Whether the Ninth Circuit erred in denying qualified immunity to a police canine officer for the duration of a canine bite during an arrest of an armed, resisting suspect

1. Did the Ninth Circuit depart from this Court’s decisions in Graham v. Connor, 490 U.S. 386 (1989) and Plumhoff v. Rickard, 572 U.S. 765 (2014) in denying qualified immunity to Miller based upon the absence of a constitutional violation, where the duration of a law enforcement canine’s bite lasts only while a reportedly armed suspect resists arrest and ends when officers gain control of the suspect ? 2. Did the Ninth Circuit err by concluding that Rock’s unspoken state of mind as he was being bit and held by Toby is a material fact that must be resolved by a jury before applying qualified immunity? 3. Did the Ninth Circuit fail to analyze Rock’s conduct, and Officer Miller’s response to that conduct, by reference to multiple body worn camera footage clearly showing the facts and circumstances of Rock’s arrest, including his active resistance? 4. Did the Ninth Circuit err in denying Miller qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case? ii In the U.S., there are approximately 50,000 active police dogs.1 This case asks the critical question : after a canine handler’s correct decision to deploy a canine, at what point does the Fourth Amendment require the canine be taken off-bite. Here, the Ninth Circuit denied qualified immunity to a police canine officer where the suspect was reported to be armed with a knife and had threatened his mother, and during the encounter with police grabbed the canine’s leash and did not provide both hands to allow handcuffing. The handler ordered the canine to be taken off -bite only when other officers had gained positive control of the suspect’s hands. In denying qualified immunity, the Ninth Circuit reasoned that the officer should have released the canine at some earlier, undefined point , and draw n an assumption that the suspect’s observable resistance was, in reality, a reaction to pain. The reasoning of the Ninth Circuit creates a dangerous precedent for canine officers who are now required to remove the control provided by their canine partners, only to expose themselves to an uncontrolled, reportedly armed suspect. On October 20, 2019, City of Goodyear Police Officers responded to a 9 -1-1 domestic violence call at a residence where it was reported that respondent Dillon Rock had, among other things, threatened his mother with a knife. By the time officer s arrived, Rock had fled to the backyard of the 1 -do-police iii residence. Another officer made eye contact with Rock , but despite commands to stop, Rock fled deeper into the backyard. Rock’s parents were interviewed, but neither could confirm w hat Rock had done with the knife. Petitioner , Goodyear Police Officer Mike Miller, went to the backyard entrance gate, and loudly announced he would deploy his canine, Toby, unless Rock surrendered. With no response, officers w ent through the backyard until reaching a metal shed. Miller deployed T oby into the shed to locate, bite and retrieve Rock . During the ensuing 29-31 seconds, Rock ignored commands to let go of Toby’s leash, and frustrated officers’ efforts to control both hands for handcuffing. Once the officers had control of Rock’ s hands, Miller ordered Toby to be taken off bite. The fast -moving encounter was captured on the officer s’ body worn camera s and reflect s the circumstances of Toby’s deployment and release. The district court granted summary judgment to Miller for his decision to deploy Toby to locate, bite, and hold Rock ; concluding the decision did not violate clearly established constitutional law. However, the district court, without controlling authority, denied Miller qualified immunity as to the “duration” of the bite , in contravention to the second prong of the qualified immunity analysis under Saucier v. Katz, 533 U.S. 194 (2001) . The Ninth Circuit Court of Appeal s also denied qualified immunity as to the duration of