Smith v. Lee

Case: 22-30241 Document: 00516821870 Page: 1 Date Filed: 07/14/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 14, 2023

No. 22-30241 Lyle W. Cayce

Clerk

Juanita Smith; Floyd Stewart,

Plaintiffs—Appellees,

versus

J. C. Lee, Officer; City of Shreveport; Corporal Barker,

Defendants—Appellants.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:19-cv-1261

Before Jones, Smith, and Graves, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

Defendants Cpl. John Lee and Cpl. Derek Barker appeal the district

court’s denial of their motion for summary judgment seeking qualified

immunity from Plaintiffs’ unlawful entry and excessive force claims. We

unanimously conclude that Lee and Barker are not entitled to qualified

immunity from Smith’s unlawful entry claims. Judge Jones and Judge Smith

conclude that Lee is entitled to qualified immunity for any force employed

from the moment he entered Smith’s house, and I dissent in part from that

holding. Therefore, we REVERSE in part and AFFIRM in part.

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I. Background

a. Factual Background

On October 4, 2018, the Shreveport Police Department received a tip

that a murder suspect, Christian Combs (“Combs”), was hiding at either

1906 State Street or 1913 State Street in Shreveport, Louisiana. The arrest

warrant identified Combs as a thirty-three-year-old Black man. Multiple

Shreveport Police Department officers, including Defendants Lee and

Barker, met to develop a plan to search the two houses. The officers first

searched the 1906 State Street home, but they did not find Combs there. The

officers then proceeded to 1913 State Street, the home of Plaintiff Juanita

Smith (“Smith”). Barker claims that he, Officer Eli Travis, and one of the

detectives went to Smith’s front door. One of them knocked, and Smith

answered. They explained they were looking for Combs when Smith

answered the door. Smith told them she did not know Combs.

At this point, Plaintiffs’ and Defendants’ stories diverge. The officers

asked Smith if anyone else was inside the home, and Smith responded no.

However, Smith claims she thought they were only asking if Combs was

inside. Another officer, Leo Fartaczek, testified that he was at the front of the

house with Barker and asked Smith for consent to enter her home. However,

in his police report, Fartaczek stated he “took position in the rear of the

residence. [Canine Officer] Lee was in the rear with me while Barker made

contact with the homeowner, Juanita Smith at the front door.” Smith denies

that any officer asked her for permission to enter her home. Barker claims he

asked Smith to step outside of her home and that she agreed, but Smith claims

Barker stepped inside her house to prevent her from going back in. No video

or audio exists to confirm or refute what was said or done during this

encounter at the front door. Smith ultimately walked out of her house and

into her driveway.

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During this encounter, Lee, a canine officer, was stationed at the back

of the house. He was then called to the front of the house. According to

Barker, the two of them switched places and Barker took up a position at the

rear of the house. Lee claims that on his way to the front of the house, Barker

told him they were “good to go.” Lee also claims he asked Smith if anyone

else was inside the house before entering.

Lee contends that he went to the front door and gave three loud

warnings telling anyone inside that a police canine was present and they

should come out and identify themselves. During the third warning, he says

he warned the dog would enter and bite. Smith said she did not hear any

warnings before Lee entered the house. But it is undisputed that Lee entered

Smith’s home and gave his canine, Dice, the instruction to bite whomever he

encountered inside the house. After entering, Dice found Plaintiff Floyd

Stewart. According to Lee, he lost sight of Dice when the dog entered the

room Stewart was in. Stewart is a Black man who was seventy-eight years old

at the time. He was sleeping when he heard noise outside and put his shoes

on. When he was leaving the bedroom, Dice bit him. According to Stewart,

he could see an officer standing in the hall when Dice first bit him. Lee says

that when he heard Dice engage with someone, he proceeded toward the

sound, recognized that the person Dice was biting was not Combs, and

immediately got Dice to release the bite. According to Stewart, Dice bit him

multiple times. He pushed the dog off once, but the dog came back to bite

him again. Meanwhile, Stewart claims Lee stood by while Dice was biting him

and did not immediately command Dice to stop the attack. Stewart claims

the incident lasted at least a minute before Lee commanded Dice to release

the bite. As a result of the attack, Stewart sustained puncture wounds and

lacerations to his left thumb, left calf, and left thigh.

