In Rosenbaum v. City of San Jose, published July 11, 2204, the 9th Circuit affirmed denial of the defendant police officers' summary judgment motion based on qualified immunity. The officers and a police dog responded to a domestic violence report at the plaintiff's partner's home. The k-9 officer released the dog into the first floor of the house to search for the plaintiff, and the officers entered soon afterward. They positioned themselves at the bottom of a stairwell with firearms drawn and pointing up. The plaintiff stood at the top of the stairs. The plaintiff did not comply with repeated orders that he was under arrest and to come down and surrender. The officers warned that if the plaintiff did not come down the stairs, a police dog would be sent upstairs and bite him. Eventually, the K-9 officer released the dog and another officer fired a stun bag. The officers went upstairs and found the plaintiff unarmed, with his back against the wall and the dog biting his right forearm. Allegedly, when the dog was deployed, the plaintiff had his hands raised in a surrender position, was not trying to evade arrest, and had posed no threat to the officers. Also allegedly, while the plaintiff was lying on his stomach in full surrender and surrounded by officers with firearms trained on him, the dog was allowed to continue biting him for over 20 seconds before being pulled away. Bodycam video of the arrest generally supported these allegations. The plaintiff was charged with felony assault, pleaded no contest, and served jail time.
The 9th Circuit agreed with the district court that the officers were not entitled to summary judgment based on qualified immunity. At the time of the alleged misconduct, case law had established 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. Resolving all factual disputes and drawing all inferences in the plaintiff's favor, a reasonable jury could find that the officers exceeded the force reasonably necessary to effectuate an arrest by allowing the dog to continue biting the plaintiff for more than 20 seconds after he had fully surrendered and was under officer control. Whether the officers acted reasonably in allowing the dog to continue biting the plaintiff under the circumstances is, at a minimum, a question for the jury.
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