K9 Deployment and Bite Duration Were Proper

by | March 23, 2021

Hernandez v. Town of Gilbert, 2021 WL 821943 (9th Cir. 2021)

Scott Hernandez was drinking with friends at the Mad Dog Saloon before he drove home. An officer saw Hernandez weaving on the road and activated his emergency lights. Hernandez failed to pull over and the officer turned on his siren. Hernandez continued driving.

Hernandez drove into his driveway, opened the garage door remotely, pulled into the garage and shut off his car. The officer blocked the door from closing and called for backup. Hernandez remained in his car inside the garage. When backup officers, including a police service dog handler, arrived, the officers gave 13 verbal commands to Hernandez to get out of the car. When he continued to refuse, one of the officers tried to force Hernandez to get out of the car by using control holds, including grabbing Hernandez’s left forearm, left leg, head and right ear. Hernandez resisted these holds and repeatedly said, “No, I’m not under arrest.”

The officers tried pepper spray, which had no effect on Hernandez. They warned Hernandez eight more times that he was under arrest and ordered him to get out of the car. An officer gave at least five canine deployment warnings and told Hernandez the police dog would bite him if he did not get out. Hernandez told the officers, “I’m not going nowhere, dude,” “You’re on my property, bro. You can’t do this s***,” and “No, I am not .”

After another warning, the police service dog handler released his dog. Hernandez continued to resist, holding on to the seat headrest. The dog bit Hernandez for approximately 50 seconds (in the court’s assessment, though the time was disputed) as Hernandez held fast to the headrest.

The officers asked one another whether to send the dog a second time. They renewed their efforts to pull Hernandez from the car and were able to extricate and handcuff him. He was arrested for DUI and failure to comply with a police officer. After he pled guilty, he sued the officers.

The “officers employed an escalating array of control techniques, none of which were effective in getting Hernandez to surrender, before deciding to release the police dog.”

Hernandez claimed both the initial deployment of the police dog and the duration of the bite violated clearly established law. If the officers violated clearly established law, they could not claim qualified immunity.

The court noted that the evidence showed Hernandez fled from the officer who tried to pull him over and then tried to barricade himself inside his garage. The court also acknowledged that the officers could not know whether Hernandez was armed because no one had searched him yet. The court cited testimony from one of the officers that “once someone starts to act in a way that they’re fleeing from the police, that starts to heighten our awareness that there’s something else going on than just someone who just doesn’t want to stop.”

Finally, the court credited the officers for their measured force options. The “officers employed an escalating array of control techniques, none of which were effective in getting Hernandez to surrender, before deciding to release the police dog.” The officers gave multiple verbal commands, then tried control holds, then pepper spray, all of which failed to achieve compliance. They warned Hernandez several times before releasing the dog. Officers won’t always have the opportunity to try lesser force options, but they did here and it impressed the court.

The court also rejected Hernandez’s complaint about the duration of the bite. “Caselaw is clear that an officer cannot direct a police dog to continue biting a suspect who has fully surrendered and is under the officer’s control…However, is entitled to qualified immunity because Hernandez did not surrender at any point during the encounter; rather, the officers had to physically drag him from his car after the dog bite.” The body worn camera recordings showed that the dog bite “did not prevent Hernandez from complying with the officers’ directions. The video instead shows that he chose not to comply because, in his words, the officers were ‘on his property.’”

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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