Huh.
Here’s
something
you
definitely
don’t
see
every
day.
But
before
we
get
to
the
ruling,
let’s
do
a
brief
exploration
of
the
ultra-weird
legal
landscape
that
has
made
it
clear
cop
dogs
and
cops
should
be
held
to
way
different
standards
than
regular
dogs
and
regular
people.
And
it’s
the
regular
dogs
and
regular
people
who
are
always
at
a
disadvantage.
First
off, defending yourself
from
an
attack
by
a
police
dog
is
almost
always
treated
as
a
criminal
offense. In
some
places,
the
charge
brought
is
“assaulting
an
officer,”
even
though
the
attack
targeted
a
four-legged
“officer”
rather
than
a
two-legged,
actual-human-being
officer.
On
the
other
side
of
the
coin,
your
dog
doesn’t
even
need
to attack a
police
officer for
an
officer
to
decide your
dog
needs
to
be
killed.
Citizens
who
kill
other
people’s
dogs
will definitely face
criminal
charges.
And
people
attacked
by
dogs
while
intruding
in
other
people’s
yards
will
likely
be
told
they
can’t
possibly
swear
out
a
complaint
against
the
dog’s
owner.
All
bets
are
off
with
cop
dogs.
They’re
“officers”
under
the
law
and
the
general
opinion
of
most
courts
is
“suck
it
up”
when
you’ve
been
mauled
by
a
K-9
unit.
Rarely,
if
ever,
will
courts
suggest
excessive
force
claims
stemming
from
police
dog
attacks
are
capable
of piercing
the
qualified
immunity
veil.
In
this
case,
though,
the
double-standard
stops
working
because
both
parties
are
law
enforcement
officers.
In
a
move
that
must
have
endeared
him
to
law
enforcement
officers
all
over
Minnesota,
Champlain
police
officer
Daniel
Irish
sued
Hennepin
County
Deputy
Keith
McNamara
after
McNamara’s
dog
bit
him
while
they
engaged
in
an
on-foot
pursuit
of
a
criminal
suspect.
(h/t Short
Circuit)
Here’s
how
this
whole
thing
went
down,
as
recounted
by
the
Eighth
Circuit
Appeals
Court
in
its decision [PDF]:
[O]ver
the
wail
of
police
sirens,
Deputy
McNamara
repeatedly
commanded
Thor,
who
could
not
see
the
suspect,
to
“get
him!”
as
they
raced
down
the
cemetery
path.
Officer
Irish
then
turned
into
the
cemetery
ahead
of
them
and
joined
the
pursuit.
Thor
bounded
forward,
outpacing
Deputy
McNamara
and
running
behind
Officer
Irish’s
squad
car.
It
was
approximately
35
seconds
after
Thor
got
over
the
fence
when
Deputy
McNamara
heard
screaming.
His
body
cam
picked
up
an
agonized
“Keith
[McNamara]!
Keith!”
Too
far
away
to
restrain
Thor,
Deputy
McNamara
repeatedly
shouted,
“Thor,
come!
Thor!
Thor,
out!”
Officer
Irish’s
body
cam
also
captured
the
chaos.
Shortly
after
he
requested
the
suspect’s
description,
he
arrived
in
the
cemetery,
spotted
the
suspect
just
across
a
ravine,
opened
his
squad
car
door,
and
yelled,
“Get
on
the
fucking
ground!”
Thor
immediately
attacked
him.
Officer
Irish
fought
to
control
him
but
continued
to
give
the
suspect
orders.
Between
breaths,
Officer
Irish
told
Thor
to
“get
him!”—to
no
avail.
He
gasped,
“Keith!
Keith!
I
didn’t
know
he
was
out.”
Deputy
McNamara
finally
caught
up
and
restrained
and
refocused
Thor.
Bloody
but
unbowed,
Officer
Irish
gave
a
K9
warning.
The
suspect
started
to
inch
away,
so
the
officers
released
Thor,
who
eventually
vaulted
through
the
ravine
and
apprehended
him.
Officer
Irish
sued
Deputy
McNamara,
alleging
(yes,
you’re
reading
this
correctly)
a
Fourth
Amendment
violation.
