A police dog bit plaintiff while he was handcuffed and on the ground. That’s excessive force if a jury believes it was gratuitous. Qualified immunity denied. Hammond v. County of Oakland, 2020 U.S. App. LEXIS 28285 (9th Cir. Sept. 4, 2020):
The next segment came when Cadotte ordered Odin to bite Hammond after the deputies had handcuffed him. We have held that police violate the Fourth Amendment when they order a dog to bite a suspect who posed no threat to the officers’ safety and was not resisting arrest or attempting to flee. See Campbell v. City of Springboro, 700 F.3d 779, 787-89 (6th Cir. 2012). Here, after the deputies handcuffed Hammond, he was on his stomach, handcuffed, with his hands visible. Although he had refused to surrender his hands earlier, at that point the deputies could see that Hammond was unarmed. And Hammond says he did nothing after the deputies handcuffed him that could be interpreted as resistance. Yet after Cadotte gave Odin commands in a foreign language, the dog bit Hammond, first on his back and then on his leg and foot. Hammond could “hear [his] bones crackling in [his] head,” and despite his pleas for help Cadotte did nothing to stop the dog from doing “what it wanted to do[.]” A jury could therefore find that Cadotte used excessive force when he ordered Odin to bite a handcuffed suspect who was not resisting arrest. See id.
Cadotte argues that Odin’s bites came as a result of a “spontaneous response” to Hammond’s “‘threatening’ movement into the dog’s defensive perimeter.” Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir. 2004). Dog bites violate the Fourth Amendment only if they come “through means intentionally applied.” Id.; see also Ashford v. Raby, 951 F.3d 798, 802-03 (6th Cir. 2020). Cadotte says that Odin bit Hammond’s legs and feet only after Hammond “began flailing . . . and kicked toward Odin’s face,” but Hammond tells a different story. He insists that these bites—and Cadotte’s commands to instigate them—came after the deputies had handcuffed him and had pinned his legs down. Whether Hammond kicked toward Odin, as Cadotte claims, is thus a question of fact that we lack jurisdiction to consider. See Walker, 649 F.3d at 503.
Cadotte also argues that the law about the use of dogs was not clearly established at the time of this incident. But we have found a Fourth Amendment violation when “an inadequately trained canine” bit a handcuffed suspect. Campbell, 700 F.3d at 789. Here, as there, Cadotte ordered Odin to bite a suspect “who [was] not actively fleeing and who, because of proximity, showed no ability to evade police custody.” Id. Any reasonable officer would have understood that commanding a dog to bite a handcuffed suspect who was not attempting to flee would violate the Fourth Amendment. Cadotte thus is not entitled to qualified immunity with respect to the bites.
Hammond also claims that Deputies Salyers and Welch violated the Fourth Amendment when they failed to stop the bites. Whether they did depends upon whether they “had both the opportunity and the means to prevent the harm from occurring.” Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013). But Hammond cites no caselaw clearly establishing that officers who are not trained as dog handlers have a duty to intervene and control a dog notwithstanding the presence of the dog’s handler. Salyers and Welch are therefore entitled to qualified immunity from Hammond’s claim.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)