Appeals Court Says Cop Whose Cop Dog Bit Another Cop Is Entitled To Qualified Immunity

Huh. Here’s something you definitely don’t see every day. But before we get to the ruling, let’s do a brief exploration of the ultra-weird legal landscape that has made it clear cop dogs and cops should be held to way different standards than regular dogs and regular people. And it’s the regular dogs and regular people who are always at a disadvantage.

First off, defending yourself from an attack by a police dog is almost always treated as a criminal offense. In some places, the charge brought is “assaulting an officer,” even though the attack targeted a four-legged “officer” rather than a two-legged, actual-human-being officer.

On the other side of the coin, your dog doesn’t even need to attack a police officer for an officer to decide your dog needs to be killed. Citizens who kill other people’s dogs will definitely face criminal charges. And people attacked by dogs while intruding in other people’s yards will likely be told they can’t possibly swear out a complaint against the dog’s owner.

All bets are off with cop dogs. They’re “officers” under the law and the general opinion of most courts is “suck it up” when you’ve been mauled by a K-9 unit. Rarely, if ever, will courts suggest excessive force claims stemming from police dog attacks are capable of piercing the qualified immunity veil.

In this case, though, the double-standard stops working because both parties are law enforcement officers. In a move that must have endeared him to law enforcement officers all over Minnesota, Champlain police officer Daniel Irish sued Hennepin County Deputy Keith McNamara after McNamara’s dog bit him while they engaged in an on-foot pursuit of a criminal suspect. (h/t Short Circuit)

Here’s how this whole thing went down, as recounted by the Eighth Circuit Appeals Court in its decision [PDF]:

[O]ver the wail of police sirens, Deputy McNamara repeatedly commanded Thor, who could not see the suspect, to “get him!” as they raced down the cemetery path. Officer Irish then turned into the cemetery ahead of them and joined the pursuit. Thor bounded forward, outpacing Deputy McNamara and running behind Officer Irish’s squad car. It was approximately 35 seconds after Thor got over the fence when Deputy McNamara heard screaming. His body cam picked up an agonized “Keith [McNamara]! Keith!” Too far away to restrain Thor, Deputy McNamara repeatedly shouted, “Thor, come! Thor! Thor, out!”

Officer Irish’s body cam also captured the chaos. Shortly after he requested the suspect’s description, he arrived in the cemetery, spotted the suspect just across a ravine, opened his squad car door, and yelled, “Get on the fucking ground!” Thor immediately attacked him. Officer Irish fought to control him but continued to give the suspect orders. Between breaths, Officer Irish told Thor to “get him!”—to no avail. He gasped, “Keith! Keith! I didn’t know he was out.” Deputy McNamara finally caught up and restrained and refocused Thor. Bloody but unbowed, Officer Irish gave a K9 warning. The suspect started to inch away, so the officers released Thor, who eventually vaulted through the ravine and apprehended him.

Officer Irish sued Deputy McNamara, alleging (yes, you’re reading this correctly) a Fourth Amendment violation. Precedent says a K-9 attack/bite/hold is a seizure under the law and that suspects (who are the ones usually on the receiving end of police dog attacks) must be given “[adequate] warning and an opportunity to surrender” before the dog is released.

Obviously, Officer Irish was never given adequate warning or a chance to surrender. And for good reason. He wasn’t the intended target of the dog’s aggression. Somehow, despite all the supposed training the dogs receive (and all the expertise their handlers claim to have), Thor decided the person he was supposed to attack was a fellow officer. So much for the Thin Blue Line, etc. etc.

Given these facts, it’s pretty difficult to read this as a Fourth Amendment violation. Everyone (on two or four legs) was a law enforcement officer. While Officer Irish may have been “seized,” he wasn’t “seized” in the sense that his freedom was being purposefully curtailed by the actions of a government employee. This argument makes about as much sense as someone claiming their Fourth Amendment rights were violated when their neighbor’s dog attacked them. The playing field is completely level here, which means this was unfortunate, but not unconstitutional.

Unbelievably, the lower court said qualified immunity did not apply here. That clear error has been reversed by the Eighth Circuit, which points out there not only needs to be an imbalance of power, but the clear intent to limit someone else’s freedom via government dog attack. (All emphasis in the original.)

