                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0566n.06

                                         Case No. 18-5102

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Nov 08, 2018
 ALEXANDER L. BAXTER,                              )                          DEBORAH S. HUNT, Clerk
                                                   )
          Plaintiff-Appellee,                      )
                                                   )          ON APPEAL FROM THE UNITED
 v.                                                )          STATES DISTRICT COURT FOR
                                                   )          THE MIDDLE DISTRICT OF
 BRAD BRACEY; SPENCER R. HARRIS,                   )          TENNESSEE
                                                   )
          Defendants-Appellants.                   )                       OPINION



BEFORE: THAPAR, BUSH, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge.

       A neighbor caught Alexander Baxter burglarizing a house and called the police. Soon

Baxter heard sirens and saw a helicopter looking for him, so he ran to another house (one he had

broken into before) and hid in the basement. But the canine unit arrived and quickly sniffed him

out. After giving several warnings, one of the officers released his dog, who apprehended Baxter

with a bite to the arm. Baxter says he had already surrendered when the dog was released, and so

the two officers violated his constitutional right to be free from excessive force. The case is before

us now on an interlocutory appeal after the district court denied the officers’ claims of qualified

immunity. We reverse that decision because the officers’ conduct, whether constitutional, did not

violate any clearly established right.
No. 18-5102, Baxter v. Bracey, et al.


                                                I.

       Officers Spencer Harris and Brad Bracey arrested Alexander Baxter on January 8, 2014

after he committed an aggravated burglary and fled the scene. A neighbor caught Baxter breaking

into a home and called the police. He fled once he heard sirens and saw the helicopter—first hiding

in a car, and then seeking refuge in the basement of a house he had previously broken into. There,

Baxter hid between a chimney and a water heater while he watched and listened to the officers

outside.

       Harris and Bracey were part of Nashville’s canine unit, which is deployed for serious

crimes such as aggravated burglary. The two of them entered the house with their dog, Iwo. Bracey

announced they would release the canine if Baxter did not surrender. Although Baxter heard the

warnings, he stayed quiet. Harris—the dog’s handler—repeated the warning. Again, Baxter

remained quiet. So Harris released Iwo, who quickly found Baxter downstairs.

       The two officers followed Iwo into the basement and—according to Baxter—surrounded

him. Baxter claims that he raised his hands in the air when they came downstairs. But he never

responded to the officers’ warnings or communicated about where he was hiding. Within five to

ten seconds of discovering Baxter, Harris again released Iwo—this time to apprehend him. Iwo

restrained Baxter with a bite to the arm. The medical records reveal only one bite on Baxter’s

underarm, revealing that Iwo followed his training by apprehending Baxter with a single bite.

Harris eventually commanded Iwo to release Baxter and placed him under arrest.

       Baxter, proceeding pro se, sued Harris and Bracey under 42 U.S.C. § 1983. He asserts an

excessive-force claim against Harris and a failure-to-intervene claim against Bracey. Originally,

Bracey alone moved to dismiss the suit against him, arguing that qualified immunity shielded him

from Baxter’s somewhat amorphous claim that he failed to prevent the canine apprehension.




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No. 18-5102, Baxter v. Bracey, et al.


Baxter’s complaint, we held, pleaded sufficient facts to withstand a motion to dismiss. But those

facts must bear out during discovery for Baxter to defeat a motion for summary judgment. And

that is where we are today.

       After discovery, both officers moved for summary judgment, and the district court rejected

both claims. The district court held that summary judgment was inappropriate because Baxter’s

testimony corroborated the factual assertions in the complaint that this court previously upheld

against a motion to dismiss. If those facts were enough to defeat qualified immunity in a complaint,

the court reasoned, Baxter’s supporting testimony should do the same. Harris and Bracey then filed

this interlocutory appeal. See Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014).

                                                 II.

       Our inquiry here is guided by the interlocutory posture of the case. Because the district

court denied summary judgment to the defendants, we must determine whether “the undisputed

facts or the evidence viewed in the light most favorable to the plaintiff fail to establish a prima

facie violation of clear constitutional law.” Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998).

We will not weigh into credibility issues or try to resolve factual disputes. See Estate of Carter v.

City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005). Our task is much simpler. We must decide the

“neat abstract issue[] of law” regarding whether Baxter’s version of the facts amounts to a clear

constitutional violation. See Berryman, 150 F.3d at 563 (quoting Johnson v. Jones, 515 U.S. 304,

317 (1995)).

       The clarity of the constitutional violation is critical. An individual suing under § 1983 must

demonstrate two things: First, that the officer violated his constitutional rights. And second, that

the violation was “clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018) (internal quotation marks omitted). The “clearly established” prong sets up an exacting




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No. 18-5102, Baxter v. Bracey, et al.


standard in which the plaintiff must show that “every reasonable official would understand that

what he is doing is unlawful.” Id. (internal citations and quotations omitted). “It is not enough that

the rule is suggested by then-existing precedent”—it must be “beyond debate” and “settled law.”

Id. at 589–90 (emphasis added) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)). The effect

is that qualified immunity protects “all but the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

          Relevant here, courts can jump straight to the second question and dispose of a claim

without deciding whether the officer’s conduct violated the plaintiff’s constitutional rights. See

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). So long as the alleged violation has not been clearly

established, the officers receive qualified immunity and the suit can be dismissed. See id.

