NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEOCADIO FIGUEROA,

Plaintiff

- Appellant,

v.

COUNTY OF LOS ANGELES; et al.,

Defendants

- Appellees. No. 18

- 56131

D.C. No. 2:11

- cv

- 06228

- DMG

- FFM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Dolly M. Gee, Chief District Judge, Presiding

Submitted August 30 , 20 24 * * San Francisco, California

Before: CALLAHAN and N.R. SMITH, Circuit Judges, and RAKOFF, ** * District Judge.

Mr. Figueroa appeals the District Court’s grant of summary judgment for

defendant Sergeant Gonzalez. He alleges that despite our prior determination that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 

# FILED

AUG 30 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

“no constitutional right had been violated,” Figueroa v. County of Los Angeles

,
651 F. App’x 709, 713 (9th Cir. 2016), summary judgment was inappropriate

because the jury had found that Deputy Perez used excessive force in violation of

Mr. Figueroa’s constitutional rights and the prior panel’s determination was

dictum. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Neither of Mr. Figueroa’s arguments is persuasive. T he question posed to

t he jury was simply “Did any of the Defendants use excessive force against

Plaintiff Leocadio Figueroa?” The jury checked the “Yes” box. There is no

indication that the jury was instructed as to what constitute s excessive force in

violation of the C onstitution as contrasted to other definitions of excessive force.

Indeed, question 6 asked the jury “Did the Defendant prove that at the time he

arrested Plaintiff it was reasonable fo r the defendant to believe that the force he

used in arresting Plaintiff was not excessive.” The jury checked the “ Y es” box.

This ends the matter, as the Supreme Court has held that, to determine whether

excessive force rises to the level of a constitutional violation, “the question is

whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumsta nces confronting them, without regard to their underlying intent or

motivation.” Graham v . Connor , 490 U.S. 386, 397 (1989). Her e , it is not clear

whether the jury’s response indicates that Officer Perez had a sincere but

objectively unreasonable belief that force was necessary, or whether the3

surrounding circumstances rendered such a belief reasonable. Accordingly, Mr.

F i gueroa has not shown that the jury’s verdict established that there was a

constitutionally prohibited use of excessive force.

Mr. Figueroa’s appeal also fail s because our determination that “no

constitutional right had been violated,” Figueroa

, 651 F

. App ’ x at 713, was not

dictum. An underlying issue in the prior appeal was the propriety of the district

court going “a step further and instruct [ ing ] the jury on qualified immunity.” Id

.
The more usual approach is for the judge to determine qualified immunity. But we

concluded that because the jury determined that Perez “reasonably believed the

amount of force he used was necessary,” this “established that no constitutional

right had been violated under the circumstances .” Id . Thus, our acceptance of the

jury’s determination was an important part of our decisio n and not dictum.

The district court’s grant of summary judgment in favor of Sergeant

Gonzalez is AFFIRMED

.