Divided court grants qualified immunity in canine police case

In a divided ruling, the Court of Appeals holds that police officers who used a baton, a police canine, and a taser to subdue a resisting inmate are entitled to qualified immunity on claims that they committed excessive force in violation of the Constitution. The dissenting judge says the courts or Congress should do away with qualified immunity altogether.

The case is McKinney v. City of Middletown, issued on September 26. Plaintiff was arrested for allegedly trying to rob a fast food restaurant and brought to the police station where they tried to transfer him from one cell to a padded cell because of his "concerning behavior." Plaintiff resisted the transfer. According to the majority, this is what happened next (bear in mind that Hunter is the canine):

McKinney picked up the foam mattress pad in his cell and pressed against the cell door. Officer Sebold entered and pushed McKinney to the back of the cell with his expandable baton. McKinney grabbed Officer Sebold’s baton and attempted to wrest it from Officer Sebold’s hands. McKinney then became “extremely combative” and “charged towards the [officers].” At that point, Officer  D’Aresta  deployed  Hunter,  directing  him  onto McKinney’s lower right leg. Upon being bitten by Hunter, McKinney dropped to the floor, falling partially on top of Officer D’Aresta. As McKinney tussled with the officers, Officer Sebold struck McKinney’s leg with his baton, urging McKinney to stop resisting. McKinney continued to fight and struggle with the officers despite the dog bite and baton strikes.

Officer Ward deployed his taser via drive stun to McKinney’s left shoulder, ordering that McKinney put out his hands so that he could be handcuffed. McKinney complied following the application of the taser and offered his left hand. The officers rolled McKinney onto his stomach, but he refused to expose his right arm. McKinney then ceased fighting the officers and yelled for the officers to get the canine off of him. Once McKinney was secured in handcuffs, Officer Aresta removed Hunter from McKinney’s leg. The officers arranged for McKinney to be taken to the hospital for treatment of his injuries.

While the Court of Appeals four years ago said during the first appeal in this case that a jury might find that the officers used excessive force, this time around, the Court (Raggi and Menashi) says that the officers are entitled to qualified immunity because, based on clearly-established law, reasonable officers would disagree about whether the force was excessive. This immunity is available when prior case law did not put the officers on notice they were violating the Constitution. The majority writes:

The undisputed facts of this case establish that McKinney threatened, attacked, and resisted the defendant officers as they tried to subdue him so that he could be transferred to a different cell. The undisputed facts further establish that the officers’ incremental and combined uses of a baton, a canine, and a taser were undertaken in response to McKinney’s resistance and that once McKinney"'finally gave up fighting" and was "handcuffed and secured," the officers withdrew their force.

The majority says there is no case from any court that clearly states that, under these circumstances, the officers violated clearly-established law. For one thing, the Court says, "McKinney has not shown that police officers violate clearly established law by allowing a canine bite to continue until a previously violent suspect can be secured." Nor do the cases clearly prohibit officers from using a puppy-wuppy for a purpose for which it was not trained. As well, while plaintiff says the case law prohibits using a canine without warning, the record shows that the officer deployed the doggie "in the midst of [plaintiff's] violent struggle with the police." And, while clearly-established law prohibits the police from initiating significant force against a suspect who is only passively resisting, "McKinney has not shown that it is a violation of 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. In light of the possibility that McKinney would resume his active resistance once force was withdrawn, we cannot say that it was 'objectively unreasonable for the officers to believe that their conduct was lawful' under the circumstances."

Judge Calabresi in dissent sees the evidence differently and says plaintiff can win at trial and that qualified immunity cannot attach this early in the case because the facts are disputed about what really happened. He further says that qualified immunity has no place in Section 1983 litigation and that scholars and judges have come to recognize over time that this judge-made doctrine (created by the Supreme Court in 1967) makes no sense and has no basis in the common law. While qualified immunity prevents plaintiffs from recovering damages against individual officers if they did not violate clear precedent, the dissent says that most officers are indemnified anyway, and the better solution is to have municipalities on the hook for all damages like other cases involving torts and statutory civil rights.

A side note: the late Judge Katzmann helped decide the first appeal in this case in the plaintiff's favor, and he participated in oral argument for this appeal before he passed away. Judge Calabresi notes that his views on this case were influenced by Katzmann's questioning at the second oral argument, and he repeatedly cites Judge Katzmann's opinions from other cases in fleshing out the dissenting opinion. It is clear that Judge Calabresi held Judge Katzmann in high regard. He writes in a footnote: "Of course, I cannot say how Judge Katzmann might have decided this appeal had he lived long enough to remain a member of the panel deciding it, though the decision of the earlier panel, of which he was a member, may offer some indication. So, I write just for myself. As to Judge Katzmann, I can do no more than express my sorrow that we’re left only (if one can say only of something so precious) with memories and his great contributions to the law."