989 F.3d 739
9th Cir.2021Background
- Hernandez drove erratically after drinking, fled from police, and drove into his garage, where he remained inside his car for ~8–10 minutes while officers attempted to arrest him.
- Officers issued multiple verbal commands (over a dozen), attempted control holds, and deployed pepper spray; Hernandez repeatedly refused to exit, saying officers were on his property.
- Officers warned Hernandez several times that a police dog would be used; Officer Gilbert then deployed canine Murphy, who bit Hernandez for ~50 seconds (dog engagement ~72 seconds total).
- Hernandez continued to resist after the bite; officers ultimately pulled him from the car and arrested him; later testing showed BAC 0.146.
- Hernandez sued under 42 U.S.C. § 1983 for excessive force; the district court granted Officer Gilbert qualified immunity on summary judgment, and Hernandez appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deploying a police dog violated clearly established Fourth Amendment law | Hernandez: Using a canine to subdue a noncompliant suspect was unconstitutional and clearly established by precedent | Gilbert: Deployment was reasonable after verbal commands, control holds, and pepper spray failed; no controlling precedent put this decision "beyond debate" | Court: Deployment was not shown to violate a clearly established right; qualified immunity applies |
| Whether duration/continuation of the bite was excessive because Hernandez had surrendered | Hernandez: Continued bite was unreasonable because he "offered to surrender" during the encounter | Gilbert: Video shows Hernandez never surrendered; he continued to resist before and after the bite | Court: Video disproves surrender; case law bars canine force after actual surrender, but here no surrender occurred, so qualified immunity applies |
Key Cases Cited
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence can refute disputed factual claims at summary judgment)
- Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994) (use of police dog subject to excessive-force analysis; canine use to secure resisting suspect was reasonable)
- Watkins v. City of Oakland, 145 F.3d 1087 (9th Cir. 1998) (continued canine biting after surrender may violate Fourth Amendment)
- Koistra v. County of San Diego, 310 F. Supp. 3d 1066 (S.D. Cal. 2018) (reiterates that canine force after surrender can be unconstitutional)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (clearly established law requires precedent to put constitutional question beyond debate)
- Hope v. Pelzer, 536 U.S. 730 (2002) (officials can be on notice their conduct violates law even in novel factual settings)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified-immunity two-prong framework may be addressed in any order)
- Mullenix v. Luna, 577 U.S. 7 (2015) (definition of clearly established law and reasonable official standard)
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (clarifies standard for what is "clearly established")