    Case: 16-60042   Document: 00513813121    Page: 1   Date Filed: 12/27/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals

                               No. 16-60042
                                                                    Fifth Circuit

                                                                  FILED
                                                          December 27, 2016
                                                              Lyle W. Cayce
                                                                   Clerk
JACOB COOPER,

                                        Plaintiff–Appellee,

versus

LYNN BROWN,

                                        Defendant–Appellant.




               Appeal from the United States District Court
                 for the Northern District of Mississippi




Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Officer Lynn Brown appeals the denial of his motion for summary judg-
ment based on qualified immunity (“QI”). Because it was clearly established
that Brown’s conduct constituted excessive force in violation of the Fourth
Amendment, we affirm.
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                                 No. 16-60042
                                       I.
                                      A.
      One night in April 2013, Jacob Cooper was pulled over by Officer Michael
Pressgrove on suspicion of driving under the influence (“DUI”). Believing that
Cooper was intoxicated, Pressgrove administered a portable breath test, then
returned to his patrol vehicle. Cooper panicked and fled on foot into a residen-
tial neighborhood, where he took shelter inside a “cubbyhole,” a small wood-
fenced area used to store trash bins between two houses.

      Because there was a passenger in his squad car, and DUI is a mis-
demeanor offense, Pressgrove decided not to pursue Cooper.           Instead, he
radioed for backup, providing Cooper’s description and explaining that he was
a DUI suspect and on foot. Brown was one of the officers to respond, arriving
with his police dog Sunny, a Belgian Malinois. Pressgrove testified that he did
not request a K9 unit and that it would have been unusual to deploy a K9 unit
for a misdemeanor DUI. Pressgrove also testified that although he did not
know whether Cooper was armed, he had no reason to believe that Cooper had
a weapon.

      Upon entering the residential neighborhood with Brown, Sunny dis-
covered Cooper in his hiding place and bit him on the calf. The parties dispute
whether Sunny initiated the attack or whether, instead, Brown ordered it.
Nonetheless, the facts following the initial bite are undisputed: Sunny con-
tinued biting Cooper for one to two minutes. During that time, Cooper did not
attempt to flee or to strike Sunny. Brown instructed Cooper to show his hands
and to submit to him. At the time of that order, Cooper’s hands were on
Sunny’s head. Brown testified that he could see Cooper’s hands and could
appreciate that he had no weapon. Brown then ordered Cooper to roll onto his
stomach. He complied, and Brown handcuffed him. But he did not order

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                                     No. 16-60042
Sunny to release the bite until after he had finished handcuffing Cooper. As a
result of the bite, Cooper suffered years of severe pain from lower-leg injuries
that required multiple surgeries, including reconstruction and skin grafts.

                                           B.
      Cooper sued Brown under 42 U.S.C. § 1983, alleging that Brown’s use of
force was objectively unreasonable under the Fourth Amendment. 1 After dis-
covery, Cooper moved for partial summary judgment as to Brown’s individual
liability, and Brown moved for summary judgment on the basis of QI. The
district court granted Cooper’s motion and denied Brown’s. It determined that
Brown’s use of the police dog was objectively unreasonable, given that Cooper
was not actively resisting arrest and was suspected of only a misdemeanor
DUI. It further decided that Cooper’s right was clearly established.

                                           II.
      We review de novo the denial of summary judgment based on QI. Kovacic
v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). Under the collateral-order
doctrine, a denial of summary judgment based on QI is immediately appealable
to the extent that the appeal turns on a question of law. Newman v. Guedry,
703 F.3d 757, 761 (5th Cir. 2012). On interlocutory appeal, we have jurisdic-
tion to “review the materiality of any factual disputes, but not their genuine-
ness.” Hogan v. Cunningham, 722 F.3d 725, 730–31 (5th Cir. 2013). “Once a
defendant invokes qualified immunity, the burden shifts to the plaintiff to
show that the defense is not available.” Kovacic, 628 F.3d at 211. But where
factual disputes exist, we accept the plaintiff’s version.           Hogan, 722 F.3d
at 731.



      1 Cooper also asserted a claim against the City of Horn Lake. The district court en-
tered summary judgment for the city, and that decision is not addressed on this appeal.
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                                  No. 16-60042
                                        III.
      QI provides government officials with immunity from suit “insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). We apply a two-part test: (1) whether the plaintiff
has alleged a violation of an actual constitutional right; and (2) if so, whether
the right was clearly established at the time of the violation. Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Both questions are matters of law.
Brothers v. Zoss, 837 F.3d 513, 517 & n.8 (5th Cir. 2016).

