Ninth Circuit Rules Police K-9 Use Constituted Excessive Force in Case of Unarmed Suspect's Surrender

• Use of a Police K-9 to Subdue
• The Fourth Amendment and Excessive Force

Police officers violate the Fourth Amendment when they allow a police dog to continue biting a suspect who has fully surrendered and is under the officers’ control.

Officers from the San Jose Police Department, including one with his K-9 partner, responded to a domestic violence call on September 10, 2019, at the home of Zachary Rosenbaum; plaintiff in this lawsuit.  Upon arrival, Rosenbaum’s domestic partner told the officers that the plaintiff was under the influence of alcohol or narcotics.  She also told them that he had previously owned firearms although she believed that they had since been destroyed in a fire.  The officers were further informed that plaintiff had fought with the police during a prior domestic violence incident and that he was trained in mixed martial arts and boxing (allegations plaintiff later denied).  (Neither the details of this particular alleged “domestic violence” incident, nor whether they were relayed to the officers, not being in issue, were not mentioned in the decision.  However, the officers apparently believed they had enough information to arrest the plaintiff.)  

Presuming that the plaintiff might offer some resistance, the officers carefully entered the house, first announcing their presence at the front door and using the K-9 to precede them and clear the downstairs area of the house.  After determining that plaintiff was not downstairs, the officers positioned themselves at the bottom of the stairwell leading to the second floor “with firearms drawn and pointed upward.”  Plaintiff was observed at this time at the top of the stairs.  Over the next six minutes, the officers—still at the bottom of the stairs—told plaintiff, who remained that the top, that he was under arrest and commanding him to come down and surrender. Plaintiff declined, repeatedly questioning the officers as to why he was being arrested. Plaintiff was warned that if he did not comply, the police dog would be sent upstairs and would bite him.   

When plaintiff continued to refuse to cooperate, the K-9 “Kurt” was ....