Moya v. City of Clovis (New Mexico 2020) 2020 U.S. App. LEXIS 31579

Excessive Use of Force

An inmate filed suit against the PSD team that apprehended him as he tried to elude LE. He claimed he suffered physical injuries from the bite of the PSD. Inmate admitted that he played cat and mouse with the police and sometimes he got away and sometimes LE caught him. LE saw inmate and after confirming he had an outstanding arrest warrant, turned around to contact inmate. Inmate fled. A PSD team joined the chase and found inmate standing on the roof of a shed. At least one PSD warning was given. Inmate jumped down and started running. Inmate reached another building and jumped up. PSD was able to bite his foot but the inmate shook PSD off and made it to the roof. Inmate jumped into a neighboring yard and began throwing things and running. PSD leapt over the wall and bit inmate. Handler went over the wall right after PSD and found inmate facedown on the ground with PSD biting his left arm. Other officers handcuffed inmate and PSD was released as soon as that was accomplished. PSD’s bite was no longer than 20 seconds in duration. Applying Graham v. Connor, the appellate court held that “[g]iven the numerous warnings, [inmate’s] history of fleeing, his flight from the officers on the instant day, and the potential danger to officers and bystanders of a prolonged chase through a residential neighborhood which included [inmate] jumping on roofs and running through back yards, deploying [PSD] was a reasonable choice.” The PSD was not out of sight of the handler for more than 10 seconds and the longest the bite could have lasted was 20 seconds because the PSD was released from inmate after 10 seconds of the handler’s arrival. Inmate claimed that at the time of the bite, he had already surrendered, but there was no way for the handler to know this because it was unclear whether inmate had laid down on the ground or if PSD had taken him down. Keeping the PSD on the bite until inmate was handcuffed was justified in that based on inmate’s actions and history, LE could reasonably assume inmate would again attempt to flee.