preci-
sion” and must be “interpreted according to its underlying
purposes.” Engle’s contentions here parallel the unsuccessful
arguments of Wal-Mart in Janes. In Janes, Wal-Mart failed to
move for judgment as a matter of law but argued that its
motion for summary judgment and trial brief satisfied the
requirements for a Rule 50(a) motion. Janes, 279 F.3d at 886-
87. We disagreed and held the trial brief and summary judg-
ment motion were insufficient to establish a proper motion
  3
    This requirement has since been clarified to mean before submission
to the jury. See infra note 4.
                  TORTU v. LAS VEGAS METRO. POLICE                     2473
and that “substantial compliance is not enough.” Id. at 887.
Wal-Mart’s failure to file a Rule 50(a) motion therefore pro-
hibited the district court from entertaining its Rule 50(b)
motion.

   [3] Here, Engle similarly urges that his motions made pre-
trial and during trial should suffice for a Rule 50(a) motion.
We fail to see a rational distinction from Janes. Engle com-
mitted the error of failing to file a Rule 50(a) motion just as
Wal-Mart did. Accordingly, we conclude that Engle’s other
motions do not compensate for his failure to file a Rule 50(a)
motion.

  Engle next argues that he fits an exception to the require-
ment of filing a Rule 50(a) motion at the close of the case,
which allows a Rule 50(b) motion to be considered when an
earlier motion has been taken under advisement by the trial
judge. This exception, however, is carved out of a “strictly
observed” requirement that counsel properly follow Rule 50
procedures. Farley Transp. Co. v. Santa Fe Trail Transp. Co.,
786 F.2d 1342, 1346 (9th Cir. 1985).

  Our decision in Farley only created an exception to the
requirement that the motion be made at the close of the
evidence—an exception adopted by and added into the Rule
by the 2006 Amendments.4 Fed. R. Civ. P. 50 advisory com-
  4
   The note to the 2006 Amendments states, in pertinent part:
         Rule 50(b) is amended to permit renewal of any Rule 50(a)
      motion for judgment as a matter of law, deleting the requirement
      that a motion be made at the close of all the evidence. Because
      the Rule 50(b) motion is only a renewal of the preverdict motion,
      it can be granted only on grounds advanced in the preverdict
      motion. . . .
         This change responds to many decisions that have begun to
      move away from requiring a motion for judgment as a matter of
      law at the literal close of all the evidence. . . . The courts are
      slowly working away from the formal requirement.
Fed. R. Civ. P. 50 advisory committee’s note on 2006 amendments.
2474          TORTU v. LAS VEGAS METRO. POLICE
mittee’s note on 2006 amendments; Farley, 786 F.2d at 1346.
Although the motion is no longer required to be made at the
close of the evidence, a motion must be made before the judge
submits the case to the jury. Failing to make a Rule 50(a)
motion before the case is submitted to the jury forecloses the
possibility of considering a Rule 50(b) motion. Simply put,
Farley still requires the filing of a 50(a) motion. See Farley,
786 F.2d at 1345-47; Janes, 279 F.3d at 886-88. Engle’s fail-
ure to do so defeats his argument.

   Finally, Engle asserts that the district court induced him not
to file the 50(a) motion. This argument relies on the district
court’s statement that qualified immunity should only be
argued if the jury returned a verdict against Engle or one of
the other defendants. See supra Part I.A.5, p. 2468-69. Engle
contends that this statement constituted an instruction not to
file a Rule 50(a) motion and therefore created an exception to
the requirement of filing a Rule 50(a) motion.

   This argument is without merit. The district court denied
Engle’s request for a jury instruction because it determined
that qualified immunity was to be decided by the court as a
matter of law, not to absolve Engle of the procedural obliga-
tion to file a Rule 50(a) motion. While the court did indicate
that Engle was at liberty in the context of a motion for judg-
ment as a matter of law to argue that he was entitled to quali-
fied immunity, it did not specify how that issue could
properly be brought before the court. Engle could have filed
a Rule 50(a) motion at that time because it was before the
matter had been submitted to the jury. Instead, he disregarded
the Rule’s clear requirements and did not file the motion.

