Thomas

IN THE UNITED STATES DISTRICT COURT December 02, 2025

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

KERRY LEE THOMAS, §

§

Plaintiff, §

v. § CIVIL ACTION NO. H-23-662

§

ERIC M. BRUSS, et al., §

§

Defendants. §

MEMORANDUM AND OPINION

On February 22, 2021, Robert Johnson, a sergeant in the Harris County Constable’s Office,

ordered his police dog to attack Kerry Lee Thomas. While the dog attacked Thomas, Eric Bruss

and Wayne Schultz, a deputy and a sergeant in the same office, stood by. Thomas sued Bruss,

Schultz, and Johnson’s estate for allegedly violating Thomas’s constitutional right to be free from

excessive force. The parties have cross-moved for summary judgment. Thomas has moved for

partial summary judgment against Bruss and Schultz and for default judgment against Johnson’s

estate. (Docket Entry No. 115). Bruss and Schultz have moved for summary judgment on

Thomas’s claims, including on the qualified immunity defense. (Docket Entry No. 118).1

Based on the record, the parties’ briefs and arguments, and the relevant law, the court

denies the cross-motions for summary judgment and Thomas’s motion for default judgment. The

reasons for these rulings are set forth below.

1 The parties have also cross-moved to exclude the opinions and testimony of each side’s experts. (Docket

Entry No. 116, 126). The court does not address these motions now because they are not material to its

resolution of the cross-motions for summary judgment.

I. Background

On February 22, 2021, at 19:15 hours (7:15 p.m.), Harris County Constable’s Office

Precinct One police dispatch received a 911 call reporting a “disturbance with a weapon.” (See

Docket Entry No. 118-1 at 1).2 Robert Johnson, Eric M. Bruss, and Wayne Schultz were sent to

the scene, a residence at 10923 Capstone Dr., Houston, Texas. (See id. at 5). The 911 caller

reported to dispatch that two black males were in front of his home screaming and yelling for the

second time, and that the 911 caller had a weapon. (See id.). Dispatch relayed this information to

the officers heading to the scene. (See id.; Docket Entry No. 118-2).

Johnson confirmed to dispatch that he was on his way to the scene and activated his body

camera at 19:19:10. (Docket Entry No. 118-3). Bruss told dispatch he was on the way at 19:19:55.

(Docket Entry No. 118-1). Johnson’s body camera recorded the dispatcher saying, “Update:

reportee has his weapon out.” (Docket Entry No. 118-3 at 19:20:47). Johnson understood the

dispatch to confirm that the “reportee . . . had his firearm in his possession.” (Docket Entry No.

118-2 at 5). Again, the “reportee” was identified as having the firearm, not the suspect, the two

men in front of the house. Johnson asked dispatch, “Are the suspects still there? If they’re not still

there, tell him [the reportee] to put away his weapon.” (Docket Entry No. 118-3 at 19:20:52). The

dispatcher responds, “The suspects are still at that location in front of the address.” (Id. at

19:21:20). Approximately 30 seconds later, Johnson arrives. He stops his car, immediately opens

the door, draws his firearm, and shouts, “Put your hands up, now! Put your fucking hands up, both

of you! Driver, put your hands up! Put your hands up! Do not move!” (Id. at 19:21:54).

2 This opinion uses military time to be consistent with the timestamps on the body-camera and dashboard-

camera videos. Times in citations to videos refer to the start of the quoted language or described event, are

approximate, and are taken from the timestamp in the upper-left corner of the video frame.

2

At this point, Thomas is visible on the body camera and dash camera of Johnson’s car.

Thomas got out of the passenger side door of a vehicle, raised his hands, and stood next to the

door. (Docket Entry No. 118-10 at 19:22:09; Docket Entry No. 118-3 at 19:22:10). The distance

between Thomas and Johnson appears to be approximately two car lengths. Johnson says, “Driver

put your—stay in the car! Stay in the car!” (Docket Entry No. 118-3 at 19:22:10). Thomas stayed

where he was, outside the passenger side door. Johnson turned to let his dog out from his car’s

back seat. (Id. at 19:22:14). Johnson shines his gun and flashlight at Thomas. Johnson said, “Get

your ass back in the car! Have a seat!” (Id. at 19:22:21). The dog is plainly excited and appears

to struggle against Johnson’s grip on its collar. Johnson shouts, “Get back in the car and have seat,

or else I’m gonna sic my dog at you!” (Id. at 19:22:27). Thomas begins to say, “I don’t want to—

” before Johnson cuts him off and again shouts, “Stay in the car!” Thomas asks, “Are you gonna

shoot me?” (Id. at 19:22:38).

At this point, the car’s driver, later identified as Rapheal Gray, has opened the door and

appears to be getting out of the car. Johnson shouts again, “Stay in the car! Get in the fucking car

now!” (Id. at 19:22:31). In response, Gray sits back down in the driver’s seat. (Id. at 19:22:34).

Thomas continues to speak to Johnson, telling Johnson to kill him, stating that “black lives matter,

all lives matter,” telling Johnson, “You’re my brother!,” and praying, “Please, Father, help me

God, In Jesus name!” (Id. at 19:22:56–23:51). Throughout, the dog is whining and starting toward

Thomas and Gray. Johnson radios, “He’s not complying. Suspect’s saying, “he wants to die,

shoot him.” (Id. at 19:22:43). During this exchange, Gray grabbed Thomas’s shirt and tried to

pull him back inside the car. (Docket Entry No. 118-10 at 19:22:35–22:43). Johnson shouts again:

“Get back in the car, now.” (Docket Entry No. 118-3 at 19:22:50). Then, about a second later,

“Driver, stay in the vehicle!” (Id. at 19:22:51). Gray, wearing what appears to be a blue plaid shirt,

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had stepped out of the car, but retreats inside when Johnson orders him to stay in the car. (Id.).

Johnson shouts, “Do not get out again.” (Id. at 19:22:54).

Bruss arrived at the scene at 19:23:26. (Docket Entry No. 118-11 at 19:23:26). While

Thomas shouts “all lives matter,” Johnson tells Bruss, “Driver’s not complying.” (Docket Entry

No. 118-3 at 19:23:35). Johnson then shouts, “Stop fucking reaching!” Thomas has not moved

his arms. Thomas shouts, “I’m reaching in the air! I’m reaching to God!” (Id. at 19:23:39).

Johnson says, twice, “Let’s get the passenger first.” (Id. at 19:23:42). Bruss then took over issuing

verbal commands, with Johnson stating: “I’ll let you give the command, ok?” (Id. at 19:23:49).

Johnson still shouts, “Driver, stay inside! Stay in the fucking car!” (Id. at 19:23:52). Bruss told

Gray to show his hands; Thomas told Gray to do so as well. (Docket Entry No. 118-4 at 19:23:57;

Docket Entry No. 118-8 ¶ 9).

As Bruss is shouting orders at Gray, the dog, still frantically whining, jumps up in front of

Johnson’s camera and appears to put its paws on the hood of the squad car. As the dog gets off

the hood of the car, Johnson appears to lower his pistol, placing it across his body, slightly

obscuring the camera but leaving Thomas visible. Bruss orders Gray, “Walk towards me.”

