Hernandez v. Town of Gilbert

• Decision Date: 04 March 2021
• Docket Number: No. 19-15811,19-15811
• Citation: 989 F.3d 739
• Parties: Scott Harvey HERNANDEZ, individually, Plaintiff-Appellant, v. TOWN OF GILBERT, a municipality, by and through its Police Department, an agency of the Town of Gilbert; Steve Gilbert, Officer, husband, Defendants-Appellees, and Chris Robinson, Officer, husband; Robinson, Jane Doe, wife; Justin Leach, Officer, husband; Leach, Jane Doe, wife; Gilbert, Jane Doe, wife; Joe Kacic, Supervising Officer, husband; Kacic, Jane Doe, wife; Bill Campbell, Supervising Officer, husband; Campbell, Jane Doe, wife; Dan Hurd, Supervising Officer, husband; Hurd, Jane Doe, wife; Does, John and Jane Does 1–100, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

989 F.3d 739

Scott Harvey HERNANDEZ, individually, Plaintiff-Appellant,

v. TOWN OF GILBERT, a municipality, by and through its Police Department, an agency of the Town of Gilbert; Steve Gilbert, Officer, husband, Defendants-Appellees,andChris Robinson, Officer, husband; Robinson, Jane Doe, wife; Justin Leach, Officer, husband; Leach, Jane Doe, wife; Gilbert, Jane Doe, wife; Joe Kacic, Supervising Officer, husband; Kacic, Jane Doe, wife; Bill Campbell, Supervising Officer, husband; Campbell, Jane Doe, wife; Dan Hurd, Supervising Officer, husband; Hurd, Jane Doe, wife; Does, John and Jane Does 1–100, Defendants.

No. 19-15811

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2020 Phoenix, Arizona

Filed March 4, 2021

Scott H. Zwillinger (argued), Goldman & Zwillinger PLLC, Scottsdale, for Plaintiff-Appellant.

Robert Grasso Jr. (argued) and N. Patrick Hall, Grasso Law Firm P.C., Chandler, Arizona, for Defendants-Appellees.

Before: Richard C. Tallman, Jay S. Bybee, and Bridget S. Bade, Circuit Judges.

TALLMAN, Circuit Judge:

Scott Hernandez appeals from the summary judgment entered in favor of canine Officer Steve Gilbert and the Town of Gilbert in this § 1983 action alleging that Officer Gilbert used excessive force in effecting Hernandez's arrest for driving under the influence and resisting arrest. Following a brief police chase, Hernandez fled to his home where he activated the remote-controlled garage door opener, remained in control of his car inside the garage for eight minutes, refused multiple commands to get out of the car, and resisted lesser force employed by officers without effect while he continued resisting. To force compliance, Officer Gilbert then released his police dog. But even after the dog bit him, Hernandez continued to resist. The officers eventually managed to get him out of the car and completed the arrest. We affirm the district court's grant of qualified immunity on Hernandez's excessive force claim because no clearly established law governed the reasonableness of using a canine to subdue a noncompliant suspect who resisted other types of force and refused to surrender.

I

The events leading up to the use of the canine in this case are undisputed and were captured on the police officers' body cameras.¹ On the evening of May 5, 2016, Hernandez drank with friends at the local Mad Dog Saloon before driving home. Gilbert Police Department Officer Chris Robinson activated his vehicle's lights when he saw Hernandez's car swerving. Although Hernandez saw emergency lights flashing behind him, he continued driving. Officer Robinson used the police vehicle's siren, but Hernandez ignored it, driving for approximately a minute and a half until he pulled into his driveway. Hernandez opened the garage door remotely, pulled into the garage, and shut off his car. While remaining in the car, Hernandez tried to close the garage door remotely. Officer Robinson stopped the door from closing and waited for back-up officers to arrive. Responding to assist in the arrest were Officer Justin Leach and canine Officer Gilbert accompanied by his partner, police dog Murphy.

Over the next two and a half minutes, Officer Robinson gave at least thirteen verbal orders for Hernandez to step out of the vehicle and warned Hernandez that he would be arrested for failing to obey a police officer if he did not. Hernandez refused, repeatedly saying, "No, I'm right here." Officers Robinson and Leach then approached the car with guns drawn since they did not know whether the recalcitrant suspect was armed. For over a minute, Officer Robinson tried to force Hernandez to get out of the car by using control holds, including grabbing Hernandez's left forearm, left leg, his head, and his right ear. Hernandez resisted these holds by tucking his arms close to his body and repeating, "No, I'm not under arrest." Officer Robinson observed that Hernandez's eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol.

