Oberfelder

MEMORANDUM *

1. Because the jury instruction precisely tracked the Fourth Amendment’s reasonableness requirement, see Graham v. Connor, 490 U.S. 386, 396-97 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and the jury found that plaintiff “ha[d] prove[d] by a preponderance of the evidence that defendant ... used excessive force,” Bertoli is not entitled to qualified immunity under Saucier’s first prong. See Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001) (asking whether the facts alleged show that “the officer’s conduct violated a constitutional right”).

Nor is Bertoli entitled to immunity under Saucier’s second prong. See id. (asking whether “the right was clearly established”). The law had been clearly established by the time of the shooting that police officers may not use deadly force “[wjhere the suspect poses no immediate threat to the officer and no threat to others.” Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). Indeed, defendant admits that he knew this was the law.

The district court did not err in denying Bertoli’s motion for a new trial based on the Supreme Court’s intervening Saucier decision.

2. The district…