• Use of a Police K-9 to Subdue
• The Fourth Amendment and Excessive Force

Police officers violate the?Fourth Amendment?when they allow a police dog to continue biting a suspect who has fully surrendered?and is under the officers’ control.

Officers from the San Jose Police Department, including one with his K-9 partner, responded to a domestic violence call on September 10, 2019, at the home of Zachary Rosenbaum; plaintiff in this lawsuit.  Upon arrival, Rosenbaum’s domestic partner told the officers that the plaintiff was under the influence of alcohol or narcotics.  She also told them that he had previously owned firearms although she believed that they had since been destroyed in a fire.  The officers were further informed that plaintiff had fought with the police during a prior domestic violence incident and that he was trained in mixed martial arts and boxing (allegations plaintiff later denied).  (Neither the details of this particular alleged “domestic violence” incident, nor whether they were relayed to the officers, not being in issue, were not mentioned in the decision.  However, the officers apparently believed they had enough information to arrest the plaintiff.)  

Presuming that the plaintiff might offer some resistance, the officers carefully entered the house, first announcing their presence at the front door and using the K-9 to precede them and clear the downstairs area of the house.  After determining that plaintiff was not downstairs, the officers positioned themselves at the bottom of the stairwell leading to the second floor “with firearms drawn and pointed upward.”  Plaintiff was observed at this time at the top of the stairs.  Over the next six minutes, the officers—still at the bottom of the stairs—told plaintiff, who remained that the top, that he was under arrest and commanding him to come down and surrender. Plaintiff declined, repeatedly questioning the officers as to why he was being arrested. Plaintiff was warned that if he did not comply, the police dog would be sent upstairs and would bite him.   

When plaintiff continued to refuse to cooperate, the K-9 “Kurt” was released, closely followed by the officers.  When the officers reached the top of the stairs at the second floor landing, an unarmed plaintiff was found seated on the floor with his back against a wall and Kurt biting his right forearm.  Plaintiff later alleged in the ensuing lawsuit that the K-9 officer deployed Kurt to attack and bite him even though he was unarmed and had his hands visibly raised in a surrender position. Plaintiff further alleged that he was not trying to evade arrest and posed no threat to the officers.  Approximately five seconds after the officers reached the second floor, Kurt dragged the unresisting plaintiff away from the wall and onto his stomach.  With at least one of the officers having his gun drawn and pointed at the plaintiff, another officer stood on plaintiff’s legs as the plaintiff yelled out for his partner, trying to tell her that “he’s bleeding me out.” One officer then took ahold of plaintiff’s left arm and moved it to behind his back while Kurt pulled plaintiff’s right arm above his head.  As this occurred, a third officer planted his foot on plaintiff’s right shoulder. During all this, Kurt continued to pull plaintiff’s right arm over his head, giving one last forceful shake before the K-9 officer finally commanded the dog to let go.   

All of this—as recorded on the officers’ bodycams—took about 20 seconds.  In short (as noted by the Court), “the video evidence supports (plaintiff’s) allegation that a police dog bit him for more than twenty seconds after he had surrendered and lay prone on his stomach with arms outstretched.”   

Plaintiff was taken to the hospital for treatment of multiple puncture wounds and lacerations.  As a result, he required several surgeries, later claiming that he has permanent damage to his arm. He was later charged in state court with two counts of felony assault by means of force likely to produce great bodily injury (Pen. Code § 245(a)(4)), stemming from the domestic violence situation that occurred before the officers’ arrival.  Plaintiff pled no contest and served 90 days in jail. Plaintiff subsequently sued the San Jose Police Department and all the officers involved in his arrest in federal court pursuant to 42 U.S.C. § 1983, alleging that the the officers used excessive force, violating his Fourth Amendment rights.  The civil defendants filed for summary judgment, arguing that they were entitled to qualified immunity from civil liability.  The federal district (trial) court denied the motion, declining to dismiss the lawsuit.  The defendants appealed. 

The Ninth Circuit Court of Appeals affirmed.  Assuming the truth of the plaintiff’s factual allegations (as it must at the qualified immunity stage), the Court held that this is a case that must be resolved by a jury. As discussed in many prior case briefs, the Court noted that it is required to affirm the district court’s denial of the civil defendant’s motion for qualified immunity if, after resolving all factual disputes and drawing all inferences in the plaintiff’s favor, the civil defendants’ conduct “(1) violated a constitutional right (2) that ‘was clearly established at the time of the officer[s’]?alleged misconduct.’” “A right is clearly established when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’”?(Rivas-Villegas v. Cortesluna (2021) 595 U.S. 1, 5.) Law enforcement officers “are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”?(Kisela v. Hughes (2018) 584 U.S. 100, 104)  In this case, the Court ultimately held that assuming the truth of the allegations (as largely supported by the bodycam evidence), the civil defendants did in fact violate the plaintiff’s Fourth Amendment rights by exposing him to the use of excessive force.  As relevant to this case, it has clearly been held in prior cases that “(a)” police officer violates the?Fourth Amendment?when he or she allows a police dog to continue biting a suspect who has fully surrendered and is under officer control.”  (See Mendoza v. Block (9th Cir. 1994) 27 F.3rd 1357 ;?Watkins v. City of Oakland (9th Cir. 1998) 145 F.3rd 1087; Miller v. Clark County (9th Cir. 2003) 340 F.3rd 959.)?On the other side of this coin, prior case law has also clearly established that “an officer does not act unreasonably (Italics added) in deploying a police dog to detain a suspect where the officer releases the dog from its bite as soon as he determines that the suspect is unarmed” and no longer a danger.?(See?Miller, supra, at pp. 960-961.)  Rejecting the civil defendant’s allegations that the rule relevant to this case was not clearly established, the Court here held that it was clearly established, and that “a reasonable jury could find that (the officers) exceeded the force reasonably necessary to effectuate an?arrest by allowing Kurt to continue biting (the plaintiff) for more than twenty seconds after he had fully surrendered and was under officer control. Accepting (the plaintiff’s) version of events, Kurt continued to bite him even as he was in an ‘obviously helpless’ situation, lying prone with arms outstretched, multiple officers immobilizing his arms and legs, and another officer pointing a firearm at him. . . . (The K-9 officer) did not immediately release Kurt from the bite as soon as he determined that (the plaintiff) was unarmed. . . . The (bodycam) video instead shows Kurt continuing to bite (the plaintiff) for more than twenty seconds after (the officers) reached (the plaintiff) near the second-floor landing and he slid down onto his stomach in a prone position.”  As such, plaintiff raises an issue as to the lawfulness of the force used upon the officers’ failure to command the K-9 to immediately stop.  The civil defendants’ motion for summary judgment, therefore, was properly denied by the district court.