Keenan v. Ahern

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

JOHNATHAN KEENAN,

Plaintiff,

v. Civil No. 2:20cv78

WILLIAM P. AHERN,

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant William P.

Ahern’s (“Defendant” or “Ahern”) motion to dismiss Plaintiff

Johnathan Keenan’s (“Plaintiff” or “Keenan”) Complaint on the

basis of qualified immunity, pursuant to Federal Rule of Civil

Procedure 12(b)(6). ECF No. 6. After reviewing the parties’

briefs, the Court finds that a hearing on the motion is

unnecessary. Therefore, Defendant’s associated consent motion

seeking a hearing is DENIED. ECF No. 10. For the reasons stated

below, Defendant’s motion to dismiss is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY1

On April 19, 2017, 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

1 The facts recited here come from the Complaint and are assumed true only

to decide the pending motion to dismiss. See Erickson v. Pardus, 551 U.S.

89, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a judge

must accept as true all of the factual allegations contained in the

complaint.”).

the police earlier that evening.”2 ECF No. 1-1 ¶¶ 3-5. 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. Id. ¶¶ 3, 6-7. Ahern pulled into the parking lot and

exited his patrol vehicle, accompanied by his canine partner. Id.

¶ 5. Other Virginia Beach police officers apparently arrived at

the scene around the same time, though it is unspecified how many.

See id. ¶¶ 7, 10. Ahern commanded the two occupants to exit the

vehicle. Id. ¶ 7. 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. Id. 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.” Id.

¶¶ 8-9.

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.” Id. ¶¶ 10-11. Ahern then walked

around to the passenger side of the vehicle, opened the passenger

2 Though not stated in the Complaint, Plaintiff’s opposition indicates that

the vehicle was reported as stolen. ECF No. 8, at 2.

door, and removed a now-conscious Keenan from the car, “with the

canine still attached [to Keenan].” Id. ¶¶ 11-13. As a result of

the encounter, Keenan sustained severe injuries and associated

medical expenses. Id. ¶¶ 14, 16, 19.

On April 19, 2019, Keenan brought suit against Ahern in his

individual capacity in the Virginia Beach Circuit Court, alleging

excessive force under 42 U.S.C. § 1983 and battery under Virginia

law. Defendant timely removed the action to this Court, ECF No.

1, and now moves to dismiss Plaintiff’s § 1983 claim on the basis

of qualified immunity, ECF No. 6. Should the Court dismiss such

claim, Defendant further requests that the Court either dismiss

Plaintiff’s battery claim or remand it to the Virginia Beach

Circuit Court. Id. Plaintiff filed an opposition to Defendant’s

motion, ECF No. 8, and Defendant filed a reply, ECF No. 9. The

matter is therefore ripe for consideration.

II. STANDARD OF REVIEW

The well-established Rule 12(b)(6) standard of review

requires the dismissal of a complaint that fails “to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A

complaint fails to state a claim if it does not allege “enough

facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a

complaint need not be detailed, the “[f]actual allegations must be

enough to raise a right to relief above the speculative level.”

Id. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Nor does “an

unadorned, the-defendant-unlawfully-harmed-me accusation.”

Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015)

(quoting Iqbal, 556 U.S. at 678).

A motion to dismiss tests the sufficiency of a complaint

without resolving factual disputes, and a district court “‘must

accept as true all of the factual allegations contained in the

complaint’ and ‘draw all reasonable inferences in favor of the

plaintiff.’” Kensington Volunteer Fire Dep’t v. Montgomery

County, 684 F.3d 462, 467 (4th Cir. 2012). Although the truth of

well-pled facts is presumed, a court is not bound by the “legal

conclusions drawn from the facts” and “need not accept as true

unwarranted inferences, unreasonable conclusions, or arguments.”

E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175,

180 (4th Cir. 2000); see Iqbal, 556 U.S. at 678. In addition,

“while it is generally not appropriate to consider the viability

of affirmative defenses at the Rule 12(b)(6) stage, in ‘relatively

rare circumstances’ where all of the facts ‘necessary to the

affirmative defense clearly appear on the face of the complaint,’

an affirmative defense . . . may be resolved on a motion to

dismiss.” Waites v. Wells Fargo Bank, N.A., No. 2:15cv353, 2016

WL 659084, at *2 (E.D. Va. Feb. 16, 2016) (quoting Goodman v.

Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)).

A motion to dismiss pursuant to Rule 12(b)(6) must be read in

conjunction with Federal Rule of Civil Procedure 8(a)(2), which

requires only “a short and plain statement of the claim showing

that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2),

so as to “give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests,” Twombly, 550 U.S. at 555

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Fair notice

is provided by setting forth enough facts for the complaint to be

“plausible on its face” and “raise a right to relief above the

speculative level on the assumption that all the allegations in

the complaint are true (even if doubtful in fact).” Id. (citation

omitted).

III. DISCUSSION

Title 42, section 1983 of the United States Code provides a

private cause of action to a plaintiff who has suffered a

deprivation of a constitutional or statutory right at the hands of

a state or local official or other person acting under color of

state law. Perry-Bey v. City of Norfolk, 678 F. Supp. 2d 348, 372

(E.D. Va. 2009). Specifically, the statute provides, in relevant

part,

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects

. . . any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

42 U.S.C. § 1983. Section 1983 “is not ‘a source of substantive

rights, but a method for vindicating federal rights elsewhere

conferred by those parts of the United States Constitution and

federal statutes that it describes.’” Lambert v. Williams, 223

F.3d 257, 260 (4th Cir. 2000) (quoting Baker v. McCollan, 443 U.S.

137, 144 (1979)).

Here, Plaintiff alleges that Defendant used excessive force

against him in violation of the Fourth Amendment’s prohibition of

unreasonable seizures. See Schultz v. Braga, 455 F.3d 470, 476

(4th Cir. 2006) (noting that the Fourth Amendment right to be free

from unreasonable seizures “encompasses the right to be free of

arrests, investigatory stops, or other seizures effectuated by

excessive force”). In his Rule 12(b)(6) motion, Defendant argues

that Plaintiff’s excessive force claim should be dismissed because

he is entitled to qualified immunity given that, regardless of any

allegations suggesting a constitutional violation, Defendant’s

alleged conduct did not violate a “clearly established”

constitutional right.3 ECF No. 7, at 5.

3 To be sure, Defendant does not concede that he committed a constitutional

infraction, but simply argues for purposes of this motion that any violated

constitutional right was not a “clearly established” right under then-

existing controlling law. See ECF No. 7, at 5 (“Defendant denies any

wrongdoing and specifically avers that his actions were at all times lawful

and objectively reasonable.”).

The doctrine of qualified immunity “shields government

officials from liability for civil damages, provided that their

conduct does not violate clearly established statutory or

constitutional rights within the knowledge of a reasonable

person.” Meyers v. Baltimore County, 713 F.3d 723, 731 (4th Cir.

2013) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As

explained by the Supreme Court, qualified immunity “balances two

important interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009). Put simply, “[q]ualified immunity gives

government officials breathing room to make reasonable but

mistaken judgments about open legal questions. When properly

applied, it protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Ashcroft v. al–Kidd, 563 U.S. 731,

743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

An official seeking to invoke the protections of qualified

immunity “must demonstrate that (1) a plaintiff has not alleged or

shown facts that make out a violation of a constitutional right,

or that (2) the right at issue was [not] clearly established at

the time of its alleged violation.” Owens v. Balt. City State’s

Att’ys Off., 767 F.3d 379, 395-96 (4th Cir. 2014) (alteration in

original) (internal quotation marks omitted). “[C]ourts have

discretion to decide which of the two prongs of [the] qualified-

immunity analysis to tackle first.” al–Kidd, 563 U.S. at 735. If

a court finds that the law was “not clearly established,” the court

is not required to “reach the other step in the analysis—whether

a constitutional violation actually occurred.” Crouse v. Town of

Moncks Corner, 848 F.3d 576, 584 (4th Cir. 2017). Here, the thrust

of Defendant’s motion rests on the second prong—the right alleged

to be violated was not “clearly established” at the time of the

alleged violation. As such, Defendant urges the Court to skip the

first prong—whether there was a constitutional violation in the

first instance—and focus on the second prong only. In this case,

however, the Court will exercise its discretion and briefly address

the first prong before moving to the second.

