Scott Harvey Hernandez, individually v. Town of Gilbert, a municipality, by

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
S COTT HARVEY HERNANDEZ,
individually,
Plaintiff-Appellant,
v.
TOWN OF GILBERT, a municipality,
by and through its Police
Department, an agency of the Town
of Gilbert; S TEVE G ILBERT, Officer,
husband,
Defendants-Appellees,
and
C HRIS R OBINSON, Officer, husband;
R OBINSON, Jane Doe, wife; J USTIN
LEACH, Officer, husband; LEACH,
Jane Doe, wife; GILBERT , Jane Doe,
wife; J OE KACIC , Supervising
Officer, husband; KACIC , Jane Doe,
wife; B ILL C AMPBELL, Supervising
Officer, husband; C AMPBELL, Jane
Doe, wife; D AN HURD , Supervising
Officer, husband; HURD , Jane Doe,
wife; DOES , John and Jane Does 1–
100,
Defendants.
No. 19-15811
D.C. No.
2:17-cv-02155-
SMB
OPINION

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2 HERNANDEZ V . TOWN OF GILBERT
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Argued and Submitted November 17, 2020
Phoenix, Arizona
Filed March 4, 2021
Before: Richard C. Tallman, Jay S. Bybee, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Tallman
SUMMARY*
Civil Rights
The panel affirmed the district court’s grant, on summary
judgment, of qualified immunity to a police officer in an
action brought pursuant to 42 U.S.C. § 1983 alleging that the
officer used excessive force when he deployed his police dog
in effecting plaintiff’s arrest for driving under the influence
and resisting arrest.
Following a brief police chase, plaintiff fled to his home
where he activated the remote-controlled garage door
opener, remained in control of his car inside the garage for
eight minutes, refused multiple commands to get out of the
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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HERNANDEZ V . TOWN OF GILBERT 3
car, and resisted lesser force employed by officers without
effect while he continued resisting. To force compliance,
defendant then released his police dog. But even after the
dog bit him, plaintiff continued to resist. The officers
eventually managed to get plaintiff out of the car and
completed the arrest.
In affirming the district court’s grant of qualified
immunity to defendant on plaintiff’s excessive force claim,
the panel held that no clearly established law governed the
reasonableness of using a canine to subdue a noncompliant
suspect who resisted other types of force and refused to
surrender. The panel held that neither the initial deployment
of the canine nor the duration of the bite violated clearly
established law. The panel noted that officers employed an
escalating array of control techniques, none of which were
effective in getting plaintiff to surrender, before deciding to
release the police dog. The panel further held that plaintiff’s
claim that the duration of the bite was unreasonable because
he had surrendered was belied by the video evidence
captured on the police officers’ body cameras.
COUNSEL
Scott H. Zwillinger (argued), Goldman & Zwillinger PLLC,
Scottsdale, for Plaintiff-Appellant.
Robert Grasso Jr. (argued) and N. Patrick Hall, Grasso Law
Firm P.C., Chandler, Arizona, for Defendants-Appellees.

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4 HERNANDEZ V . TOWN OF GILBERT
OPINION
TALLMAN, Circuit Judge:
Scott Hernandez appeals from the summary judgment
entered in favor of canine Officer Steve Gilbert and the
Town of Gilbert in this § 1983 action alleging that Officer
Gilbert used excessive force in effecting Hernandez’s arrest
for driving under the influence and resisting arrest.
Following a brief police chase, Hernandez fled to his home
where he activated the remote-controlled garage door
opener, remained in control of his car inside the garage for
eight minutes, refused multiple commands to get out of the
car, and resisted lesser force employed by officers without
effect while he continued resisting. To force compliance,
Officer Gilbert then released his police dog. But even after
the dog bit him, Hernandez continued to resist. The officers
eventually managed to get him out of the car and completed
the arrest. We affirm the district court’s grant of qualified
immunity on Hernandez’s excessive force claim because no
clearly established law governed the reasonableness of using
a canine to subdue a noncompliant suspect who resisted
other types of force and refused to surrender.
I
The events leading up to the use of the canine in this case
are undisputed and were captured on the police officers’
body cameras.1 On the evening of May 5, 2016, Hernandez
drank with friends at the local Mad Dog Saloon before
1 The encounter between Hernandez and Gilbert was audio- and
video-recorded by department-issued body cameras. These videos were
filed as a supplement to the parties’ Joint Statement of Stipulated Facts.
We have reviewed the video evidence carefully following the Supreme
Court’s lead in Scott v. Harris, 550 U.S. 372, 378–81 (2007).