Johnson raises his weapon again and points it at Thomas, who has begun moving from behind the

door into a position adjacent to it, but not any closer to Johnson. (Docket Entry No. 118-3 at

19:24:03). Johnson commands, “Passenger, stop!” Thomas stops, and shouts, “Kill me!” (Id. at

19:24:14).

While Johnson has his weapon and flashlight pointed at Thomas, who has not moved, Bruss

gives commands to Gray, who is out of the car with his hands up and is complying with Bruss’s

commands. Bruss orders Gray to “lay down on the ground!” Gray complies. Bruss shouts, “If

you try anything funny, you’re getting dog bit.” (Id. at 19:24:23). Bruss tells the now-prone Gray,

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“Put your hands out to your sides,” which Gray does. (Id. at 19:24:27). Bruss then tells Johnson,

“I’ve got the driver at gun point.” (Id. at 19:24:31).

Johnson moves back to the driver’s side of his patrol car and shouts at Thomas, “Go to the

ground. Go to the ground, now! Face down. Keep your arms away from your thighs.” (Id. at

19:24:35). Thomas complies. Gray is still prone with his arms outstretched, but his head is slightly

raised. Bruss tells him to put his head down and stop moving, although Gray’s body is not moving.

Bruss yells, “This isn’t a game my man. This is how bad things happen. You need to comply with

what I’m telling you to do. We’ve been told you’ve got a gun. Until we determine that you don’t,

this is what’s going to happen. You’re going to follow my directions.” (Id. at 19:24:53).

The dog is still agitated and whining loudly. Johnson says to the dog, “Watch him, watch

him, watch him!” (Id. at 19:25:11). Thomas has not moved. Bruss tells Gray that he will be bitten

unless he places his hands at his sides. Gray’s hands appear to be in front of him. (Id. at 19:25:28).

Johnson shouts, “Put your fucking hands to your sides, now!” (Id. at 19:25:34). The dog lunges,

pulling Johnson forward. (Id. at 19:25:36). Johnson says, “Fucking do it! Try me, try me,

motherfucker!” (Id.). The dog then struggles further, turning Johnson away from both suspects

and to the side of his own squad car. After a few seconds, Johnson regains his position facing the

suspects’ car. (Id. at 19:25:42). Bruss again yells at Gray that he needs to comply with the officers’

orders until they confirm he does not have a gun. (Docket Entry No. 118-4 at 19:25:41).

Johnson directs Bruss to take Gray into custody. Gray complies with Bruss’s instructions;

he stands, turns away from the officers, and walks backwards until he is ordered to get on his knees

in front of Bruss and another officer, Deputy Asli Tuzun. The dog lunges indiscriminately.

(Docket Entry No. 118-3 at 19:26:40). While Tuzun was handcuffing Gray, Bruss directed Tuzun

to “search him real good.” (Docket Entry No. 118-4 at 19:26:39).

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Schultz arrived on the scene at 19:25:25 and positioned himself behind Johnson. (Docket

Entry No. 118-12 at 19:25:25; Docket Entry No. 118-5 at 19:25:39). Schultz pointed his taser gun

at Thomas. (Docket Entry No. 118-5 at 19:25:49). Thomas has not said anything further

throughout this process and remains face down on the ground with his arms outstretched. Schultz

shouts, “You in the gray [Thomas], step up, do it now!” (Docket Entry No. 118-3 at 19:27:03).

Schultz repeats his order. Johnson shouts, “This is your last chance, or I’m gonna send the dog

after you.” (Id. at 19:27:11). Thomas begins to raise his head. The officers shout their orders

again. Thomas appears to move his lower body slightly. (Id. at 19:27:16). Johnson shouts, “Last

warning or I’m gonna send the dog.” (Id. at 19:27:20).

A few seconds later, Johnson lets the dog go. The dog immediately races to Thomas, who

is still face down on the ground, and latches onto his outstretched arm. (Id. at 19:27:25). Johnson

approaches, yelling, “Think you’re fucking around, don’t you.” (Id.). Although Thomas’s arm is

in the dog’s clamped jaws, Johnson commands him to put his hands behind his back. Schultz

remained behind Johnson. (Docket Entry No. 118-5 at 19:27:24). Bruss moved to check the car

for weapons or other threats. (Docket Entry No. 118-4 at 19:27:26; Docket Entry No. 118-8 ¶ 14).

At 19:27:37, Bruss concluded that the vehicle was clear. (Docket Entry No. 118-4 at 19:27:37).

Bruss then watches the dog bite Thomas for the next twenty seconds, before commenting, “As

soon as he gets you handcuffed, he’ll get the dog off you.” (Id. at 19:28:01). Johnson succeeds in

cuffing Thomas and gets the dog to release the bite. (Docket Entry No. 118-3 at 19:28:06). Bruss

told Johnson to take the dog off the bite. (Docket Entry No. 118-4 at 19:28:06–28:11). Bruss

orders the now-handcuffed Thomas to “roll onto your stomach; you ain’t seen nothing yet,” and

Johnson compliments the dog, secures the dog inside his car, and gives a jubilant cry. (Id. at

19:28:13).

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Schultz contacted the police dispatch to request an ambulance for a dog bite. (Docket Entry

No. 118-5 at 19:28:27). Johnson then searched the car for a gun. (Docket Entry No. 118-3 at

19:29:08). Johnson asked Bruss to ask Thomas where the gun was; Schultz repeated Johnson’s

request to Bruss; and Johnson talked to Tuzun about how dispatch acquired information about a

gun on the scene. (Id. at 19:29:08–30:56; Docket Entry No. 118-5 at 19:29:26). Tuzun responded

that it was a dispatch miscommunication because the reportee “said they [the suspects] never

brandished the weapon.” (Docket Entry No. 118-3 at 19:30:59). Johnson asked Bruss to confirm

that dispatch said the suspects were armed, and Bruss replied, “I specifically asked, she said the

suspects.” (Id. at 19:31:29). Bruss’s body camera does not capture him asking dispatch whether

the suspects were armed. (Docket Entry No. 118-4 at 19:19:23–23:25).

II. The Legal Standards

A. Motion for Summary Judgment

“Summary judgment is appropriate where ‘the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Springboards to Educ., Inc. v. Pharr-San Juan-Alamo Indep. Sch. Dist., 33 F.4th 747, 749 (5th

Cir. 2022) (quoting FED. R. CIV. P. 56(a)). “A fact is material if it ‘might affect the outcome of

the suit.’” Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). “A factual dispute is genuine ‘if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477

U.S. at 248). When considering a motion for summary judgment, the court “must consider all

facts and evidence in the light most favorable to the nonmoving party” and “must draw all

reasonable inferences in favor of the nonmoving party.” Ion v. Chevron USA, Inc., 731 F.3d 379,

389 (5th Cir. 2013).

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The moving party “always bears the initial responsibility of informing the district court of

the basis for its motion” and pointing to record evidence demonstrating that there is no genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. CIV.

