The use of K-9 units to apprehend fleeing suspects has been a hot topic in recent months, particularly in Mississippi. This past week, the Fifth Circuit Court of Appeals handed down its opinion in Cooper v. Brown (the full text of the opinion can be found by clicking here), which chipped away at local law enforcement’s use of K-9 units to apprehend fleeing suspects.
Background of Cooper v. Brown
In April 2013, the plaintiff, Cooper, was pulled over by a local law enforcement officer under suspicion of DUI, a misdemeanor. After the officer gave Cooper a portable breath test, Cooper panicked and fled on foot into a local neighborhood, where he hid in a cubbyhole among trash bins. The initial officer radioed for backup, and Officer Brown responded, arriving on scene with his K-9 unit, Sunny, a Belgian Malinois. At this point, the initial officer had not requested a K-9 unit, nor did he know or communicate that Cooper was armed or dangerous.
After searching the neighborhood, Officer Brown and Sunny stumbled upon the hiding Cooper, and Sunny attacked Cooper, biting him for one to two minutes. Meanwhile, as Sunny bit him, Cooper remained compliant, and responded to Officer Brown’s commands. It was not until Cooper was handcuffed that Officer Brown ordered Sunny to release Cooper; but the damage was done. Following the attack, Cooper required multiple surgeries on his lower-leg, including reconstruction and skin grafts.
Eventually, Cooper sued Officer Brown, basing his suit on Brown’s use of excessive force. Sometime after discovery, Cooper moved for partial summary judgment as to Officer Brown’s individual liability, while Officer Brown moved for summary judgment on the basis of qualified immunity. The District Court for the Northern District of Mississippi agreed with Cooper, held that Officer Brown’s use of the K-9 unit was objectively unreasonable, and granted Cooper’s motion; however, it denied Officer Brown’s motion. Officer Brown filed an interlocutory appeal, arguing that the District Court erred in granting Cooper’s motion and Officer Brown was entitled to qualified immunity.
Qualified Immunity in the Fifth Circuit
Our Supreme Court recognizes qualified immunity as immunity from suit, not immunity from liability, so long as the official’s—a police officer—conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Fifth Circuit employs a two-part test to determine whether an official is entitled to qualified immunity: 1) whether the plaintiff alleged a violation of an actual constitutional right; and 2) if so, whether that right was clearly established when it was supposedly violated. Brumfield v. Hollins, 551 F. 3d 322, 326 (5th Cir. 2008).
The Parties’ Arguments in the Fifth Circuit
Cooper argued that Officer Brown used excessive force. To prevail, Cooper had to prove: 1) an injury; 2) which resulted directly and only from a use of force that was clearly excessive; and 3) the excessiveness of which was clearly unreasonable. See Elizondo v. Green, 671 F. 3d 506, 510 (5th Cir. 2012). Officer Brown responded that even though Cooper was obviously injured that his—Brown’s—use of force was objectively reasonable. The Fifth Circuit disagreed.
In its analysis, the Fifth Circuit relied on well-established caselaw to rebuff Officer Brown’s argument. The Court acknowledged that in excessive force cases, the officer’s reasonableness depends on the facts and circumstances of each 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.” Graham v. Conner, 490 U.S. 386, 396 (1989). Courts reach their decision, not with hindsight, but by looking at the circumstances from the view of a reasonable police officer on the scene. Id. It was that view, as well as the Court’s analysis of the Graham factors, that led to Cooper’s victory in the Fifth Circuit.
The Court acknowledged that even though DUI is a serious offense, the remaining Graham factors weight heavily in Cooper’s favor. As to the first factor—whether Cooper posed an immediate threat to Officer Brown or others—the Court found that no reasonable officer could conclude that Cooper posed an immediate threat, because Cooper was not suspected of committing a violent offense or gave any officer any indication that he was violent. Officer Brown tried to argue that because Cooper had not been searched, that it automatically made Cooper more of a threat; however, the Fifth Circuit reiterated that given the nature of the underlying crime, that Officer Brown’s argument was weak.
When looking to the third factor (whether Cooper was actively resisting arrest or attempting to evade arrest by flight), the Court found that Cooper offered little resistance. The Court pointed out that Cooper’s only resistance was his failure to show his hands when Officer Brown ordered him to; however, the Court quickly pointed out that Cooper’s “resistance” of not showing his hands was due mostly to the K-9 unit still attacking Cooper’s calf. Rather, the evidence proved that Cooper actively complied with rest of Officer Brown’s commands, including rolling over onto his stomach, despite the ongoing attack. Even then, the crushing blow to Officer Brown’s argument was that he did not order the K-9 unit to release the bite until after Cooper was handcuffed. As the Fifth Circuit stated: “we state only the obvious: Under the facts in this record, permitting a dog to continue biting a complaint and non-threatening arrestee is objectively unreasonable.”
The Court continued its analysis by discussing whether Cooper’s right to be free from excessive force was clearly established at the time of the violation. The Fifth Court pointedly held that the right was clearly established, basing its opinion on Officer Brown having “’fair warning’ that subjecting a compliant and non-threatening arrestee to a lengthy dog attack was objectively unreasonable.”
Thoughts
So what does this mean for local law enforcement? The Fifth Circuit reiterated several well-established principles of excessive force in dog bite cases. First and foremost, local law enforcement must maintain ongoing training to remain aware of what it can and cannot do. While using K-9 units to apprehend suspects is not by itself objectively unreasonable, the analysis always hinges on the facts and circumstances surrounding the use of force. Here, it was obvious that Cooper was not actively resisting arrest, and so the amount of force necessarily to effectuate it was greatly diminished. Another consideration is whether a K-9 unit is even necessary. As the Court pointed out, the record was devoid of facts indicating that Cooper posed an immediate threat.
Something else to consider, given the facts and circumstances of this case, is the length of the dog bite. Here, K-9 unit Sunny found Cooper, immediately bit him, and did not release until one to two minutes later. At first glance, that may not seem lengthy, but from the plaintiff’s perspective (and as shown here), a lot can happen in one or two minutes.
A former colleague of mine once said that when it comes to these types of cases, the devil is always in the details. Regardless of the details and questions that arise from this case, one thing is certain: law enforcement should use K-9 units sparingly, and only when absolutely certain that a fleeing suspect is actively resisting arrest or imposes a clear danger to others.