On November 21, 2023, the Fifth Circuit Court of Appeals decided Sligh v. City of Conroe[i], in which the court examined whether a canine officer was entitled to qualified immunity for allowing his dog to bite an emotionally disturbed woman who resisted an officer’s attempt place her in custody. The relevant facts of Sligh are as follows:
This case involves a plaintiff who was bitten and injured by a police dog. The below facts are mainly taken from the operative complaint. At 1:39 a.m. on July 5, 2018, Plaintiff-Appellant Olivia Sligh’s partner called 911 to report that Sligh was suicidal, had hurt herself, and had left her house on foot. Sligh’s partner requested an ambulance, and he indicated that Sligh was unarmed and not a violent person. The Montgomery County Sheriff’s Office notified the City of Conroe of the emergency medical call and requested a canine officer if available. Tyson Sutton, a police officer employed by the City of Conroe, and Alexis Alias Montes, a deputy employed by the Montgomery County Sheriff’s Office, responded to the call. Sutton brought along Thor, a trained K9 police dog. These two officers, the City of Conroe, and Montgomery County are the Defendants-Appellees in this action.
The complaint alleges that when the officers located Sligh, Sutton shined a flashlight in Sligh’s face as Thor barked and lunged at her. Montes grabbed Sligh, who pulled away. Sutton then sicced Thor on Sligh, and Thor initially bit Sligh in the upper thigh. Sligh sat down, and Sutton continued to direct Thor to bite Sligh on the rear of her upper leg and her ankle. Sligh alleges that “Sutton used the dog to purposively attack and bite” her; that “Montes did not intervene in the multiple dog bites by words or actions even though the attack lasted one minute and some seconds”; and that she never resisted seizure, tried to escape, or assaulted Montes.
Sligh’s complaint is not the only account of what happened that night. Sligh’s complaint also repeatedly references Sutton’s bodycam footage (the “Video”), which was attached to Montgomery County and Montes’s motion to dismiss. In the Video, Sutton encounters Sligh and shines a flashlight at her. Sligh begins to approach Sutton, who loudly says: “Wait, wait, wait, don’t! Do not walk towards me! Do not walk towards me! The dog will bite you!” Sligh acknowledges Sutton before shouting a profanity at the officers. Montes commands Sligh to place her hands behind her back. Sligh responds with more profanities and, contrary to the complaint’s assertions that she never resisted, slaps at Montes’s arms while attempting to pull away. Sligh and Montes physically struggle for about 11 seconds, at which point Sligh breaks free from Montes’s grip. Sutton then releases Thor with a bite command, and Thor bites Sligh as Sutton commands her to get on the ground. Sligh falls to a seated position on the ground and cries out in pain. Beginning eight seconds after the bite command, Sutton repeatedly commands Thor to release Sligh, but Thor does not immediately comply. Sligh begins lying on her side. 36 seconds after giving the first bite command, Sutton grabs and pulls Thor’s collar. Thor releases Sligh around 64 seconds following the first bite command. While Thor was biting Sligh, Montes reaches to control Sligh’s hands and commands her to put her hands behind her back. Montes handcuffs Sligh after Thor’s release.[ii]
Sligh filed suit against Canine Officer Sutton and alleged that he used excessive force under the Fourth Amendment when he commanded K9 Thor to bite her and then failed to stop the dog from biting her for approximately 64 seconds. Officer Sutton filed a motion for qualified immunity, which included body camera video of the incident. The district court granted the officer’s motion for qualified immunity, and Sligh appealed to the Fifth Circuit Court of Appeals. [Note: While other claims were filed in this case, this article is limited to the claim against the canine officer.]
The issue on appeal is whether Officer Sutton is entitled to qualified immunity for ordering K9 Thor to bite Sligh and for the bite lasting approximately 64 seconds.
It is important to note that when an officer acts in a discretionary capacity, such as in a use of force situation, the officer is entitled to qualified immunity from suit unless the plaintiff can satisfy a two-pronged test. First, the plaintiff must establish that his or her constitutional rights were violated. Second, the plaintiff must show that the law was clearly established such that every reasonable officer in the same situation would have known he was violating the constitution.
