On July 22, 2022, the Sixth Circuit Court of Appeals decided Jarvela v. Washtenaw Cnty[i], which serves as instructive regarding when warnings are required when using a police canine to track a suspect.  The relevant facts of Jarvela are as follows:

One night in August 2017, Cory Jarvela drank a half-dozen rum-and-cokes in his home near Clinton, Michigan, a small town about 20 miles southwest of Ann Arbor. Around 1 a.m., he drove his Chevy Silverado to a Shell station to buy cigarettes. Afterward, the store clerk called the police to report that “a drunk guy” wearing a white t-shirt had just left driving a black Silverado. In a nearby police cruiser, Officer Robert Trevino spotted the Silverado almost immediately, speeding and drifting over the road’s center line. Trevino lit his rollers and began to pursue the truck. Jarvela sped up outside of town, leading Trevino on an extended chase. After about five minutes, the road turned to gravel and the Silverado struck a tree head-on, hard enough to deploy its airbags. Jarvela then fled on foot into a darkened area of trees, bushes, and chest-high weeds and grass. Rather than pursue into the darkness, Trevino called for backup. Washtenaw County Sheriff’s Deputy Richard Houk and his service dog, Argo, arrived thirteen minutes later.

Most of what followed was recorded on Houk’s body camera. Houk choked up on Argo’s 15-foot leash, keeping the dog within five or ten feet. Then he and Argo began searching the area, with Houk shining his flashlight as they went. After about five minutes, Argo found a shoe and a white t-shirt in the grass; a few seconds later, the grass around Argo (who was not then visible) began to move around. Moments later—around 6:14 on the video—Jarvela was visible in the weeds as he wrestled with Argo, who was clinging to Jarvela’s right arm. Houk began yelling at Argo to “packen” (a command meaning “grip” or “apprehend” in German) and “hold ‘im.” At 6:24 on the video, Jarvela begins to roll his body (over 200 pounds) on top of Argo’s body (about 65 pounds), as Houk yelled at Jarvela, “Get on your stomach right now. Get down on the ground right now. On your stomach now.” (Whether the roll preceded the command is not clear from the video.) At 6:30 on the video, Jarvela was on his knees with his chest against Argo and his arms bent near Argo’s head.  At 6:37, Houk steps forward and delivers seven blows to the back of Jarvela’s body, yelling “Let go of the fucking dog now. Let go of the fucking dog.” Trevino shot his taser at Jarvela, who rolled onto his back. Trevino then deployed his taser again, and Jarvela complied with commands to “get on your stomach.” By 7:02 the officers have him cuffed.[ii]

Jarvela filed suit and argued that Deputy Houk, the canine handler, used excessive force under the Fourth Amendment when he failed to warn him that he was tracking him with a canine and giving him an opportunity to surrender.  The district court denied qualified immunity for Deputy Houk, and Houk appealed to the Sixth Circuit Court of Appeals.

On appeal, the court noted that, to defeat Deputy Houk’s motion for qualified immunity, Jarvela must show (1) that Deputy Houk violated the Fourth Amendment and (2) that the law was clearly established such that court precedent would have made it clear to any reasonable officer that the conduct at issue in this case violated the Fourth Amendment.

The court then noted the general constitutional guidelines regarding excessive force.  The court stated

Force is excessive when it is “objectively  unreasonable.” Hicks v. Scott, 958 F.3d 421,435 (6th Cir. 2020). When applying that standard, we consider the amount of force used, on the one hand, and “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight,” on the other. Id.[iii]

To analyze the force used in this incident, the court examined the incident in two separate phases.  The first phase was the tracking phase, which included the initial bite and hold.  The second phase was the contact phase, which began after the initial bite and hold, includes Deputy Houk’s use of strikes and the taser, and ends when Jarvela was handcuffed.

The court then set out to examine the force used in the tracking phase.  Here, Jarvela argued that Deputy Houk violated the Fourth Amendment by failing to warn him that he was tracking him with a canine and giving him an opportunity to surrender prior to the canine conducting a bite and hold.   Regarding the bite and hold, the court of appeals stated

[T]he only force he used was a bite (or bite and hold, to be precise) from a well-trained police dog, namely Argo. Among the various forms of force available to law enforcement, that is a comparatively measured application of force, which “does not carry with it a substantial risk of causing death or serious bodily harm.” Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) [iv]

Thus, the Sixth Circuit viewed the bite and hold as a level of force not likely to cause death or serious bodily harm.

