Plaintiffs Rudi and Alma Acosta whose 21 year-old son, Michael Acosta, was shot and killed by San Francisco Police Inspector Daniel Yawczak appeal the district court's judgment as a matter of law in favor of the defendants.

The Acostas sued the City and County of San Francisco, its police chief, and officer Yawczak, alleging causes of action under 42 U.S.C. § 1983 and California state law.1 The trial was bifurcated. The Acostas' suit against Yawczak proceeded to trial first and the district court stayed discovery in the suit against the municipality and the Police Chief.

The following facts are not in dispute: On November 2, 1991 at 6:45 p.m., Yawczak, a San Francisco police officer who was off-duty and in plainclothes, was standing in front of his car in the Pacific Heights neighborhood of San Francisco when he heard a woman scream and saw two young men, Ernesto Pecson and Edwin Silva, running with what he believed to be a purse. Yawczak drew his gun, a .45 caliber semiautomatic pistol, and chased Pecson and Silva around the block. After Pecson and Silva got into a waiting car, Yawczak fired two shots into the car, the first of which killed the driver, Acosta. The jury was required to determine whether in doing so Yawczak used excessive force.

At the close of the plaintiffs' case, Yawczak moved for judgment as a matter of law on the merits and on the ground of qualified immunity. The district court took the motions under submission.2 At the close of evidence, Yawczak renewed the motions and the court again took them under submission pending the jury's verdict.

The jury found that Yawczak violated Michael Acosta's constitutional rights by using excessive force against him and returned a verdict in favor of the plaintiffs.3 Subsequently, the jury awarded $225,000 for Mr. and Mrs. Acosta's non-economic damages, $25,000 for Michael Acosta's pain and suffering, and $9,358.19 for funeral and burial expenses. After the jury returned its verdict on liability, Yawczak orally renewed his motions and filed an alternative motion for a new trial.

Following the jury's award of damages, the district court granted defendant Yawczak's motions for judgment on the merits as a matter of law and on the ground of qualified immunity. When it granted judgment in Yawczak's favor, the district court also dismissed the Acostas' entire complaint with prejudice, thereby dismissing their claims against the City and County of San Francisco and the Chief of Police.4 The district court failed, however, to rule on Yawczak's motion in the alternative for a new trial.

The district judge made detailed findings of fact in his order granting judgment in favor of Yawczak. In making these findings, he did not view the evidence presented at trial in the light most favorable to the plaintiffs and, in fact, included a "finding" that directly contradicted the jury's verdict.5 Based on his factual findings, the district judge held that Yawczak was entitled to judgment as a matter of law because no reasonable juror could have concluded that the car did not move prior to the first time he fired at Acosta.

We review the district court's grant of judgment as a matter of law de novo. Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 2163, 128 L. Ed. 2d 886 (1994). Judgment as a matter of law is proper if the evidence, construed in the light most favorable to the non-moving party, allows only one reasonable conclusion and that conclusion is contrary to that reached by the jury. Id.

The jury in this case was faced with conflicting evidence regarding various factual issues. Among them were: whether one of the passengers said "Run him over" prior to Yawczak's first shot at Acosta; whether Yawczak saw Acosta move the car transmission lever into gear; whether the car was moving in the direction of Yawczak prior to the first shot; if the car was moving, how fast; and Yawczak's location at the time he fired the shots. In order to reach its verdict that the force used by Yawczak was excessive, the jury had to resolve at least some of these factual disputes.

Although the district court stated that it recognized its obligation to view the evidence in the light most favorable to the non-moving party, it failed to do so. The district court's discussion of whether the defendant was entitled to judgment as a matter of law is limited to whether there was a legally sufficient basis to support the conclusion that the car did not move prior to the time Yawczak first fired at Acosta.6 The answer to that question, however, is not dispositive of plaintiffs' claim. Instead of addressing the dispositive issue: whether the evidence, viewed most favorably to the Acostas, permitted a conclusion that a reasonable officer in Yawczak's position would not have believed himself to be in danger, the district court granted judgment on the basis of its determination that a reasonable juror could not have concluded "that the car did not move." While the district court may have been correct that no reasonable juror could have reached that conclusion,7 it erred in reversing the jury's verdict on that basis.

On the basis of the evidence presented at trial, the jury could have reasonably concluded that a reasonable officer, who had positioned himself facing the driver so that he was standing closer to the side than the dead-center of the car, would have recognized that he could avoid being injured when the car moved slowly,8 by simply stepping to the side.9 In short, a juror could have reasonably reached the conclusion at which the jury appears to have arrived: that the car did move prior to Yawczak's shooting Acosta but that it was moving or rolling sufficiently slowly that a reasonable officer in Yawczak's position would not have perceived himself to be in danger of serious bodily harm. Thus, there was a sufficient evidentiary basis for a reasonable juror to find that Yawczak used excessive force and to join in a verdict in favor of the Acostas. The grant of judgment as a matter of law for Yawczak was improper.

Determining whether a law enforcement officer is entitled to qualified immunity involves the consideration of two questions: "1) Was the law governing the officer's conduct clearly established? 2) Under that law, could a reasonable officer have believed that his conduct was lawful?" Sinaloa Lake Owners Assoc. v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir.1995) (quoting Act Up!/Portland, 988 F.2d 868, 871 (9th Cir.1993)).10 The district court properly concluded that the law governing when an officer may use deadly force against an unarmed fleeing suspect was clearly established at the time of Acosta's shooting. See, e.g., Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) ("An officer's use of deadly force is reasonable only if 'the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.' "), cert. denied, --- U.S. ----, 115 S. Ct. 2612, 132 L. Ed. 2d 855 (1995) (citation omitted).

