Scott Hernandez v. Town of Gilbert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT HARVEY HERNANDEZ, No. 19-15811

individually,

Plaintiff-Appellant, D.C. No.

2:17-cv-02155-

v. SMB

TOWN OF GILBERT, a municipality,

by and through its Police OPINION

Department, an agency of the Town

of Gilbert; STEVE GILBERT, Officer,

husband,

Defendants-Appellees,

and

CHRIS ROBINSON, Officer, husband;

ROBINSON, Jane Doe, wife; JUSTIN

LEACH, Officer, husband; LEACH,

Jane Doe, wife; GILBERT, Jane Doe,

wife; JOE KACIC, Supervising

Officer, husband; KACIC, Jane Doe,

wife; BILL CAMPBELL, Supervising

Officer, husband; CAMPBELL, Jane

Doe, wife; DAN HURD, Supervising

Officer, husband; HURD, Jane Doe,

wife; DOES, John and Jane Does 1–

100,

Defendants.

2 HERNANDEZ V. TOWN OF GILBERT

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Argued and Submitted November 17, 2020

Phoenix, Arizona

Filed March 4, 2021

Before: Richard C. Tallman, Jay S. Bybee, and

Bridget S. Bade, Circuit Judges.

Opinion by Judge Tallman

SUMMARY *

Civil Rights

The panel affirmed the district court’s grant, on summary

judgment, of qualified immunity to a police officer in an

action brought pursuant to 42 U.S.C. § 1983 alleging that the

officer used excessive force when he deployed his police dog

in effecting plaintiff’s arrest for driving under the influence

and resisting arrest.

Following a brief police chase, plaintiff fled to his home

where he activated the remote-controlled garage door

opener, remained in control of his car inside the garage for

eight minutes, refused multiple commands to get out of the

*

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

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

HERNANDEZ V. TOWN OF GILBERT 3

car, and resisted lesser force employed by officers without

effect while he continued resisting. To force compliance,

defendant then released his police dog. But even after the

dog bit him, plaintiff continued to resist. The officers

eventually managed to get plaintiff out of the car and

completed the arrest.

In affirming the district court’s grant of qualified

immunity to defendant on plaintiff’s excessive force claim,

the panel held that no clearly established law governed the

reasonableness of using a canine to subdue a noncompliant

suspect who resisted other types of force and refused to

surrender. The panel held that neither the initial deployment

of the canine nor the duration of the bite violated clearly

established law. The panel noted that officers employed an

escalating array of control techniques, none of which were

effective in getting plaintiff to surrender, before deciding to

release the police dog. The panel further held that plaintiff’s

claim that the duration of the bite was unreasonable because

he had surrendered was belied by the video evidence

captured on the police officers’ body cameras.

COUNSEL

Scott H. Zwillinger (argued), Goldman & Zwillinger PLLC,

Scottsdale, for Plaintiff-Appellant.

Robert Grasso Jr. (argued) and N. Patrick Hall, Grasso Law

Firm P.C., Chandler, Arizona, for Defendants-Appellees.

4 HERNANDEZ V. TOWN OF GILBERT

OPINION

TALLMAN, Circuit Judge:

Scott Hernandez appeals from the summary judgment

entered in favor of canine Officer Steve Gilbert and the

Town of Gilbert in this § 1983 action alleging that Officer

Gilbert used excessive force in effecting Hernandez’s arrest

for driving under the influence and resisting arrest.

Following a brief police chase, Hernandez fled to his home

where he activated the remote-controlled garage door

opener, remained in control of his car inside the garage for

eight minutes, refused multiple commands to get out of the

car, and resisted lesser force employed by officers without

effect while he continued resisting. To force compliance,

Officer Gilbert then released his police dog. But even after

the dog bit him, Hernandez continued to resist. The officers

eventually managed to get him out of the car and completed

the arrest. We affirm the district court’s grant of qualified

immunity on Hernandez’s excessive force claim because no

clearly established law governed the reasonableness of using

a canine to subdue a noncompliant suspect who resisted

other types of force and refused to surrender.

I

The events leading up to the use of the canine in this case

are undisputed and were captured on the police officers’

body cameras. 1 On the evening of May 5, 2016, Hernandez

drank with friends at the local Mad Dog Saloon before

1

The encounter between Hernandez and Gilbert was audio- and

video-recorded by department-issued body cameras. These videos were

filed as a supplement to the parties’ Joint Statement of Stipulated Facts.

We have reviewed the video evidence carefully following the Supreme

Court’s lead in Scott v. Harris, 550 U.S. 372, 378–81 (2007).

HERNANDEZ V. TOWN OF GILBERT 5

driving home. Gilbert Police Department Officer Chris

Robinson activated his vehicle’s lights when he saw

Hernandez’s car swerving. Although Hernandez saw

emergency lights flashing behind him, he continued driving.

