                                                                                          FILED
                                                                                    Feb 18, 2014
                                                                                DEBORAH S. HUNT, Clerk
                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0135n.06

                                           No. 13-2129

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


TERRANCE DREW,                                     )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )
                                                   )
MICHAEL MILKA,                                     )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
       Defendant-Appellant.                        )   EASTERN DISTRICT OF MICHIGAN




BEFORE:        MERRITT, MOORE and CLAY. Circuit Judges.


       MERRITT, Circuit Judge. In this interlocutory appeal by the defendant, police officer

Milka, who arrested plaintiff Drew and caused his police dog to bite him during the process, the

question is whether the defendant officer is entitled to “qualified immunity.” The district court

described the case as follows and ruled as follows on the issue of qualified immunity:

               Plaintiff’s testimony — viewed in the light most favorable to Plaintiff —
       suggests that he did not resist the officers’ attempt to take him into custody.
       According to his testimony, he was simply standing still with his daughter when
       police officers ran up, struck him in the head, and tackled him to the ground. Despite
       his protests that he was not resisting arrest and his claim that he “willingly”
       cooperated with officers’ order that he place his hands behind his back, the arresting
       officers twisted his arms and ordered a dog bite. A reasonable jury could accept
       Plaintiff’s account as true despite Defendant’s contrary testimony, and under these
       facts Defendant used excessive force in ordering the dog bite, irrespective of its
       timing.

       ....
No. 13-2129
Drew v. Milka

               It is clear that ordering a dog bite on a compliant arrestee violates a clearly
       established constitutional right. As the Sixth Circuit stated in Wysong, “[t]he same
       cases holding the police may not use force on a subdued, non-resisting subject hold
       that the right to be free from physical force when one is not resisting the police is a
       clearly established right.” 260 Fed. App’x at 848 (citing Smoak v. Hall, 460 F.3d
       768, 784 (6th Cir. 2006) and Champion v. Outlook Nashville, Inc., 380 F.3d 8983.,
       902 (6th Cir. 2004)). Just as the government has no law enforcement interest in
       ordering a dog bite on someone who is neither resisting arrest nor trying to flee, there
       is a clearly established constitutional right to be free from dog bites when one is
       neither resisting arrest nor attempting to flee. Accepting Plaintiff’s facts for
       purposes of this motion, it is therefore clear that Defendant violated Plaintiff’s
       clearly established constitutional rights. Therefore, the qualified immunity doctrine
       does not prevent Plaintiff from proceeding on his excessive-force claim.

       After reviewing the record and briefs in the case, we agree with the district court that there

is a material dispute of facts that must be decided at trial on the question of how the arrest occurred

and whether the plaintiff resisted arrest and whether there was any justification for the dog bites.

Therefore, we affirm the district court’s refusal to grant summary judgment in favor of defendant.




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