Luethje v. Kyle et al

Filing 26

ORDER denying 16 Defendants' Motion to Dismiss Amended Complaint. By Judge Charlotte N. Sweeney on 6/5/24.(jdyne)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 23-cv-03054-CNS-MEH
TYLER LUETHJE,
Plaintiff,
v.
TRAVIS KYLE,
SCOTT KELLY,
Defendants.

ORDER

Defendants move to dismiss Plaintiff Tyler Luethje’s Amended Complaint on
qualified immunity grounds. ECF No. 16. For the reasons below, the Court denies
Defendants’ motion.
I. BACKGROUND 1
This action arises from an alleged unreasonable use of force at Plaintiff Tyler
Luethje’s home in Highlands Ranch, Colorado. See generally ECF No. 5 (Am. Compl.).
On February 11, 2022, at 6:40 p.m. on a “freezing cold” evening, Deputies Travis Kyle
and Scott Kelly of the Douglas County Sheriff’s Office, responded to a 911 call reporting

The following facts are drawn from Plaintiff’s Amended Complaint and Jury Demand. ECF No. 5. For
purposes of this motion, the Court accepts as true, and views in the light most favorable to Plaintiff, all
factual allegations contained in the amended complaint. See Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009).
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an apparent burglary in a Highlands Ranch home. Id., ¶ 15. The caller reported that a
man broke the front window of a home and then ran away from the residence without
entering. Id.
When Deputies Kyle and Kelly arrived, they observed a broken window at the front
of the residence. Id., ¶ 20. They also “heard someone speaking from inside the house,
but Defendants did not hear any signs of violence or pleas for help.” Id., ¶ 76. Deputy
Kyle “removed the screen to the window and destroyed the rest of the glass.” Id., ¶ 21.
Then, without knocking or announcing his intentions, he released his unleashed police
canine through the window to find the suspected burglar. Id., ¶ 22 (alleging that
“Defendant Kyle ordered his canine to find and bite whomever it found inside the
residence, regardless of whether the person(s) inside were lawfully at the residence and
regardless of whether the canine found a child or adult”). After 30 seconds passed, the
canine located Mr. Luethje sleeping in his bed. Id., ¶ 24. He was the only person in the
home. Id. The canine immediately started biting Mr. Luethje in the hands, abdomen, and
arm, causing him to scream in pain. Id., ¶¶ 24–25.
Deputies Kyle and Kelly then entered the home, searched for the dog and suspect,
and found Mr. Luethje in his bedroom with the dog latched onto his arm. Id., ¶¶ 27–28.
With the dog still latched, Mr. Luethje told the deputies repeatedly that he lived there. Id.
(explaining that he screamed, “I live here! I live here! I live here!”). In response to the
deputies’ questions, Mr. Luethje confirmed that he was home alone, and that he broke
the window to his own home. Id., ¶¶ 31–32. Still, Defendants put Mr. Luethje in handcuffs,

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placed him in the back of a patrol vehicle, and when EMS arrived, transferred him to a
gurney. 2 Id., ¶¶ 35–39.
The deputies took possession of his driver’s license and confirmed that the
address on his license matched the location of the incident. Id., ¶¶ 39–40. EMS eventually
transported Mr. Luethje to the hospital in an ambulance to treat his wounds. Id., ¶ 41.
While there, “[d]espite confirming that Mr. Luethje lived at the residence and that no crime
had occurred, Defendants re-entered Mr. Luethje’s home and conducted a thorough
search.” Id., ¶ 42. They found no evidence of a crime. Id., ¶ 43.
Mr. Luethje initiated this action on November 17, 2023, alleging both federal and
state constitutional violations for unlawful entry and search of the home, unlawful arrest,
excessive force against Deputy Kyle, and failure to intervene against Deputy Kelly. See
generally ECF No 1; ECF No. 5, ¶¶ 49–98.
II. LEGAL STANDARDS
A.

