{"id":2015,"date":"2021-07-02T13:10:11","date_gmt":"2021-07-02T13:10:11","guid":{"rendered":"https:\/\/www.stonebusailah.com\/?p=2015"},"modified":"2021-07-02T13:10:11","modified_gmt":"2021-07-02T13:10:11","slug":"hernandez-v-town-of-gilbert","status":"publish","type":"post","link":"https:\/\/villagegreentesting.com\/StoneBusailah\/2021\/07\/02\/hernandez-v-town-of-gilbert\/","title":{"rendered":"HERNANDEZ V. TOWN OF GILBERT"},"content":{"rendered":"\n

Author: Robert Rabe<\/strong><\/p>\n\n\n\n

Following a brief police pursuit, Scott Hernandez fled to his home where he activated the remote-controlled garage door opener and entered the garage. Hernandez then tried to close the garage door remotely. Officer Robinson stopped the door from closing. Hernandez remained inside his vehicle and Officer Robinson waited for back-up officers to arrive. Responding backup were Officer Leach and Officer Gilbert and his police k-9 partner, \u201cMurphy\u201d. Robinson gave at least 13 verbal orders for Hernandez to step out of the vehicle (for over 2 minutes) and warned Hernandez that he would be arrested for failing to obey a police officer if he did not. Hernandez refused, repeatedly saying, \u201cNo, I\u2019m right here.\u201d Officers Robinson and Leach approached the car and, for over a minute, tried to force Hernandez to get out of the car by using control holds. Hernandez resisted and repeatedly said, \u201cNo, I\u2019m not under arrest.\u201d Officer Robinson observed Hernandez to have bloodshot eyes, slurred speech and that his breath smelled of alcohol. Robinson deployed pepper spray without effect. He then 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 him if he did not step out of the car. Hernandez responded, \u201cNo, I am not\u201d, \u201cI\u2019m not going nowhere, dude\u201d, and \u201cYou\u2019re on my property, bro. You can\u2019t do this shit\u201d.<\/p>\n\n\n\n

Officer Gilbert approached the car with Murphy on a leash. Officer Gilbert warned Hernandez that the dog would bite him if he did not step out of the car. Instead of getting out of the car, Hernandez closed the driver\u2019s side door and leaned to his right to close the passenger door. Before Hernandez could close the door, Murphy entered and bit Hernandez on the arm. While Murphy was holding onto Hernandez, Officer Gilbert yelled at Hernandez to get out of the car. Hernandez repeatedly yelled \u201calright\u201d and did not move. 36 seconds into the bite, Gilbert commanded Murphy to release the hold. 14 seconds later, Murphy obeyed and release his bite on Hernandez\u2019s arm, but held onto his shirt. While Murphy hung onto his shirt, Hernandez grabbed and began holding the passenger headrest. After the K-9 released his bite, Hernandez continued to cling to the headrest despite the officers\u2019 repeated orders for him to get out of the car. When Hernandez refused to comply,
Officer Robinson asked him, \u201cshould we let the dog go again?\u201d Officers Robinson and Leach again instructed Hernandez to step out of the car. Although Hernandez replied \u201calright,\u201d he continued to hang onto the headrest. The officers then forcibly pulled Hernandez from his car. Hernandez ultimately pled guilty to a misdemeanor charge.<\/p>\n\n\n\n

Hernandez sued the city and Officer Gilbert for excessive force under 42 U.S.C. \u00a71983, claiming the duration of the bite was
unreasonable because he \u201csurrendered\u201d. Gilbert moved for summary judgment on the excessive force claim. The district court granted qualified immunity to Officer Gilbert.<\/p>\n\n\n\n

The Court found deploying the dog and the duration of the bite did not violate \u201cclearly established law\u201d governing the reasonableness of using a k-9 to subdue a non-compliant suspect who resisted other types of force and refused to surrender. The Court noted the officers used an escalating array of control techniques, including pepper spray; none of which were effective.<\/p>\n\n\n\n

Case law is clear that an officer cannot direct a police dog to continue biting a suspect who has fully surrendered and is under the officer\u2019s control. But in this case, Hernandez did not actually surrender at any point during the encounter; rather, the officers had to physically drag him from his car after Murphy released his bite. The Court found that Officer Gilbert is entitled to qualified immunity.<\/p>\n\n\n\n

Take Away<\/strong><\/p>\n\n\n\n

This case underscores the importance of bodycam video in the defense of what you do. Without BWC evidence, there would undoubtedly be discrepancies between the officers and suspect\u2019s description of events and ultimately on the determination of qualified immunity.<\/p>\n\n\n\n

Stay Safe and Healthy!<\/strong><\/p>\n\n\n\n

Robert Rabe is Stone Busailah, LLP\u2019s writs and appeals
specialist. His 41 years practicing law include 16 years as a
Barrister, Supreme Court of England and Wales, practicing
in London, England.<\/p>\n","protected":false},"excerpt":{"rendered":"

Author: Robert Rabe Following a brief police pursuit, Scott Hernandez fled to his home where he activated the remote-controlled garage door opener and entered the garage. Hernandez then tried to close the garage door remotely. Officer Robinson stopped the door from closing. Hernandez remained inside his vehicle and Officer Robinson waited for back-up officers to […]<\/p>\n","protected":false},"author":1,"featured_media":2022,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15],"tags":[],"class_list":["post-2015","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-qualified-immunity"],"_links":{"self":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2015","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/comments?post=2015"}],"version-history":[{"count":0,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2015\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media\/2022"}],"wp:attachment":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media?parent=2015"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/categories?post=2015"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/tags?post=2015"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}