by Bill Lewis II
After the deployment criteria are considered prior to sending a police dog to
search for and/or bite a suspect and a deployment resulting in a bite occurs,
the next most important decision and physical actions involve the removal of
the dog from the suspect.
Qualified immunity was denied before trial in a case known as “Rosenbaum v.
City of San Jose” that involved the duration of police dog bite. This case
created concern and some knee-jerk reactions amongst the police K9
community in 2024, and many persons believed the San Jose officers had done
wrong and violated the rights of Rosenbaum after possibly viewing one or two
videos and based on the court’s published opinion. I was fortunate to be
involved with this case and, fortunately, a jury later sided with the officers.
This article will address the case and the lessons I learned from this case.
On September 10, 2019, San Jose (CA) police officers responded to a domestic
violence report at Zachary Rosenbaum’s partner’s house. After speaking with
the victim, Rosenbaum was identified as the suspect and officers had probable
cause and intended to arrest him for domestic violence. Officers attempted to
get Rosenbaum to exit the house for almost two hours prior to entry but were
unsuccessful.
Officers entered the home with a K9 team, observed Rosenbaum at the top of a
stairway, and Rosenbaum, after being advised he was under arrest and asked
to walk down the stairs, refused to comply during a stand-off that lasted over 6
minutes. He was warned at least five times that the police dog may be
deployed and a bite would occur.
The police dog was deployed, bit Rosenbaum, and a team of three officers and
the K9 handler under the supervision and direction of their sergeant proceeded
up the stairs to arrest Rosenbaum without significant delay in a coordinated,
methodical movement while addressing cover issues and any potential threats.
The handler could not initially move around the other officers into the hallway
at the top of the stairs to secure his police dog because there was insufficient
space as other officers were multi-tasking to cover the immediate area and
Rosenbaum, who was prone and unsearched. A few seconds later, the handler
was able to move into the hallway with his back exposed to an uncleared
bedroom where he could grab the police dog’s collar approximately 37 seconds
after the deployment, and within 5 seconds, he confirmed that Rosenbaum was
controlled by the officers, although not yet secured and handcuffed, and he
commanded his dog to release the bite and the dog complied.
Prior to 2020, I spent some significant time reviewing K9 policies, certifications,
and case law specifically related to the timing and considerations to remove a
police dog from a bite in a timely manner to include discussions with handlers,
K9 supervisors, and trainers in classrooms, conferences, by phone and email,
and at training sessions.
In almost every policy I was able to review, the requirements for removing a
police dog from a bite were not specific. Only two certifications in the United
States I found identified specified timing limits (in lieu of “a reasonable amount
of time”) to remove a dog from a bite. I learned case decisions usually
addressed “reasonableness” instead of actual times based upon the specific
circumstances of the individual cases; Mendoza v. Block, Watkins v. City of
Oakland, Rock v. Miller, Hernandez v. Town of Gilbert.
“Hartsell v. County of San Diego” was a case from the U.S. Court of Appeals for
the Ninth Circuit filed on April 21, 2020. In this case, the court determined the
time on the bite by the police dog was unreasonable. I did not agree with the
decision based on what I read and furthered my research as I began to prepare
an article to address this “time on a bite” issue.
In July 2020, I posted an article titled “Time on a Bite” that was subsequently
published in the USPCA’s “Canine Courier” to address the duration of a bite
and identify some primary failures attributed to leaving the police dog on a bite
for a time beyond what some people might consider reasonable.
In the article, I also suggested a policy for the timely and justifiable removal of
a police dog from a bite and recommended a model policy based on my
research I believed satisfied the intent of previous case decisions related to the
removal of a police dog and the Fourth Amendment (see “Lesson #4).
On March 30, 2022, I was asked if I might be interested in reviewing a
litigation case (Rosenbaum v. City of San Jose) involving a police dog and
offering an opinion for the city of San Jose. In Rosenbaum, the only issue at
hand was whether the duration of the dog bite constituted excessive force. The
deployment of the dog was not at issue as it had already been resolved in the
officers’ favor.
The opportunity for me to review and participate in a case involving “the
duration of a bite” was both compelling and challenging. I reviewed the case
and accepted the offer to help defend the city of San Jose and the involved
officers. My written report was submitted on May 20, 2022. I offered only two
opinions;
- It is my opinion the length of time of the physical encounter between
Zachary Rosenbaum and police service dog “Kurt” was objectively
reasonable, and the duration of the bite was also reasonable based on
the circumstances and did not constitute excessive force. - It is my opinion that Officer Dunn [the K9 handler] removed “Kurt” from
the bite on Zachary Rosenbaum as quickly as possible once Rosenbaum
was under the control of officers and it was safe to do so. The police dog
was removed from the bite before Rosenbaum was secured and
handcuffed.
On February 8, 2024, attorneys for the Rosenbaum case appeared before a
panel of judges for the US Court of Appeals for the Ninth Circuit regarding a
district court’s earlier denial of qualified immunity.
