Corey Hughes v. Michael Rodriguez

                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 COREY HUGHES,                                      No. 20-17144
                      Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           2:18-cv-03188-
                                                      JAM-DB
 MICHAEL RODRIGUEZ; ROBERT
 MOLTHEN; HARVEY CASILLAS;
 CHRIS RODRIGUEZ,                                     OPINION
             Defendants-Appellees.

         Appeal from the United States District Court
             for the Eastern District of California
          John A. Mendez, District Judge, Presiding

           Argued and Submitted October 19, 2021
                 San Francisco, California

                       Filed April 21, 2022

    Before: Ronald M. Gould and Carlos T. Bea, Circuit
       Judges, and Eric N. Vitaliano, * District Judge.

                 Opinion by Judge Bea;
Partial Concurrence and Partial Dissent by Judge Vitaliano



     *
       The Honorable Eric N. Vitaliano, United States District Judge for
the Eastern District of New York, sitting by designation.
2                    HUGHES V. RODRIGUEZ

                          SUMMARY **


                           Civil Rights

    The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of law
enforcement officials in an action brought pursuant to

42 U.S.C. § 1983

 and state law alleging that defendants used
excessive force in apprehending plaintiff after he escaped
from a San Joaquin County Jail highway work crew and
lived on the lam for three weeks.

    Applying Scott v. Harris, 

550 U.S. 372, 378

 (2007), the
panel stated that for purposes of ruling on a motion for
summary judgment, a district court may properly view the
facts in the light depicted by bodycam footage and its
accompanying audio, to the extent the footage and audio
blatantly contradict testimonial evidence.          The panel
determined that in this case, the bodycam footage and audio
did not blatantly contradict all of plaintiff’s testimony.
While the bodycam footage did blatantly disprove plaintiff’s
claim regarding the duration of his alleged beating by
defendants, it did not blatantly disprove plaintiff’s claim that
he was punched after he was handcuffed. Thus, while the
panel viewed the facts blatantly contradicted by the bodycam
footage in the light depicted by the videotape and its audio
to conclude that plaintiffs did not attempt to surrender to the
officers, the panel viewed all other facts, including plaintiff’s
allegation of the post-handcuff beating, in the light most
favorable to plaintiff, the nonmoving party, on summary
judgment.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   HUGHES V. RODRIGUEZ                         3

    The panel next considered (1) whether there had been a
violation of a constitutional right; and (2) whether that right
was clearly established at the time of the officer’s alleged
misconduct. Because the Eighth Amendment applies
equally to convicted prisoners inside or outside the walls of
the penal institution, the panel analyzed plaintiff’s claim of
excessive force under the Eighth Amendment. The panel
held that while the initial use of a dog was clearly
proportional to the threat posed by plaintiff before he was
handcuffed, whether the alleged post-handcuff beating and
dog-biting occurred, and whether it was proportional to the
threat Officer Michael Rodriguez reasonably perceived by a
handcuffed plaintiff, were questions for the trier of fact. The
panel further held that Officer Michael Rodriguez was not
entitled to qualified immunity under § 1983 as to the claimed
post-handcuff beating and dog-biting because it was clearly
established law that beating a handcuffed convict violates
the Eighth Amendment.

     While the evidence against Officer Michael Rodriguez
was sufficient to survive summary judgment as to plaintiff’s
claim of post-handcuffed punching and dog-biting, the
excessive force claims against Officer Molthen, Agent Chris
Rodriguez, and Agent Casillas, based on theories of failure
to intervene and failure to intercede, failed as a matter of law.

    Concurring in part and dissenting in part, Judge
Vitaliano was satisfied that plaintiff’s claim of a two-minute
beating was blatantly contradicted by the audio and video
recordings on the bodycam footage. That being the case,
Judge Vitaliano would affirm the district court in full, and
toss aside plaintiff’s excessive force and failure-to-intervene
claims. And while Judge Vitaliano concurred in the opinion
affirming the judgment for all officers found not to have used
excessive force, he concurred only in the judgment on the
4                 HUGHES V. RODRIGUEZ

failure-to-intervene claims and dissented from the reversal
of the grant of summary judgment as to Officer Michael
Rodriguez.


                       COUNSEL

Matthew J. Kita (argued), Dallas, Texas, for Plaintiff-
Appellant.

Jamil R. Ghannam (argued), Deputy City Attorney; John M.
Luebberke, City Attorney; Office of the City Attorney,
Stockton, California; for Defendants-Appellees Michael
Rodriguez and Robert Molthen.

Robert M. Perkins III (agued) and Martha Ehlenbach,
Deputy Attorneys General; Misha D. Igra, Supervising
Deputy Attorney General; Monica N. Anderson, Senior
Assistant Attorney General; Rob Bonta, Attorney General;
Office of the Attorney General, San Francisco, California;
for Defendants-Appellees Harvey Casillas and Chris
Rodriguez.
                  HUGHES V. RODRIGUEZ                    5

                        OPINION

BEA, Circuit Judge:

    Corey Hughes escaped from a San Joaquin County Jail
highway work crew and lived on the lam for three weeks. It
took authorities from three law enforcement agencies and a
trained police dog to apprehend Hughes. During his capture,
Hughes sustained dog bites and bruising to his leg, and
minor abrasions to his head and face.

    Hughes sued two Stockton Police Department officers
and two California Department of Corrections officers
involved in his apprehension under 

42 U.S.C. § 1983

 for
excessive force and brought related state law claims. The
district court granted the officers’ motion for summary
judgment on all claims. Hughes appeals, contending that
even though objective bodycam footage largely disproved
his testimony, (1) disputes of material fact remain as to
whether excessive force was used in violation of the Eighth
Amendment and state law, and (2) the officers were not
entitled to qualified immunity.

    We agree in part. For the reasons discussed below, we
affirm summary judgment as to the claims against Officer
Robert Molthen, Agent Chris Rodriguez, and Agent Harvey
Casillas. But we reverse as to the claims against Officer
Michael Rodriguez.

