39 F3d 1186 Bartko v. Flick
39 F.3d 1186
Eldred John BARTKO, Plaintiff-Appellant,
v.
Craig FLICK, individually and as a deputy sheriff; Mary
Hecht, individually and as a deputy sheriff; George
Creamer, individually and as a deputy sheriff; Pamela
Brookwell, individually and as a deputy sheriff; Sherman
Block, individually and as Sheriff of Los Angeles County;
Mildred Bartko; County of Los Angeles, Defendants-Appellees.
No. 93-55873.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 31, 1994.*
Decided Nov. 2, 1994.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: CANBY, LEAVY, and T.G. NELSON, Circuit Judges.
MEMORANDUM**
Eldred John Bartko appeals from a judgment on a jury verdict in favor of the appellees, who are Los Angeles County deputy sheriffs. Bartko sued the deputies pursuant to section 1983 for the use of excessive force when he was arrested.
Bartko argues that the issue of qualified immunity should not have been submitted to the jury; that one qualified immunity instruction was erroneous; and that the court placed undue emphasis on qualified immunity by giving three incorrect instructions on it, which misled and confused the jury.
Bartko is correct that ordinarily qualified immunity is not before a jury; the court usually decides immunity questions before trial. Sloman v. Tadlock, 21 F.3d 1462, 1467-68 (9th Cir.1994).
However, Bartko's issues regarding qualified immunity became moot once the jury decided that the deputies did not use excessive force. The issue of qualified immunity does not arise where there was no violation of a statutory or constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
AFFIRMED.
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3