Ross v. City of Helena-West Helena (Arkansas 2020) 2020 U.S. Dist. 223341

Odor of Marijuana as Reasonable Suspicion; Excessive Force; Qualified Immunity

During a traffic stop, LE smelled the odor of marijuana coming from the vehicle. Both occupants were asked to step out of the vehicle and were Terry frisked with negative results. The driver was detained for DUI after testing. Since it was raining, LE placed passenger in a cruiser with a PSD, telling him to lean forward away from the dog. The PSD then was able to get his snout around the barrier and bite the handcuffed passenger. Passenger was immediately removed and taken to the hospital and given prophylactic medication but no stitches. The hospital bill was paid by the police department. Passenger was later diagnosed with PTSD.

The police department determined that the handler violated department policy by leaving passenger in vehicle with PSD unsupervised. The handler was disciplined and stripped of his PSD duties.

Passenger sued handler and department. The court initially held that there was no genuine dispute that LE smelled marijuana, which meant that LE was supported by reasonable suspicion in the detention of the occupants. The court then analyzed the excessive force claim from the passenger for the PSD bite. The court stated that the Graham v. Connor factors all were in favor of the passenger. However, the court held in this case that the handler was entitled to qualified immunity because it was not clearly established that his conduct in placing passenger in vehicle with PSD was unconstitutional (there was no case on point). The court then addressed the complaints against the department/city and concluded that there was no facially unlawful city policy or custom and the passenger could not show some municipal action that demonstrated deliberate indifference to the consequences of the agency’s action (a high standard). The court held that both the handler and the agency were entitled to qualified immunity.