Metropolitan News-Enterprise


Thursday, April 23, 2020


Page 3


Ninth Circuit:

Qualified Immunity Properly Denied Deputy Who Had Dog Hold Surrendering Suspect

Panel Says Use of Canine to Capture Fleeing Suspect From Bushes Was Reasonable but Prolonging Detention-by-Canine Might Not Have Been


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed the denial of qualified immunity to a San Diego County deputy sheriff in an execessive-force case in which a man contends that it was unreasonable not to call off a police dog, whose teeth were grasping his arm, once he surrendered to officers.

The decision on Tuesday upholds a March 4, 2019 order by District Court Chief Judge Larry A. Burns of the Southern District of California partially denying Deputy Sheriff Trenton Stroll’s motion for summary judgment. Stroll was one of the deputies who chased plaintiff Michael Hartsell in 2015 as he ran from them when they attempted to execute a search and arrest warrant.

When Hartsell ran into some bushes, Stroll instructed a police dog, Bubo, to retrieve the suspect.

District Court Ruling

Burns said that “[t]here is little dispute that the initial use of the dog to retrieve Hartsell was reasonable” but that “a reasonable jury could find that the continued use of Bubo once Hartsell complied with the officers’ instructions to show his hands was unreasonable.”

Qualified immunity is defeated where a government official violates a “clearly established” constitutional or statutory right. Burns wrote that the seminal Ninth Circuit case on the reasonableness of using a police dog came in Mendoza v. Block, which he characterized as “a case that bears striking resemblance to the one currently before the Court.”

There, qualified immunity was granted, but the court said:

“We do not believe that a more particularized expression of the law is necessary for law enforcement officials using police dogs to understand that under some circumstances the use of such a ‘weapon’ might become unlawful. For example, 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.”

Violation ‘Clearly Established’

Burns said in his order:

“From this common-sense proposition that it is unreasonable to sic a police dog on a handcuffed suspect, the Ninth Circuit in subsequent cases extended the rule to prohibit the use of a police dog to bite suspects who are not in complete custody but are nonetheless attempting to surrender and otherwise pose no safety risk to the officers….[I]t was clearly established prior to the incident in question that the extended use of a police canine to ‘bite-and-hold’ a suspect who is surrendering and does not pose a safety risk to the officers may constitute a constitutional violation.”

Stroll argued that Mendoza supports his position that summary judgment should not have been only partially granted. The suspect in that case, like Hartsell, had been brought out of the bushes by the dog and the Ninth Circuit held that it was reasonable to cause the canine to continue to hold him, for sake of the officers’ safety.

Draws Distinction

“[T]he critical distinction between this case and Mendoza is the degree of resistance on the part of the suspect,” Burns said.

The defendant in Mendoza, he pointed out, had struggled in the bushes with the dog and, when he was dragged into the open, it was perceived by officers that he might pose a threat to them if the animal did not continue to hold him.

“There’s no such countervailing factor here,” the judge observed, noting:

“Hartsell had already complied with the deputies’ commands to show his hands prior to crawling out of the bushes, and there is no allegation he fought with the dog or in any way indicated that he posed a specific risk to the officers. The dog continued the bite-and-hold until well after Hartsell had exited the bushes, it was clear he was unarmed, and he was within the officers’ control.”

Ninth Circuit Agrees

Ninth Circuit Judges Mary H. Murguia and Eric D. Miller were joined by District Court Judge Eric D. Miller of the Eastern District of Michigan, who sat by designation, in affirming. They said:

“[W]e conclude that, viewing the evidence in the light most favorable to Hartsell, a reasonable factfinder could conclude that Stroll’s continued use of force became objectively unreasonable when Hartsell complied with instructions to show his hands, emerged from the brush with the canine attached to his arm, and was within the deputies’ control, if not sooner.”

They added:

“Moreover, preexisting law gave Stroll fair warning that it would be unlawful to use a canine in a prolonged manner under circumstances such as those alleged by Hartsell.”

The case is Hartsell v. County of San Diego, 19-55379.


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