27 F.3d 1357 (9th Cir. 1994), 92-56225, Mendoza v. Block
| 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, U.S. Court of Appeals — Ninth Circuit |
Page 1357
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.
BACKGROUND
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."
The trial court then heard testimony from Mendoza and several Sheriff's deputies who were present at the arrest, including the dog handler. After the hearing, the trial court decided most of the disputed questions of fact in favor of the defendant deputies. The court then found that the deputy handling the dog had behaved reasonably under the circumstances, and that the deputies therefore were entitled to qualified immunity. The court did not make any findings with respect to the deputies' alleged treatment of Mendoza's wounds in the hospital and Mendoza's claim that the deputies hit him on the head.
DISCUSSION
I. Propriety of the Trial Court Procedure
Mendoza claims we must reverse because the district court improperly resolved disputed questions of fact without a jury. However, Mendoza waived any objection to the evidentiary procedure used by the court, even if the use of such a procedure would otherwise have been erroneous.
Page 1360
Prior to trial, Mendoza moved for the district court to decide the qualified immunity issue, citing Act-Up!/Portland v. Bagley, 971 F.2d 298, 301-02 (9th Cir.1992). (This opinion was later withdrawn and superseded by another opinion, Act-Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir.1993). All further references to Act-Up! are to the superseding opinion.) Both the original Act-Up! opinion, upon which Mendoza based his motion, and the subsequent superseding opinion state that disputed factual issues should be decided by the trier of fact. See Act-Up!, 988 F.2d at 873. Mendoza was therefore fully informed that factual disputes should be resolved by the trier of fact.
In order to preserve an issue for appeal, a party must make known to the court any objection to the court's action. Fed.R.Civ.P. 46. See also Animal Protection Inst. of America v. Hodel, 860 F.2d 920, 927 (9th Cir.1988) (appeals court may decline to review purely legal issue when no "manifest injustice" appears if no objection is made in trial court). Here, Mendoza stated unequivocally that he had no objection to the suggested procedure. He therefore did not preserve any objection to the procedure as an issue on appeal.
II. The Qualified Immunity Determination
Mendoza also challenges the merits of the district court's determination that the deputies had qualified immunity. Mendoza consented to what amounted to a bench trial of the qualified immunity question, and he is bound by the outcome of this procedure unless the trial court's rulings of law were erroneous or its findings of fact clearly erroneous. Brooker v. Desert Hosp. Corp., 947 F.2d 412, 415 (9th Cir.1991). We do not find any clear error in the trial court's findings of fact, and the court did not err in its qualified immunity determination with respect to the use of the dog.
A. The Use of the Dog
A law enforcement officer is entitled to qualified immunity in a Sec. 1983 action if the district court determines that, in light of clearly established principles governing the conduct in question at the time of the challenged conduct, the officer could reasonably have believed that the conduct was lawful. See Hallstrom v. Garden City, 991 F.2d 1473, 1482 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 549, 126 L.Ed.2d 450 (1993). See also Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). This determination requires a two-part analysis. First, the district court must determine whether the law governing the official's conduct was clearly established at the time the challenged conduct occurred. Hallstrom, 991 F.2d at 1482; Act-Up!, 988 F.2d at 871. The second step then asks whether, under that clearly established law, a reasonable officer could have believed the conduct was lawful. Hallstrom, 991 F.2d at 1482; Act-Up!, 988 F.2d at 871. This is a test of the "objective reasonableness" of the...
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