June 2020 Update for Meyer’s K9 Law (Volume 1, No. 3)
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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from June of 2020. (A note here: some cases are unpublished (Unpub.) so cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking and the arguments in them can be used; the case just can’t be cited.)
In addition, since several politicians and legislative bodies have announced changes or proposed changes to how PSDs are used in the apprehension of suspects, we have posted on the website the paper that I wrote on this subject. It’s important that in their rush to show their constituents that they are doing something about the perceived abuse of power by police, law and policy makers don’t throw away all the good work PSD teams have done and continue to do.
Finally, for the article this week, I have addressed qualified immunity, a concept that is being misrepresented in the press. Please read the article so that you can be informed about this concept, as it can protect you and your actions in the field.
I hope these case reviews and article help you. Meyer’s K9 Law is here to assist you in fighting the good fight of responsible and effective policing. As always, if you have any questions or concerns, I’m just an email or text or phone call away.
Cases for June 2020
Chaudry v. Farabella (N.J. 2020) 2020 U.S. Dist. LEXIS 115493
Excessive Use of Force; Qualified Immunity; Monell Liability; Announcements
Motion for summary judgment by LE in excessive force case under 42 U.S.C Sec. 1983 (violation of civil rights). Suspect had broken in to a pizza restaurant and stole money and a loaded handgun. LE responded and found suspect in the basement. Suspect was taken into custody with the assistance of a PSD.
When handler and PSD arrived on scene, other LE were present. PSD team entered the building and when another LE entered, PSD bit him. PSD had to be forcibly removed from the bite. PSD then directed to search the basement while handler remained at the top of the stairs. Handler made announcements before entering the building, but not at the top of the stairs. The basement was dark. PSD located suspect under the stairs and bit him. Another LE officer pulled suspect out by his legs; LE couldn’t see where PSD was attached to suspect, but the lower portion of suspect’s legs were visible, so LE knew PSD was “somewhere north” of the lower legs. Once suspect was out from under the stairs, handler released PSD. There was additional tussling between suspect and LE. Suspect suffered significant damage to his ear and face and had a laceration on his leg from the PSD bite.
The court analyzed the qualified immunity doctrine as applied to this case. “The doctrine of qualified immunity ‘balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably’ and it ‘applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. (Quotations omitted). Properly applied, qualified immunity ‘protects all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd (2011) 563 U.S. 731, 743 quoting Malley v. Briggs (1986) 475 U.S. 335, 341.
The court found that the actions of handler and LE were reasonable under the Graham standard, stating that the “[u]se of a police dog to bite and hold a suspect is not per se unreasonable” (Moore v. Vangelo (3rd Cir. 2007) 222 Fed.Appx. 167, 170). Analyzing the Graham factors, LE reasonably concluded that suspect was armed and dangerous as a loaded gun was taken in the burglary. In addition, it was dark, cluttered with debris, and there was no response to the initial announcements regarding the PSD. LE had to clear out some clutter before the PSD was able to bite the suspect. Once the PSD was engaged, LE saw suspect actively fight with the PSD, punching him which caused him to lose the bite. PSD then reengaged by biting suspect’s ear. During this, LE was actively trying to restrain suspect and put him in handcuffs; suspect continued to resist. Even so, the PSD was recalled. Suspect continued to resist, fight and try to flee. LE punched suspect in the head three times until suspect stopped resisting. The court held that the Graham factors weighed in favor of LE. In addition, suspect admitted in an interview that he heard the announcements and did not respond. As there was no violation by LE, Monell liability could not be found either. Case dismissed.
State v. Thomas (2020) 2020-Ohio-App. LEXIS 2453
Traffic Stop; Prolonged Detention; Reasonable Suspicion
After suspect’s car was seen at a drug house, a traffic stop was conducted when she committed a traffic infraction. LE got her information and went back to patrol car to start warning citation. LE called for PSD and then continued processing warning citation. Another LE arrived and was brought up to speed. They engaged in an unrelated discussion, during which LE used his MDT to search if a female officer was available. At that point, the PSD team arrived and LE talked to handler about the stop. Handler then contacted suspect while LE continued with warning citation. Handler asked suspect if there was anything in the car PSD would alert to and she replied that she had psilocybin mushrooms under the front passenger seat.