Lee had a body camera, and he thought he activated it before he

entered Smith’s home. He said it is department policy for canine officers to

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activate their body cameras once they get their canines out. However, it was

switched on only after Dice bit Stewart. In the footage after the search, Lee

asks two of the detectives if they talked to Smith at the door. One of the

detectives responds that it was Barker who spoke to her. Lee then asks Barker

if he “asked” Smith. Barker responds that he did not, and he does not know

if anyone did. At this point, it sounds like Lee responds, “I should have asked

her.” However, in his deposition, Lee claims he actually said, “he [Barker]

should have asked her.” (emphasis added). Lee maintained that he asked

Smith if anyone else was inside before entering.

b. Procedural History

Plaintiffs sued Lee, Barker, Officer Christopher McConnell, and the

City of Shreveport alleging federal claims of unlawful entry, excessive force,

and failure to train. They also brought state law claims for trespass, battery,

strict liability, excessive force, and negligence.

Defendants moved for summary judgment asserting qualified

immunity on behalf of all individual Defendants and seeking dismissal of

Plaintiffs’ Monell and state law claims. The district court dismissed the

Monell claim against Shreveport and all claims against McConnell. Smith v.

Lee, 599 F. Supp. 3d 440, 463 (W.D. La. 2022). It denied the motion in all

other respects. Id. Lee and Barker now appeal the denial of qualified

immunity from the unlawful entry and excessive force claims against them.

II. Jurisdiction

In appeals of orders denying qualified immunity, we only have

jurisdiction to review “the purely legal question [of] whether a given course

of conduct would be objectively unreasonable in light of clearly established

law.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). “[W]e

can review the materiality of any factual disputes, but not their genuineness.”

Id. (citing Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.2000)).

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III. Standard of Review

Because we lack the authority to review the district court’s decision

that a genuine factual dispute exists, we do not apply the ordinary summary

judgment standard in an interlocutory appeal concerning the denial of

qualified immunity. Kinney, 367 F.3d at 348. Instead, we “consider only

whether the district court erred in assessing the legal significance of the

conduct that the district court deemed sufficiently supported for purposes of

summary judgment.” Id. Where factual disputes exist in an interlocutory

appeal asserting qualified immunity, we accept the plaintiff’s version of the

facts as true. Id. When the district court fails to set forth the factual disputes

that preclude granting summary judgment, we may be required to review the

record in order “to determine what facts the district court, in the light most

favorable to the nonmoving party, likely assumed.” Id. (citing Johnson v.

Jones, 515 U.S. 304, 319, (1995)). Our review of the district court’s

conclusions concerning the materiality of the facts is de novo. Id. at 349.

IV. Discussion

Defendants have asserted the defense of qualified immunity. Qualified

immunity provides government officials with immunity from suit “insofar as

their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). We apply a two-part test: (1) whether the plaintiff

has alleged a violation of a constitutional right; and (2) if so, whether the right

was clearly established at the time of the violation. Cooper v. Brown, 844 F.3d

517, 522 (5th Cir. 2016) (citation omitted). Both questions are matters of law.

Id.

a. Smith’s Unlawful Entry Claims

Smith alleges that Barker and Lee violated her Fourth Amendment

rights by entering her home without consent or any other legal justification.

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Under the Fourth Amendment, a warrantless intrusion into a person’s home

is “presumptively unreasonable unless the person consents, or unless

probable cause and exigent circumstances justify” the intrusion. Gates v.

Texas Dep’t of Protective & Regul. Servs., 537 F.3d 404, 420 (5th Cir. 2008).

There are two forms of consent: explicit and implicit. Implicit consent “can

be inferred from silence or failure to object to a search only if that silence

follows a request for consent.” United States v. Staggers, 961 F.3d 745, 757

(5th Cir. 2020). Implicit consent based on silence or failure to object must

“follow[] a police officer’s explicit or implicit request for consent.” United

States v. Escamilla, 852 F.3d 474, 484 (5th Cir. 2017) (citation omitted). “It

is well established that a defendant’s mere acquiescence to a show of lawful

authority is insufficient to establish voluntary consent.” United States v.

Jaras, 86 F.3d 383, 390 (5th Cir. 1996). Without more, “[s]ilence or passivity

cannot form the basis for consent to enter.” Roe v. Texas Dep’t of Protective &

Regul. Servs., 299 F.3d 395, 402 (5th Cir. 2002).

i. Whether Smith Has Alleged Fourth Amendment Violations

We begin at the first step: whether Smith has sufficiently alleged a

violation of her Fourth Amendment rights. Defendants do not contend that

any other exception to the warrant requirement was present to justify a

warrantless entry. Rather, they claim both officers are entitled to qualified

immunity because they reasonably believed Smith consented to their entry.