I. BACKGROUND

   A. The Search for Hughes

   The facts preceding Hughes’s apprehension by law
enforcement are largely uncontested. Hughes pleaded guilty
to unlawful possession of a loaded firearm with a large
6                 HUGHES V. RODRIGUEZ

capacity magazine, a misdemeanor offense. While serving
his 185-day sentence in the San Joaquin County jail, Hughes
was assigned to a highway work crew. On November 27,
2017, just ten days into his sentence, Hughes jumped over a
fence while on the work crew and escaped the custody of
San Joaquin County.

    Hughes was on the lam for more than three weeks.
During this time, the San Joaquin County Sheriff’s Office
joined forces with the California Department of Corrections
and Rehabilitation’s Fugitive Apprehension Team in the
search for Hughes. Agent Chris Rodriguez of the Fugitive
Apprehension Team led the investigation into Hughes’s
whereabouts.

    During his investigation, Agent Chris Rodriguez learned
the following facts about Hughes: (1) Hughes had prior
convictions for possession of a stolen vehicle, weapons
possession, and evading a peace officer with disregard for
safety, (2) Hughes was affiliated with a violent street gang,
(3) Hughes had training in mixed martial arts, and
(4) Hughes was possibly under the influence of
methamphetamine. These facts led Agent Chris Rodriguez
to conclude that Hughes posed a danger to the public and the
arresting team.

    On December 21, 2017, law enforcement learned from
the mother of Hughes’s children that Hughes might be
hiding at the home of his friend, Hal Ward, at 9041 Don
Avenue, Stockton. At 10:30 AM that morning, Agent Chris
Rodriguez and Agent Harvey Casillas, also of the Fugitive
Apprehension Team, went to Ward’s home, knocked on the
door, and received no response. Shortly thereafter, Ward
exited the home and informed Agent Chris Rodriguez and
Agent Casillas that Hughes was inside. Ward gave Agent
Casillas his keys and granted permission to enter the home.
                  HUGHES V. RODRIGUEZ                      7

    Agent Chris Rodriguez contacted members of the
Stockton Police Department to participate in the extraction
of Hughes from the home. Officer Michael Rodriguez and
Officer Robert Molthen arrived at 9041 Don Avenue.
Officer Michael Rodriguez was accompanied by Cain, a
trained police dog.

    The Stockton Police Department and the San Joaquin
County Sherriff’s Department created a perimeter around the
neighborhood and requested fly-over air support from the
California Highway Patrol. Officers used a loudspeaker to
urge Hughes to exit the home. When this effort was
unsuccessful, the Stockton Police Department assembled an
entry team consisting of Agent Chris Rodriguez, Agent
Casillas, Officer Michael Rodriguez, and Cain. The team
gathered in the home’s front entryway.

   B. Hughes’s Apprehension

    The moment the entry team gathered by the front door is
the moment at which the factual accounts diverge. Hughes
testified at deposition that he was sleeping in the back
bedroom of the home when he heard officers yelling at him
from the front door to come out. He shouted back repeatedly
at a loud volume, “Hold on, I’m coming out!” until he was
just ten feet away from the front door. Hughes walked from
the back bedroom with his hands up in a gesture of surrender.
He kept his arms up and peered around the corner to make
eye contact with Officer Michael Rodriguez. It was only
after Hughes made eye contact and showed his empty hands
that Officer Michael Rodriguez released Cain. Cain
immediately attacked Hughes, which caused Hughes to
collapse into the hallway.

   Once he was on the ground, officers piled on top of
Hughes while Cain continued to bite. Hughes testified that
8                  HUGHES V. RODRIGUEZ

he did not resist arrest, but that he moved involuntarily in
response to Cain biting and pulling at his limbs. After only a
few seconds, the officers had Hughes face-down with his
hands cuffed behind his back. Once Hughes was handcuffed
and subdued, Hughes was punched in the head and face, and
Cain continued to bite Hughes, for “two minutes, if not
more.”

    The law enforcement account differs substantially.
Bodycam footage from Officer Michael Rodriguez and
Officer Molthen shows the law enforcement team assembled
just outside the home’s open front door. In the footage,
Officer Michael Rodriguez can be seen and heard shouting
twice, “Stockton P.D., come on out or you’re going to get bit
by a police dog!” However, there is no audible reply from
Hughes. The camera, pointed precisely where Hughes
claims to have been standing with his hands up, shows only
an empty hallway. Hughes’s face and arms are not in the
officers’ view. Hughes does not appear in the camera’s
frame until Cain attacks, and Hughes tumbles onto the floor
and into the hallway. This footage flatly refutes Hughes’
claim that he was standing in the hallway with his arms up
in surrender mode.

    The officers engaged in a physical struggle with Hughes.
Officer Michael Rodriguez testified that his bodycam was
kicked off of his chest, and while the footage does not depict
the kick, Officer Michael Rodriguez’s bodycam does turn
off suddenly. Officer Michael Rodriguez admits to punching
Hughes in the head before Hughes was handcuffed because
Hughes was grabbing Officer Michael Rodriguez’s groin
area, near the gun on his belt.

    The footage clearly refutes Hughes’s claim that he was
beaten for “two minutes if not more,” as no more than a
single minute elapses between the moment Officer Michael
                     HUGHES V. RODRIGUEZ                            9

Rodriguez releases the dog and the moment Hughes is taken
into custody. Importantly, however, the footage does not
clearly and unmistakably depict whether punches were
thrown before or after Hughes was handcuffed. The
defendant officers argue that the audio from Officer
Molthen’s bodycam contains the unmistakable sound of
handcuffs snapping on Hughes’s hands, after which Hughes
can be heard shouting “Okay! Okay!” and an off-camera
officer announces that Hughes is in custody, after which the
scene goes quiet, and no sounds of beating or dog biting can
be heard. Appellees argue that the series of events indicated
by this audio necessarily rebuts Hughes’s testimony that he
was beaten after he was handcuffed.

    After his apprehension, Hughes went to the hospital by
ambulance for treatment for the dog bites to his left leg,
abrasions to his head and face, and bruising on his upper
right thigh. Hughes testified that he has scarring and residual
soreness in his left leg due to the dog bites.