The court then examined a similar case decided by the Sixth Circuit, Matthews v. Jones.[v]  In Matthews, the plaintiff, who was drunk, led police on a high-speed vehicle pursuit and subsequently fled on foot into the woods at nighttime.  The canine officer called out an order for Matthews to surrender or he would unleash the dog.  Ultimately, the dog was released and bit Matthews.

Jarvela argued that Deputy Houk should have issued a warning like the officer did in Matthews.  However, the court distinguished the cases by noting that Deputy Houk did not release his dog; rather, he kept his dog on his leash.  Additionally, the court noted that just as they determined that Matthews posed a threat to officers searching for him in the woods at night, so did Jarvela.  The court stated

Matthew’s “extreme behavior” in seeking to elude arrest—behavior which was no different from Jarvela’s pre-arrest behavior here—”provided cause for the officers to believe” that Matthews had potentially been involved in more serious criminal activity. Id. We therefore held that “Matthews posed a threat to the officers’ safety” as they searched for him in the darkened woods. Id. Suffice it to say that Jarvela posed the same threat to the officers here.[vi]

Lastly, the court noted that, in light of the threat posed by Jarvela, as noted above, issuing in a warning regarding the canine track could have exposed the officers to additional danger by revealing their position.

Thus, after examining the precedent in the Sixth Circuit regarding warnings during canine tracks, the court of appeals stated

Jarvela emphasizes that, in Matthews, the officers “called out orders for [the suspect] to surrender.” Id. at 1048. But the district court and Jarvela  both overlook that those warnings themselves came with a threat: that, if Matthews did not surrender, the officer would unleash the dog altogether. Id. The same was true in Robinette, where the officer warned the suspect and then unleashed the dog—which bit the suspect fatally, albeit constitutionally. 854 F.2d at 911-12. Those cases therefore do not support the proposition that an officer must always shout a verbal warning before tracking a suspect with a dog that the officer keeps on a leash.[vii]

The court of appeals also noted that the “warn-then-unleash approach” is no less forceful than the approach that Deputy Houk used, particularly he did not warn but kept the dog restrained on a leash.  The court stated each method has its “pros and cons depending on the circumstances.”[viii]  The court then stated

Both approaches, however, fall within accepted police practice; and we would seriously overstep our judicial role if we were to hold that officers in every instance must adopt one approach or the other.

We therefore hold that the Constitution does not require a canine handler always to shout out a warning to a fleeing suspect. Accord Escobar v. Montee, 895 F.3d 387, 395-96 (5th Cir. 2018); Crenshaw v. Lister, 556 F.3d 1283, 1293 (11th Cir. 2009); see also Thomson v. Salt Lake County, 584 F.3d 1304, 1321 (10th Cir. 2009); Johnson v. Scott, 576 F.3d 658, 661 (7th Cir. 2009).[ix]

The court of appeals then held that Deputy Houk did not violate the Fourth Amendment when he chose not to warn Jarvela that he was tracking him with the dog on a leash.  The court stated

[W]e hold that, under the circumstances facing the officers here, Houk did not violate the Constitution when he chose not to shout a verbal warning while tracking Jarvela with Argo on a leash. If Jarvela had wanted to surrender, he should not have fled on foot.[x]

Therefore, Deputy Houk was entitled to qualified immunity for the bite and hold during the tracking phase.

The court of appeals then examined the force used during the contact phase.  The court noted that this phase involved much confusion as Jarvela wrestled with the dog as the dog bit his arm, and Deputy Houk used seven strikes and two activations of the taser to subdue Jarvela.

The court stated

When a person resists arrest—say, by swinging his arms in the officer’s direction, balling up, and refusing to comply with verbal commands—the officers can use the amount of force necessary to ensure submission.” Rudlaff v. Gillispie, 791 F.3d 638, 643 (6th Cir. 2015). Here, Houk ceased to use any force once Jarvela complied with Houk’s commands to roll onto his stomach. And Jarvela has not identified any binding precedent that would have made clear to Houk that any of the force he used before then was unnecessary to ensure Jarvela’s submission.[xi]

Therefore, the court held that Deputy Houk was entitled to qualified immunity for the force used in the contact phase.

As such, the court of appeals reversed the decision of the district court.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 21-2820 (6th Cir. Decided July 22, 2022)

[ii] Id. at 2-4

[iii] Id. at 5 (emphasis added)

[iv] Id. (emphasis added)

[v] 35 F.3d 1046 (6th Cir. 1994)

[vi] Id. at 6 (emphasis added)

[vii] Id. at 6-7 (emphasis added)

[viii] Id. at 7

[ix] Id. at 7-8 (emphasis added)

[x] Id. at 8 (emphasis added)

[xi] Id. at 8-9 (emphasis added)

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