Turning first to Smith’s unlawful entry claim against Barker, she

claims she was barefoot and wanted to retrieve her shoes when Barker

stepped inside her home to block her from going back inside. Defendants

acknowledge the factual dispute over whether any officer expressly requested

permission and whether Smith expressly gave officers permission to enter

her home. They then claim the district court only identified a factual dispute

over whether the officers explicitly requested permission to enter the home.

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However, the district court identified a broader factual dispute. Namely,

whether the officers made a request, explicit or implicit, for permission to

enter Smith’s home. Smith, 599 F. Supp. 3d at 454 (“Under Smith’s version

of the facts, there was no explicit or implicit request for permission to enter,

and thus there was no consent.”). Nevertheless, Defendants argue that when

Barker allegedly entered Smith’s home, he reasonably believed she had

consented to a search of her home because the officers had explained they

were looking for Combs and asked Smith if anyone else was inside her

residence.

As this court has previously held, an implicit or explicit request for

consent is a necessary predicate to a finding of implicit consent based on a

subject’s silence or failure to object to a search. Escamilla, 852 F.3d at 484. If

the officers at the front door did not request permission to enter Smith’s

home either implicitly or explicitly, then they could not reasonably believe

that Smith’s silence or acquiescence gave them permission to enter. At most,

they asked if anyone else was inside the home, but that does not amount to

an express or implied request to enter her home. Without such a request,

Smith’s silence cannot amount to consent for Barker to enter her home. Roe,

299 F.3d at 402. Furthermore, the dispute over whether Barker entered

Smith’s home to prevent her from returning inside is material since an

intrusion into someone’s residence without legal justification, even if only by

“a fraction of an inch,” violates the Fourth Amendment. Kyllo v. United

States, 533 U.S. 27, 37 (2001). Accepting Smith’s version of the facts as true,

she has sufficiently alleged that Barker violated her Fourth Amendment

rights.

Turning next to Smith’s unlawful entry claim against Lee, Defendants

argue that “[i]t should have been obvious to any person in Ms. Smith’s

situation that Cpl. Lee intended to enter her home with a canine, and at no

time did Ms. Smith voice any objections or tell any officer on scene that they

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could not enter her home.” Again, if the officers did not request permission

to enter Smith’s home either implicitly or explicitly, then they could not

reasonably believe that Smith’s silence or acquiescence gave them

permission to enter. According to Smith, the officers asked her if anyone else

was inside her home. Barker then stepped into her house to block her from

going back inside. She was then told to leave her house and stand in her

driveway. The house was surrounded by other officers. There is a genuine

factual dispute over whether Lee asked Smith if anyone else was inside her

home before entering, so we assume that he did not ask. At this point, Lee

went to the front door, entered Smith’s home, and released Dice in the

house. As Smith stated, “[s]he did not feel she was in a position to object. It

was like the police were going to do whatever they wanted regardless of what

she had to say.” Accepting Plaintiffs’ version of the facts as true, the officers

never directed any express or implied request at Smith to enter her home.

Without such a request, Smith’s acquiescence cannot amount to consent.

Jaras, 86 F.3d at 390 (“mere acquiescence to a show of lawful authority is

insufficient to establish voluntary consent.”).

However, there is a crucial fact issue with respect to Lee that the

district court did not directly address. Namely, whether Lee reasonably

believed the other officers asked for consent before entering Smith’s house.

Again, Lee was stationed at the back of the house while the other officers

spoke with Smith at her front door. According to Lee, Barker told him they

were “good to go” when they traded places, which he understood to mean

that the other officers had acquired Smith’s consent. Defendants claim Lee

reasonably relied on this statement, so his search of Smith’s residence was

not a constitutional violation. Barker’s alleged statement is material because

Lee is entitled to reasonably rely on information provided to him by other

officers. Gates, 537 F.3d at 430 (“the Supreme Court has held that police

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officers may act on the basis of information known by their colleagues in

conducting searches and seizures.”). As we held in Gates,

Because TDPRS concluded that it was necessary to remove the

Gates children, the Fort Bend deputies were entitled to

reasonably rely on TDPRS’s assessment of the situation. The

Fort Bend deputies’ reliance was reasonable in this case

because the deputies were aware that the TDPRS employees

had questioned the children for several hours, which would

indicate that TDPRS was making an informed decision.

