Zachary Rosenbaum v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZACHARY ROSENBAUM, No. 22-16863

Plaintiff-Appellee, D.C. No. 5:20-cv-

v. 04777-NC

CITY OF SAN JOSE; BRET

HATZENBUHLER, SAN JOSE OPINION

POLICE DEPARTMENT

SERGEANT; HYMEL DUNN,

RYAN FERGUSON, FRANCISCO

VALLEJO, GARY ANDERSON,

SAN JOSE POLICE DEPARTMENT

OFFICERS,

Defendants-Appellants,

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge, Presiding

Argued and Submitted February 8, 2024

San Francisco, California

Filed July 11, 2024

Before: Ryan D. Nelson, Danielle J. Forrest, and Gabriel

P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez

2 ROSENBAUM V. CITY OF SAN JOSE

SUMMARY *

Excessive Force/Qualified Immunity/Police Dogs

The panel affirmed the district court’s denial of qualified

immunity to City of San Jose police officers in an action

alleging that the officers used excessive force when they

deployed a police dog that allegedly bit plaintiff Zachary

Rosenbaum for more than twenty seconds after he had

surrendered and lay prone on his stomach with his arms

outstretched.

The panel noted that in its limited interlocutory review,

it viewed the facts in the light most favorable to Rosenbaum

unless they were blatantly contradicted by the record,

including the video evidence in this case. Contrary to

defendants’ contention on appeal, bodycam video from the

arrest did not contradict, and generally supported,

Rosenbaum’s allegation that while he lay on his stomach “in

full surrender with his hands stretched out and surrounded

by all named defendants with their firearms trained on him,”

the police dog “was allowed to continue biting [him] for over

20 seconds, before being pulled away.” At a minimum,

whether the officers acted reasonably in permitting the

police dog to hold the bite for its duration under these

circumstances was a triable question to be decided by a jury.

Further, this Circuit’s caselaw clearly establishes that

officers violate the Fourth Amendment when they allow a

police dog to continue biting a suspect who has fully

surrendered and is under officer control.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ROSENBAUM V. CITY OF SAN JOSE 3

COUNSEL

Fulvio F. Cajina (argued), Law Office of Fulvio F. Cajina,

Oakland, California; Stanley C. Goff, Stanley Goff, San

Francisco, California; for Plaintiff-Appellee.

Kendra E. McGee (argued), Senior Deputy City Attorney;

Maren J. Clouse, Chief Deputy City Attorney; Ardell

Johnson, Assistant City Attorney; Nora Frimann, City

Attorney; Office of the City Attorney, San Jose, California;

for Defendant-Appellants.

OPINION

SANCHEZ, Circuit Judge:

During the arrest of plaintiff Zachary Rosenbaum,

officers of the San Jose Police Department deployed a police

dog that allegedly bit him for more than twenty seconds after

he had surrendered and lay prone on his stomach with arms

outstretched. Rosenbaum sued the City of San Jose and

several officers involved in the arrest under 42 U.S.C.

§ 1983, alleging that Defendants’ excessive force violated

the Fourth Amendment and resulted in severe lacerations

and permanent nerve damage to his arm. Defendants now

appeal the district court’s denial of their motion for summary

judgment based on qualified immunity.

On interlocutory review, we view the facts in the light

most favorable to Rosenbaum unless they are “blatantly

contradicted” by video evidence. See Scott v. Harris, 550

U.S. 372, 380 (2007). Contrary to Defendants’ contention

on appeal, bodycam video from the arrest does not

contradict, and generally supports, Rosenbaum’s allegation

4 ROSENBAUM V. CITY OF SAN JOSE

that while he lay on his stomach “in full surrender with his

hands stretched out and surrounded by all named Defendants

with their firearms trained on him,” the police dog “was

allowed to continue biting [him] for over 20 seconds, before

being pulled away.” At a minimum, whether the officers

acted reasonably in permitting the police dog to hold the bite

for its duration under these circumstances is a triable

question to be decided by a jury. Further, our caselaw clearly

establishes that officers violate the Fourth Amendment when

they allow a police dog to continue biting a suspect who has

fully surrendered and is under officer control. Accordingly,

we affirm the denial of qualified immunity.

I.

On the evening of September 10, 2019, San Jose police

responded to a domestic violence report at Rosenbaum’s

partner’s home. The arrest team included Sergeant Bret

Hatzenbuhler; canine Officer Hymel Dunn and his police

dog “Kurt;” and Officers Ryan Ferguson, Francisco Vallejo,

and Gary Anderson. Officer Dunn testified that no other

officer on the scene was trained in handling Kurt. 1 Prior to

the officers entering the house, Rosenbaum’s partner told

them that Rosenbaum was under the influence of alcohol or

1

Although Officer Dunn was the only officer in charge of the police dog

and trained to control him, the district court held that there was a material

dispute of fact as to whether Sergeant Hatzenbuhler and Officers

Anderson, Ferguson, and Vallejo were “integral participants” in Officer

Dunn’s use of excessive force and therefore also potentially subject to

liability. See Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004)

(Officers may be liable for a Fourth Amendment violation under the

“integral participation analysis,” which “does not require that each

officer’s actions themselves rise to the level of a constitutional

violation.”). Because Defendants do not challenge the district court’s

integral participant determination on appeal, we do not address it.