Suspect filed a motion to suppress based on prolonged detention which was granted; the trial court believed that LE wasted some time in talking about unrelated matters and searching for a female officer. Since he finished the citation shortly after the PSD arrived, the court concluded that LE should have finished the citation prior to the arrival of the PSD team. The State appealed.
The appellate court agreed with the trial court on the issue of prolonged detention. The State asserted that there was additional reasonable suspicion to prolong the stop. However, in the trial court, there was no evidence of the additional investigation regarding the drug house. The appellate court agreed with the trial court again on this issue. It is interesting to note that the dissent disagreed on the prolonged detention issue, indicating it was not reasonable for the State to have to demonstrate that LE executed the stop with maximum efficiency. The fact that LE could have been more efficient during a 2 to 3 minute period of time should not render the stop invalid. While the dissent indicates that reasonableness should have ruled the day, LE should not rely on that argument. Based on the U.S. Supreme Court rulings on prolonged detention, it’s my opinion that this type of hair splitting will continue.
Editor’s note: Two things. 1) It is interesting to note that the dissent disagreed on the prolonged detention issue, indicating it was not reasonable for the State to have to demonstrate that LE executed the stop with maximum efficiency. The fact that LE could have been more efficient during a 2 to 3 minute period of time should not render the stop invalid. While the dissent indicates that reasonableness should have ruled the day, LE should not rely on that argument. Based on the U.S. Supreme Court rulings on prolonged detention, it’s my opinion that this type of hair splitting will continue.
2) This case cries out for a “collective knowledge doctrine” analysis. In the collective knowledge doctrine, LE is imputed to have the knowledge of fellow LE even if that particular officer didn’t have all the facts of the investigation. Here, since there was an ongoing drug house investigation, the prosecutor should have had someone testify about that investigation and suspect’s connection to the investigation. Unfortunately, this wasn’t addressed at the trial court level so it could not be brought up at the appellate level. This is a good demonstration that every theory of admissibility should be argued; one shouldn’t put all one’s arguments in one basket.
Smith v. City of Stockton (9th Cir. 2020) 2020 U.S. App. LEXIS 20259
Excessive Use of Force; Qualified Immunity
The appellate court reversed a denial of qualified immunity for handler for unleashing his PSD to apprehend subject. Even assuming there was a constitutional violation, the court found that handler released his PSD after subject started to flee, PSD remained in handler’s vicinity and PSD never made contact with subject. (LE that shot and killed subject remained in the case and qualified immunity was denied).
Howard v. State (2020) 2020 Tex. App. LEXIS 4700
Marijuana; Curtilage; Independent Source Doctrine
LE approached and knocked on subject’s door for a “knock and talk” investigation. They asked if subject would step out and talk to them, which he did. LE smelled the strong smell of marijuana through the open door. Subject was asked if anyone else was in the home and he said yes. Subject was asked to ask that person to come out. Both subject then came outside and met with LE. LE told them they had a tip that marijuana was in the apartment and that they smelled it when the door was open. Subject said he had a small amount and that LE should get a warrant, refusing consent. LE did a protective sweep, noting marijuana and pills. A search warrant was obtained, but the affidavit for the search warrant did not rely on any information obtained during the protective sweep. Search warrant revealed lots of different kinds of controlled substances and guns.
The trial court held that the knock and talk was not a violation of curtilage; that questioning on the porch was not custodial so no Miranda warnings were necessary; and even though the protective sweep was unconstitutional, no evidence was seized as a result of the sweep and no information gained in the sweep was a part of the probable cause for the issuance of the warrant. There were other problems with the warrant that aren’t relevant here. The appellate court affirmed the trial court’s findings.
