Traffic stop for tinted windows. Driver had an active $500 traffic warrant. While waiting for clarification on the warrant, LE obtained information from the passengers. LE determined that the $500 was still owed, so allowed driver to ask passengers for money for bail and to leave belongings with them. As driver emptied his pockets, a snort straw fell out. LE told driver to hold on and turn around. Driver protested and tried to reach into his pockets saying he wanted his medication. LE then grabbed driver, pushed him against the car and put his hands on the roof of the car. LE called for back-up. Driver started to get squirrely and LE asked back up to hurry. Driver and LE start to struggle. LE decided against deploying his PSD (even though he had a door popper) because he felt the situation did not warrant it. Another PSD team arrived and believed that driver was resisting arrest by refusing to give up his hands. Driver admits to “passively resisting” by not giving up his hands. The new team obtained his PSD from cruiser and initially told PSD to heel. Within seven seconds of retrieving PSD, PSD ordered to bite. No warning was given because driver was actively resisting and handler could not see driver’s hands. As PSD was jumping on driver, driver grabbed heroin and medication from his pocket and put it in his mouth. The first officer grabbed driver’s mouth to prevent swallowing. PSD again ordered to bite and PSD again jumped on driver. This continued for several seconds until the first officer pulled the driver to the ground where PSD bit driver for 5 seconds before being removed. Vehicle searched and contraband found. Driver had injuries to his back and arm, apparently from dog bites. Driver pleaded guilty to resisting arrest as a disorderly persons offense (not involving the use of force or threat of force).
The policy of the department for use of force was a reasonably necessary one. The policy also required a warning, when feasible, before deployment of PSD. The department found that LE had acted in accordance with policy and the expert retained by the department came to the same conclusion.
Driver sued for excessive force. The court applied the Graham factors and the additional 3rd Circuit factors, finding that driver was not suspected or convicted of any violent crimes; there is a material dispute in the facts as to whether driver posed an immediate threat to police; and that driver was resisting arrest. The 3rd Circuit factors were also addressed. The court held that a reasonable jury could find that the relatively brief use of the PSD could show that the deployment was actually unnecessary or it could show that the handler did not gratuitously prolong the attack. The court also noted that this arrest was for a non-violent crime and therefore warranted less force. The issue of whether it was reasonable to believe that driver was armed is also unknown. Finally, since the original officer was by himself, additional force could have been necessary, but when the other team arrived, a reasonable jury could find that the use of a PSD was unnecessary. The court noted that the two passengers did not leave the vehicle (although did not take into account the possibility of the passengers getting out and getting involved). Taking the driver to the ground was held to be objectively reasonable force in effectuating the arrest. However, the deployment of the PSD could be seen by a reasonable jury as excessive force, given the factors that were analyzed. Summary judgment was denied.