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Sixth Circuit scrutinizes use of police dog on fleeing suspect

A police officer denied qualified immunity by a federal judge told an appeals court panel he was not required to give a warning to a fleeing suspect before releasing his canine unit.

CINCINNATI (CN) — A federal judge "created a new legal rule" when he denied a Michigan police officer's motion for qualified immunity and found that a canine unit may only be released on a suspect without warning under "exceptional circumstances," the officer argued Wednesday before the Sixth Circuit.

Officer Richard Houk of the Washtenaw County Sheriff's Department became involved in the pursuit of Cory Jarvela on Aug. 19, 2017, after Jarvela crashed his car into a tree while intoxicated and fled the scene on foot.

Houk was aided in his pursuit by Argo, his canine unit, who was initially restrained by a 15-foot lead.

When Houk and Argo came upon Jarvela in a heavily wooded area, the dog and suspect became locked in a battle, and Argo eventually bit Jarvela's right bicep and caused injuries that required 26 stitches.

Houk and Jarvela disagreed about who initiated the confrontation, but a video recording from the officer's bodycam included audio of Houk telling Argo to "get that guy, hold 'em, hold 'em, hold 'em."

Jarvela sued Houk, Washtenaw County and several other officers involved in the pursuit in 2019, and a federal judge denied Houk's motion for qualified immunity in August 2021.

U.S. District Judge Mark Goldsmith, an appointee of Barack Obama, relied heavily on the 2013 Sixth Circuit decision in Rainey v. Patton, an unpublished opinion in which the Cincinnati-based appeals court ruled a suspect has a right to surrender to avoid a confrontation with a police dog prior to the use of the dog.

Houk cited the 2017 decision in Miller v. Rybicki from the U.S. District Court for the Eastern District of Michigan and argued any warning to Javela would have raised serious safety concerns for himself and the other officers involved in the pursuit, but Goldsmith was not convinced.

"Javela did not present known risks that made him seem particularly dangerous," the judge wrote. "The circumstances were a far cry from Miller, which involved a suspect the officers had reason to believe had threatened to kill people and may have had a weapon."

In his brief to the Sixth Circuit, Houk argued Goldsmith failed to apply clearly established precedent in his ruling, which he claimed could "significantly alter the manner in which police service dogs must be used and trained."

The officer disputed the district judge's reading of the danger posed by Jarvela during the chase, arguing his use of Argo did not violate the suspect's Fourth Amendment rights.

"Deputy Houk did not know if Jarvela was still in the vicinity nor did he know whether Jarvela was armed and dangerous," the brief states. "Jarvela had crashed his truck after a dangerous high-speed chase, had fled into a dark and wooded area in the middle of the night, and had a 13-minute head start on the pursuing officers.

"It was reasonable for Deputy Houk to believe that a shouted warning would either expose the officers to potential ambush or facilitate Jarvela's attempts to continue to escape them."

In his brief, Jarvela admitted a police officer is not "absolutely prohibited" from using his canine unit to detain a suspect, but said the lack of a warning in this case made the use of Argo unreasonable.

He commended Goldsmith for his reliance on the Rainey decision, and emphasized that while it remains unpublished, it "acknowledges the existing baseline rule that the use of a canine is unreasonable when the suspect has not been afforded an opportunity to avoid the encounter."

"The acknowledgement of that baseline rule came from prior published cases. As such, the law was clearly established at the time of the incident," the brief states.

Attorney Stephen van Stempvoort argued Wednesday on behalf of Houk and told the Sixth Circuit panel the lower court erred when it applied a "one size fits all" approach to cases involving the use of canine units.

Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, interjected and gave his interpretation of the video evidence.

"This looked like it didn't matter what happened," he said. "They were going to use the dog to immobilize the person [and] it's not obvious why they need to have the dog bite into his arm."

Van Stempvoort emphasized the split-second nature of the encounter and the use of a short lead by his client in the seconds leading up to the tussle.

The attorney argued the cases used by the lower court to support its denial of immunity were "very different on the facts," and that Jarvela's resistance to the dog required the continued use of force.

Attorney John Peters argued on behalf of the National Association of Professional Canine Handlers, an amicus party, and told the panel he believed Houk showed restraint during the pursuit of Jarvela.

"It was not his intent to use the dog to physically restrain the suspect," Peters said, while also emphasizing Jarvela's resistance to the initial attack.

U.S. Circuit Judge Raymond Kethledge, another Bush appointee, took exception to the attorneys' characterization of Jarvela fighting back.

"Instinct takes over," he said. "Who wouldn't do something about [a dog attack]?"

Attorney Shawn Cabot argued on behalf of Jarvela and told the panel the case is "very fact-intensive" and involves numerous questions that can only be answered by a jury.

Cabot pointed out the officers made no effort to be quiet during their pursuit of his client, which he said "undermines their argument ... about the threat of being ambushed."

U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, asked about the lack of a warning given by Houk, and opined it would not have served much of a purpose, given that Jarvela was passed out in the grass moments before the attack.

Cabot pushed back and said a shout from the deputy would have been useful, but Murphy remained skeptical.

In closing his arguments, Cabot reiterated the attack should have been stopped when his client complied with Houk's request to roll onto his back.

"Once he complies," the attorney said, "they should have pulled the dog back. Houk keeps saying, 'bite, bite, bite!' Why?"

No timetable has been set for the court's decision.

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