Facts
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At 7:15 one evening in February 2021, the Harris County Constable’s dispatch received a 911 call saying that two men were “screaming and yelling” outside the caller’s house for the second time that night. The caller advised dispatch that he (the caller) had a weapon. Dispatch relayed that information to officers responding to the scene, including Robert Johnson, the canine handling officer, and defendants Eric Bruss and Wayne Schultz.
Officer Johnson
Johnson was a trained handler and had his canine partner with him. While Johnson was en route, dispatch again relayed that the caller had a weapon out, to which Johnson asked dispatch to tell the caller to put his gun away if the suspects were no longer there. Johnson arrived first, at 7:21, opened the door of his patrol car, and commanded the two suspects to put their hands up while he drew his side-arm. He soon retrieved his canine and commanded the suspects to get back into their car and wait.
The driver, Raphael Gray, got back into the car, while Kerry Thomas remained standing outside the car with his hands in the air. Thomas yelled, “kill me!” and “all lives matter!” among several other phrases that are indistinct in the body camera video. Gray soon moved to get out of the car but retreated when Johnson yelled at him. When Bruss arrived two minutes into this exchange, Johnson informed him that the driver (Gray) was not complying and warned both to “Stop f—g reaching!” Thomas responded that he was “reaching to God.” At 7:23:45, Johnson told Bruss that they should subdue the passenger first. He then told Thomas to “stay in the f—g car now!” while Bruss engaged with Gray.
Thomas started advancing around the passenger door toward the officers. Johnson warned him, “passenger stop!” several times. Thomas, with his hands in the air, responded, “Jesus, man, kill me!” Bruss then informed Johnson he had the driver at gunpoint, and Johnson commanded Thomas,“passenger, go to the ground.” After repeated commands, Thomas started going to the ground, eventually lying down prone at 7:24:40, where he remained while looking up periodically.
Johnson then told Bruss to take the driver into custody. At 7:26, Bruss directed Gray to stand up, turn around, and walk backwards toward him to get handcuffed. Once Gray was in custody, the officers pivoted to Thomas. Schultz, who arrived at 7:25:30, positioned himself behind Johnson and commanded Thomas, “you in the grey, step up, do it now!” Schultz repeated the command several times. At 7:27:10, Johnson added, “this is your last chance or I’m gonna send the dog after you.” Thomas looked up but did not get up. At 7:27:18, Johnson repeated, “Last warning or I’m gonna send the dog.” A few seconds later, Johnson released the dog, which raced over and bit Thomas on his right upper arm. Johnson immediately advanced on Thomas, commenting, “Think you’re f—g around, don’t you?” and commanding Thomas to put his hands behind his back. Johnson proceeded to handcuff Thomas on the ground while the dog maintained the bite, taking approximately 30 seconds from 7:27:30–28:02 as Thomas thrashed in pain. Johnson finished applying the handcuffs, stood up, told the dog, “good boy,” and pulled back on the dog’s
hind legs to get it to release its bite. Johnson complimented the dog again and returned it to the police car at 7:28:17. The total duration of the dog bite was 43 seconds.
Officer Bruss
Bruss arrived to the scene at 7:23:26, when Thomas can be heard yelling “all lives matter!” When Johnson told Bruss that the driver was not complying with orders, 7:23:37, Bruss yelled “stop reaching!” at 7:23:40. After a pause, Bruss said, “hey passenger, passenger with the head, show me your hands, show me your hands or you’re getting shot!” Gray slowly showed his hands at 7:23:58. Bruss commanded Gray to walk toward him; Gray exited the vehicle into the street with his hands in the air. Bruss warned Gray, “if you try to run, you’re getting dog bit,” and after Gray got down to the ground, warned him, “Keep your head down, keep your hands out, stop moving around. This isn’t a game, my man. This is how bad things happen. You need to comply with what I’m telling you to do. We’ve been told you’ve got a gun. Until we determine that you don’t, this is what’s going to happen. You’re going to follow the directions.” 7:24:50. Bruss continued, “Get your hands out to your sides, you’re gonna get dog bit if you don’t comply with what I’m telling you to do. And that’s gonna hurt,” at 7:25:25. And then Bruss added, “You are an unsearched suspect. Until I know that you don’t have a gun, you better comply” at 7:25:40. Bruss directed Gray to get up slowly, turn around, walk backwards, and kneel so that another deputy could handcuff and take him away, 7:26:00–40.
