OK to Use a Patrol Canine for Cell Extraction?

McKinney v. City of Middletown, 2022 WL 4454475 (2nd Cir. 2022)

William McKinney attempted to rob a Subway fast food restaurant and was apprehended by officers. He had consumed alcohol, various psychiatric medications and cocaine. Following his arrest, McKinney was placed in a holding cell at the police department. At some point between 0345 and 0430, officers noticed McKinney had covered his cell camera with wet toilet paper, obstructing the officers’ view of his cell. Officer Sebold approached McKinney’s cell and asked him to remove the toilet paper from the camera. McKinney did.

After Officer Sebold left, McKinney began trying to cut his wrist and upper forearm with an unknown object. McKinney covered his cell camera a second time. Officer Sebold returned to the cell, accompanied by Officer Ward. They found McKinney lying on the floor of his cell. McKinney was hostile and refused to stand up and remove the toilet paper from the camera, telling the officers, “F— you, you remove it.” When an officer asked him a second time to remove it, McKinney replied, “F— you. If I’m going to jail, it won’t be for something minor. Come in here and I will go to jail for f—-ing you cops up.”

The officers decided McKinney should be in a padded cell. When the officers told McKinney they planned to move him, McKinney said he would not come out. Officer Sebold remained outside the cell while Officer Ward went to get Officer D’Aresta to assist them. McKinney continued to yell threats, shouting that he would “f— up” if he tried to move McKinney to a padded cell.

“McKinney has not shown that using a canine for a purpose for which it was not trained violates clearly established law.”

Officers Ward and D’Aresta returned to the cell with Officer D’Aresta’s police service dog Hunter. Officer Sebold told McKinney to move back from his cell door so the officers could enter, but McKinney refused to comply. McKinney continued to block the door and told the officers they would need to come in and get him. Officer D’Aresta readied Hunter by giving him the “watch him” command. Officer Sebold cracked open the cell door. McKinney clenched his teeth and fists, looked Officer Sebold in the eye, and said, “Come on.”

McKinney picked up a foam mattress pad and pressed it against the cell door. Officer Sebold entered and pushed McKinney to the back of the cell with his baton. McKinney grabbed the baton and attempted to pull it from Officer Sebold’s hands. McKinney then became “extremely combative” and “charged towards the officers.” Officer D’Aresta deployed Hunter, directing him onto McKinney’s lower right leg. Hunter bit McKinney and McKinney dropped to the floor, falling partially on top of Officer D’Aresta. As McKinney struggled against the officers, Officer Sebold struck McKinney’s leg with his baton, commanding McKinney to stop resisting. McKinney continued to fight and struggle with the officers despite the dog bite and baton strikes.

Officer Ward deployed his TASER device in a drive stun to McKinney’s left shoulder and ordered McKinney to present his hands for handcuffing. McKinney offered his left hand, but he refused to expose his right arm. McKinney then ceased fighting the officers and yelled for the officers to get Hunter off him. Once McKinney was secured in handcuffs, Officer D’Aresta removed Hunter from the bite. The officers arranged for McKinney to be taken to the hospital for treatment of his injuries.

McKinney sued, alleging excessive force. McKinney claimed Officer D’Aresta didn’t warn him prior to commanding Hunter to bite. He also claimed that it was improper to use Hunter to assist in a cell extraction because Hunter was a patrol dog and had not been trained or certified in forced cell extraction. The trial judge granted summary judgment for the officers and McKinney appealed.

Typically, the court must accept the version of the facts most favorable to the party opposing summary judgment. This case had a strange twist. McKinney said he “was in a state of mental and emotional distress, in a downward spiral, and psychologically decompensating at the time of the incident,” and he had “very little recollection of the events.” McKinney stated he did not dispute the officers’ “reported actions or version of the events” and admitted he engaged in a physical struggle with the officers and physically resisted their attempts to secure him.

McKinney told the appellate court that because Officer D’Aresta and Hunter were not trained for “cell extractions,” the officers “violated McKinney’s clearly established rights by using a canine for a purpose for which it was not trained.” The court disagreed on two fronts. First, Officer D’Aresta and Hunter were trained to state certification standards, though those standards may not have included cell extraction. McKinney could only defeat qualified immunity if he could show that Officer D’Aresta violated a clearly established constitutional right. McKinney failed to do so: “McKinney has not shown that using a canine for a purpose for which it was not trained violates clearly established law.” Second, and more pointedly, the court held that Officer D’Aresta did not deploy Hunter for the purposes of cell extraction. Only when McKinney “grabbed Officer Sebold’s baton and tried to wrestle the baton out of Officer Sebold’s hand” and “charged towards the defendants” did Officer D’Aresta command Hunter to engage McKinney.

The court agreed there was a legitimate question of whether Officer D’Aresta gave a warning before commanding Hunter to bite McKinney. Numerous court decisions clearly establish that a warning should be given to a compliant or nonviolent suspect before using a police service dog. But McKinney—by his own admission—was not a compliant or nonviolent suspect. The court stated that “deploying a police dog may be objectively reasonable,” even “without a warning,” when there is “an immediate threat to the safety of officers and the community.”

Finally, McKinney argued the dog bite lasted as long as 2 minutes and 15 seconds, claiming “the duration of the dog bite here constitutes excessive force in and of itself.” The court affirmed qualified immunity on this point as well. First, McKinney produced no clearly established law that officers violated his rights by allowing a canine bite to continue until a previously violent suspect could be secured. Second, the court observed there is “no exact duration that is considered reasonable” in police service dog bite cases.

It was a bad day all around for McKinney.

Ken Wallentine

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 four 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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