A federal appellate court has upheld an excessive force lawsuit against a group of San Jose police officers who allowed a police dog to continue biting a man who had surrendered during a 2019 arrest. The decision, published by the 9th Circuit Court of Appeals on Thursday, affirms a previous ruling by a San Jose district court judge that denied the officers qualified immunity.
The three-judge panel, led by Judge Gabriel P. Sanchez, concluded that the officers’ conduct did not fall within constitutional and statutory boundaries, thus not entitling them to qualified immunity. The court stated that the officers violated the Fourth Amendment when they allowed the police dog to continue biting a suspect who had fully surrendered and was under their control.
This is the second published decision by the 9th Circuit Court of Appeals in recent months that denied qualified immunity to a San Jose police officer. In June, a lower-court decision granting qualified immunity in an excessive force lawsuit over a fatal police shooting was overturned by a 9th Circuit panel.
The lawsuit, filed by Zachary Rosenbaum in 2020, will now return to the federal district court in San Jose for a civil jury trial. The defendants named in the lawsuit include Sgt. Bret Hatzenbuhler, officers Hymel Dunn, Ryan Ferguson, Francisco Vallejo, Gary Anderson, as well as the city and police department. Dunn is described as the only officer in the group with canine training.
According to court records, the incident occurred on September 10, 2019, when police officers responded to a domestic violence report at Rosenbaum’s girlfriend’s home. After spotting Rosenbaum on a second-floor stair landing, the officers ordered him to surrender, but he repeatedly refused. Despite warnings that a police dog would be released, Rosenbaum was eventually bitten by the dog while unarmed and in a surrender position.
Rosenbaum’s lawsuit alleges that the dog was ordered to attack him even though he had his hands raised in surrender. The body-camera video recorded by the officers supports Rosenbaum’s claims, showing the dog dragging him onto his stomach and biting him for over 20 seconds, even after he had fully surrendered.
Rosenbaum suffered multiple puncture wounds and cuts that required several surgeries and caused permanent damage to his arm. He later served a jail sentence after pleading no contest to two felony assault counts.
The appellate court’s decision establishes a clear precedent that the use of force in such circumstances is not permissible. The ruling ensures that officers are held accountable for their actions and sets a standard for law enforcement agencies in California and other states within the 9th Circuit.
The San Jose City Attorney’s Office, representing the defendants, has not yet provided a comment on the court’s decision.