                                        A.
      Cooper alleges that Brown violated his Fourth Amendment rights by
applying excessive force. To prevail on an excessive-force claim, he must show
“(1) injury, (2) which resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness of which was clearly unreasonable.”
Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) (quoting Collier v. Mont-
gomery, 569 F.3d 214, 218 (5th Cir. 2009)). The record plainly shows that
Cooper suffered an injury, but Brown contends that his application of force was
objectively reasonable.

      In excessive-force claims, the reasonableness of an officer’s conduct de-
pends on the “facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396
(1989). We must adopt “the perspective of a reasonable officer on the scene,
rather than [judge] with the 20/20 vision of hindsight.” Id. Our inquiry is
“whether the officer[’s] actions [we]re ‘objectively reasonable’ in light of the
facts and circumstances confronting [him], without regard to [his] underlying

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                                       No. 16-60042
intent or motivation.” Id. at 397.

       Application of the Graham factors shows that Brown’s conduct was
objectively unreasonable. DUI is a serious offense, Brothers, 837 F.3d at 519,
so that factor favors Brown. But the other factors push heavily for Cooper.

       No reasonable officer could conclude that Cooper posed an immediate
threat to Brown or others. Cooper was not suspected of committing a violent
offense, and Brown testified that Pressgrove, when calling for backup, had not
warned that Cooper might be violent. Moreover, Brown could see Cooper’s
hands and knew he had no weapon. 2 Indeed, Brown’s own expert testified that
there was no evidence that would have led a reasonable officer to believe that
Cooper was a threat. Thus, this factor weighs strongly for Cooper.

       On the third factor, Cooper was not actively resisting arrest or attempt-
ing to flee or to strike Sunny. The only act of “resistance” that Brown identifies
is Cooper’s failure to show his hands because, although they were on Sunny’s
head and visible to Brown, Brown wanted Cooper to raise his hands. Given
that Sunny was still latched onto Cooper’s calf at the time, the failure to raise
his hands can hardly be characterized as “active resistance.” 3 But even if it


       2Brown contends that the fact that Cooper was unsearched made Cooper more of a
threat. Although this will sometimes be a relevant fact—for example, where a plaintiff is
suspected of committing a violent crime—it is not enough, standing alone, to permit a rea-
sonable officer to characterize a suspect as an immediate threat.
       3 See Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015) (observing that
the plaintiff’s “failure to present his hands to be cuffed was due to Taser-induced involuntary
convulsions” and that this could not constitute active resistance under Graham); Kopf v.
Wing, 942 F.2d 265, 268 (4th Cir. 1991) (“We believe that a jury could find it objectively
unreasonable to require someone to put his hands up and calmly surrender while a police dog
bites his scrotum.”); Malone v. City of Fort Worth, No. 4:09-CV-634-Y, 2014 WL 5781001,
at *10 n.5 (N.D. Tex. Nov. 6, 2014) (“The Court wonders how a man, who is prone on the
ground and being attacked by a dog, can reasonably be expected to expose his hands and
unflinchingly hold them behind his back.”).
       Brown acknowledged that it might prove difficult for a suspect to convey his surrender
while fending off a dog attack:
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                                       No. 16-60042
was, any “resistance” ended quickly. Brown ordered Cooper to roll onto his
stomach, and Cooper complied with that order. At that point, no reasonable
officer could believe that Cooper was actively resisting arrest; to the contrary,
he was actively complying. And yet Brown still did not command Sunny to
release the bite.

       Moreover, Brown was required to “assess not only the need for force, but
also ‘the relationship between the need and the amount of force used.’” 4 Brown
subjected Cooper to a lengthy dog attack that inflicted serious injuries, even
though he had no reason to believe that Cooper posed a threat, and without
first attempting to negotiate. 5 And he continued applying force even after
Cooper was actively complying with his orders. Brown’s own expert conceded
that there was no reason for Brown to permit Sunny to continue attacking once
Cooper was on his stomach. The expert’s testimony is telling:
    Q: Once Mr. Cooper rolled to his stomach and put his hands where Offi-
    cer Brown told him to put his hands, was there any reason to leave the
    dog on at that point?
    A: I cannot think of any reason to allow the dog to remain physically
    engaged after that point.
    Q: In fact, officers cuff suspects in this manner routinely, correct?
    A: Yes, sir.
    Q: Without the use of a dog?