    C. Procedural Background

   Hughes filed suit in the Eastern District of California. He
sued all defendants, Officer Michael Rodriguez, Officer
Molthen, Agent Chris Rodriguez, and Agent Casillas, for
excessive force under 

42 U.S.C. § 1983

 and negligence. He
sued Officer Michael Rodriguez alone under California’s
Bane Act 1 and for battery. The defendant law enforcement



    1
       The Bane Act created a cause of action for “interference or
attempted interference by ‘threat, intimidation, or coercion’ with the
‘exercise or enjoyment’ of rights under the federal Constitution.’”
Rodriguez v. County of Los Angeles, 

891 F.3d 776, 799

 (9th Cir. 2018)
(citing 

Cal. Civ. Code § 52.1

).
10                 HUGHES V. RODRIGUEZ

officers filed motions for summary judgment, which the
district court granted as to all claims.

II.    STANDARD OF REVIEW

   “We review a district court’s grant of summary judgment
and its qualified immunity determinations de novo.”
Furnace v. Sullivan, 

705 F.3d 1021, 1026

 (9th Cir. 2013).

III.   DISCUSSION

       A. The Standard on Summary Judgment

           1. The Role of Scott v. Harris

    “[T]he first step in assessing the constitutionality of [the
officers’] actions is to determine the relevant facts.” Scott v.
Harris, 

550 U.S. 372, 378

 (2007). Typically, when ruling on
a motion for summary judgment, the district court is required
to view the facts in the light most favorable to the
nonmoving party—in this case, Hughes. Saucier v. Katz,

533 U.S. 194

, 201 (2001). However, the district court,
relying on the Supreme Court’s decision in Scott, viewed the
facts in the light depicted by the officers’ bodycam footage.
As explained below, the district court properly relied on the
bodycam footage and audio to the extent they “blatantly
contradicted” Hughes’s deposition testimony. Id. at 380.
However, not all of Hughes’s testimony was blatantly
contradicted.

    In Scott, the plaintiff brought an excessive force claim
against a police officer after the police officer rammed his
vehicle into the plaintiff’s vehicle during a high-speed chase.
Id. at 375. The plaintiff testified that he was driving
carefully, while the officer’s dashcam footage showed him
                   HUGHES V. RODRIGUEZ                      11

speeding, swerving, crossing the double-yellow line, and
forcing cars off the road. Id. at 379–80.

    Justice Scalia, writing for the majority, stated that
“[w]hen opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.” Id. at 380. Thus, the district court in
Scott erred when it denied the officer’s motion for summary
judgment because instead of viewing the facts in the light
most favorable to the plaintiff, it should have viewed the
facts in the “light depicted in the videotape.” Id. at 381.

    While Scott involved dashcam video footage, courts
have since applied its logic to other types of evidence
capable of objectively disproving witness testimony. See
Coble v. City of White House, 

634 F.3d 865

, 868–69 (6th Cir.
2011) (audio from dashcam footage); Curran v. Aleshire,

800 F.3d 656, 663

 (5th Cir. 2015) (still photographs);
McManemy v. Tierney, 

970 F.3d 1034, 1038

 (8th Cir. 2020)
(taser log); White v. Georgia, 380 Fed. App’x 796, 797 (11th
Cir. 2010) (uncontradicted medical testimony). As the Sixth
Circuit concluded in Coble, there is “nothing in the Scott
analysis that suggests that it should be restricted to cases
involving videotapes. The Scott opinion does not focus on
the characteristics of a videotape, but on the ‘record.’”
Coble, 634 F.3d at 868–69.

    We agree with the Sixth Circuit and find that, for
purposes of ruling on a motion for summary judgment, a
district court may properly view the facts in the light
depicted by bodycam footage and its accompanying audio,
to the extent the footage and audio blatantly contradict
testimonial evidence.
12                 HUGHES V. RODRIGUEZ

       2. Application to the Bodycam Footage

    However, in this case, the bodycam footage and audio do
not blatantly contradict all of Hughes’s testimony. The
parties dispute what happened at three key moments during
the apprehension of Hughes: (1) whether Hughes shouted to
officers that he would exit peacefully, (2) whether Hughes
made a gesture of surrender to the officers before Officer
Michael Rodriguez released Cain into the home, and
(3) whether Officer Rodriguez punched Hughes in the head
and face, and allowed Cain to bite Hughes, even though
Hughes was handcuffed and subdued.

    As to the first two factual disputes, Hernandez v. Town
of Gilbert, 

989 F.3d 739

 (9th Cir. 2021) is on point. In
Hernandez, police officers attempted to extract a DUI
suspect from his vehicle. 

Id. at 742

. After the suspect refused
several verbal warnings, officers deployed a dog. 

Id.

 The
suspect sued for excessive force, claiming that he had
“offered to surrender,” before officers released the dog. 

Id. at 746

. But the bodycam footage did not show any attempts
to surrender. 

Id.

 Relying on Scott, this Court affirmed the
district court’s decision to disregard the suspect’s factual
account and credit the objective bodycam footage.

    We reach the same conclusion here. Hughes’s testimony
that he yelled to the officers that he was “Coming out!” and
that he raised his hands in a gesture of surrender while
making eye contact with the officers is blatantly contradicted
by the objective bodycam footage and audio. Hughes
testified that he yelled he was “Coming out!” when he was
only ten feet away from the front door to the home, yet no
audible reply to the officer’s warnings can be heard in the
footage. The camera, aimed precisely where Hughes claims
to have been standing with his hands up in a gesture of
                      HUGHES V. RODRIGUEZ                              13

surrender, shows an empty hallway. The district court
properly discredited this testimony under Scott.

