49 F.4th 730
2d Cir.2022Background
- William McKinney was arrested for an attempted robbery and held in a jail cell; officers decided to move him to a padded cell after he covered the cell camera and acted erratically while intoxicated and off medication.
- When officers attempted the transfer, McKinney threatened them, grabbed Officer Sebold’s baton, and (by his admission) charged and physically resisted as officers tried to subdue and handcuff him.
- Officers brought a police canine ("Hunter"); the dog was released and bit McKinney’s lower right leg, officers struck him with a baton and used a taser; after a drive‑stun McKinney stopped resisting, was handcuffed, and the dog was withdrawn.
- McKinney sued under 42 U.S.C. § 1983 alleging excessive force (Fourth Amendment) and state tort claims; the district court granted summary judgment for defendants; on earlier appeal this Court vacated in part, holding a jury could find the combined force excessive, and remanded for qualified immunity analysis.
- On remand the district court granted qualified immunity; the Second Circuit majority affirmed, holding officers did not violate clearly established law on these facts; Judge Calabresi dissented, arguing the record (viewed favorably to McKinney) supported clearly established violations and summary judgment was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of canine for a purpose outside its training | McKinney: using Hunter for a “cell extraction” (outside training) violated clearly established law | Officers: Hunter was trained and deployed to subdue during an active struggle, not as a cell‑extraction tool | Held: No clearly established rule that using a canine outside specific training violates the Fourth Amendment; undisputed record shows Hunter was used to subdue, not to extract |
| Failure to warn before releasing canine | McKinney: officers did not warn him before releasing the dog, and lack of warning rendered the deployment unconstitutional | Officers: even if no warning, deployment was during an active, violent struggle creating an immediate safety threat | Held: Genuine dispute on warning exists but warning is not clearly required where suspect posed immediate danger; qualified immunity applies |
| Allowing canine to continue biting after resistance ceased / duration (~2 mins) | McKinney: dog continued biting after he ceased active resistance; long bite duration independently violates clearly established law | Officers: dog was not broken off until McKinney was handcuffed; officers could reasonably delay calling off dog until suspect secured | Held: A jury could find a bite continued, but plaintiff failed to point to controlling precedent making such incremental continuation clearly unlawful in these circumstances; qualified immunity applies |
| Improper escalation / combined use of baton, taser, canine; district court’s fact‑finding | McKinney: combined force was excessive and district court failed to construe disputed facts in his favor | Officers/district court: force was incremental in response to active resistance; plaintiff largely admitted facts; qualified immunity shields reasonable disagreement | Held: Majority found no clearly established law barring the incremental/combined force in this factual context and concluded district court’s treatment of disputed facts (except one minor mischaracterization) did not change outcome; qualified immunity affirmed (dissent disagrees) |
Key Cases Cited
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity two‑step inquiry)
- Brosseau v. Haugen, 543 U.S. 194 (2004) (reasonableness judged against law at the time)
- Ashcroft v. al‑Kidd, 563 U.S. 731 (2011) (requires controlling authority or robust consensus to clearly establish a right)
- Kisela v. Hughes, 138 S. Ct. 1148 (2018) (qualified immunity when precedent does not squarely govern particular facts)
- White v. Pauly, 137 S. Ct. 548 (2017) (avoid defining clearly established law at high level of generality)
- Graham v. Connor, 490 U.S. 386 (1989) (Fourth Amendment excessive‑force objective‑reasonableness framework)
- Mullenix v. Luna, 577 U.S. 7 (2015) (focus on whether violative nature of particular conduct was clearly established)
- Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010) (officers may not use significant force on non‑threatening arrestee)
- Jones v. Treubig, 963 F.3d 214 (2d Cir. 2020) (continued use of significant force after suspect subdued can be clearly unlawful)