P. 56(c). “When ‘the non-movant bears the burden of proof at trial,’ a party moving for summary

judgment ‘may merely point to the absence of evidence and thereby shift to the non-movant the

burden of demonstrating by competent summary judgment proof that there is a dispute of material

fact warranting trial.’” MDK Sociedad De Responsabilidad Limitada v. Proplant Inc., 25 F.4th

360, 368 (5th Cir. 2022) (alteration adopted) (quoting Nola Spice Designs, L.L.C. v. Haydel

Enterprises, Inc., 783 F.3d 527, 536 (5th Cir. 2015)).

“Once the moving party has initially shown that there is an absence of evidence to support

the non-moving party’s cause, the non-movant must come forward with specific facts showing a

genuine factual issue for trial.” Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 581 (5th Cir. 2021)

(quotation marks and quoting reference omitted). “[A] party cannot defeat summary judgment

with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Jones v.

Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 368 (5th Cir. 2021) (quotation marks and quoting

reference omitted). Rather, the nonmovant “must identify specific evidence in the record and

articulate the precise manner in which that evidence supports [its] claim.” Shah v. VHS San

Antonio Partners, L.L.C., 985 F.3d 450, 453 (5th Cir. 2021) (alteration adopted) (quotation marks

and quoting reference omitted).

The movant is entitled to judgment as a matter of law when “the nonmoving party has

failed to make a sufficient showing on an essential element of [its] case with respect to which [it]

has the burden of proof.” Celotex Corp., 477 U.S. at 323. But “[i]f ‘reasonable minds could differ’

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on ‘the import of the evidence,’ a court must deny the motion.” Sanchez v. Young County, 956

F.3d 785, 791 (5th Cir. 2020) (quoting Anderson, 477 U.S. at 250).

B. Motion for Default Judgment

To obtain a default judgment under Federal Rule of Civil Procedure 55(b), “the plaintiff

must submit evidence showing that the defendant has been properly served with the summons,

complaint, and the default judgment motion.” Harris Cnty. Water Control v. Philadelphia Indem.

Ins. Co., No. H-19-cv-1755, 2019 WL 5191129, at *1 (S.D. Tex. Oct. 15, 2019); see James Avery

Craftsman, Inc. v. Sam Moon Trading Enters., Ltd., No. 16-CV-463, 2018 WL 4688778, at *3

(W.D. Tex. July 5, 2018) (citing Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d

646, 649–51 (5th Cir. 1988)); Hazim v. Schiel & Denver Book Grp., No. H-12-1286, 2013 WL

2152109, at *1 (S.D. Tex. May 16, 2013); S.D. Tex. Local R. 5.5 (requiring that a default judgment

motion “must be served on the defendant-respondent by certified mail (return receipt requested)”).

Absent proper service, a district court does not have personal jurisdiction over the defendant, and

no valid default judgment can issue. See Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804

F.2d 311, 314 (5th Cir. 1986).

“A default judgment is unassailable on the merits but only so far as it is supported by the

well-pleaded allegations, assumed to be true.” Wooten v. McDonald Transit Assocs., Inc., 788

F.3d 490, 496 (5th Cir. 2015) (quoting Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F.2d

1200, 1206 (5th Cir. 1975)). “There must be a sufficient basis in the pleadings for the judgment

entered.” Nishimatsu, 515 F.2d at 1206. For the court to enter default judgment, the complaint

must satisfy Federal Rule of Civil Procedure 8. See Wooten, 788 F.3d at 497–98. “On appeal, the

defendant, although he may not challenge the sufficiency of the evidence, is entitled to contest the

sufficiency of the complaint and its allegations to support the judgment.” Nishimatsu, 515 F.2d at

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1206. “Generally, the entry of default judgment is committed to the discretion of the district

judge.” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quoting Mason v. Lister, 562 F.2d 343,

344 (5th Cir. 1977)).

III. Analysis

As explained in detail below, the court denies summary judgment as to all parties because

there are genuine factual disputes material to determining qualified immunity. Thomas’s motion

for default judgment is denied without prejudice because he failed to comply with the district’s

local rules for serving a default-judgment motion.

A. Motions for Summary Judgment

This court previously denied the defendants’ motion to dismiss based on a review of a

video captured by Johnson’s bodycam. (Docket Entry No. 24). Based on that review, this court

concluded that Thomas had sufficiently alleged that Bruss and Schultz were liable under 18 U.S.C.

§ 1983 because they took no action to stop Johnson’s instruction to “a police dog to attack a person

suspected of making excessive noise, lying on the ground, with his hands extended before him and

without visible access to any weapon.” (See id. at 15). The question on these cross-motions for

summary judgment is whether, after discovery, there are undisputed facts in the record that entitles

either party to judgment as a matter of law. The parties’ motions, their briefs, and a review of the

record show that genuine factual disputes material to determining qualified immunity preclude

summary judgment for any party.

To prevail on a claim for damages against state officials for violations of constitutional

rights under § 1983, a plaintiff must prove that the defendant (1) violated a constitutional right (2)

that was “clearly established” at the time of the alleged misconduct. Sligh v. City of Conroe, 87

F.4th 290, 298 (5th Cir. 2023) (per curiam) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

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This court has discretion to skip directly to the “clearly established” inquiry. See Pearson, 555

U.S. at 242; Trent v. Wade, 776 F.3d 368, 377 (5th Cir. 2015). “[A] defendant cannot be said to

have violated a clearly established right unless the right’s contours were sufficiently definite that

any reasonable official in the defendant’s shoes would have understood that he was violating it.”

Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). “Three limitations on the legal authorities that

plaintiffs may use to advance their claims ensure that the governing law is, in fact, ‘clearly

established’ before a plaintiff may avoid a qualified-immunity defense: the substance of the law

on which the plaintiff may rely, the jurisdiction of the case law the plaintiff may invoke, and the

timing of the issuance of that case law.” Gervin v. Florence, 139 F.4th 1236, 1260–61 (11th Cir.

2025).

First, a plaintiff must rely on (1) favorable case law with materially indistinguishable facts;

(2) a broad, legal principle sufficiently applicable to the facts of the case to place the statutory or

constitutional question beyond debate; or (3) conduct so egregious and obviously illegal that no

case law is needed. See Cooper v. Brown, 844 F.3d 517, 524 (5th Cir. 2016); see also Gervin, 139

F.4th at 1261. Second, the plaintiff must rely on case law from controlling authority, such as the

U.S. Supreme Court or the Fifth Circuit, or a robust consensus of cases of persuasive authority.

Morgan v. Swanson, 659 F.3d 359, 382–83 & n.11 (5th Cir. 2011) (en banc); Cooper, 844 F.3d at

524. Third, the plaintiff must rely on cases issued before the alleged misconduct occurred—here,

February 2021. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (explaining that courts must

assess “whether that law was clearly established at the time an action occurred”).

In this case, the relevant principles were clearly established before the alleged misconduct.