Officer Robinson then deployed pepper spray without effect. He warned Hernandez eight more times that he was under arrest and needed to get out of the car. He also warned Hernandez at least five times that a police dog would bite him if he did not step out of the car. Hernandez responded, "I'm not going nowhere, dude," "You're on my property, bro. You can't do this shit," and "No, I am not."

Approximately eight minutes after Officer Robinson first activated his vehicle's emergency lights, Officer Gilbert commanded police dog Murphy to bite Hernandez. As Officer Gilbert approached the car with Murphy on a leash, both the driver's side door and front passenger's side door were open. Officer Gilbert warned Hernandez that the dog would bite him if he did not step out of the car. Hernandez closed the driver's side door and leaned to his right in an attempt to close the passenger's door.

Before Hernandez could close the passenger's door, Murphy entered and bit Hernandez's arm for fifty seconds in total.² While Murphy was holding onto Hernandez, Officer Gilbert yelled at Hernandez to get out of the car. Officer Robinson also ordered Hernandez to crawl forward out of the vehicle. Although Hernandez repeatedly yelled "alright," he did not move. Thirty-six seconds into the bite, Officer Gilbert commanded Murphy to release the hold. Fourteen seconds later, Murphy obeyed and released his bite on Hernandez's arm. Murphy, however, held onto Hernandez's shirt for another twenty-two seconds before completely releasing the hold. While Murphy hung onto Hernandez's shirt, Hernandez held onto the front passenger headrest and told the officers that they were on his property. Police dog Murphy was engaged with Hernandez for one minute and twelve seconds in total.

After Murphy released Hernandez, Hernandez continued to cling to the headrest despite the officers' repeated orders to get out of the car. When Hernandez refused to comply, Officer Robinson asked, "should we let the dog go again?" Officers Robinson and Leach again instructed Hernandez to step out of the car. Although Hernandez replied "alright," he nonetheless continued to hang onto the headrest, protesting "wait, wait, wait."

Approximately nine and a half minutes after Officer Robinson first activated his vehicle's emergency lights, the officers successfully pulled Hernandez from his car. During the encounter, Hernandez was "under the influence of an intoxicating liquor" and had a BAC of 0.146 when his blood was tested later at the hospital under authority of a search warrant. The officers booked Hernandez on one felony charge for resisting arrest and two misdemeanor charges for a DUI and failure to comply with a police officer. Hernandez ultimately pled guilty to a misdemeanor charge.

Hernandez then sued the Town of Gilbert and several police officers asserting, among other claims not before us, an excessive force claim against Officer Gilbert under 42 U.S.C. § 1983. Relevant to this appeal, Officer Gilbert moved for partial summary judgment on the excessive force claim. In ruling on that motion, the district court granted qualified immunity to Officer Gilbert, holding that "it was not clearly established that an officer in Officer Gilbert's position acted unreasonably, thus violating [Hernandez's] Fourth Amendment rights." Hernandez timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

II

We review de novo a district court's decision to grant summary judgment based on qualified immunity. Woodward v. City of Tucson , 870 F.3d 1154, 1159 (9th Cir. 2017). We view the facts in the light most favorable to the non-moving party to determine whether any genuine disputes of material fact remain and whether the district court correctly applied the law. Id. However, we do not accept a non-movant's version of events when it is "clearly contradict[ed]" by a video in the record. Scott v. Harris , 550 U.S. 372, 378–80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

III

Qualified immunity shields government officials under § 1983 unless "(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ " District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ). The Court may address the two prongs in any order. Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We consider only the second prong here.

"A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ "

Mullenix v. Luna , 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Reichle , 566 U.S. at 664, 132 S.Ct. 2088 ). While we do not require a case on all fours, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citations omitted). Qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.’ " Wesby , 138 S. Ct. at 589 (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

Hernandez argues that both the initial deployment of the canine and the duration of the bite violated clearly established law.

A

To defeat qualified immunity, Hernandez must show that the state of the law as of May 5, 2016, 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. See Hope , 536 U.S. at 741, 122 S.Ct. 2508. Hernandez relies on Mendoza v. Block , 27 F.3d...