SAN FRANCISCO (CN) — A Bay Area police officer must face claims that he allowed his dog to bite a woman for a full minute during a 2020 arrest.
U.S. District Judge Rita Lin ruled that Brentwood Police Department Officer Ryan Rezentes cannot claim qualified immunity against excessive force claims brought by plaintiff Talmika Bates, who sued Rezentes in 2022.
Bates abandoned her claim that using the dog to bite her, while she hid unarmed in bushes after stealing from an Ulta Beauty store, was excessive. But she says the duration of the bite left her with ongoing traumatic brain injury.
Judge Lin said in a 24-page order late Monday that Rezentes cannot escape any of the excessive force claims over the duration of the dog's bite, based on the evidence that he did not immediately call off the dog, despite Bates’ pleading and promise to surrender to custody.
During the February 2020 incident Rezentes commanded the dog, Marco, to search the bushes near the Ulta store, without giving a verbal warning to allow Bates time to surrender, Bates said. The dog found Bates and bit her on the top of her head, as she screamed that she would come out of hiding.
Bodycam footage showed that Rezentes held Marco’s leash as the dog dragged Bates on the ground by her head, and Bates screamed for her mother and shouted, “My whole brain is bleeding.” Rezentes did not immediately remove the dog, and ordered Bates, “Sit up right now.”
The dog dragged Bates across the ground by her scalp for about a minute until Rezentes manually removed him, according to the complaint.
Ninth Circuit Court of Appeals precedent holds that excessive duration of a canine bite, or officers improperly encouraging a continued attack, could constitute excessive force and a constitutional violation, Judge Lin said, "regardless of whether the initial dog bite was justified." She said allowing the dog to bites Bates’ head for another 40 seconds after she gave a verbal surrender was a “serious intrusion.”
The Biden appointee also noted the severity of the bite on Bates’ head and said Brentwood police officers know such bites can cause serious harm or kill a person. Rezentes had a clear view of where the bite was, bodycam footage shows, and did not immediately instruct the dog to release Bates. Graphic photographs included in the complaint show that portions of Bates’s scalp were ripped from her head.
Bates properly demonstrated that there are reasonable questions a jury could answer about whether the duration of the bite amounted to excessive force, since she was unarmed during the incident and did not try to flee.
Rezentes also had backup from an armed officer at the time, and a reasonable jury could conclude that he could have safely arrested the physically incapacitated Bates, Lin said.
“A reasonable officer would have known in 2020 that it violates the Fourth Amendment to prolong a dog bite after the suspect had done everything in their power to communicate surrender, and to give a physically incapacitated suspect repeated commands to sit up or crawl rather than calling off the dog," Lin said.
"Moreover, a reasonable jury could find that Rezentes realized by thirty seconds into the bite, at the latest, that the dog was biting Bates’s head, and that a reasonable officer would have acted promptly to call the dog off.”
Bates said she suffered significant tears in her scalp that required surgical tissue rearrangement and laceration repair following the 2020 incident. She said she experiences frequent intense headaches, dizziness, vertigo, ringing in her ears and sensitivity to light, as well as short-term memory loss and personality changes. She has a diagnosis of mild diffuse traumatic brain injury, mild post-traumatic brain syndrome and post-traumatic stress disorder.
Bates pleaded no contest in January 2022 to charges of resisting arrest and misdemeanor grand theft of merchandise.
Rezentes spent six years as Marco's handler. He deployed the 85-pound German Shepherd 37 times, with four bite commands, between 2019 and 2021. Marco knows the commands to search, bite and release, although Rezentes said he removes Marco manually from bite holds.
Brentwood Police Department and attorneys for Bates, the city of Brentwood and Rezentes did not immediately respond to requests for comment. The parties return to court for case management May 29.
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