Bystander officers are liable if they “knew [their] fellow officer was violating an individual’s

constitutional rights.” Joseph ex rel. Joseph v. Bartlett, 981 F.3d 319, 343 (5th Cir. 2020); see

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Austin v. City of Pasadena, 74 F.4th 312, 331 (5th Cir. 2023) (confirming that “clearly established

law . . . provides fair notice to officers of their duty to intervene, rather than to acquiesce, in the

unconstitutional conduct of others” (citing Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995))).

The Fifth Circuit frames this test as having four elements, explaining that an officer is “liable for

failure to intervene when that officer: (1) knew a fellow officer was violating an individual’s

constitutional rights, (2) was present at the scene of the constitutional violation, (3) had a

reasonable opportunity to prevent the harm but nevertheless, (4) chose not to act.” Joseph, 981

F.3d at 343 (citing Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013)).

There are genuine disputes of material fact that preclude summary judgment for any party.

1. Knowledge of Johnson’s Use of Excessive Force and Presence at the

Scene

A reasonable jury could conclude either that Bruss and Schultz knew, or that they did not

know, that Johnson was violating Thomas’s constitutional right to be free of excessive force under

clearly established law. The record is clear that Johnson used constitutionally excessive force on

Thomas. See Graham v. Connor, 490 U.S. 386, 396 (1989) (identifying the factors used to assess

whether an officer used excessive force). The court’s conclusion at the motion to dismiss stage

that the pleadings sufficiently alleged that Johnson used clearly excessive force is supported by

the summary-judgment record. (Docket Entry No. 24 at 12). Thomas was not suspected of

committing a serious crime, but only of making noise in front of a house. The complainant’s call

to dispatch reported that two men were screaming and yelling in front of his home; it was the

complainant who had the firearm. (Docket Entry No. 118-1 at 5). When Johnson released his dog,

Thomas posed no threat to any officer. He was prone, with his arms outstretched, trying to comply

with officers’ shouted commands, with no sign of access to a firearm. The Fifth Circuit has

“consistently held that a suspect does not pose an immediate threat where he unambiguously

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surrenders by, for example, placing his hands in the air and complying with the officers’

commands.” Escobar v. Montee, 895 F.3d 387, 394 (5th Cir. 2018). Thomas was lying prone and

still on the ground throughout the entire encounter, with his hands and legs spread, with no visible

access to a weapon, and without making any visible attempt to access any potentially hidden

weapon.

The parties dispute whether Thomas was immediately complying with the officer’s request

to stand up. But the officers’ response was to escalate the situation by screaming at Thomas,

despite no evidence of active resistance or access to a firearm. At most, Thomas passively resisted

the officers’ order, which is not a license to use physical force. See, e.g., Joseph, 981 F.3d at 333–

42 (resorting to a taser or nightstick without attempting to use physical skill, negotiation, or even

commands is excessive); Cooper, 844 F.3d at 523 (holding that a suspect who placed both his

hands on his head rather than raise them as the officer commanded could “hardly be characterized

as ‘active resistance’”); Trammell v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017) (holding that “it

was objectively unreasonable for several officers to tackle an individual who was not fleeing, not

violent, not aggressive, and only resisted by pulling his arm away from an officer’s grasp”). The

summary judgment record did not change the underlying fact that “Thomas had been silently

laying on the ground—as he was instructed to do—for several minutes” before the defendants

asked him stand up and Johnson released the dog to attack him. (Docket Entry No. 24 at 12; see

Docket Entry No. 118-3 at 19:27:03–27:24 (showing that Johnson released the dog twenty seconds

after the officers ordered Thomas to stand up from his prone position and he did not immediately

comply)).

Bruss and Schultz knew these facts. Bruss arrived at the scene at 19:23:26, four minutes

before Johnson released the dog. (Docket Entry No. 118-11 at 19:23:26; Docket Entry No. 118-3

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at 19:27:24). Schultz arrived on the scene at 19:25:25, two minutes before Johnson released the

dog. Schultz positioned himself behind Johnson, holding an armed taser. He saw Thomas lying

prone, with his arms outstretched. (Docket Entry No. 118-12 at 19:25:25; Docket Entry No. 118-

5 at 19:25:39). A reasonable jury could find that the officers had enough time to realize that using

a police dog to attack a passively resisting suspect, clearly not in a position to or attempting to flee

or shoot, was clearly excessive. For example, in Austin, the Fifth Circuit denied qualified

immunity on a bystander-liability claim because when the defendant officer entered the jail cell,

he “immediately began assisting the officers in restraining [the victim] in a prone position . . .

without first determining the facts from [his] supervisor.” Austin, 74 F.4th at 331.3 Or in Timpa,

the court held that a bystander officer who earlier left the scene but “was observing [a suspect] for

the critical half-minute when [the suspect] suddenly lost consciousness” could be held liable on a

bystander basis. Timpa v. Dillard, 20 F.4th 1020, 1039 (5th Cir. 2021).4 Arriving late to a scene

does not, under clearly-established law, automatically relieve an officer of bystander liability.

Even if Bruss and Schultz did not know what had occurred before or just after Thomas got on the

ground, a reasonable jury could find that, after seeing Thomas prone, weaponless, and at most

passively resisting, the officers saw enough to know that releasing the attack dog to bite Thomas

was excessive force under clearly-established law.

Bruss and Schultz respond with arguments that either Johnson did not use excessive force

under clearly-established law or that Bruss and Schultz knew different facts and therefore did not

3 Although Austin was issued in 2023, it held that a jury could find that the officer’s 2019 conduct violated

clearly established law from 1995 and 2013. See 74 F.4th at 319–20, 331–32. Thomas may rely on Austin

to defeat summary judgment on qualified immunity in this case.

4 Although Timpa was issued in December 2021, it held that a jury could find that officers’ 2016 conduct

violated clearly established law from 1995. See 20 F.4th at 1025, 1038–39. Thomas may rely on Timpa

to defeat summary judgment on qualified immunity in this case.

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know Johnson was using excessive force. None warrant summary judgment because they at most

create genuine factual disputes material to determining qualified immunity.

First, Bruss and Schultz argue that canine force was reasonably necessary to secure

Thomas, who was a flight risk. (Docket Entry No. 124 at 12). This argument is based on

Schwartz’s testimony that Thomas appeared to “see directionally where he was at and what his

surroundings were and where we were” so that he could “look for a way to get away.” (Docket

Entry No. 124-2 at 362:15–63:1). But the video footage and other summary-judgment evidence

create a dispute as to what Schwartz saw and whether his conclusion that Thomas was looking for

a way to escape rather than looking to see where the officers were located was objectively

reasonable. The defendants also argued that Thomas stated that he would not get up, (Docket

Entry No. 124-2 at 366:13–17), and Thomas testified that he could not get up, (Docket Entry No.

124-3 at 75:18–77:12). A jury could watch the video footage, review the balance of the summary-

judgment testimony, and discount Schwartz’s theory.

A jury could conclude that Thomas was not a flight risk; the video footage showed him

lying in a prone position with his arms outstretched, making it hard for him even to get to a standing

position. The officers testified that Thomas was not trying to stand up from his prone position. A

jury could also view the video and find that Thomas was not attempting to ascertain his

surroundings in an attempt to escape. Thomas is prone for several minutes and made little to no

movement during that time. He only began to move once the officers commanded him

aggressively and under the threat of a dog attack to stand. A jury could find that the officers could

not reasonably view Thomas as a flight risk.

