Cops Not Entitled to Qualified Immunity, Police Dog

On the evening of September 10, 2019, San Jose Police responded to a reported domestic violence situation at the home of Zachary Rosenbaum’s partner’s house.  When police arrived, with their police dog named “Kurt,” Mr. Rosenbaum’s partner (the alleged victim) told police that Mr. Rosenbaum was under the influence of alcohol or narcotics and that he had previously owned firearms, but she believed they were destroyed in a fire.

Another officer told the fellow officers there that Mr. Rosenbaum had previously found with officers and was trained in mixed martial arts and boxing.

Mr. Rosenbaum then appeared at the top of the landing at the top of the stairs leading to the second floor.  Officers instructed Mr. Rosenbaum to come down the stairs and advised him that he was under arrest.  Mr. Rosenbaum did not comply and repeatedly asked the officers why he was under arrest.  

Officers repeatedly advised him that if he did not come down the stairs, they would release the police dog and the dog would bite him.  Officers were apparently concerned that he had firearms and would shoot the officers as they walked up the stairs with nowhere to hide.

After approximately nine minutes of such discussion, the police released Kurt even though Mr. Rosenbaum had his hands raised in a surrender position, was not armed and was not trying to evade arrest.

After the dog was deployed, Mr. Rosenbaum laid down on his stomach in full surrender with his hands stretched out.  Kurt then started biting Mr. Rosenbaum on his right forearm and did so repeatedly for over 20 seconds before being pulled away.    While the dog was biting Mr. Rosenbaum, one officer held Mr. Rosenbaum’s left arm and another officer was standing on his right shoulder.  After a final “forceful shake,” the police dog was commanded to let Mr. Rosenbaum go.  Officers then told Kurt “good boy” several times.

Mr. Rosenbaum required medical treatment for his wounds and required several surgeries for treatment of several puncture wounds and lacerations.  He claimed he had permanent damage to his one arm.

Mr. Rosenbaum was later charged with two counts of felony assault by means likely to cause great bodily injury pursuant to Penal Code § 245(a)(4), to which he pled no contest and served 90 days in county jail and was ordered to fulfill other conditions as well.

Mr. Rosenbaum thereafter sued the City of San Jose and the arresting officers in federal court, alleging officers had used excessive force in violation of 28 U.S.C. § 1983 in violation of his civil rights and the Fourth Amendment.  

The City of San Jose and the officers moved for summary judgment to dismiss the lawsuit, alleged the officers were entitled to qualified immunity for their acts while in the course and scope of employment.

The trial court judge denied the motion and the City of San Jose and the officers filed an interlocutory appeal to the United States Court of Appeals for the Ninth Circuit.  

The Ninth Circuit affirmed the trial court, noting that bodycam footage matched Mr. Rosenbaum’s account of the arrest.  Forty-three seconds passed between the time the officers deployed Kurt to go up the stairs until the time officers commanded Kurt to stop. 

The Ninth Circuit noted that where factual disputes exist as to the objective reasonableness of an officer’s conduct, the case cannot be resolved at summary judgement on qualified immunity grounds.  In fact, a district court’s denial of qualified immunity must be affirmed if the officer’s conduct violated a constitutional right that was clearly established at the time of the alleged misconduct.  

Here, existing Ninth Circuit precedent had clearly established that a police officer violates the Fourth Amendment when the officer allows a police dog to continue biting a suspect who has full surrendered and is under control.  Watkins v. City of Oakland (9th Cir. 1998) 145 F. 3d 1087, 1100.  Therefore, a reasonable jury could find that officers exceeded the force reasonably necessary for an arrest, so they were not entitled to qualified immunity.

The case was then ordered remanded to the trial court for further proceedings.  It is not clear if the City and the officers then settled with Mr. Rosenbaum or for how much.