27 F.3d 1357 (9th Cir. 1994), 92-56225, Mendoza v. Block

Docket Nº:92-56225.
Citation:27 F.3d 1357
Party Name:Ronald MENDOZA, Plaintiff-Appellant, v. Sherman BLOCK, Los Angeles County, et al., Defendants-Appellees.
Case Date:April 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1357

27 F.3d 1357 (9th Cir. 1994)

Ronald MENDOZA, Plaintiff-Appellant,


Sherman BLOCK, Los Angeles County, et al., Defendants-Appellees.

No. 92-56225.

United States Court of Appeals, Ninth Circuit

April 15, 1994

Argued and Submitted Feb. 1, 1994.

As Amended May 31, 1994.

Page 1358

Stephen Yagman, Yagman & Yagman, Venice, CA, for plaintiff-appellant.

Scott D. MacLatchie, Carol D. Janssen, Franscell, Strickland, Roberts & Lawrence, Pasadena, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, BOOCHEVER, and KLEINFELD, Circuit Judges.

Opinion by Judge BOOCHEVER.

BOOCHEVER, Circuit Judge:

Ronald Mendoza was severely bitten by a police canine while attempting to evade arrest for robbing a bank by hiding in some bushes. His civil rights action against the Los Angeles County Sheriff's deputies involved in his arrest was dismissed on the grounds of qualified immunity, and he appeals.

We affirm.


On March 9, 1988, Ronald Mendoza robbed a bank in Hacienda Heights, California. He fled first in his car, then abandoned the car and fled on foot. He ran about a half-mile, then crawled under some bushes on private property and hid.

Sheriff's deputies found Mendoza's abandoned car, and by tracing the license plate they ascertained that Mendoza previously had been jailed for another bank robbery. A radio transmission from police headquarters warned the deputies pursuing Mendoza that he might be armed.

After several hours of hiding in the bushes, Mendoza heard the deputies warning the owners of the property on which he was hiding to stay indoors. Mendoza also heard a helicopter in the neighborhood, which he assumed was searching for him; however, he did not recall hearing any helicopter announcements stating that he was surrounded and that a dog might be deployed. A deputy testified that the helicopter made at least twenty such announcements.

Mendoza saw a police dog, a rottweiler, coming toward him and covered his face with his hands. At this point, the deputies' and Mendoza's versions of the facts diverge. Mendoza claims that the dog bit down on his right arm and pulled him out of the bushes. He said that no one spoke to him prior to the bite. He testified that he moved with the dog out of the bushes and that the deputy handling the dog put a gun to his head. The dog handler told Mendoza to back up, at which point the dog bit down hard, puncturing Mendoza's skin. He was then hit on the head from behind with something hard. Mendoza fell, face first, to the ground and was held there spread-eagle. Mendoza claims that he was handcuffed, and then the dog switched its bite to his other side, wounding him again. The deputies told him to "shut [his] fucking mouth" when he pleaded with them to remove the dog.

Page 1359

Mendoza testified that eventually the dog released his arm and that he was placed in the patrol car on his face and knees; he was in great pain. During the drive to the hospital the deputy driving the car repeatedly slammed on the brakes. Mendoza said the driver also made comments about the smell of Mendoza's wounds. Mendoza testified that at the hospital the deputies kept asking him his name, and when he answered that they already knew it, unidentified individuals pushed with their hands on his wounds, causing pain.

The deputies' version of events differs substantially from Mendoza's on several crucial points. They testified that after the canine located Mendoza, he was ordered to crawl out of the bushes. 1 The deputies stated that after Mendoza was pulled out of the bushes by the dog, he struggled with the dog. He broke loose, but the dog regained its grip on Mendoza's other side. The deputies claim that Mendoza was ordered to stop struggling and place his hands behind his back for handcuffing. Instead of complying with their orders, Mendoza resisted, and even swung an arm at one of the deputies.

A deputy also testified that no one hit Mendoza on the head. Once Mendoza was handcuffed, the dog was ordered off him and he was driven to the hospital. He was sitting up in the car, but lay down during the drive. A deputy stated that no remarks were made about his smell, and the driver did not slam repeatedly on the brakes, he only slowed as he crossed intersections. No officer testimony was given about the alleged events at the hospital.

Mendoza filed a lawsuit against the deputies involved in his arrest, the County of Los Angeles, and Sheriff Sherman Block, under 42 U.S.C. Sec. 1983, claiming that the deputies used excessive force in arresting him. Prior to trial of Mendoza's claims against the individual deputies, Mendoza moved in limine for judgment as a matter of law on the defendants' qualified immunity defense. He cited our decision in Act-Up!/Portland v. Bagley, 971 F.2d 298 (9th Cir.1992) (which was later withdrawn and superseded), as authority for the proposition that qualified immunity is a question of law, to be decided by the court.

The trial court found that under this decision it had authority to decide the entire qualified immunity question, and that by means of an evidentiary hearing it could properly determine disputed factual issues. Before proceeding, the court made clear that its qualified immunity determination would involve determination of disputed facts, including credibility issues, stating:

It would be my intention to have an evidentiary hearing at this point because clearly there is a factual issue involved here and it is going to come down to the believability of the plaintiff and his witnesses as opposed to the defense witnesses. Is there any opposition to that procedure at this time?

Mendoza's attorney responded: "No, Your Honor."


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