NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 10 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA DOMINGUEZ, individually and No. 23-15554 Jessica Dominguez as Guardian Ad Litem for J.D. , Minor # 1; et al., D.C. No. 5:18-cv-04826-BLF

Plaintiffs-Appellees,

MEMORANDUM*

v.

MICHAEL PINA, Police Officer,

Defendant-Appellant,

and

CITY OF SAN JOSE; SAN JOSE POLICE

DEPARTMENT,

Defendants.

JESSICA DOMINGUEZ, individually and No. 23-15562 Jessica Dominguez as Guardian Ad Litem for J.D. , Minor # 1; et al., D.C. No. 5:18-cv-04826-BLF

Plaintiffs-Appellants,

v.

MICHAEL PINA, Police Officer; et al.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted April 12, 2024** San Francisco, California

Before: SCHROEDER, GRABER, and SUNG, Circuit Judges.

Defendants appeal the denial of qualified immunity to Officer Michael Pina

following a jury verdict in favor of Plaintiffs on their 42 U.S.C. § 1983 excessive

force claim, arising from the fatal shooting of Jacob Dominguez. Defendants also

appeal the award of damages for pre-death pain and suffering and the use of a

multiplier to award attorney fees to Plaintiffs. Plaintiffs cross-appeal the denial of

their motion for a new trial on their Fourteenth Amendment, Bane Act, and

punitive damages claims. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. Qualified Immunity: The district court correctly denied Defendants’

renewed Rule 50(b) motion for judgment as a matter of law based on qualified

immunity. See Tan Lam v. City of Los Banos, 976 F.3d 986, 997 (9th Cir. 2020)

(holding that we review de novo the denial of a Rule 50(b) motion). Because the

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

2 jury found in favor of Plaintiffs on their excessive force claim against Officer Pina,

“we analyze the motion based on the facts established at trial, viewing the evidence

in the light most favorable to [Plaintiffs], and drawing all reasonable inferences in

favor of [Plaintiffs].” Id. (citations omitted). We give significant deference to the

jury’s verdict, and our “deference to the jury’s view of the facts persists throughout

each prong of the qualified immunity inquiry.” A.D. v. Cal. Highway Patrol, 712

F.3d 446, 456 (9th Cir. 2013) (quoting Guillemard-Ginorio v. Contreras-Gomez,

585 F.3d 508, 528 (1st Cir. 2009)).

At step one of the qualified immunity analysis, we ask whether the officer’s

conduct violated a constitutional right. Castro v. Cnty. of L.A., 833 F.3d 1060,

1066 (9th Cir. 2016) (en banc). The jury’s determination that Officer Pina used

excessive force is sufficient to deny him qualified immunity at step one. See Reese

v. Cnty. of Sacramento, 888 F.3d 1030, 1037 (9th Cir. 2018).

We are unpersuaded by Defendants’ argument that because the jury found in

favor of Officer Pina on the Fourteenth Amendment, Bane Act, and punitive

damages claims, it must have credited Officer Pina’s account of the shooting and

his reasons for using deadly force. Officer Pina’s “subjective

motivations . . . [have] no bearing on whether” his conduct was objectively

“‘unreasonable’ under the Fourth Amendment.” Graham v. Connor, 490 U.S. 386,

397 (1989). By contrast, the Fourteenth Amendment’s “standard is a subjective

3 standard of culpability,” Cal. Highway Patrol, 712 F.3d at 453; the Bane Act

requires “some showing of intent in addition to showing the constitutional

violation,” Reese, 888 F.3d at 1044; and “the question whether to award punitive

damages is left to the jury, which may or may not make such an award,” Smith v.

Wade, 461 U.S. 30, 52 (1983) (citation and internal quotation marks omitted).

We are similarly unpersuaded by Defendants’ contention that the jury’s

answer to the special interrogatory—that Dominguez dropped his hands and leaned

forward before Officer Pina fired his weapon—is irreconcilable with its general

verdict that Officer Pina used excessive force. There are at least two scenarios in

which the answer to the special interrogatory and the general verdict do not

conflict. See United Air Lines, Inc. v. Wiener, 335 F.2d 379, 407 (9th Cir. 1964)

(“Answers to special interrogatories do not present a square conflict with the

general verdict where such answers do not exhaust all of the possible grounds on

which the finding implicit in the general verdict may have been based.”).

First, a reasonable jury could have found that Dominguez did not appear to

be reaching for a weapon when Officer Pina shot him. The jury’s answer to the

special interrogatory did not specify how far Dominguez dropped his hands, how

far he leaned forward, or whether he raised his hands again. The jury heard

evidence that Dominguez’s head, upper shoulders, and left arm were raised above

the windowsill when he was shot. The jury also heard testimony that no evidence

4 showed Dominguez possessed a gun during the armed robbery, that officers never

saw a weapon in Dominguez’s hands, and that there was no weapon inside the car.

It also is undisputed that Dominguez was not carrying a weapon at any point

during the encounter. A reasonable jury could thus infer, notwithstanding the

special interrogatory, either (a) that Dominguez did not appear to be reaching for a

weapon or (b) it would not make sense for Dominguez to appear to be reaching for

a weapon, because there was no weapon. See Cruz v. City of Anaheim, 765 F.3d

1076, 1079 (9th Cir. 2014). In such circumstances, deadly force is not justified.

