Police Have Qualified Immunity for K-9 Dog Bites

Learn why police have qualified immunity for K-9 dog bites in this educational article. If you have questions, contact our Rochester lawyers.

The U.S. Court of Appeals for the Second Circuit in McKinney v. City of Middleton, held that qualified immunity protected police officers who directed a police canine to “bite and hold” the arrestee for over two minutes. The court found that under the circumstances the police canine force did not violate clearly established Fourth Amendment law.

William McKinney was arrested by Middletown, Conn. police officers for breach of the peace and larceny He had consumed alcohol, psychiatric medications, and cocaine. After his arrest, the police placed him in a cell in their cell block. He became hostile, disobeyed the officers’ orders, threatened them, and tried to hurt himself. The officers decided to move McKinney to a padded cell, but he continued to actively resist and threaten them. After an officer pushed him in the back with an expanded baton, he attempted to take it from the officer. McKinney became extremely combative  and charged at the officers. The officers deployed police dog Hunter, directing him onto McKinney’s lower right leg. Hunter bit McKinney, but McKinney continued to fight and struggle with the officers  After an officer tased McKinney, he became compliant. The officers handcuffed him and arranged for him to be taken to a hospital to treat his injuries.

McKinney filed a §1983 suit in federal court alleging that the officers’ uses of force violated the Fourth Amendment. Whether police use of force violates the Fourth Amendment depends on its objective reasonableness: under the totality of circumstances facing the officer.  Because police officers often have to make difficult split-second decisions concerning the use of force in tense, rapidly evolving circumstances, the U.S. Supreme Court in Graham v. Connor directed lower courts to defer to, and not lightly second-guess, the judgment of the officer.

A police officer who is alleged to have used unreasonable force under the Fourth Amendment may assert the defense of qualified immunity. Saucier v. Katz, 533 U.S. 194 (2001). The qualified immunity issue is whether the officer’s use of force under the particular circumstances violated clearly established Fourth Amendment law. Qualified immunity requires specificity in identifying the circumstances facing the officer and the relevant judicial precedents..

The  court focused on whether the officers’ release of police canine Hunter violated clearly established Fourth Amendment law. The use of a properly trained police canine to restrain a suspect is generally considered intermediate, non-deadly force.  Whether the police gave a warning has been a “critical fact” in virtually all police canine excessive force cases.  McKinney made four arguments supporting his position that the officer’s release of Hunter was clearly unreasonable force:

1. Police Canine Training: McKinney argued that Hunter was not trained for cell extractions. The court ruled that undisputed facts indicate that Hunter was used to subdue and secure McKinney—a purpose for which Hunter had been trained—and not to remove McKinney from his cell..
2. Warning: There was a disputed issue of fact whether the police gave McKinney a warning before releasing Hunter. The court ruled that Fourth Amendment law did not clearly require the police to give a warning in the midst of their struggle to secure McKinney. The court ruled that deploying a police dog may be objectively reasonable, even ‘without a warning, when there is ‘an immediate threat to the safety of officers and the community.
3. Suspect Stops Resisting: The court rejected plaintiff’s argument that the officers violated clearly established law by allowing Hunter to continue biting him after he ceased actively resisting. Although the police may violate clearly established law by continuing to apply significant force against a suspect who was only passively resisting, it does not violate clearly established law for the police to ensure that a violent suspect has been secured before withdrawing the significant force required to subdue the suspect. The police were rightfully concerned that McKinney might again become confrontational.
4. Duration of the Dog Bite: Plaintiff argued that the duration of the dog bite, two minutes and 15 seconds, was per se excessive force. The court disagreed, finding that in the context of an actively resisting suspect like McKinney, there is no exact duration that is reasonable for a dog bite. The decisional law does not establish that a two-minute dog bite constitutes a per se violation of clearly established law.

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