Second, the defendants argue that Thomas posed a threat to the officers because he made

several incoherent statements, including some about wanting the police to kill him. (Docket Entry

15

No. 124 at 4; Docket Entry No. 128 at 5). But a suspect’s mental instability or apparent suicidal

intent does not automatically make that suspect a threat to officers or the public. In Cole, the Fifth

Circuit denied qualified immunity because a reasonable jury could have found that the suspect, a

suicidal teenager with a gun, “made no threatening or provocative gesture to the officers and posed

no immediate threat to them.” Cole v. Carson, 935 F.3d 444, 455 (5th Cir. 2019) (en banc).

Summary judgment was not appropriate even though the officers knew that the suspect had

“already encountered fellow officers and walked away from them with his gun to his head, non-

responsive, but without aggressive action.” Id. By comparison, Thomas posed much less of a

threat. The defendants’ timeline concedes that Thomas last made any allegedly threatening or

disconcerting statements more than two minutes before Johnson released his dog to attack Thomas.

(Docket Entry No. 124 at 4). Thomas was silent and prone for the two minutes before he was

attacked. To be sure, Thomas did not immediately comply with the officers’ request to stand in

the twenty seconds before Johnson released his dog to attack Thomas.5 But as discussed, such

passive resistance does not justify the use of canine force. See, e.g., Joseph, 981 F.3d at 333–42;

Trammell, 868 F.3d at 341; Cooper, 844 F.3d at 523.

Third, the officers argue that they reasonably believed that Thomas had a gun, justifying

the use of canine force. Even if a gun had been visible and within Thomas’s access, “merely

having a gun in one’s hand does not per se equate to dangerousness or a threat.” Rainwater v.

5 There is a factual dispute as to whether Thomas outright refused to comply with the officers’ orders to

stand or whether he was trying to comply but ultimately did not or could not do so. The defense argues

that Thomas can be heard saying that he would not get off the ground. (Docket Entry No. 118-3 at

19:27:14). The officers argue that their understanding was that Thomas was outright refusing to comply

with their order. (Docket Entry No. 124-2 at 366:13–17, 369:2–5). Thomas testified in his deposition that

he was saying he could not stand up because he had injured his leg playing basketball and wanted assistance

standing. (Docket Entry No. 124-3 at 75:18–77:12). Whatever the resolution of this dispute, Thomas’s

refusal to stand was at most passive resistance that did not justify canine force in response.

16

Sikes, 2018 WL 1916566, at *4 (N.D. Tex. Apr. 23, 2018) (citing Graves v. Zachary, 277 F. App’x

344, 348 (5th Cir. 2008));6 see, e.g., Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996) (denying

summary judgment in a deadly-force suit because of factual disputes over whether the officer ever

saw the suspect holding a gun, and, if so, whether the suspect ever pointed the gun at the officer

or turned to face the officer); Cole, 935 F.3d at 455 (similar). And Thomas did not even have a

gun in his hand; he was prone “in a surrender position” and “stood stationary in the officers’ line

of sight.” Amador v. Vasquez, 961 F.3d 721, 729 (5th Cir. 2020) (concluding that qualified

immunity was inappropriate for a deadly-force claim because a jury could find that the suspect

was not a threat).

There is a genuine factual dispute as to whether it was reasonable for the officers to believe

that Thomas had a firearm. The video footage and incident logs show that dispatch told the officers

that the reportee, not the suspects, had a firearm. (See, e.g., Docket Entry No. 118-3 at 19:20:47

(“Update: reportee has his weapon out.”); Docket Entry No. 118-2 at 5 (“reportee . . . had his

firearm in his possession”); Docket Entry No. 118-7 at 291:9–10 (“It was confirmed that the

homeowner had a weapon by the homeowner.”); Docket Entry No. 115-3 at 5 (confirming twice

that “RPT HAS WEAPON OUT”)). The officers did not see a gun on Thomas’s person or, when

he was lying face down on the ground, within his access. The officers did not find a gun on

Thomas or Gray or in their car. (See Docket Entry No. 118-2 at 10–11 (reporting that the car was

cleared and the suspects were secured)). There is some evidence that the officers reasonably

believed that Thomas had a gun. Bruss gave deposition testimony that dispatch had reported to

him that the suspects had a gun; Bruss repeated at the scene his belief that the suspects had a gun;

6 Graves recites legal principles that were clearly established in 2008. Roque v. Harvel, 993 F.3d 325, 337–

38 (5th Cir. 2021).

17

and the person who called dispatch had pulled his own weapon. (Docket Entry No. 118-4 at

19:25:00; Docket Entry No. 118-6 at 214:20–15:2; Docket Entry No. 118-7 at 291:24–25 (“Why

else would the homeowner pull a weapon on them?”)).7

A jury could credit, or decline to credit, each circumstance. Bruss’s body camera footage

includes no statement from dispatch that the suspects had weapons; Bruss heard only that the

complainant’s weapon was out and later secured. (Docket Entry No. 118-4 at 19:19:23–23:25;

Docket Entry No. 118-11 at 19:19:20–23:25). If a jury found that Bruss was never told that the

suspects were armed, as the video evidence reflects, the jury could also find that Bruss lacked a

reasonable basis to believe that Thomas had a firearm. The fact that the person who called 911

had brandished his gun and then put it away does not support a reasonable inference that the

suspects had weapons. See Cooper, 844 F.3d at 523 n.2 (holding that, although a suspect being

“unsearched” may “sometimes be a relevant fact—for example, where a plaintiff is suspected of

committing a violent crime—it is not enough, standing alone, to permit a reasonable officer to

characterize a suspect as an immediate threat”).

On the summary judgment record, a reasonable jury could find (or not find) that Bruss and

Schultz knew that Johnson was violating Thomas’s right to be free of excessive force.

McWashington v. Rodgers is instructive. No. 4:24-cv-2153, 2025 WL 1124752, at *7–8 (S.D.

7 The defendants rely on two additional pieces of evidence in support of their reading of the record:

Johnson’s case supplemental report that says dispatch reported that the suspects had weapons and dispatch’s

designation of the case as a priority-one weapon disturbance. These facts do not alter the genuine dispute

of fact on the reasonableness of the officer’s belief that Thomas had a weapon. Johnson entered his case

supplemental report the next day, (Docket Entry No. 118-2 at 7), and a jury could find that Johnson only

thought that the suspects had weapons because Bruss said so, (Docket Entry No. 118-3 at 19:29:08–30:56;

Docket Entry No. 118-4 at 19:31:29), without a reasonable basis to say so, (id. at 19:19:23–23:25). The

dispatch’s designation is equally equivocal because the officers did not have access to that information,

Cole, 935 F.3d at 456, and because the designation was entered after dispatch reported that the reportee,

not the suspects, had a gun, (Compare Docket Entry No. 115-3 at 2 (logging a “disturbance weapon” at

19:17:43), with id. at 5 (logging “RPT HAS WEAPON OUT” at 19:16:58)).