Bruss then remained on the scene as Johnson issued the “step up” commands as many as eight times and then released the canine, 7:27:00–25. Once the dog was on Thomas, Bruss quickly walked to the opposite side of the vehicle to inspect it for other persons, weapons, or threats, and declared it cleared, 7:27:25–40. He then came back to the front of the car, seeing Johnson placing Thomas in handcuffs while the canine maintained its bite, 7:27:43. As Thomas writhed, Bruss commented, “Soon as he gets you handcuffed, he’ll get the dog off you,” “stop moving around,” and “he still hasn’t been searched.” 7:27:58–28:07. He then told Johnson to “take him [the dog] off the bite,” 7:28:10. Once Johnson had pulled back the dog, Bruss commanded Thomas to “roll over on your stomach now, roll over on your stomach you ain’t seen nothing yet if you don’t comply.” 7:28:13. A few moments later, Bruss commented, “should’ve complied, my man.” 7:28:34. Bruss was on the scene for a total of four minutes before the dog bite, during which he arrested the other suspect, Gray, and searched the vehicle. He soon administered Narcan to Thomas, who later tested positive for certain unlawful substances.
Officer Schultz
Schultz arrived at 7:25:30; before arriving, he heard on the radio Johnson stating that the suspect was not complying and was asking to be shot. When he arrived, he took position behind Johnson with his taser drawn. 7:25:48. Schultz told Johnson, “I’ll get him,” and commanded Thomas to “step up,” “stand up,” and “do it now,” several times. 7:26:50–27:20. Schultz watched as Johnson released the dog, the dog bit Thomas on the right arm, and Johnson handcuffed Thomas. After Bruss declared the vehicle safe, Schultz holstered his taser. 7:27:37. He then silently watched the remainder of Johnson’s arrest and watched Johnson remove the canine. 7:27:37–28:15. After Johnson had removed the dog, he joined Bruss in telling Thomas to “roll over,” then immediately called EMS for the dog bites. 7:28:17. Schultz was on the scene for two minutes before the dog bite.
Facts (continued)
Thomas sued Bruss and Schultz for bystander liability. Bruss and Schultz filed a motion to dismiss, arguing Thomas had failed to state a claim and they were entitled to QI. The district court denied the motion. The 5th reversed.
Analysis
A bystander officer may be held liable for constitutional violations where he (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.
Thomas and the district court failed to meet the rigorously high bar of QI’s “clearly established” prong, failing to put the question beyond debate.
To review, several material facts of this case include the following:
• That the bite took 43 seconds, during which Johnson was handcuffing Thomas and immediately after which Johnson removed the dog;
• That each bystander arrived to the scene after many of Thomas’s death wishes—with Schultz’s characterizing the event as “his [Johnson’s] scene”;
• That Bruss told Thomas the dog bite would be taken off once he was handcuffed and soon told Johnson to remove the dog just after the bite had finished; and
• That Schultz was not a trained canine handler, and neither officer was alleged to have encountered this dog before—as background, Harris County’s policy authorizes an officer to use force proportionate to a suspect’s resistance analyzed under the totality of the circumstances, and classifies police dogs as a less-than-lethal form of force.
None of the cases mustered by Thomas presents fact patterns making it sufficiently clear that every reasonable official would have understood that what he was doing violated any right to bystander intervention. This was a dynamic situation with multiple suspects, an unknown firearm, an invitation to die, and a 43-second canine assisted arrest, where the officers only passively witnessed the unfolding events and never affirmatively acquiesced in the conduct.
Each point is a material distinction. And this court has never held that officers have a constitutional duty to intervene in every canine arrest. The lack of an analogous case matters because the situation that Bruss and Schultz encountered in February 2021 does not meet the sky high standard for establishing the rare obvious case for which no similar case is needed. Here, the lack of an analogous precedent in the canine-assisted apprehension context is not fatal to Thomas’s argument that Bruss and Schultz should be denied QI. Rather, because of the total duration of the dog bite was 43 seconds —a relatively short period of time for a bystander officer mentally to process the situation and then formulate a reaction—we cannot say that the law clearly required Bruss and Schultz to intervene sooner.
That is particularly the case with Bruss, who inspected the parameter during part of the 43 seconds and took alleviative action by telling Johnson to remove the dog bite toward the end of the 43-second bite.
The judgment is REVERSED, and a judgment of dismissal in favor of the defendants is RENDERED.
https://www.ca5.uscourts.gov/opinions/pub/25/25-20590-CV0.pdf