Rock v. Cummings ( 2023 )

Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 1 of 50 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dillon Rock, No. CV-20-01837-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 N. Cummings, et al., 13 Defendants. 14 15 INTRODUCTION 16 In October 2019, several members of the Goodyear Police Department 17 (“Defendants”) responded to a 911 call.1 The subject of the call was Dillon Rock 18 (“Plaintiff”), who lived with his father in the same neighborhood as the caller. The caller 19 reported—mistakenly, as it turns out—that Plaintiff had just threatened Plaintiff’s parents 20 with a knife. This information was conveyed to Defendants on their way to the scene. 21 After Plaintiff became aware of Defendants’ arrival, he went into his backyard and 22 hid in a shed. Before entering the backyard, Officer Miller announced that if Plaintiff did 23 not come out, Officer Miller would release a police dog, Toby, who would bite Plaintiff. 24 After Plaintiff did not respond to this announcement—which, he contends, he did not 25 hear—several Defendants entered the backyard. Upon arrival at the shed, and without 26 providing any additional warnings, Corporal Cummings opened the door and Officer 27 1 28 Defendants are Corporal Nathan Cummings, Sergeant Ryan McCarthy, Officer Mike Miller, Officer Scott Preston, Officer Aaron Torres, and Officer Josh White. Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 2 of 50 1 Miller let Toby inside. Toby bit Plaintiff for approximately 41 seconds, dragging Plaintiff 2 out of the shed and causing Plaintiff to sustain extensive arm injuries that later required 3 surgery. 4 In this § 1983 action, Plaintiff alleges that Officer Miller violated the Fourth 5 Amendment’s prohibition against the use of excessive force in two different ways—first, 6 by releasing Toby at all, and second, by allowing Toby to continue biting him for too 7 long—and the remaining Defendants violated the Fourth Amendment by failing to 8 intervene and/or by being integral participants in the violations. Now pending before the 9 Court is Defendants’ motion for summary judgment. (Doc. 69.) On June 5, 2023, the 10 Court issued a tentative order addressing the summary judgment motion. On June 28, 11 2023, the Court held oral argument. For the following reasons, the motion is granted in 12 part and denied in part—Officer Miller is not entitled to qualified immunity as to the claim 13 regarding the duration of the bite but the remaining Defendants are entitled to qualified 14 immunity in full. 15 BACKGROUND 16 I. Events Leading Up To The Incident 17 On the date of the incident, October 20, 2019, Plaintiff was living with his father, 18 Timothy Rock (“Timothy”). (Doc. 76 at 29.) Yolanda Rock (“Yolanda”), Timothy’s ex- 19 wife and Plaintiff’s mother, was also present, as she was visiting for Plaintiff’s birthday. 20 (Id. at 31.) 21 On October 19, 2019, the day before the incident, Plaintiff noticed that Yolanda had 22 a fake Louis Vuitton purse. (Id. at 33.) He “tried to tell her, ‘I don’t think that’s a good 23 idea, to walk with that when you travel . . . especially in dangerous areas maybe when you 24 travel. . . . I just heard bad stories about objects like that and people.” (Id.) To demonstrate 25 his point, Plaintiff said “[w]hat would you do if someone just takes a knife and asks, ‘give 26 me that purse?’” (Id.) However, Plaintiff never actually used a knife to threaten Yolanda. 27 (Id. at 32, 37.) 28 The next morning, Timothy woke Plaintiff up and said, “I know what you did trying -2- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 3 of 50 1 to hurt your mother with a knife. You’re a piece of shit.” (Id. at 32.) Plaintiff, who was 2 confused by this accusation, “tried [his] best to try and communicate . . . but [Timothy] 3 wouldn’t listen or communicate back.” (Id. at 32, 34.) The argument became progressively 4 more intense, and at some point Yolanda attempted to intervene. (Id. at 34-35.) Eventually, 5 out of frustration, Plaintiff “kicked a ladder down that was next to [Plaintiff] by the kitchen, 6 and it landed like 5 feet away from [Timothy and Yolanda].” (Id. at 37.) The ladder didn’t 7 hit anyone. (Id. at 40.) 8 At this point, Yolanda and Timothy decided to call the police. (Id. at 40-41.) After 9 Timothy said, “Call them. I hope they lock him up forever,” Plaintiff snatched his parents’ 10 phones2 and threw them on the ground, shattering the screens, in an attempt to prevent 11 them from calling the police. (Id. at 41-43.) Plaintiff explained to his parents, “I can’t 12 believe you guys are doing this. I really need my job. I—I just got it. I’m really happy 13 with it.”3 (Id. at 42.) Yolanda and Timothy then left the home and began walking in the 14 direction of the house of a neighbor, Willie Berry (“Berry”). (Id. at 44-45.) 15 Upon arriving at Berry’s home, Yolanda and Timothy asked him to call the police; 16 Berry complied. (Doc. 69-1 at 9 [physical exhibit of the 911 call].) Based on the call, 17 between 5:43 and 5:56 pm, the dispatcher communicated the following to law enforcement: 18 RP [reporting party] said neighbors son is acting erratic and threatned the wife with a knife. He broke their phones. RP says now all parties are 19 standing ifo the house arguing. The son is 28 yrs old. Son is tall & thin, unk colored shirt, blue jeans. Dad is old, gray beard safari hat, might have been 20 drinking. RP never saw the knife. The RP is calling from 17553 across the street and has gone back inside. Disc with RP, he had no further info other 21 than what the dad came over and said, and asked RP to call 911 for him. To clarify son threatened mom with a knife-dad asked the RP (neighbor) to call 22 use. 23 (Doc 69-1 at 11.) 24 In response to the 911 call, several officers from the Goodyear Police Department 25 26 2 This included both of Yolanda’s phones. (Doc. 76 at 43.) 27 3 Plaintiff agreed with the following premise from defense counsel: “You thought that what was going to happen is the police were going to show up, they were going to accuse 28 you of disorderly conduct, they were going to arrest you and take you to jail, and as a result of going to jail, you were going to miss work on at least Monday.” (Doc. 76 at 46.) -3- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 4 of 50 1 were dispatched, including the K-9 unit. (Id.) The Goodyear Police Department’s 2 Standard Operating Procedure 3010 (“SOP 3010”) outlines the policy for the use of K-9s 3 in police work. (Doc. 76 at 95-102.) Before beginning an “area search”, which is defined 4 as “a process in which the K-9 team is utilizing the canine to search a broad defined area, 5 generally within an established perimeter, through the use of the canine’s olfactory ability 6 to find any human scent,” the “handler will request that all perimeter units make Public 7 Address (PA) announcements from their patrol vehicle advising of the verbal warning that 8 the K9 Unit is being used.” (Id. at 99.) SOP 3010 instructs officers to use a saved audio 9 file and provides a script.4 (Id.) SOP 3010 further instructs: “After a reasonable time lapse 10 without a response, the police canine may be deployed. The search may be conducted on 11 or off lead at the handler’s discretion. The handler will maintain visual contact with the 12 police canine as much as feasible, depending on the location and conditions.” (Id.) 13 II. Video Of The Incident 14 The parties have submitted video footage of the incident, which was captured by 15 Defendants’ body-worn cameras (“BWC”). (Doc. 73 [Defendants’ notice of filing of BWC 16 footage]). The facts below are derived from the Court’s review of that footage, unless 17 otherwise noted. Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022) (“[F]or 18 purposes of ruling on a motion for summary judgment, a district court may properly view 19 the facts in the light depicted by bodycam footage and its accompanying audio, to the extent 20 the footage and audio blatantly contradict testimonial evidence.”); Scott v. Harris, 550 U.S. 21 372, 380 (2007) (“When opposing parties tell two different stories, one of which is 22 blatantly contradicted by the record, so that no reasonable jury could believe it, a court 23 should not adopt that version of the facts for purposes of ruling on a motion for summary 24 judgment.”). Most of the videos span over 30 minutes, and up to an hour and a half for 25 some of the officers. 26 … 27 4 The script provides: “This is the Goodyear Police Department K-9 Unit. You are 28 completely surrounded. You must respond immediately and come out with your hands up or I will release my police dog. When he finds you, he will bite you.” (Doc. 76 at 99.) -4- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 5 of 50 1 A. Initial Encounter With Plaintiff’s Parents 2 During the initial portion of the encounter, Corporal Cummings arrives on the scene, 3 along with Officer Chaparro. Plaintiff’s parents can be seen standing in the driveway 4 outside Timothy and Plaintiff’s home, and several Defendants proceed to have a 5 conversation with Plaintiff’s parents. As noted below, during this discussion, Timothy did 6 not correct the officers when they suggested (as they had been told by the 911 dispatcher) 7 that Plaintiff was currently armed with a knife and repeated the contention (which the 911 8 dispatcher had also told the officers) that Plaintiff had made threats with the knife: 9 Corporal Cummings: “You guys, who had the knife?” 10 Officer Chaparro: “Alright, what’s going on? Who had the knife?” 11 Corporal Cummings: “Who had the knife, and where is he at?” 12 Timothy (gesturing towards the house): “He’s somewhere around the back. But 13 he’s my son, he’s fucking drunk—” 14 Corporal Cummings: “Okay, who else is in the house?” 15 Timothy: “What’s that?” 16 Corporal Cummings: “Who else is in the house?” 17 Timothy: “Nobody else. This is my ex-wife, Yolanda. And I’m—” 18 Corporal Cummings: “So the person who grabbed the knife, is he the only person 19 in the house?”5 20 Timothy: “No, he’s probably, he’s probably—” 21 Corporal Cummings: “Listen to me!” 22 Timothy: “I’m—I am.” 23 Corporal Cummings: “Who else is in the house with him?” 24 Timothy and Yolanda: “No one.” 25 5 26 Officer Preston arrives on scene at this point and is present with Corporal Cummings and Officer Chaparro. In his affidavit, Officer Preston states that Corporal Cummings 27 asked Timothy where the knife was and Timothy responded, “I don’t know he might have thrown it somewhere.” (Doc. 69-1 at 43 ¶ 9.) This statement is contradicted by both 28 Corporal Cummings’s and Officer Preston’s BWC footage, which do not contain this purported line of questioning. -5- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 6 of 50 1 Corporal Cummings: “That’s what I asked. Okay.” 2 Timothy: “Okay.” 3 Officer Miller:6 “Is he in the house or out back?” 4 Timothy: “He’s—I think he’s out back.” 5 Officer Miller: “Is the gate unlocked?” 6 Timothy: “He’s just drunk out of his ass.” 7 Officer Miller: “Is the gate unlocked? Is the gate unlocked?” 8 Timothy: “What’s that?” 9 Officer Chaparro: “What’s his name?” 10 Timothy: “Dillon.” 11 Officer Chaparro: “What’s his name?” 12 Timothy: “Dillon.” 13 Corporal Cummings: “Is anybody hurt? 14 Timothy: “Nobody’s hurt. But he has, you know he’s pretty much destroyed the 15 inside of the house.” 16 Corporal Cummings: “Is this your house?” 17 Timothy: “Yes.” 18 Corporal Cummings: “Okay.” 19 Timothy: “And he threatened my, this is my ex-wife, which, we are great friends. 20 And—there’s not a—” 21 Officer Miller: “Find out. Is there a—is there a lock on the gate?” 22 Timothy: “There’s not—there’s not a lock on the gate.”7 23 Officer Preston: “Alright, do me a favor just, stay right here for right now, don’t go 24 anywhere.” 25 Timothy: “Alright.” 26 … 27 6 Officer Miller arrived, with Toby, while Corporal Cummings and Officer Chaparro were speaking with Yolanda and Timothy. 28 7 At this point, Officer Miller and Toby head toward the backyard. -6- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 7 of 50 1 B. Various Defendants Go To The Gate And Plaintiff Hides In The Shed 2 At this point in the encounter, Corporal Cummings walks over to the gate, which 3 leads to the backyard, located on the west side of the property. (Doc. 69-1 at 17 ¶ 6.) 4 Officer Miller, along with Toby, join him at the gate.8 As discussed below, the relevant 5 sequence for summary judgment purposes is that, after the officers arrived at the gate, 6 Corporal Cummings observed Plaintiff walking away from them to hide in the shed; 7 Corporal Cummings attempted to communicate with Plaintiff a few seconds later (but 8 Plaintiff was unable to hear the specific words that Corporal Cummings used); and the 9 officers then delayed their entry into the backyard until Plaintiff’s dog, which was in the 10 backyard, could be brought under control: 11 Officer Preston: “Don’t go anywhere. Alright sir, as I said, just stay right there, 12 okay?” 13 Officer Preston then joins Corporal Cummings and Miller at the gate. 14 Officer Miller: “Dog goes first. Dog goes first. Get the gate open, eyes downrange.” 15 Corporal Cummings: “What’s his name?” 16 Officer Chaparro: “Dillon.” 17 Corporal Cummings: “Okay.” 18 Corporal Cummings opens the gate. 19 Officer Chaparro: “Oh, dog.” 20 Officer Preston: “Oh big dog.” 21 Corporal Cummings closes the gate.9 22 Officer Miller: “There’s a big dog back there. Right at the gate. Off. Did you see 23 him?” 24 8 While walking to the gate, Corporal Cummings appears to mumble something to himself, but the statement is not audible from his BWC footage. 25 9 After Corporal Cummings turns away from the gate, facing the street, Officer 26 Preston can be heard saying, “Where’s your dog at? Oh, ah, shit!” and then “fuck!” Timothy can be seen laying in the road, with Yolanda standing over him. Officer Preston 27 and Officer Chaparro then tended to Timothy and dispatched for the fire department. Timothy suffered a “pretty nasty cut” on the back of his head. (See also Doc. 69-1 at 43- 28 44 ¶¶ 14-15 [Officer Preston declaration: “After rolling him over, I located an approximately ½ inch abrasion which was actively bleeding.”].) -7- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 8 of 50 1 Officer White:10 “Is he back there? Or—” 2 Corporal Cummings: “Yeah he’s back.”11 3 Unidentified speaker: “Did you see him?” 4 Corporal Cummings: “Yeah he saw us and dipped back in.”12 5 Officer Miller: “What kind of dog is it?” 6 Unidentified speaker: “Was he [inaudible]?” 