18

Tex. Apr. 15, 2025). In that case, the court denied qualified immunity and concluded that the

bystander officers knew that the primary officer “allowed the dog to thrash at Plaintiff’s arm for

roughly thirty seconds; all the while, Plaintiff remained still and silent with nothing visibly in his

hands.” Id. at *7. The plaintiff was suspected of a DUI at worst and a minor traffic violation at

most. Id. The officers had some reason for concern because the plaintiff was in the car at the time

of the dog attack and could have accessed a weapon that the officers could not see. Id. But the

officers had seen the plaintiff’s hands at an earlier point and knew that he did not have a weapon.

Id. Clearly established law held bystander officers liable for failing to intervene as a police dog

was “continuously bit[ing]” the plaintiff “even though” he “was not actively resisting.” Id. at *9.

The facts here are similar. Johnson’s dog bit Thomas’s arm for about fifty seconds, longer

than the thirty seconds in McWashington. Thomas was lying on the ground, face down, with arms

outstretched both before and after the dog bit him, similar to the lack of resistance in

McWashington. Although Thomas was suspected at most of making loud noises while holding a

weapon, a jury could reasonably find that Thomas did not have a weapon and was merely making

too much noise outside a home. Such a nuisance is similar in severity to the plaintiff’s traffic

violation in McWashington. As in McWashington, a jury could find that the officers knew that

Thomas did not pose a threat because they were not told he had a gun, had little circumstantial

evidence to believe he had a gun, and, at the time of the dog bite, knew that he had been lying face

down on the ground with his arms outstretched for several minutes. In both cases, the underlying

principle in Cooper—that a prolonged dog bite after a suspect submitted and posed no threat is

excessive—clearly established for each officer at the scene their knowledge of a constitutional

violation. See McWashington, 2025 WL 1124752, at *7–9 (citing Cooper, 844 F.3d at 521–24).

19

The defendants argue that this court’s and McWashington’s reliance on Cooper is

inappropriate because the Fifth Circuit held in Sligh that Cooper cannot clearly establish bystander

liability. (Docket Entry No. 124 at 13). The defendant’s maximalist reading of Sligh is not

persuasive. In Sligh, the Fifth Circuit rejected the plaintiff’s attempt to establish bystander liability

through Cooper, calling the case “wholly inapplicable to a bystander liability theory” because it

“concerned only the conduct of the specific officer who controlled the dog.” 87 F.4th at 301.

Although the panel used expansive language in rejecting the plaintiff’s argument, the holding is

more precise. The panel held that Cooper did not apply to bystander liability because there was

“no discussion in Cooper of whether another officer on site would be required to intervene as a

bystander.” Id. The focus on whether the bystander officer would be required to intervene, as

opposed to whether the bystander officer knew that the dog handler was using excessive force,

suggests that Cooper cannot be used to clearly establish that the officers violated the third and

fourth elements of a bystander-liability claim: that the bystander “had a reasonable opportunity to

prevent the harm” but “chose not to act.” Joseph, 981 F.3d at 345. Sligh does not foreclose a

plaintiff’s reliance on Cooper to establish the first two elements: that the bystander officers knew

that the officer handling the police dog violated the plaintiff’s constitutional rights because the

bystanders were at the scene when the constitutional violation occurred. See id.

Adopting the officers’ reading of Sligh would conflict with other Fifth Circuit cases. The

Fifth Circuit has repeatedly allowed plaintiffs to establish the first element of a bystander-liability

claim by assessing whether the primary officer violated clearly-established law and whether the

bystander officer knew the facts material to the primary officer’s clearly-established constitutional

violation. See, e.g., Hale, 45 F.3d at 919; Timpa, 20 F.4th at 1035–39; Austin, 74 F.4th at 330–

32. In this case, Johnson violated Cooper’s recitation of clearly-established legal principles on the

20

use of excessive force, and a jury could conclude that Schultz and Bruss witnessed enough at the

scene to know that Johnson violated Cooper.

This court’s and McWashington’s reliance on Cooper for the limited purpose of showing

the first two elements of Thomas’s bystander-liability claim is consistent with both Sligh and other

Fifth Circuit precedent. Genuine factual disputes material to determining the first two elements of

the bystander-liability claim preclude summary judgment.

2. Reasonable Opportunity to Intervene and Choice Not To Intervene

Thomas can prove the third and fourth prongs of a bystander-liability claim on this record

under clearly-established law. Following Sligh, this court cannot presume that officers had a duty

to intervene solely based on the fact that the officer controlling the dog used excessive force. 87

F.4th at 301. Liability depends on whether the bystander officers had a reasonable opportunity to

intervene but chose not to do so. White v. Calvert, No. H-20-cv-4029, 2021 WL 6112791, at *17

(S.D. Tex. Dec. 27, 2021) (citing Whitley, 726 F.3d at 646). Fifth Circuit case law clearly

establishes three principles that guide a court’s determination as to whether a bystander officer had

a reasonable opportunity to intervene.

First, liability will attach to bystander officers who witness a constitutional violation and

acquiesce in that violation, encourage it to continue, or assist in its execution. In Austin, the

bystander officers were liable for helping other officers use excessive force in tasing and

restraining a seizing detainee, 74 F.4th at 331; in Hale, the bystander officers were liable because

they “stood by and laughed” as the offending officer used excessive force, 45 F.3d at 919; and in

Timpa, the bystanders were liable because they “observed Timpa suddenly lose consciousness,

expressed surprise, and then made jesting comments,” 20 F.4th at 1039.

21

Second, liability will attach if a bystander officer can, but does not, object to the

unconstitutional conduct. In Austin, the court held that clearly established law allowed a jury to

find that officers who tased and restrained a seizing detainee “acquiesced in the constitutional

violations, both by not objecting and by participating in similar conduct.” 74 F.4th at 331.

Similarly, in Timpa, the court held that a jury could find that a bystanding officer violated Timpa’s

clearly-established constitutional rights, even though the officer returned to his patrol car to check

Timpa’s license, because the bystanding officer “was observing Timpa for the critical half-minute

when Timpa suddenly lost consciousness.” 20 F.4th at 1039. Officers have more than a duty to

physically intervene.

Third, an officer’s admission that he or she had an opportunity to intervene, but did not do

so, can establish a genuine factual dispute material to determining a summary-judgment motion.

In Timpa, the court concluded that bystander officers had a reasonable opportunity to intervene in

part because they conceded that they had the opportunity to do so. See 20 F.4th at 1039 (“The

Officers do not contend that Vasquez or Dominguez lacked reasonable opportunity to intervene.”).

And in Carroll v. Ellington, the Fifth Circuit concluded that there was a genuine factual dispute

material to determining whether the bystander officer had the opportunity to intervene to prevent

continued strikes on a detainee because that officer admitted “at trial that he made the call to

emergency medical services in which he stated” that the detainee was unresponsive on the floor.