    However, the district court erred when it disregarded all
of Hughes’s testimony even though only part was blatantly
contradicted. 2 Hughes also testified that he was not resisting
arrest, and that he was punched after he was handcuffed and
subdued; Officer Michael Rodriguez testified that Hughes
was resisting and that he punched Hughes before he was
handcuffed because Hughes was grabbing his groin area,
near the gun on his belt. Hughes testified that the beating
lasted for “two minutes, if not more,” but no more than a
single minute elapses between the moment the dog was
released and the moment officers announced that Hughes
was in custody and the scene goes quiet. But one bodycam,
belonging to Officer Michael Rodriguez, had turned off
when the alleged punches were thrown. Another officer’s
bodycam was not pointed directly at the fray. Thus, while
the bodycam footage did blatantly disprove Hughes’s claim
regarding the duration of the beating, it did not blatantly
disprove Hughes’s claim that he was punched after he was
handcuffed. Instead, the defendant officers argue that the
audio objectively disproves Hughes’s account.

    This remaining factual dispute makes this case like
Coble. There, the defendant officer suspected the plaintiff of
driving under the influence and followed him in his police
car, which was equipped with a dashcam. Coble, 634 F.3d
at 868–69. When the plaintiff pulled over and exited his
    2
      While the trier of fact may rely on the rule of falsus in uno, falsus
in omnibus to decide that a witness who has lied about one material fact
must be disbelieved as to all facts, see George Fisher, The Jury’s Rise As
Lie Detector, 

107 Yale L.J. 575

, 654–55 (1997), this rule is not a binding
mandate, and is certainly not to be applied by judges ruling on motions
for summary judgment.
14                 HUGHES V. RODRIGUEZ

vehicle, the plaintiff and the officer got into a physical
altercation, during which the plaintiff sustained a broken
ankle before he was handcuffed. 

Id.

 These events were
captured by the dashcam. But after the officer handcuffed
the plaintiff, the two fell out of the camera’s frame. The
plaintiff testified that the officer required him to walk for
over thirty feet on his broken ankle, despite his screams of
pain. 

Id.

 Because the plaintiff and the officer had moved out
of frame, the court had only audio available to review.

     The Sixth Circuit held that Scott v. Harris applied to
audio recorded by dashcams. 

Id. at 869

. However, even
though the plaintiff’s screams could not be heard in the
recording, the court nevertheless held that the audio did not
blatantly disprove the plaintiff’s testimony, as it was unclear
whether the officer was aware of the broken ankle, or how
far the plaintiff was made to walk. 

Id.

 at 869–70.

    Unlike the dissent, after numerous viewings, we are
unable to hear the “transcendent, unmistakable whir of
handcuffs snapping shut” at timestamp 2:37 in the bodycam
footage. Even if we could, the chaos of the struggle and
Hughes’s cries of pain render it impossible to hear individual
punches and whether they were thrown before or after
Hughes was in handcuffs. Furthermore, for several seconds
after the timestamp, Hughes’s cries of pains are still audible,
meaning that his claim that he was punched and bitten, for at
least some span of time after the handcuffs went on, is
somewhat supported.

    Thus, while we view the facts blatantly contradicted by
the bodycam footage in the light depicted by the videotape
and its audio to conclude that Hughes did not attempt to
surrender to the officers, we must view all other facts,
including the allegation of the post-handcuff beating, in the
light most favorable to Hughes.
                   HUGHES V. RODRIGUEZ                      15

   B. Excessive Force and Qualified Immunity

    Having completed the first step of our analysis, we turn
to (1) whether there has been a violation of a constitutional
right; and (2) whether that right was clearly established at
the time of the officer’s alleged misconduct. Ashcroft v. al-
Kidd, 

563 U.S. 731, 735

 (2011).

       1. The Applicable Constitutional Right

    But these questions, in turn, put first the question of
which constitutional right, protects escaped prisoners from
excessive force. The Supreme Court has rejected the “notion
that all excessive force claims brought under § 1983 are
governed by a single generic standard . . . In addressing an
excessive force claim brought under § 1983, analysis begins
by identifying the specific constitutional right allegedly
infringed by the challenged application of force.” Graham v.
Conner, 

490 U.S. 386

, 393–94 (1989) (internal citations
omitted).

    The Fourth Amendment’s “objective reasonableness”
standard “governs a free citizen’s claim that law
enforcement officials used excessive force,” in any search or
seizure, 

id. at 388

, while the Fourteenth Amendment’s
objective reasonableness standard protects pretrial
detainees. Kingsley v. Hendrickson, 

576 U.S. 389

 (2015).
After conviction, “the Eighth Amendment, which is
specifically concerned with the unnecessary and wanton
infliction of pain in penal institutions, serves as the primary
source of substantive protection to convicted prisoners.”
Whitley v. Albers, 

475 U.S. 312, 327

 (1986). To determine
the applicable constitutional right in this case requires us to
place escaped prisoners, like Hughes, on the custodial
continuum, with free citizens on one end and convicted
prisoners on the other.
16                 HUGHES V. RODRIGUEZ

    We conclude that the Eighth Amendment applies equally
to convicted prisoners inside or outside the walls of the penal
institution. The logic of Whitley applies with equal force
even in the case of an escaped convict, as “the State has
complied with the constitutional guarantees traditionally
associated with criminal prosecutions.” 

Id.

 at 318 (citing
Ingraham v. Wright, 

430 U.S. 651

, 671 n. 40 (1977)).

    And although claims of excessive force brought by
escaped prisoners are rare, our conclusion conforms to the
law of our sister circuits. See Gravely v. Madden, 

142 F.3d 345

, 346–48 (6th Cir. 1998) (holding that the Eighth
Amendment applied to an excessive force claim brought by
an escaped convict because “[t]he Fourth Amendment is not
triggered anew by attempts at recapture because the convict
has already been ‘seized,’ tried, convicted, and
incarcerated.”). Thus, we analyze Hughes’s claim of
excessive force under the Eighth Amendment.

       2. Eighth Amendment Excessive Force

    With the relevant facts in hand and the proper
constitutional standard identified, we proceed to determine
whether Hughes’s testimony that was not “blatantly
contradicted,” Scott, 

550 U.S. at 380

, by the bodycam
footage creates a triable issue of material fact as to whether
his Eighth Amendment right against excessive force was
violated.

