(CN) - A Maryland police officer can't be sued for unreasonable search and seizure after his patrol dog bit a drunk, passed-out 13-year-old boy and dragged him five or six feet by the leg, the 4th Circuit ruled.
After getting drunk at a party, Oscar Melgar and a friend, Brian Bentacur, went outside to try to "walk it off." They eventually sat down on a lawn to sober up.
As a couple walking their dog approached, Melgar got up, crossed the street and passed out under a holly bush. He later explained that he hid under the bush "so nobody could see me drunk," and that his last recollection was "getting cold, and trying to get warm."
Neither boy was dressed appropriately for the cold weather.
After talking to Bentacur for a few minutes, the couple noted his slurred speech and called 911 to report finding a boy lying on the ground.
Officers and paramedics found an "extremely intoxicated" Bentacur -- he'd vomited and urinated on himself. They took him to a hospital for possible alcohol poisoning and hypothermia and began to look for Melgar.
Officer Jonathan Greene decided to use his patrol dog, Carter, for the search, even though the dog was trained to track criminals and bite them. No bloodhounds were available, and Greene believed he'd be able to spot Melgar and call off his dog before it bit anyone.
Carter found Melgar under the bush and bit his lower right leg, pulling him five or six feet before Greene pulled him off.
Melgar's father, Jose Melgar, sued Greene and Montogomery County, Md., for violating his son's Fourth Amendment rights.
The district court refused to grant the officer qualified immunity, ruling that a seizure "debatably" took place.
But the Richmond, Va.-based appeals court reversed. The biting incident was "truly unfortunate, but it was not due to Officer Greene violating a clearly established law," Judge J. Harvie Wilkinson III wrote for the 2-1 majority.
"[I]t is regrettable that anyone was injured, but we will not penalize an officer whose actions in the face of limited time and uncertain legal principles may well have prevented a far darker result and conceivably even saved the boy's life."
Judge M. Blane Michael disagreed that Greene is entitled to qualified immunity.
"An objectively reasonable police officer would not use a find-and-bite dog to conduct a hasty and limited search for a missing 13-year-old boy who is highly intoxicated, harmless, and not wanted for a serious crime," he wrote.
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