800 F.3d 154, 177–78 (5th Cir. 2015). Under clearly-established law, whether an officer has a

reasonable opportunity to intervene is a fact-intensive question, on which officers’ admissions are

highly probative.

Applying these principles to Thomas’s case leads to three conclusions. First, neither

bystander officer is responsible for Johnson’s initial decision to let the dog loose to attack Thomas.

22

The record shows that Bruss and Schultz could have reasonably believed that Johnson was

threatening to release his dog as a scare and de-escalation tactic, but that Johnson did not intend to

do so unless Thomas tried to resist arrest or flee. Both experts testified that such threats are normal

canine tactics. (Docket Entry No. 118-17 at 171:2–71:7; Docket Entry No. 118-16 at 13; Docket

Entry No. 118-13 at 156:14–25). Based on that reasonable belief, it was also reasonable for Bruss

and Schultz not to object to Johnson’s threat to release the dog. Although Johnson’s decision to

release the dog was a clear constitutional violation, (see Docket Entry No. 24 at 9–12, 15), Bruss

and Schultz may not have reasonably anticipated that Johnson would decide to make good on his

threats to have the dog attack Thomas.8 The facts are similar to White v. Calvert, in which this

court found no bystander liability under clearly-established law, because the bystander officer who

requested canine assistance could not have anticipated that the dog would bite the plaintiff, much

less do so for an unreasonable period of time. 2021 WL 6112791, at *15.

Second, a jury could find (or not find) Bruss liable for acquiescing to and encouraging the

dog to keep his bite hold on Thomas while he was clearly subdued and unable to flee or resist, for

almost forty seconds. “Under the facts in this record, permitting a dog to continue biting a

compliant and non-threatening arrestee is objectively unreasonable.” Cooper, 844 F.3d at 524;

accord Pena v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018); White, 2021 WL

6112791, at *11–13; McWashington, 2025 WL 1124752, at *7–8. In such a case, an officer may

not wait “to release the [dog] bite until after he [] finishe[s] handcuffing” an already subdued

8 Bruss testified that he had a reasonable opportunity to tell Johnson to not release the dog or to put the dog

away. (Docket Entry No. 115-5 at 271:15–23). Although this concession is probative of Bruss’s ability to

intervene, the undisputed facts in the record support finding that it was reasonable for Bruss to believe that

Johnson was threatening Thomas with canine force to frighten Thomas into compliance, but that Johnson

did not intend to carry out that threat. See, e.g., Muniz v. Davis, No. 13-cv-666-LY, 2014 WL 4259385, at

*7 (W.D. Tex. Aug. 27, 2014) (finding that the threatened use of a taser, without actual use, does not

constitute excessive force); Trevino v. Avalos, No. 1:24-cv-046, 2025 WL 1393961, at *4 (S.D. Tex. May

14, 2025) (same).

23

individual. Cooper, 844 F.3d at 521, 524–25. A jury could find that Bruss acquiesced in or

encouraged such conduct. See, e.g., Austin, 74 F.4th at 331; Hale, 45 F.3d at 919. Bruss saw

Johnson subdue and restrain Thomas at 19:27:31, nearly 45 seconds before Johnson told the dog

to release his bite. (Docket Entry No. 118-4 at 19:27:31–28:15).

The defendants respond that Bruss did not have an opportunity to intervene because he

went to check the vehicle for other suspects. (Docket Entry No. 118 at 15; Docket Entry No. 128

at 9). But in his deposition, Bruss admitted that he had a reasonable opportunity to tell Johnson to

remove the dog from the bite once Thomas had been subdued. (Docket Entry No. 115-5 at 271:9–

72:22). At a minimum, a reasonable jury could find that Bruss stood by and witnessed the “critical

half-minute when” the dog continued biting the subdued Thomas. Timpa, 20 F.4th at 1039. After

clearing the vehicle, Bruss articulated the clearly incorrect legal rule: “As soon as he gets you

handcuffed, he’ll get the dog off you.” (Docket Entry No. 118-4 at 19:27:58). Bruss stood by,

even after he had cleared the car, for about 14 to 20 seconds, during which Johnson was on top of

Thomas and the dog continued to bite and pull at Thomas’s arm. (Id. at 19:28:12). Only after

Thomas was handcuffed did Bruss instruct Johnson to take the dog off the bite. (Id. at 19:28:11).

Bruss immediately followed his comment with a taunt, telling a handcuffed Thomas, still lying on

his back and side, that he had to roll over to his stomach because he “ain’t seen nothing yet.” (Id.

at 19:28:17). On these facts, a jury could find (or not find) that Bruss not just failed to object to,

but participated in, Austin, 74 F.4th at 331, encouraged, or even jeered at a clear constitutional

violation, Hale, 45 F.3d at 919, despite an admission that he a had a reasonable opportunity to

prevent the violation, Timpa, 20 F.4th at 1039.

Third, a jury could find (or not find) Schultz liable for acquiescing to the dog’s excessively

long bite of Thomas. Schultz, like Bruss, admitted that he had the opportunity to object to the

24

prolonged bite. See, e.g., Timpa, 20 F.4th at 1039; Carroll, 800 F.3d at 177–78. Schultz testified

in his deposition that he could have objected and asked Johnson to remove the dog from the bite.

(Docket Entry No. 115-6 at 307:14–18 (“Q: Could you have asked or suggested that Robert

Johnson at any point remove the dog from the bite? A: If you’re asking could I have, yes,

absolutely I could have.”)). Video footage corroborates Schultz’s admission. Schultz stood behind

Johnson and “saw what [Johnson] saw.” McWashington, 2025 WL 1124752 at *9. Schultz stood

mere feet away for the approximately 45 seconds that the dog was biting Thomas and the 40

seconds that Johnson was straddling the subdued Thomas while the dog continued to bite and pull

at his arm. (Docket Entry No. 118-5 at 19:27:19–27:26, 19:27:19–28:08).

Schwartz responds that he did not have enough experience with canines to know how to

handle them or to second-guess Thomas’s decision to release the dog. (Docket Entry No. 124 at

6; see also Docket Entry No. 115-6 at 306:17–23, 307:14–24). But “when the law is clearly

established, a defendant cannot utilize his lack of knowledge to establish immunity to liability.

Lack of knowledge of the law and good faith do not preclude liability.” Dean v. Thomas, 933 F.

Supp. 600, 609 (S.D. Miss. 1996); see Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir.

2001) (“[A] particular defendant’s subjective state of mind has no bearing on whether that

defendant is entitled to qualified immunity.”); Armstrong v. Daily, 786 F.3d 529, 538 (7th Cir.

2015) (“[T]he defendants’ actual state of mind or knowledge of the law is irrelevant to whether

the asserted conduct would have been legally reasonable.”). Although Schultz did not have a

reasonable opportunity to safely pull the dog off Thomas, see White, 2021 WL 6112791, at *15,

Schultz admitted that he could have “object[ed]” to the prolonged bite and told Johnson to remove

25

the dog, see Austin, 74 F.4th at 331. Schultz’s claimed lack of experience with canines does not

relieve him of his clearly established obligation to recognize excessive force and object to it.9

The defendants’ final response argues that three cases—Sligh, Walton, and White—compel

finding qualified immunity here. (Docket Entry No. 124 at 11–13). These cases do not support

that result. (See Docket Entry No. 24 at 15–18 (distinguishing White)).

