Virginia Lawyers Weekly VA Lawyers Weekly
A K-9 officer who ordered his dog to attack a man who had mental health issues without any evidence he was actually resisting can be sued for excessive force, a U.S. District Court has ruled.
The court declined to find that qualified immunity barred the plaintiff’s claims of excessive force, assault and battery, holding that “pre-existing law gave the officer ‘fair warning’ that his conduct was unconstitutional.”
Judge James P. Jones concluded that the evidence, which included body cam footage, left in dispute whether the officer had a reasonable belief the plaintiff was armed, although he granted the defense’s summary judgment motion on the plaintiff’s unlawful seizure claim and removed one officer defendant from the case.
The Western District of Virginia case is Putman v. Corporal Quentin Harris, et al. (VLW 022-3-145).
‘Shallow grave’
In May 2019, Dillard A. Putman sent several text messages to his wife, Kandi, threatening suicide with a gun while she was at work. Kandi returned home to find Putman missing, so she called 911 to report his suicide threats.
Several Tazewell County deputies arrived to find Kandi waiting in her driveway where she told them of marital problems and Putman’s regular drinking, showed them the text messages and confirmed that Putman owned several firearms.
Unable to locate Putman in the house, the officers sent Corporal Quentin Harris and his K-9 dog to search for him in the woods behind the house. Harris was accompanied by Sergeant Travis Hayton, who wore a body camera that recorded the entire incident.
The dog led the officers to Putman, who was lying on his back in a large hole with his hands crossed over his chest. Jones described the hole as a “shallow grave[.]”
Putman appeared calm and the officers could not see a firearm in the area, but they smelled alcohol and saw empty beer cans nearby.
With their guns drawn, the officers ordered Putman to get up and raise his hands. He refused to do so. Although neither the officers nor Putman were speaking in raised voices, Harris began asking Putman, “You want to get dog bit?” and telling him to get up or “the dog is going to bite you.”
When Putman stood up, the officers ordered him to turn around. He began cursing, telling the police that they were on his property and that they needed to get “that f***ing dog off my property.”
Harris warned Putman again that the dog would bite if he did not comply. In response, Putman demanded that they produce a warrant and threatened to sue if the dog bit him. The officers then asked Putman whether he was going to kill himself. In response, he lifted his shirt, asking, “Where’s the gun? Show me the f***ing gun.”
The officers claimed they could not see whether Putman had a gun. After about two minutes of “back-and-forth,” Harris ordered the dog to attack. The dog missed, and Harris pushed Putman to the ground. Hayton deployed his taser and, in the resulting commotion, the dog latched on to Putman’s upper arm.
Putman was taken into custody, then flown by helicopter to a hospital for emergency vascular surgery. Officers recovered no firearm from the scene.
The claims
Putman filed a § 1983 suit against Harris and Hayton for unlawful seizure and against Harris for excessive force, as well as state-law assault and battery claims. The plaintiff requested summary judgment on the federal claims, while the officers sought summary judgment on all claims based on qualified immunity.
Jones granted summary judgment to the officers on the unlawful seizure claim, because the information the defendants relied on —the 911 call, the information from Kandi, the text messages and Putman’s location and demeanor — was reliable to establish probable cause to seize Putman for a mental health evaluation.
But the judge denied summary judgment for the excessive force claim against Harris after examining “whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force,” pursuant to factors described by the U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989).
The Graham factors include the severity of the crime alleged, the immediate threat to the safety of officers and others and whether the suspect is actively resisting or evading arrest.
Where the plaintiff has committed no crime and “where a seizure’s sole justification is preventing harm to the subject of the seizure, the government has little interest in using force to effect that seizure,” Jones said, in finding the first Graham factor weighed in Putman’s
favor.
“Even if an individual is resisting seizure, and some use of force is justified, the degree must be reasonably calculated either to prevent flight or similarly stymie the level-of-resistance from escalating.”
— Judge James P. Jones
Jones weighed Putman’s conduct against the defendants’ concern that he was armed and concluded that there was sufficient evidence that Harris used excessive force to survive summary judgment.
“Even if an individual is resisting seizure, and some use of force is justified, the degree must be reasonably calculated either to prevent flight or similarly stymie the level-of-resistance from
escalating,” the judge stated.
Jones noted that Harris “ordered the dog to bite Putman after a mere two minutes of verbal instruction, without any particular action by Putman shifting the dynamics or escalating the situation into an immediate threat.”
Qualified immunity
A police officer is entitled to qualified immunity against liability for a constitutional violation if the right allegedly violated was not clearly established enough to provide fair warning that the officer’s conduct was unconstitutional at the time.
The 4th U.S. Circuit Court of Appeals has recognized constitutional violations where police dogs were improperly deployed by their handlers.
Here, Harris argued that prior cases established that an excessive force violation occurs “only when an officer is not facing an immediate threat and fails to give warning” before deploying a police dog.
But the judge said that “the Fourth Circuit has held that the use of serious or violent force in arresting or otherwise seizing an individual who is not actively resisting and does not pose an immediate threat amounts to a constitutional violation.”
Jones cited Fourth Circuit cases which distinguished between “immediate danger” and “imminent danger” to explain that “’physical resistance’ is not synonymous with ‘risk of immediate danger[.]’”
“It therefore was clearly established at the time of the violation that the use of a canine —a level of force that risks serious injury—on an individual with mental health issues without evidence that he was actively resisting is an unconstitutional use of force,” the judge concluded.
Putman is represented by the Halperin Law Center in Glen Allen. One of his attorneys, Andrew Lucchetti, lauded the decision but noted his client faces an inevitable string of appeals that uniquely benefit police in qualified immunity cases.
In fact, the defendant has already noted an interlocutory appeal and trial has been canceled. Counsel for the defendant was unavailable for comment.