   [4] This failure to file a Rule 50(a) motion precludes con-
sideration of a Rule 50(b) motion for judgment as a matter of
law. We hold that the district court should not have consid-
ered Engle’s Rule 50(b) motion because it was procedurally
foreclosed by Engle’s failure to file a Rule 50(a) motion.
When a qualified immunity claim cannot be resolved before
                  TORTU v. LAS VEGAS METRO. POLICE             2475
trial due to a factual conflict, it is a litigant’s responsibility to
preserve the legal issue for determination after the jury
resolves the factual conflict. A Rule 50(a) motion meets this
requirement.

             B.        Rule 59 Motion for a New Trial

   Tortu also argues that the district court improperly granted
Engle’s alternate Rule 59 motion for a new trial. We review
the district court’s grant of a new trial for an abuse of discre-
tion. Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d
735, 742 (9th Cir. 2003). “The trial court may grant a new
trial only if the jury’s verdict was against the clear weight of
the evidence.” Id. We may conclude that the district court
abused its discretion if the jury’s verdict is not against the
clear weight of the evidence. Id. As the district court con-
cluded that Engle was entitled to a new trial on three distinct
bases, we address each basis separately.

                  1.    Unreasonable Jury Verdict

   The district court based its decision that the jury’s verdict
was against the clear weight of the evidence largely on the
ground that its verdict for Officers Cashton and Cowley was
inconsistent with a verdict against Officer Engle. The court
stated that “by finding that Officers Cashton and Cowley did
not use unreasonable force, the jury concluded that Plaintiff
was lying at least about (1) the events in the terminal at the
time of the arrest . . . , (2) the beating in the jetway . . ., and
(3) the kidney punches delivered after the officers threw
Plaintiff over the hood of the police vehicle.”

  [5] Contrary to the district court’s view, the jury verdict
only demonstrates that Tortu did not bear his burden of proof
by a preponderance of the evidence that all of the officers
used excessive force in effecting the arrest. As we have
pointed out, the record contains conflicting accounts of the
type of force used by all of the officers at various stages of
2476            TORTU v. LAS VEGAS METRO. POLICE
the arrest and Tortu’s level of resistance throughout the pro-
cess. From the verdict, we cannot say the jury found that
either Tortu’s or the officers’ version of the events involving
all the defendants was truthful or correct, as there were no
special interrogatories.

   [6] As to Officer Engle, there was separate evidence of his
excessive use of force, principally involving his squeezing of
Tortu’s testicles for ten seconds while Tortu was handcuffed
and seated in the police car. Though the defendants, and an
additional officer at the scene, denied that the testicle squeez-
ing occurred, the medical evidence showed definite injury to
the testicles for which Engle afforded no explanation. Dr.
Debellis, who examined Tortu after he got out of jail, palpated
Tortu’s testicles and found that they were swollen, tender, and
bruised and that Tortu complained of severe pain during the
palpation. The doctor ordered an ultrasound and the results
indicated blood in the testicles. Dr. Debellis sent Tortu to Dr.
Zapinsky, a urologist. Dr. Zapinsky found hematoma of the
scrotum, tenderness along the spermatic cords, and that the
testicles were quite tender to the touch.

   The jury’s verdict is also supported by parsing the events
of Tortu’s arrest into three segments: the terminal, the jetway,
and the tarmac/SUV. In the first two segments (the terminal
and the jetway), the officers presented significant evidence
that Tortu violently protested being arrested. Notably, this
evidence consisted of testimony from non-parties that was
consistent with the officers’ testimony.

