A federal appeals panel has rejected a bid by San Jose to call off a lawsuit brought by a man who claims police officers allowed a police dog to continue biting him even after he allegedly had surrendered.
On July 11, a three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled unanimously that the legal doctrine of qualified immunity doesn't protect the officers and the city against the lawsuit brought by plaintiff Zachary Rosenbaum.
The opinion was authored by Ninth Circuit Judge Gabriel P. Sanchez. Circuit judges Ryan D. Nelson and Danielle J. Forrest concurred in the ruling.
"It was clearly established at the time of Rosenbaum’s arrest that an officer violates a suspect’s right to be free from excessive force under the Fourth Amendment when the officer allows a police dog to continue biting the suspect after the suspect has fully surrendered and is under officer control," Judge Sanchez wrote.
"Viewing the factual allegations in the light most favorable to Rosenbaum, a reasonable jury could find that Rosenbaum had fully surrendered and was under officer control when he lay on his stomach with his arms outstretched, was not actively resisting arrest or attempting to get up or flee, and where officers had immobilized his arms and legs and were pointing their firearm at him. A reasonable officer ... would know that allowing a police dog to continue biting Rosenbaum for an extended period of time after he had surrendered in this way is a violation of clearly established law."
In response to the ruling, however, a San Jose city attorney said the city disagrees with the judges about the clarity of the law on that point.
"Neither this case nor any other in the Ninth Circuit tells officers when the Constitution requires a police dog be ordered off a bite as officers attempt to ensure a suspect no longer poses the threat that warranted use of the dog to begin with," San Jose City Attorney Nora Frimann wrote in an email to the Northern California Record.
Frimann stressed the decision came in the form of a so-called interlocutory appeal, which addressed a question of law concerning a defense the city asserted, and not the actual underlying facts or claims in the case.
"Procedurally, this is an interlocutory appeal from a decision on a summary judgment motion and the courts must consider evidence in a light most favorable to the plaintiff and make inferences favorable to the plaintiff," Frimann said. "In this case, involving officers responding to a domestic violence call for which plaintiff served jail time, we will have an opportunity to have this case return to the trial court and a jury will decide the case without the procedural benefit to plaintiff of reviewing the evidence and drawing inferences in a way that is favorable to him."
The case centers on the arrest of Rosenbaum in September 2019. At that time, officers responded to a domestic violence report at the home of Rosenbaum's partner's home.
The group of officers that responded to the call included canine officer Hymel Dunn and his police dog, Kurt.
According to court documents, officers were told Rosenbaum may be intoxicated. The judges noted officers were also told Rosenbaum had owned firearms at one time and that he may have been trained in mixed martial arts and boxing, and may have previously fought with officers in an earlier domestic violence call. The decision notes Rosenbaum denied those claims and officers could not confirm whether those statements about Rosenbaum were true.
Officers found Rosenbaum at the top of the stairs and ordered him to come down the stairs. If he did not comply, they warned that the dog would be released and would bite him to aid officers in bringing him under control, according to the narrative portion of the decision.
When Rosenbaum allegedly repeatedly refused and questioned their commands, Dunn released the dog. When officers surrounded Rosenbaum, they allegedly found him seated against a wall, with the dog biting his forearm. About five seconds after officers reached the top of the stairs, Kurt allegedly dragged Rosenbaum to the floor, to lie prone on his stomach.
According to court narrative, even after Rosenbaum had surrendered and was restrained, Dunn allegedly allowed the dog to continue biting Rosenbaum for more than 20 seconds. According to the judges, Rosenbaum's claims are largely supported by police officers' bodycam video footage.
According to the narrative, the video backed Rosenbaum's claims that he offered no resistance to officers or the dog.
According to the narrative, Rosenbaum allegedly required several surgeries to repair his bitten arm, and "claims he has permanent damage to his arm."
He was ultimately charged with two counts of felony assault, and pleaded guilty. He served 90 days in jail.
Rosenbaum filed suit against the city and the officers, claiming their use of the dog in that situation amounted to unconstitutional excessive force.
In response, the city asked the court to grant a quick end to the lawsuit under summary judgment, meaning a judgment entered by a judge before trial. They claimed Rosenbaum's claims against the officers should be disallowed under the doctrine of qualified immunity, which can shield officers from lawsuits brought against them for certain actions they took in the course of official duties.
The judges noted that prior Ninth Circuit decisions have established that officers can be protected by qualified immunity against claims relating to injuries inflicted by police dogs if they can show that an officer released the dog from its bite as soon as officers can determine a suspect is unarmed.
However, the judges said, case law also has established that officers cannot allow dogs to continue biting past the point at which it becomes clear a suspect does not pose a threat.
The judges said, in this instance, the evidence is not clear enough to allow the city to invoke qualified immunity to end the matter.
"Far from contradicting his allegations, the video and record evidence generally supports Rosenbaum's excessive force claims," Sanchez wrote. "At a minimum, whether the officers acted reasonably in allowing the police dog to continue biting Rosenbaum is a question for the jury."
Rosenbaum is represented in the action by attorneys Fulvio F. Cajina, of Oakland; and Stanley C. Goff, of San Francisco.