Franklin v. Mally (N. Dist. 2019) 2019 US Dist. LEXIS 103602

Excessive Use of Force; Qualified Immunity

Report of home invasion burglary/robbery by four BMA’s in a blue car. At least one was reportedly armed. LE stopped a blue car in the area containing one BMA; as LE approached, subject drove off, speeding and running a stop sign. Subject crashed and fled on foot, telling the passenger to take care of his daughter (a juvenile who was in the vehicle). LE maintain that passenger tried to flee, while passenger maintains he only opened the car door to let smoke out. PSD was released and bit passenger. Passenger followed instructions to get on his stomach with difficulty because of the PSD attached to his arm. Charges of resisting arrest against passenger based on the act of passenger trying to flee were dismissed. There was no evidence that either subject was involved in the armed burglary/robbery.

Court held there was a triable issue of fact as to whether there was probable cause to arrest passenger for resisting arrest and let stand the claim of unlawful seizure (the court made a distinction between reasonable suspicion for detention and probable cause for arrest). As to excessive force, since the two versions could not be reconciled, this also remained as a cause of action, but handler entitled to qualified immunity. Also, because passenger claimed he was not fleeing, the court also allowed stand a cause of action for malicious prosecution of the resisting arrest charge along with other various claims.