NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUSTIN LOUIS PALMER, 

Plaintiff-Appellee, 

 v. 

SANTA MARIA POLICE DEPARTMENT, 

Defendant, 

GREEN, K-9 Unit Handler of Balko, official 

capacity; et al., 

Defendants, 

and 

CHRIS GREEN, Officer, 

Defendant-Appellant.

No. 19-56323 

D.C. No. 

2:16-cv-07780-JGB-JEM 

MEMORANDUM*

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.

FILED

JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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.