7 Corporal Cummings: “I just—he went back towards the house. Hey Dillon, Dillon 8 it’s Goodyear Police.”13 9 (No response from Plaintiff.) 10 Officer Miller: “We might be better going through the inside.” 11 Corporal Cummings: “Yeah. So he popped out--” 12 Officer Miller: “What kind of dog was it?” 13 Corporal Cummings: “Uh, just a big dog. Big enough to get shot. So, he popped 14 out on the side yard, saw me, and then went back. Hey Dillon, it’s the Goodyear 15 Police Department! Can you hear me?” 16 10 Officer White had arrived on the scene just moments prior. 11 17 Officer White then walks around to the east side of the property (but remains close to the street) and stands on a fire hydrant to look around. Officer White: “I just heard 18 something back there. He either went in the house or in the shed. Oh, maybe that’s what I heard.” Officer White is speaking to Officer Chaparro, but the other half of the 19 conversation is inaudible and Officer Chaparro’s BWC footage was not provided. 12 Corporal Cummings’ affidavit explains that he saw a “male wearing a dark-colored 20 T-shirt emerge from behind the house. He looked in my direction then walked east behind the house; at which point I lost sight of him.” (Doc. 69-1 at 17 ¶¶ 8-9.) Plaintiff does not 21 appear to dispute this. 13 22 About nine seconds elapsed between when Corporal Cummings confirmed that he saw Plaintiff and when Corporal Cummings attempted to communicate with Plaintiff. 23 Although Plaintiff contends in his summary judgment papers that whether he heard Corporal Cummings is a question of fact for the jury (Doc. 76 at 14), Plaintiff admitted 24 during his deposition that he heard the officers’ shouting and hid in the shed in response to the shouting: “I heard shouting from the front, and I knew they were going to be talking to 25 my parents . . . shortly. . . . I went to the shed, and I . . . kind of sat there and cried about why I work so hard to go to work . . . . I just didn’t want to go to jail. . . . It [the shouting] 26 was indistinct, just—it was far away. . . . I [believed the shouting was the police but] I didn’t know what they were shouting.” (Doc. 76 at 48-49.) Plaintiff elaborated: “[T]he 27 way I heard them was, like, the most unfriendliest way of calling someone, so I just—I just got—just from fear. I just went to the shed. I just—I just thought it would all go away.” 28 (Id. at 49-50.) Therefore, there is no genuine dispute of fact as to whether Plaintiff initially heard the officers and then hid in the shed in an effort to hide from them. -8- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 9 of 50 1 Officer Miller: “Hey Pres.” 2 Officer Preston: “Yo.” 3 Officer Miller: “Ask them, of them if one of them can grab this dog.” 4 Officer Preston: “Yeah, I already did. Ma’am can you go inside and get the dog?” 5 Officer Miller: “Here do you want a leash? Off. Polite.” 6 Officer Preston: “Do you want to go through the house?” 7 Corporal Cummings (to Yolanda): “Can we go through the house?” 8 Yolanda: “Yes, we can go through the house.” 9 Officer Miller: “Still need to get the dog. Still need to get the dog.” 10 Corporal Cummings: “Yeah.” 11 Officer Miller: “Do not let that dog out on my dog, please. Here. Off. Get the gate 12 for her, Preston.” 13 Yolanda tries to open the gate, while holding the leash provided by Officer Miller. 14 Yolanda: “Let me go through the other side.” 15 Corporal Cummings: “Hold on, hold on, hold on. Which other side? Wait!” 16 Yolanda: “From inside the house.” 17 Officer Miller: “No you’re not going inside.” 18 Corporal Cummings: “No! Come here. You’re not going in the house.” 19 Officer Miller: “See if you can grab that dog.” 20 Officer Preston: “No!”14 21 Corporal Cummings: “Okay, is it a friendly dog?” 22 Officer Miller: “Just make sure his dog don’t get to Toby.” 23 Yolanda: “Uh, yeah he is.” 24 Corporal Cummings: “Okay.” 25 At this point in the encounter, the officers and Yolanda retrieve Plaintiff’s dog from the 26 14 During this time, Timothy says, “this has been going on for—since yesterday.” 27 Officer Preston then proceeds to get Timothy’s name, date of birth, and phone number. Timothy: “He just needs help.” Officer Preston: “That’s what we’re trying to do.” 28 Timothy: “He’s just a fucking druggie fucker.” Officer Preston: “Okay. Hey [Torres], do you want to come sit here with this guy? Fire is en route to check out him, he fell down.” -9- Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 10 of 50 1 backyard, which takes approximately 90 seconds.15 2 Corporal Cummings (to Yolanda): “Okay go ahead and wait out on the sidewalk 3 okay.” 4 C. Officer Torres Interview 5 Because several officers were present at the scene, and not all of the officers 6 remained in the same place, the Court takes a brief detour to discuss the investigative work 7 of Officer Torres that occurred before the dog bite. As discussed below, during this 8 sequence, Timothy revealed for the first time that Plaintiff was not, in fact, armed with a 9 knife, but this information was not relayed to the other officers on the scene: 10 While Yolanda, Officer Preston, and Corporal Cummings are removing Plaintiff’s 11 dog from the back yard, Officer Torres arrives and begins speaking with Timothy.16 12 Timothy: “But today he—he—he threatened my ex-wife, that was the end. That’s 13 like—Do not do that.” 14 Officer Torres: “What did he say exactly to her?” 15 Timothy: “Oh he was—he’s going to kill me, he’s going to kill her.” 16 Officer Torres: “Kill you. Did he say how?” 17 Timothy: “Huh?” 18 Officer Torres: “Did he say how?” 19 Timothy: “Yeah he—I don’t care how he is saying it because he’s a drunken 20 asshole.” 21 Officer Preston then arrives with Plaintiff’s dog. 22 Timothy: “Hey Leeky. Come over here. I’ll take him. I’ll hold him.” 23 Officer Preston: “Well I can’t have you hang on to him because he’s pretty strong 24 and so.” 25 Timothy: “No, no, he’s okay—but he knows me.” 26 15 Additional dialogue relating to the removal of the dog from the backyard has been omitted. 27 16 On Officer White’s BWC footage, right before this interaction, Officer White says 28 to Officer Chaparro: “Will you just stay there and watch that wall? Please.” He indicates to the wall on the far west side of the property. - 10 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 11 of 50 1 Officer Torres: “I got it. I got it. I got it. Here you go ma’am, can you hold on to 2 the dog? So, he’s going to kill me he’s going to kill her, correct?” 3 Timothy: “What’s that?” 4 Officer Torres: “He said kill, that he was going to kill—” 5 Timothy: “Yeah! He’s and he and he’s just minutes ago he like threw a whole—” 6 Officer Torres: “I’m going to help you up. We are just going to move behind this 7 police car for right now, just if you guys can. We are just going to move behind this 8 police car right now, just across the street. Here, I’ll help you.” 9 Timothy: “Yeah, cuz I—I’ve been drinking, sorry about that.” 10 Officer Torres: “Not a problem, not a problem, that’s why I’m here.” 11 Timothy: “Does he just—” 12 Officer Torres: “Not a problem, not a problem.” 13 Officer Torres then escorts Timothy and Yolanda across the street to sit on the curb. 14 Timothy is mumbling incoherently on the walk over. 15 Officer Torres: “Is he still in the house right now?” 16 Timothy: “He’s in the house, in the back of the house.” 17 Officer Torres: “Okay. Do me a favor we’re just going to sit you down over here.” 18 Timothy: “How about right here. Is this okay?” 19 Officer Torres: “Yeah, gimmie just a second.17 What’s his name again?” 20 Timothy: “What’s that?” 21 Officer Torres: “What’s his name?” 22 Timothy: “Who? Oh. Dillon. D-I-L-L-O-N.” 23 Officer Torres: “Last name? What’s Dillon’s last name?” 24 Timothy: “What’s that?” 25 Officer Torres: “What’s the last name?” 26 Timothy: “Oh, Rock. R-O-C-K.” 27 28 17 Officer Torres walks around the police car. At this point, Officer Miller’s dog warning (discussed in the next section) is audible. - 11 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 12 of 50 1 Officer Torres: “Okay and that’s your son?” 2 Timothy: “Yes.” 3 Officer Torres: “And what’s his date of birth? Do you know?” 4 Timothy: “Uh, [redacted].” 5 Officer Torres: “So did he threaten to kill you—does he have the knife right now?” 6 Timothy: “No.” 7 Officer Torres: “No.” 8 Yolanda: “He was just—” 9 Officer Torres: “Did he have it with him?” 10 Timothy: “He came in and he broke all our phones.” 11 Yolanda: “He was breaking our phones—” 12 Timothy: “And then he threw a fucking whole ladder at her.” 13 Officer Torres: “He threw a ladder at you?” 14 Timothy: “Yes.” 15 Officer Torres: “Okay.” 16 Officer Torres: “Do me a favor ma’am can you just wait over here on this side of 17 the car and then I’ll talk to you in a second? What was your name?” 18 Timothy: “What’s that?” 19 Officer Torres: “Yeah, this is your house right here, correct?” 20 Timothy: “Yes.” 21 Officer Torres: “Yeah. Okay. That’s it. No one else in the house?” 22 Timothy: “No, just—” 23 Officer Torres: “No one else is in there.” 24 Timothy: “Just, no, just you know my ex-wife and myself.” 25 Officer Torres then proceeds to elicit Timothy’s remaining identification (first and last 26 name, phone number, and date of birth). 27 Officer Torres: “Any drug use or anything that you are worried about with him?” 28 Timothy: “What’s that?” - 12 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 13 of 50 1 Officer Torres: “Any drug use or anything like that?” 2 Timothy: “No, no, he’s—has uh medical marijuana.” 3 Officer Torres: “Okay. So, what, uh, what upset him today?” 4 Timothy: “What’s that?” 5 Officer Torres: “What upset him today?” 6 Timothy: “No, he’s just he’s just a fucking crazy alcoholic.” 7 Officer Torres: “So, he’s drunk?” 8 Timothy: “Once he drinks, he can’t stop.” 9 Officer Torres: “Okay, so, he’s been drinking today?” 10 Timothy: “He’s been drinking since yesterday. He thought his birthday was 11 yesterday.” 12 Officer Torres: “Then, well, so what—what kind of sparked it? What kind of got 13 him upset that he broke the phones?” 14 Timothy: “I don’t know what this man thinks when he drinks.” 15 Officer Torres: “Okay.” 16 A loud commotion can be heard at this point, drawing the attention of Timothy and Officer 17 Torres. 18 D. Officer Miller Provides A Warning, Which Plaintiff Does Not Hear, And 19 Officers Then Enter The Backyard And Approach The Shed 20 While Officer Torres is speaking to Timothy and Yolanda,18 Corporal Cummings 21 and Officers Preston, White, and Miller are standing by the gate, along with Toby. As 22 discussed below, during the next portion of the encounter, these officers discussed their 23 plan for apprehending Plaintiff; Officer Miller announced that if Plaintiff did not reveal 24 himself, Officer Miller would release Toby—an announcement that Plaintiff, 25 unfortunately, did not hear; and these officers then entered the backyard and headed toward 26 18 27 Sergeant McCarthy’s BWC footage demonstrates that he arrived after this conversation with Officer Torres, but before the other officers entered the backyard. At 28 this time, Officer Torres is leading Timothy and Yolanda, along with the dog, to sit across the street from Timothy’s and Plaintiff’s house. - 13 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 14 of 50 1 the shed: 2 Officer Miller: “I’m going to work [Toby] on the 15 [foot lead]. So, I’m going to 3 let him search ahead of us. Heel! Off!” 4 Officer Miller then switches out Toby’s 6-foot lead for a 15-foot lead. 5 Officer Miller: “Off!” 6 Officer White: “Did you see him?” 7 Officer Preston: “We haven’t seen him.” 8 Corporal Cummings: “Yeah, so, he popped out to the walkway, looked my direction 9 and then he cut back.” 10 Officer White: “Okay, hold on. Did you ever—did the dog ever go back there— 11 around the side? Or was the dog here the whole time?” 12 Officer Preston: “He was here the whole time.” 13 Officer Miller: “Here. Off.” 14 Corporal Cummings: “As soon as I opened the gate he came running—” 15 Officer White: “The dog never left after that? The reason I’m asking is I heard 16 something on the other over there. On the other side of the house, over by the shed.” 17 Officer Preston: “Do we have somebody over there?” 18 Officer White: “Yes. Chaparro is over there.” 19 Officer Miller: “Well, we will give an announcement.” 20 Officer White: “Okay.” 21 Officer Miller: “And then we can get out of this fatal funnel.”19 22 Officer White: “Okay.” 23 Officer Preston: “Gotcha.”20 24 19 Corporal Cummings, in an affidavit, explained that a “fatal funnel” refers to the 25 “narrowness of the entry into the backyard at the gate under circumstances where we have seen the suspect; where the suspect is evading or fleeing; and the inability to defend 26 ourselves in the narrow entryway into the backyard if the suspect possesses and uses a firearm.” (Doc. 69-1 at 17 ¶ 13.) 27 20 At this point, Sergeant McCarthy is approaching the group of four officers and is 28 close enough to hear Officer Miller’s announcement. Another officer is explaining to Sergeant McCarthy that “[Plaintiff] popped his head out and then disappeared.” - 14 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 15 of 50 1 At this point, Officer Miller verbally (rather than using the speaker on his police vehicle) 2 provides a warning to Plaintiff about the plan to release Toby: 3 Officer Miller: “What’s his name? Dillon? Dillon. Dillon! Goodyear Police 4 Department K-9 Unit! I know you’re back there. You need to make yourself known 5 now or I’m going to send my dog back there and he’s going to bite you! Off! Dillon! 6 Goodyear Police Department Canine Unit! Show yourself now, you’re gonna get 7 bit!” 8 (No response from Plaintiff.) 9 Unfortunately, Plaintiff did not hear enough of this statement to realize that he was being 10 warned about the possible use of a canine—he only heard the word “police” and everything 11 else was indecipherable.21 12 Unidentified Speaker: “He could’ve gone back inside.” 13 Officer White: “He might have. We are just clearing the backyard.” 