A. Violation of a Constitutional Right

It is well settled that excessive force claims arising in the

context of a “‘seizure’ of a free citizen” are analyzed under

Fourth Amendment principles. Graham v. Connor, 490 U.S. 386, 394

(1989). The Fourth Amendment to the United States Constitution

protects “[t]he right of the people to be secure in their persons

. . . against unreasonable . . . seizures.” U.S. Const. amend.

IV. The Supreme Court has explained that a “seizure” occurs “when

there is a governmental termination of freedom of movement through

means intentionally applied.” Brower v. County of Inyo, 489 U.S.

593, 597 (1989) (emphasis omitted). The parties do not dispute

that Plaintiff was “seized” within the meaning of the Fourth

Amendment when, as alleged in the Complaint, Defendant deployed

his canine partner against Plaintiff. See Vathekan v. Prince

George’s County, 154 F.3d 173, 178-79 (4th Cir. 1998) (holding

that a Fourth Amendment seizure occurred where an intentionally

deployed police dog attacked a person whom the officer intended

the dog to apprehend). Thus, the issue is whether the seizure

alleged was “unreasonable.” See id. at 178 (“An attack by an

unreasonably deployed police dog in the course of a seizure is a

Fourth Amendment excessive force violation.” (emphasis added)).

Whether a seizure has been effectuated in an unreasonable

manner is adjudged by an objective standard: whether the officer’s

actions are “‘objectively reasonable’ in light of the facts and

circumstances confronting [the officer], without regard to [his or

her] underlying intent or motivation.” Graham, 490 U.S. at 397.

In resolving this question, courts must devote “careful attention

to the facts and circumstances of [the] case, including the

severity of the crime at issue, whether the suspect pose[d] an

immediate threat to the safety of the officers or others, and

whether [the suspect] . . . actively resist[ed] arrest or

attempt[ed] to evade arrest by flight.” Id. at 396. Courts must

also make “allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of force

that is necessary in a particular situation.” Id. at 397.

Although Defendant does not directly challenge the

sufficiency of Plaintiff’s allegations as to a constitutional

violation, upon an independent review of the Complaint, the Court

has little difficulty concluding that the conduct alleged amounts

to excessive force in violation of the Fourth Amendment. According

to the Complaint, Ahern, accompanied by his canine partner and at

least two other officers,4 was confronted with a motionless and,

even after multiple verbal commands, unresponsive man5 sitting in

the passenger seat of a parked vehicle with its driver’s door open,

after the individual who had previously occupied the driver’s seat

voluntarily surrendered to law enforcement. At no point prior to

the attack did Keenan give any indication that he presented a

danger to others or would attempt to escape. Under the facts

4 Though it is uncertain the number of other officers that responded to the

scene, and the exact moment they arrived, it is clear from the Complaint—

or, at the very least, entirely reasonable to infer therefrom—that there

were at least two other officers at the scene, see ECF No. 1-1 ¶ 10, and

that such officers had arrived before Ahern engaged Keenan and the other

individual, see id. ¶ 7.

5 The Complaint also alleges that Plaintiff was “unconscious.” ECF No. 1-

1 ¶ 9. Defendant avers that “it is hard to fathom how [he] knew or could

have recognized Plaintiff was ‘unconscious’ when his canine partner was

released into the vehicle.” ECF No. 7, at 8 n.2. Although it is true that

there is no way to know at this stage whether Defendant in fact knew that

Plaintiff was unconscious, given that Plaintiff—who could be seen through

the open driver’s door of the vehicle—remained motionless and unresponsive

after repeated verbal commands, the Court is satisfied that, when the facts

are interpreted in Plaintiff’s favor, a reasonable officer “could have”

recognized that Plaintiff was unconscious.

alleged, therefore, there is no suggestion that Ahern was “forced

to make [a] split-second judgment[].” Graham, 490 U.S. at 397.