  The third segment involved testimony from the parties and
one deputy, who showed up on the scene. The medical evi-
dence presented at trial, however, provided irrefutable evi-
dence that there had been injury to the testicles. Engle offered
no alternative explanation as to how Tortu’s injury may have
occurred other than Engle’s squeezing of Tortu’s testicles.5
  5
    Although the district court cited some evidence that the configuration
of the police car would have made it impossible for Engle to have reached
                  TORTU v. LAS VEGAS METRO. POLICE                       2477
   [7] In finding the jury’s decision mistaken and ungrounded,
the district court took its own view of the medical evidence
in place of the jury’s—an impermissible practice. See Silver
Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d
814, 819 (9th Cir. 2001). In its order, the district court noted
that it did not believe Tortu suffered significant injuries
because he did not return for follow-up visits. While the dis-
trict court may view the case in this light, the jury, on the
basis of reasonable evidence, viewed the facts in a different
light. The district court cannot substitute its “evaluations for
those of the jurors.” Terrible Herbst, Inc., 331 F.3d at 743;
see also Silver Sage Partners, Ltd., 251 F.3d at 819 (“[A] dis-
trict court may not grant a new trial simply because it would
have arrived at a different verdict.”). Here, the district court
did that when it discounted Tortu’s medical evidence. We
conclude that the jury’s verdict on the issue of liability is not
against the clear weight of the evidence.6

Tortu’s testicles, the jury’s finding to the contrary was also not against the
clear weight of the evidence, especially because it is clear there was seri-
ous injury to the testicles that was otherwise unexplained.
   6
     The dissent relies upon the district court’s rationale that the jury could
not have reached its verdict against Engle alone unless the jury believed
all of the officers’ stories except what happened on the tarmac and in the
SUV. See infra, pp. 2484-85. The vital evidence upon which the jury obvi-
ously relied is the squeezing of Tortu’s testicles in the SUV. This evidence
is very distinct from the conflicting evidence as to the beatings and resis-
tance to arrest in the airport, in the jetway, and on the tarmac. The jury did
not have to decide that it believed Tortu or Officers Cashton or Crowley
on these issues. The only finding necessary was that Tortu did not carry
his burden of proof in showing that the officers’ force was excessive in
light of his resistance.
   No testimony or other evidence indicates that Tortu was resisting arrest
at the time of the testicle squeezing. He was handcuffed and seated in the
rear seat of the SUV between two police officers. Tortu testified that
Engle reached back and squeezed his testicles for ten seconds. The injury
to the testicles was well supported by medical evidence. Engle offered no
evidence of how else that injury could have occurred. The jury’s finding
on that distinct issue was not against the clear weight of the evidence.
2478             TORTU v. LAS VEGAS METRO. POLICE
                       2.    Qualified Immunity

   In Pearson v. Callahan, 555 U.S. ___, No. 07-751 (Jan. 21,
2009), the Supreme Court revisited its discussion of qualified
immunity in Saucier v. Katz, 533 U.S. 194 (2001). The Court
in Pearson succinctly summarized as follows the require-
ments necessary for government officials to establish quali-
fied immunity:

         In Saucier, this Court mandated a two-step
      sequence for resolving government officials’ quali-
      fied immunity claims. First, a court must decide
      whether the facts that a plaintiff has alleged (see Fed.
      Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules
      50, 56) make out a violation of a constitutional right.
      Second, if the plaintiff has satisfied this first step, the
      court must decide whether the right at issue was
      “clearly established” at the time of defendant’s
      alleged misconduct.

Slip op. at 6 (citations omitted).7 The Court “stressed the
importance of resolving immunity questions at the earliest
possible stage in litigation.” Id. (quotation marks omitted). In
this case, there was no attempt to resolve the immunity issue
at the Rule 12(b)(6) dismissal stage or at the Rule 56 sum-
mary judgment stage. As we have discussed, no proper
motion was made at the Rule 50 stage to resolve the issue as
a matter of law.8
  7
     Pearson only modified Saucier on procedural grounds. Whereas Sau-
cier set forth a mandatory requirement that step one be considered before
step two, 533 U.S. at 200, the Pearson Court held that this sequence is no
longer a mandatory, inflexible requirement. Slip op. at 10. Indeed, the
Court provided several situations in which following the Saucier sequence
is not advisable. Id. at 11-17.
   8
     In the case cited by the dissent, Torres v. City of Los Angeles, 548 F.3d
1197 (9th Cir. 2008), the issue of qualified immunity was also not brought
at an early stage in the litigation; however, the defendants’ properly made
a Rule 50(a) motion before the jury verdict, and the court then resolved
the issue of immunity as a matter of law. Id. at 1210-11.
                 TORTU v. LAS VEGAS METRO. POLICE                     2479
   [8] In applying the Supreme Court authority, we conclude
that a qualified immunity analysis consists of two steps. The
first step analyzes whether a constitutional right was violated,
which is a question of fact. The second examines whether the
right was clearly established, which is a question of law. Step
two serves the aim of refining the legal standard and is solely
a question of law for the judge. Saucier, 533 U.S. at 201. The
district court recognized this principle in declining a jury
instruction on this issue. As a question of law, the second part
of this analysis, when brought at this late stage, is an issue for
a judgment as a matter of law under Rule 50(a) and (b), which
was not properly brought before the court. This legal matter
cannot be appropriately considered on a motion for a new
trial, where the issue is whether the jury’s verdict is against
the clear weight of the evidence.9

