A federal appellate court has upheld an excessive force lawsuit against a group of San Jose police officers who were sued over a 2019 arrest in which they allowed a police dog to keep biting a man who had surrendered.
The decision by 9th Circuit Court of Appeals published Thursday affirmed a San Jose district court judge’s ruling that the officers’ conduct did not entitle them to qualified immunity, a legal protection that shields government employees against litigation for work actions as long as they fall within constitutional and statutory boundaries.
“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,” wrote Judge Gabriel P. Sanchez, who led the three-judge panel that reviewed the appeal. “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.”
The decision is the court’s second published decision in as many months that denied qualified immunity to a San Jose police officer. In June, a 9th Circuit panel overturned a lower-court decision that granted qualified immunity in an excessive force lawsuit over a fatal Oct. 31, 2019 police shooting.
Published decisions are notable because they can be cited as legal precedent. Unpublished decisions, which are commonly issued, only affect the case at hand.
Now the lawsuit, filed by Zachary Rosenbaum in 2020, goes back to the federal district court in San Jose, where it had been on track for a civil jury trial before the city filed an appeal with the 9th Circuit in November 2022.
The named defendants in the current version of the lawsuit are Sgt. Bret Hatzenbuhler and officers Hymel Dunn, Ryan Ferguson, Francisco Vallejo and Gary Anderson, along with the city and police department. Dunn is described as the only officer in the group with canine training.
Rosenbaum’s attorneys did not immediately respond to requests for comment Friday, nor did the San Jose City Attorney’s Office, which is representing the defendants.
On Sept. 10, 2019, San Jose police officers were called to the home of Rosenbaum’s girlfriend for a report of domestic violence, and she told police dispatchers that Rosenbaum was under the influence of alcohol or drugs, court records show.
Dunn released his police dog Kurt into the home to search for Rosenbaum, and he along with several other officers spotted him at the top of a second-floor stair landing, while they stood at the bottom of the stairwell with guns drawn.
An exchange followed during which the officers ordered Rosenbaum to surrender, and Rosenbaum repeatedly refused and questioned why he was under arrest. The officers warned him that they would sent the dog after him if he continued to disobey them.
After several minutes, Dunn sent the dog after Rosenbaum while Ferguson shot a stun bag at him. Soon after, the officers ascended the stairs to detain Rosenbaum, who they found unarmed sitting against a wall and being bitten in the right forearm by the animal.
In the lawsuit, Rosenbaum claims that the dog was ordered to attack him despite his hands being raised in a surrender position, and that even after he was laying on his stomach with his hands stretched out, the dog bit him “for over 20 seconds, before being pulled away.”
The appellate decision states that body-camera video recorded by officers “generally supports Rosenbaum’s allegations,” and shows the police dog dragging him onto his stomach followed by Dunn being heard saying “good boy,” and Rosenbaum yelling, “he’s bleeding me out.”
“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,” Sanchez wrote. “In short, the video 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.”
Sanchez continued: “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.”
Rosenbaum claims in his lawsuit that he was treated for multiple puncture wounds and cuts that required several surgeries and caused permanent damage to his arm. He later served 90 days in jail after pleading no contest to two felony assault counts.
Sanchez noted that had Dunn ordered the dog to release Rosenbaum as soon as he confirmed he was unarmed, then established law might have been more forgiving to him and the officers. Ultimately, he wrote, when viewing the case facts in the most favorable light to the plaintiff — the required test for determining the substance of the lawsuit — there was sufficient evidence to warrant a jury trial.
This is a developing story. Check back for updates.
