Martinez

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

TONY SANTIAGO MARTINEZ PLAINTIFF

V. CASE NO. 5:24-CV-5078

JORDAN JACOBS DEFENDANT

OPINION AND ORDER

Before the Court is the Report and Recommendation (“R&R”) (Doc. 72) of the

Honorable Christy Comstock, United States Magistrate Judge for the Western District of

Arkansas, filed in this case on September 11, 2025. The R&R recommends denying the

parties’ cross-motions for summary judgment. Defendant, Officer Jordan Jacobs, filed

Objections (Doc. 72) to the R&R. As required by 28 U.S.C. § 636(b)(1)(C), the Court has

reviewed the record de novo as to all proposed findings and recommendations to which

Mr. Jacobs has raised objections.

I. BACKGROUND

This case concerns the use of a police dog during Mr. Martinez’s arrest which Mr.

Martinez alleges constituted excessive force in violation of the Fourth Amendment. (Doc.

55). On August 31, 2022, the Springdale Police Department responded to a domestic

disturbance involving Mr. Martinez. (Doc. 70, ¶¶ 6–7). Officer Jacobs, who is a canine

handler, arrived on scene a little after 8 PM alongside his police dog, and was told by

officers already on the scene that Mr. Martinez had a firearm, had charges for domestic

assault second degree, and had fled to the west side of the house. Id. ¶ 7. Officer Jacobs

and others conducted a search, and found Mr. Martinez in a wooded area, lying in tall

grass and brush. Id. ¶¶ 10–14. After encountering Mr. Martinez, Officer Jacobs issued

four warnings to Mr. Martinez, but ultimately deployed the dog. Mr. Martinez claims that

at this time, he was unarmed, not resisting arrest, and not attempting to flee. (Doc. 55,

¶¶ 8–13). Mr. Martinez claims that as a result of Officer Jacobs’s K9 use, he has

undergone multiple surgical procedures to regain limited use of his arm (where he was

bitten), is in constant and severe pain, and that he suffered a psychological injury because

of the attack. Id. ¶ 15. The incident was captured via body camera footage provided to

the Court. See Doc. 58-2 & Doc. 62-10.

II. LEGAL STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” On such a motion, the

Court reviews the facts in the light most favorable to the opposing party and gives that

party the benefit of any inferences that can be drawn from those facts. Canada v. Union

Elec. Co., 135 F.3d 1211, 1212–13 (8th Cir. 1997). The moving party bears the burden

of proving that no genuine dispute of material fact exists and that it is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986); Nat’l Bank of Commerce of El Dorado v. Dow Chem.

Co., 165 F.3d 602 (8th Cir. 1999).

If the moving party meets its burden, the non-moving party must then “come

forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita,

475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). However, “the mere existence of a scintilla

of evidence in support of the [non-moving party’s] position will be insufficient” to survive

summary judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The non-moving

party must instead produce sufficient evidence “such that a reasonable jury could return

a verdict” in their favor. Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994)

(quoting Liberty Lobby, 477 U.S. at 248).

III. OBJECTIONS

Officer Jacobs's objections are somewhat scattered across his brief, and so the

Court groups them below for purposes of analysis. The thrust of his objections fall into

two categories: (1) Judge Comstock erred in her analysis of the facts and misapplied the

law with respect to what constitutes an adequate warning; and (2) the threat to officer

safety was so significant that a warning was unnecessary, and that the Court should

conclude so as a matter of law.

A. Adequate Warning

Officer Jacobs points out that neither party disputes that he warned Mr. Martinez

four times before he released the K9, and argues that because neither Kuha nor Adams

define the amount of time that officers are required to wait between giving a warning and

using K9 in order to be "adequate," Judge Comstock's recommendation was contrary to

law. See Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2003); Adams v. City of

Cedar Rapids, 74 F.4th 935 (8th Cir. 2023). Officer Jacobs’s argument appears to be

predicated on the belief that, after Adams, the “adequacy” of a warning is a question of

law for the Court to decide in the first instance. The Court disagrees. As the R&R notes,

Adams held that as early as August 2020, it was clearly established that an officer is

"required to provide an adequate warning when searching with his police dog trained to

bite and hold." 74 F.4th at 939. Contrary to Officer Jacobs’s suggestion, however, Adams

did not hold that whether a given period was "adequate" is a matter of law, but the

opposite: the court affirmed the district court's ruling that the "adequacy of the canine

warnings . . . was a question of fact to be determined by a jury." Id.

