On April 29, 2021, the Fifth Circuit Court of Appeals decided Hinson v. Martin[i], which serves as an excellent review of the law related to excessive force, the use of a police canine (K9) and the boundaries on use of force. The relevant facts of Hinson, taken directly from the case, are as follows:
In February 2016, DeSoto Parish Sheriff’s Deputies, including Martin, were informed that Hinson was wanted on a felony arrest warrant for armed robbery involving a firearm. He was presumed armed and dangerous, according to the warrant; a Crime Stoppers tip also indicated that he was likely armed. The tip described his vehicle and indicated that he was likely traveling with his pregnant girlfriend, Krystal Grigg. Martin spotted the vehicle, identified the driver as Hinson, and pursued. Hinson initially accelerated his vehicle to flee, but then pulled over and fled on foot into a wooded area. Martin deployed Rex, and both pursued Hinson into the woods. After approximately 200 yards, Rex caught Hinson by the arm and took him to the ground.
What happened next is a matter of factual dispute. According to Martin, Rex bit Hinson’s right forearm, held on, and thereby took him to the ground. Although Martin could see that Rex had hold of Hinson’s right arm, he could not see Hinson’s left arm. Instead of calling Rex off Hinson, Martin drew his handgun and “held cover on Hinson” until a backup officer could assist him in handcuffing and securing Hinson. As soon as backup arrived, Martin removed Rex from Hinson’s arm, and Hinson was handcuffed and taken into custody without further incident or application of force.
According to Hinson, however, Rex initially bit him on the wrist, at which point he voluntary went to the ground with the canine. Hinson alleges he ceased any attempts to escape or resist and submitted to commands from that point on. Nonetheless, Martin cursed at him, hit Rex, and gave Rex a command that caused Rex to bite Hinson several more times on the upper arm. Both while Hinson was being handcuffed and after, deputies, including Martin, kicked him in the ribs. While Hinson lay handcuffed on the ground, subdued and compliant, Martin yanked on Rex’s choke chain, causing Rex to once again bite down on Hinson’s forearm and not let go. The biting stopped only when another deputy said, “he’s had enough,” causing Martin to remove Rex from Hinson’s arm.[ii]
Hinson sued the Sheriff and Deputy Martin and alleged that Martin used excessive force by initially using the K9 to apprehend him, by allowing the K9 to bite him after he was handcuffed and subdued, and by kicking him after he was handcuffed and subdued. The district court dismissed the claims against the Sheriff but denied qualified immunity for Deputy Martin. Martin appealed the denial of qualified immunity to the Fifth Circuit Court of Appeals.
The court of appeals first discussed the standard for qualified immunity and stated
To overcome an official’s claim of qualified immunity, a plaintiff must be able to prove “facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011)[iii]
On appeal, Hinson argued that Deputy Martin used excessive force (1) by initially using the K9, Rex, to apprehend him, (2) causing Rex to continue to bite him after he was handcuffed and subdued, and (3) kicking him after he was handcuffed.
The court then examined the excessive force claims under the Fourth Amendment. Under the Fourth Amendment, a use of force is examined under an “objective reasonableness” standard. The court cited Graham v. Connor stated
[T]he reasonableness of force may be evaluated by looking to factors including (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. We must be careful to judge the reasonableness of a use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.[iv]
The Initial Use of Force to Apprehend Hinson
The court then examined the initial use of force, particularly, Deputy Martin’s decision to use Rex to apprehend Hinson as he fled on foot, in light of the factors above from Graham v. Connor.
The first factor considered was the seriousness of the offense. The court stated that they have previously held
[T]hat driving under the influence is a serious offense, and “[i]f DUI is serious, then a fortiori so is felony assault.” Escobar, 895 F.3d at 394. Similarly, a violent felony like armed robbery is certainly at least as serious (if not clearly more so) than DUI.[1]
As such, the court held that armed robbery is a serious offense, and this factor weighed in favor of Deputy Martin.