Editor’s note: Texas has legalized hemp but not marijuana. There is some indication that the smell of hemp is indistinguishable from marijuana. This subject did not raise this as an issue (probably because he admitted to possessing marijuana), but be prepared to see this type of argument becoming more prevalent; to wit, since this search warrant was based on the smell of something that could be legal. We have seen it in other states that have legalized marijuana; I’m sure Texas defense attorneys will figure this out soon enough.
Hyer v. City and County of Honolulu (Hi. 2020) 2020 U.S. Dist. LEXIS 110743
Excessive Use of Force; Monell Liability
LE was called to the resident of the decedent due to “bizarre behavior.” LE spoke with decedent and left. Two hours later, LE was called back to the residence. Based on reports by neighbors, LE believed decedent was in need of psychological assistance and called the on-duty police psychologist. The psychologist instructed LE to take decedent to a psychiatric facility for evaluation. A seven hour standoff ensued. Several attempts were made to take decedent into custody. They were not successful. A PSD was then deployed into the residence. Decedent stabbed the PSD and LE shot decedent, killing him. The court ruled that only a excessive use of force claim under the Fourth Amendment and Hawaii State claims could survive (negligence and intentional infliction of harm) as well as punitive damages based on those claims against the handler.
Editor’s note: This is a preliminary motion upon which the court is ruling, so that doesn’t mean the handler has violated the decedent’s rights. This analysis will happen if 1) the plaintiff (party suing LE) amends his claims to allege a viable cause of action and 2) if the court rules that the plaintiff has succeeded in alleging viable causes of action. Without knowing any further details on the case, it’s hard to see where the handler would be held liable. But you never know. If the case goes back up to the appellate court, I’ll let you know.
Haynes v. Hamilton (S. Dist. Mi. 2020) 2020 U.S. Dist. LEXIS 107778
Excessive Use of Force; Heck Doctrine
Subject shoplifted from Wal-Mart so LE were called. Subject fled and a vehicle chase ensued. Subject left his car to hide in long grass. Two PSDs were deployed to find him, one of which (according to subject) severely injured him. Subject was charged with felony fleeing/eluding an officer, resisting arrest, shoplifting and traffic misdemeanors. The court held that a guilty plea or finding on the resisting arrest charge could invoke the Heck Doctrine against the subject’s claims in his excessive force case, but it did not yet have enough information to make this determination, especially in light of the impact COVID-19 has had on the trail courts. This case was stayed until the conclusion of the felony criminal case.
Editor’s Note: This case is a good reminder that guilty pleas or verdicts should be accompanied by an adequate statement of the facts that would invoke the Heck Doctrine in any pending civil case. Here, subject is charged with resisting arrest. The facts hopefully will show that the PSD deployment was solely when subject was in violation of that statute. Then if the court applies the Heck Doctrine, the handler should be dismissed out of the case. Prosecutors may not be thinking in these terms so be sure to contact your prosecutor in charge of the criminal case and ask for the prosecutor to file or recite a statement of facts and have defense counsel concur that this factual basis for the case is correct.
