On May 28, 2020, the Sixth Circuit Court of Appeals decided Zuress v. City of Newark[i], in which the court examined whether a canine officer’s decision to release his dog and the dog’s delay in releasing the bite, violated the Fourth Amendment. The relevant facts of Zuress, taken directly from the case, are as follows:
City of Newark police were surveilling a house in Newark, Ohio, because a confidential informant had told them it was a drug house. At the same time, they were looking for Jeff Grooms—plaintiff Zuress’s boyfriend and the brother of a resident of that [*2] house—because he was the subject of an outstanding warrant for unpaid child support. The police department had also told Burris that some detectives wanted to talk to Grooms about an armed robbery. After a confidential informant told Burris that Grooms had been staying at his sister’s residence, police also monitored it in order to detain Grooms.
On the day of the incident at issue, Burris was patrolling with his police dog—Ike—and Officer April Hunt. While patrolling, Burris received a tip from a confidential informant that Grooms had arrived at his sister’s residence in a tan Jeep Renegade and had entered the house. Burris, Ike, and Hunt then drove to the residence to surveil it. There, Burris saw the Jeep leave the house and followed it. After the Jeep committed a traffic infraction, Officer Hunt turned on the cruiser’s emergency lights.1 The Jeep slowed down, but it passed multiple areas where it could have safely stopped. Once the vehicle finally stopped, Grooms abruptly opened the driver’s side door and fled. While Grooms was fleeing, Burris got out of the police cruiser and deployed Ike. However, Burris and Ike were unable to track Grooms because they did not have their tracking [*3] equipment.
About nineteen seconds after the Jeep stopped, and before Burris and Ike returned, the Jeep drove away without authorization. Thereafter, once Burris and Ike returned, they drove with Officer Hunt after the Jeep.
While the Jeep was fleeing the scene, another officer—Jon Purtee—intercepted it and pulled it over. As Burris, Hunt, and Ike pulled up behind Purtee’s cruiser, Purtee assumed a shooting stance and used his driver’s side door as cover. Purtee commanded the driver, plaintiff Zuress, to exit her vehicle and when she did she was facing the officers.2 For the safety of the officers, Purtee ordered Zuress to turn around. But Zuress did not comply; Purtee directed Zuress to “face away” five times before she turned around. Zuress’s noncompliance continued as she turned back around and faced the officers. Further, she did not follow Purtee’s command to walk backwards towards him. Instead, Zuress argued with Purtee, waved her hands around, and reached down towards her waistband, adjusting her shirt or pants.
Purtee warned Zuress that he would deploy the dog if she did not comply. One or two seconds after Purtee gave that warning, Burris released Ike, who advanced toward Zuress [*4] and her car. As he was trained to do, Ike initially ignored Zuress and entered the car to check for other occupants. While Ike was checking the car, Burris approached Zuress. At roughly the same time that Burris made physical contact with Zuress, Ike emerged from the car, bit down on Zuress’s left arm, and held his bite to assist with the arrest. Then Zuress, Burris, and Ike all fell to the ground.
While Ike and Burris gained control of Zuress, other officers advanced; Burris directed them to check the car for other occupants. Once the car was cleared, another officer took Burris’s place on top of Zuress to secure her while Burris moved over to Ike to get him to release his bite. After struggling with Ike for about twenty-four seconds, Burris got Ike to release his bite. Burris then moved Ike away from Zuress.[ii]
Zuress filed suit against the canine officer, Officer Burris, and alleged that he violated her Fourth Amendment right to be free from excessive force for (1) his decision to release his dog, and (2) a twenty-four-second delay in being able to make his dog release his bite on Zuress. Officer Burris filed a motion for qualified immunity and the district court granted the motion. Zuress appealed the grant of summary judgment to the Sixth Circuit Court of Appeals.
Before examining the issues, the court first examined the legal principles regarding excessive force. The court stated
An excessive-force claim turns on whether an officer’s actions were ‘objectively reasonable’ given the circumstances he confronted.” Shanaberg v. Licking Cty., 936 F.3d 453, 455-56 (6th Cir. 2019) (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). This is an objective inquiry. Id. at 456. “[W]e ask how a reasonable officer would have seen things in the heat of the moment, not in hindsight.” Id. To answer that question, our inquiry includes considering the following factors from Graham v. Connor (the “Graham factors”):  “the severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. The “overarching determination” we must make, however, “is whether the ‘totality of the circumstances’ justified the degree of force an officer used.” Shanaberg, 936 F.3d at 456 (citation omitted).[iii]
Issue One: Whether Officer Burris violated the Fourth Amendment when he decided to deploy his dog to apprehend Zuress?
In examining this issue, the court first considered the three factors from Graham v. Connor. The first factor is the severity of the crime at issue. Regarding this issue, the court observed that the officers suspected Zuress of two misdemeanor crimes. The first was driving away from a traffic stop after she had initially stopped. This is a misdemeanor under Ohio law, and it carries a possible jail time up to 90 days and $750 fine. The second crime involved failing to comply with lawful orders after she was stopped the second time. This is a misdemeanor with possible jail time up to six months and up to a $1,000 fine. The court stated that these were both non-violent misdemeanors. As such, this factor weighed in favor of Zuress.