                      3.   Excessive Damages

   The district court’s other basis for a new trial was that the
“jury awarded speculative, excessive damages unsupported by
the evidence.” We review a district court order granting a new
trial because of excessive damages for an abuse of discretion.
Simpson v. Union Oil Co. of Cal., 411 F.2d 897, 907-08 (9th
Cir. 1969), rev’d on other grounds, 396 U.S. 13 (1969); see
also 11 Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice and Procedure § 2820, p. 219 (2d ed.
1995).
  9
    The dissent contends that a new trial can properly be granted on the
independent ground of qualified immunity. The determination of qualified
immunity at step two is strictly a legal question of whether, even though
the facts alleged by the plaintiff make out a constitutional violation, that
constitutional right was not clearly established. That issue could have been
raised by a motion under Rule 50(a), as was done in Torres, 548 F.3d at
1210. However, without the requisite Rule 50(a) motion, this purely legal
issue could not be revived under Rule 50(b). There is no authority that this
legal issue could be revived as a ground for a new trial under Rule 59.
2480           TORTU v. LAS VEGAS METRO. POLICE
   In determining that the damages award was speculative and
excessive, the district court cited three types of evidence from
which the jury could have calculated the amount of damages
(medical bills, Tortu’s physical pain, and his lost job). It then
determined that the only evidence from which the jury could
properly calculate damages were the medical bills and two
weeks of pain and discomfort. The district court had elimi-
nated consideration of lost wages with its explicit instruction
to the jury that Tortu’s testimony was insufficient to support
a claim for lost wages. In reaching the two-week time frame
for pain and suffering, the court noted that Tortu never
returned to the doctors for requested follow-up visits.

   [9] The district court found that Tortu’s injuries could not
justify an award of $175,000 in compensatory and $5,000 in
punitive damages. It surmised that the jury awarded the dam-
ages, in part, because Tortu lost his job. In closing, the district
court stated that it did not believe the jury’s award was rea-
sonable and should not have included the lost wages. There
was no basis for the court to find that the jury ignored its
explicit instruction not to award damages for lost wages, nor
was the jury required to limit its findings of pain and suffering
to only two weeks because Tortu did not return to the doctors.
The jury could reasonably have determined that Tortu thought
there was nothing further the doctors could do.

   The district court’s discussion of excessive damages omit-
ted any mention of the personal humiliation and emotional
suffering that Tortu experienced. This omission is inconsistent
with the district court’s own jury instruction that “[d]amages
means the amount of money which will reasonably and fairly
compensate the plaintiff for any injury . . . [including] emo-
tional pain and suffering.” Furthermore, the Supreme Court
has stated that § 1983 damages may include “impairment of
reputation, personal humiliation, and mental anguish and suf-
fering.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,
307 (1986) (internal punctuation and citation omitted).
              TORTU v. LAS VEGAS METRO. POLICE              2481
   [10] The district court’s failure to consider emotional injury
reflects an inaccurate view of the law. “[C]ompensatory dam-
ages may be awarded for humiliation and emotional distress
established by testimony or inferred from the circumstances,
whether or not plaintiffs submit evidence of economic loss or
mental or physical symptoms.” Johnson v. Hale, 13 F.3d
1351, 1352 (9th Cir. 1994). Here the jury found that Engle
used unreasonable force against Tortu. Tortu testified before
the jury that this force was primarily applied to his testicles,
and medical evidence supported this claim. Tortu also testi-
fied that the incident caused him excruciating pain, humiliated
him, and caused him ongoing embarrassment. We conclude
that the jury’s verdict is not against the clear weight of the
evidence. The district court abused its discretion in granting
a new trial.

