9th Circuit CA- Rosenbaum v. City of San Jose, 2024 U.S. App. LEXIS 16975 (9th Cir. July 11, 2024)

K9 Use of Force – Excessive Duration – Denial of Qualified Immunity
“Contrary to Defendants’ contention on appeal, bodycam video from the arrest does not contradict, and generally supports, Rosenbaum’s allegation that while he lay on his stomach “in full surrender with his hands stretched out and surrounded by all named Defendants with their firearms trained on him,” the police dog “was allowed to continue biting [him] for over 20 seconds, before being pulled away.” At a minimum, whether the officers acted reasonably in permitting the police dog to hold the bite for its duration under these circumstances is a triable question to be decided by a jury. Further, our caselaw clearly establishes that officers violate the Fourth Amendment when they allow a police dog to continue biting a suspect who has fully surrendered and is under officer control. Accordingly, we affirm the denial of qualified immunity.” The constitutional right at issue in this appeal has been clearly established by our precedents. A police officer violates the Fourth Amendment when he or she allows a police dog to continue biting a suspect who has fully surrendered and is under officer control.4 See Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994); Watkins v. City of Oakland, 145 F.3d 1087 (9th Cir. 1998); Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003). We reaffirmed in Watkins that an officer violates clearly established law by allowing a police dog to continue biting a suspect after the suspect’s surrender, even when the suspect is not handcuffed. 145 F.3d at 1090, 1093

This case highlights the importance of K9 handlers removing the dog from the bite as soon as the suspect indicates compliance.  When you see they are not armed and are trying to give up stop the application of the use of force.