Colorado deputies who sicced dog on sleeping homeowner ask 10th Circuit for immunity

DENVER (CN) — Two Douglas County sheriff’s deputies asked a 10th Circuit panel on Wednesday to reverse a lower court’s denial of qualified immunity from a suit filed by a man in Highlands Ranch, Colorado, after a police dog the officers let loose in his house bit him as he slept.

“The business of police and firemen is to act, not to speculate or mediate on whether the report is correct,” argued Douglas County attorney Andrew Steers on behalf of the deputies.

On Feb. 11, 2022, a person in Highlands Ranch called 911 to report a man breaking a window to climb inside a neighbor’s house. When Douglas County Sheriff’s Deputies Tyler Kyle and Scott Kelly investigated, they heard a voice inside and sent a police canine in through the window. The dog quickly found and bit the sleeping homeowner, Tyler Luethje.

Luethje told officers he lived there and admitted breaking the window when he couldn’t find his key. Kyle and Kelly handcuffed Luethje and called an ambulance. When Luethje left for the hospital, the deputies searched his home.

Luethje sued the deputies on Nov. 17, 2023, claiming they used excessive force and conducted an unlawful search and arrest, in violation of his Fourth Amendment rights.

A federal judge denied the deputies’ motion for qualified immunity on June 5, 2024, finding no exigency to justify the use of force. The deputies appealed.

U.S. Circuit Judge Carolyn McHugh asked who the deputies thought the dog would find and what would have happened if the dog bit a child.

“The canine was sent inside to bite the first person it found; that could have been the homeowner, could have been a child of the homeowner, could have been the homeowner’s grandmother," McHugh said. “How is that reasonable, to send the dog in to bite anybody?”

Steers said that using a dog to search the home was the fastest way to find whoever was in there, and that under certain circumstances he thought it would be justified if the dog bit a child.

“There are circumstances where that might be reasonable with a 5-year-old,” Steers said. “The circumstances where it wouldn’t be OK would be if there was less probable cause or if they knew a child was inside, but here they have cause to believe someone is in the house, and they have evidence of a violent break into the house.”

Since dogs are trained to bite and hold limbs, and not to kill, Steers said loosing the dog was a reasonable use of force, whereas shooting into the home would have been excessive.

U.S. Circuit Judge Gregory Phillips questioned Steers about the officer’s decision to search Luethje’s home without a warrant after he identified himself and had been taken to the hospital.

“It’s the plaintiff’s house, why don’t you have to get consent from the cops to search his house?” Phillips asked.

Steers said the officers wanted to make sure no one else was in the home.

“I would argue a quick protective sweep is allowed under the Constitution,” Steers said.

On behalf of Luethje, attorney Zachary Shiffler argued no exigency supported sending in the police dog.

“Without an exigency, defendants can’t enter the home, they can’t send the dog in, and plaintiff doesn’t get bit,” said Shiffler who practices with the Civil Litigation Group in Denver. “Defendants did not have reasonable evidence of a burglary, much less a hostage situation, they had a mere hunch.”

Phillips asked what the deputies should have done if the homeowner didn’t answer the door.

“They continue to observe,” Shiffer said. “They’re more than welcome to wait outside and see if there is anything to corroborate this wild accusation that there is someone being held hostage inside.”

All three judges on the panel were appointed by Barack Obama, including U.S. Circuit Judge Scott Matheson. The panel held oral arguments remotely and broadcast the hearing on YouTube. The court did not indicate when or how it would decide the case.

Follow @bright_lamp