Federal Rule of Civil Procedure 12(b)(6)

“To survive a [Federal Rule of Civil Procedure 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Walker v. Mohiuddin, 947 F.3d 1244, 1248–49 (10th Cir.
2020) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Cummings v. Dean, 913 F.3d 1227, 1238

Plaintiff does not allege whether Defendants or the EMS personnel transferred him to the gurney. Nor
does he allege when the EMS personnel arrived or when they transported him to the hospital.
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(10th Cir. 2019) (internal quotation marks omitted). In making this determination, the
“court accepts as true all well pleaded factual allegations in [the] complaint and views
those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909
F.3d 1280, 1287 (10th Cir. 2018). However, “legal conclusions” contained in the complaint
are not entitled to the assumption of truth. See Kansas Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). The standard, however, remains a liberal pleading
standard, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”
Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation omitted).
B.

Qualified Immunity

The qualified immunity doctrine shields government officials performing
discretionary functions from liability for civil damages insofar as their conduct does not
violate “clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine
“balances two important interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231 (2009).
When a defendant raises the defense of qualified immunity, a “plaintiff carries a
two-part burden to show: (1) that the defendant’s actions violated a federal constitutional
or statutory right, and if so, (2) that the right was clearly established at the time of the
defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)
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(internal quotations omitted). In its discretion, the Court may begin its analysis with either
prong. Cox v. Wilson, 971 F.3d 1159, 1171 (10th Cir. 2020).
To defeat a qualified immunity challenge under Rule 12(b)(6), a plaintiff “must
allege facts sufficient to show (assuming they are true) that the defendants plausibly
violated their constitutional rights.” Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir.
2008). “The record must clearly demonstrate the plaintiff has satisfied his heavy two-part
burden; otherwise, the defendants are entitled to qualified immunity.” Felders ex rel.
Smedley v. Malcom, 755 F.3d 870, 877–78 (10th Cir. 2014) (citation and quotations
omitted). When a plaintiff fails to satisfy either prong, the Court must grant qualified
immunity. Id.
III. ANALYSIS
Defendants move to dismiss each of Plaintiff’s claims on qualified immunity
grounds. ECF No. 16. The Court addresses each claim below in turn, ultimately
determining that dismissal is not warranted for any claim.
C.

Claim One: Unlawful Search/Entry of the Home 3
1.

“Constitutional Violation” Prong

Warrantless searches of a home are presumptively unreasonable, Soza v.
Demsich, 13 F.4th 1094, 1104 (10th Cir. 2021), but the Supreme Court has recognized
certain exceptions. “One exigency obviating the requirement of a warrant is the need to
assist persons who are seriously injured or threatened with such injury. The need to
3 Plaintiff appears to allege two unlawful entries and searches. The first involves releasing the police dog
into the home to search for Plaintiff followed by Defendants’ immediate entry and search of the home. The
second involves Defendants’ re-entry and “thorough search” of the home after EMS personnel transported
Mr. Luethje to the hospital. In their motion, Defendants only address the first entry and search.

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protect or preserve life or avoid serious injury is justification for what would be otherwise
illegal absent an exigency or emergency.” Brigham City, Utah v. Stuart, 547 U.S. 398,
403 (2006) (internal quotation marks omitted). The Tenth Circuit has held that exigent
circumstances “exist when: (1) the law enforcement officers have objectively reasonable
grounds to believe that there is an immediate need to protect their lives or others, and (2)
‘the manner and scope of the search is reasonable.’” McInerney v. King, 791 F.3d 1224,
1231 (10th Cir. 2015) (quoting Cortez v. McCauley, 478 F.3d 1108, 1124 (10th Cir. 2007)
(en banc)). Reasonable belief is evaluated “based on the realities of the situation
presented by the record from the viewpoint of prudent, cautious, and trained officers.” Id.
at 1232 (quoting United States v. Gambino–Zavala, 539 F.3d 1221, 1225 (10th Cir.
2008)). Defendants bear the burden of demonstrating the existence of exigent
circumstances. Id. at 1231 (citing Mascorro v. Billings, 656 F.3d 1198, 1205 (10th Cir.
2011)).
Defendants acknowledge that they entered the home without a warrant. ECF No.
16 at 5. But they argue that the entry and search were lawful because they suspected a
burglary in progress, and the exigencies of the situation created a compelling need for
action without time to secure a warrant. Id. The Court is not convinced.
a.