Officer Jacobs also argues that because Adams does not define the precise

amount of time an officer must wait after issuing a warning, he is entitled to qualified

immunity because the right he allegedly violated was not clearly established at the time

of the incident. This again misreads Adams. Although Adams was decided a year after

the facts giving rise to this case, the incident giving rise to Adams occurred in 2020, and

the court found that it was clearly established that an officer is “required to provide an

adequate warning” as of at least that time. Id. at 937. If it was clearly established in 2020

that an officer must provide adequate warning before using a K9, it must have also been

clearly established two years later when Officer Jacobs let his dog loose on Mr. Martinez.

While Officer Jacobs correctly asserts that neither Adams nor any other Eighth Circuit

case defines the number of seconds an officer must wait for a warning to be considered

adequate, that is precisely the point: Adams found there is no objective standard, and for

that reason the question must be submitted to a jury.

Finally, the Court also agrees with Judge Comstock’s assessment of the video

evidence. From the Court's viewing of the footage, Mr. Martinez attempts to comply with

the officer's orders by raising at least one arm into the air immediately after Officer Jacobs

instructs him to “show [him] [his] hands or [he’s] going to get bit.” See Doc. 58, Ex. 2 at

15:57. Officer Jacobs then gives a contradictory (or at least supplemental) order to “get

up or you’re going to get bit.” While the footage itself is poorly lit and shaky—another

consideration that weighs against judicial factfinding—a reasonable jury could find it

supports Mr. Martinez’s story. Further, although Officer Jacobs asserts that it is

“undisputed that Plaintiff was unconscious when the four warnings were given,” and so

Judge Comstock clearly erred in finding that the video shows that Mr. Martinez moved to

attempt to comply with Officer Jacobs’s instructions, Mr. Martinez most certainly did not

concede this point.1 Judge Comstock’s finding that Mr. Martinez began moving in an

attempt to comply with Officer Jacobs’s instructions is not clearly erroneous, and the jury

may consider his reactions in the video when deciding whether Officer Jacobs’s use of

force was reasonable.2

B. Whether a Warning Was Necessary

Last, Officer Jacobs appears to argue that this is the rare case where providing Mr.

Martinez an opportunity to surrender would have posed an unacceptable risk to his safety,

so he is entitled to qualified immunity as a matter of law regardless of the adequacy of his

warning. Officer Jacobs is correct that even in cases where an officer’s actions do not

satisfy the warning requirement, that failure may be excused where there is significant

risk to officer safety. Adams, 74 F.4th at 740. But Adams instructs that while there may be

“rare” or “exceptional” cases where that might occur, the jury is best positioned to make

1 In support, Officer Jacobs cites Mr. Martinez’s statement of facts, which states that

“Officer Jacobs did not know if Mr. Martinez was conscious or unconscious when he

instructed Mr. Martinez to show his hands.” (Doc. 58 ¶ 19). Surely counsel can spot the

difference between: (1) Mr. Martinez stating that Officer Jacobs did not know whether or

not Mr. Martinez was conscious; and (2) Mr. Martinez stating that he himself was

unconscious. Counsel is reminded of their duty of candor to the Court and cautioned

against being so careless.

2 Officer Jacobs also argues that Judge Comstock failed to accurately assess whether

the use of force was reasonable from the perspective of an officer in the moment. But

the “reasonableness” of using a K9 without “first giving the suspect a warning and

opportunity for peaceful surrender” is exactly what Kuha and Adams address.

that determination. Id. Although Adams did leave open that there might be “rare”

circumstances where the “threat to officer safety is so obvious that it becomes a legal

question,” this case, like Adams, is “not one of them.” Id.

In Adams, the defendant officer had reason to believe that the plaintiff (a suspect

who was apprehended by a police K9 without a warning) was “armed and may have just

committed a burglary.” Id. Nevertheless, the court concluded that the case was not one

in which “the threat to officer safety is so obvious that it becomes a legal question.” Id.

While Officer Jacobs attempts to distinguish Adams by noting that in this case, he issued

a warning, whether a warning was given is immaterial to the threat he was facing at the

time he decided to issue the warning. Indeed, a jury might conclude that Officer Jacobs’s

ability and choice to issue four separate warnings indicated that he did not believe the

circumstances were so threatening that he could not wait for Mr. Martinez to comply

before unleashing the dog. The cases are largely analogous notwithstanding the warning,

and the Court thus concludes that this question must be submitted to the jury too.

Accordingly, all of Officer Jacobs’s objections are OVERRULED.

IV. CONCLUSION

Having overruled all pending objections, the R&R (Doc. 71) is ADOPTED IN ITS

ENTIRETY.

IT IS THEREFORE ORDERED that Mr. Martinez’s Motion for Summary Judgment

(Doc. 57) and Officer Jacobs’s Motion for Summary Judgment (Doc. 60) are DENIED.

This matter will be set for trial by separate order.

IT IS SO ORDERED on this 9" day of Februam, 2026.

TAY L OOKS

CHIEF UNITED STATES DISTRICT JUDGE