Fifth Circuit Says Siccing A Police Dog On A Suicidal Person Is Excessive Force, Still Grants Immunity To Officer

I don't know what it is about US law enforcement culture, but it far too often seems to be that officers deployed to help people choose to hurt people instead. When people are suffering mental distress, cops become first responders. Unlike other first responders, like EMTs or firefighters, the desire to harm tends to surpass any desire to help.

This is why so many suicidal people are helped to death by officers who seemingly view any resistance or hesitation as a threat to their safety, rather than just the normal responses of a person already dealing with a great deal of mental duress. And that's why some cities are taking these interactions out of cops' hands by choosing to respond to mental health calls with people better trained to handle these situations, like actual mental health professionals.

But, because cops are still the most common first response to distress calls, things like this continue to happen. People who are suicidal or threatening to engage in self-harm are being killed or harmed by responding officers, rather than being handled responsibly and diverted from their plans to hurt themselves.

Just because cops aren't trained to handle these kinds of calls doesn't let them off the hook for deploying excessive force when they just as easily could have deployed almost no force at all. This decision [PDF], handed down by the most cop-friendly appellate district in the nation, says it's unconstitutional to brutalize someone clearly in need of care and compassion. That it was their dog that did all the damage doesn't change the constitutional equation. (h/t Short Circuit)

It starts with a call for help.

At 1:39 a.m. on July 5, 2018, Plaintiff-Appellant Olivia Sligh's partner called 911 to report that Sligh was suicidal, had hurt herself, and had left her house on foot. Sligh's partner requested an ambulance, and he indicated that Sligh was unarmed and not a violent person.

Somehow, this is how the so-called first responders first responded to this 911 call:

The Montgomery County Sheriff's Office notified the City of Conroe of the emergency medical call and requested a canine officer if available.

The hell? How does someone field a mental distress call and decide this is the sort of thing that requires the use of a police dog? That goes unexplained in this decision, which only notes the facts, as well as those that are still disputed. Tyson Sutton of the Conroe City PD brought the attack dog. He was joined by Alexis Montes, a deputy employed by the Montgomery County Sheriff's Office.

Here's what happened after the officers and their shared dog located the suicidal, already injured woman:

The complaint alleges that when the officers located Sligh, Sutton shined a flashlight in Sligh's face as Thor barked and lunged at her. Montes grabbed Sligh, who pulled away. Sutton then sicced Thor on Sligh, and Thor initially bit Sligh in the upper thigh. Sligh sat down, and Sutton continued to direct Thor to bite Sligh on the rear of her upper leg and her ankle. Sligh alleges that Sutton used the dog to purposively attack and bite" her; that Montes did not intervene in the multiple dog bites by words or actions even though the attack lasted one minute and some seconds"; and that she never resisted seizure, tried to escape, or assaulted Montes.

The court notes the incident was captured by Officer Sutton's body camera. That footage supports most of Sligh's allegations. However, it's not exactly true Sligh never resisted seizure." The recording shows Sligh slapping away Deputy Montes' arms as the deputy tried to subdue her. Following a short struggle (11 seconds according to the recording), Officer Tyson instructed Thor to attack Sligh.

Sutton then releases Thor with a bite command, and Thor bites Sligh as Sutton commands her to get on the ground. Sligh falls to a seated position on the ground and cries out in pain. Beginning eight seconds after the bite command, Sutton repeatedly commands Thor to release Sligh, but Thor does not immediately comply. Sligh begins lying on her side. 36 seconds after giving the first bite command, Sutton grabs and pulls Thor's collar. Thor releases Sligh around 64 seconds following the first bite command. While Thor was biting Sligh, Montes reaches to control Sligh's hands and commands her to put her hands behindher back. Montes handcuffs Sligh after Thor's release.

Cops love to talk about their own training and expertise." They also consider their dogs to be officers." They also tend to talk up how well-trained their four-legged officers" are. And then things like this happen: a cop orders his cop dog to release and it does not comply for nearly an entire minute and not until Officer Sutton placed his hand on the dog's collar. Nearly a minute of non-compliance - if performed by an arrestee - would be considered a criminal act (resisting arrest) in and of itself, even without adding in the injuries inflicting by the unresponsive police dog (assault). But when a cop dog does it, it's just good police work. When a citizen does it, it's multiple criminal acts.

