Courtesy of James R. Touchstone, Esq.
In Hernandez v. Town of Gilbert, the Ninth Circuit Court of Appeals held that no clearly established law controlled in the specific context of a suspect who continued to resist police and refused to surrender throughout an incident in which the officers escalated from a minimal use of force through lesser uses of force before a police canine subsequently was deployed. In reaching its conclusion, the Court determined that Mendoza v. Block did not clearly establish that the canine officer’s conduct in eventually deploying his police service dog (“PSD”) was unconstitutional because the facts were dissimilar.
Police officers’ body cameras recorded events leading up to the use of the canine in this case.
In May 2016, Scott Hernandez drank with some friends one evening before driving home. Town of Gilbert Police Department Officer Chris Robinson noticed Hernandez’s car swerving and activated his police vehicle’s lights. Hernandez saw the emergency lights flashing behind him but kept driving, even after the officer’s subsequent use of the vehicle’s siren. Hernandez drove for approximately one and a half minutes before coming to his driveway, opening his garage door with his remote-controlled garage door opener, pulling into the garage, and shutting off his car. Staying in his car, Hernandez tried to close his garage door remotely, but Officer Robinson stopped the door from closing. Officer John Leach and canine Officer Steve Gilbert, with PSD “Murphy,” responded to assist after Officer Robinson called for backup.
For two and a half minutes, Officer Robinson gave thirteen or more verbal orders for Hernandez to step out of the vehicle and warned Hernandez that he would be arrested for failing to obey a police officer if he did not. Hernandez repeatedly refused. Not knowing if Hernandez was armed, Officers Robinson and Leach approached with their guns drawn. Officer Robinson tried to force Hernandez to get out of the car by using control holds, but Hernandez resisted these holds by tucking his arms close to his body. Officer Robinson observed that Hernandez’s eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol. Officer Robinson then deployed pepper spray without effect. He warned Hernandez eight more times that he was under arrest and needed to get out of the car. He also warned Hernandez at least five times that a PSD would bite him if he did not step out of the car. Hernandez responded with refusals and denials.
Approximately eight minutes after Officer Robinson first activated his vehicle’s emergency lights, Officer Gilbert commanded PSD Murphy to bite Hernandez. As Officer Gilbert approached the car with Murphy on a leash, both the driver’s side door and front passenger’s side door were open. Officer Gilbert warned Hernandez that the dog would bite him if he did not step out of the car. Hernandez closed the driver’s side door and before Hernandez could close the passenger’s door, Murphy entered and bit Hernandez’s arm for fifty seconds in total. While Murphy was holding onto Hernandez, Officer Gilbert yelled at Hernandez to get out of the car. Officer Robinson also ordered Hernandez to crawl forward out of the vehicle. Although Hernandez repeatedly yelled “alright,” he did not move. Thirty-six seconds into the bite, Officer Gilbert commanded Murphy to release the hold. Fourteen seconds later, Murphy obeyed and released his bite on Hernandez’s arm. Murphy, however, held onto Hernandez’s shirt for another twenty-two seconds before completely releasing the hold. While Murphy hung onto Hernandez’s shirt, Hernandez held onto the front passenger headrest and told the officers that they were on his property. Police dog Murphy was engaged with Hernandez for one minute and twelve seconds in total.
After Murphy released Hernandez, Hernandez continued to resist by holding onto the headrest despite the officers’ repeated orders to get out of the car. When Hernandez refused to comply, Officer Robinson asked, “should we let the dog go again?” Officers Robinson and Leach again instructed Hernandez to step out of the car. Although Hernandez replied “alright,” he nonetheless continued to hang onto the headrest, protesting “wait, wait, wait.” Roughly nine and a half minutes after Officer Robinson first activated his vehicle’s emergency lights, the officers finally pulled Hernandez from his car.
During the encounter, Hernandez had a BAC of 0.146 when his blood was tested later at the hospital under authority of a search warrant. The officers booked Hernandez on one felony charge for resisting arrest and two misdemeanor charges for a DUI and failure to comply with a police officer. Hernandez ultimately pled guilty to a misdemeanor charge.
Hernandez sued the Town of Gilbert and several police officers asserting, among other claims, an excessive force claim against Officer Gilbert under 42 U.S.C. section 1983. Officer Gilbert moved for partial summary judgment on the excessive force claim. The District Court entered summary judgment in favor of the Town of Gilbert and Officer Gilbert and granted him qualified immunity. The District Court held that it was not clearly established that an officer in Officer Gilbert’s position acted unreasonably, thus violating Hernandez’s Fourth Amendment rights. Hernandez appealed.
The Ninth Circuit Court of Appeals explained that qualified immunity shields government officials under Section 1983 unless “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle, supra, at p. 664). “[E]xisting precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted). Qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Hernandez argued on appeal that both the initial deployment of the canine and the duration of the bite violated clearly established law.
Defining Hernandez’s task on appeal, the Court explained that to defeat qualified immunity, Hernandez was required to demonstrate that the state of the law as of the day of the May 2016 incident gave a reasonable officer “fair warning” that using a PSD on a non-compliant suspect, who had resisted lesser methods of force to complete his arrest, was unconstitutional.
In Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994), relied upon by Hernandez, the Ninth Circuit had affirmed the dismissal on qualified immunity grounds of a Section 1983 claim by Mendoza, who was severely bitten by a PSD while trying to escape arrest for bank robbery by hiding for several hours in bushes on private property that was not his own. Deputies had been warned that Mendoza was armed and Mendoza did not surrender when warned that he would be bitten. Deputies used the dog to find and pull Mendoza out of the bushes and ordered Mendoza to stop resisting, but he resisted and swung at a deputy. The Mendoza Court held that the law was clearly established that the use of the PSD was subject to excessive force analysis, but that the deputies’ use of the PSD to find the suspect and to secure him until he stopped struggling and was handcuffed was objectively reasonable.
The Ninth Circuit acknowledged that unlike Mendoza, (1) the officers here were not warned by headquarters that Hernandez might be armed and that Officer Gilbert did not know whether Hernandez was armed as no one had searched him yet; and (2) fleeing from a pursuing officer and taking evasive action to avoid a misdemeanor arrest for DUI may be less serious than fleeing a bank robbery.
However, the Court found that Mendoza did not place “beyond debate” whether Officer Gilbert’s decision to deploy PSD Murphy to facilitate Hernandez’s arrest under the circumstances of this case violated the Fourth Amendment. Critically, Mendoza did not clearly establish that Officer Gilbert’s conduct violated Hernandez’s Fourth Amendment rights because Mendoza did not address the specific context of this case: officers using minimal force at the beginning of an encounter and escalating the level of force employed, ultimately deciding to use a police canine when other methods were unsuccessful.
The officers in Mendoza used the dog to locate the suspect, so the encounter began with the use of a dog bite, but here, Officers Robinson, Leach, and Gilbert did not begin the encounter with a dog bite. Instead, the officers initially gave verbal commands, repeatedly, to surrender to their authority. When Hernandez refused to obey, the officers tried control holds. Then they used pepper spray which still did not result in Hernandez’s compliance. They then warned Hernandez about the impending release of the dog if he refused to yield. Finally, and only after all of these methods failed to overcome Hernandez’s resistance, Officer Gilbert deployed Murphy.
The Court of Appeals observed that Mendoza “says little about how a reasonable officer should escalate the use of force on a non-compliant suspect.” The Ninth Circuit found that because the facts were so dissimilar, Mendoza did not clearly establish that Officer Gilbert’s conduct in eventually deploying Murphy was unconstitutional. The Court concluded that Officer Gilbert was entitled to qualified immunity.
Hernandez also contended on appeal that the duration of Murphy’s bite was unreasonable because Hernandez had surrendered. The Court explained that while courts view the facts in the light most favorable to the non-moving party at the summary judgment stage, “we do not accept a non-movant’s version of events when it is ‘clearly contradict[ed]’ by a video in the record. Scott v. Harris, 550 U.S. 372, 378-80 (2007).” Here, Hernandez stipulated to the bodycam footage, and the Court found that at the time Officer Gilbert directed Murphy to bite Hernandez, the videos established that Hernandez had not surrendered despite repeated warnings and prior uses of lesser force. Despite his occasional verbal utterances of “alright” and the like, his body language on the recording showed only non-compliance. Hernandez did not put his arms up or assert that he was unarmed. The video footage during and after the dog bite showed nothing that suggested that Hernandez was unable to comply with the officers’ commands. The video instead revealed that Hernandez chose not to comply because, in his words, the officers were “on his property.”
Moreover, as soon as Murphy was called off, Hernandez again physically and verbally refused to comply with the officers. Officer Robinson had to threaten to use the dog again because it seemed that the first use of Murphy had not succeeded in convincing Hernandez to yield to police commands; he was still not getting out of the car. The officers ultimately had to physically pull Hernandez out despite his attempt to remain in the car. Thus, the bodycam video negated his attempt to characterize his actions as surrender. The Court concluded that, based on Hernandez’s continuing resistance as depicted in the video footage, a reasonable officer in the position of Officer Gilbert would not view Hernandez’s conduct as an act of surrender. Hernandez thus failed to meet his burden to show a genuine issue of material fact as to whether he surrendered.
The Ninth Circuit Court of Appeals accordingly affirmed.
HOW THIS AFFECTS YOUR AGENCY
Agencies should observe how the officers here generally conducted themselves, from Officer Robinson’s initial use of emergency lights, through Officer Gilbert’s use of the PSD, only after other lesser, escalating methods of achieving compliance were unsuccessful. Hernandez was resisting throughout, but the officers appropriately responded to the level of danger he might have presented at each step. The officers had the ability to utilize time to attempt to resolve this incident utilizing lesser intrusive force alternatives, which is not always present during a given incident. When time is available, officers should take advantage to attempt to de-escalate the situation if it would not result in impairing officer safety.
With regards specifically to the use of the PSD at issue here, it should be noted that the PSD was deployed by the canine officer only after other lesser methods proved unsuccessful in achieving compliance. The suspect continued to resist even after the PSD released its hold. Moreover, this decision is significant in that the Ninth Circuit determined that the officer was entitled to qualified immunity for use of the canine, despite the length of time that the canine was “on bite.”
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400, or via email, at email@example.com
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
 2021 U.S. App. LEXIS 6305 (9th Cir. Mar. 4, 2021).
 27 F.3d 1357 (9th Cir. 1994).
 See Hope, 536 U.S. at 741.
 See al-Kidd, 563 U.S. at 741.
 See Hamby v. Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016).