The opinion
FILED
Feb 18, 2014
DEBORAH S. HUNT, Clerk
NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0135n.06
No. 13-2129
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERRANCE DREW, )
)
Plaintiff-Appellee, )
)
v. )
)
MICHAEL MILKA, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Defendant-Appellant. ) EASTERN DISTRICT OF MICHIGAN
BEFORE: MERRITT, MOORE and CLAY. Circuit Judges.
MERRITT, Circuit Judge. In this interlocutory appeal by the defendant, police officer
Milka, who arrested plaintiff Drew and caused his police dog to bite him during the process, the
question is whether the defendant officer is entitled to “qualified immunity.” The district court
described the case as follows and ruled as follows on the issue of qualified immunity:
Plaintiff’s testimony — viewed in the light most favorable to Plaintiff —
suggests that he did not resist the officers’ attempt to take him into custody.
According to his testimony, he was simply standing still with his daughter when
police officers ran up, struck him in the head, and tackled him to the ground. Despite
his protests that he was not resisting arrest and his claim that he “willingly”
cooperated with officers’ order that he place his hands behind his back, the arresting
officers twisted his arms and ordered a dog bite. A reasonable jury could accept
Plaintiff’s account as true despite Defendant’s contrary testimony, and under these
facts Defendant used excessive force in ordering the dog bite, irrespective of its
timing.
....
No. 13-2129
Drew v. Milka
It is clear that ordering a dog bite on a compliant arrestee violates a clearly
established constitutional right. As the Sixth Circuit stated in Wysong, “[t]he same
cases holding the police may not use force on a subdued, non-resisting subject hold
that the right to be free from physical force when one is not resisting the police is a
clearly established right.” 260 Fed. App’x at 848 (citing Smoak v. Hall, 460 F.3d
768, 784 (6th Cir. 2006) and Champion v. Outlook Nashville, Inc., 380 F.3d 8983.,
902 (6th Cir. 2004)). Just as the government has no law enforcement interest in
ordering a dog bite on someone who is neither resisting arrest nor trying to flee, there
is a clearly established constitutional right to be free from dog bites when one is
neither resisting arrest nor attempting to flee. Accepting Plaintiff’s facts for
purposes of this motion, it is therefore clear that Defendant violated Plaintiff’s
clearly established constitutional rights. Therefore, the qualified immunity doctrine
does not prevent Plaintiff from proceeding on his excessive-force claim.
After reviewing the record and briefs in the case, we agree with the district court that there
is a material dispute of facts that must be decided at trial on the question of how the arrest occurred
and whether the plaintiff resisted arrest and whether there was any justification for the dog bites.
Therefore, we affirm the district court’s refusal to grant summary judgment in favor of defendant.
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