14 After an approximately 12-second pause, Toby leads the group of Corporal Cummings and 15 Officers Miller, White, and Preston into the narrow corridor that leads to the backyard.22 16 In an affidavit, Officer Miller provided the following explanation for why he 17 decided to use Toby to search for Plaintiff: 18 19 20 21 Plaintiff testified that he did not hear any warnings or announcements related to the use of a canine. (Doc. 76 at 52 [Q: “So any of the shouting that you hear, do you hear any 21 of the words?” A: “No. I heard . . . ‘police.’”]; id. at 54-56 [Q: “When you are actually in the shed that day, do you hear an officer talking and using the word ‘shed’?” A: “No, I 22 heard no language or vocal speech.”].) This testimony is not clearly contradicted by the video footage. Although Officer Torres’s BWC footage demonstrates that Officer Miller’s 23 warning was audible across the street, it does not establish that Plaintiff, who was on the other side of the house, inside a shed, would have heard the warning. Thus, for summary 24 judgment purposes, the Court accepts Plaintiff’s testimony regarding his failure to hear the specifics of Officer Miller’s warning. To the extent Officer Miller offers a conflicting 25 factual account on this point—he states in an affidavit that “[t]he announcement[s] were so loud and clear that I learned later that officers who were down the street and to the rear 26 of the above listed house could hear them clearly” (Doc. 69-1 at 33 ¶ 22)—this factual dispute must be resolved in Plaintiff’s favor as the non-movant. 27 22 Sergeant McCarthy says to the group “Okay, okay, I’ll hang out by the front door.” 28 He then goes to stand by the front door. Officer Chaparro can also be seen standing at the southwest corner of the property. - 15 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 16 of 50 1 [Plaintiff] was suspected of committing the crimes of Aggravated Assault with a weapon as well as preventing the victims from calling 911. Based on 2 dispatch broadcasts received by myself and the other Officers; [Plaintiff] was believed to be armed and dangerous as it had been reported by a citizen he 3 had threatened to harm one or both victims with a knife. It was unknown if [Plaintiff] was still armed with any weapons.23 [Plaintiff] had direct access 4 to any other possible weapons while in the back yard of the residence as there were tools and other sharp and blunt force objects that I observed lying on 5 the ground in the backyard.24 [Plaintiff] was attempting to evade police officers on scene by failing to comply with all commands and hiding. 6 [Plaintiff] was contacted by Officer Cummings at first; having the chance to comply but instead decided to run out of his view and hide from the pursuing 7 Officers, including myself. His hiding on private property which he knew, and we did not, and where tools that could be used as weapons were plainly 8 visible created an immediate threat to the pursuing Officers, including myself. It was unknown what [Plaintiff] was willing to do to continue to 9 evade officers or further his crimes. I was in fear for the safety of my fellow officer’s lives and my life due to the fact of [Plaintiff] crimes and a knife had 10 been used to aid him in the acts. [Plaintiff] had several opportunities to surrender peacefully to officers. He was aware we were at the residence for 11 him and several announcements were given for him to surrender.25 It was reported [Plaintiff] was under the influence of alcohol and possibly illegal 12 drugs. It was unknown if [Plaintiff] jumped the block wall in which case he would then pose a direct threat to surrounding neighbors. The decision to 13 deploy a K9 is mine as the handler, and supervisor approval is not necessary in our agency, or generally among law enforcement agencies in the State of 14 Arizona. 15 (Doc. 69-1 at 33-34 ¶ 24.) 16 As the officers enter the backyard, Corporal Cummings’s gun is drawn, and he and 17 Officer Preston follow closely behind Toby. Officer Miller is behind Corporal Cummings 18 and Officer Preston, holding Toby’s leash. Officer White brings up the rear of the group 19 and closes the gate behind him. There’s some unidentifiable chatter amongst the officers 20 about potential hazards, such as identifying a window. 21 22 23 Plaintiff disputes these several points, arguing that Officer “Miller declined the 23 opportunity to speak with [Plaintiff’s] mother or to direct other officers to do so prior to the use of force. . . . Had he done so, he would have learned that [Plaintiff] had not, at any 24 time, threatened his mother with a knife. . . . A reasonable officer would not have perceived [Plaintiff] as a physical threat, upon entering the side yard where the shed was, because a 25 closed wrought iron gate served as a barrier between the shed and the officers.” (Doc. 76 at 13-14.) 26 24 Plaintiff objects to this assumption, arguing that Officer “Miller again relies on hypotheticals and assumptions, including that the shed may have contained edged tools 27 that could have been used as weapons.” (Doc. 76 at 13.) 25 28 Plaintiff disputes this point. (Doc. 76 at 13.) As explained elsewhere, there is factual dispute about whether Plaintiff heard Officer Miller’s warning. - 16 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 17 of 50 1 As the officers round the corner at the end of the corridor, the backyard opens up 2 revealing a pool and a gated patio area. 3 Officer Miller: “Off! Off!” 4 Unidentifiable Speaker: “Go ahead and cover the windows.” 5 Officer Preston: “See him?” 6 Plaintiff is not in view. 7 Officer White: “Let’s go clear the side of that house real quick.” 8 Officer Miller: “Off!” 9 Corporal Cummings: “There’s a screen on the ground on that side. I’m going to 10 take this wide.” 11 Officer Miller: “Yup.” 12 Officer White: “—first.” 13 Unidentifiable Speaker: “Watch yourself.” 14 Officer Miller: “Somebody’s on my lead.” 15 Officer Preston: “Sorry.” 16 Officer Miller: “Here.” 17 Corporal Cummings and Officers White and Miller then walk around the far edge of the 18 pool with Toby. Plaintiff is still not visible. 19 Officer Preston and Sergeant McCarthy26 stay behind to investigate the gated area 20 to the right of the pool. There’s some general chatter between the two about where Plaintiff 21 may be. Officer Preston notes that “[a]ll the windows are covered so far.” Meanwhile, on 22 the other side of the yard, Corporal Cummings and Officers White and Miller round the 23 corner past the pool. 24 Officer Miller: “We got a shed. [Inaudible command to Toby.]” 25 Officer Miller: “What’s that shed forming? Is that a gate?” 26 27 26 In Sergeant McCarthy’s BWC footage, Sergeant McCarthy leaves his post by the front door and enters the backyard through the same gate as the other officers 28 approximately one minute after he said he would remain by the front door. He joins Officer Preston at the side of the house. - 17 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 18 of 50 1 Toby is walking ahead of the officers toward the shed. The shed is surrounded by a metal 2 fence. Plaintiff is still not visible. The gate on the fence door is closed, but not locked. 3 Corporal Cummings, in his affidavit, explained that “[w]e were not informed what 4 was in the shed; although through common experience I know sheds are locations where 5 metal tools, including sharp or edged tools, are regularly kept.” (Doc. 69-1 at 18 ¶ 21.) 6 Officers Miller and White echoed the same sentiment.27 (Id. at 35 ¶ 31; id. at 62 ¶ 13.) 7 The BWC footage reflects that none of the officers verbally expressed this concern while 8 approaching the shed (or during the aftermath of the incident). 9 Officer White then opens the latch to the mental fence enclosing the shed.28 Once 10 the fence is open, Toby takes the lead and walks around the perimeter of the shed. He is 11 sniffing the shed’s edges, while still attached to his lead. 12 There is no dialogue between the officers while Toby sniffs for approximately 25 13 seconds.29 Toby sniffs along some debris surrounding the shed, which makes a muted 14 rustling sound. At one point, Toby puts both his front paws on the left side of the shed. 15 E. The Incident 16 Much of the dispute in this case turns on what happened during the next portion of 17 the encounter. As discussed below, the relevant sequence for summary judgment purposes 18 is that the officers approached the shed without providing any additional verbal warnings; 19 Officer Miller instructed Corporal Cummings to open the shed’s door; Corporal Cummings 20 did so and stood to the side with his gun drawn; Officer Miller released Toby into the shed 21 before making any visual contact with Plaintiff; Toby began biting Plaintiff’s arm and 22 dragged Plaintiff partially out of the shed; Plaintiff began screaming in pain and, after a 23 27 Plaintiff disputes this point: “Miller again relies on hypotheticals and assumptions, 24 including that the shed may have contained edged tools that could have been used as weapons. Miller’s argument rests on the faulty premise that [Plaintiff] had heard any of 25 the announcements or commands and was intentionally lying in wait, so to speak.” (Doc. 76 at 13.) 26 28 Corporal Cummings provided in his affidavit that he opened the metal fence to the shed. (Doc. 69-1 at 18 ¶ 21.) This is contradicted by the video footage, but any dispute 27 over who opened the fence is not material to the disputed issues here. 28 29 Toby begins sniffing the shed at the 1:02:15 timestamp on Officer Miller’s BWC footage. At 1:02:40, Corporal Cummings opens the shed door. - 18 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 19 of 50 1 few seconds, grabbed Toby’s lead; Officer Miller yelled at Plaintiff to let go of Toby’s 2 lead; approximately 27 seconds into the encounter, Officer Miller instructed Officer White 3 to remove Toby from Plaintiff’s arm; and approximately 14 seconds after Officer Miller’s 4 command, Officer White removed Toby from Plaintiff’s arm. The entire bite sequence 5 lasted approximately 41 seconds. 6 Officer Miller: “Open up that shed door.” 7 Corporal Cummings then opens the shed’s right-side door with his gun drawn. From 8 Officers Miller’s and White’s points of view, the right side of the shed appears empty as 9 soon as the doors open. Toby is first into the shed and disappears behind the shed’s left 10 door, which remains closed. Plaintiff is crouched on the ground just inside the left door. 11 Approximately three seconds into the encounter, both of Plaintiff’s hands are visibly 12 empty, as is the shed.30 Officer Miller yells something inaudible. Toby bites Plaintiff on 13 his left upper arm and Plaintiff can be heard screaming. Toby is shaking his head back and 14 forth, while attached to Plaintiff’s arm, dragging Plaintiff from the shed. Meanwhile, 15 Officer Miller is pulling on Toby’s lead and can be heard saying, “Good boy. Come out. 16 17 30 Although Defendants do not dispute that Plaintiff’s hands were empty and no knife was visible elsewhere in the shed, they contend in their reply brief that the responding 18 officers still believed that “a knife . . . could have been concealed in [Plaintiff’s] clothes even if his hands appeared empty.” (Doc. 80 at 3.) Defense counsel further emphasized 19 this point during oral argument. Having carefully reviewed the record in light of counsel’s argument, the Court concludes that this assertion need not be credited on this record. As 20 an initial matter, none of the responding officers verbally expressed, in the BWC footage, any continuing concerns about Plaintiff being armed after the shed was opened and 21 Plaintiff’s hands were shown to be empty. More important, no Defendant asserted, in the respective affidavits provided in support of the summary judgment motion, that he 22 continued to believe Plaintiff was armed with a knife after the shed was opened and the bite sequence began. For example, Officer Miller’s affidavit states: “As soon as [Plaintiff] 23 and Toby were pulled out of the shed, I could see [Plaintiff] did not have the knife in his hands.” (Doc. 69-1 at 36 ¶ 42.) Officer Miller does not express any concern that Plaintiff 24 retained the knife elsewhere, such as in a pocket or waistband. The relevant portions of the declarations of Corporal Cummings (Doc. 69-1 at 18-20), Sergeant McCarthy (Doc. 25 69-1 at 26-27), Officer Preston (Doc. 69-1 at 44-45), and Officer White (Doc. 69-1 at 62- 64) likewise fail to suggest that there was any continuing concern that Plaintiff retained a 26 knife elsewhere on his person. Accordingly, Defendants’ assertion that they continued to believe Plaintiff was armed with a knife after the shed was opened, and the bite sequence 27 began, need not be credited for summary judgment purposes—it is simply an argument of counsel, appearing in a summary judgment reply brief, that lacks evidentiary support. 28 Barcamerica Int’l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, n.4 (9th Cir. 2002) (“arguments and statements of counsel ‘are not evidence’”). - 19 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 20 of 50 1 Come out. Good boy.” 2 Once Toby drags Plaintiff out of the shed by his arm (which takes approximately 3 seven seconds), Plaintiff can be seen holding on to Toby’s lead. 4 Plaintiff (screaming): “Ow, ow, ow!”31 5 Officer Miller: “Let go of the dog! Let go of the lead! Do it now!” 6 Plaintiff: (screaming): “Ow, ow, ow!” 7 Officer Miller: “Let go of the lead!”32 8 Officer White grabs Toby’s head. Plaintiff can be heard crying and screaming: “Ow, ow!” 9 At this point, Corporal Cummings and Officers White and Preston (in addition to 10 Toby) can be seen struggling on the ground with Plaintiff. One of the officers can be heard 11 saying, “give us your arm,” “give us your arm,” “give us your arm,” and eventually, “give 12 us your other arm.” Toby has not released his grip on Plaintiff’s left arm. Plaintiff is crying 13 and mumbling unintelligibly. Corporal Cummings draws his taser but does not use it. The 14 video shows one officer holding the same arm that Toby is biting; Plaintiff’s other arm is 15 not visible. 16 Officer Miller: “Let go of the lead!” 17 The officers then lift Plaintiff and rearrange him, so he is face down. Plaintiff is howling 18 in pain. Toby is still latched onto Plaintiff’s left arm. 19 Unidentified speaker: “Give us your arm!” 20 Toby is shaking his head back and forth on Plaintiff’s arm. Plaintiff is screaming and 21 recoiling from the pain. Eventually, Corporal Cummings gets control of Plaintiff’s right 22 arm. Another officer yells, “Hey! Hey!” 23 The audio becomes muffled, but Plaintiff’s screams can still be heard. 24 Approximately 27 seven seconds into the encounter, Officer Miller instructs Officer White 25 to remove Toby. 26 31 Plaintiff’s screams can be heard around the side of the house. At this point, Officer Preston leaves his post along the side of the house by the pool and runs to the backyard. 