The second factor from Graham is whether the suspect posed an immediate threat to the officer or others. The court stated that this factor weighed in favor of Officer Burris in that Zuress did poses the threat to the officer and others. Specifically, the court stated
The immediate-threat factor weighs in defendant’s favor for several reasons. First, plaintiff had just traveled from a known drug house. Second, plaintiff’s traveling companion—Grooms—was under surveillance because there was an outstanding warrant out on him (albeit for unpaid child support). Additionally, Grooms was reportedly a drug addict, and detectives wanted to speak with him about an armed robbery. Third, plaintiff’s traveling companion had abruptly fled on foot from the first traffic stop and plaintiff herself had fled the scene in her vehicle—without authorization—after only about nineteen seconds. Fourth, at the second traffic stop, plaintiff was an unknown quantity and acted unpredictably. She was standing right next to the driver’s seat of her vehicle with the door open. That meant she could have quickly attempted to operate the vehicle again or reached items (such as weapons) inside the vehicle. Plaintiff asserts that she was unarmed,4 but a reasonable officer would not have known that at the time. Fifth, it was unknown whether more people were in the vehicle and, if so, whether they were armed. Finally, and perhaps most importantly, plaintiff was not complying with the officers’ commands; she was arguing, waving her hands around, turning to face the officers, and even reached for her waistband where a weapon could have been. See Jackson v. Washtenaw Cty., 678 F. App’x 302, 306 (6th Cir. 2017) (“While [the suspect] was in one sense complying with [the officer’s] command to stop, [the suspect’s] further turning around with his hand by his waist presented itself as an immediate threat to the officer.”).[iv]
Thus, the second Graham factor weighed in favor of Officer Burris.
The third Graham factor is whether the suspect was actively resisting or attempting to evade arrest by flight. The court first discussed active resistance and stated
“Active resistance” and “passive resistance” are materially different. Goodwin v. City of Painesville, 781 F.3d 314, 323 (6th Cir. 2015); Jackson, 678 F. App’x at 306. “Active resistance includes ‘physically struggling with, threatening, or disobeying officers.'” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015) (citation omitted). It also includes “verbal hostility coupled with failure to comply with police orders.” Jackson, 678 F. App’x at 306; see also Rudlaff, 791 F.3d at 641.[v]
The court then applied the definitions of “active resistance” above to the facts of Zuress’ case. It was noted that Zuress did not physically struggle with the officers, and she did not verbally threaten them. However, Zuress did argue with officers and repeatedly failed to follow their lawful orders. The court then held that Zuress’s “repeated non-compliance,” along with her “arguing” with the officers, “put her conduct just over the line into the active-resistance category.”[vi]
As such this factor weighed in favor of Officer Burris.
Additionally, the court of appeals examined caselaw regarding excessive force involving canines. The court observed that cases in which they had found excessive force, typically involved poorly trained dogs that attacked suspects without proper warning or command. The court then noted that in this case, there is no allegation that the canine was not properly trained.
Regarding the first issue, the court then held that the deployment of the canine did not violate the Fourth Amendment. Specifically, the court stated
Given the overall orientation of the Graham factors, and considering the totality of the circumstances, it was reasonable to deploy the police dog because plaintiff had ready access to her vehicle and possible weapons, had a traveling companion whose whereabouts were unknown, was refusing to comply with commands, and was arguing even though officers had their weapons trained on her. Accordingly, we conclude that the deployment of the police dog did not constitute a violation [*12] of the Fourth Amendment.[vii]
Issue Two: Whether Officer Burris violated the Fourth Amendment by the delay in stopping the dog bite after Zuress had been subdued?
Regarding this issue, the court first noted
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).[viii]
The court then examined the facts of Zuress’s case. The court stated
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.”
Additionally, the court of appeals discussed a separate rationale for its conclusion that the twenty-four-second delay in stopping the dog bite did not violate the Fourth Amendment. Specifically, Fourth Amendment seizures occur when the police restrain a person’s freedom “through means intentionally applied.”[ix] However, while Office Burris was working to get the dog to release its bite, the continued bite was no longer considered a “means intentionally applied.”[x]
Thus, the court of appeals held that the twenty-four-second delay in making the dog release its bite did not violate the Fourth Amendment.
[i] No. 19-3945 (6th Cir. Decided May 28, 2020)
[ii] Id. at 1-4
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 7-8
[v] Id. at 8-9 (emphasis added)
[vi] Id. at 9
[vii] Id. at 11-12
[viii] Id. at 12 (emphasis added)
[ix] Id. at 13
[x] Id. at 13-14 (see Dunigan v. Noble, 390 F.3d 486, 492 (6th Cir. 2004) ) (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”).