Carlos Castro v. Brad Martin ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS CASTRO, No. 20-16009
Plaintiff-Appellee, D.C. No.
2:18-cv-00753-SRB-ESW
v.
BRAD MARTIN, in his individual capacity MEMORANDUM*
and as an employee of the Arizona
Department of Public Safety; STATE OF
ARIZONA,
Defendants-Appellants,
and
ARIZONA DEPARTMENT OF PUBLIC
SAFETY; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted May 6, 2021**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,***
District Judge.
Defendants Detective Brad Martin and the State of Arizona appeal the denial
of summary judgment on a suit brought by Plaintiff Carlos Castro, who was
severely injured after being bitten by a K9 on Martin’s command. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
In March 2017, a group of police officers aided by a SWAT team executed a
residential search warrant to arrest Castro, who was suspected of aggravated
assault and strong-arm robbery.1 Martin, a K9 handler with the Department of
Public Safety, was part of the officer team. Castro fled when the officers arrived at
the residence but was soon apprehended on the roof of a neighboring home.
Officers commanded Castro to both “stop” and to get off the roof; when Castro did
not immediately leave the roof, an officer shot Castro twice with a Taser. The
impact of the Taser caused Castro to fall off the roof, at which point four officers
tackled him. Castro contends that he did not resist while face-down on the ground
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
1
We relate the version of facts most favorable to Castro, the non-moving
party, unless otherwise indicated. See Foster v. City of Indio, 908 F.3d 1204, 1207
(9th Cir. 2018). Where, as here, there is video evidence documenting the events in
question, courts should not accept an account that is “blatantly contradicted” by the
video, Scott v. Harris, 550 U.S. 372, 380 (2007), but must still resolve any
ambiguities left by the video in the non-moving party’s favor, Blankenhorn v. City
of Orange, 485 F.3d 463, 468 n.1 (9th Cir. 2007).
2
and that officers grabbed his hands behind his back, maintaining full control over
him.2 Defendants counter that Castro resisted arrest by locking his arms and hands
underneath his torso and by kicking.
Martin, who was observing the encounter, later testified that he believed
Castro presented a danger to officers because Castro was allegedly resisting arrest
and because Martin thought Castro might be concealing a firearm in his pants.
Martin therefore decided to deploy his K9 as a “pain compliance tool” to assist in
the arrest, and he commanded the dog to bite Castro’s leg. Body camera video
footage appears to show that Castro was successfully handcuffed about 25 seconds
after the K9 began its bite (or sooner), and that another 12 to 26 seconds elapsed
between Castro’s handcuffing and the release of the bite. Castro’s injuries from
the bite required multiple surgeries and prolonged physical therapy.
Castro sued Martin under 42 U.S.C. § 1983, alleging that the K9 bite
constituted excessive force. He also sued the State for Martin’s alleged battery and
intentional infliction of emotional distress, as well as for the other officers’ alleged
gross negligence, on a vicarious liability theory. Defendants moved for summary
judgment. The district court, pointing to the video showing the delay between
Castro being “handcuffed and subdued” and the end of the K9 bite, held that
2
Castro admitted during discovery that he “did not immediately obey police
commands to put [his] hands behind [his] back.”
3
genuine disputes of fact precluded summary judgment and qualified immunity on
all claims.
Because this is an interlocutory appeal from an order denying qualified
immunity, the scope of our review is limited to questions of law. George v.
Morris, 736 F.3d 829, 835 (9th Cir. 2013). “If the evidence, reviewed in the light
most favorable to [Castro], could support a finding of excessive force, then the
defendants are not entitled to summary judgment.” Smith v. City of Hemet, 394
F.3d 689, 701 (9th Cir. 2005) (en banc).
Although the parties make various arguments about the legality of the entire
exercise of force, this appeal turns solely on the 12 to 26 seconds that passed
between when Castro was “handcuffed and subdued” and when the K9 released its
bite.3 “Our caselaw is clear that an officer cannot direct a police dog to continue
biting a suspect who has fully surrendered and is under the officer’s control.”
Hernandez v. Town of Gilbert, 989 F.3d 739, 745 (9th Cir. 2021) (describing
clearly established law as of May 2016, nearly a year before Castro’s arrest); see
also Watkins v. City of Oakland, 145 F.3d 1087, 1090, 1093 (9th Cir. 1998)
(holding “that it was clearly established that excessive duration of [a K9]
bite . . . could constitute excessive force,” and accordingly denying qualified
3
Specifically, we do not consider parties’ arguments regarding whether the
initiation of the K9 bite constituted excessive force.
4
immunity when an officer allegedly “continued to allow [the K9] to bite [the
plaintiff] even though he was obviously helpless and surrounded by police officers
with their guns drawn”). The evidence, viewed in Castro’s favor, thus supports a
violation of clearly established law.
This same factual dispute precludes summary judgment on Castro’s tort
claims. Defendants invoke common law qualified immunity and statutory
immunity, but these defenses require an official to reasonably believe that his
action is lawful, Chamberlain v. Mathis, 729 P.2d 905, 912 (Ariz. 1986), or that his
continued use of force is “immediately necessary,” Ariz. Rev. Stat. § 13-409; Ryan
v. Napier, 425 P.3d 230, 239 (Ariz. 2018) (“[A]lthough the use of force can be
justified [under § 13-409] at its commencement, it loses legal justification at the
point the force becomes unnecessary.”).
AFFIRMED.
5