    In excessive force cases brought under the Eighth
Amendment, the relevant inquiry is “whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 

503 U.S. 1, 7

 (1992) (quoting Whitley,
475 U.S. at 320–21). This Court applies a five-factor test to
determine whether the use of force was malicious and
                     HUGHES V. RODRIGUEZ                           17

sadistic: “(1) the extent of injury suffered by an inmate;
(2) the need for application of force; (3) the relationship
between that need and the amount of force used; (4) the
threat reasonably perceived by the responsible officials; and
(5) any efforts made to temper the severity of the forceful
response.” Furnace, 

705 F.3d at 1028

 (9th Cir. 2013)
(quotation omitted).

    First, we examine the extent of Hughes’s injuries.
Although not binding precedent, in Koley v. Williams, No.
CV 19-08038-PCT-DWL (JZB), 

2021 WL 806935

 (D. Ariz.
Mar. 3, 2021) (slip copy), the district court concluded that a
dog bite with no lasting complications was a minor injury.
Here, Hughes testified that he suffered dog bites to his left
leg, abrasions to his head and face, and bruising on his upper
right thigh. He claims he has scarring and residual soreness
in his left leg, but he makes no allegations that these injuries
interfere with his work or daily life. We conclude that these
injuries are relatively minor, and this factor weighs slightly
in favor of the defendant law enforcement officers.

    Next, we examine factors two through four—the
proportionality factors. We note that the use of biting police
dogs on hiding suspects has been repeatedly upheld under
the more plaintiff-friendly Fourth Amendment excessive
force standard. See Hernandez v. Town of Gilbert, 939 F.3d
at 739; Mendoza v. Block, 

27 F.3d 1357

 (9th Cir. 1994);
Miller v. Clark County, 

340 F.3d 959

 (9th Cir. 2003). If the
officer’s conduct does not breach the lower Fourth
Amendment standard, it does not breach the higher Eighth
Amendment standard. 3


    3
      The test for a Fourth Amendment excessive force claim is whether
the force used was “objectively reasonable under the circumstances.”
18                   HUGHES V. RODRIGUEZ

    Indeed, this case bears a striking resemblance to Miller.
In that case, the suspect was hiding in woods that were
familiar to the suspect, but not to the officers, which afforded
him “the opportunity to select a hiding place to maximize
[his] strategic advantage.” 

Id. at 965

. The same is true for
Hughes, who was hiding within a home familiar to him, but
unfamiliar to the officers. Like in Miller, the officers here
did not know whether Hughes was armed and, given his
prior convictions for weapons possession, had reason to
suspect that he was. Just as in Miller, Hughes “remained
defiant, having ignored [the officer’s] warning that he was
about to release a police dog.” 

Id.

 “Under these objectively
menacing circumstances,” Officer Michael Rodriguez was
“entitled to assume” that Hughes “posed an immediate threat
to his and to the other deputy’s safety.” 

Id.

 “Given the
gravity of the risk to law enforcement,” we conclude that
these factors weigh heavily in favor of the officers. 

Id.

    We conclude that the initial use of the police dog was
proportional to the “threats to the safety of [the officers], as
reasonably perceived by the responsible officials on the basis
of the facts known to them.” Whitley, 

475 U.S. at 31

.

    Finally, we look at efforts made to temper the severity of
the law enforcement response. Hughes had three weeks to
turn himself in. On the morning of his apprehension, officers
used loudspeakers urging Hughes to come out of hiding.
Officers knocked on the door of Ward’s home repeatedly.
When officers opened the front door to the home, Officer
Michael Rodriguez gave Hughes two warnings to come out
or face a police dog. Hughes did not avail himself of any
opportunity to turn himself in, respond to any of the officer’s

Graham, 

490 U.S. at 397

. The test for an Eighth Amendment violation
is whether the force was malicious and sadistic. Hudson, 

503 U.S. at 7

.
                   HUGHES V. RODRIGUEZ                       19

attempts to make their presence known, or heed any warning
that force was coming. Thus, this factor weighs heavily in
favor of the defendant officers.

    But Hughes’s Eighth Amendment claim does not rest
solely on the initial use of the dog. If that were the case, our
analysis could stop here. Instead, Hughes also testified that
he was beaten and bitten after he was fully subdued, with his
hands cuffed behind his back. Although Officer Michael
Rodriguez insists that he threw the punch before Hughes was
cuffed, “[a]t the summary judgment stage the trial judge’s
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250

 (1986).

    The portion of Hughes’s testimony that was not blatantly
contradicted by the bodycam footage creates a triable issue
of material fact as to whether Hughes was beaten and bitten
after he was handcuffed in violation of the Eighth
Amendment. See Manley v. Rowley, 

847 F.3d 705, 711

 (9th
Cir. 2017) (reversing summary judgment in favor of
defendant corrections officers where the inmate plaintiff
testified that the officers beat him after he was handcuffed);
Martinez v. Stanford, 

323 F.3d 1178, 1180

 (9th Cir. 2003)
(reversing grant of summary judgment in favor of defendant
corrections officers where the inmate plaintiff testified that
officers kicked him in the shoulder and hit him in the back
with a baton after he was handcuffed).

    While the initial use of the dog was clearly proportional
to the threat posed by Hughes before he was handcuffed,
whether the post-handcuff beating and dog-biting occurred,
and whether it was proportional to the threat Officer Michael
Rodriguez reasonably perceived by a handcuffed Hughes,
are questions for the trier of fact.
20                 HUGHES V. RODRIGUEZ

       3. Failure    to       Intercede     and      Integral
          Participation

    Officers can be held liable for failing to intercede in
situations where excessive force is claimed to be employed
by other officers only if “they had an opportunity to
intercede.” Cunningham v. Gates, 

229 F.3d 1271

, 1289–90
(9th Cir. 2000) (finding a failure to intervene claim failed
because there was no realistic opportunity for officers to
prevent a rapidly unfolding shooting). Furthermore, officers
can be held liable for excessive force on a theory of integral
participation only if they participate “in some meaningful
way” in the specific actions that constituted the violation.
Boyd v. Benton County, 

374 F.3d 773, 780

 (9th Cir. 2004).

