United States Court of Appeals for the Fifth Circuit
2016 U.S. App. LEXIS 23314 – December 27, 2016
New Patrol K9 Use of Force Case:
Cooper v. Brown
A new U.S. Court of Appeals, Fifth Circuit case, Cooper v Brown address K-9 use of force. Although the case is from the USCA Fifth Circuit (affecting Louisiana, Mississippi and Texas), the case is persuasive, published and citable in other Federal Circuit Courts.
Officer Lynn Brown appeals the denial of his motion for summary judgment based on qualified immunity (“QI”). Because it was clearly established that Brown’s conduct constituted excessive force in violation of the Fourth Amendment, we affirm.
One night in April 2013, Jacob Cooper was pulled over by Officer Michael Pressgrove on suspicion of driving under the influence (“DUI”). Believing that Cooper was intoxicated, Pressgrove administered a portable breath test, then returned to his patrol vehicle. Cooper panicked and fled on foot into a residential neighborhood, where he took shelter inside a “cubbyhole,” a small wood-fenced area used to store trash bins between two houses.
Because there was a passenger in his squad car, and DUI is a misdemeanor offense, Pressgrove decided not to pursue Cooper. Instead, he radioed for backup, providing Cooper’s description and explaining that he was a DUI suspect and on foot. Brown was one of the officers to respond, arriving with his police dog Sunny, a Belgian Malinois. Pressgrove testified that he did not request a K9 unit and that it would have been unusual to deploy a K9 unit for a misdemeanor DUI. Pressgrove also testified that although he did not know whether Cooper was armed, he had no reason to believe that Cooper had a weapon.
Upon entering the residential neighborhood with Brown, Sunny discovered Cooper in his hiding place and bit him on the calf. The parties dispute whether Sunny initiated the attack or whether, instead, Brown ordered it. Nonetheless, the facts following the initial bite are undisputed: Sunny continued biting Cooper for one to two minutes. During that time, Cooper did not attempt to flee or to strike Sunny. Brown instructed Cooper to show his hands and to submit to him. At the time of that order, Cooper’s hands were on Sunny’s head. Brown testified that he could see Cooper’s hands and could appreciate that he had no weapon. Brown then ordered Cooper to roll onto his stomach. He complied, and Brown handcuffed him. But he did not order Sunny to release the bite until after he had finished handcuffing Cooper.
As a result of the bite, Cooper suffered years of severe pain from lower-leg injuries that required multiple surgeries, including reconstruction and skin grafts.
Cooper sued Brown under 42 U.S.C. § 1983, alleging that Brown’s use of force was objectively unreasonable under the Fourth Amendment. After discovery, Cooper moved for partial summary judgment as to Brown’s individual liability, and Brown moved for summary judgment on the basis of QI. The district court granted Cooper’s motion and denied Brown’s. It determined that Brown’s use of the police dog was objectively unreasonable, given that Cooper was not actively resisting arrest and was suspected of only a misdemeanor DUI. It further decided that Cooper’s right was clearly established.
In excessive-force claims, the reasonableness of an officer’s conduct depends on the “facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” See Graham v. Connor. We must adopt “the perspective of a reasonable officer on the scene, rather than judge with the 20/20 vision of hindsight.” Our inquiry is “whether the officer’s actions were ‘objectively reasonable’ in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation.”
Application of the Graham factors shows that Brown’s conduct was objectively unreasonable. DUI is a serious offense, See Brothers v. Zoss, so that factor favors Brown. But the other factors push heavily for Cooper.
No reasonable officer could conclude that Cooper posed an immediate threat to Brown or others. Cooper was not suspected of committing a violent offense, and Brown testified that Pressgrove, when calling for backup, had not warned that Cooper might be violent. Moreover, Brown could see Cooper’s hands and knew he had no weapon. Indeed, Brown’s own expert testified that there was no evidence that would have led a reasonable officer to believe that Cooper was a threat. Thus, this factor weighs strongly for Cooper.
On the third factor, Cooper was not actively resisting arrest or attempting to flee or to strike Sunny. The only act of “resistance” that Brown identifies is Cooper’s failure to show his hands because, although they were on Sunny’s head and visible to Brown, Brown wanted Cooper to raise his hands. Given that Sunny was still latched onto Cooper’s calf at the time, the failure to raise his hands can hardly be characterized as “active resistance.”
But even if it was, any “resistance” ended quickly. Brown ordered Cooper to roll onto his stomach, and Cooper complied with that order. At that point, no reasonable officer could believe that Cooper was actively resisting arrest; to the contrary, he was actively complying. And yet Brown still did not command Sunny to release the bite. Moreover, Brown was required to “assess not only the need for force, but also ‘the relationship between the need and the amount of force used.'” Brown subjected Cooper to a lengthy dog attack that inflicted serious injuries, even though he had no reason to believe that Cooper posed a threat, and without first attempting to negotiate. And he continued applying force even after Cooper was actively complying with his orders. Brown’s own expert conceded that there was no reason for Brown to permit Sunny to continue attacking once Cooper was on his stomach.
The undisputed facts establish that Brown’s use of force was objectively unreasonable. To be clear, we do not say that any application of force to a compliant arrestee is per se unreasonable, and we do not opine on the line of reasonableness. Instead, we state only the obvious: Under the facts in this record, permitting a dog to continue biting a compliant and non-threatening arrestee is objectively unreasonable.
The order denying qualified immunity is AFFIRMED.