Officer Robinson used the police vehicle’s siren, but

Hernandez ignored it, driving for approximately a minute

and a half until he pulled into his driveway. Hernandez

opened the garage door remotely, pulled into the garage, and

shut off his car. While remaining in the car, Hernandez tried

to close the garage door remotely. Officer Robinson stopped

the door from closing and waited for back-up officers to

arrive. Responding to assist in the arrest were Officer Justin

Leach and canine Officer Gilbert accompanied by his

partner, police dog Murphy.

Over the next two and a half minutes, Officer Robinson

gave at least thirteen 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 refused, repeatedly saying, “No, I’m right here.”

Officers Robinson and Leach then approached the car with

guns drawn since they did not know whether the recalcitrant

suspect was armed. For over a minute, Officer Robinson

tried to force Hernandez to get out of the car by using control

holds, including grabbing Hernandez’s left forearm, left leg,

his head, and his right ear. Hernandez resisted these holds

by tucking his arms close to his body and repeating, “No,

I’m not under arrest.” 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 police dog would bite

6 HERNANDEZ V. TOWN OF GILBERT

him if he did not step out of the car. Hernandez responded,

“I’m not going nowhere, dude,” “You’re on my property,

bro. You can’t do this shit,” and “No, I am not.”

Approximately eight minutes after Officer Robinson

first activated his vehicle’s emergency lights, Officer Gilbert

commanded police dog 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 leaned to his right in an

attempt to close the passenger’s door.

Before Hernandez could close the passenger’s door,

Murphy entered and bit Hernandez’s arm for fifty seconds in

total. 2 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.

2

While the parties agree on the duration of the bite, the parties in

their briefing characterize some of the facts differently at this point in

the encounter. We “view[] the facts in the light depicted by the

videotape.” Scott, 550 U.S. at 381.

HERNANDEZ V. TOWN OF GILBERT 7

Police dog Murphy was engaged with Hernandez for one

minute and twelve seconds in total.

After Murphy released Hernandez, Hernandez continued

to cling to 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.”

Approximately nine and a half minutes after Officer

Robinson first activated his vehicle’s emergency lights, the

officers successfully pulled Hernandez from his car. During

the encounter, Hernandez was “under the influence of an

intoxicating liquor” and 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 then sued the Town of Gilbert and several

police officers asserting, among other claims not before us,

an excessive force claim against Officer Gilbert under

42 U.S.C. § 1983. Relevant to this appeal, Officer Gilbert

moved for partial summary judgment on the excessive force

claim. In ruling on that motion, the district court granted

qualified immunity to Officer Gilbert, holding that “it was

not clearly established that an officer in Officer Gilbert’s

position acted unreasonably, thus violating [Hernandez’s]

Fourth Amendment rights.” Hernandez timely appealed.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

8 HERNANDEZ V. TOWN OF GILBERT

II

We review de novo a district court’s decision to grant

summary judgment based on qualified immunity.

Woodward v. City of Tucson, 870 F.3d 1154, 1159 (9th Cir.

2017). We view the facts in the light most favorable to the

non-moving party to determine whether any genuine

disputes of material fact remain and whether the district

court correctly applied the law. Id. However, 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).

III

Qualified immunity shields government officials under

§ 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)). The Court

may address the two prongs in any order. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). We consider only the

second prong here.

“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,

566 U.S. at 664). While we do not require a case on all fours,

“existing 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)).

HERNANDEZ V. TOWN OF GILBERT 9

“[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 argues that both the initial deployment of the

canine and the duration of the bite violated clearly

established law.

A

To defeat qualified immunity, Hernandez must show that

the state of the law as of May 5, 2016, gave a reasonable

officer “fair warning” that using a police dog on a

noncompliant suspect, who had resisted lesser methods of

force to complete his arrest, was unconstitutional. See Hope,

536 U.S. at 741. Hernandez relies on Mendoza v. Block,

27 F.3d 1357 (9th Cir. 1994). In Mendoza, we affirmed the

dismissal on qualified immunity grounds of a § 1983 claim

by Mendoza, who was severely bitten by a police dog while

trying to evade arrest for bank robbery by hiding for several

hours in bushes on private property. Id. at 1358. Deputies

used the dog to find and pull Mendoza out of the bushes. Id.

at 1359. The deputies ordered Mendoza to “stop struggling

and place his hands behind his back for handcuffing.” Id.

Mendoza resisted and “swung an arm at one of the deputies.”

Id. We held that the law was clearly established that the use

of the police dog was subject to excessive force analysis but

that the deputies’ use of the police dog to find the suspect

and to “secure him until he stopped struggling and was

handcuffed” was objectively reasonable. Id. at 1362–63.