[A] seizure occurs when an officer, “by means of physical force or show of authority, terminates or restrains [an individual’s] freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007). The Supreme Court has explained that the “intent that counts under the Fourth Amendment is the ‘intent that has been conveyed to the person confronted.’” (quoting Chesternut, 486 U.S. at 575 n.7) (holding that all occupants in a car are seized during a traffic stop). So long as the officer’s conduct is “willful,” a “seizure occurs even when an unintended person or thing is the object of the detention.” Brower, 489 U.S. at 596, 599 (emphasis added) (citation omitted) (holding that a seizure occurred where a fleeing suspect crashed into a roadblock).

Officer Irish argued the correct standard is “unintended person,” rather than “through means intentionally applied.” The Appeals Court disagrees. This was an accident, not an intentional attack. And that means something, especially when it’s two law enforcement officers involved, rather than a police officer and someone who just happened to be in the area where a police dog was unleashed.

These are two different things, even though Officer Irish clearly believes otherwise. The Eighth Circuit points out exactly where the lower court went wrong when it denied immunity to the deputy whose dog ended up attacking a fellow officer.

Officer Irish protests that the unintended-target cases are immaterial because excessive force cases involving K9s are unique. See, e.g., Hope v. Taylor (M.D. Fla. Feb. 23, 2021) (taking a “different tack” from unintended-target cases and holding that a seizure occurred where an officer deployed a K9 that bit a bystander, not the intended suspects). He says that by releasing Thor with the intent that he bite the first person he found, Deputy McNamara had all the intent needed to effect a seizure. Though we have never recognized a constitutional distinction between force-by-K9 and force-by-bullet, the district court did. It relied on Szabla v. City of Brooklyn Park, where we found “a submissible case of excessive force” after an officer’s K9 was tracking a suspect but ended up biting an innocent bystander. From Szabla, the district court inferred an “[i]mplicit” holding that when an officer intentionally deploys a K9 to find and bite a suspect and the K9 bites an innocent bystander, that bite is “a seizure under clearly established law.”

We do not read so much into Szabla. It never addressed whether the officer subjectively or objectively intended to seize the plaintiff. And it fits best in the mistaken-identity line of cases. The officer in Szabla told his K9 to find and apprehend an unknown suspect, “ordered [the apprehended plaintiff] to show his hands,” and then detained and refused to release him until the officers determined that he was not the suspect they were after. In other words, the officer arguably subjectively intended to seize the plaintiff whom he mistakenly believed was the suspect […] (stating that an “implicit holding in Szabla” is “that a seizure occurs when a [K9] seizes an individual [whom] police did not know to be present, at least when police initially believe that the individual is the suspect” (emphasis added)).

This case, on the other hand, fits best in the unintended-target line of cases. Less than a minute before the bite, Deputy McNamara commanded Thor to “get him!”—the fleeing suspect; during the bite, he repeatedly ordered Thor to disengage from Officer Irish and quickly restrained him; and after the bite, he refocused Thor toward the suspect. […] So Szabla could not have put Deputy McNamara on notice that Thor’s bite was a seizure.

Even without this precedent, the resolution should have been clear. If you’re a law enforcement officer who works with other officers and their K9s, you should assume the risk that the dog is going to screw up now and then. Non-cops aren’t expected to assume this risk because they’re not law enforcement professionals with all the (alleged) “training and expertise” that comes with. When a regular person is caught by a dog, it’s a seizure and the Fourth Amendment applies because the dog is an extension of the government’s power. When a cop dog bites another cop, that’s just an incident that should mean nothing more than resetting the “DAYS SINCE LAST WORKPLACE ACCIDENT” counter to zero. It’s definitely not the basis for a civil rights lawsuit.

All Officer Irish is going to get from this spectacular failure is a bunch of antipathy from other law enforcement officers. No one’s going to want to provide backup to an officer who has demonstrated he’s willing to sue over unfortunate (and extremely uncommon) workplace mishaps. He may as well have blown his money suing the Champlain PD for providing an unsafe work environment. It was always a non-starter, but somehow the lower court gave him just enough hope to allow him to embarrass himself at the appellate level.