Id. at 431 (emphasis added).

Plaintiffs first challenge this argument by contesting whether Barker

even uttered these words. Second, they argue that even if Barker told Lee

they were “good to go,” the statement is too vague to communicate that the

other officers had acquired Smith’s consent. Since the district court did not

weigh in on these disputes, we have independently reviewed the record “to

determine what facts the district court, in the light most favorable to the

nonmoving party, likely assumed.” Kinney, 367 F.3d at 348 (citation

omitted).

In his deposition, Lee explained that he would have to be satisfied that

he had permission to enter Smith’s home since he was the one entering with

the canine. He also explained that the officers held a meeting before both

searches where it was “very clear that we had to have [permission] before we

could enter the homes.” According to Lee, Barker would not have told him

they were good to go if he did not have Smith’s consent. In his affidavit, Lee

again stated he “was advised that [they] were ‘good to go,’ which meant

officers had obtained consent to search.”

In his deposition, Barker testified that he did not ask for consent to

search Smith’s house. He also did not recall if any other officer asked for

consent to search Smith’s house. However, Barker later claimed in his

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affidavit that “based on all discussions that had occurred with Ms. Smith on

her front porch, [he] believed Ms. Smith consented to a search of her home.”

Nowhere in Barker’s police report, deposition, or affidavit does he attest to

telling Lee they were “good to go” when they switched places.

While it may have been reasonable in this context for Lee to rely on

Barker’s “good to go” statement as communicating that the officers had

gained consent, there is a genuine factual dispute as to whether this statement

was made. Lee claims Barker would not have told him they were good to go

if he did not have Smith’s consent. But Barker admitted at the time of his

deposition that he did not ask for consent and did not recall if any other officer

had. He also never attested to saying these words to Lee. This dispute is

material because Lee based his belief that the other officers had obtained

consent on this purported statement. If the statement was never made, then

that places Lee in the same factual scenario as Barker. Since the district court

denied qualified immunity to Lee for unlawful entry, it likely assumed

Plaintiffs’ version of this factual dispute.

Accepting Plaintiffs’ version of the facts as true, Lee entered Smith’s

home without implicitly or explicitly requesting Smith’s consent to enter and

without any basis to believe that any other officer had acquired Smith’s

consent to enter. Accordingly, Smith has sufficiently alleged that Lee

violated her Fourth Amendment rights.

ii. Whether Smith’s Fourth Amendment Right Was Clearly Established

At the second step, we must determine whether Smith’s Fourth

Amendment rights were clearly established at the time of the violation.

Cooper, 844 F.3d at 522. Smith’s right to not have her home searched without

a warrant, consent, or other legal justification was clearly established in 2018.

“[T]he law regarding consent and exigent circumstances has been clearly

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established for some time.” Gates, 537 F.3d at 424.1 More specifically, it is

“well established that a defendant’s mere acquiescence to a show of lawful

authority is insufficient to establish voluntary consent.” Jaras, 86 F.3d at

390; see also Roe, 299 F.3d at 402 (“[s]ilence or passivity cannot form the

basis for consent to enter” a home). Accepting Plaintiffs’ version of the facts

as true, the officers did not implicitly or explicitly request permission to

enter, but Barker and Lee entered her home anyway. In such a scenario, both

Barker and Lee’s entry “would be objectively unreasonable in light of clearly

established law.” Kinney, 367 F.3d at 347. Every reasonable officer would

know they cannot enter a house based on the occupant’s silence without first

making an implicit or explicit request to enter. Lee and Barker are not entitled

to qualified immunity from Smith’s unlawful entry claims at this stage.

b. Stewart’s Excessive Force Claim

Stewart alleges that Lee violated his Fourth Amendment right to be

free from excessive force by releasing Dice into the house with instructions

to bite and allowing Dice to continue to bite him. To prevail on his excessive

force claim, Stewart must show “(1) an injury (2) which resulted directly and

only from a use of force that was clearly excessive, and (3) the excessiveness

of which was clearly unreasonable.” Ontiveros v. City of Rosenberg, 564 F.3d

379, 382 (5th Cir. 2009) (citation omitted). “[O]fficers must assess not only

the need for force, but also ‘the relationship between the need and the

1

The Supreme Court has recently expressed uncertainty about whether circuit-

level precedent qualifies as controlling authority for purposes of qualified immunity. D.C.

v. Wesby, 138 S. Ct. 577, 591 n.8 (2018). However, the Court previously held that officers

were entitled to qualified immunity because “the Petitioners have not brought to our

attention any cases of controlling authority in their jurisdiction at the time of the incident

which clearly established the rule on which they seek to rely, nor have they identified a

consensus of cases of persuasive authority such that a reasonable officer could not have

believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999) (emphasis

added). Accordingly, we look to both Supreme Court precedent and our binding precedent

as controlling for purposes of qualified immunity. See, e.g., Cooper, 844 F.3d at 524.

