TACOMA — A Pierce County Sheriff’s deputy who allegedly allowed his K-9 to wrongfully attack a domestic violence suspect near Puyallup in 2019 isn’t protected from being sued for excessive force, a federal appeals court has ruled.
The 9th U.S. Circuit Court of Appeals recently affirmed that K-9 handler deputy Levi Redding isn’t entitled to qualified immunity after he was accused of violating a woman’s Fourth Amendment rights in an ongoing federal civil lawsuit brought against him and the Pierce County Sheriff’s Office in 2022.
Qualified immunity is a controversial legal doctrine that shields government officials, including law enforcement officers, from civil claims unless their alleged conduct passes a two-prong test: It’s not enough to have purportedly violated a constitutional right, it must also be shown that the conduct was previously determined to be wrong by law.
“Even if there is an unconstitutional use of excessive force, government officials performing discretionary functions are entitled to qualified immunity unless the unlawfulness of their conduct was clearly established at the time,” the 9th U.S. Circuit Court of Appeals noted in its unpublished memorandum opinion on the case last month.
In 2020, a Reuters investigation found that police were often granted immunity even when courts held that they used excessive force. The qualified immunity legal doctrine, established by the Supreme Court in 1967, is intended to protect government workers from frivolous lawsuits, Reuters reported.
In the original complaint, filed in U.S. District Court for Western Washington, a woman who allegedly hit her boyfriend and his teenage son while intoxicated claimed that Redding, in a subsequent effort to find her in the neighborhood after she had left the home, unnecessarily deployed a department K-9 who mauled her left arm and caused permanent injuries.
The Pierce County Prosecuting Attorney’s Office, which is representing the sheriff’s office and Redding, denied all alleged wrongdoing, sought to dismiss the case and asserted that no evidence in the matter had overcome Redding’s presumptive qualified immunity, court records show.
A federal judge threw out certain claims but left others intact, including the allegation that Redding had used excessive force and violated the woman’s Fourth Amendment protection from unreasonable seizure.
Attorneys for the sheriff’s office and Redding appealed the decision. The issue was argued and submitted to the 9th U.S. Circuit Court of Appeals in December.
In a March 19 memorandum opinion, the three-judge appellate panel’s majority upheld the federal district court’s decision, finding that Redding was not entitled to qualified immunity in the case. One judge dissented.
Pierce County Prosecuting Attorney’s Office spokesperson Adam Faber declined to comment on the appeals court’s decision, noting that the civil case was still being litigated.
An attorney representing Jenni Ellis, the plaintiff in the lawsuit, didn’t immediately return messages seeking to discuss the matter.
Pierce County Sheriff’s Office, deputy sued
Ellis, who Pierce County Superior Court records show wasn’t charged with a crime, had left a home in the 8500 block of 60th Avenue E before deputies arrived sometime after midnight on March 12, 2019, according to her lawsuit.
Ellis and her boyfriend were involved in a domestic dispute, where she allegedly struck him and, inadvertently, his 17-year-old son who tried to break up the fight, the suit said. Her boyfriend called 911 to deescalate the situation and Ellis reportedly left in her pajamas out into the pouring rain.
The complaint claimed that Ellis was unarmed and, at 115 pounds, no real threat to law enforcement.
After Redding deployed the department K-9, “Zepp,” to locate her, the dog found her and bit and held onto her arm. The bite lasted for 25 to 41 seconds, the appeals court memo said.
“Deputy Redding did not give any verbal warnings that Jenni could hear and in fact Deputy Redding allowed K-9 Zepp to suddenly dart away from him and then attack Jenni as she was walking back home,” according to an amended version of the lawsuit.
Zepp retired shortly before his ninth birthday in 2020. The sheriff’s office celebrated the German Shepherd’s “unique tendency to chase but not bite,” The News Tribune wrote in a story on his retirement at the time.