Nonetheless, Ahern released his canine partner to apprehend

Keenan—a significant use of force, to be sure, see Maney v.

Garrison, 681 F. App’x 210, 220 (4th Cir. 2017) (unpublished);

Melgar ex rel. Melgar v. Greene, 593 F.3d 348, 362 (4th Cir. 2010)

(Michael, J., dissenting in part and concurring in part). Even

when considering that Ahern initiated the encounter because the

vehicle Keenan occupied matched the description of one that had

been reported to police, deploying a police dog against Keenan

under the circumstances here alleged, which can hardly be described

as “tense, uncertain, [or] rapidly evolving,” Graham, 490 U.S. at

397, was objectively unreasonable. See Vathekan, 154 F.3d at 178.

As such, the Complaint sufficiently pleads a claim for Fourth

Amendment excessive force.

B. Violation of a “Clearly Established” Constitutional Right

Having concluded that the Complaint sufficiently alleges a

Fourth Amendment violation, the Court must determine whether the

right violated was “clearly established” at the time of the

violation. A clearly established right is one that is

“sufficiently clear [such] that every reasonable official would

[have understood] that what he is doing violates that right.”

Reichle v. Howards, 566 U.S. 658, 664 (2012) (second alteration in

original) (internal quotation marks omitted). Importantly, the

“clearly established” inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposition.”

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation and internal

quotation marks omitted); see also al–Kidd, 563 U.S. at 742

(stating that courts must not “define clearly established law at

a high level of generality”). There need not be a case “directly

on point” in order for an officer to know that his or her conduct

violates a clearly established right, “but existing precedent must

have placed the statutory or constitutional question beyond

debate.” Crouse, 848 F.3d at 583 (quoting al–Kidd, 563 U.S. at

741); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987)

(“This is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.” (citation

omitted)).

In asserting the defense of qualified immunity, Defendant

argues that there is no United States Supreme Court, Fourth

Circuit, or Virginia Supreme Court case sufficiently similar to

the facts presented here such that he should have known that his

conduct violated clearly established law. In Defendant’s view,

the cases closest to being on point consist of the Fourth Circuit’s

decisions in Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), Vathekan,

154 F.3d 173, and Estate of Rodgers ex rel. Rodgers v. Smith, 188

F. App’x 175 (4th Cir. 2006) (unpublished).

In Kopf, the defendant officers tracked suspected armed bank

robbers to an “extremely narrow” alley and released a police dog

into the alley allegedly without warning to subdue the suspects.

942 F.2d at 266. In reversing summary judgment for the defendants

on the basis of qualified immunity, the Fourth Circuit indicated

that the factual dispute as to whether the officers forewarned the

suspects was “crucial, because a forewarning that the dog is going

to attack, which provides the suspects a fair chance to surrender,

is more reasonable than a surprise assault.” Id. at 268. The

court also credited the affidavits of the plaintiffs’ “well-

credentialed experts on the use of canine units, both of whom were

of the opinion that use of the dog when the suspects were

surrounded was unreasonable, announcements notwithstanding.” Id.

In Vathekan, the Fourth Circuit similarly reversed an award

of summary judgment for the defendant police officer based on

qualified immunity. 154 F.3d 173. In that case, a police dog

alerted to the presence of a human within a home that was the

target of a suspected burglary. Id. at 176. Allegedly without

warning, the officer released the dog into the home, resulting in

severe injuries to the home’s owner. Id. at 176-77. In rejecting

the officer’s claim of qualified immunity, the Fourth Circuit

observed,

In Kopf we held that the improper deployment of a police

dog that mauls the target constitutes excessive force in

violation of the Fourth Amendment. Kopf was decided in

1991, four years before the attack on Vathekan.

Accordingly, it was clearly established in 1995 that

failing to give a verbal warning before deploying a

police dog to seize someone is objectively unreasonable

and a violation of the Fourth Amendment.

Id. at 179 (citation omitted).

