Qualified immunity won't protect against excessive force used by police dog, a panel rules

Well established law says allowing a police dog to bite a fleeing suspect after he has surrendered is unconstitutional, and the officer who is subsequently sued for allegedly using such force is not shielded by qualified immunity, a 9th U.S. Circuit Court of Appeals panel has ruled.

The decision, filed April 21, affirms a March 5, 2019 order by Chief Judge Larry A. Burns of the Southern District of California, who partially denied San Diego Deputy Sheriff Trenton Stroh's motion for summary judgment. The motion argued Stroh's use of force was reasonable and qualified immunity protects him from liability.

Represented by County Counsel Ricky R. Sanchez, Stroh's defense was that he chased plaintiff Michael Hartsell as he attempted to flee from the execution of a search warrant for his arrest in 2015. When Hartsell ran through a residential neighborhood and into some bushes, Stroh instructed a police dog named Bubo to retrieve him.

Hartsell said the officer then used excessive force by allowing the dog to continue to bite him even after he had surrendered to the officers. Represented by Keith H. Rutman of San Diego, Hartsell alleged in his 2016 lawsuit Stroh used unreasonable force in violation of the Fourth Amendment, and as a result, Stroh was liable for his injuries. Hartsell v. County of San Diego., 16-CV01094 (S.D. Cal., filed May 6, 2016).

In his order, Burns said there "is little dispute that the initial use of the dog to retrieve Hartsell was reasonable." However, "a reasonable jury could find that the continued use of Bubo once Hartsell complied with the officers' instructions to show his hands was unreasonable."

Reviewing the denial of qualified immunity de novo, U.S. Circuit Judges Mary Helen Murguia, Eric David Miller, and U.S. District Judge George Caram Steeh III, sitting by designation from the Eastern District of Michigan, asked two questions: whether, taken in the light most favorable to the party asserting the injury ... the facts alleged show the officer's conduct violated a constitutional right, and if so, whether the right was clearly established.

Citing at least two prior 9th Circuit cases -- Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998); and Mendoza v. Block, 27 F.3d 1357, 1362 (1994) -- involving officers using excessive force because a dog bit a surrendered suspect, the panel found Stroh had fair warning it would be unlawful to use Bubo in the manner alleged by Hartsell.

"In the particularized context of the use of police canines, we held more than 20 years ago that 'it was clearly established that excessive duration of [a canine] bite [or] improper encouragement of a continuation of [an] attack by officers could constitute excessive force that would be a constitutional violation," the panel ruled.