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HERNANDEZ V . TOWN OF GILBERT 5
driving home. Gilbert Police Department Officer Chris
Robinson activated his vehicle’s lights when he saw
Hernandez’s car swerving. Although Hernandez saw
emergency lights flashing behind him, he continued driving.
Officer Robinson used the police vehicle’s siren, but
Hernandez ignored it, driving for approximately a minute
and a half until he pulled into his driveway. Hernandez
opened the garage door remotely, pulled into the garage, and
shut off his car. While remaining in the car, Hernandez tried
to close the garage door remotely. Officer Robinson stopped
the door from closing and waited for back-up officers to
arrive. Responding to assist in the arrest were Officer Justin
Leach and canine Officer Gilbert accompanied by his
partner, police dog Murphy.
Over the next two and a half minutes, Officer Robinson
gave at least thirteen verbal orders for Hernandez to step out
of the vehicle and warned Hernandez that he would be
arrested for failing to obey a police officer if he did not.
Hernandez refused, repeatedly saying, “No, I’m right here.”
Officers Robinson and Leach then approached the car with
guns drawn since they did not know whether the recalcitrant
suspect was armed. For over a minute, Officer Robinson
tried to force Hernandez to get out of the car by using control
holds, including grabbing Hernandez’s left forearm, left leg,
his head, and his right ear. Hernandez resisted these holds
by tucking his arms close to his body and repeating, “No,
I’m not under arrest.” Officer Robinson observed that
Hernandez’s eyes were bloodshot, his speech was slurred,
and his breath smelled of alcohol.
Officer Robinson then deployed pepper spray without
effect. He warned Hernandez eight more times that he was
under arrest and needed to get out of the car. He also warned
Hernandez at least five times that a police dog would bite

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6 HERNANDEZ V . TOWN OF GILBERT
him if he did not step out of the car. Hernandez responded,
“I’m not going nowhere, dude,” “You’re on my property,
bro. You can’t do this shit,” and “No, I am not.”
Approximately eight minutes after Officer Robinson
first activated his vehicle’s emergency lights, Officer Gilbert
commanded police dog Murphy to bite Hernandez. As
Officer Gilbert approached the car with Murphy on a leash,
both the driver’s side door and front passenger’s side door
were open. Officer Gilbert warned Hernandez that the dog
would bite him if he did not step out of the car. Hernandez
closed the driver’s side door and leaned to his right in an
attempt to close the passenger’s door.
Before Hernandez could close the passenger’s door,
Murphy entered and bit Hernandez’s arm for fifty seconds in
total.2 While Murphy was holding onto Hernandez, Officer
Gilbert yelled at Hernandez to get out of the car. Officer
Robinson also ordered Hernandez to crawl forward out of
the vehicle. Although Hernandez repeatedly yelled
“alright,” he did not move. Thirty-six seconds into the bite,
Officer Gilbert commanded Murphy to release the hold.
Fourteen seconds later, Murphy obeyed and released his bite
on Hernandez’s arm. Murphy, however, held onto
Hernandez’s shirt for another twenty-two seconds before
completely releasing the hold. While Murphy hung onto
Hernandez’s shirt, Hernandez held onto the front passenger
headrest and told the officers that they were on his property.
2 While the parties agree on the duration of the bite, the parties in
their briefing characterize some of the facts differently at this point in
the encounter. We “view[] the facts in the light depicted by the
videotape.” Scott, 550 U.S. at 381.