United States v. Frazier (Utah 2020) 2020 U.S. Dist. LEXIS 104530
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause
Traffic stop by very experienced LE trooper for speeding and failing to accurately signal lane changes. LE saw bags in the back cargo area that are often used to contain illegal drugs. He noted the presence of air freshener container. He also noted the presence of food wrappers and drink containers, consistent with interstate travel. Driver had an Iowa driver’s license and a Missouri ID card. Driver presented registration for the car which showed it was a rental vehicle. LE asked for the rental agreement. Driver started looking for the rental agreement. Driver couldn’t find it but showed LE that he had a phone number in his phone for the rental company. LE asked driver to come back to the cruiser so they could call the rental company together. Driver declined and said he would call. LE said he wanted to call so he could verify to whom he was speaking. During this conversation, LE also engaged in questioning driver in the four areas he questions all drivers to determine if they are telling the truth or show signs of being involved in other crimes, such as drug trafficking. Back at the cruiser, LE called for a PSD team, but got no answer. LE then asked dispatch to contact another PSD team to respond. While LE was filling out the citation, the 2nd PSD team handler contacted LE and said he was en route. LE continued with the citation and was waiting for dispatch to return with more information. LE also ran the vehicle’s license plate through an identification and location system run by the DEA. The information from the DEA was not consistent with the information given by the driver. Finally, LE called the rental car agency. While he was on that call, the PSD team arrived. While the PSD team worked, LE kept an eye on driver and also continued filling out the citation. PSD alerted on vehicle. Dispatch then came back with requested information, which included that driver had been charged with murder and pled to manslaughter. LE told driver they would be searching the vehicle and LE wanted driver to sit in cruiser. LE then Terry frisked driver, finding a gun in his pocket. The gun returned stolen. Drugs were found in the vehicle.
The court held that the traffic stop was lawful; that the scope and duration of the traffic stop was reasonably related to the circumstances justifying the stop; and that LE diligently pursued the tasks reasonably associated with the traffic stop. In addition, the court held that LE developed additional reasonable suspicion during his performance of the traffic stop duties, expanding the time and scope of the search. Once the PSD alerted on the vehicle, the vehicle search was lawful.
Editor’s note: This case is very well documented in that the trooper’s training and experience was well laid out and the trooper also explained exactly why the information he was obtaining built reasonable suspicion for additional investigation. This case is a good example of why it is so important to build a factually complete and solid case in the record at the trial court record.
Baxter v. Bracey (U.S.S.C. 2020) 2020 U.S. LEXIS 3249
The United States Supreme Court denied this writ from the 6th Circuit, but Justice Thomas dissented and said he would grant the petition for the Supreme Court to hear this case.
Thomas goes into a history of the Civil Rights Act or section 1982. He states that the law as enacted provides no defenses or immunities; “instead, it applies categorically to the deprivation of constitutional rights under color of law.” Baxter, supra, at 3. He then describes how qualified immunity evolved, concluding that the court should question “whether immunity was historically accorded the relevant official in an analogous situation at common law.” Baxter, supra, at 7. Thomas is a strict constructionist and believes that the constitution should be read as intended, not as applied to today’s world. However, given the temperature of the public regarding excessive force claims, the Supreme Court’s actions need to be closely monitored to see if they are telegraphing how they would handle a qualified immunity claim. No one joined Thomas in his dissent; but stay tuned.
State v. Coleman (2020) 2020 La.App. LEXIS 897
LE had information that a particular vehicle was running drugs. LE spotted the vehicle and pulled it over when traffic infractions were observed. While running the driver’s information, LE asked for consent to search (driver was overly nervous and driver’s information regarding his trip that day was inconsistent with data from a license plate reader). Driver refused. Driver also couldn’t provide insurance information. As LE was waiting for information back on driver (NCIC check), a PSD team arrived. The sniff and alert occurred within 20 minutes of the initial stop.
Driver only challenged the length of the stop (prolonged detention). The court found that the PSD team arrived within seconds of LE receiving NCIC information. The court also found that LE had developed additional reasonable suspicion of criminal activity in that driver was nervous, lied about his travel activity, and that LE could see in plain sight marijuana residue in the vehicle. The court held this was sufficient reasonable suspicion to enlarge the scope of investigation. The arrival of the K-9 unit less than twenty minutes after the stop afforded the opportunity to quickly confirm or dispel [LE]’s suspicions while justifiably detaining the [driver].”
Editor’s note: The Louisiana court here seems to focus on the time elapsed rather then the diligence of LE pursuing the investigation of the traffic stop. This may be because the defense framed their argument that way. In any event, please remember that the amount of minutes that pass are not the relevant inquiry but whether you are pursuing the traffic stop investigation diligently and whether you were able to develop additional reasonable suspicion to expand the investigation.