Attorneys for the Pierce County Sheriff’s Office and Redding sought to poke holes in Ellis’ claims: Ellis weighed between 150-155 pounds, she was carrying a bottle, she knew that police had been called and she was a proven threat to return to the home based on prior domestic altercations involving her, according to a court filing by the defendants.
The K-9 was on a 30-foot leash held by Redding, who said he had received no response after calling out to Ellis by name and announcing himself as law enforcement, according to the filing. The dog located Ellis underneath her boyfriend’s boat on a trailer in the front yard. After hearing a woman yelling, Redding went to Ellis, who allegedly had hold of the K-9, and commanded her to let go of the dog and to show her hands, the filing said. He then pulled her from underneath the trailer, with the dog’s help, and found her hands to be empty.
Ellis was taken to a local hospital where her blood-alcohol level was found to be .233, according to the filing. It said she was treated for three left-elbow lacerations that were consistent with Redding’s description of events and inconsistent with claims that the biting was continuous or repetitive.
“Plaintiff later conceded under oath ‘I don’t remember a lot’ about her seizure because her perception and memory were affected by her intoxication, surprise at being bitten, and the bite itself,” the filing said, adding that Ellis’ false allegations had prevented her lawsuit from being dismissed.
Appeals court rules on qualified immunity
The 9th U.S. Circuit Court of Appeals found that Zepp’s bite-and-hold was a seizure and that Redding had acknowledged commanding Ellis to show her hands and let go of the dog, instead of commanding Zepp to release her, according to the appeals court’s memorandum opinion.
“It is undisputed that Washington police patrol dogs are trained in the ‘bite-and-hold’ method of apprehension,” the appeals court wrote. “This method trains a K9 to bite-and-hold after a search command unless it is restrained from doing so or commanded not to. That is exactly what happened here.”
It agreed with the federal district court that there were issues raised for a jury over whether Ellis’ alleged crime warranted a bite-and-hold, whether the officers’ safety was actually threatened and whether Ellis resisted arrest or posed a flight risk.
Instead of focusing on Zepp’s purportedly unexpected contact with Ellis that led to the bite, the appeals court homed in on Redding’s decision to deploy the dog and then to not command him to stop biting, the memo said.
“[I]t was Redding’s failure ‘to call the dog off’ that ‘improperly encouraged the continuation of the attack,’” the appeals court wrote. “A bite-and-hold dog is trained to keep biting until told to stop, and Redding never commanded K9 Zepp to stop biting Ellis, who could not surrender (or let go of the dog) because of the bite-and-hold.”
The duration of the bite was longer than that in a 1998 case out of California, the memo said. In that case, a court denied an officer qualified immunity after the officer didn’t call off his dog.
“The unlawfulness of Redding’s conduct was clearly established, so he is not entitled to qualified immunity,” the appeals court wrote.
In a dissenting opinion, Judge Ryan Nelson said it was irrelevant whether Ellis was fleeing, resisting arrest or posing a threat to Redding or her victims.
“What is undisputed and material is that Redding was told that Ellis was violent, potentially armed, fleeing arrest, and likely to return to her victims if not arrested,” Nelson wrote. “Those facts — not the facts that Redding was unaware of — are what matter.”
He also said that the court’s precedent is that it’s unreasonable to direct a police K-9 to continue biting a fully surrendered suspect under an officer’s control.
“No matter how carefully a reasonable officer read [our caselaw] beforehand, he couldn’t know that it’s unlawful to use a dog to secure an arrestee who hasn’t fully surrendered,” he wrote. “And on no version of the facts had Ellis ‘fully surrendered’ or come ‘under officer control’ when Redding allowed the dog to continue biting her. Redding is thus entitled to qualified immunity.”
In its decision, the appeals court also unanimously reversed the federal district court’s upholding of two state claims, including negligence. A negligence claim must not be based on an intentional act, such as the use of excessive force, but instead is limited to purported negligence leading up to the act, the court noted.
There’s been no activity in the federal lawsuit since the issuance of the appeals court’s memorandum opinion last month, court records show, and there appears to be no currently scheduled trial date in the case.