However, the district court erred in concluding that a reasonable officer in Yawczak's position could have reasonably believed that shooting at the driver of a slow-moving car was lawful. Instead of relying on the factual findings implicit in the jury's verdict in favor of the Acostas, the district court granted Yawczak qualified immunity based on its own contrary factual findings. The Acostas argue that regardless of whether it is the judge or the jury who makes the ultimate determination on the issue of qualified immunity, that decisionmaker must rely on the jury's factual findings as to the disputed issues of fact. They are correct. Regardless of who makes the ultimate determination as to qualified immunity, the jury, not the judge, must decide the disputed "foundational" or "historical" facts that underlie the determination. See, e.g., Sinaloa, 70 F.3d at 1099; Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir.1994).

The factual findings the jury must have made to reach its verdict that Yawczak violated Acosta's constitutional rights by using excessive force are dispositive of the question of Yawczak's entitlement to qualified immunity because they resolve the issue of whether it was objectively reasonable for Yawczak to believe that the use of deadly force was lawful. The jury was asked to evaluate the objective reasonableness of Yawczak's conduct. In order to do so, it first had to determine what Yawczak actually did. In that connection, the jury was presented with evidence that when Yawczak shot at Acosta, the car was moving or rolling very slowly from a standstill, so slowly that he could not have reasonably believed that it posed a threat of great bodily harm. While that evidence was disputed by Yawczak, and while Pecson's role in the affair was not such as would engender confidence in the truthfulness of his testimony, the jury had a fair opportunity to make credibility judgments regarding the witnesses' testimony.11 In fact, a review of the record reveals that it is highly likely that the jury developed serious doubts regarding Yawczak's veracity.12 If the jury found that the force used by Yawczak was excessive, it necessarily found that Acosta was not driving the vehicle at him at a high rate of speed. In short, in order to reach its verdict, the jury must have found that at the moment that Yawczak fired the deadly shot at Acosta, it was not reasonable for him to believe that Acosta posed a threat of great bodily injury or harm to him or to anyone else.13

Yawczak acknowledges that an individual's right not to be subjected to excessive force is well established. However, he appears to argue that it was objectively reasonable for him to believe that using deadly force against Acosta under the circumstances did not violate Acosta's rights. However, as the Second Circuit observed under similar circumstances, "[t]he problem with this argument is that it depends upon the officers' version of the facts--a version the jury plainly rejected." Posr v. Doherty, 944 F.2d 91, 95-96 (2nd Cir.1991).14

If we accept the jury's version of the facts, Yawczak cannot be entitled to qualified immunity. Because the law governing "shooting to kill" a fleeing suspect is clearly established and because a reasonable officer could not have reasonably believed that shooting at the driver of the slowly moving car was lawful, we hold that Yawczak is not entitled to qualified immunity.

Rule 50(c)(1) of the Federal Rules of Civil Procedure requires that in cases in which a party has moved for judgment as a matter of law and, in the alternative, for a new trial, the district court must, after granting judgment as a matter of law, also rule on the motion for a new trial.15 The district judge in this case failed to do so. Defendants urge us to deem the new trial motion to have been granted by the district court or to give the district court another opportunity to rule on it.

Rule 50(c)(1) does not specify the consequences that follow from a district court's failure to issue a conditional ruling on a motion in the alternative for a new trial. Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1458 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 2163, 128 L. Ed. 2d 886 (1994). We have concluded, however, that we have discretion to either remand to the district court to let it decide the new trial motion or to decide the new trial motion ourselves. Id. In this case, the circumstances dictate the latter course.

Yawczak moved for a new trial solely on the ground that the district court failed to submit special interrogatories to the jury.16 The defense asked for six special interrogatories, four of which related to the plaintiffs' withdrawn state law claim. Of the two other questions proposed by the defendants, one was the question that actually appeared on the verdict form that was completed by the jury: whether Yawczak violated Acosta's constitutional rights by using excessive force. The jury answered that question in the affirmative. The other question proposed by the defendant was whether the car moved prior to the time Yawczak fired his first shot at the driver. As we have already concluded, given the other evidence in the record, the answer to that question does not resolve the qualified immunity issue.

Whether to submit special interrogatories to the jury is a matter committed to the discretion of the district court. Fed.R.Civ.P. 49(b); Frank Briscoe, Co., Inc. v. Clark County, 857 F.2d 606, 614 (9th Cir.1988), cert. denied, 490 U.S. 1048, 109 S. Ct. 1957, 104 L. Ed. 2d 426 (1989). Whatever the limits of that discretion may be, the defendants offer no reason to conclude that the district court exceeded them in this case. The defendants argue that the jury's answers to the special interrogatories would have assisted the district judge in making the qualified immunity determination.17 The district judge concluded otherwise and in doing so he acted well within his discretion. See, e.g., R.H. Baker & Co. v. Smith-Blair, Inc., 331 F.2d 506, 508 (9th Cir.1964). Accordingly, the new trial motion was without merit, and we remand for entry of the jury's verdict.18

We reverse the district court's grant of qualified immunity and judgment as a matter of law and deny the new trial motion.

We reinstate the jury's verdict against Yawczak, reverse the dismissal of the plaintiffs' complaint and reinstate their claims against the remaining defendants. The Acostas are entitled to attorney's fees for the district court and appellate proceedings thus far.

REVERSED AND REMANDED.