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amount of force used.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.

2009) (per curiam) (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir.

1999)). “The injury must be more than a de minimis injury and must be

evaluated in the context in which the force was deployed.” Glenn v. City of

Tyler, 242 F.3d 307, 314 (5th Cir. 2001). Defendants do not contest that the

alleged puncture wounds and lacerations to Stewart’s left thumb, left calf,

and left thigh amount to a constitutionally cognizable injury. Defendants also

do not contest that Lee used force by releasing Dice into the home with the

instruction to bite whomever he encountered inside the house. Whether the

force used was “excessive” or “unreasonable” depends on “the facts and

circumstances of [this] particular case.” Graham v. Connor, 490 U.S. 386,

396 (1989). For this inquiry, we look to the Graham factors: “the severity of

the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id.

i. From the Initial Entry

Stewart first argues that because Lee illegally entered Smith’s home,

deploying Dice with the instruction to bite was excessive to begin with. The

district court found that Stewart had alleged a constitutional violation after

applying the Graham factors to Stewart. Smith, 599 F. Supp. 3d at 456. At the

second step of the QI analysis, it concluded that “an officer cannot commit

an unauthorized entry into a private residence and then release a police dog

on whomever happens to be inside.” Id. at 457. There are two problems with

this analysis. First, while Stewart was not suspected of any crime and posed

no threat to others, he is not the proper subject of the Graham inquiry because

he is not the suspect the officers were looking for. In this scenario, the factors

should be applied to Combs. Second, we have held in an analogous context

that a “[plaintiff’s] excessive force claim is separate and distinct from her

unlawful arrest claim, and we must therefore analyze the excessive force

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claim without regard to whether the arrest itself was justified.” Freeman v.

Gore, 483 F.3d 404, 417 (5th Cir. 2007). Stewart’s excessive force claim is

separate and distinct from Smith’s unlawful entry claim, so we analyze the

use of force without regard to the lawfulness of Lee’s entry.

Applying the first Graham factor to Combs, he was wanted for second

degree murder—undoubtedly one of the most severe offenses. As to the

second factor, the arrest warrant alleged that Combs shot and killed another

man, so the officers had reason to believe he was dangerous. One officer

claimed that the person who provided the tip on Combs’ whereabouts also

stated that Combs was armed. Lastly, the officers believed that Combs was

hiding at the time. Given the apparent danger of this suspect and situation,

Lee’s decision to deploy Dice with the command to bite and hold the first

person he found inside the house was reasonable. Therefore, Stewart has not

alleged a constitutional violation for any force used between the time Lee

entered Smith’s house and the time he realized that the person Dice was

biting was not Combs.

ii. The Duration of the Bite2

In the alternative, Stewart argues that the duration of the dog bite was

objectively unreasonable. Stewart, however, has not raised a genuine,

material fact issue that the law was so clear that no reasonable officer facing

a similar situation would have acted as did Officer Lee. See Brosseau v.

Haugen, 543 U.S. 194, 201, 125 S. Ct. 596, 600 (2004). For this excessive

force claim, Officer Lee is entitled to qualified immunity. 3

2

Judge Graves dissents from this part of the opinion, written by Judge Jones and joined by

Judge Smith.

3

Because no “existing precedent ‘squarely governs’ the specific facts at issue,” we elect

to begin and end our qualified immunity analysis at the second step. See Garcia v. Blevins, 957 F.3d

596, 600 (5th Cir. 2020) (“We can analyze the prongs in either order or resolve the case on a single

prong.”).