    Q. Officer Brown, you can understand how somebody who is being bitten by a Mal-
    inois would be slightly distracted while you’re giving them a verbal command?
    A. Right.
       4Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Gomez v. Chandler,
163 F.3d 921, 923 (5th Cir. 1999)); see also Poole v. City of Shreveport, 691 F.3d 624, 629 (5th
Cir. 2012) (noting that officers are permitted to respond to escalating verbal and physical
resistance with “measured and ascending” responses).
       5 See Deville, 567 F.3d at 167–68 (holding that a reasonable jury could find that the
degree of force used was not justified where the officer “engaged in very little, if any, nego-
tiation” with the suspect and “instead quickly resorted to breaking her driver’s side window
and dragging her out of the vehicle.”).
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                                      No. 16-60042
    A: Yes, sir.
    Q: And, in fact, most arrests occur without the use of a dog, correct?
    A: Yes, sir, overwhelmingly.
    Q: Okay. Is there any evidence you can show the jury in this case to
    account why Officer Brown could not order his dog to a backup position
    once Mr. Cooper was on his stomach instead of leaving the dog on?
    A: No, sir.
       The undisputed facts establish that Brown’s use of force was objectively
unreasonable. 6 To be clear, we do not say that any application of force to a
compliant arrestee is per se unreasonable, and we do not opine on the line of
reasonableness. Instead, we state only the obvious: Under the facts in this
record, permitting a dog to continue biting a compliant and non-threatening
arrestee is objectively unreasonable.

                                             B.
       The second part of the QI inquiry looks to whether the right was clearly
established at the time of the violation. “To answer that question in the affir-
mative, we must be able to point to controlling authority—or a robust consen-
sus of persuasive authority—that defines the contours of the right in question
with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–
72 (5th Cir. 2011) (en banc) (internal quotation marks and citation omitted).
But “this does not mean that ‘a case directly on point’ is required.” Id. at 372
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Rather, “existing pre-
cedent must have placed the statutory or constitutional question beyond
debate.” Id. at 372 (quoting al-Kidd, 563 U.S. at 741 (emphasis added)).

       The central concept is “fair warning.” Id. at 372; Newman, 703 F.3d



       6 Although Brown and Cooper dispute whether Brown ordered Sunny to attack, that
fact is not material to our holding. Even if the dog attacked of its own volition, Brown per-
mitted the attack to continue for one to two minutes.
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                                      No. 16-60042
at 763. “The law can be clearly established despite notable factual distinctions
between the precedents relied on and the cases then before the Court, so long
as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Newman, 703 F.3d at 763 (quoting Kinney v.
Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (internal quotation marks
omitted)). “Furthermore, ‘in an obvious case,’ the Graham excessive-force fac-
tors themselves ‘can clearly establish the answer, even without a body of rele-
vant case law.’” Id. at 764 (quoting Brosseau v. Haugen, 543 U.S. 194, 199
(2004)) (internal quotation marks omitted). 7

       Cooper’s right was clearly established. Our caselaw makes certain that
once an arrestee stops resisting, the degree of force an officer can employ is
reduced. “[A]lthough the right to make an arrest necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it,
the permissible degree of force depends on [the Graham factors].” Bush v.
Strain, 513 F.3d 492, 502 (5th Cir. 2008) (internal quotation marks omitted).
In Bush, we held that it was objectively unreasonable for an officer to slam an
arrestee’s face into a nearby vehicle when the arrestee “was not resisting arrest
or attempting to flee.” Id. Similarly, we declared in Newman, 703 F.3d at 762,
that tasing an arrestee was objectively unreasonable where “[t]he videos d[id]
not show Newman attempting to strike either officer, holding a weapon, or
even reaching for his waistband,” and “[t]he officers did not try to warn each
other . . . that Newman had a weapon, which might be expected if either officer
truly thought that at the time.”

       In the same way, Cooper was not attempting to resist arrest or flee, and



       7 See also Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir.
2015) (“The present case is an ‘obvious one where Graham and Garner alone offer a basis for
decision.’”) (quoting Brosseau, 543 U.S. at 199).
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                                       No. 16-60042
Brown had no reason to think that he posed an immediate threat. Moreover,
the fact that Bush and Newman are not dog-bite cases does not shield Brown.
“Lawfulness of force . . . does not depend on the precise instrument used to
apply it. Qualified immunity will not protect officers who apply excessive and
unreasonable force merely because their means of applying it are novel.” Id.
at 763–64 (footnotes omitted). Thus, Brown had “fair warning” that subjecting
a compliant and non-threatening arrestee to a lengthy dog attack was object-
tively unreasonable. 8

       This comports with decisions of sister circuits that have considered sim-
ilar facts. In Priester v. City of Riviera Beach, 208 F.3d 919, 923–24 (11th Cir.
2000), the Eleventh Circuit held that it was objectively unreasonable for offi-
cers to allow a dog to bite and hold a suspect for two minutes—which it de-
scribed as “an eternity”—where he was compliant with orders and not resisting
arrest. The Eleventh Circuit confronted the question a second time in Edwards
v. Shanley, 666 F.3d 1289 (11th Cir. 2012). There, a man was pulled over for
a traffic violation and fled on foot. When the officers encountered him, he was
lying on his stomach with his hands exposed. The man verbally surrendered,
shouting, “[Y]ou got me. I only ran because of my license.” Nonetheless, the
officers released their dog and permitted it to continue biting him for five to
seven minutes. Id. at 1292–93. The court held that the officers’ conduct vio-
lated the constitution. Its application of the Graham factors is instructive:
    Critical to this determination is the fact that, in subjecting Edwards to


