Black-Letter Principles, Video Evidence Help Court Conclude Canine Deployment Was Not Excessive Force

by | March 27, 2020

Ashford v. Raby, 2020 WL 1057393 (6th Cir. 2020)

Keyonte Ashford was driving under the influence with a BAC of .184. He was speeding along at more than 100 mph and straddling lanes, swerving and changing lanes without signaling. An officer saw him and tried to stop him. Upon seeing the officer, Ashford slowed to around 60 mph but did not stop. Other officers responded and helped force Ashford to stop by boxing him in.

Officers approached the car and ordered Ashford to show his hands. Ashford stuck both hands out the open driver side window. The officers told him to turn off the car. Ashford stuck his hands out further but did not turn off the engine. A police service dog team arrived and the canine handler took over commands.

The canine handler told Ashford to unlock the driver door. When Ashford didn’t comply, the handler reached in and unlocked and opened the door. The handler told Ashford to get out. Ashford did not. When Ashford was forced to stop, he did not put the car into park. His foot was on the brake, stopping the car’s movement.

This, the court concluded, is when the case became a matter of perspective. The intoxicated Ashford perceived that, if he let his foot off the brake, the officers might conclude he was trying to ram a police car and they might shoot him. The officers, however, perceived that Ashford was disobeying their commands. Ashford told the officers they could reach over him and turn off the ignition. It doesn’t take a tactical genius to know why that was not a good idea.

The handler commanded his dog to engage Ashford. The dog tried but could not reach up to Ashford’s arms. The handled grabbed one arm and brought it lower. The dog was able to bite and hold Ashford and drag him from the car. Ashford’s car lurched forward slightly and hit the police car directly in front of it. Officers handcuffed Ashford. As soon as Ashford was controlled, the handler commanded the dog to release from the bite and the dog obeyed.

Ashford sued for excessive force. The court held the officers were entitled to qualified immunity. The appellate opinion is worth reading for its clear explanation of the doctrine of qualified immunity and the questions a court must ask when ruling on an officer’s request for immunity. The appellate court began by laying out black-letter principles applicable to lawsuits alleging excessive force, including:

  • The plaintiff “faces an uphill battle. To be constitutional under the Fourth Amendment, use of force only needed to be reasonable under the circumstances.”
  • Reasonable force doesn’t mean force vindicated by hindsight.
  • Reasonable force doesn’t mean the officer used the best tool or technique: “Officers usually face a range of acceptable options, not a single, rigid right answer.”
  • “The substantive constitutional standard protects reasonable factual mistakes and qualified immunity protects him from liability where he reasonably misjudged the legal standard.”

The court noted the law mandates that, even if the officer’s use of force was unreasonable, Ashford still cannot successfully sue the officer unless the unreasonableness of the force used was “clearly established at the time.” The court pointedly noted, “that’s a tough standard. How tough? . . . The law must have been so clear that every reasonable officer in shoes would have recognized that the force used was excessive—and not just in the abstract but in the precise situation was facing.”

The handler commanded his dog to engage Ashford. The dog tried but could not reach up to Ashford’s arms. The handled grabbed one arm and brought it lower.

To assess whether Ashford won his uphill battle, the court considered three questions. First, was it reasonable for the officer to use force to remove Ashford from his vehicle? Second, if so, was it reasonable to deploy a police service dog to perform the seizure? Third, did the officer reasonably manage the dog during the seizure?

Ashford had been driving at high speed, he led officers on a chase that lasted longer than 2 minutes, and he refused orders to get out of his vehicle. Any officer would believe it was reasonable to remove him from the vehicle. Even though Ashford argued he was not making any aggressive moves, the court held that it was reasonable for officers to remove him when he didn’t get out on his own. Ashford perceived it was reasonable for the officers to reach over him and turn off the ignition. But the courted they “must consider what was reasonable from the officer’s perspective, not the suspect’s.”

The court recognized the tactical inadvisability of reaching into the car over the seated Ashford. Specifically, the court posited that Ashford could have grabbed for an officer’s gun if the officer reached over Ashford. The court also recognized Ashford could take his foot off the brake and punch the accelerator, jolting the officer. The court also recognized another subject might have been hiding in the back of Ashford’s SUV. “In short,” the court said, “Ashford’s idea only made sense if the officers trusted him.” And they had no reason to do so.

Being reasonable to remove Ashford from the vehicle by force, was it reasonable to use a police service dog to do it? “It’s helpful to ask: what was the alternative? To be sure, showing a potential gentler alternative is not enough (by itself) to make a use of force unreasonable,” the court noted, citing the testimony of one officer: “All had to do was step on the gas and you have a 6,000-pound vehicle that you’re next to and possibly getting drug by[.]” Officers—even service dog handlers who love their dogs—know it is much wiser to put a dog’s life at risk than an officer’s. The court knows it, too, and held the use of a service dog to bite Ashford and drag him from the vehicle was reasonable.

Finally, did the handler reasonably control the amount of force applied by the dog? Ashford claimed the officers held him down and allowed the dog to continue to bite for at least 10 seconds. The court watched the video and easily concluded Ashford was exaggerating. The court observed that, at most, the handler “could have called the dog off a second or two sooner. But that kind of fine-sliced judgment call amid ‘tense, uncertain, and rapidly evolving’ circumstances just isn’t the stuff of a Fourth Amendment violation.”

The court’s step-by-step analysis led it to hold that nothing about the use of the police service dog violated clearly established law. Thus, the officer was entitled to qualified immunity and dismissal of the lawsuit.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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