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HERNANDEZ V . TOWN OF GILBERT 7
Police dog Murphy was engaged with Hernandez for one
minute and twelve seconds in total.
After Murphy released Hernandez, Hernandez continued
to cling to the headrest despite the officers’ repeated orders
to get out of the car. When Hernandez refused to comply,
Officer Robinson asked, “should we let the dog go again?”
Officers Robinson and Leach again instructed Hernandez to
step out of the car. Although Hernandez replied “alright,”
he nonetheless continued to hang onto the headrest,
protesting “wait, wait, wait.”
Approximately nine and a half minutes after Officer
Robinson first activated his vehicle’s emergency lights, the
officers successfully pulled Hernandez from his car. During
the encounter, Hernandez was “under the influence of an
intoxicating liquor” and had a BAC of 0.146 when his blood
was tested later at the hospital under authority of a search
warrant. The officers booked Hernandez on one felony
charge for resisting arrest and two misdemeanor charges for
a DUI and failure to comply with a police officer.
Hernandez ultimately pled guilty to a misdemeanor charge.
Hernandez then sued the Town of Gilbert and several
police officers asserting, among other claims not before us,
an excessive force claim against Officer Gilbert under
42 U.S.C. § 1983. Relevant to this appeal, Officer Gilbert
moved for partial summary judgment on the excessive force
claim. In ruling on that motion, the district court granted
qualified immunity to Officer Gilbert, holding that “it was
not clearly established that an officer in Officer Gilbert’s
position acted unreasonably, thus violating [Hernandez’s]
Fourth Amendment rights.” Hernandez timely appealed.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

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8 HERNANDEZ V . TOWN OF GILBERT
II
We review de novo a district court’s decision to grant
summary judgment based on qualified immunity.
Woodward v. City of Tucson, 870 F.3d 1154, 1159 (9th Cir.
2017). We view the facts in the light most favorable to the
non-moving party to determine whether any genuine
disputes of material fact remain and whether the district
court correctly applied the law. Id. However, we do not
accept a non-movant’s version of events when it is “clearly
contradict[ed]” by a video in the record. Scott v. Harris,
550 U.S. 372, 378–80 (2007).
III
Qualified immunity shields government officials under
§ 1983 unless “(1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)). The Court
may address the two prongs in any order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). We consider only the
second prong here.
“A clearly established right is one that is ‘sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.’” Mullenix v. Luna,
577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle,
566 U.S. at 664). While we do not require a case on all fours,
“existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011) (citations omitted). Qualified
immunity “protects ‘all but the plainly incompetent or those
who knowingly violate the law.’” Wesby, 138 S. Ct. at 589
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

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HERNANDEZ V . TOWN OF GILBERT 9
“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002).
Hernandez argues that both the initial deployment of the
canine and the duration of the bite violated clearly
established law.
A
To defeat qualified immunity, Hernandez must show that
the state of the law as of May 5, 2016, gave a reasonable
officer “fair warning” that using a police dog on a
noncompliant suspect, who had resisted lesser methods of
force to complete his arrest, was unconstitutional. See Hope,
536 U.S. at 741. Hernandez relies on Mendoza v. Block,
27 F.3d 1357 (9th Cir. 1994). In Mendoza, we affirmed the
dismissal on qualified immunity grounds of a § 1983 claim
by Mendoza, who was severely bitten by a police dog while
trying to evade arrest for bank robbery by hiding for several
hours in bushes on private property. Id. at 1358. Deputies
used the dog to find and pull Mendoza out of the bushes. Id.
at 1359. The deputies ordered Mendoza to “stop struggling
and place his hands behind his back for handcuffing.” Id.
Mendoza resisted and “swung an arm at one of the deputies.”
Id. We held that the law was clearly established that the use
of the police dog was subject to excessive force analysis but
that the deputies’ use of the police dog to find the suspect
and to “secure him until he stopped struggling and was
handcuffed” was objectively reasonable. Id. at 1362–63.
While it’s well-settled that the use of a police dog is
subject to excessive force analysis, the relevant inquiry is
whether existing precedent placed the question “beyond
debate” that Officer Gilbert’s decision to deploy Murphy to
help arrest Hernandez was unconstitutional. See al-Kidd,

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10 HERNANDEZ V . TOWN OF GILBERT
563 U.S. at 741. In finding the deputies’ conduct objectively
reasonable, the Mendoza court reasoned that: (1) Mendoza
did not surrender when warned that he would be bitten;
(2) he was fleeing arrest for a felony; (3) the deputies
believed Mendoza was armed based on radio broadcasts
from headquarters; and (4) the deputies could have
reasonably believed Mendoza posed a danger to the property
owners as well as the deputies because he was hiding on
private property. 27 F.3d at 1362–63. Here, Hernandez did
not surrender when warned many times that he would be
bitten by a police dog after he failed to obey the officers’
numerous orders to exit his car and resisted their use of lesser
force to take him into custody.
The evidence is undisputed that Hernandez fled from
Officer Robinson and tried to lock himself inside his garage
to avoid being arrested. Unlike Mendoza, the officers here
were not warned by headquarters that Hernandez might be
armed, but Hernandez remained in his car to evade arrest,
and Officer Gilbert did not know whether Hernandez was
armed as no one had searched him yet. Fleeing from a
pursuing officer and taking evasive action to avoid a
misdemeanor arrest for DUI may be less serious than fleeing
a bank robbery, but Officer Gilbert testified that “once
someone starts to act in a way that they’re fleeing from the
police, that starts to heighten our awareness that there’s
something else going on than just someone who just doesn’t
want to stop.” While there are differences between the
circumstances that confronted the deputies in Mendoza and
those that Officer Gilbert faced, Mendoza does not place
“beyond debate” whether Officer Gilbert’s use of a police
dog to facilitate Hernandez’s arrest under the circumstances
of this case violated the Fourth Amendment. See al-Kidd,
563 U.S. at 741.