Fought v. City of Wilkes-Barre (Pa. 2020) 2020 U.S. Dist. LEXIS 103320
Excessive Force; Monell Liability; Failure to Train; Failure to Supervise; Negligence; Qualified Immunity; Malicious Prosecution
Two cases were heard together; one where a civilian was bitten and one where a fellow officer was bitten.
1) Handler was on foot patrol and contacted subject and asked for ID. Subject knelt down and retrieved ID from backpack. Handler’s PSD started to bark and jump at subject who expressed concern. Handler than removed the leash from PSD and directed PSD to lie down. Handler then, without warning, moved to take subject into custody by pinning him to the ground. Handler got one handcuff on subject and PSD then attacked subject. Handler stood by and watched as PSD chewed on subject. Handler stopped the attack by giving the release command which PSD obeyed. All was recorded by civilian video. Subject was left on the street for an undetermined amount of time without being rendered aid. Subject was charged with several offenses including resisting arrest. These charges were dismissed. Handler refiled the charges; one was dismissed prior to trial, one was dismissed at the end of the People’s presentation of evidence and subject was acquitted of the final resisting arrest charge. Neither handler or his supervisor were disciplined even though handler did not complete the required 16 hours per month of training, due to staffing shortages.
2) A few months later, the same PSD team is called out for a search for subject at large. PSD team found subject hiding in a “non-threatening” position. Other LE went under the vehicle to take subject into custody. Subject was failing to obey commands, but not physically resisting. PSD was released without warning and jumped over the subject and bit another officer. That officer was able to shake PSD off, but PSD then latched onto the other officer and ended up biting him twice. The first officer had to inform handler that his dog was biting the wrong person so that handler could call off PSD. That officer sustained serious injuries such that he was off work for 4 months. Handler was required by policy to be responsible for PSD actions. Here, the court found that handler did not maintain visual, physical or auditory control over PSD and failed to acknowledge that PSD had bitten two officers. Handler still had not completed the requisite hours of training. In addition, the trainer resigned in protest for the lack of of handlers showing up for training. His supervisor knew this, but failed to take handler and PSD out of service.
The court holds that as to the civilian victim, the Graham factors weighed against the handler. Subject was not suspected of a serious or violent crime; he did not attempt to flee (although handler states in a conclusory fashion that subject was resisting arrest and ignored orders to cease) and there was no indication or claim that subject had a weapon. The video depicted subject on the ground, unarmed and without any active resistance with handler standing over subject and watching while PSD chewed on subject. Therefore, the claim was allowed to go forward.
The court also addressed the failure to supervise and failure to properly train. The court held these claims were sufficient to go forward as well. Assault and battery claims, intentional infliction of emotional distress, abuse of process, malicious prosecution and negligence were all allowed to go forward as well.
As to the officer victim, the negligence claim, the loss of consortium claim and a state-created danger claim were allowed to remain against both the handler and the supervisor. As to the Monell type claim, the victim was allowed to amend his complaint. A negligent hiring claim was dismissed, but a negligent retention claim was allowed to remain.
Finally, qualified immunity was discussed and dismissed with the court finding that the defendant handler and supervisor were found to have violated the Graham factors earlier in the opinion.
Editor’s note: This case should serve as a warning to all handlers and supervisors that failure to train is a lawsuit waiting to happen. In addition, the failure to take the team out of service and remediate resulted in a fellow officer being badly wounded. To add insult to injury, when the criminal case against the civilian was rightfully dismissed, the handler doubled down and refiled the charges, which got him nothing but additional civil claims that add to the amount of money this is going to cost the handler and his agency. Instead of being responsible and spending money in overtime and training costs, as well as remediation, both the handler and the agency is going to be in a world of hurt. Not a good trade off.