ROSENBAUM V. CITY OF SAN JOSE 5

narcotics and that he had previously owned firearms, but she

believed they were destroyed in a fire. 2

After announcing their presence, Officer Dunn released

Kurt into the first floor of the house to search for

Rosenbaum, and officers entered the home soon thereafter.

Officers cleared the first floor and then positioned

themselves at the bottom of a stairwell leading to the second

story, with firearms drawn and pointed upward. Rosenbaum

was at the top of the second story landing, wearing a tank top

and sweatpants. Sergeant Hatzenbuhler testified that the

officers had no reason to believe that anyone else was

upstairs with him. Over the next six minutes, officers

instructed Rosenbaum that he was under arrest and

commanded him to come down the stairs and surrender.

Rosenbaum did not comply and repeatedly questioned why

he was under arrest. During this exchange, officers warned

Rosenbaum that if he did not come down the stairs, a police

dog would be sent upstairs and would bite him.

Approximately nine minutes after officers entered the

home, Officer Dunn released Kurt and Officer Ferguson

simultaneously fired a stun bag. 3 Officers ascended the

stairs in single formation and apprehended Rosenbaum near

the second-floor landing. As officers approached

Rosenbaum, he was found unarmed and seated with his back

against the wall and Kurt biting his right forearm.

2

Rosenbaum’s partner also told officers that Rosenbaum had fought with

police in a prior domestic violence incident and that he was trained in

mixed martial arts and boxing. Officers could not confirm whether the

allegations were true. Rosenbaum denies these claims.

3

The parties agree that approximately 43 seconds elapsed between the

time Officer Dunn deployed Kurt to the time he commanded the dog to

release Rosenbaum.

6 ROSENBAUM V. CITY OF SAN JOSE

Rosenbaum alleges that “Officer Dunn deployed his police

K-9 to attack and bite [him] even though [Rosenbaum] had

his hands visibly raised in a surrender position, was not

armed, was not trying to evade arrest, and had posed no

threat to the officers.” Rosenbaum further alleges “that after

the K-9 was deployed to bite [Rosenbaum], and while

[Rosenbaum] was laying on his stomach in full surrender

with his hands stretched out and surrounded by all named

Defendants with their firearms trained on him, that the K-9

was allowed to continue biting [him] for over 20 seconds,

before being pulled away.”

Bodycam video of the arrest generally supports

Rosenbaum’s allegations. As officers reached the second-

floor landing, Rosenbaum can be seen seated with his back

against the wall and Kurt biting his right forearm. The video

does not show any resistance by Rosenbaum, and indeed

Officer Dunn testified that Rosenbaum did not attempt to

strike or kick the officers, punch the police dog, use

threatening language, or flee the scene at any point during

the encounter. Approximately five seconds after officers

reached the second floor, Kurt dragged Rosenbaum onto his

stomach. The bodycam video shows Rosenbaum sliding

down without resistance as Officer Dunn says “good boy.”

At least one officer’s gun is drawn and pointed at

Rosenbaum. Another officer stands on Rosenbaum’s legs as

Rosenbaum yells out for his partner and says, “he’s bleeding

me out.” The video then shows one officer holding

Rosenbaum’s left arm behind his back while Kurt pulls

Rosenbaum’s right arm above his head, and a third officer

planting his foot on Rosenbaum’s right shoulder. Kurt

continued to pull Rosenbaum’s arm over his head, giving

one last forceful shake before Officer Dunn commanded the

dog to let go of Rosenbaum’s arm. In short, the video

ROSENBAUM V. CITY OF SAN JOSE 7

evidence supports Rosenbaum’s allegation that a police dog

bit him for more than twenty seconds after he had

surrendered and lay prone on his stomach with arms

outstretched.

Rosenbaum was taken to the hospital for treatment of

multiple puncture wounds and lacerations. He required

several surgeries and claims he has permanent damage to his

arm. He was later charged with two counts of felony assault

by means of force likely to produce great bodily injury

pursuant to California Penal Code § 245(a)(4), to which he

pled no contest and served 90 days in jail, with other

conditions.

II.