    Assuming arguendo that Officer Michael Rodriguez
beat Hughes and allowed the dog to bite Hughes after he was
handcuffed, the sole alleged acts which could rise to the
threshold of an Eighth Amendment violation in this case, the
video footage demonstrates that those acts took place during
the rapidly unfolding chaos of the physical struggle to
apprehend Hughes. Officer Molthen, who was on the other
side of the home at the time, and Agents Chris Rodriguez
and Casillas, who are not canine handlers, cannot be held
liable for fleeting acts which they did not commit, came
without warning, and could not have prevented. While the
evidence against Officer Michael Rodriguez is sufficient to
survive summary judgment as to the claim of his post-
handcuffed punching and dog-biting, the excessive force
claims against Officer Molthen, Agent Chris Rodriguez, and
Agent Casillas, based on theories of failure to intervene and
failure to intercede, fail as a matter of law.
                   HUGHES V. RODRIGUEZ                      21

       4. Qualified Immunity

    Qualified immunity is proper unless the plaintiff can
establish that “the [officers’] specific conduct violated
clearly established federal law.” Sharp v. County of Orange,

871 F.3d 901, 909

 (9th Cir. 2017) (citations omitted). To
overcome qualified immunity, “existing precedent must
have placed the statutory or constitutional question beyond
debate.” Kisela v. Hughes, 

138 S. Ct. 1148, 1152

 (2018)
(quotation omitted). The plaintiff bears the burden of
“point[ing] to prior case law that articulates a constitutional
rule specific enough to alert these officers in this case that
their particular conduct was unlawful.” Sharp, 

871 F.3d at 911

.

    In Hernandez, we found that to “defeat qualified
immunity, [the plaintiff] must show that the state of the law
as of [the events at issue] 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.” 

989 F.3d at 744

 (citing Hope
v. Pelzer, 

536 U.S. 730, 741

 (2002)).

    If Officer Michael Rodriguez’s alleged unconstitutional
conduct stopped at the use of the dog to subdue Hughes, he
would certainly be entitled to qualified immunity under our
precedents in Hernandez, Miller, and Mendoza. However, it
is clearly established law that beating a handcuffed convict
violates the Eighth Amendment. Hudson, 

503 U.S. at 4

. And
“no particularized case law is necessary for a deputy to know
that excessive force has been used when a deputy sics a
canine on a handcuffed arrestee who has fully surrendered
and is completely under control.” Mendoza, 

27 F.3d at 1362

.
We hold that Officer Michael Rodriguez is not entitled to
qualified immunity under § 1983 as to the claimed post-
handcuff beating and dog-biting.
22                 HUGHES V. RODRIGUEZ

      C. The State Law Claims

    The elements of a Bane Act claim are essentially
identical to the elements of a § 1983 claim, with the added
requirement that the government official had a “specific
intent to violate” a constitutional right. Reese v. County of
Sacramento, 

888 F.3d 1030, 1043

 (9th Cir. 2018). Whether
Officer Michael Rodriguez used excessive force in violation
of Hughes’s constitutional right, and whether he had a
specific intent to do so, are questions properly reserved for
the trier of fact.

    However, Hughes waived appellate review of his state
law battery and negligence claims by failing to include his
“contentions and the reasons for them, with citations to the
authorities and parts of the record on which [he] relie[d]” in
his opening brief. Fed. R. App. P. 28(a)(8)(A).

IV.      CONCLUSION

    We reverse the grant of summary judgment on the
§ 1983 and Bane Act claims against Officer Michael
Rodriguez. We affirm summary judgment as to all other
claims.

      AFFIRMED in part and REVERSED in part.



VITALIANO, District Judge, concurring in part and
dissenting in part:

   Just one word separates my views from those of the
majority: “genuine.” The majority believes that there exists
a genuine dispute of material fact barring an award of
                  HUGHES V. RODRIGUEZ                     23

summary judgment in favor of Officer Michael Rodriguez.
I do not.

    Like the majority, I would not hesitate to apply the rule
of Scott v. Harris, 

550 U.S. 372

 (2007), to audio recordings
as well as video recordings. That is, where contents of an
audio recording “blatantly contradict[]” a party’s version of
events—just as the videotape in Scott did—the factual
dispute is not “genuine,” and a court should rely on the
recording, not the party’s discredited testimony, when ruling
on his adversary’s motion for summary judgment.

    Further, like the majority, I conclude that the district
court properly relied upon Scott to reject Hughes’s testimony
on two key points: whether Hughes shouted to officers that
he would exit his hideout peacefully (he didn’t), and
whether, before Cain the police dog was unleashed, Hughes
made a gesture of surrender to the officers (he didn’t).
Because audio and video recordings captured by police body
cameras firmly contradict those assertions, the majority
affirms much of the district court’s grant of summary
judgment, notwithstanding separate protests that Cain’s
deployment was disproportionate under the circumstances.
So do I.

     The majority and I part company, however, over the
district court’s third and final application of Scott. In the
crosshairs is Hughes’s allegation that, after he had been
handcuffed and subdued, Officer Michael Rodriguez
continued to punch him and Cain continued to bite him, both
for approximately two minutes. The majority finds error in
the district court’s reliance on Scott to hold that Hughes’s
version of events was conclusively inconsistent with the
audio and video recorded by the officers’ body cameras. But
I find no error.
24                  HUGHES V. RODRIGUEZ

    As is evident from the views we express, the body
cameras captured a critical sequence of events. That
sequence is best appreciated when the videos are viewed in
tandem. On the footage, we see and hear Hughes, contrary
to the first two factual claims he asserts in this action, failing
to surrender in response to police commands, and an officer
using a tool to unlock and open a house door. We see Cain
bounding through the doorway, straight for Hughes’s torso,
and Officer Michael Rodriguez ambling in behind the dog.