The court then examined the second factor, whether Hinson posed an immediate threat to the officers or others. The court noted that Hinson alleged that Griggs, his girlfriend who was with him at the time, told the officers that Hinson was unarmed at the time he fled. However, the court also considered the following: (1) Hinson’s armed robbery warrant noted that he was to be considered “armed and dangerous, (2) Hinson was suspected of a crime involving the use of a weapon, and (3) a Crime Stoppers tip received by the police indicated that Hinson was armed. The court then stated
[Deputy] Martin was under no obligation to blindly accept Grigg’s bare assertion that her boyfriend (and father of her unborn child) was unarmed. In other words, Martin reasonably believed he was chasing an armed and dangerous fugitive suspected of a violent felony through a wooded area, near residences. Martin had adequate cause to believe Hinson posed a substantial threat to himself, his fellow officers, and bystanders.[v]
Therefore, the second factor weighed in favor of Deputy Martin.
The court then considered the third factor, particularly, whether Hinson was actively resisting arrest or attempting to evade arrest by flight. The relevant facts are that (1) Hinson first attempted to evade arrest by fleeing in his vehicle, and then (2) attempted to evade arrest by fleeing on foot into the woods. As such, the third factor weighed in favor of Deputy Martin.
Therefore, the court of appeals then held, that because Hinson was (1) suspected of a serious crime, (2) a threat to officers based on reasonable belief that he was armed and (3) he was resisting arrest by flight, Deputy Martin’s use of K9 Rex to initially apprehend Hinson was reasonable under the Fourth Amendment. As such, Hinson failed to establish a constitutional violation and qualified immunity should have been granted for the initial use of force.
The Uses of Force (K9 and kicks) After Hinson was Handcuffed and Subdued
The court noted that Deputy Martin disputes Hinson’s allegations that he caused Rex to bite him and kicked him after he was handcuffed and subdued. However, at this stage of the litigation, the court must view the facts in a light most favorable to the plaintiff, unless there is clear evidence, such as video, that refutes the plaintiff’s allegations. In this case, the court noted that there was notno evidence that clearly contradicted the plaintiff’s claims, and as such, they must consider them as true for the appeal.
The court of appeals also observed
Merely because a use of force was reasonable at the outset of an apprehension does not mean that the continued use of force remains reasonable.[vi]
The court then considered the factors from Graham v. Connor. First, as previously discussed, the offense, armed robbery, is a serious offense. This weighed in favor of Deputy Martin.
The court next considered the second factor, whether Hinson posed a threat to the officers or others. The court stated that, assuming Hinson was apprehended, handcuffed, and offering no further resistance, he then no longer posed a threat to the officers or others. Thus, the second factor weighed in favor of Hinson.
The third factor, whether Hinson was actively resisting or attempting to avoid arrest by flight, also weighs in favor of Hinson, assuming that he was handcuffed and subdued as Martin kicked him and caused Rex to bite him.
Thus, the court held that Hinson, assuming his version of the facts to be true, has alleged a Fourth Amendment violation and satisfied the first prong of the qualified immunity analysis.
The court then set out to determine if the second prong required to defeat qualified immunity was satisfied, particularly whether the law was clearly established such that a reasonable officer in Martin’s position would have known he was using excessive force.
The court stated
The law was also clearly established before February 2016 that, generally speaking, “once a suspect has been handcuffed and subdued, and is no longer resisting, an officer’s subsequent use of force is excessive.” Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015); see also Ramirez v. Martin, 716 F.3d 369, 378-79 (5th Cir. 2013) (tasing a suspect after he has ceased resisting and is handcuffed is clearly excessive); Bush v. Strain, 513 F.3d 492, 500-02 (5th Cir. 2008) (slamming a handcuffed and non-resisting suspect’s head against a car is clearly excessive). This well-established general principle—that harsh force should not be applied to a handcuffed, compliant suspect—is enough to give an officer “fair warning” that ordering a dog to inflict a severe bite wound or kicking a handcuffed and compliant suspect without cause violates the suspect’s Fourth Amendment rights.[vii]
Thus, Hinson satisfied the second prong of the qualified immunity analysis. As such, the court reversed the denial of qualified immunity for Deputy Martin for the initial use of the K9, and affirmed the denial of qualified immunity regarding the alleged force used after Hinson was handcuffed and subdued.
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Citations
[1] Id. at 11 (emphasis added)
[i] No. 19-30243 (5th Cir. Decided April 29, 2021 Unpublished )
[ii] Id. at 1-3
[iii] Id. at 8 (emphasis added)
[iv] Id. at 10 (emphasis added)
[v] Id. at 11-12
[vi] Id. at 13 (emphasis added)
[vii] Id. at 17 (emphasis added)
