CA6: Duration of police dog bite as reasonable force

Zuress v. City of Newark, 2020 U.S. App. LEXIS 17134 (6th Cir. May 29, 2020):

The second alleged unreasonable use of force was the delay in stopping the dog bite after plaintiff had been subdued. We have acknowledged that it is possible for “a delay in calling off [a police] dog . . . [to] rise to the level of an unreasonable seizure.” Greco v. Livingston Cty., 774 F.3d 1061, 1064 (6th Cir. 2014). But the facts here do not support a Fourth Amendment violation. Once defendant and the dog made physical contact with plaintiff, there were about five seconds between when plaintiff was subdued and other officers reached plaintiff, defendant, the dog, and the vehicle. Approximately three seconds later, defendant signaled the other officers to check the vehicle. After roughly four more seconds, defendant started to move off of plaintiff so another officer could take his place holding her down. Defendant’s switch from holding plaintiff down to manually attempting to get the dog to release its bite took about three seconds. This means that from the time defendant had another officer to take his place holding down plaintiff to when he started to get the dog to release its bite, about eleven seconds elapsed. Such a short amount of time—some of which involved defendant directing other officers to check the vehicle for officer-safety purposes—was not the kind of delay that “rise[s] to the level of an unreasonable seizure.” Id.; see also Ashford, 951 F.3d at 803-04 (concluding that it was not “the stuff of a Fourth Amendment violation” when a dog bite lasted about “four to five total seconds after” the dog pulled the plaintiff out of a vehicle and when “[a]t most, one could [have] argue[d] that [the officer] could have called the dog off a second or two sooner”).

Additionally, although the bite lasted about twenty-four seconds once defendant started attempting to get the dog to release, a critical component of this type of Fourth Amendment violation was missing. For this sort of Fourth Amendment violation to occur, the government must terminate a person’s “freedom of movement through means intentionally applied.” Dunigan v. Noble, 390 F.3d 486, 492 (6th Cir. 2004) (quoting Brower v. Cty. of Inyo, 489 U.S. 593, 597 (1989)). While defendant was working to get the dog to release his bite, the continued bite was not a “means intentionally applied.” See id. at 492-93 (emphasis omitted) (determining there was not a Fourth Amendment violation because it was not the officer’s intention for the dog to bite the plaintiff); see Neal v. Melton, 453 F. App’x 572, 577-78 (6th Cir. 2011) (concluding that there was not an excessive force Fourth Amendment violation because the dog’s contact with one of the plaintiffs was “not the type of intentional or knowing contact [that is] required”). The second alleged use of unreasonable force, therefore, did not constitute a violation of the Fourth Amendment.

For these reasons, plaintiff has failed to demonstrate “that [defendant] violated a statutory or constitutional right” and therefore has not rebutted defendant’s claim of qualified immunity. Jacobs, 915 F.3d at 1039 (citation omitted). Accordingly, the district court correctly granted summary judgment in defendant’s favor.