United States v. Jones (Me. 2020) 2020 U.S. Dist. 103239
Discovery of PSD records
This case addresses what the defense is entitled to in terms of discovery on the PSD team (the prosecution already provided the training and certification records for the team). The court held that field performance records should be discovered only when the defense makes a showing that these records are material (the reasoning being that field performance records are a less reliable indication of the PSD’s accuracy). The defense also asked for records of prior stops by the handler to try to claim racial profiling as the defendant was black. The court denied this based on its determination that Brady does not require the prosecution to provide information relevant to a selective enforcement claim
because such evidence is not material.
Editor’s note: while this court may have denied the additional discovery requests, it did leave the door open for the defense to make another request if supported by additional information. It is imperative that handlers maintain records of certification, on-going training, deployments and any remediation so that if requested, the records can be turned over. Being transparent and thorough will go a long way in demonstrating that PSD teams are reliable and a valuable part of the law enforcement team. Remember that if there is any sensitive information, you may always request an in-camera hearing before the information is released. If that is denied, then a decision will need to be made whether to proceed with prosecution.
United States v. Eymann (7th Cir. 2020) 2020 U.S. App. LEXIS 18602
Reasonable Suspicion; Collective Knowledge Doctrine;
LE received information that an airplane would be landing that night that was suspected of being involved in drug trafficking. A PSD team was summoned to be present when the plane landed. When the plane landed, LE watched as cargo was removed and loaded into the airport’s courtesy car. Subjects then left in the car. LE followed and detained subjects, during which one of them admitted to possessing a small amount of marijuana. After that, the PSD team was directed to sniff the courtesy vehicle which resulted in an alert. The PSD team then sniff the plane still on the tarmac and this also resulted in an alert. A total of 65 pounds of marijuana was found.
The court found that enough reasonable suspicion had been developed to support the detention of subjects in the courtesy car. In addition, because LE used little show-of-force, kept their questioning within reasonable bounds, and acted consistently with an investigatory detention, the court found that a reasonable person would not have understood that his freedom was restrained to the degree associated with a formal arrest. However, the arrest of one subject was found to be illegal (the other subject was found to be in possession of marijuana when Terry frisked). The defense then argued that because officers used a key obtained during the illegal arrest to gain access to the plane, anything found in the plane should be suppressed. The prosecution said that the marijuana in the plane would have been found via the inevitable discovery rule (as a result of the PSD alert). The court agreed, stating that LE had the right to be on the tarmac, having gotten permission from the airport personnel and that the plane was in an area that was not protected. The defense’s final argument was that the PSD was not properly certified and therefore, his alert could not be the basis of probable cause. The court disagreed with that assessment, running through all the evidence that showed the reliability of the PSD. The lack of certification at the time of the sniff was due to clerical error which was later corrected.
What is qualified immunity and why is it important to me as a PSD handler and LE officer?
“Qualified immunity is an immunity from civil suit extended to police officers, administrators, and other public officials who are alleged to have violated the rights of a person while the official was performing a discretionary function of office, if the official’s conduct does not violate a clearly established statutory or constitutional right that would have been known to a reasonable person. To assert qualified immunity, the official must demonstrate either that the facts alleged by the plaintiff, when taken in the light most favorable to the plaintiff, do not amount to a violation of a right protected by the constitution or statute. Or, if a right might have been violated, the official must demonstrate that the right was not so clearly established that the law had not put the official on notice regarding the right so as to make a reasonable person in the official’s position aware that his or her conduct would clearly be unlawful.” Bouvier Law Dictionary – Qualified Immunity
So what does that actually mean? Media pundits recently have asserted this doctrine is a get-out-of-jail-free card for police officers who violate citizen’s rights. An examination of this doctrine in our legal system shows that qualified immunity is necessary to protect good-faith mistakes that are made by LE when looked at through a totality of the circumstances test.