Sligh does not compel finding qualified immunity on the present record. Sligh’s legal

ruling on the scope of bystander liability in dog-bite cases was limited by the plaintiff’s failure to

adequately argue the issue. The plaintiff in Sligh pointed only to Cooper, not to any other case

addressing when a bystander officer has an opportunity to intervene. See 87 F.4th at 301 (“Sligh

points to no other case clearly establishing the law on this issue.”). In addition, the facts of Sligh

are distinguishable. The primary officer ordered the dog to release the bite about eight seconds

after the initial bite command. Id. The bite incident was so short that, even if Sligh had cited and

applied the Fifth Circuit’s bystander-liability case law, the bystander officers in that case likely

did not have a reasonable opportunity to intervene. The court distinguished Cooper, and case law

relating to prolonged dog bites, in part for this reason. See id. at 300–01. By contrast, Thomas

cites and applies clearly-established case law on when and how bystander officers have a duty to

intervene. (Docket Entry No. 115 at 19–20; Docket Entry No. 123 at 21–24; Docket Entry No.

125 at 7–13). That case law, separate from Cooper and Sligh, clearly established the duty to

intervene on this record.

9 Schultz’s responses are also subject to a genuine dispute of fact to the extent they are relevant. Schultz

has been a police officer for about 30 years. (Docket Entry No. 115-6 at 31:9–35:1). He sat on the

complaint review board that investigates reports of excessive force. (Id. at 165:23–66:4). He knew of his

duties to intervene to stop force that is clearly beyond what is objectively reasonable under the

circumstances. (Id. at 389:9–19).

26

Walton v. Tunica County, 648 F. Supp. 3d 780, 795 (N.D. Miss. 2023), is also

distinguishable on the facts. The court in Walton noted “at the outset that” the plaintiff’s briefing

did “a poor job of making specific factual allegations as to what Captain French’s opportunity to

intervene to stop the attack was and how he failed in this regard.” Id. at 795. The court added that

the plaintiff failed to cite case law on when officers have a reasonable opportunity to intervene,

relying instead on the generic elements of a bystander liability claim and case law on a police dog

handler’s liability. See id. at 796–97. In short, the Walton plaintiff and the Sligh plaintiff made

similar errors. The bystander officer in Walton was also at his patrol unit speaking on the phone

when the incident occurred. See id. at 795. The bystander officer did not witness the alleged

constitutional violation and could not have been liable as a bystander. Walton is materially

distinguishable from the case before this court.

The defendant cites Walton for its concluding explanation that no case law established

whether an individual has a “duty to intervene when a dog who should be under the control of a

K9 officer attacks a suspect.” Id. at 797. The court’s ruling was a function of the plaintiff’s

arguments, which focused on whether the officer had a duty to physically intervene. See id.

(explaining that it was unclear whether the bystanding officer “should intervene personally” and

“try to remove the dog”). The officer handling the dog testified that it would have been unsafe to

remove the dog once his bite had latched onto the suspect. See id. This record is much different.

Bruss testified that he could have removed the dog from the bite. (Docket Entry No. 115-5 at

271:9–72:22). Both officers testified that they could have told Johnson to remove the dog after

Thomas was subdued. (Id.; Docket Entry No. 115-6 at 307:14–18). There is also testimony that

the bystander officers could have told Johnson not to release the dog or urged a swifter effort to

get the dog to release its bite. Johnson’s supervisor testified in his deposition that if a canine

27

officer was “using excessive force,” he would “tell” the officer “to get his dog under control and

have his dog . . . detained or secure,” (Docket Entry No. 115-12 at 204:23–205:3), including by

telling the canine handler to “pull the dog off the bite,” (id. at 206:12–15). On this record, a jury

could find that the officers failed discharge their clearly-established duty to “object[]” to clearly

unconstitutional conduct. Austin, 74 F.4th at 331; see Timpa, 20 F.4th at 1039.

White is similar. In White, the plaintiff sought to hold the bystander officer liable “for

failing to intervene before” the primary officer “even used excessive force” and for requesting

canine assistance when the officer reasonably believed that the dog would assist in detaining the

suspect without biting and without the officer having to use other force. 2021 WL 6112791, at

*17. This court further explained that there was no case law establishing that an officer had a duty

to intervene personally or physically “to remove a biting canine from a suspect” when the dog

would not “respond to verbal commands from any officer other than its handler.” Id. But the

scope of the plaintiff’s claims and the record in White did not raise the issue of whether the officer

had the opportunity to verbally intervene or object to the handler’s behavior, as this case does.

White does not undermine the clearly-established principles from Austin and Timpa that apply on

this record. Nor does it undermine the conclusion that a jury could find that Bruss had not just

failed to intervene, but had encouraged Johnson’s excessive use of force, a principle that White

found wholly inapplicable on its facts. See id. at *16 (distinguishing Hale and Timpa).

There are genuine factual disputes material to determining whether, under clearly

established law, Bruss and Schultz had a reasonable opportunity to intervene to stop the dog bite

after Thomas was subdued. The defendants are not entitled to qualified immunity at this stage of

the proceedings.

28

B. Motion for Default Judgment

Thomas moves for default judgment under Rule 55(b) against Johnson’s estate. (Docket

Entry No. 115 at 26–30; Docket Entry No. 115-2). Two years ago, Keith Morris, a probate

attorney, was appointed as temporary dependent administrator for the Estate of Robert Johnson,

who was substituted as a defendant after Johnson’s death. (Docket Entry Nos. 36, 38). Summons

was issued to Morris shortly after his appointment. (Docket Entry No. 40). Since then, Morris

has not filed an answer or otherwise appeared to defend Johnson’s estate. (Docket Entry No. 115-

2 ¶ 25). Thomas argues that default judgment is now appropriate.

Thomas’s motion for default judgment is procedurally premature. Local rules require that

a party moving for default judgment serve the defendant with “the summons, complaint, and the

default judgment motion.” Harris Cnty. Water Control, 2019 WL 5191129, at *1 (emphasis

added); S.D. Tex. Local R. 5.5 (“Motions for default judgment must be served on the defendant-

respondent by certified mail (return receipt requested).”). Neither Thomas’s motion for default

judgment nor his declaration in support of his motion for default judgment includes proof that he

served Morris by certified mail with his motion. His motion for default judgment is premature and

denied without prejudice.

29

IV. Conclusion

Thomas’s motion for summary judgment, (Docket Entry No. 115), is denied. Thomas’s

motion for default judgment, (Docket Entry No. 115), is denied without prejudice. Bruss’s and

Schultz’s motion for summary judgment, (Docket Entry No. 118), is denied. The parties’ cross-

motions to exclude expert testimony, (Docket Entry No. 116, 126), remain under advisement.

SIGNED on December 2, 2025, at Houston, Texas.

LW Cnt

Lee H. Rosenthal

Senior United States District Judge

30