Precedent
says
a
K-9
attack/bite/hold
is
a
seizure
under
the
law
and
that
suspects
(who
are
the
ones
usually
on
the
receiving
end
of
police
dog
attacks)
must
be
given
“[adequate]
warning
and
an
opportunity
to
surrender”
before
the
dog
is
released.
Obviously,
Officer
Irish
was
never
given
adequate
warning
or
a
chance
to
surrender.
And
for
good
reason.
He
wasn’t
the
intended
target
of
the
dog’s
aggression.
Somehow,
despite
all
the
supposed
training
the
dogs
receive
(and
all
the
expertise
their
handlers
claim
to
have),
Thor
decided
the
person
he
was
supposed
to
attack
was
a
fellow
officer.
So
much
for
the
Thin
Blue
Line,
etc.
etc.
Given
these
facts,
it’s
pretty
difficult
to
read
this
as
a
Fourth
Amendment
violation.
Everyone
(on
two
or
four
legs)
was
a
law
enforcement
officer.
While
Officer
Irish
may
have
been
“seized,”
he
wasn’t
“seized”
in
the
sense
that
his
freedom
was
being
purposefully
curtailed
by
the
actions
of
a
government
employee.
This
argument
makes
about
as
much
sense
as
someone
claiming
their
Fourth
Amendment
rights
were
violated
when
their
neighbor’s
dog
attacked
them.
The
playing
field
is
completely
level
here,
which
means
this
was
unfortunate,
but
not
unconstitutional.
Unbelievably,
the
lower
court
said
qualified
immunity
did
not
apply
here.
That
clear
error
has
been
reversed
by
the
Eighth
Circuit,
which
points
out
there
not
only
needs
to
be
an
imbalance
of
power,
but
the
clear
intent
to
limit
someone
else’s
freedom
via
government
dog
attack.
(All
emphasis
in
the
original.)
[A]
seizure
occurs
when
an
officer,
“by
means
of
physical
force
or
show
of
authority,
terminates
or
restrains
[an
individual’s]
freedom
of
movement through
means
intentionally
applied.”
Brendlin
v.
California,
551
U.S.
249,
254
(2007).
The
Supreme
Court
has
explained
that
the
“intent
that
counts
under
the
Fourth
Amendment
is
the
‘intent
that
has
been
conveyed
to
the
person
confronted.’”
(quoting
Chesternut,
486
U.S.
at
575
n.7)
(holding
that
all
occupants
in
a
car
are
seized
during
a
traffic
stop).
So
long
as
the
officer’s
conduct
is
“willful,”
a
“seizure
occurs
even
when
an unintended
person or
thing
is
the
object
of
the
detention.”
Brower,
489
U.S.
at
596,
599
(emphasis
added)
(citation
omitted)
(holding
that
a
seizure
occurred
where
a
fleeing
suspect
crashed
into
a
roadblock).
Officer
Irish
argued
the
correct
standard
is
“unintended
person,”
rather
than
“through
means
intentionally
applied.”
The
Appeals
Court
disagrees.
This
was
an
accident,
not
an
intentional
attack.
And
that
means
something,
especially
when
it’s
two
law
enforcement
officers
involved,
rather
than
a
police
officer
and
someone
who
just
happened
to
be
in
the
area
where
a
police
dog
was
unleashed.
These
are
two
different
things,
even
though
Officer
Irish
clearly
believes
otherwise.
The
Eighth
Circuit
points
out
exactly
where
the
lower
court
went
wrong
when
it
denied
immunity
to
the
deputy
whose
dog
ended
up
attacking
a
fellow
officer.
Officer
Irish
protests
that
the
unintended-target
cases
are
immaterial
because
excessive
force
cases
involving
K9s
are
unique.
See,
e.g.,
Hope
v.
Taylor
(M.D.
Fla.
Feb.
23,
2021)
(taking
a
“different
tack”
from
unintended-target
cases
and
holding
that
a
seizure
occurred
where
an
officer
deployed
a
K9
that
bit
a
bystander,
not
the
intended
suspects).
