Harrington

MEMORANDUM **

Defendants argue that the district court improperly allowed Harrington *742 to amend his complaint to replace the fictitious names with the names of the actual defendants, because the statute of limitations had run and Harrington did not qualify for relation-back under California law. 1 But defendants did not assert the statute of limitations as an affirmative defense in either their original or amended answer and did not raise this defense at trial. Rule 8(c) requires that a statute of limitations defense be pleaded or it is waived. 2 Defendants failed to preserve this defense.

The district court’s jury instruction on excessive force was not a misstatement of law. The instruction laid out the important point of law that excessive force is measured by the force a reasonable and prudent law enforcement officer would use under the circumstances. 3 We said in Scott that “the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them.” 4 But this statement was in the context of Scott’s holding that the police are not required to use the least intrusive means possible. And the instruction acknowledges…