032534P.pdf   11/02/2004  Patricia Littrell  v.  Daniel Jake Franklin
   U.S. Court of Appeals Case No:  03-2534
                          and No:  03-2790
   Western District of Arkansas   
   Civil case - civil rights. District court properly submitted the issue of 
   excessive force to the jury, and the evidence was sufficient to support the 
   jury's finding that the defendant used excessive force in plaintiff's arrest; 
   district court should have made the finding of qualified immunity rather 
   than submitting it to the jury, as under the law of this circuit, the issue 
   of qualified immunity is a question of law for the court to decide; however, 
   where questions of historical fact exist, the jury must resolve those 
   questions so that the court can make the ultimate legal determination of 
   whether an officer's actions were objectively reasonable in light of clearly 
   established law; court may use carefully drafted interrogatories to allow 
   jurors to decide factual issues while preserving the ultimate legal 
   determination for the court; while the district court followed Fifth Circuit 
   practice in submitting the issue to the jury, plaintiff did not object to 
   submission of the interrogatory and the court concludes, based on the 
   record and the instructions as a whole, that submission of the qualified 
   immunity issue to the jury did not actually affect the outcome of the 
   proceedings and was not plain error. 
   [PUBLISHED] [Melloy, Author, with M. Arnold and Beam, Circuit Judges]