The following excerpt is from Zellner v. Summerlin, 494 F.3d 344 (2nd Cir. 2007):
Once the jury has resolved any disputed facts that are material to the qualified immunity issue, the ultimate determination of whether the officer's conduct was objectively reasonable is to be made by the court. See, e.g., Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.2003) (after the district court receives "the jury['s] . . . deci[sion as to] what the facts were that the officer faced or perceived," the court then may "make the ultimate legal determination of whether qualified immunity attaches on those facts" (internal quotation marks omitted) (emphasis added)); Lennon, 66 F.3d at 421 (the ultimate question of entitlement to qualified immunity is one of law for the court to decide "[o]nce disputed factual issues are resolved" (internal quotation marks omitted)); Warren, 906 F.2d at 76 ("If there are unresolved factual issues which prevent an early disposition of the defense, the jury should decide these issues . . . . The ultimate legal determination whether . . . a reasonable police officer should have known he acted unlawfully" should be made by the court "on the facts found" by the jury.); accord id. at 76, 77 (Winter, J., dissenting) (Although "the ultimate decision regarding the qualified immunity defense is for the court," "the court [that is] ruling on the qualified immunity issue must know what the facts were that the officer faced or perceived, and the finding of those facts appears to be a matter for the jury.").
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