In Hernandez v. Town of Gilbert, published March 4, 2021, the 9th Circuit affirmed the district court's grant of summary judgment to a police officer defendant based on qualified immunity. Police noticed the plaintiff's car swerving. The plaintiff did not pull over in response to police lights or siren. The plaintiff drove into his garage and tried to close the garage door by remote control. The police prevented the door from closing. An Officer repeatedly ordered the plaintiff to exit the car. Plaintiff repeatedly refused. The officer attempted to force the plaintiff out of the car by using control holds. The plaintiff resisted the holds. The officer used pepper spray on the plaintiff, without effect. He warned the plaintiff again, multiple times, that he was under arrest and needed to get out of the car. He also warned the plaintiff multiple times that a police dog would bite him if he did not step out. The plaintiff continued refusing. The defendant officer then commanded his police canine to bite the plaintiff. He warned the plaintiff before the bite. The plaintiff continued resisting. The dog bit plaintiff's arm for 50 seconds in total. The officers continued to order the plaintiff out of the car. The plaintiff replied, "Alright," but did not move. After the dog released the plaintiff, the officers succeeded in pulling the plaintiff out. The plaintiff was intoxicated. The plaintiff sued the officer who commanded the dog to attack for use of excessive force.
The 9th Circuit ruled that there was no law as of the date of the incident that 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. Case law had established that use of a police dog was subject to excessive force analysis, and that use of a police dog on a suspect who has fully surrendered and is under the officer's control is unreasonable. But no case law held that use of a police dog on a suspect who never actually surrendered at any point, and who had to be dragged from his car, violated the constitution. Although the plaintiff argued he surrendered by saying "Alright," the video of the incident showed that he in fact continued to resist.
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