Eldred John Bartko, Plaintiff-appellant, v. Craig Flick, Individually and As a Deputy Sheriff; Maryhecht, Individually and As a Deputy Sheriff; Georgecreamer, Individually and As a Deputy Sheriff; Pamelabrookwell, Individually and As a Deputy Sheriff; Shermanblock, Individually and As Sheriff of Los Angeles County;mildred Bartko; County of Los Angeles, Defendants-appellees, 39 F.3d 1186 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 39 F.3d 1186 (9th Cir. 1994)

Submitted Oct. 31, 1994. *Decided Nov. 2, 1994

Before: CANBY, LEAVY, and T.G. NELSON, Circuit Judges.


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).



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