The court reviewed the case. In considering the standard on summary
judgment, the court viewed and accepted the facts as presented in a light most
favorable to the Plaintiff (Rosenbaum). It noted that Rosenbaum alleged that
the defendant officers allowed the police dog to continue biting him for more
than twenty seconds after he had fully surrendered and was under officer
control.
The court also held that the bodycam video generally supported Rosenbaum’s
allegations and that a reasonable jury could find that the officers used
excessive force. The court noted that it was clearly established in the Ninth
Circuit that officers violate the Fourth Amendment when they allow a police
dog to continue biting a suspect who has fully surrendered and is under officer
control. The court affirmed the district court’s denial of qualified immunity.
It should be noted the Ninth Circuit’s decision in this case did not change the
law in any substantive way – it only confirmed what was already out there per
earlier cases (Mendoza, Watkins, Miller, Hernandez, etc.) and did nothing to
elaborate on some of the vague terms contained in the standard.
You can view the short video (about 26 minutes) of the presentation to the
court on YouTube under “22-16863 Zachary Rosenbaum v. City of San Jose.”
I believe only two body cam videos (from the handler and sergeant) were
reviewed by the courts, but it was clear to me based on five videos I saw
collectively from all officers involved at the top of the stairs, that Rosenbaum,
prone with the dog biting his right arm, never fully surrendered, and he was
under the officers’ control for only about 5 seconds before and while the police
dog was removed from the bite.
On December 8, 2025, six-plus years after the incident occurred, the trial
began. Although the “duration of the bite” was the primary issue, I’d estimate
about 75% (maybe more) of the testimony dealt with the other issues related to
the totality of the circumstances leading up to the actual deployment of the dog
and its removal from the bite.
From the opening statement by the Plaintiff’s attorney: “[The dog bite lasted] 42
seconds, from start to finish. The issue you (the jury) are here to resolve is
whether the last 20 seconds were unreasonable.”
From the opening statement by the Deputy City Attorney: “But what this case
is ultimately about, as Plaintiff’s counsel acknowledged, is the 20 seconds that
the dog was on the bite, from the time the officers got to the top of the stairs.”
Timing was a significant part of determining reasonableness in this case. I
believed all the officers and the sergeant were continually working toward the
overall goal of removing the dog from the bite and arresting Rosenbaum. There
was never inactivity nor “standing around doing nothing” by the group
collectively. Each participant contributed to a team effort. When it was time to
remove the dog, the dog was removed without delay and without excessive
force.
Question to Rosenbaum by Deputy City Attorney: “And so even though you
didn’t know everything that [the officers] were doing, you didn’t think that
they’re just standing around the whole time the dog was biting you, did you?”
Answer by Rosenbaum: “Of course not, no.”
From the closing by Deputy City Attorney: “…even Mr. Rosenbaum
acknowledged that he didn’t think that the officers were just standing around
doing nothing watching the dog bite him.”
From the closing by Deputy City Attorney: “And more importantly, the fact that
Mr. Rosenbaum surrendered in his own mind doesn’t mean that he fully
surrendered. There is no evidence that any of the officers who are defendants in
this case understood Mr. Rosenbaum to be surrendering. And there is no
evidence that they should have understood that.”
At the end, it appears the jury did not believe Rosenbaum fully surrendered
and he was not under officer control during that infamous 20 seconds. They
found the force used by the officers was not unreasonable. It was a good day.
Based on my involvement, I will share the lessons I learned from the case.
Lessons Learned
Lesson #1 – 42 seconds is not an unreasonable amount of time in this case
under these circumstances for a police dog to remain on the bite of a suspect
while officers are continually working toward the removal of the dog and ensure
it is safe to do so. If any delay would have occurred, such as officers not
working collectively toward the removal of the dog, that time could have been
considered unreasonable – but that didn’t happen.
Lesson #2 – Definitions matter. To be consistent and clear, definitions for
terms you commonly use should be in writing, openly discussed to avoid
misunderstandings, and reinforced at training.
When asked at trial, I testified that “under control” generally means a suspect
is physically restrained so they cannot confront officers, present a danger to
the officers or flee. “Secured” is a suspect that is handcuffed and no longer able
to move about. In reviewing my testimony, “relinquishing control” and
“yielding to power” were offered as my definitions of surrendering. However, it’s
important to understand these were presented as my definitions as the courts
have not provided any assistance.
Lesson #3 – “Fully surrendered and is under officer control” sounds reasonable
and it’s good advice if applicable to a particular situation. Since the courts
have not provided a definition of either, officers must be prepared to articulate
why someone was or wasn’t fully surrendered or under control given the
circumstances presented to a handler if those factors are at issue.
Unfortunately, we are left to decide what fully surrendered and under control
means – so you best be prepared to explain one or both if you need to do so.
The scene of each bite will be different to include the suspect’s reaction and
level of resistance (if any), a potential surrender, environment, access to
weapons, additional safety concerns, etc. Handlers and their backup officers
need to be knowledgeable, adaptable, situationally aware, and well trained to
recognize when a suspect is fully surrendered and under control if applicable.