The court of appeals then examined the rules relevant to the issue in this case. The court stated
To succeed on a Fourth Amendment excessive force claim, Sligh must demonstrate an “(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” See Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). “In excessive-force claims, the reasonableness of an officer’s conduct depends on the ‘facts and circumstances of each particular case . . . .'” Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). Such a determination is based on “the perspective of a reasonable officer on the scene.” Id. (quoting Graham, 490 U.S. at 396). The Supreme Court in Graham v. Connor outlined three factors that inform the reasonableness of an officer’s use of force: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” See Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020) (citing Graham, 490 U.S. at 396).[iii]
The court of appeals then examined each of the three use of force factors from Graham v. Connor, specifically, (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight.
Regarding the first factor, the severity of the crime at issue, the court of appeals noted that Sligh was not suspected of a crime. Rather, officers were called about Sligh’s mental health. Therefore, this factor weighed in favor of Sligh.
Regarding the second factor, whether Sligh posed an immediate threat, the court noted that Sligh may have posed a threat to her own safety, as she had cut herself and was suicidal, however she had not posed a violent threat to anyone else. Further, she was not engaged in harming herself when officers were engaged with her. The court stated
Sligh did not appear to be engaging in self-harm during her interactions with the officers, which undermines [the officers] argument that Sligh posed an “immediate” safety threat to herself that warranted such a dangerous use of force. It is also difficult to see how Sligh’s self-harm justifies the employment of a dog bite, which will inevitably lead to more punctures or lacerations.[iv]
The court also stated that the officers’ argument that they could not determine if Sligh was armed was not persuasive because Sligh was wearing a tank top and athletic shorts and had produced no weapon during the struggle. Further, the court stated
[B]ecause the officers did not suspect that Sligh was violent or had committed a crime, the fact that she was unsearched is not enough to permit a reasonable officer to assume that she posed an immediate threat.[v]
Therefore, this factor weighed in Sligh’s favor.
Regarding the third factor, whether Sligh was actively resisting, the court noted the body camera video showed that Sligh did actively resist Officer Montes’s effort to physically apprehend her by physically struggling with the officer. She also failed to follow verbal commands. The court stated
Once Sligh broke free from Montes’s efforts to physically apprehend her, a reasonable officer could conclude that a heightened use of force would be necessary to detain her for her own safety. However, even where force is authorized, officers must employ an appropriate degree of force to stay within constitutional bounds. An officer must use force “with measured and ascending actions that correspond[] to [a suspect’s] escalating verbal and physical resistance.” Joseph, 981 F.3d at 332-33 (alterations in original) (quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).[vi]
The court of appeals then held that the officer’s decision to command K9 Thor to bite Sligh constituted excessive force in violation of the Fourth Amendment. The court explained
When Sligh slipped free from Montes’s attempt to seize her, there was a break in the action. At that point, the officers could have attempted to escalate their use of physical force in a more measured manner, or they could have provided a clear warning that they would employ a dog bite if Sligh did not comply. Instead, Sutton sicced Thor on Sligh without warning.
Without any further attempts to subdue Sligh without the use of a dog bite, and without providing Sligh any warning that she may be subjected to a dog bite if she did not comply, Sutton sicced a dog on a woman who (1) was not suspected of any crime; (2) did not pose an immediate safety threat to officers or others; and (3) was in need of emergency medical intervention due to self-harm. Furthermore, Sligh—surrounded by a fence and thick foliage—was not attempting to flee the officers. Employing a dog bite under these circumstances arguably constituted an unreasonable seizure in violation of Sligh’s Fourth Amendment rights.[vii]
Thus, while the third factor weighed in favor of the officers, for the reasons discussed above, the court held that the use of Thor to bite Sligh, under the circumstances of Sligh’s case, was excessive force in violation of the Fourth Amendment. Therefore, Sligh satisfied the first prong of the test to defeat Officer Sutton’s motion for qualified immunity.
The court then examined the second prong that Sligh must satisfy, specifically, whether the law was clearly established such that every reasonable officer in this situation would have known he was violating the constitution.
For the law to be “clearly established,” there must be “controlling authority or a robust consensus of persuasive authority” that provides fair warning to the officer.[viii] While this typically requires caselaw, the case does not have to be “directly on point,” but must show that the officer’s actions were “beyond debate.”