27 Sergeant McCarthy follows after him. 28 32 Audio of Officer Miller yelling “let go of the lead” is also audible on Officer Torres’s BWC footage. - 20 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 21 of 50 1 Officer Miller: “Josh how about you take [Toby] off. Get him off. Take him off.”33 2 According to the officers’ testimony, the only way to remove Toby is for one of the 3 officers to manually put Toby in a chokehold to release him. (Doc. 69-1 at 63 [Officer 4 White affidavit].) In the BWC footage, Officer White begins to employ the chokehold. 5 Officer White: “Got him. I got him. Got him.” 6 Plaintiff is yelling in pain: “Owww! My fucking arm man, oh my arm! Ahhhh!” 7 Approximately 14 seconds later (41 seconds after the beginning of the bite), Officer 8 White removes Toby from Plaintiff’s arm. 9 Officer Miller: “Grab his harness! Grab his harness!” 10 Officer White: “I got it.” 11 Corporal Cummings and Officer Preston then handcuff Plaintiff while he is lying face 12 down in front of the shed, which occurs approximately nine minutes and eight seconds 13 after Corporal Cummings first arrived. 14 Sergeant McCarthy, who is observing, says “Dog out. Dog out.” Officer Miller 15 escorts Toby away from Plaintiff. An officer can be heard radioing for medical attention 16 for a dog bite. (Doc. 69-1 at 45 ¶ 27 [Officer Preston declaring that he called for the fire 17 department].) 18 Officer White: “Get up off his back so he can breathe, Nate.” 19 The videos go on to show Plaintiff receiving medical attention for the dog bite. 20 Photos were taken of the bite wounds. (Doc. 76 at 104-05.) About eight minutes later, 21 Plaintiff is loaded into an ambulance, which took him to Abrazo West Emergency Room 22 for care. (Doc. 69-1 at 37 ¶ 52.) 23 F. Post-Incident Investigation 24 Through the officers’ investigative work after the bite, several revelations came to 25 light. 26 While Plaintiff was being bit, Timothy told Officer Torres that Plaintiff “broke both 27 33 28 At this point, Sergeant McCarthy is several feet outside the metal fence. Officer Preston is also standing just outside the fence. - 21 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 22 of 50 1 phones” by “finding them and throwing them.” In response to Plaintiff’s screaming while 2 Toby was on-bite, Timothy remarked, “oh see that’s what he is when he’s drunk. When 3 he’s sober he’s one of the nicest people on the fuckin planet.” 4 About six minutes after the bite, Yolanda told Officer Torres that Plaintiff did not 5 have a knife or make any threats that day. Officer Torres’s BWC footage shows the 6 following exchange: 7 Officer Torres: “At any point did he—did he make threats to you guys about killing 8 you or anything like that or hurting you?” 9 Yolanda: “No he—he says stupid stuff when he’s drunk. When he’s sober he’s the 10 nicest person in the world. ” 11 Officer Torres: “Nicest person. But he didn’t make threats or anything like that.” 12 Yolanda: “When he’s drunk he says stupid stuff and like um—” 13 Officer Torres: “But today did he say anything in particular?” 14 Yolanda: “Yeah I mean he said he was like going to beat me up and beat [Timothy] 15 up but he was just saying that—when I saw him with the ladder that’s when I told 16 him, he threw it at us so.” 17 Officer Torres: “Did he did he threaten you with a knife or anything like that?” 18 Yolanda: “No, not—not right now no. I don’t know why he said that he had a knife 19 because he didn’t have it. Not that I saw him. He came back he came back I think 20 he came back with a beer and went to his room. . . .” 21 Yolanda went on to explain that Timothy and Plaintiff were “both drunk” during the 22 argument. 23 Officer Torres then went to speak with the neighbor, Berry, who called 911. Berry 24 explained he was outside when Timothy appeared and stated that Plaintiff was “acting a 25 fool” and he “just threatened my ex-wife with a butcher knife and he took our phones and 26 broke them up so we couldn’t call 911. Could you please call for me?” As in the 911 call, 27 Berry explained that the entire family was outside when he went back inside. Berry did 28 not see any weapons or hear any threats, just arguing. - 22 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 23 of 50 1 Approximately six minutes after the dog bite, and while Plaintiff was receiving 2 medical attention, Officer Preston “beg[an] his investigation” with Timothy. Officer 3 Preston’s BWC footage shows the following exchange: 4 Officer Preston: “Alright so Tim, here’s what’s happening my man, so we got a 5 report of individuals fighting out in front of the house, okay? That report also the 6 person who called the report in also said that person had a knife.” 7 Timothy: “That was last night.” 8 Officer Preston: “That was last night? You’re sure it wasn’t tonight?” 9 Timothy: “No but today was he was throwing shit and breaking phones and 10 throwing ladders, trying to you know throw a ladder at me, threatening my ex-wife, 11 threating me, ‘I’m just going to kill you all.’ Because he was drunk.” 12 Officer Preston: “So, but, all of that happened today?” 13 Timothy: “Yeah.” 14 Plaintiff had two surgeries to repair the damage in his arm. (Doc. 76 at 57-58.) Plaintiff 15 also reported nerve damage that required physical therapy. (Id. at 58; see also Doc. 76 at 16 11.)34 17 DISCUSSION 18 I. Legal Standard 19 “The court shall grant summary judgment if [a] movant shows that there is no 20 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 21 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 22 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 23 34 Defendants appear to dispute some of Plaintiff’s evidence regarding his injuries and 24 surgeries. (Doc. 80 at 11-12 [“Plaintiff offers no facts regarding the force of Toby’s bite, and no medical evidence regarding causation as to further surgeries, or the seriousness, 25 complexity, or prognosis as to those surgeries. Indeed, although Plaintiff asserts severe injuries requiring two surgeries, he cites only to his own testimony and offers no medical 26 documentation. Although [Plaintiff] can testify from personal knowledge that he suffered a wound to his arm and that he later required surgeries, absent any medical records or 27 medical opinion evidence, his lay opinions or observations are insufficient to demonstrate the medical severity of the injuries.”].) These objections are unavailing—Plaintiff 28 obviously has personal knowledge of his own surgeries, and the photos in the summary judgment record (Doc. 76 at 104-05) depict gruesome injuries. - 23 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 24 of 50 1 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 2 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 3 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 4 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 5 improper where divergent ultimate inferences may reasonably be drawn from the 6 undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted). A 7 party moving for summary judgment “bears the initial responsibility of informing the 8 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 9 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 10 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 11 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 12 production, the moving party must either produce evidence negating an essential element 13 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 14 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 15 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). 16 If the movant fails to carry its initial burden of production, the nonmovant need not 17 produce anything. Id. at 1102-03. But if the movant meets its initial responsibility, the 18 burden then shifts to the nonmovant to produce evidence to support its claim or defense. 19 Id. at 1103. The nonmovant must “come forward with specific facts showing that there is 20 a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 21 U.S. 574, 587 (1986) (internal quotation marks and emphasis omitted); see Fed. R. Civ. P. 22 56(c)(1). There is no issue for trial unless enough evidence favors the non-moving party. 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely 24 colorable or is not significantly probative, summary judgment may be granted.” Id. at 249- 25 50 (citations omitted). At the same time, the evidence of the non-movant is “to be believed, 26 and all justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a 27 motion for summary judgment, the judge must view the evidence presented through the 28 prism of the substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary - 24 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 25 of 50 1 judgment inquiry as to whether a genuine issue exists will be whether the evidence 2 presented is such that a jury applying that evidentiary standard could reasonably find for 3 either the plaintiff or the defendant.” Id. at 255. 4 II. Officer Miller 5 Plaintiff asserts two theories of liability with respect to Officer Miller—first, that 6 Officer “Miller’s initial decision to sic the dog on [Plaintiff] without adequate warnings 7 was . . . unreasonable”; and second, that Officer “Miller . . . allowed Toby’s bite to continue 8 for an excessive period while aware that [Plaintiff] was unarmed and recoiling from the 9 pain.” (Doc. 76 at 21. See also Doc. 1 ¶ 37 [“Neither the use of the police dog nor the 10 duration of the use was objectively reasonable. As such, both the decision to use Toby and 11 the duration of the use of force were excessive.”].) In response, Defendants contend that 12 “[q]ualifed immunity is the defense here.” (Doc. 69 at 2.) 13 “Qualified immunity shields federal and state officials from money damages unless 14 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 15 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 16 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Thus, “[w]hen an officer asserts qualified 17 immunity as a defense, . . . [courts] first ask whether the facts taken in the light most 18 favorable to the plaintiff show that the officer’s conduct violated a constitutional right. If 19 so, [courts] then ask whether the right in question was clearly established at the time of the 20 officer’s actions, such that any reasonably well-trained officer would have known that his 21 conduct was unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) 22 (citation omitted). “Although [courts] must view the facts in the light most favorable to 23 the nonmoving party, when considering qualified immunity, [courts] are also limited to 24 considering what facts the officer could have known at the time of the incident.” Davis v. 25 United States, 854 F.3d 594, 598 (9th Cir. 2017). 26 When the defense of qualified immunity is raised in a § 1983 action involving a 27 claim of excessive force, the first prong of the qualified-immunity analysis requires an 28 assessment of whether the force used was “objectively reasonable,” which “is determined - 25 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 26 of 50 1 by an assessment of the totality of the circumstances.” Green v. City & Cnty. of San 2 Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014). See also Chew v. Gates, 27 F.3d 1432, 3 1440 (9th Cir. 1994) (“[W]e start from the fundamental premise that the use of force to 4 effect an arrest is subject to the Fourth Amendment’s prohibition on unreasonable 5 seizures.”). When evaluating the totality of the circumstances, courts must “balance the 6 ‘nature and quality of the intrusion’ against the ‘countervailing governmental interests at 7 stake.’” Green, 751 F.3d at 1049 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). 8 “To assess the gravity of the government interests, [courts] have typically considered 9 (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to 10 the safety of the officers or others, and (3) whether he is actively resisting arrest or 11 attempting to evade arrest by flight. Where these interests do not support a need for force, 12 any force used is constitutionally unreasonable.” Id. (citations and internal quotation marks 13 omitted). “Because this inquiry is inherently fact specific, the determination whether the 14 force used to effect an arrest was reasonable under the Fourth Amendment should only be 15 taken from the jury in rare cases.” Id. (citation and internal quotation marks omitted). 16 The reasonableness of the use of force “must be judged from the perspective of a 17 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 18 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact that 19 police officers are often forced to make split-second judgments—in circumstances that are 20 tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a 21 particular situation.” Id. at 396-97. “Where an officer’s particular use of force is based on 22 a mistake of fact, [courts consider] whether a reasonable officer would have or should have 23 accurately perceived that fact.” Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 24 2011). See also Estate of Strickland v. Nev. Cnty., 69 F.4th 614, 621 (9th Cir. 2023) 25 (granting qualified immunity to officers who fatally shot a suspect based on the mistaken 26 belief that the plastic replica gun he was holding was a real gun: “Officers can have 27 reasonable, but mistaken, beliefs as to the facts establishing the existence of an immediate 28 threat, and in those situations courts will not hold that they have violated the Constitution.”) - 26 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 27 of 50 1 (citation and internal quotation marks omitted). 2 For purposes of the second step’s “clearly established” inquiry, although there need 3 not be a “case directly on point,” “existing precedent must have placed the statutory or 4 constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. In other words, the case 5 law must “have been earlier developed in such a concrete and factually defined context to 6 make it obvious to all reasonable government actors, in the defendant’s place, that what he 7 is doing violates federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th 8 Cir. 2017). See also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (“This Court has 9 repeatedly told courts—and the Ninth Circuit in particular—not to define clearly 10 established law at a high level of generality.”) (internal quotation marks omitted); Sharp v. 11 Cnty. of Orange, 871 F.3d 901, 910-11 (9th Cir. 2017) (“The Supreme Court has repeatedly 12 instructed that we examine whether the violative nature of particular conduct is clearly 13 established by controlling precedent, not whether the conduct violates a general principle 14 of law. . . . Except in the rare case of an ‘obvious’ instance of constitutional misconduct 15 . . . , Plaintiffs must identify a case where an officer acting under similar circumstances 16 . . . was held to have violated the Fourth Amendment. In other words, Plaintiffs must point 17 to prior case law that articulates a constitutional rule specific enough to alert these 18 [defendants] in this case that their particular conduct was unlawful.”) (cleaned up). “[T]he 19 prior precedent must be ‘controlling’—from the Ninth Circuit or Supreme Court—or 20 otherwise be embraced by a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp, 21 871 F.3d at 911 (citation omitted). See also Tuuamalemalo v. Greene, 946 F.3d 471, 477 22 (9th Cir. 2019) (“The right must be settled law, meaning that it must be clearly established 23 by controlling authority or a robust consensus of cases of persuasive authority.”). 