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According to Stewart, he heard some commotion outside and got up

from his bed. He walked toward the bedroom door and met Dice, who started

to bite him on his leg. At this point, Lee was not in the bedroom, but was at

the nearby hallway door to the living room. It is undisputed that Dice started

biting Stewart outside of Lee’s line of sight.4 Dice bit Stewart on the lower

leg; Stewart pushed him off; Dice then bit Stewart on the hand; Stewart

kicked him off; Dice finally bit Stewart on the thigh. Only then did Lee appear

in the bedroom doorway.5 Stewart yelled three or four times “get your dog

off,” and within three seconds, Lee released Dice. Lee’s testimony adds that

Dice did not respond to his initial verbal command, but let go after Lee

grabbed Dice’s collar while still giving the command. When pressed at his

deposition to state how long the dog was biting him, Stewart responded, “I

couldn’t say.” Later, in his sworn declaration, Stewart stated that he believed

Dice was biting him for “at least a minute.”

This train of events distinguishes Cooper v. Brown, 844 F.3d 517 (5th

Cir. 2016), the only binding precedent cited by Stewart for a supposedly

“clearly established” rule that “when no reasonable officer could conclude

that a suspect poses an immediate threat to law enforcement officers or

others, it is unreasonable to use K9 force to subdue a suspect who is

complying with officer instructions.” Shumpert v. City of Tupelo, 905 F.3d

4

The dissent disagrees and states that “Stewart recounts seeing an officer in the hallway

when Dice first bit him.” Throughout this litigation, Stewart has insisted that Lee lost sight of Dice.

Numerous record references support this statement.

5

The dissent states that “[n]othing in the record dictates this conclusion.” To the

contrary, the chronology of events according to Stewart’s own declaration has Dice biting Stewart

multiple before times before Lee “appeared in the doorway.”

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310, 322 (5th Cir. 2018) (alterations adopted and quotation omitted)

(articulating the legal principle clearly established in Cooper).6

In that case, Cooper was pulled over for a suspected DUI, panicked,

and fled on foot into a residential neighborhood. Cooper, 844 F.3d at 521.

Responding to the call for back-up, an officer and his K9 unit found Cooper

and the dog bit Cooper on the leg. Id. Cooper had not attempted to flee or

strike the dog and was obviously unarmed. Id. The canine officer witnessed

the initial bite. While Cooper was still gripped by the canine’s teeth, the

officer ordered Cooper to show his hands and submit, roll on his stomach,

and finally, the officer handcuffed him. Id. Only then, one to two minutes

after the initial bite, did the officer order the dog to release Cooper, who

suffered serious and prolonged injuries. Id. This court affirmed the denial of

qualified immunity to the canine officer. Id. at 526. But the opinion is

confined to the facts of the case, and it held, “subjecting a compliant and non-

threatening arrestee to a lengthy dog attack was objectively unreasonable.”

Id. at 524–25. The court refused to “say that any application of force to a

compliant arrestee is per se unreasonable,” and we explicitly declined to

“opine on the line of reasonableness.” Id. at 524.

For several reasons, Cooper does not squarely govern the “specific

facts at issue” in this case. Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018).

First, this is not a case where the officer is accused of siccing a police dog on

an unarmed and compliant suspect. Cf. Cooper, 844 F.3d at 521; Priester v.

City of Riviera Beach, 208 F.3d 919, 923–24 (11th Cir. 2000); Edwards v.

Shanley, 666 F.3d 1289, 1293 (11th Cir. 2012). As discussed above, Lee was

on the hunt for a murderer, not a drunk driver. Second, unlike the officer in

6

The Supreme Court “has not yet decided what precedents—other than [its]

own—qualify as controlling authority for purposes of qualified immunity.” Wesby,

138 S. Ct. at 591 n.8.

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Cooper, Lee did not see the initial bite. Rather, he sent Dice into the house

and heard the dog encounter someone, whom he fully expected to be the

murder suspect. Third, Dice was biting Stewart for some amount of time

before Lee appeared in the bedroom doorway. In contrast, the officer in

Cooper was present for the complete duration of the bite. Fourth, Lee released

Dice before handcuffing Stewart. Finally, Lee did not order an already-

compliant, unarmed suspect to further prostrate himself while being bitten.

In fact, the only commands given were from Stewart to Lee to “get your dog

off,” which Lee did a few seconds later.

In sum, except as in Cooper, including the significant fact that the dog

was deployed as a wholly duplicative means of detention, no precedent

establishes under analogous circumstances how long a bite is too long. Thus,

a jury could not find that every reasonable officer would have known that a

K9-trained dog had to be released more quickly. Even if Officer Lee

mistakenly permitted Dice to bite Stewart for a minute, qualified immunity

shields him from suit as well as liability.