                      III.   Conclusion

  For the reasons stated above, we REVERSE the district
court and REMAND with instructions to reinstate the jury’s
verdict and enter judgment accordingly.



N. RANDY SMITH, Circuit Judge, Concurring in Part, Dis-
senting in Part:

   The majority, in Part II.B of its opinion, holds that the dis-
trict court abused its discretion by granting a new trial. In
making that decision regarding the motion for a new trial, the
majority fails to accord the trial judge’s decision the appropri-
ate deference when applying an “abuse of discretion” stan-
dard. While only reading the trial transcripts, the majority
substitutes its contested view of the trial evidence and calls
the trial court’s view of the same evidence an abuse. There-
fore, I dissent from that part of the opinion.
2482           TORTU v. LAS VEGAS METRO. POLICE
    I.   Application of the Abuse of Discretion Standard

   The Federal Rules of Civil Procedure require that, in cases
in which a party has moved for judgment as a matter of law,
“the court shall also rule on the motion for a new trial, if any,
by determining whether it should be granted if the judgment
is thereafter vacated or reversed, and shall specify the grounds
for granting or denying the motion for a new trial.” Fed. R.
Civ. P. 50(b).

   Our law requires us to affirm a district court’s discretionary
decision in granting a new trial, if any of its grounds for
granting a new trial are reasonable. Oltz v. St. Peter’s Cmty.
Hosp., 861 F.2d 1440, 1452 (9th Cir. 1988) (citations omit-
ted). Under this standard, even if substantial evidence sup-
ports the jury’s verdict, a trial court may grant a new trial (1)
if the verdict is (a) contrary to the clear weight of the evidence
or (b) is based upon evidence which is false, (2) to prevent a
miscarriage of justice, or (3) if the award of compensation is
excessive. See Montgomery Ward & Co. v. Duncan, 311 U.S.
243, 251 (1940); United States v. 4.0 Acres of Land, 175 F.3d
1133, 1139 (9th Cir. 1999) (citation omitted); Murphy v. City
of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990). In deter-
mining the clear weight of the evidence, a district court has
“the duty[ ] to weigh the evidence as [the court] saw it, and
to set aside the verdict of the jury, even though supported by
substantial evidence, where, in [the court’s] conscientious
opinion, the verdict is contrary to the clear weight of the evi-
dence . . . .” Murphy, 914 F.2d at 187 (quoting Moist Cold
Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246, 256 (9th
Cir. 1957)). When it is necessary to prevent, in the sound dis-
cretion of the trial judge, a miscarriage of justice the district
court may also weigh the evidence and set aside the verdict.
Id. The district court may also grant a new trial when in his
judgment the trial judge finds that the “amount of compensa-
tion awarded is excessive.” Hanson v. Shell Oil Co., 541 F.2d
1352, 1359 (9th Cir. 1976) (citation and internal quotation
marks omitted); see also Fenner v. Dependable Trucking Co.,
              TORTU v. LAS VEGAS METRO. POLICE              2483
Inc., 716 F.2d 598, 603 (9th Cir. 1983) (stating “[o]nce the
trial court finds a verdict excessive, the court cannot allow it
to stand.”). Therefore, in a nut shell, the district court may
grant a new trial “[i]f, having given full respect to the jury’s
findings, the judge on the entire evidence is left with the defi-
nite and firm conviction that a mistake has been committed
. . . .” Landes Constr. Co., Inc. v. Royal Bank of Canada, 833
F.2d 1365, 1371-72 (9th Cir. 1987).