24 Additionally, “[o]nce the defense of qualified immunity is raised by the defendant, the 25 plaintiff bears the burden of showing that the rights allegedly violated were ‘clearly 26 established.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). See also Romero 27 v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of 28 proof that the right allegedly violated was clearly established at the time of the alleged - 27 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 28 of 50 1 misconduct.”).35 2 A. Theory One: Initial Decision To Deploy Toby 3 Although it “is often beneficial” to begin the qualified-immunity analysis by 4 addressing whether a statutory or constitutional right has been violated, district courts are 5 vested with discretion to determine “which of the two prongs of the qualified immunity 6 analysis should be addressed first in light of the circumstances in the particular case at 7 hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). See also Orn, 949 F.3d at 1174 8 (“We have the discretion to skip the first step in certain circumstances, as when the officer 9 is plainly entitled to prevail at the second step.”); Sjurset v. Button, 810 F.3d 609, 615 (9th 10 Cir. 2015) (“If indeed the [Defendants] did not violate clearly established law, then we can 11 determine that qualified immunity is appropriate and may thus dispose of the case without 12 undertaking an analysis of whether a constitutional violation occurred in the first 13 instance.”). 14 Here, the Court begins with the second prong when analyzing Plaintiff’s first theory 15 of liability as to Officer Miller—specifically, that Officer “Miller’s initial decision to sic 16 the dog on [Plaintiff] without adequate warnings was . . . unreasonable.” (Doc. 76 at 21.) 17 Plaintiff identifies the following cases as supplying the clearly established law supporting 18 that theory: (1) Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994); (2) Chew v. Gates, 27 19 F.3d 1432 (9th Cir. 1994); and (3) Penaloza v. City of Rialto, 836 F. App’x 547 (9th Cir. 20 2020). (Id. at 21-23.) Defendants respond that these cases do not suffice for qualified- 21 immunity purposes. (Doc. 80 at 5, 11. See also Doc. 69 at 16-17 [summarizing Chew].) 22 The Court agrees with Defendants—Plaintiff’s cited cases do not supply the sort of 23 35 24 Although LSO and Romero place the burden on the plaintiff, other Ninth Circuit opinions hold that “[q]ualified immunity is an affirmative defense that the government has 25 the burden of pleading and proving.” Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017). These opinions are difficult to reconcile. See generally Slater v. Deasey, 943 F.3d 898, 26 909 (9th Cir. 2019) (Collins, J., dissenting from denial of rehearing en banc) (“The panel committed . . . error in suggesting that Defendants bear the burden of proof on the disputed 27 qualified-immunity issues presented in this appeal . . . . [T]he applicable—and well- settled—rule [in the Ninth Circuit] is that the plaintiff bears the burden of proof that the 28 right allegedly violated was clearly established at the time of the alleged misconduct.”) (cleaned up). - 28 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 29 of 50 1 clearly established law that is necessary to overcome Officer Miller’s claim of qualified 2 immunity as to Plaintiff’s first theory of liability. In Mendoza, the plaintiff “robbed a bank 3 in Hacienda Heights, California. He fled first in his car, then abandoned the car and fled 4 on foot. He ran about a half-mile, then crawled under some bushes on private property and 5 hid.” 27 F.3d at 1358. After several hours, a helicopter appeared and made “at least 6 twenty” announcements that Mendoza “was surrounded and that a dog might be deployed.” 7 Id. Mendoza, however, contended that he did not hear those announcements. Id. The dog 8 eventually found Mendoza, who “covered his face with his hands.” Id. Mendoza and the 9 officers provided dramatically different accounts of what happened next. Id. at 1358-59. 10 Mendoza asserted that “the dog bit down on his right arm and pulled him out of the bushes,” 11 that “no one spoke to him prior to the bite,” and that once he was out of the bushes, “the 12 deputy handling the dog put a gun to his head” and after he was handcuffed, “the dog 13 switched its bite to his other side, wounding him again.” Id. at 1358. Meanwhile, the 14 officers asserted that Mendoza “struggled with the dog” and eventually “broke loose” and 15 then disregarded an “order[] to stop struggling and place his hands behind his back for 16 handcuffing” and instead “resisted[] and even swung an arm at one of the deputies.” Id. at 17 1358-59. By agreement of the parties, the district court held an evidentiary hearing to 18 resolve the factual disputes. Id. at 1359.36 The district court resolved most of the factual 19 disputes in the officers’ favor and then ruled that they were entitled to qualified immunity. 20 Id. at 1362-63. 21 On appeal, “Mendoza argue[d] that the use of a police dog in this case constituted 22 excessive force.” Id. at 1361. In reviewing the district court’s decision, the Ninth Circuit 23 held that “the deputies’ use of the police dog is subject to excessive force analysis, and that 24 this law is clearly established for purposes of determining whether the officers have 25 qualified immunity.” Id. at 1362. The court further remarked: 26 27 36 As Plaintiff points out, this is a unique procedural posture. (Doc. 76 at 19 [“An 28 important procedural distinction of Mendoza is that the court resolved disputed questions of fact prior to making the qualified immunity determination.”].) - 29 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 30 of 50 1 We do not believe that a more particularized expression of the law is necessary for law enforcement officials using police dogs to understand that 2 under some circumstances the use of such a “weapon” might become unlawful. For example, no particularized case law is necessary for a deputy 3 to know that excessive force has been used when a deputy sics a canine on a handcuffed arrestee who has fully surrendered and is completely under 4 control. An officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict 5 injury. 6 Id. Nevertheless, the court affirmed the district court’s grant of qualified immunity to the 7 officers, holding as follows: “Mendoza was fleeing arrest for a bank robbery, a felony. The 8 deputies believed he was armed, due to radio broadcasts from headquarters. Mendoza did 9 not surrender when warned that he would be bitten if he did not come out of the bushes. 10 He was hiding on private property and the deputies could reasonably have believed he 11 posed a danger not only to themselves but also to the property owners. He had not been 12 subdued when the dog bit him the second time. In fact, once he was out of the bushes, he 13 struggled with the dog, causing the dog to shift its bite. Using a police dog to find 14 Mendoza, and to secure him until he stopped struggling and was handcuffed, was 15 objectively reasonable under these circumstances.” Id. at 1362-63. 16 Mendoza does not provide the sort of clearly established law that would have 17 imparted notice to Officer Miller that his initial decision to deploy Toby was 18 unconstitutional. As an initial matter, Mendoza holds that it is objectively reasonable for 19 an officer to use a canine to apprehend an individual who is suspected of having just 20 committed a felony, flees from the police following the commission of the suspected crime, 21 is believed to be armed, is hiding on private property, and has failed to heed warnings to 22 surrender. These are, from Defendants’ perspective, the exact same factual circumstances 23 that Officer Miller encountered. 24 But the issue here isn’t whether Officer Miller is entitled to summary judgment 25 under Mendoza based on the first prong of the qualified-immunity analysis. Indeed, due 26 to the procedural posture of this case, some of the factual disputes that were resolved in the 27 officers’ favor in Mendoza (such as whether the plaintiff heard the warnings) remain 28 unresolved and must be resolved in Plaintiff’s favor. Instead, the issue is whether Mendoza - 30 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 31 of 50 1 clearly establishes, for purposes of the second prong of the qualified-immunity analysis, 2 that Officer Miller’s initial decision to deploy Toby would have been unconstitutional 3 under Plaintiff’s version of the disputed facts. The answer to this question is no. Mendoza 4 did not suggest, much less hold, that the officers’ deployment of the canine in that case 5 would have been unconstitutional if any of the disputed facts that had been resolved in the 6 officers’ favor during the evidentiary hearing had instead been resolved in the plaintiff’s 7 favor. In fact, the only concrete example provided in Mendoza of a scenario where the 8 deployment of a canine would be unconstitutional is “when a deputy sics a canine on a 9 handcuffed arrestee who has fully surrendered and is completely under control.” 27 F.3d 10 at 1362. But those are not the facts here—Plaintiff does not contend that he was already 11 handcuffed, fully surrendered, and completely under control when Officer Miller decided 12 to release Toby. It follows that Mendoza is insufficient to overcome Officer Miller’s 13 invocation of qualified immunity as to Plaintiff’s first theory of liability. Cf. Hernandez v. 14 Town of Gilbert, 989 F.3d 739, 745 (9th Cir. 2021) (affirming grant of qualified immunity 15 to canine officer accused of excessive force, where the plaintiff proffered Mendoza as the 16 clearly established law supporting his position, because Mendoza “does not address the 17 ‘specific context’ of this case” and involved “dissimilar” facts). In a related vein, although 18 Mendoza also suggested that the deployment of a canine might be unconstitutional in 19 “some” unarticulated other “circumstances,” 27 F.3d at 1362, the Ninth Circuit and 20 Supreme Court have repeatedly emphasized that these sorts of amorphous pronouncements 21 are insufficient to impart the sort of clear notice that is necessary to overcome a claim of 22 qualified immunity. Kisela, 138 S. Ct. at 1152 (“This Court has repeatedly told courts— 23 and the Ninth Circuit in particular—not to define clearly established law at a high level of 24 generality.”). 25 Next, in Chew, the relevant facts there were that “an officer of the Los Angeles 26 Police Department stopped [Chew] for a traffic violation . . . [and] Chew subsequently fled 27 from the officer on foot and hid in a scrapyard. The officer had not searched him for 28 weapons. Upon discovering that there were three outstanding warrants for his arrest, the - 31 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 32 of 50 1 officer radioed for assistance. A police perimeter was set up around the scrapyard, and a 2 helicopter and canine units were called in to search for Chew. Officer Bunch . . . unleashed 3 [police dog] Volker and, approximately two hours after Chew had fled to the yard, Volker 4 found him crouching between two metal bins. . . . [A]s soon as [Chew] became aware of 5 Volker’s presence, he attempted to surrender and yelled to the police to call off the dog 6 . . . [but] Officer Bunch did not immediately accede to Chew’s request, . . . Volker bit Chew 7 several times and then seized him, and . . . Chew sustained severe lacerations to his left 8 side and left forearm. Chew . . . did not offer resistance at any time after he spotted the 9 dog and repeatedly begged the officers to restrain his dog, but that Bunch instead ordered 10 Volker to attack.” 27 F.3d at 1436. One of Chew’s claims in the subsequent § 1983 action 11 was a Monell claim against the City of Los Angeles, premised on the theory that Officer 12 Bunch had been acting pursuant to a municipal policy governing the use of police dogs to 13 seize fleeing or hiding suspects. Id. at 1439. The district court granted summary judgment 14 to the City on this claim but the Ninth Circuit reversed, holding (as relevant here) that 15 Officer Bunch’s decision to release Volker would have been unconstitutional under Chew’s 16 version of the disputed facts because, inter alia, the manner in which the police dog was 17 deployed meant that the dog “would almost necessarily be out of sight of its handler, and 18 hence beyond the reach of a countermanding order, if and when he came upon Chew”; 19 “[t]he record does not reveal an articulable basis for believing that Chew was armed or that 20 he posed an immediate threat to anyone’s safety”; and “[t]his was not an occasion on which 21 the police were forced to make ‘split-second judgments’ in circumstances that were 22 ‘rapidly evolving,’” as “Chew was trapped in the scrapyard for two uneventful hours before 23 Volker bit and mauled him.” Id. at 1440-43. 24 Although Chew presents a closer call than Mendoza, it is still too factually dissimilar 25 to have imparted notice to Officer Miller that deploying Toby under the specific 26 circumstances of this case would be unconstitutional. Here, unlike in Chew, Officer Miller 27 did not lose sight and control of Toby, had reason to believe at the moment of deployment 28 that Plaintiff was armed with a knife and had just made threats toward others with the knife, - 32 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 33 of 50 1 and completed the entire location and seizure sequence in less than 10 minutes after he 2 arrived at the property. Because Chew does not hold that it would be unconstitutional to 3 deploy a canine against a suspect in those circumstances, Chew is insufficient to overcome 4 Officer Miller’s claim of qualified immunity as to his initial decision to deploy Toby. 5 Shafer, 868 F.3d at 1117 (the earlier case must arise from “such a concrete and factually 6 defined context to make it obvious to all reasonable government actors, in the defendant’s 7 place, that what he is doing violates federal law”); Sharp, 871 F.3d at 910-11 (“Plaintiffs 8 must identify a case where an officer acting under similar circumstances . . . was held to 9 have violated the Fourth Amendment. In other words, Plaintiffs must point to prior case 10 law that articulates a constitutional rule specific enough to alert these [defendants] in this 11 case that their particular conduct was unlawful.”) (cleaned up). 