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Release the Hound: No Qualified Immunity for Canine Attack Cops

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By Robyn Hagan Cain on January 13, 2012 3:01 PM

As much as we love bestowing FindLaw Top Dog honors on deserving jurisprudential pups, we're not going to award Rosco, the canine subject of today's Eleventh Circuit Court of Appeals decision, with our coveted designation. That's because we don't want to reward Rosco's Orlando police handlers for using excessive force.

(Rosco, this hurts us more than it hurts you. Really.)

This week, the Eleventh Circuit ruled that Officers Bryan Shanley and Justin Levitt were not entitled to qualified immunity after they permitted Rosco to attack a suspect, who was not resisting arrest, for five to seven minutes.

Colin Edwards was driving with a suspended license. He failed to properly stop at a stop sign, and then observed a police car driving behind him with its sirens and lights engaged. Edwards drove down the road and turned into a library parking lot. When the police car followed, Edwards panicked, and fled the car on foot.

That was a bad move.

Office Lovett chased Edwards. Edwards claims he ran for less than half a mile into a wooded area before he laid down on his stomach to surrender.

Instead of following Edwards into the thicket, Lovett called for backup. Officer Shanley and Rosco responded.

Several times, the officers announced their presence, and that they would use the dog if Edwards didn't surrender. When they got closer, Edwards said, "You got me. I only ran because of my license." As Edwards finished making that statement, the dog, which had been released by Officer Shanley, began biting Edwards's leg. As the dog bit him, Edwards shouted "I'm not resisting" and begged the officers to call off the dog.

The attack lasted between five and seven minutes. Edwards claimed that he did not resist, and that the officers stood over him while Rosco maintained the bite. He suffered serious injuries from the attack. Edwards sued, alleging that Shanley's use of the police dog constituted excessive force in violation of the Fourth Amendment.

The district court granted summary judgment in favor of the officers based on qualified immunity. The Eleventh Circuit Court of Appeals reversed the lower court.

The Eleventh Circuit reasoned that Officer Shanley's decision to use a dog to help track and initially subdue the fleeing Edwards was constitutional, but concluded that Officer Shanley used unconstitutionally excessive force when he permitted his dog to attack Edwards for five to seven minutes.

The court ruled that "because Edwards was begging to surrender, and because Officer Shanley could safely give effect to that surrender, the further infliction of pain was gratuitous and sadistic." The court also noted that the attack was plainly unconstitutional in light of a previous holding that a two-minute dog attack on a similar suspect was excessive force.

The Eleventh Circuit Court of Appeals will not tolerate excessive force from canine cops. If you have a client who suffered injuries from a prolonged police dog attack, you have a good chance of surviving a qualified immunity summary judgment motion.

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