The first step in the “qualified immunity” analysis is to determine whether an constitutional violation has actually occurred. In City of Los Angeles v. Heller (1986) 475 U.S. 796, a drunk driving arrestee was injured when he became belligerent, an officer tried to handcuff him and during the ensuing altercation, arrestee fell through a plate glass window. The jury found no constitutional violation had occurred under these acts. In the instant appellate case, the U.S. Supreme court affirmed that if no constitutional violation occurred, then the second step of qualified immunity does not matter. Heller, supra, at 799.
A good discussion of qualified immunity is in one of the cases reviewed this month, Chaudry v. Farabella (N.J. 2020) 2020 U.S. Dist. LEXIS 115493. In Chaudry, the suspect had burglarized a pizza restaurant and stole money and a loaded handgun. LE responded and believed suspect to be in the basement. Handler made announcements before entering the building, but not at the top of the stairs. The basement was dark. PSD located suspect under the stairs and bit him. At some point, PSD re-engaged bite and bit off part of suspect’s ear. Suspect suffered significant damage to his ear and face and had a laceration on his leg from the PSD bite.
Chaudry defined “qualified immunity”: “the doctrine of qualified immunity provides that ‘government officials performing discretionary functions . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.’ (Citation omitted). Thus, government officials are immune from suit in their individual capacities unless, ‘taken in the light most favorable to the party asserting the injury. . . . the facts alleged show the officer’s conduct violated a constitutional right’ and ‘the right was clearly established’ at the time of the objectionable conduct.” (Citation omitted). Chaudry, supra.
Chaudry then talks about the reason for qualified immunity. “The doctrine of qualified immunity ‘balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably’. . . . Properly applied, qualified immunity ‘protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd (2011) 563 U.S. 731, 743 (quoting Malley v. Briggs (1986) 475 U.S. 335, 341). Chaudry, supra, at 12.
Therefore, qualified immunity analysis comes into play when two tests are met: (1) a constitutional right or privilege was violated by a governmental officer and (2) the violated right was clearly established at the time of the objectionable conduct. Chaudry defines “clearly established”: “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Chaudry, supra. Another way to put it is “’[i]f officers of reasonable competence could disagree on th[e] issue, immunity should be recognized.’” Chaudry, supra, quoting Malley, supra.
Therefore, in Chaudry, the court held that handler and other LE were entitled to qualified immunity because there was no constitutional violation. “First, the ‘[u]se of a police dog to bite and hold a suspect is not per se unreasonable.’ Moore v. Vangelo (3rd Cir. 2007) 222 Fed.Appx. 167, 170. ‘Police dogs can—and often do—cause serious harm.’ …the use of K-9 force to apprehend suspects where the Graham factors weigh in favor of the police is reasonable.’ Vangelo, supra (quoting Vera Cruz v. City of Escondido (9th Cir. 1997) 139 F. 3d 659.” Chaudry, supra, at 15. Because the actions of LE were reasonable here, there was not constitutional violation and qualified immunity as a concept is not even reached.
So what happens when a constitutional violation is found to have occurred? The court then must determine if those actions taken by the handler that constitute the violation were clearly established at the time when the handler acted. In Saucier v. Katz (2001) 533 U.S. 194 (overruled on separate grounds), the U.S. Supreme Court stated, “The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” Saucier, supra, at 206. The Supreme Court goes on to state, “Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes ‘hazy border between excessive and acceptable force,’ (citation omitted), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” “The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards.” Saucier, supra, at 208.
The take-away then is, not that LE has a get-out-of-jail-free card, but that the courts have recognized there can be a very hazy line between what violates a constitutional right and what doesn’t. They have also recognized that there is no benefit is holding LE accountable for a violation that they reasonably did not believe they were committing. As the courts have said, it’s a balancing act: the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.
It is LE’s duty to make sure they are up to date on the law that applies to what they are doing, and here at Meyer’s K9 Law, we want to assist in that endeavor. I hope this helps explain this concept to you and as always, if you have further questions or concerns, I’m a text, email or call away.