What law enforcement officers refuse to believe is that this is a violation of rights. But it definitely is exactly that, which only makes the ultimate conclusion by this court even more inexplicable.

Using long-standing Supreme Court precedent (most specifically, 1989's Graham v. Connor decision), the Fifth Circuit says law enforcement is wrong on two of three factors. Contrary to the assertions of non-party Michael Lee Aday, two out of three is actually pretty bad.

The first Graham factor is the severity of the suspected crime. These officers had been sent to help a person suspected of [checks lawsuit] being suicidal and already injured. So, that's a complete loss for the responding officers, since there's no crime, which means there's no justification for nearly any use of force whatsoever.

The second factor doesn't help the officers, either. The officers seemed to realize this, which is why their defense lies somewhere between incoherent and insane.

The second Graham factor, whether the suspect posed an immediate threat to the safety of officers or others, also weighs in Sligh's favor. Slighmay have posed a safety threat to herself, as she had cut herself and was potentially suicidal, but the officers received no indication that Sligh was violent, armed, or otherwise posed a threat to others. Defendants-Appellees' contention that the employment of a dog bite was justified due to Sligh's immediate safety threat to herself is unpersuasive in this case. Sligh did not appear to be engaging in self-harm during her interactions with the officers, which undermines Defendants-Appellees' argument that Sligh posed an immediate" safety threat to herself that warranted such a dangerous use of force. It is also difficult to see how Sligh's self-harm justifies the employment of a dog bite, which will inevitably lead to more punctures or lacerations.

As if claiming that injuring someone to protect" them from injuring themselves wasn't ridiculous enough, the officers also leaned hard on officer safety," just as ridiculously claiming Sligh might have been armed and dangerous (to them in addition to herself). The court says this argument isn't any better than the one dismantled above.

Defendants-Appellees contend that Sutton could not determine whether Sligh had a weapon in her clothing, which weighs in favor of employing the dog bite. But it is difficult to imagine that Sutton would have believed that Sligh, who was wearing a tank top and women's athletic shorts, was armed when no weapon was produced during the physical struggle between Sligh and Montes. Furthermore, because the officers did not suspect that Sligh was violent or had committed a crime, the fact that she was unsearched is not enough to permit a reasonable officer to assume that she posed an immediate threat.

The third Graham factor - whether or not the suspect resisted arrest or was otherwise non-compliant - weighs in favor of the cops... but just barely. Sure, Sligh slapped away" Deputy Montes' initial attempt to subdue her and engaged in an 11-second struggle." But that mild resistance - especially from someone suspected of nothing more than being in the midst of mental health crisis - isn't enough to justify a minute-long attack by a police dog.

Without any further attempts to subdue Sligh without the use of a dog bite, and without providing Sligh any warning that she may be subjected to a dog bite if she did not comply, Sutton sicced a dog on a woman who (1) was not suspected of any crime; (2) did not pose an immediate safety threat to officers or others; and (3) was in need of emergency medical intervention due to self-harm. Furthermore, Sligh-surrounded by a fence and thick foliage- was not attempting to flee the officers. Employing a dog bite under these circumstances arguably constituted an unreasonable seizure in violation of Sligh's Fourth Amendment rights.

Arguably" is the key here. It doesn't necessarily mean Sligh will be able to convince a jury her rights were violated by this dog attack. But, just as importantly, it means Officer Sutton may be similarly unlikely to convince a jury this dog deployment wasn't excessive force. That's why we have juries. And that's why cops shouldn't be allowed to exit lawsuits just because it isn't initially clear who will be considered more credible by a jury of their peers.

But that's now how the law works in federal courts, thanks in large part to the Supreme Court continually rewriting the immunity ground rules in favor of accused cops. So, even though the Fifth Circuit says this is a clear violation of rights, it's not so clear a cop could see it.

Because the present case involves an application of unintentionally prolonged force against an actively resisting plaintiff, we do not find that Sutton's violation of Sligh's constitutional right was clearly established. Sutton is therefore entitled to qualified immunity.

And that's how it stands: sending poorly trained dogs to attack people not suspected of criminal activity is still acceptable in the Fifth Circuit. It wasn't clearly established" before and this unpublished opinion guarantees the court won't be creating any new bright line for excessive force determinations. Sligh will lose. The cops will win. And no one in power will learn anything from this experience.