V. Conclusion

Lee and Barker are not entitled to qualified immunity from Smith’s

unlawful entry claims. But Lee is entitled to qualified immunity for any force

employed from the moment he entered Smith’s house.7 Therefore, we

REVERSE in part and AFFIRM in part.8

7

Judge Graves dissents in part from this holding. He would find that Lee is entitled to

qualified immunity for any force employed between the time he entered Smith’s house and the time

he recognized that Stewart was not Combs, but that he is not entitled to qualified immunity to the

extent that he allowed Dice to continue biting Stewart for a lengthy period of time after realizing he

was not Combs.

8

We also DENY Plaintiffs’ motion to dismiss the appeal for lack of jurisdiction.

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James E. Graves, Jr., Circuit Judge, dissenting in part:

Because I would find that Lee is not entitled to qualified immunity

from Stewart’s excessive force claim based on the duration of the bite, I

dissent from the majority’s analysis and conclusion in part IV.b.ii.

According to Lee, he had Dice on a twenty-foot leash and briefly lost

sight of the dog when it entered the room where Stewart was. When Lee

heard Dice engage with someone, he moved towards the sound, recognized

that the person Dice was biting was not Combs, and immediately got Dice to

release the bite. According to Stewart, he was moving past the corner of the

bed in the room when Dice first bit him on the leg. At that point, he could see

an officer in the hallway. He pushed the dog off with his hands, but then Dice

began biting his hand. He then pushed Dice off with his feet, but Dice began

biting his thigh. While biting him, Dice would shake his head back and forth

causing Stewart more pain. When Lee appeared in the doorway, “he just

stood there silently observing the attack.” Stewart yelled three or four times

for Lee to get the dog off him, but he did not get Dice to release until at least

the third time. Stewart claims Dice was biting him for at least a minute. The

district court identified genuine, material factual disputes that prevented

summary judgment on this claim: “Even if the initial use of force, i.e., the

initial bite, could be deemed reasonable under a version of the facts more

favorable to Defendants, Corporal Lee still acted unreasonably in allowing

Dice to bite multiple times over an extended duration.” Smith, 599 F. Supp.

3d at 456.

Instead of viewing the facts in the light most favorable to Stewart and

drawing reasonable inferences in his favor, the majority resolves numerous

genuine factual disputes in Lee’s favor. First, the majority claims “it is

undisputed that Dice started biting Stewart outside of Lee’s line of sight.”

But Stewart recounts seeing an officer in the hallway when Dice first bit him.

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Given the evidence before us, it is possible that 1) Lee was the officer Stewart

saw in the hallway, and 2) Dice started biting Stewart within Lee’s line of

sight. Second, the majority claims that Lee first appeared in the bedroom

doorway only after Dice bit Stewart for the third time. Nothing in the record

dictates this conclusion, and a reasonable inference can be drawn in Stewart’s

favor that Lee appeared in the doorway before then. Third, the majority notes

that “Stewart yelled three or four times ‘get your dog off,’ and within three

seconds, Lee released Dice.” While Stewart claims Lee released Dice after

the third time he called out, a genuine factual dispute remains as to how much

time transpired between each time Stewart yelled for Lee to get the dog off

him. To the extent the majority implies that Stewart yelled three or four times

in rapid succession, that would again resolve this factual dispute in Lee’s

favor. Finally, the majority notes a tension between Stewart’s deposition

testimony and declaration regarding the duration of the bite. The district

court identified this factual dispute as genuine by crediting Stewart’s claim

that the bite lasted at least a minute, and we do not have jurisdiction to second

guess that finding. Id. (“When construed in Stewart’s favor, the facts are that

. . . Stewart suffered multiple bite wounds in an encounter that lasted at least

one minute.”); Kokesh v. Curlee, 14 F.4th 382, 390 (5th Cir. 2021) (“the

district court’s finding that a genuine factual dispute exists is a factual

determination that this court is prohibited from reviewing in this

interlocutory appeal.”) (internal quotation marks and citations omitted)

(emphasis in original).

Relying on this court’s decision in Cooper v. Brown, Stewart argues

that Lee should not receive qualified immunity at this stage. 844 F.3d 517 (5th

Cir. 2016). I agree. Cooper sets forth the clearly established law: “subjecting

a compliant and non-threatening arrestee to a lengthy dog attack [is]

objectively unreasonable.” Id. at 525. In order to reach this principle, this

court relied on an excessive force case where an officer slammed a compliant

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arrestee’s face into a vehicle and another where an officer tased a non-

threatening arrestee. Id. We explained that Cooper’s right was clearly

established because “[o]ur caselaw makes certain that once an arrestee stops

resisting, the degree of force an officer can employ is reduced.” Id. at 524.