He
says
that
by
releasing
Thor
with
the
intent
that
he
bite
the
first
person
he
found,
Deputy
McNamara
had
all
the
intent
needed
to
effect
a
seizure.
Though
we
have
never
recognized
a
constitutional
distinction
between
force-by-K9
and
force-by-bullet,
the
district
court
did.
It
relied
on
Szabla
v.
City
of
Brooklyn
Park,
where
we
found
“a
submissible
case
of
excessive
force”
after
an
officer’s
K9
was
tracking
a
suspect
but
ended
up
biting
an
innocent
bystander.
From
Szabla,
the
district
court
inferred
an
“[i]mplicit”
holding
that
when
an
officer
intentionally
deploys
a
K9
to
find
and
bite
a
suspect
and
the
K9
bites
an
innocent
bystander,
that
bite
is
“a
seizure
under
clearly
established
law.”
We
do
not
read
so
much
into
Szabla.
It
never
addressed
whether
the
officer
subjectively
or
objectively
intended
to
seize
the
plaintiff.
And
it
fits
best
in
the
mistaken-identity
line
of
cases.
The
officer
in
Szabla
told
his
K9
to
find
and
apprehend
an
unknown
suspect,
“ordered
[the
apprehended
plaintiff]
to
show
his
hands,”
and
then
detained
and
refused
to
release
him
until
the
officers
determined
that
he
was
not
the
suspect
they
were
after.
In
other
words,
the
officer
arguably
subjectively
intended
to
seize
the
plaintiff
whom
he
mistakenly
believed
was
the
suspect
[…]
(stating
that
an
“implicit
holding
in
Szabla”
is
“that
a
seizure
occurs
when
a
[K9]
seizes
an
individual
[whom]
police
did
not
know
to
be
present, at
least
when
police
initially
believe
that
the
individual
is
the
suspect”
(emphasis
added)).
This
case,
on
the
other
hand,
fits
best
in
the
unintended-target
line
of
cases.
Less
than
a
minute
before
the
bite,
Deputy
McNamara
commanded
Thor
to
“get
him!”—the
fleeing
suspect;
during
the
bite,
he
repeatedly
ordered
Thor
to
disengage
from
Officer
Irish
and
quickly
restrained
him;
and
after
the
bite,
he
refocused
Thor
toward
the
suspect.
[…]
So
Szabla
could
not
have
put
Deputy
McNamara
on
notice
that
Thor’s
bite
was
a
seizure.
Even
without
this
precedent,
the
resolution
should
have
been
clear.
If
you’re
a
law
enforcement
officer
who
works
with
other
officers
and
their
K9s,
you
should
assume
the
risk
that
the
dog
is
going
to
screw
up
now
and
then.
Non-cops
aren’t
expected
to
assume
this
risk
because
they’re
not
law
enforcement
professionals
with
all
the
(alleged)
“training
and
expertise”
that
comes
with.
When
a
regular
person
is
caught
by
a
dog,
it’s
a
seizure
and
the
Fourth
Amendment
applies
because
the
dog
is
an
extension
of
the
government’s
power.
When
a
cop
dog
bites
another
cop,
that’s
just
an
incident
that
should
mean
nothing
more
than
resetting
the
“DAYS
SINCE
LAST
WORKPLACE
ACCIDENT”
counter
to
zero.
It’s
definitely
not
the
basis
for
a
civil
rights
lawsuit.
All
Officer
Irish
is
going
to
get
from
this
spectacular
failure
is
a
bunch
of
antipathy
from
other
law
enforcement
officers.
No
one’s
going
to
want
to
provide
backup
to
an
officer
who
has
demonstrated
he’s
willing
to
sue
over
unfortunate
(and
extremely
uncommon)
workplace
mishaps.
He
may
as
well
have
blown
his
money
suing
the
Champlain
PD
for
providing
an
unsafe
work
environment.
It
was
always
a
non-starter,
but
somehow
the
lower
court
gave
him
just
enough
hope
to
allow
him
to
embarrass
himself
at
the
appellate
level.
Appeals
Court
Says
Cop
Whose
Cop
Dog
Bit
Another
Cop
Is
Entitled
To
Qualified
Immunity
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