Defendants appeal from the denial of their motion for

summary judgment. Normally, a pretrial order is not an

appealable final order, but “[w]e may . . . review orders

denying qualified immunity under the collateral order

exception to finality.” Ballou v. McElvain, 29 F.4th 413, 421

(9th Cir. 2022) (citing Plumhoff v. Rickard, 572 U.S. 765,

771-73 (2014)). The scope of our review, however, is

“circumscribed.” Foster v. City of Indio, 908 F.3d 1204,

1210 (9th Cir. 2018) (per curiam) (quoting George v. Morris,

736 F.3d 829, 834 (9th Cir. 2013)). Defendants “may not

immediately appeal ‘a fact-related dispute about the pretrial

record, namely, whether or not the evidence in the pretrial

record was sufficient to show a genuine issue of fact for

trial.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 307

(1995) (emphasis in original)). In other words, “[a]ny

decision by the district court that the parties’ evidence

presents genuine issues of material fact is categorically

unreviewable on interlocutory appeal.” George, 736 F.3d at

834 (cleaned up). Instead, we must consider only “whether

8 ROSENBAUM V. CITY OF SAN JOSE

the defendant would be entitled to qualified immunity as a

matter of law, assuming all factual disputes are resolved, and

all reasonable inferences are drawn, in plaintiff’s favor.”

Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th

Cir. 2012).

We review the district court’s denial of qualified

immunity de novo. See Est. of Aguirre v. County of

Riverside, 29 F.4th 624, 627 (9th Cir. 2022). Where factual

disputes exist as to the objective reasonableness of an

officer’s conduct, the case cannot be resolved at summary

judgment on qualified immunity grounds. See Torres v. City

of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (“Where the

objective reasonableness of an officer’s conduct turns on

disputed issues of material fact, it is a question of fact best

resolved by a jury.” (cleaned up)). We must affirm the

district court’s denial of qualified immunity if, resolving all

factual disputes and drawing all inferences in Rosenbaum’s

favor, Defendants’ conduct (1) violated a constitutional right

(2) that “was clearly established at the time of the officer[s’]

alleged misconduct.” Est. of Aguirre, 29 F.4th at 627

(citation omitted).

“A right is clearly established when it is ‘sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.’” Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 5 (2021) (citation omitted). Law

enforcement officers “are entitled to qualified immunity

unless existing precedent ‘squarely governs’ the specific

facts at issue.” Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(citation omitted). Although there need not be a Supreme

Court or circuit case directly on point, “existing precedent

must have placed the statutory or constitutional question

beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017)

(citation omitted).

ROSENBAUM V. CITY OF SAN JOSE 9

The constitutional right at issue in this appeal has been

clearly established by our precedents. 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. 4 See Mendoza v.

Block, 27 F.3d 1357 (9th Cir. 1994); Watkins v. City of

Oakland, 145 F.3d 1087 (9th Cir. 1998); Miller v. Clark

County, 340 F.3d 959 (9th Cir. 2003). In Mendoza, we held

that “no particularized case law is necessary for a deputy to

know that excessive force has been used when a deputy sics

a canine on a handcuffed arrestee who has fully surrendered

and is completely under control.” 27 F.3d at 1362.

We reaffirmed in Watkins that an officer violates clearly

established law by allowing a police dog to continue biting

a suspect after the suspect’s surrender, even when the

suspect is not handcuffed. 145 F.3d at 1090, 1093. In

Watkins, a police officer responded to a silent alarm at a

commercial warehouse and released a police dog to locate

the plaintiff. Id. at 1090. The police dog found the plaintiff

hiding under a car and bit him. Id. Upon arriving on the

scene, the officer did not call the dog off and instead ordered

the plaintiff to show his hands. Id. Recoiling from the dog

bite, the plaintiff could not comply with the order and the

dog continued biting him for ten to thirty more seconds. Id.

On interlocutory review, we affirmed the district court’s

denial of qualified immunity, holding that the plaintiff had

adequately alleged a constitutional violation where the

officer “continued to allow [the dog] to bite him even though

he was obviously helpless and surrounded by police officers

with their guns drawn.” Id. at 1090, 1094. Further, we

4

Whether the officers were permitted to deploy the police dog in the first

instance is not at issue in this appeal.

10 ROSENBAUM V. CITY OF SAN JOSE

explained that “it was clearly established that [the] excessive

duration of the bite and improper encouragement of a

continuation of the attack by officers could constitute

excessive force that would be a constitutional violation.” Id.

at 1093; see Hernandez v. Town of Gilbert, 989 F.3d 739,

745 (9th Cir. 2021) (reaffirming that Watkins clearly

established “that an officer cannot direct a police dog to

continue biting a suspect who has fully surrendered and is

under the officer’s control”).

On the other hand, we have concluded that an officer

does not act unreasonably in deploying a police dog to detain

a suspect where the officer releases the dog from its bite as

soon as he determines that the suspect is unarmed. See

Miller, 340 F.3d at 960–61. In Miller, a sheriff’s deputy

deployed a police dog to locate a potentially armed suspect

who had fled into dense, dark, wooded property. Id.