See Peck v. Montoya, 51 F.4th 877, 888 (9th Cir. 2022) (when a suspect is “not

armed—and [is] not about to become armed—he [does] not ‘pose[ ] an immediate

threat to the police or the public, so deadly force is not justified.’” (quoting Cruz,

765 F.3d at 1078–79)).

Second, a reasonable jury could have found that, considering the totality of

the circumstances, it was unreasonable for Officer Pina to believe that Dominguez

posed an immediate threat even though he dropped his hands and leaned forward.

See Tan Lam, 976 F.3d at 998 (when considering “the government’s interest in the

amount of force used, . . . we must ‘examine the totality of the circumstances’ . . .

[and] the most important factor is whether the person posed an immediate threat to

the safety of the officer or another.” (internal quotation marks omitted) (quoting

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010))). Dominguez complied

5 with orders to raise his hands and ceased any further attempts to escape. See id.

(identifying “whether [the suspect] ‘is actively resisting arrest or attempting to

evade arrest by flight’” as a relevant factor (quoting Graham, 490 U.S. at 396)). In

addition, Plaintiffs’ expert testified that officers on the scene failed to take crucial

steps to de-escalate the situation or to use non-lethal weapons before shooting

Dominguez. See id. at 999 (identifying “the availability of less intrusive

alternatives to the force employed” as a relevant factor (quoting Glenn v.

Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (internal quotation marks

omitted))).

Moving to step two of the qualified immunity analysis, we ask whether the

right that was violated “was clearly established at the time of the incident.”

Castro, 833 F.3d at 1066. Although the step-two inquiry is a matter of law

reserved for the court, Morales v. Fry, 873 F.3d 817, 826 (9th Cir. 2017), “[w]e

consider this question in light of the jury’s findings,” Shafer v. Cnty. of Santa

Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). Consequently, our analysis accepts

the jury’s findings that Dominguez dropped his hands and leaned forward before

Officer Pina shot him and that Officer Pina used excessive force against

Dominguez in doing so. Construing the evidence regarding the remaining factual

disputes most favorably to Plaintiffs, Tan Lam, 976 F.3d at 1000, we consider the

scenarios described above.

6 We therefore assume that Dominguez did not appear to be actively reaching

for a gun, nor did he appear to be making any other furtive movement or gesture,

when he dropped his hands and leaned forward by some amount and, perhaps,

raised his hands again. It was clearly established at the time of the relevant events

that deadly force is not justified “absent some reason to believe that the suspect

will soon access or use [a] weapon.” Peck, 51 F.4th at 888 (citing Cruz, 765 F.3d

at 1077–78).1

Accordingly, Officer Pina’s use of deadly force violated Dominguez’s

Fourth Amendment right under clearly established law. Officer Pina, therefore, is

not entitled to qualified immunity.

2. Damages: The district court did not abuse its discretion in denying

Defendants’ motion for a new trial and remittitur on damages for pre-death pain

and suffering, because there was “some reasonable basis for the jury’s verdict.”

Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal quotation

marks omitted). There was evidence that, after Dominguez was shot, a police dog

was released into his car for close to a minute that the dog “interacted for a period

of time, aggressively, with [him],” and that Dominguez was pronounced dead only

1 Officer Pina shot Dominguez on September 15, 2017. Cruz was published in 2014. 765 F.3d at 1076. Peck’s analysis and identification of the law that Cruz clearly established therefore bears on our inquiry, despite Peck’s publication after the events in this case.

7 after the dog was called off. The jury was “entitled to make use of their general

knowledge of the effect of [injuries] upon a human body” and to infer that

Dominguez did “not die or lose consciousness immediately.” S. Pac. Co. v.

Heavingham, 236 F.2d 406, 409 (9th Cir. 1956).

3. Attorney Fee Multiplier: Nor did the district court abuse its discretion

by awarding a 1.2 multiplier to Plaintiffs’ requested attorney fees. The court

provided “an objective and reviewable basis for the fees” based on “specific

evidence that supports the award.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

553, 558 (2010) (citation and internal quotation marks omitted). The court

explained that “a modest multiplier is justified on the basis of undesirability.”

“Undesirability” is not a factor subsumed in the lodestar calculation. See Morales

v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996). And the court relied on

evidence in the record that three prior attorneys declined to represent Plaintiffs on

this case before current counsel agreed to do so.

4. Motion for New Trial: The district court did not abuse its discretion in

denying Plaintiffs’ motion for a new trial. There is no evidence to suggest that the

jury was misled or confused by the special interrogatory or that the jury did not

follow the judge’s instructions to disregard any potential consequences of its

verdict on Officer Pina. See Frank Briscoe Co., Inc. v. Clark Cnty., 857 F.2d 606,

615 (9th Cir. 1988) (“Absent some evidence to the contrary, we must assume that

8 the jury properly discharged its duties and followed the district court’s

instructions.”). And any such speculation by the jury did not constitute extraneous

prejudicial information. See United States v. Bussell, 414 F.3d 1048, 1055 (9th

Cir. 2005) (“We do not view the jurors’ speculation as extraneous prejudicial

information . . . [where] the alleged source of the speculation . . . was not

extraneous.” (internal quotation marks omitted)).

AFFIRMED.

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