While it’s well-settled that the use of a police dog is

subject to excessive force analysis, the relevant inquiry is

whether existing precedent placed the question “beyond

debate” that Officer Gilbert’s decision to deploy Murphy to

help arrest Hernandez was unconstitutional. See al-Kidd,

10 HERNANDEZ V. TOWN OF GILBERT

563 U.S. at 741. In finding the deputies’ conduct objectively

reasonable, the Mendoza court reasoned that: (1) Mendoza

did not surrender when warned that he would be bitten;

(2) he was fleeing arrest for a felony; (3) the deputies

believed Mendoza was armed based on radio broadcasts

from headquarters; and (4) the deputies could have

reasonably believed Mendoza posed a danger to the property

owners as well as the deputies because he was hiding on

private property. 27 F.3d at 1362–63. Here, Hernandez did

not surrender when warned many times that he would be

bitten by a police dog after he failed to obey the officers’

numerous orders to exit his car and resisted their use of lesser

force to take him into custody.

The evidence is undisputed that Hernandez fled from

Officer Robinson and tried to lock himself inside his garage

to avoid being arrested. Unlike Mendoza, the officers here

were not warned by headquarters that Hernandez might be

armed, but Hernandez remained in his car to evade arrest,

and Officer Gilbert did not know whether Hernandez was

armed as no one had searched him yet. 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, but Officer Gilbert testified that “once

someone starts to act in a way that they’re fleeing from the

police, that starts to heighten our awareness that there’s

something else going on than just someone who just doesn’t

want to stop.” While there are differences between the

circumstances that confronted the deputies in Mendoza and

those that Officer Gilbert faced, Mendoza does not place

“beyond debate” whether Officer Gilbert’s use of a police

dog to facilitate Hernandez’s arrest under the circumstances

of this case violated the Fourth Amendment. See al-Kidd,

563 U.S. at 741.

HERNANDEZ V. TOWN OF GILBERT 11

Most significantly, Mendoza does not clearly establish

that Officer Gilbert’s conduct violated Hernandez’s Fourth

Amendment rights because it does 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. See Hamby v. Hammond,

821 F.3d 1085, 1091 (9th Cir. 2016). The officers in

Mendoza used the dog to locate the suspect, so the encounter

began with the use of a dog bite. 27 F.3d at 1358. Here,

Officers Robinson, Leach, and Gilbert did not begin the

encounter with a dog bite. Instead, the officers initially gave

verbal commands to surrender to their authority. When

Hernandez refused to obey, the officers tried control holds.

Then they used pepper spray, which failed to achieve

compliance. They then warned Hernandez about the

impending release of the dog if he refused to yield. Only

after all of these methods failed to overcome Hernandez’s

resistance, did Officer Gilbert deploy Murphy. Mendoza

says little about how a reasonable officer should escalate the

use of force on a noncompliant suspect. The record here

does show that the officers employed an escalating array of

control techniques, none of which were effective in getting

Hernandez to surrender, before deciding to release the police

dog. Because the facts are so dissimilar, Mendoza does not

clearly establish that Officer Gilbert’s conduct in eventually

deploying Murphy was unconstitutional.

B

Hernandez also claims that the duration of Murphy’s bite

was unreasonable because he had surrendered. The video

belies his argument. Our caselaw is clear that an officer

cannot direct a police dog to continue biting a suspect who

has fully surrendered and is under the officer’s control.

12 HERNANDEZ V. TOWN OF GILBERT

Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.

1998); Koistra v. County of San Diego, 310 F. Supp. 3d

1066, 1082–84 (S.D. Cal. 2018). 3 Officer Gilbert, however,

is entitled to qualified immunity because Hernandez did not

surrender at any point during the encounter; rather, the

officers had to physically drag him from his car after the dog

bite.

While we view the facts in the light most favorable to the

non-moving party at the summary judgment stage, we are

not required to accept a non-movant’s version of events

when it is “clearly contradict[ed]” by a video in the record.

Scott, 550 U.S. at 378–80 (where petitioner’s benign

characterization of the police pursuit under very dangerous

conditions was refuted by the dashcam video). Here,

Hernandez stipulated to the bodycam footage. At the time

Officer Gilbert directed Murphy to bite Hernandez, the

videos establish beyond cavil that Hernandez had not

surrendered. Hernandez refused to comply with the officers’

3

Hernandez argues that the district court erred in declining to

consider Koistra. While courts generally don’t consider post-incident

cases in determining “whether the law was clearly established at the time

of the incident[,] . . . post-incident cases that make a determination

regarding the state of the law at the time of the incident are persuasive

authority.” Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (citing

Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989)). Koistra

considered the law regarding the use of a police dog in an arrest as of

January 8, 2016, well before Hernandez’s arrest on May 5, 2016. 310 F.