    The relevant footage from Officer Molthen’s camera is
different in character from that captured by the other body
cameras; after all, by the time Officer Molthen entered the
house, Hughes was already on the floor struggling with
Officer Michael Rodriguez and others. More than that,
Officer Molthen’s body—and, as a result, the video from his
camera—was for the most part pointed away from the scrum.
But the audio recording from this officer’s footage is
essential to a full understanding of the encounter. It
culminates in the transcendent, unmistakable whir of
handcuffs snapping shut, followed by an officer’s remark, “I
got one.” Then, seven seconds later, a second such snap is
heard, followed by an officer’s announcement, “Code Four.
In custody.” Almost instantaneously, Hughes’s pained
shouts and the officers’ barked instructions both cease.

   By pairing the audio from Officer Molthen’s footage
with the same sounds recorded by other officers’ body
cameras, a full timeline emerges. We know that what I have
described as the sound of the final handcuff snapping shut
occurred nearly 70 seconds after Cain bolted through the
doorway, and nearly 65 seconds from the start of Officer
Michael Rodriguez’s loud, off-camera struggle with
Hughes.
                      HUGHES V. RODRIGUEZ                             25

    The sequence of events is of obvious import to our
analysis. As the majority observes, a violation of clearly
established law occurs when force is used “on a handcuffed
arrestee who has fully surrendered and is completely under
control.” Mendoza v. Block, 

27 F.3d 1357, 1362

 (9th Cir.
1994). On this point, we are not divided. When the physical
encounter with Hughes began, both human and canine,
Hughes was not in custody and was actively attempting to
evade arrest. His claims to the contrary we held incredible
as a matter of law, because they are “blatantly contradicted”
by the collection of bodycam footage in the record. 1

    Focusing on the pre-custody aspect of Hughes’s claim,
on this record, the only question to be resolved is whether
the force committed to putting him into custody was
“malicious[] and sadistic[],” Hudson v. McMillian, 

503 U.S. 1, 7

 (1992), and thus violative of the Eighth Amendment.
That is a question already answered in the negative by the
majority, and it is an answer in which I concur. 2

    Now, although we all agree that there is no genuine
dispute as to when Hughes’s struggle with the officers
began, or as to the constitutionality of the restraining force

    1
      At various points, the district court’s oral decision suggested that
Hughes’s unreliability as to the circumstances of Cain’s deployment
rendered his account incredible from start to finish. That is not my
reasoning. Rather, it is the contradictions in Hughes’s account of a
handcuffed beating that render his account of that beating incredible.

    2
       Considering Hughes’s flight, his failure to surrender or respond to
shouted orders, and his history of gun possession, the officers were
entitled to assume that he posed a threat and to use force to subdue him,
just as the majority concluded. This conclusion absolving members of
the arrest team of liability would apply to a punch thrown in the course
of securing Hughes’s hands for arrest no less than it would to the
unleashing of Cain.
26                 HUGHES V. RODRIGUEZ

they used during the struggle, the majority contends that
there is a genuine dispute of material fact as to when Hughes
came to be fully in police custody. The majority maintains
that the sounds I have described—the handcuffing; Hughes’s
sudden pacification; the radio confirmation of custody by a
member of the arrest team—are not clear enough in
meaning, or not so conclusively supportive of Hughes’s
entry into custody, to “blatantly contradict[]” his averment
that he was beaten by officers and bitten by Cain after he had
been fully handcuffed and restrained, as the majority
believes Scott requires.

    Scott instructs that a “blatant[] contradict[ion]”
nullifying the genuineness of any professed dispute of
material fact is one so strong that “no reasonable jury could
believe” the nonmoving party’s version of events. Scott,

550 U.S. at 380

. Yet, by opting for the mire of inaudibility
in the teeth of the sounds captured on the footage of
Hughes’s arrest, the majority effectively raises the bar even
higher than the mark set by Scott. To classify the moment
of Hughes’s arrest as a genuinely disputed fact, given the
commonly understood whir of handcuffs snapping shut, is to
shift the meaning of “contradict[ion]” to the point where a
nonmoving party’s story must be wholly inconceivable. It is
to move the analysis from the realm of “genuine dispute”
into that of metaphysical impossibility. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574

, 586–87
(1986) (nonmovant “must do more than simply show that
there is some metaphysical doubt as to the material facts” as
asserted).

    There is more to Scott, though, than its black-letter rule.
Indeed, the facts recited by the Supreme Court to sketch the
scene in that case are fundamental to understanding its rule
of decision. Harris, a speeding motorist, told the district
                     HUGHES V. RODRIGUEZ                         27

court that Scott, a police deputy, had rammed Harris’s car
needlessly, inasmuch as Harris had “remained in control of
his vehicle, slowed for turns and intersections, and typically
used his indicator for turns.” Scott, 

550 U.S. at 379

. But his
actual conduct, as hog-tied to the Court’s description of
videotape evidence from a police-cruiser camera, was very
different. The Court perceived that Harris had swerved, run
multiple red lights, crossed a double-yellow line, and raced
“in the dead of night at speeds that are shockingly fast.” 

Id.

It was for this reason that the Court reversed an order
affirming the denial of Scott’s motion for summary
judgment; a district court, the Court held, should not view
the facts in the light most favorable to the nonmovant when
that view is at odds with objective proof offered by a video
recording. 

Id. at 380

.

    Were the “blatant[] contradict[ion]” at the heart of the
case—the evidence sufficient to disbelieve Harris as a matter
of law—some brute fact, the Court could have dispensed
with any number of the inferences it relied upon when
analyzing the video. In truth, no speedometer confirmed
Harris’s “shockingly fast” speed. The video itself 3 is black-
and-white and grainy, making it impossible to discern how
close Harris actually came to other traffic. Nor does the
video appear to explicitly show Harris “cross[ing] a double
yellow line.” Id. at 370. Rather, it is the vague glow and
apparent leftward pitch of Harris’s taillights that suggest that
he did so. To be sure, a defender of the Supreme Court’s
opinion in Scott would reasonably ask, “If that wasn’t
Harris’s car swerving left, then what was it?” But so, too,
might a viewer of Officer Molthen’s bodycam footage ask,
“If those weren’t the sounds of handcuffs snapping closed,

    3
      The video is viewable at https://www.supremecourt.gov/media/vi
deo/mp4files/scott_v_harris.mp4.
28                 HUGHES V. RODRIGUEZ

of Hughes submitting to custody, and of officers confirming
his entry into custody, then what were they?”

