NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 15 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO OCHOA, No. 23-15276

Plaintiff-Appellant, D.C. No. 1:18-cv-01599-JLT-CDB v.

COUNTY OF KERN; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding

Submitted March 12, 2024** San Francisco, California

Before: S.R. THOMAS, McKEOWN, and CHRISTEN, Circuit Judges.

Plaintiff-Appellant Alejandro Ochoa appeals the district court’s post-trial

order denying his renewed motion for judgment as a matter of law or, in the

alternative, for a new trial. We assume the parties’ familiarity with the facts and

recite them only as necessary. We have jurisdiction pursuant to 28 U.S.C. § 1291,

* 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). and we affirm.

We review de novo a district court’s denial of a motion for judgment as a

matter of law brought pursuant to Federal Rule of Civil Procedure 50(b). Harper

v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008). We must uphold the

jury’s verdict if it is “supported by substantial evidence, which is evidence

adequate to support the jury’s conclusion, even if it is also possible to draw a

contrary conclusion.” Id. (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002)). We review for abuse of discretion a district court’s denial of a motion for a

new trial brought pursuant to Rule 59. Kode v. Carlson, 596 F.3d 608, 611 (9th

Cir. 2010) (per curiam).

I

The district court did not err by denying Ochoa’s renewed motion for

judgment as a matter of law on his Fourth Amendment excessive force claims

against Deputies Ryan Brock and Andrew Bassett. Ochoa’s motion turns on

whether the evidence introduced at trial was sufficient for the jury to conclude that

the deputies’ actions were “‘objectively reasonable’ in light of the facts and

circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).

“This inquiry ‘requires a careful balancing of the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.’” Glenn v. Washington County, 673 F.3d 864, 871

2 (9th Cir. 2011) (quoting Graham, 490 U.S. at 396). To determine the nature and

quality of the Fourth Amendment intrusion, we begin by “consider[ing] the

quantum of force used” by Deputies Brock and Bassett. Id. We then determine

the weight of the countervailing governmental interest in the use of force using the

Graham factors: “(1) the severity of the crime; (2) whether the suspect posed an

immediate threat to the safety of the officers or others; and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by flight.” Sabbe v.

Wash. Cnty. Bd. of Comm’rs, 84 F.4th 807, 822 (9th Cir. 2023).

Substantial evidence supports the jury’s finding that Deputy Brock’s actions

were objectively reasonable when he shot Ochoa with a projectile from a 40mm

less-than-lethal launcher. The parties agree that the 40mm launcher was capable of

inflicting—and did inflict—serious injury and that “a strong governmental

interest” was required to justify its use. Deorle v. Rutherford, 272 F.3d 1272, 1280

(9th Cir. 2001).

The evidence submitted at trial and the reasonable inferences drawn from it

support the jury finding in favor of Deputy Brock on all three Graham factors.

The testimony established that the deputies responded to a domestic violence call

involving a potential hostage situation and knew Ochoa had an outstanding warrant

for failure to appear in court for a felony spousal abuse charge. See Thomas v.

Dillard, 818 F.3d 864, 890 (9th Cir. 2016) (“[W]e first consider the severity of the

3 crime at issue. Any form of domestic violence is serious . . . .”). The evidence

showed that Ochoa was not allowing anyone to leave the house and that, after he

retreated to a bathroom, the deputies were not sure whether any additional hostages

were in the room with him. The jury also could have concluded that Ochoa posed

an immediate threat to the deputies when Deputy Brock fired the less-than-lethal

projectile. Brock testified that Ochoa ignored deputies’ commands to surrender,

that neither Ochoa nor the bathroom had been searched for weapons, and that

Ochoa was screaming with his fists clenched near his waistband. Finally, the jury

could have concluded that Ochoa was attempting to evade arrest by retreating to a

bathroom, locking the door, not responding to the deputies’ instructions, and not

complying after the door was breached. See Chew v. Gates, 27 F.3d 1432, 1442

(9th Cir. 1994) (giving “a slight edge” to the government on the third Graham

factor where the plaintiff evaded police but, at the moment force was used, “his

flight had terminated, at least temporarily, in [a] scrapyard”).

Substantial evidence also supports the jury’s finding that Deputy Bassett’s

actions were objectively reasonable when he instructed his canine to bite Ochoa.

The parties agree that Deputy Bassett’s use of a canine to subdue Ochoa

constituted at least intermediate force and could only be justified by a strong

governmental interest. The evidence permitted the jury to conclude that a strong

governmental interest existed because Ochoa posed an immediate risk to the safety

4 of the deputies when Deputy Bassett deployed his canine. Bassett testified that he

was concerned that the deputies attempting to restrain Ochoa could have been

injured in the struggle and that he did not know whether Ochoa was armed or if

there was a weapon somewhere in the bathroom. The jury also could have credited

Deputy Bassett’s testimony that he released his canine because Ochoa was

violently resisting the deputies’ efforts to take him into custody. Because “[t]he

evidence presented was far from ‘one-sided’ and did not give rise to ‘but one

reasonable conclusion as to the verdict,’” Ochoa was not entitled to judgment as a

matter of law. Shafer v. County of Santa Barbara, 868 F.3d 1110, 1116–17 (9th

Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 252

(1986)).

II

The district court did not abuse its discretion by denying Ochoa’s motion for

a new trial. Ochoa provided no argument or authority in support of his motion, and

“it cannot be said that there was an ‘absolute absence of evidence to support the

jury’s verdict.’” Crowley v. Epicept Corp., 883 F.3d 739, 752 (9th Cir. 2018)

(quoting Kode, 596 F.3d at 612).

AFFIRMED.

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