Supp. 3d at 1082. While Koistra itself could not have put Officer Gilbert

on notice, it is persuasive authority as far as it examined the state of the

law in January 2016. However, Koistra provides no support to

Hernandez, because it merely reiterates what Watkins and Mendoza

already made clear: an officer’s use of canine force against a suspect

who has surrendered may violate the Constitution. Koistra, 310 F. Supp.

3d at 1084. The irrefutable facts here simply do not support that

conclusion as applied to the conduct of Hernandez.

HERNANDEZ V. TOWN OF GILBERT 13

instructions for eight minutes and resisted their uses of lesser

force, including control holds and pepper spray. Officers

warned Hernandez at least five times of the impending use

of a canine. As Officer Gilbert approached the vehicle,

Hernandez closed the driver’s door and leaned over to shut

the passenger’s door. During and after the dog bite,

Hernandez continued to resist. Hernandez states that he

“offered to surrender,” but the video does not show any

evidence besides Hernandez’s shouts of “alright.” His body

language on the recording shows otherwise.

Hernandez points to Koistra, but that case bolsters the

conclusion that he did not surrender. In Koistra, the district

court relied on Watkins and Mendoza in finding that the law

was clearly established that use of a canine violated the

Fourth Amendment “when the victim . . . has surrendered by

having her arms up in the air,” but the officer allowed the

dog to bite the suspect for 30 more seconds and “drag the

victim by her mouth for a distance of 12 feet.” 310 F. Supp.

3d at 1082–84. 4 While the suspect in Koistra offered to

surrender by putting her arms up and asserting that she was

unarmed, see id. at 1084, Hernandez did not put his arms up

or assert that he was unarmed. Koistra illuminates

Hernandez’s failure to surrender.

Hernandez claims that the “duration and force of the dog

bite” in Watkins was similar enough to put Officer Gilbert

4

While Koistra does not change the outcome for Hernandez, the

district court in Koistra erroneously stated that Mendoza affirmed the

district court’s denial of qualified immunity where the law was clearly

established, but the officer’s conduct was not objectively reasonable.

Koistra, 310 F. Supp. 3d at 1083. Mendoza actually affirmed the district

court’s grant of qualified immunity where the law was clearly

established and the officer’s conduct was objectively reasonable.

27 F.3d at 1361–63.

14 HERNANDEZ V. TOWN OF GILBERT

on notice. In Watkins, the officer used the police dog to find

Watkins, who was hiding in a car inside a commercial

warehouse. 145 F.3d at 1090. When the officer caught up

to his police dog, who was biting Watkins, the officer

ordered Watkins to show his hands. Id. Watkins was

recoiling from the dog’s bite and claimed that he was unable

to comply with the order to show his hands. Id. While the

dog continued to bite Watkins, the officer pulled Watkins out

of the car onto the ground. Id. After thirty seconds, Watkins

complied, and the handler ordered the dog to release

Watkins. Id. The court found a genuine dispute of material

fact as to the reasonableness of the continued dog bite when

Watkins may have surrendered, as he claimed that both the

pain of the dog bite and his resistance against the dog

prevented him from complying with officers’ orders to show

his hands. Id. at 1090, 1093.

Although Hernandez relies on Watkins, the video

recordings during and following the dog bite show that

inability did not prevent Hernandez from complying with the

officers’ directions. The video instead shows that he chose

not to comply because, in his words, the officers were “on

his property.” Although Hernandez began shouting

“alright,” he did not obey Officer Robinson’s command to

crawl forward out of the car. Moreover, as soon as Murphy

was called off, Hernandez again physically and verbally

refused to comply with the officers. No reasonable officer

facing such a recalcitrant suspect would be likely to think

Hernandez was “completely under control.” See Mendoza,

27 F.3d at 1362. He hung onto the headrest to resist being

removed from the car and told the officers that they were on

his property. Officer Robinson had to threaten to use the dog

again because it appeared that the first use of Murphy had

been unsuccessful in convincing the suspect to yield to

police commands; Hernandez was still not getting out of the

HERNANDEZ V. TOWN OF GILBERT 15

car. The officers ultimately had to physically pull

Hernandez out despite his attempt to remain in the car. The

bodycam video belies Hernandez’s attempt to characterize

his actions as surrender.

Hernandez makes no attempt to discuss his resistance

after the dog bite. While “alright” could possibly constitute

submission to the authorities under other circumstances,

based on Hernandez’s continuing resistance here as shown

on the video recording, a reasonable officer in the position

of Officer Gilbert would not view Hernandez’s conduct as

an act of surrender. Hernandez fails to meet his burden to

show a genuine issue of material fact as to whether he

surrendered. The video conclusively shows he did not.

There was thus no material fact in dispute that required a jury

to resolve.

IV

Because Hernandez cannot identify a violation of any

“clearly established” right, Officer Gilbert is entitled to

qualified immunity. The district court’s order granting

summary judgment on the ground of qualified immunity to

Officer Gilbert is AFFIRMED.