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Jury Should Decide K9 Attack Case in Michigan

(CN) - Immunity does not shield a cop who allegedly sicced his police dog on a woman as she tried to pee in the woods after a car crash, the 6th Circuit ruled.

The ruling calls it uncontested that Terry Greco was "tipsy but unharmed" when emerged from the car she drove into a ditch on Sept. 30, 2012.

Greco had been on the way back to her hotel from a conference in Howell, Mich., and walked in flip-flops to a nearby gas station where two emergency medical technicians (EMTs) happened to be refueling their ambulance.

Smelling alcohol on her breath, the EMTs called in a possible DWI to police.

When Officer Anthony Clayton with the Livingston County Sheriff's Department arrived at the scene, he instructed his K-9 companion Diago to find Greco.

Greco says she was mid-squat, peeing near some bushes, when she saw men approaching with flashlights, shouting at her to put her hands on her head.

As she struggled to comply, she says Clayton sicced the dog on her.

Roughly 20 seconds passed before Clayton released the dog from Greco's leg, leaving her with "a nasty injury to her thigh," the ruling states.

Clayton's story differs, saying that "all hell broke loose" because he slipped on a log in the "swamp area" where Greco was hiding.

As for waiting "10 to 20 seconds" before calling Diago back, Clayton says he had to ensure that Greco did not have a weapon.

A federal judge in Detroit denied Clayton immunity, and the Cincinnati-based 6th Circuit agreed Friday that the diverging stories should go to a jury.

"When deciding whether an officer violated such a clearly established right, we may not call off the trial merely because an officer says he or she acted reasonably in the face of competing testimony," Judge John Rogers wrote for a three-judge panel (emphasis in original).

While Clayton says Greco's injury was an accident, Rogers said "the question remains whether a jury could reasonably decide that Clayton 'sicced the dog' on Greco."

"We agree with the District Court that it could," Rogers added. "And even if Diago's initial bite had been an accident, the jury could consider Clayton's twenty-plus second delay in removing Diago an intentional seizure as well."

Clayton's story has some support from the civilian who accompanied him into the woods as part of a police ride-along.

This man's account adds "that Greco was belligerent, calling the officers 'Nazis' and 'laying on her back kicking her feet towards the dog," according to the ruling.

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