Finally, in Rodgers, the Fourth Circuit, in an unpublished

decision, upheld the district court’s finding of qualified

immunity. 188 F. App’x 175. There, as police officers were

attempting to subdue an armed suspect after a nearly-two-hour-long

hot pursuit, the suspect “grasped his firearm,” prompting an

officer to cry out, “Gun!” Id. at 177-78. In response, another

officer deployed a police dog without warning, which “engaged” the

suspect’s arm. Id. at 178. The suspect then aimed his firearm at

one of the police officers, who, along with another officer, fired

multiple shots, killing the suspect. Id. The estate of the

deceased sued the officers, claiming, in part, that deployment of

the police dog constituted excessive force because the deploying

officer did not issue a prior warning. Id. at 181. In affirming

the district court’s qualified immunity finding, the Fourth

Circuit found no Fourth Amendment violation, but it went on to

state,

Even if Officer Waters’ deployment of the police dog

without prior warning did violate the Fourth Amendment,

the unlawfulness of his conduct was not clearly

established on April 15, 2002. Kopf and Vathekan stand

at most for the principle that the Fourth Amendment is

violated when an officer who faces no immediate threat

deploys a police dog without prior warning. For the

reasons set forth above, that was not the case here.

Id. at 182.

According to Defendant, these cases clearly establish only

that a Fourth Amendment violation for excessive force occurs “when

an officer who faces no immediate threat deploys a police dog to

apprehend a suspect without prior warning.” ECF No. 7, at 7.

Consequently, Defendant argues, because the Complaint does not

allege that Defendant failed to give a prior warning, and because

there is no Fourth Circuit decision holding that it is a

constitutional violation for an officer to deploy a police dog in

circumstances similar to those presented here—that is, as

Defendant puts it, “the use of a police canine to intentionally

apprehend a suspect who remains motionless and provides no response

to repeated verbal commands to exit a vehicle that was the subject

of an earlier police report,” id. at 8 (footnote omitted)—Plaintiff

does not properly allege a violation of clearly established law.

As established above, however, 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.”6 Hope, 536 U.S. at 741; accord Meyers 713 F.3d at

734 (“We repeatedly have held that it is not required that a right

violated already have been recognized by a court in a specific

context before such right may be held ‘clearly established’ for

purposes of qualified immunity.” (citing cases)). It is sufficient

that pre-existing law gave the official “fair warning” that his

conduct was unconstitutional. Hope, 536 U.S. at 741.

The United States Supreme Court recently reaffirmed this

principle last November in Taylor v. Riojas, 141 S. Ct. 52 (2020)

(per curiam). In that case, a Texas prison inmate was forced to

endure “deplorably unsanitary conditions” in a prison cell for six

days. Id. at 53. The Fifth Circuit found that such conduct

violated the Eighth Amendment’s prohibition of cruel and unusual

punishment. Id. 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.” Id. at 53, 54 n.2 (alteration in original). 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.” Id. In so

holding, the Court reiterated that “a general constitutional rule

6 Of course, “earlier cases involving ‘fundamentally [or materially]

similar’ facts can provide especially strong support for a conclusion that

the law is clearly established, [but] they are not necessary to such a

finding.” Hope, 536 U.S. at 741.

already identified in the decisional law may apply with obvious

clarity to the specific conduct in question.”7 Id. at 53-54

(emphasis added) (quoting Hope, 536 U.S. at 741). It is against

this backdrop that the Court evaluates whether Defendant’s conduct

violated clearly established law.

At the outset, the Court notes that it is a violation of

clearly established law in this circuit to employ excessive force

“in the course of making an arrest or otherwise seizing a person.”

Betton v. Belue, 942 F.3d 184, 191 (4th Cir. 2019) (citing cases);

accord Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. 2009).

Moreover, the Fourth Circuit has specifically held that “the

improper deployment of a police dog that mauls the target

constitutes excessive force in violation of the Fourth Amendment.”8

7 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, No. 20-31, 2021 WL 666347, at *1 (Feb.

22, 2021), vacating 950 F.3d 226 (5th Cir. 2020).

