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At 1:39 a.m. on July 5, 2018, 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. The Montgomery County Sheriff’s Office notified the City of Conroe of the emergency medical call and requested a canine officer if available. Tyson Sutton, a police officer employed by the City of Conroe, and Alexis Alias Montes, a deputy employed by the Montgomery County Sheriff’s Office, responded to the call. Sutton brought along Thor, a trained K9 police dog.
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.
In the video, Sutton encounters Sligh and shines a flashlight at her. Sligh begins to approach Sutton, who loudly says: “Wait, wait, wait, don’t! Do not walk towards me! Do not walk towards me! The dog will bite you!” Sligh acknowledges Sutton before shouting a profanity at the officers. Montes commands Sligh to place her hands behind her back. Sligh responds with more profanities and, contrary to the complaint’s assertions that she never resisted, slaps at Montes’s arms while attempting to pull away. Sligh and Montes physically struggle for about 11 seconds, at which point Sligh breaks free from Montes’s grip. 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 behind her back. Montes handcuffs Sligh after Thor’s release.
Sligh asserted (1) a 42 U.S.C. § 1983 excessive force claim against Sutton; (2) a § 1983 failure-to intervene/bystander liability claim against Montes; (3) a § 1983 municipal/Monell liability claim against the City of Conroe. The district court held that (1) Sutton was entitled to qualified immunity on Sligh’s excessive force claim; (2) Montes was entitled to qualified immunity on Sligh’s failure-to-intervene/bystander liability claim; (3) Sligh had failed to state a § 1983 municipal liability claim against the City of Conroe. The 5th affirmed (municipal liability claim not briefed below).
A. Excessive force
A1. Constitutional violation
The Supreme Court in Graham v. Connor outlined three factors that inform the reasonableness of an officer’s use of force: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. See Joseph.
The first Graham factor, the severity of the crime, weighs in Sligh’s favor. The officers were called based on concerns about Sligh’s mental health, not a crime she was suspected of committing.
The second Graham factor, whether the suspect posed an immediate threat to the safety of officers or others, also weighs in Sligh’s favor. Sligh may 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’ 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’ 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. Defendants 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. See Cooper.
The third Graham factor, whether the suspect was actively resisting arrest or attempting to evade arrest by flight, appears to weigh against Sligh. The video shows that Sligh actively resisted seizure, did not follow verbal commands, and engaged in a physical struggle with Montes. Once Sligh broke free from Montes’s efforts to physically apprehend her, a reasonable officer could conclude that a heightened use of force would be necessary to detain her for her own safety. However, even where force is authorized, officers must employ an appropriate degree of force to stay within constitutional bounds. An officer must use force with measured and ascending actions that correspond to a suspect’s escalating verbal and physical resistance.
We find that under these circumstances, the decision to sic Thor on Sligh constituted an excessive use of force in violation of the Fourth Amendment. When Sligh slipped free from Montes’s attempt to seize her, there was a break in the action. At that point, the officers could have attempted to escalate their use of physical force in a more measured manner, or they could have provided a clear warning that they would employ a dog bite if Sligh did not comply. Instead, Sutton sicced Thor on Sligh without warning.
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.
A2. Clearly established
Sligh relies primarily on Cooper. In Cooper, the plaintiff fled on foot after being pulled over on suspicion of DUI. An officer radioed for backup and explained that Cooper was a DUI suspect. Officer Brown answered the call with his police dog, Sunny, who discovered Cooper in a small wood-fenced cubbyhole. The parties disputed whether Sunny initiated the attack or if Brown ordered it, but they agreed on the following sequence of events following the initial bite: Sunny continued biting Cooper for one to two minutes. During that time, Cooper did not attempt to flee or to strike Sunny. Brown instructed Cooper to show his hands and to submit to him. At the time of that order, Cooper’s hands were on Sunny’s head. Brown testified that he could see Cooper’s hands and could appreciate that he had no weapon. Brown then ordered Cooper to roll onto his stomach. He complied, and Brown handcuffed him. But he did not order Sunny to release the bite until after he had finished handcuffing Cooper.
This court affirmed the district court’s denial of Brown’s motion for summary judgment based on qualified immunity. On the question of whether there was a constitutional violation, we held that all the Graham factors except for the severity of the crime pushed heavily for Cooper. Cooper did not pose an immediate threat because he was not suspected of committing a violent offense, Brown had not been warned that Cooper may be violent, and Brown could see that Cooper was unarmed. Furthermore, Cooper was not actively resisting arrest or attempting to flee or to strike Sunny. The only act of resistance Brown identified was Cooper’s understandable failure to raise his hands while being bit by Sunny. And, in any case, Cooper complied with Brown’s order to roll onto his stomach. Also relevant to our analysis was Brown’s failure to immediately command Sunny to release the bite; instead, he waited until after Cooper had been handcuffed. In sum, while explicitly noting that we were not creating a per se rule on reasonableness, we concluded that under the facts in this record, permitting a dog to continue biting a compliant and non threatening arrestee is objectively unreasonable.
The present case is distinguishable from Cooper in at least two material aspects. First, Sligh actively resisted seizure. Second, Cooper involved a dog bite that was intentionally prolonged. Sunny bit Cooper for one to two minutes before the officer finally ordered Sunny to release. Here, Sutton repeatedly ordered Thor to release Sligh beginning about eight seconds after the initial bite command. And when Thor failed to obey his repeated commands, Sutton made affirmative efforts to release Thor by pulling his collar about 36 seconds following the first release command. Such conduct on Sutton’s part suggests that the amount of force intentionally used here differs from Cooper, where the dog bit the plaintiff for one to two minutes and the officer did not order the dog to release the plaintiff until after the suspect was handcuffed.
We find that Cooper’s precedent does not sufficiently place the constitutional question beyond debate. Cooper involved a nonresisting plaintiff and an intentionally prolonged application of force. 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.
B. Bystander liability
Sligh must identify law clearly establishing that Montes’s actions violated her constitutional rights. She has not done so. We accordingly need not and do not reach the question of whether Montes violated Sligh’s constitutional rights.
Sligh relies entirely on Cooper as clearly establishing the law relating to Montes’s actions. But this reliance on Cooper is misplaced because Cooper is wholly inapplicable to a bystander liability theory. The facts and analysis in Cooper concerned only the conduct of the specific officer who controlled the dog. There was consequently no discussion in Cooper of whether another officer on site would be required to intervene as a bystander. Thus, Cooper cannot clearly establish that Montes—a bystander—violated Sligh’s constitutional rights by failing to intervene. Sligh points to no other case clearly establishing the law on this issue. Accordingly, Montes is entitled to qualified immunity on Sligh’s bystander liability claim.