Approximately one minute after the dog was released, the

deputy heard the plaintiff scream, and the deputy

immediately ran towards the sound. Id. at 961. Because of

the dark terrain, it took the deputy between forty-five and

sixty seconds to arrive at the location. Id. Although the

plaintiff sustained serious injuries from the prolonged dog

bite, we concluded that the force used was not excessive. Id.

at 961, 968. Central to our analysis was the fact that the

deputy had “commanded [the police dog] to release Miller

as soon as [the deputy] determined that Miller was

unarmed,” and the dog promptly let go of Miller. Id. at 961,

967 n.12.

Rosenbaum has adequately alleged a constitutional

violation that was clearly established at the time of

Defendants’ alleged misconduct. Rosenbaum alleges that

Defendants allowed the police dog Kurt to continue biting

him for more than twenty seconds after he had fully

ROSENBAUM V. CITY OF SAN JOSE 11

surrendered and was under officer control. Rosenbaum

alleges that he was not trying to evade arrest or flee, and

“was laying on his stomach in full surrender” with his hands

outstretched and officers surrounding him with their

firearms pointed at him. The bodycam video shows that

Rosenbaum did not resist when Kurt pulled him onto his

stomach, nor did Rosenbaum fight with officers or attempt

to get up or escape. Officer Dunn similarly testified that

Rosenbaum did not strike or kick the officers, punch the

police dog, use threatening language, or flee the scene at any

point during the period in which he was bitten. The bodycam

video also supports Rosenbaum’s contention that he was

under officer control over that twenty-second interval, with

at least one officer pointing his firearm at Rosenbaum,

another officer standing on Rosenbaum’s legs, and a third

officer planting his foot on Rosenbaum’s right shoulder.

Resolving all factual disputes and drawing all inferences

in Rosenbaum’s favor, a reasonable jury could find that

Defendants exceeded the force reasonably necessary to

effectuate an arrest by allowing Kurt to continue biting

Rosenbaum for more than twenty seconds after he had fully

surrendered and was under officer control. Accepting

Rosenbaum’s version of events, Kurt continued to bite him

even as he was in an “obviously helpless” situation, lying

prone with arms outstretched, multiple officers

immobilizing his arms and legs, and another officer pointing

a firearm at him. See Watkins, 145 F.3d at 1090, 1093. And

unlike Miller, Officer Dunn did not immediately release

Kurt from the bite as soon as he determined that Rosenbaum

was unarmed. See 340 F.3d at 967 n.12. The video instead

shows Kurt continuing to bite Rosenbaum for more than

twenty seconds after Defendants reached Rosenbaum near

12 ROSENBAUM V. CITY OF SAN JOSE

the second-floor landing and he slid down onto his stomach

in a prone position.

Defendants’ contention that the law was not clearly

established under the circumstances of this appeal is in

actuality a challenge to the sufficiency of the evidence.

Defendants argue that “[t]here was no clear indication that

Rosenbaum was surrendering” or that he was sufficiently

under their control. In our limited interlocutory review,

however, we view the facts in the light most favorable to

Rosenbaum unless they are “blatantly contradicted by the

record, so that no reasonable jury could believe it.” Scott,

550 U.S. at 380. Far from contradicting his allegations, the

video and record evidence generally supports Rosenbaum’s

excessive force claims. At a minimum, whether the officers

acted reasonably in allowing the police dog to continue

biting Rosenbaum is a question for the jury. See Johnson,

515 U.S. at 307, 313 (holding that on interlocutory appeal

from the denial of summary judgment based on qualified

immunity, appellate courts lack jurisdiction to review

“whether or not the evidence in the pretrial record was

sufficient to show a genuine issue of fact for trial.”).

It was clearly established at the time of Rosenbaum’s

arrest that an officer violates a suspect’s right to be free from

excessive force under the Fourth Amendment when the

officer allows a police dog to continue biting the suspect

after the suspect has fully surrendered and is under officer

control. See Watkins, 145 F.3d at 1090, 1093; Mendoza, 27

F.3d at 1362; Miller, 340 F.3d at 961, 967 n.12. Viewing the

factual allegations in the light most favorable to Rosenbaum,

a reasonable jury could find that Rosenbaum had fully

surrendered and was under officer control when he lay on his

stomach with his arms outstretched, was not actively

resisting arrest or attempting to get up or flee, and where

ROSENBAUM V. CITY OF SAN JOSE 13

officers had immobilized his arms and legs and were

pointing their firearm at him. A reasonable officer in Officer

Dunn’s position would know that allowing a police dog to

continue biting Rosenbaum for an extended period of time

after he had surrendered in this way is a violation of clearly

established law.

AFFIRMED.