12 Before turning to Plaintiff’s final cited case, it is important to underscore one of the 13 facts discussed above—Officer Miller’s initial belief that Plaintiff was armed with a 14 knife—that distinguishes this case from Chew and makes it closer to Mendoza. Although 15 it turns out that Plaintiff wasn’t armed with a knife, the undisputed evidence establishes 16 that Officer Miller reasonably believed this to be true at the time he made the initial 17 decision to deploy Toby. Officer Miller avowed to this point in his affidavit (Doc. 69-1 at 18 33-36 ¶¶ 24, 35, 41); it is undisputed that Officer Miller was told by the 911 dispatcher that 19 Plaintiff was believed to be armed with a knife (id. at 11); the BWC footage shows that 20 Timothy and Yolanda did not initially correct the officers when they suggested (as the 911 21 dispatcher had told them) that Plaintiff was armed with a knife; and Officer Miller’s BWC 22 footage shows that Plaintiff was not in his line of sight—and, thus, he could not have 23 learned that his belief about Plaintiff being armed with a knife was mistaken—during the 24 brief period of time after Corporal Cummings opened the shed but before Officer Miller 25 deployed Toby. Tellingly, Plaintiff seems to concede in his summary judgment papers that 26 Officer Miller did not become aware of the absence of a knife until, at a minimum, just 27 after Officer Miller deployed Toby. (Doc. 76 at 7 [“As [Plaintiff] was pulled from the shed 28 with the dog attached to his left arm, it was apparent that [Plaintiff] was unarmed and that - 33 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 34 of 50 1 the shed was empty.”].) Accordingly, it is irrelevant—at least for purposes of the § 1983 2 claim based on the initial decision to deploy Toby—that Officer Miller’s belief about 3 Plaintiff being armed with a knife turned out to be wrong. Kingsley v. Hendrickson, 576 4 U.S. 389, 399 (2015) (“[A] court must judge the reasonableness of the force used from the 5 perspective and with the knowledge of the defendant officer.”). See also Estate of 6 Strickland, 69 F.4th at 621 (granting qualified immunity despite officer’s mistake of fact).37 7 In Penaloza, Plaintiff’s final cited case, Officer Zirkle attempted to pull over a car 8 for an expired registration, prompting the driver to flee. 836 F. App’x at 549. After the 9 driver stopped, one of the passengers (Goode) got out of the car and knelt on the ground. 10 Id. According to the evidence presented at summary judgment, Officer Zirkle then 11 “intentionally pushed [police dog] Boda toward” Goode, even though Goode “posed no 12 threat to officers and . . . was not fleeing or resisting arrest,” causing Boda to bite Goode 13 for 28 seconds. Id. Under those facts, the district court denied Officer Zirkle’s request for 14 qualified immunity and the Ninth Circuit affirmed. Id. But putting aside the fact that it is 15 questionable whether a December 2020 unpublished decision could serve as clearly 16 established law in this case, which addresses an incident that occurred in October 2019, 17 Penaloza is obviously distinguishable because it involved an unarmed plaintiff who was 18 not fleeing and was apparently not even suspected of committing a crime. 19 Finally, during oral argument, Plaintiff also argued that releasing Toby without 20 warning qualifies as one of the rare situations where conduct is so plainly unconstitutional 21 that it is unnecessary to identify an earlier case finding a constitutional violation under 22 similar circumstances. The Court disagrees. To start, those situations should be “rare” and 23 “obvious.” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (“Of course, there can be the rare 24 ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even 25 37 For similar reasons, it is irrelevant that Yolanda and Timothy later told Officer 26 Torres, during separate conversations, that Plaintiff was not armed with a knife. It is undisputed that Officer Torres did not relay this information to Officer Miller before the 27 deployment. (Doc. 76 at 9 [Plaintiff’s summary judgment brief: “At no point prior to the bite did Torres report to the other officers the statements by Timothy and Yolanda that 28 [Plaintiff] did not have a knife and that [Plaintiff] had not threatened Yolanda with a knife.”].) - 34 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 35 of 50 1 though existing precedent does not address similar circumstances.”) (citations omitted). 2 The facts of this case are not so egregious as to constitute an “obvious” constitutional 3 violation. Sharp, 871 F.3d at 912 (“But this obviousness principle, an exception to the 4 specific-case requirement, is especially problematic in the Fourth-Amendment context. 5 When a violation is obvious enough to override the necessity of a specific factual analogue, 6 we mean to say that it is almost always wrong for an officer in those circumstances to act 7 as he did. But that kind of categorical statement is particularly hard to make when officers 8 encounter suspects every day in never-before-seen ways. There are countless 9 confrontations involving officers that yield endless permutations of outcomes and 10 responses. So the obviousness principle has real limits when it comes to the Fourth 11 Amendment.”). 12 For these reasons, Officer Miller is entitled to summary judgment as to any § 1983 13 claim premised on his initial decision to deploy Toby. Even assuming, as Plaintiff 14 contends, that Officer Miller violated SOP 3010 by providing a verbal warning (which 15 Plaintiff contends he did not hear) instead of using the patrol vehicle’s public address 16 system to provide the warning, no case clearly established in October 2019 that it was 17 unconstitutional to deploy a canine under the factual circumstances that Officer Miller 18 confronted. This conclusion, to be clear, is not tantamount to approval of the decision to 19 deploy Toby under those circumstances. Cf. Manriquez v. Ensley, 46 F.4th 1124, 1129-31 20 (9th Cir. 2022) (reversing denial of qualified immunity, even though the officers were 21 found to have violated the Fourth Amendment during the first step of the qualified- 22 immunity analysis, because “the facts [of the earlier decision establishing the constitutional 23 violation] are distinguishable such that it could not have given clear notice to any 24 reasonable officer that a search here would have been unconstitutional”). 25 B. Theory Two: Duration And Encouragement 26 As for Plaintiff’s second theory of liability—which, again, is that Officer “Miller 27 . . . allowed Toby’s bite to continue for an excessive period while aware that [Plaintiff] was 28 unarmed and recoiling from the pain” (Doc. 76 at 21)—the Court will exercise its discretion - 35 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 36 of 50 1 to begin with the first prong of the qualified-immunity analysis, which addresses whether 2 a constitutional violation occurred. 3 1. Constitutional Violation 4 The Ninth Circuit’s decision in Watkins v. City of Oakland, Cal., 145 F.3d 1087 (9th 5 Cir. 1998), helps frame the analysis as to Plaintiff’s second theory of liability. In Watkins, 6 a canine officer, Officer Chew, responded to a silent alarm at a commercial warehouse. Id. 7 at 1090. A person had been seen “running within the building” but there was “no evidence 8 as to whether the person was armed.” Id. Before releasing the dog, Officer Chew made 9 two announcements to surrender. Id. Watkins did not surrender and claimed that “he did 10 not hear the announcement.” Id. The dog, Nero, was then let off the lead to search, 11 eventually found Watkins, “who was hiding in a car,” and bit him. Id. “Upon arriving at 12 the scene, Officer Chew did not call Nero off of Watkins; instead, he ordered Watkins to 13 show his hands. Watkins, who was recoiling from the dog’s bite, failed to comply. Officer 14 Chew then pulled Watkins out of the car onto the ground. Nero continued to bite until 15 Watkins complied with Officer Chew’s orders to show his hands,” which took about 30 16 seconds in total. Id. In the resulting § 1983 action, one of Watkins’s theories of liability 17 was that the “duration and extent of force applied in effecting arrest after the officers caught 18 up with [the dog] amounted to an unconstitutional application of force.” Id. at 1093 (citing 19 Mendoza, 27 F.3d at 1362). As to that theory, the district court denied Officer Chew’s 20 request for qualified immunity and the Ninth Circuit affirmed, holding that it was “clearly 21 established that excessive duration of the bite and improper encouragement of a 22 continuation of the attack by officers could constitute excessive force that would be a 23 constitutional violation.” Id. Here, Plaintiff asserts the same sort of “duration and 24 encouragement” theory of liability that was validated in Watkins. (Doc. 76 at 10 [“[T]he 25 duration of the bite violated [Plaintiff’s] Fourth Amendment Right to be free from the use 26 of excessive force.”].) 27 With this backdrop in mind, the Court turns to the parties’ arguments regarding 28 whether Plaintiff has presented sufficient evidence to survive summary judgment on such - 36 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 37 of 50 1 a claim. Invoking the Graham factors, Defendants argue that Officer Miller used 2 objectively reasonable force under the circumstances because (1) Plaintiff was suspected 3 of committing a serious felony crime (aggravated assault) in a domestic setting; (2) Plaintiff 4 “posed an immediate threat to the safety [of] the pursuing Officers and to neighbors [who] 5 might have encountered [Plaintiff] on his flight”; and (3) Plaintiff engaged in active 6 resistance, including fleeing to a shed after the officers arrived, and failed to heed various 7 warnings. (Doc. 69 at 13-18.) In response, Plaintiff contends that the Graham factors 8 compel a finding of excessive force because (1) it was a severe use of force to leave Toby 9 “on the bite for 40 seconds, though it was readily apparent to the officers that [Plaintiff] 10 was unarmed and under Toby’s control”; (2) Officer “Miller’s failure to speak with, or 11 otherwise acquire information from, the reported victim prior to the use of a police dog to 12 apprehend [Plaintiff] was not the conduct of a reasonable officer”; (3) any arguments 13 premised on the warnings given to Plaintiff “rest[] on the faulty premise that [Plaintiff] had 14 heard any of the announcements or commands and was intentionally lying in wait, so to 15 speak”; and (4) “[o]n the facts favorable to [Plaintiff], no reasonable officer would have 16 perceived [Plaintiff] to pose an immediate threat to the safety of the officers or to others so 17 as to justify the release of Toby into the shed without warning.” (Doc. 76 at 11-13.) As 18 for the duration of the bite, specifically, Plaintiff contends that “[i]t was apparent to 19 [Officer] Miller that [Plaintiff] was unarmed and that the shed was empty as soon as the 20 shed door was opened and seconds into the bite.” (Id. at 13.) Finally, Plaintiff contends 21 that “[v]iewing the video evidence in the light most favorable to [Plaintiff], no reasonable 22 officer would have perceived [Plaintiff’s] grab of the leash as a safety threat to Toby or as 23 anything more than [Plaintiff] recoiling and attempting to relieve the pain.” (Id. at 14.) 24 a. Nature And Quality Of Intrusion 25 As noted, Graham requires courts to “balance the ‘nature and quality of the 26 intrusion’ against the ‘countervailing governmental interests at stake.’” Green, 751 F.3d 27 at 1049 (quoting Graham, 490 U.S. at 396). Here, Toby bit Plaintiff on the arm, dragged 28 Plaintiff from the shed, and continued the bite for approximately 41 seconds (composed of - 37 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 38 of 50 1 27 second before Officer Miller gave the command for Officer White to stop the bite, then 2 another 14 seconds before Officer White was able to remove Toby), causing Plaintiff to 3 suffer severe injuries that eventually required two surgeries. The quantum of force was 4 therefore severe and presents a significant intrusion. See, e.g., Miller v. Clark Cnty., 340 5 F.3d 959, 964 (9th Cir. 2003) (“Although the police dog was trained to bite and hold a 6 suspect’s arm or leg, not to maul a suspect, Deputy Bylsma permitted the dog to bite and 7 hold Miller for an unusually long time period [45 to 60 seconds], an action that might cause 8 a suspect pain and bodily injury. . . . We conclude that the intrusion on Miller’s Fourth 9 Amendment interests was a serious one.”); Chew, 27 F.3d at 1441 (“By all accounts, the 10 force used to arrest Chew was severe. Chew was apprehended by a German Shepherd 11 taught to seize suspects by biting hard and holding.”); Smith v. City of Hemet, 394 F.3d 12 689, 701-02 (9th Cir. 2005) (“By even the defendants’ account, the force used against 13 Smith was severe. The Hemet Police Department’s use of force policy, General Order U- 14 102, classifies the use of . . . a police service dog as ‘intermediate’ force . . . [which] is the 15 most severe force authorized short of deadly force.”). 16 b. Governmental Interests 17 As noted, “[t]o assess the gravity of the government interests, [courts] have typically 18 considered (1) the severity of the crime at issue, (2) whether the suspect poses an 19 immediate threat to the safety of the officers or others, and (3) whether he is actively 20 resisting arrest or attempting to evade arrest by flight.” Green, 751 F.3d at 1049. 21 i. Severity Of Crime 22 The first factor, the severity of the crime at issue, weighs in favor of Officer Miller. 