   The law grants trial courts judicial discretion in making this
decision for two reasons: (1) the trial judge is the only objec-
tive person (with legal training), who was at the trial and able
to see, hear, and evaluate the situation using firsthand knowl-
edge; and (2) it would be impossible to construct any strict
rule, which would be applicable to every conceivable motion
for a new trial. Therefore, to reverse a district court under the
abuse of discretion standard, an “appellate court [has to be]
convinced firmly that the reviewed decision lies beyond the
pale of reasonable justification under the circumstances.”
Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). I
emphasize this is not the review of a trial court’s determina-
tion of a motion for summary judgment (de novo review) or
a motion for a judgment as a matter of law (de novo review),
which motion is generally made at the same time as the
motion for new trial. Instead, we are reviewing whether the
trial judge (vested by law to use his discretion in the four
above mentioned circumstances) abused it in granting a new
trial.

   In this case, the district court granted the motion for a new
trial on the grounds that (1) the jury’s verdict was against the
clear weight of the evidence, (2) Officer Engle was protected
by the doctrine of qualified immunity, and (3) the jury’s
award was excessive and based on speculation. Given this
record, the district court did not abuse its discretion.

              II.   Clear Weight of the Evidence

  The district court did not abuse its discretion, when it
granted a new trial because the jury’s verdict was against the
2484            TORTU v. LAS VEGAS METRO. POLICE
clear weight of the evidence. Again, when a motion for a new
trial is made, on the ground that the weight of the evidence
is contrary to the jury’s verdict, the judge is free to weigh the
evidence for himself. See Murphy, 914 F.2d at 187; see also
11 Charles Alan Wright et al., Federal Practice and Proce-
dure § 2806 (2008) (citations omitted).

   Two very different stories were told at trial, describing
what transpired on July 9, 2001. Reviewing the evidence, it
clearly indicated that Tortu’s testimony, (regarding the events
that occurred in the terminal and jetway) was wholly inaccu-
rate and unbelievable. After weighing the evidence, the dis-
trict court found that, to arrive at its verdict (that Officer
Cashton and Officer Cowley did not use an unreasonable
amount of force, but Officer Engle did use an unreasonable
amount of force), the jury would have had to believe the offi-
cers’ testimony on every issue, except as to Officer Engle’s
conduct on the Tarmac and in the police SUV. The jury also
would have had to disbelieve all of Tortu’s story except that
his injuries were caused by Officer Engle’s conduct. Having
been at the trial and therefore able to see, hear, and evaluate
the testimony first hand, the district court found that the ver-
dict was against the clear weight of the evidence.

   These facts, among others, substantiate the district court’s
reasoning. Tortu alleged that Officer Engle (while standing
outside the driver’s door) reached between the front seats and
the mounted mobile computer terminal and squeezed Tortu’s
testicles (who at the time was seated in the middle back seat
of the Ford Excursion police SUV). Officer Engle’s ability to
make these maneuvers (while standing outside the car) seems
highly improbable, if not impossible. Tortu also could not
conclusively identify which officer, if any, actually squeezed
his testicles.1 All of the other witnesses credibly testified that
  1
    On direct examination, Tortu stated that Officer Engle squeezed his
testicles. However, on cross examination, Tortu admitted that he testified
during his deposition that he was not sure whether it was Officer Engle or
Officer Cowley.
               TORTU v. LAS VEGAS METRO. POLICE               2485
no officer squeezed Tortu’s testicles. Further, there is no evi-
dence (absent Tortu’s testimony) that Officer Engle punched
Tortu in the back of the head or threw him on the tarmac. All
other witnesses testified that Tortu was not thrown on the tar-
mac or punched in the back of the head. The tarmac was very
dirty and oily, and yet Tortu’s light-colored shirt showed no
signs of dirt or grime.

   While these facts support the court’s decision, the majority
ignores them in its decision. Instead, after reading the tran-
script, the majority accepts Tortu’s otherwise wholly incredi-
ble testimony, and the medical evidence regarding his injury,
and declares that the clear weight of the evidence supported
the jury’s verdict. I question their view. It is not enough to say
that the medical evidence demonstrates that Tortu sustained
injuries to his testicles. It is not enough to say that “Engle had
no evidence of how else that injury could have occurred.”
Engle had no evidentiary burden to prove how the injury
occurred. Given this altercation between Tortu and the offi-
cers, the injury very well could have happened without Offi-
cer Engle having been responsible.

