In Tortu, police officers did not, during trial, make a Fed. R. Civ. P. 50(a) motion seeking qualified immunity, but they did make that argument in a post-judgment Rule 50(b) motion. The Ninth Circuit held the argument in the Rule 50(b) motion was forfeited. The panel concluded that "[w]hen a qualified immunity claim cannot be resolved before 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." Id. at *6 (emphasis added).

There's nothing wrong with directing officers seeking qualified immunity to raise their arguments "after the jury resolves the factual conflict," meaning after the jury returns a verdict. That's when the facts have been found and the court can address the legal question of whether the pertinent constitutional right was clearly established. But the panel blundered in requiring parties to do so in a Rule 50(a) motion. It's not even possible. Under Rule 50(a)(2), a party can only challenge the legal sufficiency of the evidence "before the case is submitted to the jury."

Thus, the Ninth Circuit has directed officers that, to preserve qualified immunity arguments for appeal, they must file an untimely Rule 50(a) motion. This is absurd on its face because a party who files an untimely Rule 50(a) motion cannot seek post-judgment relief under Rule 50(b), see Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007), which in turn means he cannot raise those arguments on appeal, see Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006).

The upshot is that officers seeking qualified immunity will never be able to obtain appellate review in this situation—the Ninth Circuit has shoehorned them into using a pre-verdict procedural device that is unavailable after trial when they must raise the issue.