Proceeding in this way is often appropriate in “cases in which the briefing of constitutional

questions is woefully inadequate.” See Pearson v. Callahan, 555 U.S. 223, 239 (2009). By

resolving the issue on only the second prong, courts avoid “expending scarce judicial resources to

resolve difficult and novel questions of constitutional or statutory interpretation that will have no

effect on the outcome of the case.” Ashcroft, 563 U.S. at 735 (internal quotations and citations

omitted).

          That is the case here. The officers are entitled to qualified immunity because Harris’s use

of the canine to apprehend Baxter did not violate clearly established law. And because this court

does not have the benefit of sophisticated adversarial briefing from both parties, we decline to

resolve the more complex constitutional question raised by Baxter’s claim. See Pearson, 555 U.S.

at 239.

          The Fourth Amendment’s prohibition against unreasonable seizures protects individuals

from an officer’s use of excessive force while making an arrest. See Graham v. Connor, 490 U.S.




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No. 18-5102, Baxter v. Bracey, et al.


386, 394–95 (1989). Whether the force was excessive turns on its objective reasonableness under

the totality of the circumstances. Id. at 395–96; Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th

Cir. 2001). And the reasonableness of the officer’s force “must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490

U.S. at 396.

       We have demarcated the outer bounds of excessive-force cases involving canine seizures

with some degree of clarity. In this circuit, for example, we have held that officers cannot “use[]

an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing.”

Campbell v. City of Springboro, 700 F.3d 779, 789 (6th Cir. 2013). But just as clearly, we have

upheld the use of a well-trained canine to apprehend a fleeing suspect in a dark and unfamiliar

location. See Robinette v. Barnes, 854 F.2d 909, 913–14 (6th Cir. 1988). These cases and their

progeny establish guidance on the ends of the spectrum, but the middle ground between the two

proves much hazier.

       Baxter’s case looks closer to Robinette than Campbell—but the fit is not perfect. Like the

suspect in Robinette, Baxter fled the police after committing a serious crime and hid in an

unfamiliar location. He also ignored multiple warnings that a canine would be released, choosing

to remain silent as he hid. And unlike Campbell, the canine here was properly trained with no

apparent history of bad behavior. All of these facts would lead a reasonable officer to believe that

the use of a canine to apprehend Baxter did not violate the Fourth Amendment. See Graham,

490 U.S. at 396; Robinette, 854 F.2d at 913–14.

       Militating against those facts is Baxter’s claim that he surrendered by raising his hands in

the air before Harris released the dog. This conduct might show that he did not pose the kind of

safety threat justifying a forceful arrest. See, e.g., Ciminillo v. Streicher, 434 F.3d 461, 467 (6th




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No. 18-5102, Baxter v. Bracey, et al.


Cir. 2006). But Baxter does not point us to any case law suggesting that raising his hands, on its

own, is enough to put Harris on notice that a canine apprehension was unlawful in these

circumstances. That’s because even with Baxter’s hands raised, Harris faced a suspect hiding in

an unfamiliar location after fleeing from the police who posed an unknown safety risk—all factors

the Campbell court identified as significant to determining whether the seizure was lawful. See

Campbell, 700 F.3d at 788–89.

       Given all of this, we cannot say that Harris violated any clearly established law in using

Iwo to apprehend Baxter. Even if Baxter raised his hands, the other circumstances—undisputed in

the record below—weigh against a finding that “every reasonable official would understand that

what [Harris did] is unlawful.” Wesby, 138 S. Ct. at 589 (internal quotations omitted). For that

reason, Harris is entitled to qualified immunity.

       We reach this decision mindful of the fact that, on appeal from the prior motion to dismiss,

we held that Baxter’s right to be free from excessive force was clearly established under Campbell.

But there, we looked only at the facts as pleaded in the complaint. Baxter alleged that he

surrendered before the arrest, and his complaint was understandably silent about whether Iwo had

proper training or the time that elapsed before Harris released the dog. The facts revealed during

discovery add much-needed color to this case—as they often do. We now know that Iwo was well-

trained, that Harris released him within only a few seconds after entering the basement, and that

Baxter fled the scene, hid in the basement, was warned twice, and still never communicated with

the officers before being apprehended. All of these facts change the analysis and move the well-




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No. 18-5102, Baxter v. Bracey, et al.


pleaded claims to a place where we cannot say that “every reasonable official would understand

that what he is doing is unlawful.”1 Wesby, 138 S. Ct. at 589 (internal quotation marks omitted).

        Finally, it follows from there that Bracey receives the same protection of qualified

immunity. Police officers “can be held liable for failure to protect a person from the use of

excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). Such a claim requires proving

that the officer “observed or had reason to know that excessive force would be or was being used”

and “the officer had both the opportunity and the means to prevent the harm from occurring.” Id.

While there are numerous reasons to find that Baxter cannot prevail on this claim, the first is the

most obvious: If it is not clearly established that Harris used excessive force in apprehending

Baxter, it cannot be that Bracey observed or had reason to know that excessive force would be

used.

                                                  III.

        For the above-stated reasons, we REVERSE the district court’s order denying summary

judgment.




1
  It also bears mentioning that only Bracey filed the initial motion to dismiss. Harris, who is directly
responsible for the canine apprehension, defends his conduct under qualified immunity for the first
time.


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