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HERNANDEZ V . TOWN OF GILBERT 11
Most significantly, Mendoza does not clearly establish
that Officer Gilbert’s conduct violated Hernandez’s Fourth
Amendment rights because it does not address the “specific
context” of this case: officers using minimal force at the
beginning of an encounter and escalating the level of force
employed, ultimately deciding to use a police canine when
other methods were unsuccessful. See Hamby v. Hammond,
821 F.3d 1085, 1091 (9th Cir. 2016). The officers in
Mendoza used the dog to locate the suspect, so the encounter
began with the use of a dog bite. 27 F.3d at 1358. Here,
Officers Robinson, Leach, and Gilbert did not begin the
encounter with a dog bite. Instead, the officers initially gave
verbal commands to surrender to their authority. When
Hernandez refused to obey, the officers tried control holds.
Then they used pepper spray, which failed to achieve
compliance. They then warned Hernandez about the
impending release of the dog if he refused to yield. Only
after all of these methods failed to overcome Hernandez’s
resistance, did Officer Gilbert deploy Murphy. Mendoza
says little about how a reasonable officer should escalate the
use of force on a noncompliant suspect. The record here
does show that the officers employed an escalating array of
control techniques, none of which were effective in getting
Hernandez to surrender, before deciding to release the police
dog. Because the facts are so dissimilar, Mendoza does not
clearly establish that Officer Gilbert’s conduct in eventually
deploying Murphy was unconstitutional.
B
Hernandez also claims that the duration of Murphy’s bite
was unreasonable because he had surrendered. The video
belies his argument. 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.

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12 HERNANDEZ V . TOWN OF GILBERT
Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.
1998); Koistra v. County of San Diego, 310 F. Supp. 3d
1066, 1082–84 (S.D. Cal. 2018).3 Officer Gilbert, however,
is entitled to qualified immunity because Hernandez did not
surrender at any point during the encounter; rather, the
officers had to physically drag him from his car after the dog
bite.
While we view the facts in the light most favorable to the
non-moving party at the summary judgment stage, we are
not required to accept a non-movant’s version of events
when it is “clearly contradict[ed]” by a video in the record.
Scott, 550 U.S. at 378–80 (where petitioner’s benign
characterization of the police pursuit under very dangerous
conditions was refuted by the dashcam video). Here,
Hernandez stipulated to the bodycam footage. At the time
Officer Gilbert directed Murphy to bite Hernandez, the
videos establish beyond cavil that Hernandez had not
surrendered. Hernandez refused to comply with the officers’
3 Hernandez argues that the district court erred in declining to
consider Koistra. While courts generally don’t consider post-incident
cases in determining “whether the law was clearly established at the time
of the incident[,] . . . post-incident cases that make a determination
regarding the state of the law at the time of the incident are persuasive
authority.” Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (citing
Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989)). Koistra
considered the law regarding the use of a police dog in an arrest as of
January 8, 2016, well before Hernandez’s arrest on May 5, 2016. 310 F.
Supp. 3d at 1082. While Koistra itself could not have put Officer Gilbert
on notice, it is persuasive authority as far as it examined the state of the
law in January 2016. However, Koistra provides no support to
Hernandez, because it merely reiterates what Watkins and Mendoza
already made clear: an officer’s use of canine force against a suspect
who has surrendered may violate the Constitution. Koistra, 310 F. Supp.
3d at 1084. The irrefutable facts here simply do not support that
conclusion as applied to the conduct of Hernandez.

