Facts
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On the night of February 14, 2021, Barry Calvert was on patrol when he received an alert to look for a stolen silver 2020 Toyota RAV4 (the alert did not provide the license number). At 10:42 pm, he spotted a vehicle that appeared to match the description of the stolen vehicle, so he followed it into an apartment complex’s parking lot and engaged his emergency lights. The car was Benjamin Benfer’s silver 2020 Mitsubishi Crossover, not the stolen RAV4, but the angle of Calvert’s headlights and the lack of natural light made it difficult for Calvert to see the exact make and model of the car he was stopping.
After pulling Benfer over, Calvert immediately exited his patrol car. Benfer also got out of his car and walked toward Calvert, ignoring commands to stop. As Benfer neared Calvert, Calvert tried to restrain him, but Benfer repeatedly broke free of Calvert’s grasp and ignored even more commands. During their tussle, Calvert warned Benfer that he had a dog that would bite Benfer if he continued to resist. During their struggle, Mrs. Benfer began approaching Calvert. At that time, and in a move to subdue Benfer, Calvert pushed him to the ground. Mrs. Benfer reacted by rushing toward and pushing Calvert. Calvert pushed her off, shouted at her to “back up,” and called for an assist from his K-9.
The K-9 bit and subdued Benfer while Calvert handcuffed Mrs. Benfer. Then, after handcuffing Mrs. Benfer, Calvert returned to his car for a second pair of handcuffs before walking over to Benfer. Held by Calvert’s K-9, Benfer had fallen to the ground. But, when Calvert attempted to handcuff Benfer, Benfer struggled, putting his hands behind his back. Calvert’s bodycam footage does not make clear whether Benfer resisted, or whether the K-9’s biting Benfer’s arm impeded his movement. While attempting to handcuff Benfer, Calvert commanded his K-9 to release its bite, but the K-9 maintained its hold. Instead, after finally handcuffing Benfer, Calvert had to pull the K-9 off of him. Benfer was charged with resisting arrest, but the charge was later dropped.
Benfer sued Calvert under § 1983, averring that Calvert (1) stopped him without reasonable suspicion; (2) arrested him without probable cause; (4) and used excessive force. The district court found that Calvert had not violated Benfer’s constitutional rights. The 5th affirmed.
Analysis
A. Reasonable suspicion for stop
The stopping of a vehicle and detention of its occupants constitutes a ‘seizure’ under the Fourth Amendment. Such stops comport with the Constitution if they are supported by reasonable suspicion. An alert or be on the look-out report may provide the reasonable suspicion necessary to justify an investigatory stop. See Davila. Any stop must be justified at its inception and, if so justified, the officer’s subsequent actions must be reasonably related in scope to the circumstances that justified the stop.
Calvert’s stop was justified at its inception. Calvert had received an alert to look for a stolen silver 2020 Toyota RAV4, and Benfer was driving a similar-looking Mitsubishi Crossover. Calvert saw Benfer’s car through the rain, at night, and the decreased visibility made it difficult for Calvert to know that he had stopped the wrong kind of car. Because Benfer’s vehicle bore sufficient similarity to the silver RAV4 Calvert was instructed to look for and the conditions in which the stop occurred prevented Calvert from realizing his mistake, the stop was reasonably warranted and justified at its inception.
The stop was also reasonable in duration because Calvert’s subsequent actions were reasonably related in scope to the circumstances that justified the stop. Calvert had barely exited his patrol car when Benfer left his vehicle, walked towards Calvert, and resisted arrest. Mrs. Benfer also left their vehicle and approached Calvert. The remainder of the stop was focused on subduing Benfer and his wife—Calvert never had a chance to verify that Benfer’s vehicle was not the stolen RAV4. Therefore, the stop lasted no longer than was necessary to effectuate its purpose.
B. Arrest
The district court found that Calvert had probable cause to arrest Benfer for resisting arrest. We agree. An arrest is unlawful unless it is supported by probable cause. Probable cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.
Benfer was arrested for resisting arrest. A person resists arrest if he intentionally prevents or obstructs a person he knows is a peace officer . . .from effecting an arrest . . . by using force against the peace officer . . . . Tex. Pen. Code § 38.03(a). “It is no defense . . . that the arrest or search was unlawful.” Id. at § 38.03(b). That means, in Texas, the act of resisting can supply probable cause for the arrest itself. And the great weight of Texas authority indicates that pulling out of an officer’s grasp is sufficient to constitute resisting arrest.
The video unambiguously shows Benfer repeatedly pulling out of Calvert’s grasp. Those acts of resisting supplied probable cause for the arrest.
C. Excessive force
C1. Calvert’s decision to release his K-9 was a constitutional use of force.
An officer did not use excessive force when he released a K-9 on a suspect who ignored the officer’s instructions, and retreated further under a home, preventing the officer from determining whether he was armed. See Shumpert. In contrast, releasing a dog violates the Fourth Amendment where there are no attempts to subdue the suspect without the use of a dog bite, or to provide the suspect any warning, and where the suspect was not suspected of any crime; did not pose an immediate safety threat to officers or others; and was in need of emergency medical intervention due to self-harm and was not attempting to flee the officers. See Sligh.