The fact that those two cases did not involve dog bites did not shield the

officer because the “[l]awfulness of force . . . does not depend on the precise

instrument used to apply it. Qualified immunity will not protect officers who

apply excessive and unreasonable force merely because their means of

applying it are novel.” Id. at 525 (quoting Newman v. Guedry, 703 F.3d 757,

763-64 (5th Cir. 2012)).

The majority first claims that the “the opinion [in Cooper] is confined

to the facts of the case,” because the court did not “say that any application

of force to a compliant arrestee is per se unreasonable,” and did not “opine

on the line of reasonableness.” Id. at 524. Nevertheless, since the officer

subjected Cooper to a lengthy dog attack even after he was compliant, this

court “state[d] only the obvious: Under the facts in this record, permitting a

dog to continue biting a compliant and non-threatening arrestee is objectively

unreasonable.” Id. And as discussed above, the clearly established law

outlined in Cooper applies with equal force to this case.

The majority next attempts to distinguish Cooper by claiming that this

is “not a case where the officer is accused of siccing a police dog on an

unarmed and compliant suspect.” But in Cooper, the officer “continued

applying force even after Cooper was actively complying with his orders.” Id.

at 523. Thus, Cooper was not just about the initial decision to sic a police dog

on a suspect; it was about the decision to “permit[] a dog to continue biting

a compliant and non-threatening arrestee.” Id. at 524. Here, Lee employed

Dice to search for Combs, but Lee claims it was immediately apparent to him

that the man Dice was biting was not Combs. Once Lee realized that he was

not Combs but a seventy-eight-year-old bystander, the Graham factors no

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longer weighed in Lee’s favor. Graham v. Connor, 490 U.S. 386, 396 (1989).

The man Dice was biting was not Combs, so there was no crime at issue and

no reason to believe that Stewart posed an immediate threat to the safety of

officers or others. Id. As to the third factor, there is no indication that Stewart

was resisting or attempting to evade arrest. Id. This realization is akin to the

moment where Cooper began actively complying with the canine officer’s

orders—at that point in time, he was compliant and non-threatening, so the

need for force was substantially reduced. Cooper, 844 F.3d at 523. Thus,

Cooper still applies to the extent that Lee permitted Dice to continue to bite

Stewart even after realizing he was not the suspect they were seeking.

The majority also claims that “no precedent establishes under

analogous circumstances how long a bite is too long.” To be sure, Cooper did

not set a bright-line rule for exactly how many seconds amounts to an

unconstitutional dog attack on a compliant subject—it instead held that

“subjecting a compliant and non-threatening arrestee to a lengthy dog attack

was objectively unreasonable.” Id. at 525. While Cooper did not define what

a “lengthy” dog attack is, one lasting one to two minutes clearly falls within

this category. Id. at 521. A genuine material factual dispute remains over how

long Lee permitted Dice to continue biting Stewart after realizing he was not

Combs. Again, the district court identified a genuine fact dispute as to

whether the biting lasted at least one minute. During his deposition, Stewart

testified that “about three seconds” passed between when he last yelled at

Lee to release the dog and when Lee released Dice. In his declaration, Stewart

states that he yelled “at least three times before the officer got the dog to

release.” Stewart also testified in his deposition that “[Lee] just st[oo]d up

in that door there and that dog kept biting on me,” and that Lee released Dice

“[a]fter [Dice] bit so long.” Reading this evidence in Stewart’s favor, the

moment that Lee pulled Dice off Stewart could have taken place long after

the moment he realized Stewart was not Combs. The majority again attempts

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to distinguish Cooper by stating “Dice was biting Stewart for some amount of

time before Lee appeared in the bedroom doorway,” but that only underlines

the genuine factual dispute in this case. We do not know what amount of time

transpired between the moment Dice first bit Stewart, the moment Lee

appeared in the doorway, and the moment Lee realized Stewart was not

Combs. Assuming the bite lasted longer than a minute as we must, a material

factual dispute remains as to whether Lee permitted Dice to continue biting

Stewart for a lengthy period after realizing he was not Combs.

For these reasons, I would find that Lee is not entitled to qualified

immunity because Cooper gave him fair warning that subjecting a compliant

and non-resisting subject to a lengthy dog attack is a violation of clearly

established law. Id. at 525.

21