The court of appeals also noted that there may be some instances where the officer’s actions are obviously unconstitutional; in that type of instance, even without sufficient specific caselaw, the factors from Graham v. Connor can “clearly establish” the law. However, the court of appeals stated that Sligh’s case was not an “obvious” case. Specifically, the court stated
Because Sligh actively resisted seizure, the third Graham factor weighs against her and justified a use of heightened force. While the method of heightened force employed may have been unconstitutionally excessive, the Graham analysis in this case is not so obvious as to clearly establish the law without a body of relevant authority. Sligh therefore bears the burden of identifying precedent that clearly establishes her constitutional right.[ix]
Sligh argued that Cooper v. Brown,[x] decided by the Fifth Circuit in 2016, clearly established that Officer Sutton violated the Fourth Amendment. In Cooper, Mr. Cooper was stopped for being suspected of driving under the influence. He fled on foot and a canine was called to assist in locating him. Canine Officer Brown and K9 Sunny located Cooper in a “small wood-fenced cubbyhole.” There was a factual dispute about whether Officer Brown ordered Sunny to bite or whether Sunny initiated the bite on his own. However, both parties agreed that after K9 Sunny attacked Cooper, Cooper did not attempt to flee or fight with Sunny. Cooper’s hands were on Sunny’s head and Officer Brown ordered Cooper to show his hands and lay on his stomach. Cooper complied and Officer Brown handcuffed Cooper. Officer Brown did not order K9 Sunny to release his bite until he had finished handcuffing Cooper.
Discussing Cooper, the court of appeals stated
[W]e held that all the Graham factors except for the severity of the crime “push[ed] heavily for Cooper.” Id. at 522. Cooper did not pose an immediate threat because he was not suspected of committing a violent offense, Brown had not been warned that Cooper may be violent, and Brown could see that Cooper was unarmed. Id. at 522-23. Furthermore, Cooper was “not actively resisting arrest or attempting to flee or to strike Sunny.” Id. at 523. The only act of resistance Brown identified was Cooper’s understandable failure to raise his hands while being bit by Sunny. Id. And, in any case, Cooper complied with Brown’s order to roll onto his stomach. Id. Also relevant to our analysis was Brown’s failure to immediately command Sunny to release the bite; instead, he waited until after Cooper had been handcuffed. Id. at 521, 523.
The court of appeals, in Cooper, held
[W]hile explicitly noting that we were not creating a per se rule on reasonableness, we concluded that “[u]nder the facts in this record, permitting a dog to continue biting a compliant and non-threatening arrestee is objectively unreasonable.” Id. at 524.[xi]
The court of appeals then compared the facts of Cooper to the facts of Sligh’s case. First, Sligh actively resisted Officer Montes’s attempt to seize her. However, Cooper was bitten for an extended period of time, specifically 1-2 minutes, while he was compliant and non-violent, before the officer ordered K9 Sunny to release the bite. The court of appeals stated
Our caselaw makes certain that once an arrestee stops resisting, the degree of force an officer can employ is reduced.[xii]
Second, in contrast to the intentionally prolonged bite in Cooper, Officer Sutton ordered K9 Thor to release Sligh approximately eight seconds after the original bite command. Then, when Thor failed to release the bite, Officer Sutton took affirmative action to make Thor release the bite, as he is seen pulling Thor’s collar at approximately 36 seconds after the first command to release the bite. Therefore, the court noted that the amount of force intentionally used in Cooper (1-2 minutes before the command to release the bite) and the amount of force intentionally used in Sligh (8 seconds until the first command to release) were different. As the court of appeals noted in Cooper,
[P]ermitting a dog to continue biting a compliant and non-threatening arrestee is objectively unreasonable.[xiii]
Therefore, in Sligh’s case, the court of appeals held
We find that Cooper‘s precedent does not sufficiently “place[] the . . . constitutional question beyond debate.” See Ashcroft, 563 U.S. at 741. Cooper involved a nonresisting plaintiff and an intentionally prolonged application of force. Because the present case involves an application of unintentionally prolonged force against an actively resisting plaintiff, we do not find that Sutton’s violation of Sligh’s constitutional right was clearly established.[xiv]
Therefore, the second prong of the qualified immunity test was not satisfied and Officer Sutton was entitled to qualified immunity.
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.
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Citations
[i] No. 22-40518 (5th Cir. Decided November 21, 2023 Unpublished)
[ii] Id. at 1-4
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 7-8
[v] Id. at 8 (emphasis added)
[vi] Id. at 8-9 (emphasis added)
[vii] Id. at 9-10 (emphasis added)
[viii] Id. at 10
[ix] Id. at 11 (emphasis added)
[x] 844 F. 3d 517 (5th Cir. 2016)
[xi] Sligh at 13
[xii] Id. (emphasis added)
[xiii] Id. at 14 (emphasis added)
[xiv] Id. (emphasis added)