   I make this point, not to suggest that either the district court
or the majority are right. My point is that this argument about
facts (in which the majority involves itself) does not support
a finding of abuse of discretion. Evaluating the evidence, the
district judge had a definite and firm conviction that the jury
made a mistake when it held Officer Engle responsible.
Reviewing the record, I cannot find abuse in the district
court’s discretionary decision.

                   III.   Qualified Immunity

  The district court did not abuse its discretion when it
ordered a new trial to determine qualified immunity. The
Supreme Court has stated that qualified immunity issues
should be resolved as early on as possible. See Saucier v.
Katz, 533 U.S. 194, 200 (2001) (“Where the defendant seeks
2486           TORTU v. LAS VEGAS METRO. POLICE
qualified immunity, a ruling on that issue should be made
early in the proceedings so that the costs and expenses of trial
are avoided where the defense is dispositive.”). Generally
issues of qualified immunity are resolved by the court on
summary judgment. However, when material issues of fact
are in dispute, the jury must determine the facts regarding
immunity issues. See Torres v. City of Los Angeles, 548 F.3d
1197, 1210-11 (9th Cir. 2008) (citing Sloman v. Tadlock, 21
F.3d 1462, 1468 (9th Cir. 1994) (explaining that the reasons
for the existence of the qualified immunity doctrine “do not
. . . suggest that a judicial determination at [the trial] stage is
necessarily better than a jury verdict.” (emphasis and alter-
ations in original)). Neither party moved for summary judg-
ment on the qualified immunity issue prior to trial. Engle first
raised it, just prior to asking the jury to deliberate and render
a verdict. The district court declined to address the issue at
that time, instead taking the issue under advisement.

   The majority correctly states “[w]hen a police officer
asserts qualified immunity, we apply a two-part analysis
under Saucier.” Id. at 1210. The first question is whether “the
officer’s conduct violated a constitutional right.” Saucier, 533
U.S. at 201. The second question under Saucier is whether the
right was “clearly established.” Id. at 202. In determining
whether a right was “clearly established” the question is
whether it would be clear to a reasonable officer that his con-
duct was unlawful in the situation he confronted. Id.

   The jury found that Officer Engle “used an unreasonable
amount of force on Plaintiff.” The jury also found that “the
excessive force used against him caused him $175,000 in
compensatory damage.” Those findings indicate that the evi-
dence satisfied the first step of the Saucier analysis. However,
the district court found that verdict to be against the clear
weight of the evidence.

  When a case proceeds to trial, “qualified immunity can no
longer rightly be called an ‘immunity from suit’ (since the suit
                 TORTU v. LAS VEGAS METRO. POLICE                     2487
has already proceeded to its conclusion); rather, it is now
effectively a defense.” Sloman, 21 F.3d at 1468 n.6. Given its
decision regarding the evidence, the district court did not
abuse its discretion in granting Officer Engle a new trial, in
order to determine whether he had violated Tortu’s constitu-
tional rights. Officer Engle should not lose his defense of
qualified immunity, when the court found the verdict to be
against the clear weight of evidence.