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HERNANDEZ V . TOWN OF GILBERT 13
instructions for eight minutes and resisted their uses of lesser
force, including control holds and pepper spray. Officers
warned Hernandez at least five times of the impending use
of a canine. As Officer Gilbert approached the vehicle,
Hernandez closed the driver’s door and leaned over to shut
the passenger’s door. During and after the dog bite,
Hernandez continued to resist. Hernandez states that he
“offered to surrender,” but the video does not show any
evidence besides Hernandez’s shouts of “alright.” His body
language on the recording shows otherwise.
Hernandez points to Koistra, but that case bolsters the
conclusion that he did not surrender. In Koistra, the district
court relied on Watkins and Mendoza in finding that the law
was clearly established that use of a canine violated the
Fourth Amendment “when the victim . . . has surrendered by
having her arms up in the air,” but the officer allowed the
dog to bite the suspect for 30 more seconds and “drag the
victim by her mouth for a distance of 12 feet.” 310 F. Supp.
3d at 1082–84.4 While the suspect in Koistra offered to
surrender by putting her arms up and asserting that she was
unarmed, see id. at 1084, Hernandez did not put his arms up
or assert that he was unarmed. Koistra illuminates
Hernandez’s failure to surrender.
Hernandez claims that the “duration and force of the dog
bite” in Watkins was similar enough to put Officer Gilbert
4 While Koistra does not change the outcome for Hernandez, the
district court in Koistra erroneously stated that Mendoza affirmed the
district court’s denial of qualified immunity where the law was clearly
established, but the officer’s conduct was not objectively reasonable.
Koistra, 310 F. Supp. 3d at 1083. Mendoza actually affirmed the district
court’s grant of qualified immunity where the law was clearly
established and the officer’s conduct was objectively reasonable.
27 F.3d at 1361–63.

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14 HERNANDEZ V . TOWN OF GILBERT
on notice. In Watkins, the officer used the police dog to find
Watkins, who was hiding in a car inside a commercial
warehouse. 145 F.3d at 1090. When the officer caught up
to his police dog, who was biting Watkins, the officer
ordered Watkins to show his hands. Id. Watkins was
recoiling from the dog’s bite and claimed that he was unable
to comply with the order to show his hands. Id. While the
dog continued to bite Watkins, the officer pulled Watkins out
of the car onto the ground. Id. After thirty seconds, Watkins
complied, and the handler ordered the dog to release
Watkins. Id. The court found a genuine dispute of material
fact as to the reasonableness of the continued dog bite when
Watkins may have surrendered, as he claimed that both the
pain of the dog bite and his resistance against the dog
prevented him from complying with officers’ orders to show
his hands. Id. at 1090, 1093.
Although Hernandez relies on Watkins, the video
recordings during and following the dog bite show that
inability did not prevent Hernandez from complying with the
officers’ directions. The video instead shows that he chose
not to comply because, in his words, the officers were “on
his property.” Although Hernandez began shouting
“alright,” he did not obey Officer Robinson’s command to
crawl forward out of the car. Moreover, as soon as Murphy
was called off, Hernandez again physically and verbally
refused to comply with the officers. No reasonable officer
facing such a recalcitrant suspect would be likely to think
Hernandez was “completely under control.” See Mendoza,
27 F.3d at 1362. He hung onto the headrest to resist being
removed from the car and told the officers that they were on
his property. Officer Robinson had to threaten to use the dog
again because it appeared that the first use of Murphy had
been unsuccessful in convincing the suspect to yield to
police commands; Hernandez was still not getting out of the

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HERNANDEZ V . TOWN OF GILBERT 15
car. The officers ultimately had to physically pull
Hernandez out despite his attempt to remain in the car. The
bodycam video belies Hernandez’s attempt to characterize
his actions as surrender.
Hernandez makes no attempt to discuss his resistance
after the dog bite. While “alright” could possibly constitute
submission to the authorities under other circumstances,
based on Hernandez’s continuing resistance here as shown
on the video recording, a reasonable officer in the position
of Officer Gilbert would not view Hernandez’s conduct as
an act of surrender. Hernandez fails to meet his burden to
show a genuine issue of material fact as to whether he
surrendered. The video conclusively shows he did not.
There was thus no material fact in dispute that required a jury
to resolve.
IV
Because Hernandez cannot identify a violation of any
“clearly established” right, Officer Gilbert is entitled to
qualified immunity. The district court’s order granting
summary judgment on the ground of qualified immunity to
Officer Gilbert is AFFIRMED.

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