       8 Our decision in Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per
curiam), is also closely on point. Because it is unpublished, it does not constitute clearly
established law for purposes of QI, but it aptly illustrates the established right. There, a
suspect was pulled over and fled on foot. When the officers encountered him in a backyard,
he was holding an iPod, which the officers claimed to think was a weapon. One officer tased
the plaintiff five or six times, including after the plaintiff was on the ground and no longer
resisting. We denied QI because the officer “should have known that he could not continue
to shock [the plaintiff] with the taser after he was no longer resisting arrest.” Id.
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                                      No. 16-60042
    the dog attack, Officer Shanley increased the force applied at the same
    time the threat presented by Edwards decreased. To be sure, the seri-
    ousness of Edwards’s fleeing Officer Lovett had not changed, and thus
    under the first Graham factor we accept that Officer Shanley had some
    reason to approach Edwards with concerns for his own safety. But
    insofar as fleeing from the police raises doubt about the danger an indi-
    vidual poses, Edwards mitigated that doubt by laying prone with his
    hands exposed and begging to surrender. As a result, the second and
    third Graham factors weigh in favor of Edwards’s argument that extra-
    ordinary force was not necessary or appropriate for the entire duration
    of the dog attack.
Id. at 1296.

       To the same effect, the Ninth Circuit held that “it was clearly established
that excessive duration of the bite and improper encouragement of a continua-
tion of the attack by officers could constitute excessive force that would be a
constitutional violation.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th
Cir. 1998). And the Sixth Circuit denied QI to an officer who “allowed a ‘bite
and hold’ dog, whose training was questionable, to attack two suspects who
were not actively fleeing and who, because of proximity, showed no ability to
evade police custody.” Campbell v. City of Springboro, 700 F.3d 779, 789 (6th
Cir. 2012).

                                            IV.
       Although Brown appeals the partial summary judgment for Cooper, we
lack appellate jurisdiction to review that decision. 9 Under 28 U.S.C. § 1291,
we have jurisdiction only over “final” decisions. The district court entered par-
tial summary judgment for Cooper “as to the issue of liability,” but it did not




       9 Though the parties assume jurisdiction is proper, “[w]e must always be sure of our
appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary.”
USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 277 (5th Cir. 2011) (quoting Castaneda
v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999)).
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                                       No. 16-60042
decide damages. 10 “Such judgments are by their terms interlocutory, and
where assessment of damages or awarding of other relief remains to be
resolved have never been considered to be ‘final’ within the meaning of
28 U.S.C. § 1291.” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976)
(citation omitted). 11 Because the partial summary judgment was not “final,” it
is not properly before this court as part of the QI appeal. 12

       The order denying qualified immunity is AFFIRMED. The appeal of the
partial summary judgment for Cooper is DISMISSED for want of appellate
jurisdiction.




       10The district court left the damages issue for the jury trial, which it stayed pending
this appeal.
       11 See also Way v. Reliance Ins. Co., 815 F.2d 1033, 1034 (5th Cir. 1987) (per curiam)
(dismissing an appeal for lack of jurisdiction because the partial summary judgment was not
final); Halliburton Co. Benefits Comm. v. Graves, 191 F. App’x 248, 250–51 (5th Cir. 2006)
(per curiam) (same).
       12 Some courts have used the doctrine of “pendent appellate jurisdiction” to review
partial-summary-judgment orders alongside orders denying QI. E.g., Farm Labor Org.
Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002). This court, however,
has held that “[p]endent appellate jurisdiction should be exercised only in ‘rare and unique’
circumstances,” where the non-final claim is “inextricably intertwined” with the QI inquiry.
Gros v. City of Grand Prairie, 209 F.3d 431, 436–37 (5th Cir. 2000) (quoting Woods v. Smith,
60 F.3d 1161, 1166 n.29 (5th Cir. 1995)). We generally have resisted efforts to bootstrap non-
final claims into QI appeals. See Gros, 209 F.3d at 437; Cutler v. Stephen F. Austin State
Univ., 767 F.3d 462, 468 (5th Cir. 2014); Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996);
see also Guillemard-Ginorio v. Contreras-Gomez, 490 F.3d 31, 37 n.4 (1st Cir. 2007) (declining
to consider a partial summary judgment in a QI appeal because of “the well-established rule
of reviewing only a district court’s final decisions.”). Because there are no “rare and unique”
circumstances here, we decline to exercise pendent appellate jurisdiction.
                                              11
