Rosenbaum v. City of San Jose (9th Cir., July 11, 2024) Excessive Force/Time on Bite
Facts of Rosenbaum
On September 10, 2019, San Jose police responded to a domestic‐violence report.
Officers, including a canine officer and his dog (“Kurt”), cleared the first floor of the house, then asked Rosenbaum multiple times to come down from upstairs and surrender.
Rosenbaum did not immediately comply with the orders to come down.
After about nine minutes into the standoff, the dog was released upstairs, a stun bag was used, and officers approached. Rosenbaum was found unarmed, sitting with his back against a wall. The dog was biting his right forearm.
Rosenbaum ended up lying on his stomach, arms outstretched, fully surrendered (not resisting, not trying to flee, etc.), surrounded by officers with firearms drawn; officers had control.
Despite his surrender, the dog continued biting him for over twenty seconds after he was in that surrendered, controlled position.
Issue & Holding
Rosenbaum sued under 42 U.S.C. § 1983 for Fourth Amendment excessive force, and the officers claimed qualified immunity.
The 9th Circuit affirmed the denial of qualified immunity: it held that under these facts, a reasonable jury could find that allowing a dog to continue biting someone who has surrendered and is under officer control is excessive force.
It also held that the law was “clearly established” in this area via prior 9th Circuit precedent (like Watkins v. City of Oakland, Mendoza v. Block, etc.) such that officers should have known this would violate the Fourth Amendment.
