The Fifth Circuit did not say the dog bite was lawful. It said no case told two deputies to stop it.

The Fifth Circuit ruled on September 2 that two Harris County deputy constables cannot be sued for standing by while a police dog held a man’s arm for 43 seconds. The panel did not decide whether the bite was lawful. It decided that no earlier case had told the two deputies they had to stop it.

Why it matters

Precinct 1 deputy constables are county officers, paid by Harris County property taxpayers. This ruling narrows what a resident can recover when a county officer is present during a use of force and does nothing.

It also leaves the central question open. Five and a half years after the encounter, no court has ruled on whether releasing the dog was excessive force.

By the numbers

43 seconds, the length of the bite, from 7:27:18 p.m. to 7:28:02 p.m., per the opinion’s timeline.
3 minutes 52 seconds between Deputy Eric Bruss arriving at 7:23:26 and the dog being released.
1 minute 48 seconds between Deputy Wayne Schultz arriving at 7:25:30 and the release.
2 times the district court refused to grant these officers qualified immunity, finding genuine factual disputes.
2 of 3 defendants are now out of the case. The claim against the estate of the handler, Sergeant Robert Johnson, is still pending in the Southern District of Texas, case 4:23-CV-662.
0 rulings so far on whether the force itself violated the Fourth Amendment.

What the coverage buried

The local write-up reports the outcome accurately. It does not report the standard, and the standard is the whole ruling.

The panel, Judges King, Smith and Ramirez, ruled per curiam that the law was not clearly established for bystander officer liability on these facts. That is a finding about the state of prior case law, not about this dog, this arm or these deputies. Open the opinion and the distinction is on the face of it.

A reader of the coverage alone would reasonably conclude that a court examined the conduct and found it acceptable. No court has done that yet.

The other side

The case for the ruling is real and worth stating plainly. The 911 caller reported a weapon. Both deputies arrived after the encounter was underway, one of them less than two minutes before the dog was released. Asking a newly arrived officer to physically intervene inside a 43 second window, at a scene where a weapon has been reported, is a genuine burden, and qualified immunity as the Supreme Court has built it requires a prior case close enough to have put an officer on notice. The panel looked for one and said it was not there.

Here is the answer. The trial court, with the record in front of it, twice found that Fifth Circuit decisions gave ample notice and that the facts were disputed. A doctrine that demands a nearly identical prior case is a doctrine in which novel conduct is never clearly established, which is why the objection to it comes from civil rights lawyers and from libertarians and conservative judges at the same time.

What to watch

The claim against Sergeant Johnson’s estate, case 4:23-CV-662 in the Southern District of Texas. That is where the excessive force question survives.
Whether Thomas seeks rehearing en banc. The deadline runs from the September 2 judgment.
Whether Harris County has paid, or will pay, outside counsel in this appeal, and what Precinct 1 changed in its K-9 policy after February 2021. Neither is in the public record we could find.

Bottom line

Two Harris County deputies are out of this lawsuit because of a gap in appellate case law, not because a judge looked at a 43 second dog bite and approved it. Those are different things, and residents paying for the constable’s office should know which one happened.

Sources

Editorial