Irish v. McNamara

108 F.4th 715

Daniel IRISH, Plaintiff - Appellee v. Keith MCNAMARA, in his individual capacityas a Hennepin County Sheriff's Deputy, Defendant - Appellant

No. 23-3034

United States Court of Appeals, Eighth Circuit

Submitted: March 13, 2024

Filed: July 18, 2024

Appeal from United States District Court for the District of Minnesota

Counsel who presented argument on behalf of the appellant and appeared on the brief was Sarah C.S. McLaren, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Jamil M.F. Masroujeh, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Andrew J. Noel, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Robert Bennett, of Minneapolis, MN., Kathryn H. Bennett, of Minneapolis, MN., Marc Evan Betinsky, of Minneapolis, MN., Greta Ann Wiessner, of Minneapolis, MN., Robert Bennett, of Minneapolis, MN., and Julie C. Moroney, of Minneapolis, MN.

Before BENTON, ERICKSON, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

After an on-duty police K9 bit Officer Daniel Irish while they both pursued a suspect, he sued the K9's handler, Deputy Keith McNamara, under 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from excessive force and unreasonable seizure. The district court denied Deputy McNamara's motion to dismiss based on qualified immunity. Because it was not clearly established on these facts that the bite was a seizure, we reverse and remand with instructions to dismiss the complaint.

I.

We take the complaint in the light most favorable to Officer Irish and accept his factual allegations as true. Waters v. Madson, 921 F.3d 725, 734 (8th Cir. 2019). The parties' worlds collided on a rainy Minnesota afternoon in March 2022 after a suspect led police on a high-speed pursuit that ended with a foot chase. An officer radioed that the suspect had scaled a fence and was making a beeline through a nearby cemetery.

Within seconds, Deputy McNamara arrived and deployed his K9, Thor, without a leash. They hopped the fence and gave chase. Meanwhile, Officer Irish radioed that he was heading to the cemetery and requested the suspect's description. Another officer responded, "Suspect, male, . . . he's in a blue shirt now, blue jeans. K9 just got over the fence. [Deputy McNamara] is pursuing him." Officer Irish says he never heard about the K9.

Meanwhile, over the wail of police sirens, Deputy McNamara repeatedly commanded Thor, who could not see the suspect, to "get him!" as they raced down the cemetery path. Officer Irish then turned into the cemetery ahead of them and joined the pursuit. Thor bounded forward, outpacing Deputy McNamara and running behind Officer Irish's squad car. It was approximately 35 seconds after Thor got over the fence when Deputy McNamara heard screaming. His body cam picked up an agonized "Keith [McNamara]! Keith!" Too far away to restrain Thor, Deputy McNamara repeatedly shouted, "Thor, come! Thor! Thor, out!"

Officer Irish's body cam also captured the chaos. Shortly after he requested the suspect's description, he arrived in the cemetery, spotted the suspect just across a ravine, opened his squad car door, and yelled, "Get on the fucking ground!" Thor immediately attacked him. Officer Irish fought to control him but continued to give the suspect orders. Between breaths, Officer Irish told Thor to "get him!"—to no avail. He gasped, "Keith! Keith! I didn't know he was out." Deputy McNamara finally caught up and restrained and refocused Thor. Bloody but unbowed, Officer Irish gave a K9 warning. The suspect started to inch away, so the officers released Thor, who eventually vaulted through the ravine and apprehended him.

Following the incident, Officer Irish sued Deputy McNamara for violating his Fourth Amendment right to be free from excessive force and unreasonable seizure. He alleged that Deputy McNamara released Thor to apprehend the suspect and intended for Thor to bite the first person found in the cemetery. Since that was him, he faulted Deputy McNamara for failing "to give an effective K9 warning." See Adams v. City of Cedar Rapids, 74 F.4th 935, 939-40 (8th Cir. 2023) (finding it clearly established as of 2020 that before using a K9, an officer must give the suspect an "[adequate] warning and an opportunity to surrender" (citing Kuha v. City of Minnetonka, 365 F.3d 590, 595-96, 598 (8th Cir. 2003), overruled on other grounds by Szabla v. City of Brooklyn Park, 486 F.3d 385, 395-96 (8th Cir. 2007) (en banc))).

