Eastern District of Virginia Denies Qualified Immunity to Police Officer Who Sicced Police Dog on Non-Threatening Passenger

March 14, 2021

In my new essay, “The End of Comparative Qualified Immunity,” I argue that the one-two punch of the Supreme Court’s recent opinion in Taylor v. Riojas and summary disposition in McCoy v. Alamu will significantly limit the qualified immunity defense going forward. And now, the first opinion to cite the summary disposition in McCoy v. Alamu seems to bear that out.

In Keenan v. Ahern, 2021 WL 878626 (E.D.Va. 2021), William Ahern,

a Virginia Beach police officer, was on patrol when he spotted a vehicle in a parking lot “match[ing] the description of a vehicle that had been reported to the police earlier that evening.”…Keenan was in the passenger seat of the parked vehicle, while an unidentified individual was in the driver’s seat with his or her door ajar….Ahern pulled into the parking lot and exited his patrol vehicle, accompanied by his canine partner….Other Virginia Beach police officers apparently arrived at the scene around the same time, though it is unspecified how many….Ahern commanded the two occupants to exit the vehicle….The individual in the driver’s seat heeded Ahern’s command and was taken into custody by another officer. Id. Keenan, however, remained motionless in the passenger seat of the vehicle….Ahern, who could see Keenan through the open driver’s door, issued “repeated verbal commands” to Keenan to exit the vehicle, but Keenan “was unconscious and unresponsive.”…

Despite having no reason to believe that Keenan presented a significant threat of death or serious physical injury to Ahern or others, or that Keenan would attempt to resist arrest or escape, “Ahern released his canine into the open driver’s door of the vehicle, where the canine walked across the seat and bit Keenan in the face and arm repeatedly.”…Ahern then walked around to the passenger side of the vehicle, opened the passenger door, and removed a now-conscious Keenan from the car, “with the canine still attached [to Keenan].”…As a result of the encounter, Keenan sustained severe injuries and associated medical expenses.

Keenan subsequently brought suit against Ahern in his individual capacity, “alleging excessive force under 42 U.S.C. § 1983 and battery under Virginia law.” In denying Keenan’s ensuing motion to dismiss, the district court held that

to find a violation of a clearly established right, it is not necessary that the facts of the case at hand align perfectly with those of relevant controlling precedent, because “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”…

The United States Supreme Court recently reaffirmed this principle last November in Taylor v. Riojas….In that case, a Texas prison inmate was forced to endure “deplorably unsanitary conditions” in a prison cell for six days….The Fifth Circuit found that such conduct violated the Eighth Amendment’s prohibition of cruel and unusual punishment….But, noting “ambiguity in the caselaw,” the Fifth Circuit determined that the correctional officer defendants were entitled to qualified immunity because “[t]he law wasn’t clearly established.”…In a 7-1 decision, the Supreme Court reversed, finding that “no reasonable correctional officer could have concluded that [the alleged conduct] was constitutionally permissible.”…In so holding, the Court reiterated that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question.”[FN7]

[FN7] Moreover, just last month, the Supreme Court vacated and remanded for further consideration in light of Taylor a separate Fifth Circuit ruling that granted qualified immunity (based on a lack of clearly established law) to a correctional officer that used pepper spray against an inmate without provocation. See McCoy v. Alamu….

The court then concluded that

it is “beyond debate,” al-Kidd, 563 U.S. at 741, that a reasonable officer would have known that deploying a police dog against Plaintiff under such circumstances was constitutionally impermissible. In the end, such a conclusion is rather unremarkable as deploying a police dog against a motionless, unresponsive, and outnumbered individual, who, in his physical state, has given police virtually no cause to suspect that he poses a risk of injury to others or will attempt to flee, cannot seriously be characterized as a permissive “bad guess[ ] in [a] gray area[ ],”…as Defendant posits.

-CM