Suggestion: Without advance notice, at your next handler’s meeting with your
K9 supervisor, ask each person present to write out their individual definitions
as each one pertains to the removal of a police dog from a bite on a suspect for
1) fully surrendered, 2) surrendered, 3) secured, and 4) under control.
Afterward, review the answers and have a discussion. Is everyone on the same
page? If not, there’s work to be done.
Lesson #4 – It is essential that a policy clearly dictates when a police dog
should be removed from a bite on a suspect.
MODEL POLICY: When the use of force is no longer necessary, a handler should
remove his/her police dog from a bite on a suspect as quickly as possible once
the suspect is secured or under control and it is safe to do so.
You will notice the absence of “fully surrendered” or “surrendered” within this
suggested policy. A surrender may not be a factor in determining if the use of
force is no longer necessary. It’s not necessary in my opinion to include “fully
surrendered” within the policy if that action is considered or acknowledged
when the use of force is determined to be no longer necessary – and if
considered, it should be noted within the report.
Lesson #5 – Published case opinions do not necessarily contain all the facts
and in some cases the facts as presented are wrong or misinterpreted. In this
case on appeal, the Plaintiff believed that all officers stood around at the top of
stairs doing nothing but pointing their guns at the Plaintiff for more than 20
seconds instead of taking action to remove the dog from the bite. The evidence
(specifically the body worn camera footage collectively) proved otherwise.
Lesson #6 – Most judges have never worked a police dog, have not participated
in a training or real-world arrest of a suspect using a police dog, and have not
attended police training to educate them on how police dogs work and the
various methods how suspects can be taken into custody. What is being done
within your jurisdiction to educate the judges?
Lesson #7 – Body worn camera footage does not always provide an accurate
representation of what is occurring on scene and what an officer may see. You
know it. You should review your camera footage before writing your report to
account for any significant (peripheral) observations you might have made
during an incident that was not captured by the camera.
Lesson #8 – It is critical that handlers train regularly and are tested with
results documented frequently to remove their dogs from secured bites in a
timely manner so they will be expected to do so in real-world deployments. In
this case, the dog responded to its handler appropriately.
Also, certifications must include a clearly established time frame for removing a
dog from a bite both verbally and physically (tactical outs) with and without
suspect resistance. “A reasonable amount of time” is too subjective and
potentially inconsistent for certifications and any testing – reasonable to you
might not be the same as reasonable to me. I believe a maximum of 10
seconds is a reasonable standard to remove a dog verbally or physically once
the process has started during certification, training, and testing. Discuss and
later experiment using a stopwatch.
Lesson #9 – Continual and documented training (and frequent testing) for
appropriate “arrest and control” techniques to take a suspect into custody who
is being bitten by a police dog should be a requirement for all officers who may
be placed in a position to assist a K9 handler complete an apprehension or
remove the dog from an accidental bite.
Lesson #10 – Empty hands do not equate to unarmed. You know it – but
everyone does not know it. If a suspect presents empty hands to you, you
should articulate within your report why you do not believe that suspect is
considered unarmed at that time. (See the “Hartsell” references in the “Time on
a Bite” article posted on this website)
Lesson #11 – Hands up and empty does not automatically equate to a
surrender and unarmed. Have you ever located or heard about a concealed
weapon on a suspect with raised empty hands who appeared to be
surrendering before being taken into custody? If it’s necessary to explain your
reasoning, articulate your thoughts in your report.
Lesson #12 – If time permits and it is safe to do so, officers should “glove up”
with protective gloves in advance of a police dog deployment in anticipation of
blood possibly being present during a potential bite. This time-saving effort
will shave time off the duration of a bite. (See “Failing to Glove Up Before a K9 Deployment“)
Lesson #13 – Good attorneys are essential. It was my initial belief that the
Rosenbaum case was an open-and-shut matter in favor of the officers. I knew
it wouldn’t necessarily be easy to defend, but the officers performed that day as
they should have and later testified well to explain their thoughts and actions –
and the jurors obviously believed them. More importantly, their attorneys did a
great job preparing for and presenting this case. I’m certain it was a lot of work,
but in the end, they prevailed.
Lesson #14 – You should have open discussions frequently about current
trends and concerns involving police dog deployments regarding decision
making, tactics, and case decisions that impact what you do. If removing the
dog in a timely manner is important, what documented evidence like your
training/testing records and policy can you produce that proves it’s important?
Bill Lewis II © February 2026
This article was posted on TacticalK9USA.com on February 13, 2026, and published in the United States Police Canine Association’s (USPCA) “Canine Courier” (Spring 2026).
About the author: Sergeant Bill Lewis II (Retired) has over 47 years of law enforcement
and instructor experience, retiring from the Oxnard (CA) Police Department with over
27 years of service – and over 34 years of police K9-related experience. He was a K9
handler, K9 supervisor, and served on SWAT for over 25 years. He has served as a
tactical instructor, consultant, expert K9 witness, the “Canine Liability 360” instructor
and “Canine Supervision 365” co-instructor, published author, and is a certifying
official for CA POST. Sergeant Lewis is the owner of Training and Consulting Team
and facilitates the web site TacticalK9USA.com. He can be contacted at
sgtblewis2@aol.com.