No qualified immunity for K-9 officer, 4th Circuit holds

An officer was not entitled to qualified immunity because the Fourth Amendment right at issue — the right of a non-threatening, unarmed and passively
resisting suspect to be free from unnecessary, gratuitous and disproportionate force by deployment of a police K-9 — was clearly established at the time the constitutional violation occurred, the 4th U.S. Circuit Court of Appeals has ruled.

Richard P. Harrold broke into a car dealership in Chesterfield County and was hiding in a storage room when the police responded, including Lewis J. Hagen, a K-9 officer.

According to Harrold’s subsequent § 1983 claim alleging excessive force, Hagen illegally deployed the police K-9, causing serious injury.

Hagen moved to dismiss, arguing that he was entitled to qualified immunity.

Although the district court determined that Harrold’s complaint plausibly alleged a violation of the Fourth Amendment, it held that his constitutional right was not clearly established and dismissed the complaint.

Harrold appealed, and the divided federal panel reversed.

“We agree with Harrold that the constitutional right at issue — that is, the Fourth Amendment right of a non-threatening, unarmed, and passively-resisting suspect to be free from unnecessary, gratuitous, and disproportionate force by deployment of a police K-9 — was ‘clearly established’ in 2013, well before the alleged violation that was committed by Officer Hagen in 2021,” Judge Robert B. King wrote in the late April opinion.

Judge Pamela A. Harris joined the 37-page opinion in Harrold v. Hagen (VLW 026-2-151) and Judge Julius N. Richardson filed a dissenting opinion.

Richmond attorney Robert J. Allen of ThorsenAllen, who represented Harrold, did not respond to a request for comment. Neither did Julie A. C. Seyfarth of the Chesterfield County Attorney’s Office.

K-9 attack

Harrold, an amputee missing his lower left leg below the knee who suffers from a serious medical condition, broke a glass door and entered a used car dealership. According to his complaint, he was unarmed at the time, but had a small utility knife in his pocket, which he never removed.

The complaint alleged that Harrold had been sick and without sleep, suffering an episode caused by his medical condition. He called out to the police, “I am not a threat,” or words to that effect.

According to the complaint, when
Hagen and his K-9, Kona, entered the room, Hagen gave Kona a signal to sic Harrold, who was in a submissive, fetal-like position on the floor with his head down. Kona “went into a full blown, violent attack,” focused on Harrold’s “buttocks, anus and scrotum, along with his amputated stump.”

Harrold alleged that he suffered widespread and severe injuries as a result of the attack and that his prosthetic leg was destroyed.

He filed suit, asserting a Fourth Amendment excessive force claim against Hagen.

Hagen moved to dismiss, arguing that there was no constitutional violation because the use of force was objectively reasonable, and that he was entitled to qualified immunity.

Despite ruling that the complaint plausibly alleged a violation of the Fourth Amendment, the district court determined that Hagen was entitled to qualified immunity from Harrold’s excessive force claim and dismissed the lawsuit.

Harrold appealed.

Defining the constitutional right

On appeal, Harrold told the court that the district court erred in determining the nature and scope of the constitutional right at issue, maintaining that it was more properly defined as the right to be free from an attack by an unreasonably deployed police dog in the course of a seizure.

Based on the specific allegations of the complaint, the court agreed, defining the constitutional right at issue as “the right of a non-threatening, unarmed, and passively-
resisting suspect to be free from unnecessary, gratuitous, and disproportionate force by deployment of a police K-9.”

Against this backdrop, the court returned to the two-part qualified immunity analysis, beginning with whether a statutory or constitutional violation occurred.

Affirming the district court’s conclusion that Harrold’s complaint plausibly alleged a Fourth Amendment violation, the court highlighted that Harrold did not pose an immediate threat to the safety of the officers or others, and he engaged in passive, not active, resistance. The court also recognized that although Harrold had previously fled up a flight of stairs, he then waited in the storage room, lying prone on the floor.

“Coupling that with Harrold’s ‘gruesome injuries that were so widespread and severe that they resulted in life-threatening blood loss requiring emergency medical intervention,’ the [district court] ruled that, based on the well-pleaded allegations of the Complaint, the ‘prolonged deployment’ of K-9 Kona by Hagen was ‘objectively unreasonable,’ given the totality of the circumstances leading up to Harrold’s arrest,” the court wrote.

K-9 constitutes ‘other weapon’

Turning to the second prong of the qualified immunity analysis, the court considered whether the right was clearly established at the time of the violation and found a 2013 decision, Meyers v. Baltimore County,
Maryland.

In that decision, the 4th Circuit recognized that “[t]he use of any unnecessary, gratuitous, and disproportionate force, whether arising from a gun, a baton, a taser, or other weapon, precludes an officer from receiving qualified immunity if the subject is unarmed and secured.”

“Harrold was unarmed and effectively secured by Officer Hagen, with several backup officers surrounding the enclosed storage room that was situated on the second floor,” the court said. “In that moment, the deployment of K-9 Kona to carry out an attack aimed at Harrold’s most sensitive and private bodily areas — administered at the silent but explicit direction of Officer Hagen — was ‘unnecessary, gratuitous, and disproportionate.’ And ‘because [Harrold] did not pose a threat to the officers’ safety
and was not actively resisting arrest [at the time he was discovered], a reasonable officer in [Officer Hagen’s] position would have understood that his delivery of some, if not all, of the [dog bites] violated
[Harrold’s] Fourth Amendment right to be free from the use of excessive and unreasonable force.’”

The court vacated the district court’s judgment and remanded.

Harrold v. Hagen

THE ISSUE    Was an officer entitled to qualified immunity where the Fourth Amendment right at issue — the right of a non-threatening, unarmed and passively resisting suspect to be free from unnecessary, gratuitous and disproportionate force by deployment of a police K-9 — was clearly established at the time the constitutional violation occurred?

Answer      No (4th U.S. Circuit Court of Appeals)

Attorneys  Robert J. Allen, ThorsenAllen, Richmond (appellant), Julie A. C. Seyfarth, Chesterfield County Attorney’s Office, Chesterfield (appellee)

• Harrold v. Hagen