In 2023, the Fifth Circuit Court of Appeals decided Sligh v. City of Conroe[i], in which the court examined whether deputies violated the Fourth Amendment when, a police canine was commanded to bite an emotionally disturbed woman who had attempted self-harm and then pulled away from an officer who attempted to handcuff her. The relevant facts of Sligh, taken directly from the case, are as follows:
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 the officers and municipalities in federal court and alleged (1) excessive force under the Fourth Amendment against Officer Sutton (the canine handler), (2) a failure to intervene claim against Officer Montes, (3) a municipal liability claim against the City of Conroe, and (4) various claims under the ADA and Rehabilitation Act for failure to accommodate against the City of Conroe and Montgomery County. The officers and municipalities filed motions to dismiss, and the district granted the motions for qualified immunity regarding the claims against the officers and dismissed the claims against the city and county. Slight appealed to the Fifth Circuit Court of Appeals.
[Note: This article will cover the excessive force claim for the use of the canine. Part II will cover the claims against the city and county.]
Excessive Force
To defeat an officer’s motion for qualified immunity, a plaintiff must satisfy two requirements. First, the plaintiff must establish that the officer violated the plaintiff’s federally protected rights. Thus, the court set out to determine whether Officer Sutton violated the Fourth Amendment by commanding the canine to bite Sligh.
The court of appeals discussed the legal principles relevant to the issue of whether ordering the canine to bite Sligh was a violation of the Fourth Amendment. The court stated
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 then examined the three factors to consider from Graham v. Connor. First, the court considered the severity of the crime at issue. The court noted that the police were called to assist Sligh with a mental health issue, not a crime; therefore, this factor weighed in favor of Sligh.
The second factor is whether Sligh posed an immediate threat to the officers or others. The court observed that Sligh posed a threat to herself, in that she had cut herself and was potentially suicidal. The court also observed that the officers had no indication that Sligh was violent, presently armed or posed a threat to anyone. The officers argued that the “bite was justified due to Sligh’s immediate safety threat to herself.”[iv] The court stated that they were not persuaded by that argument. Specifically, the court stated
Defendants-Appellees’ [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.[v]
The officers also argued that they could not determine if Sligh had a weapon concealed in her clothing. However, the court noted that no weapon was produced in the initial physical struggle between Officer Montes and Sligh. Additionally, Sligh was wearing a tank top and athletic shorts, which would make it more difficult to conceal a weapon. The court also 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. See Cooper, 844 F.3d at 523 n.2.[vi]
Thus, the second factor weighed in favor of Sligh.
The court then considered the third factor from Graham, specifically, whether Sligh was actively resisting or attempting to evade arrest by flight. The court stated that this factor weighed in favor of the officers, as the body camera video showed that Sligh actively resisted Officer Montes’ attempt to take her into custody, failed to follow verbal commands, and physically struggled with Officer Montes. 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)).[vii]
Thus, the court concluded that, while additional force to control Sligh was justified, the officer must use “measured and ascending actions that correspond” to the Sligh’s level of resistance. In other words, the court stated that “the officers could have escalated” their 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.”[viii]
The court of appeals then held
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.[ix]
Thus, Sligh satisfied the first requirement to defeat the officers’ qualified immunity, specifically, a showing that the officers violated the plaintiff’s constitutional rights.
The second requirement to defeat an officer’s qualified immunity is that the plaintiff must show that the law was clearly established such that every reasonable officer in this situation would have known the conduct at issue was unlawful. Thus, the court set out to determine if the law clearly established such that every reasonable officer would have known it was a Fourth Amendment violation to use a dog bite in Sligh’s incident.
The court explained when the law is considered clearly established for the purpose of qualified immunity by stating
To answer that question in the affirmative, we must be able to point to controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (internal quotation marks and citation omitted). Although this does not mean that “a case directly on point” is required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011).
“‘[I]n an obvious case,’ the Graham excessive-force factors themselves ‘can clearly establish'” the law without a body of relevant precedent. Cooper, 844 F.3d at 524 (quoting Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012)).[x]
The court stated that this case did not meet the standard for “obvious clarity” thus the plaintiff must identify court precedent that clearly establishes that the officers violated her rights, and it must be dated prior to the date of Sligh’s incident.
Sligh cited Cooper v. Brown, 844 F.3d 517 (5th Cir. 2016), in which Cooper, a DUI suspect, fled and hid in small, wooden fenced “cubbyhole.” K9 Sunny bit suspect Cooper for “one to two minutes” as Cooper “did not attempt to flee or strike Sunny.” Officer Brown, the K9 handler, could see Cooper’s hands and saw that he was not holding a weapon. Officer Brown ordered Cooper to roll over to be handcuffed, and he complied. Officer Brown handcuffed Cooper. At issue was that Officer Brown did not have Sunny release his bite on Cooper until after he finished handcuffing Cooper. The Fifth Circuit held that “permitting a dog to continue to bite a compliant and non-threatening arrestee is objectively unreasonable.[xi]
The court then stated that Cooper is distinguishable from Sligh’s case and does not clearly establish the law. First, Sligh was actively resisting, and Cooper had ceased his flight. Second, Cooper’s bite was intentionally prolonged, by the canine officer, one to two minutes, for handcuffing, whereas Sligh’s bite was unintentionally prolonged by the dog. In Sligh’s case, Officer Sutton ordered Thor to release Sligh eight-seconds after the bite command. Thor did not obey and release. At 36-seconds, Officer Sutton grabbed Thor by the collar and took affirmative steps to make Thor release the bite.
As such, Sligh failed to satisfy the second requirement to defeat Officer Sutton’s motion for qualified immunity. Therefore, Officer Sutton is entitled to qualified immunity.
Failure to Intervene Claim
Sligh also sued Officer Montes for not intervening when Officer Sutton ordered his dog to bite her. The court stated
To overcome Montes’s qualified immunity defense, Sligh must identify law clearly establishing that Montes’s actions violated her constitutional rights, i.e., she must show that “any reasonable officer would have known that the Constitution required them to intervene.[xii]
Because Sligh relied on Cooper as precedent to show that “any reasonable officer would have known” he was required to intervene, and because the court just held that Cooper did not apply to Sligh’s case, Sligh failed to show that the law was clearly established. Therefore, Officer Montes is entitled to qualified immunity.
Practice Pointers:
While the canine handler was granted qualified immunity in this case, this case still held that the handler violated the Fourth Amendment when he ordered Thor’s to bite Sligh “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.” The court stated that, while “measured an ascending force” would be reasonable to subdue Sligh, it should have been less than a canine bite or Sligh should have been warned and given an opportunity to comply before use of the canine.
Considerations for the use of a canine bite would be, from Graham v. Connor, specifically
- The severity of the crime at issue;
- Whether the suspect poses an immediate threat to the officer or others; and
- Whether the suspect is actively resisting or attempting to evade arrest by flight.
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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[i] 87 F.4th 290 (5th Cir. 2023)
[ii] Id. at 296-297
[iii] Id. at 298 (emphasis added)
[iv] Id.
[v] Id.
[vi] Id. at 299 (emphasis added)
[vii] Id. (emphasis added)
[viii] Id.
[ix] Id. (emphasis added)
[x] Id. at 299-300
[xi] Id. at 300
[xii] Id. at 301 (emphasis added)