8 While Vathekan and Kopf involved situations in which the officers’ failure

to issue a warning before deploying a police dog rendered such deployment

unreasonable under the Fourth Amendment, the Court does not read those cases

as establishing the sole manner of conduct that constitutes improper

deployment. That is to say, “improper” deployment of a police dog amounting

to a violation of clearly established law is not limited to those situations

in which a police officer fails to provide a forewarning. Indeed, one could

easily imagine other scenarios in which, notwithstanding a prior warning,

the deployment of a police dog would be entirely unreasonable and without

question a violation of clearly established law as a reasonable officer

would plainly know that such conduct is unlawful—even in “the absence of a

judicial decision [so] holding,” Meyers, 713 F.3d at 734. Cf., e.g., Becker

v. Elfreich, 821 F.3d 920, 928-29 (7th Cir. 2016) (holding that a police

officer was not entitled to qualified immunity where he failed to call off

a police dog that was mauling a “nonresisting (or at most passively

Vathekan, 154 F.3d at 179 (emphasis added) (citing Kopf, 942 F.2d

at 268); see also id. at 178 (“An attack by an unreasonably

deployed police dog in the course of a seizure is a Fourth

Amendment excessive force violation.” (emphasis added)). This

Court has already determined that, under the facts alleged, the

deployment of the police dog here was improper. The relevant

question, therefore, is whether it was apparent from pre-existing

law that such deployment was improper. Anderson, 483 U.S. at 640.

The Court answers that question in the affirmative and holds that

a reasonable officer would have known that the deployment of a

police dog under the circumstances alleged in the Complaint

constituted excessive force in violation of the Fourth Amendment.

Critically, the Fourth Circuit has held on more than one

occasion that the use of serious or violent force (i.e.,

disproportionate force) in arresting or otherwise seizing an

individual that has surrendered, is not actively resisting or

attempting to flee, does not present a danger to others, or is

effectively secured amounts to a constitutional violation. For

resisting) suspect” even though there was no relevant caselaw directly on

point); Alicea v. Thomas, 815 F.3d 283, 291-92 (7th Cir. 2016) (holding that

“[c]ommanding a dog to attack a suspect who is already complying with orders”

“violates clearly established law,” despite the absence of closely analogous

precedent). Consequently, while the Complaint does not allege that

Defendant failed to give a prior warning, such fact is not determinative in

a case where, as here, the plaintiff alleges facts suggesting that the

officer (accompanied by multiple backup officers) could see that the

intended target was motionless and unresponsive, which would render any

issued warnings ineffective.

example, in Meyers, the court observed that “[t]he use of any

unnecessary, gratuitous, and disproportionate force, whether

arising from a gun, a baton, a taser, or other weapon, precludes

an officer from receiving qualified immunity if the subject is

unarmed and secured.” 713 F.3d at 735 (internal quotation marks

omitted) (citing cases). More recently, the Fourth Circuit held

in Yates v. Terry that an officer was not entitled to qualified

immunity where the officer tased an unarmed and compliant suspect

three times, and the evidence did not “support an inference that

[the suspect] was a danger to [the officer] at any time” or was

actively resisting, even when considering that the suspect “was

not handcuffed.” 817 F.3d 877, 885-88 (4th Cir. 2016). The court

reiterated that, under its precedent, “a nonviolent misdemeanant

who is compliant, is not actively resisting arrest, and poses no

threat to the safety of the officer or others should not be

subjected to ‘unnecessary, gratuitous, and disproportionate

force.’” Id. at 888 (quoting Meyers, 713 F.3d at 735). And in

Smith v. Ray, the court reversed a district court’s finding of

qualified immunity for an officer that, despite having no reason

to believe that the suspect was armed or “was at all inclined to

cause him any harm,” grabbed the compliant and non-aggressive

suspect, forced her to the ground, and—after punching her multiple

times—handcuffed her. 781 F.3d 95, 98-99, 102 (4th Cir. 2015).