23 Plaintiff was suspected of committing aggravated assault, a felony, in a volatile domestic 24 setting. Although Officer Miller and the other officers learned at some point after the 25 apprehension (and one of them, Officer Torres, learned before the apprehension) that the 26 reports concerning the aggravated assault were mistaken, all that matters for constitutional 27 purposes is what Officer Miller reasonably understood at the time of the challenged 28 conduct. Kingsley, 576 U.S. at 399. Therefore, Officer Miller had a strong interest in using - 38 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 39 of 50 1 force to apprehend and arrest Plaintiff. Miller, 340 F.3d at 964 (“The government has an 2 undeniable legitimate interest in apprehending criminal suspects, and that interest is even 3 stronger when the criminal is, like Miller, suspected of a felony, which is by definition a 4 crime deemed serious by the state. This factor strongly favors the government.”); Oakry 5 v. City of Tempe, 2022 WL 4367606, *6 (D. Ariz. 2022) (“There is no dispute that Plaintiff 6 was identified as the perpetrator in an assault. Although the crime was only charged as a 7 misdemeanor, the crime at issue was nonetheless a serious offense characterized by 8 violence, thereby supporting that the force used was reasonable.”). 9 ii. Immediate Threat To Officers Or Others 10 The “most important” factor is whether Plaintiff posed an immediate threat to the 11 safety of the officers or others. Mattos v. Agarano, 661 F.3d 433, 449 (9th Cir. 2011) 12 (quotations omitted). “A simple statement by an officer that he fears for his safety or the 13 safety of others is not enough; there must be objective factors to justify such a concern.” 14 Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (citation omitted). 15 Unfortunately, Defendants’ briefing on this topic focuses almost exclusively on the 16 threat that Plaintiff posed before Officer Miller deployed Toby. This approach is unhelpful 17 because, as noted, Plaintiff’s second theory of liability is a Watkins-style “duration and 18 encouragement” claim, which focuses on the reasonableness and necessity of continued 19 force after the bite began. On that topic, Defendants’ only fleeting argument is that 20 continued force was necessary because “after being bitten [Plaintiff] refuse[d] commands 21 to give up his arms and instead [attempted to] fight Toby by grabbing his leash.” (Doc. 69 22 at 18.)38 23 This argument is unpersuasive. Even assuming, as Defendants contend, that Officer 24 Miller’s initial decision to deploy Toby was justified by the immediate threat of harm that 25 Plaintiff posed as he was hiding in the shed, it doesn’t necessarily follow that Officer 26 38 Similarly, in the portion of their reply addressing the Graham factors, Defendants 27 focus exclusively (or nearly exclusively) on the initial decision to deploy Toby and fail to specifically address Plaintiff’s “duration and encouragement” theory. (Doc. 80 at 11-13 28 [questioning whether the intrusion was severe, then discussing why the officers had a strong interest in “finding and controlling” Plaintiff].) - 39 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 40 of 50 1 Miller’s decision to allow Toby to continue biting Plaintiff for approximately 27 seconds 2 before giving the stop command to Officer White—as Plaintiff was being dragged out of 3 the shed (which was quickly revealed to be empty), screaming in pain, with no weapons 4 visible—was also justified. 5 To that end, the BWC footage shows that as soon as the shed doors opened, it 6 became obvious that Plaintiff was in an empty shed and had nothing in his hands. As 7 discussed in footnote 30, although Defendants assert in their reply brief (and reasserted 8 during oral argument) that Officer Miller continued to believe Plaintiff was armed with a 9 knife during this portion of the encounter (because he may have been hiding the knife in 10 his waistband), this is an unsupported assertion that need not be credited for summary 11 judgment purposes. See Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be 12 . . . genuinely disputed must support the assertion by . . . citing to particular parts of 13 materials in the record, including depositions, documents, electronically stored 14 information, affidavits or declarations, stipulations (including those made for purposes of 15 the motion only), admissions, interrogatory answers, or other materials.”). 16 Accordingly, a reasonable juror could find that Plaintiff did not pose an immediate 17 threat to the officers during most of (let alone the entirety of) the lengthy bite sequence. 18 iii. Evading And Resisting Arrest 19 The final factor favors Plaintiff for the same reasons. To be clear, it is undisputed 20 that Plaintiff initially ran from the police and sought to evade arrest. (Doc. 76 at 51 [Q: 21 “[W]as one of your other purposes to avoid being arrested if possible?” A: “Yes. 22 Definitely.”].) However, the fact remains that Plaintiff stayed on the property—his 23 residence—and hid inside an empty shed. Viewing the BWC footage in the light most 24 favorable to Plaintiff, he did not run from the police or fight back once Corporal Cummings 25 opened the shed door. Getzen v. Yavapai Cnty., 2021 WL 3934668, *6 (D. Ariz. 2021), 26 aff’d sub nom. Getzen v. Long, 2023 WL 118743 (9th Cir. 2023) (“Even if Plaintiff had 27 fled the apartment, the Ninth Circuit has found that when a suspect flees, but then hides, 28 the suspect’s flight has terminated, at least temporarily.”) (citing Chew, 27 F.3d at 1442). - 40 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 41 of 50 1 More important for purposes of Plaintiff’s second theory of liability, Plaintiff did 2 not—when viewing the evidence in the light most favorable to him—resist once Toby bit 3 him. Although it is true, as noted in Officer Miller’s affidavit, that Plaintiff did not 4 immediately “present[] his hands and arms to Officers” during the bite sequence and 5 instead “grabb[ed] Toby’s 15’ lead” and then failed to comply with verbal commands to 6 let go of the lead (Doc. 69-1 ¶¶ 43-45), a reasonable juror could conclude upon watching 7 the video that these were not attempts to resist arrest but efforts to engage in self-protection. 8 Cf. Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1106 (D. Or. 2013) (“Turning to 9 the third Graham factor, Aranda’s failure to place his arms behind his back was not 10 necessarily what the Supreme Court meant by ‘actively resisting arrest or attempting to 11 evade arrest by flight.’ Viewing the evidence in the light most favorable to Aranda, a jury 12 could find that Aranda’s noncompliance was not active resistance to arrest as much as an 13 instinctive effort to protect himself from injury. In other excessive force cases, the Ninth 14 Circuit has limited the resistance/flight factor to more aggressive or sustained efforts to 15 elude custody.”) (citations omitted). The BWC footage, which is difficult to watch, depicts 16 Plaintiff howling in pain throughout the encounter as a canine is latched onto his arm and 17 actively inflicting wounds (which, according to Plaintiff’s evidence, were serious and 18 required multiple surgeries). Although Plaintiff did not submit a declaration or deposition 19 testimony explaining why he grabbed Toby’s lead, the Court disagrees with Defendants’ 20 contention during oral argument that this means the fact of Plaintiff’s resistance to arrest 21 must be taken as undisputed. To the extent Defendants attempted, through their submission 22 of affidavits and other evidence, to establish that Plaintiff resisted arrest, Plaintiff 23 successfully created a dispute of fact on that issue by proffering the BWC footage, which 24 a reasonable juror could interpret as contradicting Defendants’ resisting-arrest evidence. 25 See Fed. R. Civ. P. 56(c)(1). Thus, Plaintiff’s argument that he merely grabbed Toby’s 26 lead in an attempt to relieve the pressure on his arm (Doc. 76 at 8, 11, 13-14) is not an 27 unsupported argument of counsel that must be ignored at summary judgment—instead, it 28 is a permissible argument based on the evidence. - 41 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 42 of 50 1 c. Additional Factors 2 The Court next considers “whether there were less intrusive means of force that 3 might have been used.” Lowry v. City of San Diego, 858 F.3d 1248, 1259 (9th Cir. 2017). 4 In the context of Plaintiff’s second theory of liability—which, again, focuses not on 5 the initial decision to release Toby, but on the duration and encouragement of the bite— 6 this factor requires consideration of the point at which Defendants had control over Plaintiff 7 such that Toby could have been removed. Plaintiff was outnumbered four-to-one by police 8 officers, was lying face-down on the ground, had nothing in his hands, and was crying and 9 screaming from the pain of the dog bite. A reasonable juror could find that Officer Miller 10 could have removed Toby earlier. Cf. Watkins, 145 F.3d at 1090 (“Watkins explained that 11 he did not show his hands because he was resisting the dog and recoiling from the pain of 12 Nero’s attack. Watkins further claims that Officer Chew continued to allow Nero to bite 13 him even though he was obviously helpless and surrounded by police officers with their 14 guns drawn.”). 15 At oral argument, Defendants challenged whether there is a genuine dispute as to 16 the point at which Plaintiff could be seen as under Defendants’ control. Plaintiff, in 17 response, noted that when Officer Miller was asked during his deposition, “When Toby 18 had [Plaintiff’s] arm, did Toby have control of [Plaintiff]?”, Officer Miller responded, 19 “Yes.” (Doc. 76 at 92.) Viewing the BWC footage, in combination with Officer Miller’s 20 deposition testimony, in the light most favorable to Plaintiff, a reasonable juror could find 21 that Plaintiff was under the Defendants’ control well before Officer Miller gave the 22 command for Officer White to remove Toby from the bite. 23 d. Objective Reasonableness 24 For these reasons, material disputes of fact preclude the entry of summary judgment 25 in favor of Officer Miller under the first prong of the qualified-immunity analysis. Viewing 26 the facts in the light most favorable to Plaintiff, it is for a jury to decide whether Officer 27 Miller’s conduct in relation to the duration and encouragement of the bite was reasonable 28 under the circumstances. - 42 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 43 of 50 1 2. Clearly Established Law 2 As for the second prong of the qualified-immunity analysis concerning his “duration 3 and encouragement” claim, Plaintiff argues that Mendoza and Watkins “provide the 4 binding precedent that put Miller on notice that his conduct was a clear violation of 5 [Plaintiff’s] constitutional rights.” (Doc. 76 at 20-23.) Defendants respond that Mendoza 6 and Watkins are insufficient because they involved facts that are “simply ‘analogous’” to 7 the facts here and argue that relying on such cases would result in “the very same error for 8 which the Ninth Circuit was summarily reversed.” (Doc 80 at 5.) Defendants also argue 9 that Watkins is factually distinguishable because “the officer relinquished control of his 10 canine completely, and then when he came up to the location of the canine biting the 11 suspect, he allowed the canine to continue biting under circumstances where he could 12 plainly see the suspect was unarmed and of no threat.” (Id. at 6.) 13 For the reasons already discussed, Mendoza is of no assistance to Plaintiff when it 14 comes to the second prong of the qualified-immunity analysis. Although Mendoza clearly 15 establishes that it is unconstitutional to “sic[] a canine on a handcuffed arrestee who has 16 fully surrendered and is completely under control,” 27 F.3d at 1362, those are not the facts 17 of this case—Plaintiff was not handcuffed, fully surrendered, and in complete control 18 during the bite sequence. 19 This leaves Watkins. In the Court’s estimation, Watkins goes significantly further 20 than Mendoza in clearly establishing the constitutional limits on the continuation of dog 21 bites because the plaintiff in Watkins was not handcuffed, fully surrendered, and in 22 complete control during the dog-bite sequence, yet the Ninth Circuit still held that the 23 officer’s conduct violated clearly established law. More specifically: 24 Upon arriving at the scene, Officer Chew did not call [police dog] Nero off of Watkins [upon observing the bite]; instead, he ordered Watkins to show 25 his hands. Watkins, who was recoiling from the dog’s bite, failed to comply. 26 Officer Chew then pulled Watkins out of the car onto the ground. Nero continued to bite until Watkins complied with Officer Chew’s orders to show 27 his hands. Officer Chew . . . testified that ten to fifteen seconds elapsed 28 between the time Officer Chew ordered Watkins to show his hands and the time Watkins complied with that order. The officers both agree that Nero - 43 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 44 of 50 1 continued to bite Watkins throughout that period. . . . [and] Officer Chew 2 [later] stated that the time period was about thirty seconds. Officer Chew justified his delay in calling off Nero because Watkins, while resisting the 3 dog, failed to show his hands to prove that he was unarmed. Watkins explained that he did not show his hands because he was resisting the dog 4 and recoiling from the pain of Nero’s attack. Watkins further claims that 5 Officer Chew continued to allow Nero to bite him even though he was obviously helpless and surrounded by police officers with their guns drawn. 6 7 Id. at 1090. 8 These are, in substance, the same facts at issue here (at least when the facts are 9 construed in the light most favorable to Plaintiff). Like Officer Chew in Watkins, Officer 10 Miller did not call off Toby after becoming aware that Toby was engaged in the bite but 11 instead ordered Plaintiff to show his hands. Like the plaintiff in Watkins, Plaintiff was 12 unable to comply with this command because of the bite. And as in Watkins, Plaintiff was 13 helpless and surrounded by other armed officers—Corporal Cummings drew but did not 14 deploy his taser—during the bite sequence (which lasted for 41 seconds, which is 11 15 seconds longer than in Watkins, and which was approximately the same length as the 16 sequence in Watkins even if limited to the 27-second period before Officer Miller gave the 17 verbal command to Officer White to remove Toby). The Court recognizes that the second 18 prong of the qualified-immunity analysis creates a high bar, under which the plaintiff must 19 identify “a case where an officer acting under similar circumstances . . . was held to have 20 violated the Fourth Amendment,” Sharp, 871 F.3d at 910-11, but it is difficult to see how 21 Watkins could be said to fail that test. Other courts have reached the same conclusion in 22 similar cases. See, e.g., Hartsell v. Cnty. of San Diego, 802 F. App’x 295, 296 (9th Cir. 23 2020) (affirming denial of qualified immunity to Officer Stroh, a canine officer being sued 24 under the theory that his continued use of a police dog “became objectively unreasonable 25 when Hartsell complied with instructions to show his hands, emerged from the brush with 26 the canine attached to his arm, and was within the deputies’ control, if not sooner,” because 27 “preexisting law [including Watkins] gave Stroh fair warning that it would be unlawful to 28 use a canine in a prolonged manner under circumstances such as those alleged by - 44 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 45 of 50 1 Hartsell”); Rosenbaum v. City of San Jose, 2021 WL 6092205, *13 (N.D. Cal. 2021) 2 (“Because the situation that confronted Officer Dunn when he allowed his police dog to 3 continue to bite Plaintiff was so similar to the situation that the officers in Watkins 4 confronted, the Court finds that ‘clearly established’ Ninth Circuit case law ‘clearly 5 prohibit[ted] the officer’s conduct in the particular circumstance before him.’ District 6 courts have found similarly in like circumstances.”) (citations omitted); Hernandez, 989 7 F.3d at 745 (“Our caselaw is clear that an officer cannot direct a police dog to continue 8 biting a suspect who has fully surrendered and is under the officer’s control.”). 9 III. Remaining Defendants 10 As for the remaining Defendants (Corporal Cummings, Sergeant McCarthy, and 11 Officers Preston, Torres, and White), Plaintiff asserts two theories of liability: (1) failure 12 to intervene and (2) integral participation. 13 A. Failure To Intervene 14 The Ninth Circuit has recognized that, in general, “police officers have a duty to 15 intercede when their fellow officers violate the constitutional rights of a suspect or other 16 citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000). “Importantly, 17 however, officers can be held liable for failing to intercede only if they had an opportunity 18 to intercede.” Id. 19 The remaining Defendants argue they are entitled to summary judgment on 20 Plaintiff’s failure-to-intervene claim under both prongs of the qualified-immunity analysis. 21 (Doc. 69 at 18-19.) As for the first prong (whether a constitutional violation occurred), 22 they argue that no intervention was constitutionally required because Officer Miller’s use 23 of Toby was “proper”; that Officer White did, at any rate, “intervene by controlling Toby 24 and taking him off bite”; that “Sergeant McCarthy and Officer Torres were not at the scene 25 for the decision to deploy, or the deployment of, Toby and could not have intervened even 26 if there were cause to do so”; and that Officer “Preston did not arrive at the area of the shed 27 until after Toby was already on bite.” (Id.) As for the second prong, they argue there is 28 no clearly established law establishing when an officer has a reasonable opportunity to - 45 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 46 of 50 1 intervene, so any failure-to-intervene claim necessarily fails. (Id.) 2 In response, Plaintiff argues that Corporal Cummings, Sergeant McCarthy, and 3 Officers White, Preston, and Torres had the means and opportunity to prevent or stop the 4 alleged constitutional violation. (Doc. 76 at 23-24.) “Cummings and Miller were in the 5 immediate vicinity of the shed when Toby was sent in to bite [Plaintiff]” and “[t]hough for 6 a lesser period of time, McCarthy and Preston were also present and could observe the 7 continued and unnecessary bite of [Plaintiff].” (Id. at 23.) As for Officer Torres, Plaintiff 8 argues that “prior to the bite, he learned that [Plaintiff] did not have a knife and had not 9 threatened Yolanda” and a “reasonable officer would have radioed this information to 10 Miller and the other officers in the backyard” so that Officer Miller could have “ordered 11 White to remove Toby earlier.” (Id.) As for the second prong of the qualified-immunity 12 analysis, Plaintiff does not identify any case holding that an officer committed a failure-to- 13 intervene violation—let alone a case involving similar facts—and simply contends that, 14 “[g]iven the well-established nature of the duty to intervene in the excessive force context, 15 any reasonable officer would have interceded and provided K-9 warnings or ordered 16 [Plaintiff] out of the shed, from nearer to the shed. He or she would have also acted to 17 terminate Toby’s bite of [Plaintiff]. As to Torres, no particular case was needed to put him 18 on notice of the importance of communicating critical information about the suspect to his 19 fellow officers prior to their use of force.” (Id. at 24.) 20 The remaining Defendants are entitled to summary judgment on Plaintiff’s failure- 21 to-intervene claim. The Court will begin with the second prong of the qualified-immunity 22 analysis because it is straightforward and dispositive. Recently, the Ninth Circuit reversed 23 a district court’s denial of qualified immunity to an officer who was sued under the theory 24 that he failed to intervene when another officer unconstitutionally deployed a canine 25 against an unarmed, non-resisting bystander. Penaloza, 836 F. App’x at 549. In addition 26 to noting the absence of any case establishing a duty to intervene in that specific factual 27 circumstance, the court more broadly noted that there are no Ninth Circuit decisions, in 28 any context, “clearly establish[ing] when an officer has a ‘realistic opportunity to - 46 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 47 of 50 1 intercede’” and thus held that “the law does not clearly establish when an officer must 2 intervene.” Id. at 549-50. Although Penaloza is an unpublished decision, its reasoning is 3 sound and establishes that the denial of qualified immunity to the remaining Defendants 4 on Plaintiff’s failure-to-intervene claim would be reversible error. 5 Alternatively, even putting Penaloza to the side, Plaintiff has not, in his summary 6 judgment briefing, met his burden of identifying a factually analogous case that would have 7 imparted notice to the remaining Defendants that their purported failure to intervene was 8 unconstitutional. LSO, Ltd., 205 F.3d at 1157. The one case that Plaintiff cites, Gates, 9 involved dissimilar facts and simply recognizes the general principle that police officers 10 sometimes have a duty to intervene. Much more is required to overcome a claim of 11 qualified immunity. Sharp, 871 F.3d at 910-11. 12 B. Integral Participation 13 For similar reasons, the remaining Defendants are entitled to qualified immunity as 14 to any “integral participation” claim.39 Even assuming, as Plaintiff argues (Doc. 76 at 25) 15 and as Defendants dispute (Doc. 69 at 19-21), that the “integral participation doctrine” is a 16 potentially viable theory of liability under Ninth Circuit and Supreme Court law, 17 Defendants make the additional argument that summary judgment is warranted under the 18 second prong of the qualified-immunity analysis: “[A]ll of the involved officers are entitled 19 to qualified immunity because no clearly established law was violated.” (Doc. 69 at 20.) 20 In response, Plaintiff does not directly engage with this argument but cites the following 21 two cases that, generously construed, could be viewed as his attempt to identify the clearly 22 established law supporting his claim: (1) Boyd v. Benton, 374 F.3d 773 (9th Cir. 2004); and 23 (2) Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007).40 (Doc. 76 at 24-25.) In 24 reply, Defendants argue these cases are insufficient because “none . . . address[es] a law 25 enforcement officer’s obligation to intervene in a canine deployment, or when their 26 39 Plaintiff concedes that Sergeant McCarthy is entitled to qualified immunity as to 27 any integral participation claim. (Doc. 76 at 24 n.3.) 40 28 At oral argument, Plaintiff again cited these cases but acknowledged that they involved far different facts than this case. - 47 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 48 of 50 1 participation in a law enforcement canine use rises to the level of an individual 2 constitutional violation.” (Doc. 80 at 9.) 3 Defendants are correct. In Boyd, the plaintiff sued various members of a SWAT 4 team for violating her Fourth Amendment rights during the execution of a search warrant. 5 374 F.3d at 775-76. Her specific allegation was “that the use of a ‘flash-bang’ device 6 constituted excessive force under the circumstances.” Id. The officers who did not deploy 7 the device moved for summary judgment on the ground “that even if a Fourth Amendment 8 violation occurred, only Ellison (the individual who deployed the flash-bang) can be liable 9 for that violation.” Id. at 780. The Ninth Circuit disagreed, holding that “we require[] 10 ‘integral participation’ by each officer as a predicate to liability . . . [which] does not require 11 that each officer’s actions themselves rise to the level of a constitutional violation.” Id. 12 The court further held that “[t]he facts of this case clearly support a finding that each officer 13 involved in the search operation was an ‘integral participant’” because (1) “the officers in 14 this case stood armed behind Ellison while he reached into the doorway and deployed the 15 flash-bang”; (2) “the use of the flash-bang was part of the search operation in which every 16 officer participated in some meaningful way”; and (3) “every officer was aware of the 17 decision to use the flash-bang, did not object to it, and participated in the search operation 18 knowing the flash-bang was to be deployed.” Id. 19 Boyd is insufficient to overcome the remaining Defendants’ invocation of qualified 20 immunity because it is so factually dissimilar to this case. As an initial matter, Boyd 21 involved law enforcement officers jointly planning, and then participating in, a search 22 operation utilizing flash-bang devices. This is obviously far afield from law enforcement 23 officers jointly planning, and then participating in, a search and seizure operation using a 24 canine. Plaintiff attempts to downplay the significance of these factual differences by 25 characterizing Boyd as a case establishing that “the defendant must be a participant in the 26 constitutional violation as opposed to a mere bystander” (Doc. 76 at 24), but this is exactly 27 the sort of abstract generalization that is impermissible under the second prong of the 28 qualified-immunity analysis. Kisela, 138 S. Ct. at 1152 (“This Court has repeatedly told - 48 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 49 of 50 1 courts—and the Ninth Circuit in particular—not to define clearly established law at a high 2 level of generality.”) (internal quotation marks omitted); Sharp, 871 F.3d at 910-11 (“The 3 Supreme Court has repeatedly instructed that we examine whether the violative nature of 4 particular conduct is clearly established by controlling precedent, not whether the conduct 5 violates a general principle of law.”). 6 Perhaps more important, Plaintiff’s only remaining theory of liability as to Officer 7 Miller does not turn on the initial decision to deploy Toby, but on the “duration and 8 encouragement” of the resulting bite. It is difficult to see how all of the remaining 9 Defendants could be characterized as integral participants in this particular aspect of the 10 encounter. At a minimum, this is even further afield from the facts of Boyd than the overall 11 plan to use a canine. 12 This leaves Blankenhorn. There, a group of police officers observed the plaintiff 13 trespassing on the premises of a mall from which he had previously been banned. 485 F.3d 14 at 468. The plaintiff presented evidence that he was calmly talking with one of the officers 15 when the officer grabbed his arm; that he responded by pulling his arm free; that the officer 16 responded by threatening to spray him with mace; that although he responded with some 17 displeasure (by throwing his driver’s license on the ground), he “did not take a combative 18 stance, clench his fists, or otherwise make threatening gestures”; that the officer then told 19 him to kneel down so he could be handcuffed; that he refused; that three officers then 20 abruptly “gang-tackled him” without attempting to handcuff him; that he “struggled for 21 several moments before the officers brought him to the ground” but, once on the ground, 22 “did not attempt to prevent the officers from handcuffing him”; and that despite his non- 23 resistance to the handcuffing attempt, one of the officers then “punched him several times.” 24 Id. at 478. In the ensuing § 1983 action, the district court granted summary judgment in 25 the officers’ favor on the plaintiff’s excessive force claim but the Ninth Circuit reversed. 26 Id. at 467. The court’s only mention of the concept of “integral participation” appeared in 27 a footnote. Id. at 482 n.12. After clarifying that integral participation “does not require 28 that each officer’s actions themselves rise to the level of a constitutional violation . . . [but] - 49 - Case 2:20-cv-01837-DWL Document 84 Filed 07/03/23 Page 50 of 50 1 does require some fundamental involvement in the conduct that allegedly caused the 2 violation,” the court held that two of the officers could not be viewed as integral 3 participants because they “did not participate in any integral way in the arrest” but four 4 other officers (who, respectively, helped handcuff the plaintiff, ordered another officer to 5 use hobble restraints, and jointly tackled the plaintiff) “may be held liable for this particular 6 alleged use of excessive force.” Id. (citation and internal quotation marks omitted). 7 Blankenhorn is insufficient for similar reasons as Boyd. It involved several officers’ 8 joint use of force when tackling and handcuffing a suspect, not whether bystander officers 9 may be held liable under an integral participant theory when a canine officer allegedly 10 allows his police dog to stay on the bite for too long. At most, then, Blankenhorn 11 establishes broad principles about integral-participant liability that are pitched at too high 12 of a level of generality to provide the sort of notice required under the second step of the 13 qualified-immunity analysis. 14 Accordingly, 15 IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 69) is 16 granted in part and denied in part. Plaintiff’s only remaining claim is his excessive 17 force claim against Officer Miller predicated on a “duration and encouragement” theory. 18 Dated this 30th day of June, 2023. 19 20 21 22 23 24 25 26 27 28 - 50 -