    Whether it be images from video footage, as in Scott, or
sounds on video footage, as here, if but one inference from
common experience explains them, there is no genuine
dispute of material fact as to that issue, and there is nothing
further for a factfinder to find. See Harris v. Cnty. of
Orange, 

17 F.4th 849

, 857 n.4 (9th Cir. 2021) (“[A]
‘possibility’ of a factual occurrence is not sufficient to
survive summary judgment.”). This principle, in fact,
extends beyond the purely factual: it has been applied even
to questions of inherently subjective interpretation, such as
the tone of a conversation. See Pierson v. Bassett, 

534 F. App’x 768, 771

 (10th Cir. 2013) (summary judgment
granted where, thanks to audio recording, no rational
factfinder would believe nonmovant’s claim that his
conversation with an officer was not “tense and
argumentative”).

    Though the majority contends otherwise, inferring a
blatant contradiction from Officer Molthen’s audio is not at
odds with Coble v. City of White House, Tenn., 

634 F.3d 865

(6th Cir. 2011). In Coble, the Sixth Circuit reversed a grant
of summary judgment, holding that a plaintiff’s account of
off-camera police violence was not “blatantly contradicted”
by the absence of assaultive noises on an officer’s
microphone recording. 634 F.3d at 869–70. Coble
illustrates the difficulty in inferring meaning from the
absence of a noise; the opinion rightly observed that “[m]any
factors could affect what sounds are recorded, including the
volume of a sound, the nature of the activity at issue, the
location of the microphone, whether the microphone was on
or off, and whether the microphone was covered.” 

Id. at 869

.
But these are factors that might explain a noise’s absence,
                   HUGHES V. RODRIGUEZ                     29

not its presence. And so Coble offers no reasonable analogy
to the instant case, where the sounds that I say blatantly
contradict the nonmovant’s version of events are
indisputably audible.

    Furthermore, ruling out the conclusiveness of the audio
recording of handcuffs snapping shut, as the majority’s
schema does, has a necessary, but presumably unintended,
consequence for the officers charged with failing to
intervene in a post-custody assault of Hughes. As the
majority acknowledges, about a minute elapsed between the
release of Cain, the immediately ensuing scuffle between
Hughes and officers, and the conclusion of that scuffle. The
majority, therefore, leaves open the possibility that Hughes
was handcuffed at the very start of the encounter. Were this
the case, Officer Rodriguez could have applied excessive
force against a handcuffed Hughes for long as a minute and
five seconds: ten seconds longer than it took Jim Jefferies to
knock out Jack Finnegan to become the undisputed
heavyweight champion of the world on April 6, 1900. See
Wait a Minute, or Two, N.Y. TIMES, June 28, 1988, at B7.

    Cutting to the quick: unbound by the timing supplied by
the sounds of the handcuffing, the arrest team had more than
sufficient time to intervene in the supposed assault of
Hughes, and a genuine issue lingers as to the liability of any
of Officer Michael Rodriguez’s partners who were present
for the arrest for failing to intercede. See, e.g., Cunningham
v. Gates, 

229 F.3d 1271

, 1289–90 (9th Cir. 2000). Indeed,
Officer Molthen was in the room while officers were trying
to handcuff Hughes and engaging in the very skirmish that
the majority posits might have been the wanton beating of a
handcuffed man. See Boyd v. Benton Cnty., 

374 F.3d 773, 780

 (9th Cir. 2004) (holding that an entire team of officers
was responsible for the use of a flash-bang because it was
30                    HUGHES V. RODRIGUEZ

part of their “search operation”). And although Agents Chris
Rodriguez and Casillas were untrained in canine handling,
that fact has little bearing on their willingness to intervene
against Officer Michael Rodriguez—especially if, as the
majority believes, the assault were extensive enough to
support the plausible pleading of an Eighth Amendment
violation.

     In other words, if the Eighth Amendment claim against
Officer Michael Rodriguez survives, it follows that the
failure-to-intervene claims against Officer Molthen, Agent
Chris Rodriguez, and Agent Casillas must, too. Yet the
majority does not revive them. This, of course, is the correct
result, but I cannot join the majority’s reasoning in reaching
it. Instead of relying on what the majority hypothesizes was
the fleeting nature of the alleged post-handcuffing assault (a
hypothesis Jack Finnegan would surely reject), I rely on a
more fundamental basis for that conclusion: there was no
Eighth Amendment violation in which to intercede. 4 It is the
only basis supported by the audio and video recordings in
the record.

    In the end, with neither the record nor common
experience offering a reasonable alternative interpretation of
the sounds I identify on the videotapes (the snapping of
handcuffs; Hughes’s yielding; the confirmation of custody
by an officer), I am satisfied that Hughes’s claim of a two-

     4
       The district court seems to have understood that keeping the
excessive-force claim against Officer Michael Rodriguez alive would
foreclose a finding that the window of opportunity was too narrow for
his fellow officers to intervene. It did not embrace the reasoning now
advanced by the majority; instead, it concluded that “[s]ince the Court
does not find that Officer M. Rodriguez violated plaintiff’s constitutional
rights, [the others] had no need to and cannot be found to have failed to
intercede.” I, of course, share that view.
                  HUGHES V. RODRIGUEZ                     31

minute beating was blatantly contradicted by the audio and
video recordings on the bodycam footage. That being the
case, I would affirm the district court in full, toss aside
Hughes’s excessive force and failure-to-intervene claims,
and revel in the sound quality of modern computer speakers.
And while I concur in the opinion affirming the judgment for
all officers found not to have used excessive force, I concur
only in the judgment on the failure-to-intervene claims, and
I dissent from the reversal of the grant of summary judgment
as to Officer Michael Rodriguez.