Deputy McNamara moved to dismiss the complaint based on qualified immunity. During argument on the motion, the district court observed that this was a "highly unfortunate accident," but it nevertheless denied qualified immunity, reasoning that it was clearly established that a seizure occurred within the meaning of the Fourth Amendment. Deputy McNamara now invokes our limited jurisdiction to review the court's interlocutory order. See Faulk v. City of St. Louis, 30 F.4th 739, 742 (8th Cir. 2022).

II.

Qualified immunity provides government officials "some protection against suits for civil damages." Dundon v. Kirchmeier, 85 F.4th 1250, 1255 (8th Cir. 2023) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). To prevail, Officer Irish must show that the facts "demonstrate the deprivation of a constitutional or statutory right" and that "the right was clearly established at the time of the deprivation." Peterson v. Heinen, 89 F.4th 628, 633 (8th Cir. 2023) (citation omitted). We may resolve the appeal under only the clearly established prong of the analysis. See Gardner v. Bd. of Police Comm'rs, 641 F.3d 947, 950 (8th Cir. 2011); see also Lombardo v. City of St. Louis, 38 F.4th 684, 690 (8th Cir. 2022) (cautioning that "courts should think hard, and then think hard again, before deciding a constitutional question that need not be resolved" (cleaned up) (quoting Camreta v. Greene, 563 U.S. 692, 707, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011))).

For a right to be clearly established, the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "Specificity is especially important in the Fourth Amendment context," City of Escondido v. Emmons, 586 U.S. 38, 42, 139 S.Ct. 500, 202 L.Ed.2d 455 (2019) (citation omitted), meaning we must grant Deputy McNamara qualified immunity unless Officer Irish identifies "controlling authority or a robust consensus of persuasive authority [that] put[s] the constitutional question 'beyond debate,' " Dundon, 85 F.4th at 1255 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741-42, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

Our analysis begins and ends with the "threshold question" of whether Officer Irish was seized within the meaning of the Fourth Amendment. See id.; cf. Whitworth v. Kling, 90 F.4th 1215, 1217 (8th Cir. 2024). That amendment targets the "misuse of power, not the accidental effects of otherwise lawful government conduct." Brower v. Cnty. of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (cleaned up) (citation omitted). Nor does it transform a government employee's every touch into a Fourth Amendment seizure. Id.; accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Instead, a seizure occurs when an officer, "by means of physical force or show of authority, terminates or restrains [an individual's] freedom of movement through means intentionally applied." Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (cleaned up) (citations omitted). The Supreme Court has explained that the "intent that counts under the Fourth Amendment is the 'intent that has been conveyed to the person confronted.' " Id. at 256-57, 260-61, 127 S.Ct. 2400 (cleaned up) (quoting Chesternut, 486 U.S. at 575 n.7, 108 S.Ct. 1975) (holding that all occupants in a car are seized during a traffic stop). So long as the officer's conduct is "willful," a "seizure occurs even when an unintended person or thing is the object of the detention." Brower, 489 U.S. at 596, 599, 109 S.Ct. 1378 (emphasis added) (citation omitted) (holding that a seizure occurred where a fleeing suspect crashed into a roadblock).

Leveraging these principles, Officer Irish argues that because Deputy McNamara willfully deployed Thor and objectively intended for him to bite the first person he encountered, the bite was a seizure. The deputy counters that he did not subjectively intend to seize Officer Irish and that because "the law is unclear as to whether subjective or objective intent should be considered," it was not clearly established that Thor's bite was a seizure. We agree with Deputy McNamara.

We have already recognized that even after Brower and Brendlin, the law is not clearly established in this area. As of 2007, it was not clearly established that an officer "could effect a seizure under the Fourth Amendment without subjectively intending to do so." Gardner, 641 F.3d at 953. In Gardner, we explored the role that subjective intent plays in a seizure analysis after an officer shot someone while experiencing a medical reaction rendering him unable to "distinguish between reality and fiction." Id. at 950. We explained that Brendlin focused on "objective intent," but it didn't "disavow statements in Brower that led lower courts and commentators to focus at some level on the subjective intent of the officers." Id. at 952-53. We also observed that we said in a post-Brendlin case that "the occurrence of a seizure depend[ed] on an officer's subjective state of mind." Id. at 953 (citing Moore v. Indehar, 514 F.3d 756, 760-61 (8th Cir. 2008)). Given the "legal landscape," we remanded for the district court to decide whether...