107 F.4th 919
9th Cir.2024Background
- Zachary Rosenbaum was arrested by San Jose Police after a domestic violence report; officers included a canine handler and his dog, Kurt.
- Rosenbaum was found unarmed, sitting at the top of stairs, and later lying prone in apparent surrender, with officers surrounding him and firearms drawn.
- Officers deployed a police dog, which allegedly continued biting Rosenbaum for more than twenty seconds after surrender.
- Rosenbaum suffered serious injuries, requiring multiple surgeries, and alleges excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983.
- Defendants (City and officers) moved for summary judgment on qualified immunity grounds; the district court denied the motion, and defendants appealed.
- Bodycam footage generally supported Rosenbaum's version, and all factual disputes are resolved in his favor on interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers used excessive force by allowing the police dog to continue biting after Rosenbaum surrendered | Officers allowed dog to bite after full surrender and control, violating the Fourth Amendment | Rosenbaum was not clearly surrendering or under control | Jury could find excessive force; qualified immunity denied |
| Whether the right to be free from prolonged police dog bites after surrender was clearly established | Precedent clearly establishes this as unconstitutional | Law was not clearly established in these facts | The right was clearly established by controlling precedent |
| Whether factual disputes about reasonableness can be resolved on summary judgment | Bodycam/video supports plaintiff; factual disputes exist | Evidence insufficient to create triable issues | Factual disputes require jury determination |
| Defendants' entitlement to qualified immunity as a matter of law | Conduct violated clearly established law, so no immunity | Qualified immunity should apply | No immunity; denial affirmed |
Key Cases Cited
- Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994) (excessive force through prolonged dog bite after surrender violates Fourth Amendment)
- Watkins v. City of Oakland, 145 F.3d 1087 (9th Cir. 1998) (officer may not allow police dog to continue biting after suspect surrenders)
- Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003) (force not excessive where dog released upon confirmation suspect was unarmed)