   Even though it found the jury’s verdict to be against the
clear weight of evidence, the district court also applied the
second step of the Saucier analysis to determine if Officer
Engle was entitled to immunity. Because the jury had not
been questioned in the verdict form regarding its basis in
determining that Officer Engle had used excessive force on
Tortu, the court was forced to undertake the Saucier analysis
using all of the facts the jury could have used to make the
determination. The district court found that there were two
reasons for which the jury could have found excessive force
on the part of Officer Engle: (1) squeezing Tortu’s testicles
and (2) punching Tortu on the back of the head.2 Quoting
Supreme Court precedent to find the correct law to apply to
those facts, the district court then reasoned that (1) Tortu’s
constitutional rights were not clearly established; and (2) any
mistake of fact, Officer Engle made, was reasonable given the
circumstances of Tortu’s arrest. While an appellate court may
disagree with the district court’s determination of this issue,
these circumstances do not present a situation where granting
a new trial would be an abuse of discretion. Granting a new
trial, rather than determining the issue of qualified immunity
using disputed facts from the trial, cannot be an abuse of dis-
  2
    While the majority states that “the vital evidence upon which the jury
obviously relied is the squeezing of Tortu’s testicles in the SUV,” there
is absolutely no jury finding in this record to support that view. The dis-
trict court, who attended the trial, disagrees. That vacuum in the record is
the reason the district court had to conduct the second step of the Saucier
analysis using both the squeezing action and punching Tortu on the back
of the head.
2488          TORTU v. LAS VEGAS METRO. POLICE
cretion. The disputed facts are still unresolved by the trial,
because (1) the jury verdict was against the clear weight of
the evidence or (2) the jury was not asked enough questions
to resolve the disputed facts. The majority attempts to gloss
over this point, by stating that the application of the second
prong of the Saucier analysis is merely a question of law. On
that point, they err. When the facts are undisputed and the
jury has properly found a violation of constitutional rights,
then determining whether those rights are clearly established
(based on those same undisputed facts) is a question of law.
However, when the facts are disputed and a trial does not
resolve which facts are a violation of a constitutional right, a
court cannot determine, as a matter of law, whether those
rights are clearly established.

   Those are the very circumstances of this case. From reading
their opinions, both the district court and the majority agree
that punching Tortu on the head would be an action in which
Engle could engage and yet be entitled to immunity in these
circumstances. Only when applying the qualified immunity
analysis to Tortu’s testicle injury do they disagree. Yet the
jury was never asked the basis of their finding of unreason-
able force, therefore the majority’s analysis fails. Again, we
are not here on summary judgment with de novo review and
construing the facts in Tortu’s favor. We also should not spec-
ulate (as the majority seemingly does) as to which facts the
jury found to be in violation of Tortu’s constitutional rights,
and decide if those rights were clearly established.

  A new trial to determine those facts is therefore not an
abuse. We must be certain “whether it would be clear to a rea-
sonable officer that his conduct was unlawful in the situation
he confronted.” See Saucier, 533 U.S. at 202.

             IV.    Speculative Damages Award

   The district court found that Officer Engle was entitled to
a new trial, because the jury’s award of damages was specula-
               TORTU v. LAS VEGAS METRO. POLICE              2489
tive, excessive, and unsupported by clear weight of the evi-
dence. The damages were speculative, because the minimal
injuries suffered by Tortu could not support such a wide dif-
ferential between the cost of Tortu’s medical treatment (an
amount of less than $5,000) and the ultimate award
($175,000). Accordingly, to avoid a miscarriage of justice, the
district court concluded that a new trial was necessary.

   Tortu presented evidence that his medical bills amounted to
less than $5,000. Tortu’s pain and suffering lasted no longer
than two weeks. There was no evidence presented that the
injury prevented Tortu from performing any ordinary tasks, or
that he suffered even minimal discomfort after two weeks.
The trial judge is in the best position to weigh the evidence
of Tortu’s embarrassment and humiliation. These facts sup-
port the conclusion that the clear weight of the evidence in the
record did not support the jury’s award. While one may dis-
agree with the trial court, one cannot say that it abused its dis-
cretion in making the decision. These facts support its view.

   We have also affirmed other district courts in similar situa-
tions. Oltz, 861 F.2d at 1453 (affirming the trial court’s grant
of motion for new trial based on its findings that damages
were excessive); William Inglis & Sons Baking Co. v. ITT
Continental Baking Co., 668 F.2d 1014, 1050 (9th Cir. 1981)
(same); Hanson, 541 F.2d at 1359 (same).

                       V.    Conclusion

   I disagree with the majority. The district court’s granting of
the motion for a new trial does not lie beyond the pale of rea-
sonable justification under these circumstances. We must
affirm if any of the grounds for granting a new trial are rea-
sonable. Oltz, 861 F.2d at 1452.