Benfer repeatedly resisted arrest and walked away from Calvert. Benfer ignored Calvert’s warning that he had a dog who would bite Benfer if he continued to resist. Importantly, Calvert deployed the dog only after Mrs. Benfer made physical contact with him while he was trying to restrain Benfer. Calvert was outnumbered. He faced one individual who had resisted his many attempts to use lesser force and another who made aggressive contact with him—near his gun belt—while he attempted to restrain the first.
From the perspective of a reasonable officer on the scene, Calvert’s use of a K-9 to subdue Benfer while he dealt with Mrs. Benfer was a measured and ascending use of reasonable force. Therefore, Calvert’s decision to release his K-9 was not clearly excessive under the circumstances, and Benfer has not plausibly alleged that that decision violated his right to be free from excessive force.
C2. Calvert’s use of the K-9 to subdue Benfer until he was handcuffed was a constitutional use of force.
Our court first addressed the reasonableness of using a police dog to subdue a suspect in Cooper. There, an officer pulled Cooper over on suspicion of driving under the influence. After failing a breath test, Cooper fled on foot into a residential neighborhood. The initial officer then alerted other officers in the area to Cooper’s flight, including Brown and his K-9, Sunny. Despite having no reason to believe that Cooper had a weapon, Brown deployed Sunny to search for him. Shortly thereafter, Sunny found Cooper and bit him on the leg for one to two minutes. Brown did not order Sunny to release until after handcuffing Cooper. Applying the Graham factors, we held that under the facts in the record, permitting a dog to continue biting a compliant and non-threatening arrestee is objectively unreasonable.
Years later, in Escobar, our court again addressed the reasonableness of using a police dog to subdue a suspect. But this time, in contrast with Cooper, we held that it was objectively reasonable to permit a K-9 to continue biting Escobar until he was fully handcuffed and subdued, despite that he laid flat on the ground, his hands were visible, and he was compliant with the officer’s commands. Why? Because the officer had reason to believe he still posed a threat. The chase was at night; Escobar had hidden from the police for twenty minutes; Escobar’s mother had warned the police that he would not go without a fight; and a knife remained within Escobar’s reach. Thus, the officer had reason to doubt Escobar’s compliance and that his surrender was not genuine. Applying the Graham factors, we held that it was objectively reasonable to permit the K-9 to continue biting Escobar until he was fully handcuffed and subdued.
Because, under the totality of the circumstances, Benfer posed an objective threat to Calvert, the Graham factors favor a finding that Calvert’s use of his K-9 was objectively reasonable:
The first factor—the severity of the offense—favors Calvert. Interfering with the duties of a public servant, such as resisting arrest, is a serious offense. See Brothers. Here, Calvert’s bodycam shows Benfer repeatedly breaking free of Calvert’s grasp and refusing to comply with Calvert’s commands—simply put, Benfer was resisting arrest.
The second factor—whether Benfer posed a threat—is a closer call, but it ultimately favors Calvert. Benfer had disobeyed several of Calvert’s commands and resisted arrest. Calvert was outnumbered. Mrs. Benfer, only moments earlier, had made aggressive contact with Calvert—near his gun belt—while he was struggling with Benfer, and although handcuffed, she remained in the general vicinity. The arrest took place on a rainy night. And there was no indication that Benfer would comply with Calvert’s instructions if Calvert released the K-9. Though Benfer did not appear to be armed, in the face of such facts, a reasonable police officer would have had reason to doubt Benfer’s compliance and conclude that he posed a threat.
Benfer disagrees that he posed a threat and that our analysis of his case should begin and end with Cooper. In his telling, he was compliant and non-threatening by the time Calvert went to handcuff him. And because his behavior matched Cooper’s, permitting a police dog to continue biting him is objectively unreasonable. But we see several distinctions between Benfer’s and Cooper’s behaviors: Calvert had repeatedly attempted to negotiate with Benfer before calling his K-9 to assist. Calvert was outnumbered, and Mrs. Benfer had made aggressive contact with Calvert while he struggled to arrest Benfer. And Benfer and his wife escalated the situation by repeatedly disobeying Calvert’s commands and resisting arrest. Under those circumstances, a reasonable officer could conclude that Benfer’s surrender was not genuine and that Benfer posed a threat.
And, finally, we have already determined that Benfer resisted arrest, so the third Graham factor—whether Benfer was resisting or attempting to flee—favors Calvert.
Even if Benfer had demonstrated that he posed no objective or subjective threat to Calvert or that he would not resist arrest or flee if the K-9 was released, Calvert attempted to release the K-9’s grip on Benfer before finishing handcuffing him. Thus, unlike in Cooper, where Brown permitted the attack to continue for one to two minutes, Calvert did not permit the K-9 to continue biting Benfer. Calvert attempted to cease the use of force, albeit unsuccessfully.
Based on all the circumstances, Calvert’s use of his K-9 to subdue Benfer until he was handcuffed was an objectively reasonable use of force that was not clearly excessive under the circumstances, and Benfer has not plausibly alleged that Calvert’s decision violated his right to be free from excessive force. So, the district court was correct to dismiss his claim.
https://www.ca5.uscourts.gov/opinions/pub/23/23-20543-CV0.pdf