Although the defendant in Smith attempted to “draw fine

distinctions” between the factual circumstances of that case and

a similar case previously decided, Rowland v. Perry, 41 F.3d 167

(4th Cir. 1994), the Fourth Circuit stated clearly,

[O]ur determination that the officer was not entitled to

qualified immunity in Rowland was not based on any case

that was factually on all fours. Rather, it was based

on the simple fact that the officer took a situation

where there obviously was no need for the use of any

significant force and yet took an unreasonably

aggressive tack that quickly escalated it to a violent

exchange when the suspect instinctively attempted to

defend himself.

Smith, 781 F.3d at 104.

Although the above cases are not on “all fours” with the

present case, the Court is satisfied that the principles clearly

espoused by the Fourth Circuit in such cases gave Defendant more

than “fair warning” that his conduct, under the circumstances

presented, was unlawful. Again, as alleged in the Complaint,

Plaintiff and another individual were in a parked vehicle with the

driver’s door open. Defendant was accompanied by at least two

other officers and a canine. Obeying Defendant’s command, the

individual in the driver’s seat of the vehicle voluntarily

surrendered and was taken into custody seemingly without incident.

Plaintiff, however, was—at the very least—motionless and

unresponsive in the passenger seat. Even after multiple verbal

commands, Plaintiff’s condition did not change, which Defendant

plainly observed through the open driver’s door. Aside from the

fact that the vehicle matched the description of one that had been

earlier reported to police, there were no facts suggesting either

that Plaintiff presented a danger to Defendant or others, or that

he would attempt to escape or resist arrest. Nor does it appear

that there were any other circumstances requiring police to act

with urgency. Despite all that, Defendant deployed his canine

partner to attack Plaintiff, who regained consciousness while

being mauled and suffered severe resultant injuries.

In light of the clearly established principles set forth

above, 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[],” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992), as Defendant posits.9

9 Though this Court “need not look any further than [the Fourth Circuit]

decisions” discussed above, the Court notes that “a consensus of cases of

persuasive authority from other jurisdictions” also provides fair warning

that the conduct alleged in this case is violative of the Constitution.

Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538-39 (4th Cir. 2017) (internal

quotation marks omitted); see, e.g., Alicea, 815 F.3d at 289-90 (reversing

summary judgment award for defendant officer on the basis of qualified

immunity where the officer deployed a police dog against a suspect that “was

Defendant is, of course, free to assert the defense of

qualified immunity again at the summary judgment stage with the

benefit of a more fully developed evidentiary record. See Raub v.

Bowen, 960 F. Supp. 2d 602, 608 n.8 (E.D. Va. 2013). But at this

stage, such defense must be rejected as the Complaint sufficiently

alleges a violation of a clearly established right. See Ray v.

Roane, 948 F.3d 222, 227-30 (4th Cir. 2020) (reversing a district

court’s finding of qualified immunity at the Rule 12(b)(6) stage

where the district court failed to accept as true the facts alleged

in the complaint).

IV. CONCLUSION

For the reasons stated above, Defendant’s motion to dismiss

and associated consent motion for a hearing are DENIED. ECF Nos.

6, 10.

The Clerk is DIRECTED to send a copy of this Opinion and Order

to all counsel of record.

not in active flight at the time he was discovered,” but was “standing

still, arms raised, inside of an empty above-ground pool, surrounded by five

foot walls,” and complied with the officer’s orders); Campbell v. City of

Springboro, 700 F.3d 779, 787 (6th Cir. 2012) (finding a constitutional

violation where police officers deployed a police dog to apprehend a suspect

that had given police no indication that he presented a danger to others,

and was not actively resisting but “lying face down with his arms at his

side”); Priester v. City of Riviera Beach, 208 F.3d 919, 923-24 (11th Cir.

2000) (holding that a constitutional violation occurred where a police

officer ordered his canine partner to attack a suspect that had previously

surrendered and complied with the police officer’s order to lie on the

ground). Again, while these and other similar cases are not

indistinguishable in every respect from the case at hand, the principles

set forth in those cases clearly establish that, in the absence of any

exigent circumstances, deploying a police dog against a motionless,

unresponsive, and outnumbered individual amounts to excessive force.

IT IS SO ORDERED.

sO LS j

Mark S. Davis

CHIEF UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

March 8 , 2021

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