NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUSTIN LOUIS PALMER, No. 19-56323

Plaintiff-Appellee, D.C. No. 2:16-cv-07780-JGB-JEM v.

SANTA MARIA POLICE DEPARTMENT, MEMORANDUM*

Defendant,

GREEN, K-9 Unit Handler of Balko, official capacity; et al.,

Defendants,

and

CHRIS GREEN, Officer,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted January 11, 2021 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4

Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.

Dustin Palmer brought this action under 42 U.S.C. § 1983 against Officer

Chris Green, alleging use of excessive force in violation of the Fourth Amendment.

Officer Green appeals from the district court’s order denying his motion for

summary judgment on the basis of qualified immunity. We conclude that Officer

Green did not violate clearly established law when he allowed his police dog to

remain on bite until Palmer had been handcuffed. Accordingly, we reverse.

1. Under the two prongs of the qualified immunity analysis, we ask: (1)

whether the facts, viewed in the light most favorable to the plaintiff, show that the

officer violated a constitutional right; and (2) whether that right was “clearly

established” at the time of the alleged violation. Orn v. City of Tacoma, 949 F.3d

1167, 1174 (9th Cir. 2020). We have the discretion to resolve this appeal at either

step of the analysis. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, we

need not decide whether Officer Green’s actions violated Palmer’s Fourth

Amendment right to be free from the use of excessive force because, on the facts

of this case, any such right was not clearly established at the time of the incident.

To show that the law was clearly established, Palmer must identify

precedent holding that an officer’s conduct violates the Constitution “under facts

not distinguishable in a fair way from the facts presented in the case at hand.”

Orn, 949 F.3d at 1178 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Page 3 of 4

Palmer has failed to do so. He contends that it was unlawful for Officer Green to

keep the dog on bite until Palmer was handcuffed. But our precedent does not

clearly establish that Officer Green’s actions violated the Fourth Amendment on

the facts of this case. It is undisputed that (1) Palmer had a lengthy and violent

criminal history, (2) the officers had reason to believe that Palmer was armed with

a handgun on the day of the incident, (3) Palmer had evaded arrest earlier in the

week, and (4) Palmer had once again evaded arrest just moments before by

jumping over a second-story balcony and fleeing on foot. Moreover, he was

apprehended in a busy commercial district where he could have posed a danger to

civilians if permitted to escape. None of our cases holds that, in these

circumstances, it is unlawful to keep a dog on bite until the point at which a

suspect believed to be armed and dangerous has been handcuffed.

The primary case on which the district court relied in concluding that the law

was clearly established is Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994). But in

Chew, the suspect had merely been pulled over for a traffic violation before fleeing

and was hiding quietly in a scrapyard for an hour and a half before the officers

located him. There was no basis for believing that “Chew was armed or that he

posed an immediate threat to anyone’s safety.” Id. at 1441. Those facts render

that case readily distinguishable from this one. Page 4 of 4

The other cases cited by Palmer are likewise distinguishable. In Watkins v.

City of Oakland, 145 F.3d 1087 (9th Cir. 1998), the officers also had no basis to

believe that the suspect was armed. Id. at 1090. In Mendoza v. Block, 27 F.3d

1357 (9th Cir. 1994), this court stated that it would constitute excessive force for a

deputy to “sic[] a canine on a handcuffed arrestee who has fully surrendered and is

completely under control.” Id. at 1362. But Officer Green did not “sic” the dog on

Palmer after he had been handcuffed; instead, Officer Green deployed the dog to

stop Palmer from evading arrest, and commanded the dog to release its bite after

Palmer was secured in handcuffs.

2. Palmer also contends that Officer Green delayed for an unreasonable

amount of time before physically removing the dog when it failed to comply with

commands. There is no evidence in the record to support this claim. Although the

dog did not immediately release its bite when given the command to do so, Palmer

has failed to present any facts suggesting that Officer Green waited more than a

matter of seconds before intervening.

REVERSED and REMANDED.