Exigent Circumstances: Immediate Need to Protect Others

Defendants rely on two cases to support their position: Walker v. Disner, 50 F.
App’x. 908 (10th Cir. 2002) and U.S. v. Najar, 451 F.3d 710 (10th Cir. 2006). The Court
finds the facts of these two cases easily distinguishable.

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Walker involved a domestic dispute between a husband and wife. 50 F. App’x. at
909. The wife obtained a restraining order to keep the husband out of the house, going
so far as changing the locks on their apartment. Id. Still, the husband returned to the
apartment, manipulated the locks on the door, and entered the apartment. Id. The
maintenance manager observed Mr. Walker’s conduct and called the police. Id. Once
onsite, the police knocked on the door twice before forcibly entering the apartment. Id.
They briefly searched the apartment and arrested the husband for violating a restraining
order. Id. at 909–10. The Tenth Circuit found Officer Disner’s conduct reasonable, and
that entry into the apartment was “lawful pursuant to the emergency exception to the
warrant requirement.” Id. at 910. The panel noted that Mr. Walker admitted that he
manipulated the locks and ignored the officers’ initial knock. Id.
Unlike in Walker—where Officer Disner knew that Mr. Walker was in the home, and
that Mr. Walker’s wife had a restraining order against him—here, there was no information
available to Defendants to suggest that someone else was in the home and needed
immediate assistance. Defendants do not argue that they heard any pleas for help or
observed any signs of violence. And the 911 caller reported that the suspected burglar
broke the front window and then fled. ECF No. 5, ¶¶ 1, 15, 53. Walker is plainly
distinguishable.
Najar involved an early morning 911 call. 451 F.3d at 712. Upon answering the call,
the 911 dispatcher was met with silence and then a disconnect. Id. The dispatcher called
back several times, but each time his call was answered and quickly disconnected without
a word. Id. The dispatcher asked officers to investigate. Id. When police arrived at the
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mobile home, the officers “knocked on the door and announced their presence and
purpose.” Id. The officers could see and hear someone inside, but the person would not
respond to the officers. Id. Eventually Mr. Najar came to the door, denied making the 911
call, and said that he was home alone. Id. Fearing that the 911 caller was inside and
possibly injured, the officers entered the home over Mr. Najar’s objections where they
discovered an uninjured woman. Id. They observed a firearm in plain sight and arrested
Mr. Najar for being a felon in possession of a firearm. Id. Given the totality of the
circumstances, the court found that the officers had reasonable grounds to believe that
someone inside the trailer may have needed emergency aid and that immediate action
was required. Id. at 720.
The Najar officers attempted to contact the occupant in the home but did not
receive an answer. And they had reasonable concerns that someone inside (the 911
caller) may have been injured. Here, there is no indication that Defendants had any
information that another person inside the home needed immediate assistance. As
alleged, viewing the facts in the light most favorable to Plaintiff, Defendants did not have
reasonable grounds to believe that someone inside the home may have needed
emergency aid and that immediate action was required. McInerney, 791 F.3d at 1232.
b.

Exigent Circumstances: Scope and Manner of Search

Plaintiff has also plausibly alleged that the manner and scope of Defendants’ entry
and search of Plaintiff’s home was unreasonable. Defendants failed to exercise any
restraint prior to releasing the dog and entering the home; they made no attempt to knock
on the door or ring the doorbell before releasing the police canine into the home and
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entering shortly after. ECF No. 5, ¶¶ 21–28. Instead, they released the canine into a
private residence at approximately 7:00 p.m. where it could have bitten (and, in fact, did
bite) a resident of the home. Id., ¶ 22 (“Defendant Kyle ordered his canine to find and bite
whomever it found inside the residence, regardless of whether the person(s) inside were
lawfully at the residence and regardless of whether the canine found a child or adult.”);
id., ¶ 23 (“The canine was not on a leash while inside the home, nor was it supervised by
Defendant Kyle or any other law enforcement officer.”). They then entered immediately
after and performed their search. Id., ¶¶ 27–28.
As explained above, Defendants’ conduct in this case is distinguishable from the
officers’ conduct in Najar and Walker. The officers in those cases attempted to contact
the occupants prior to entering. In Najar, the Tenth Circuit even commended the officers’
“repeated and increasingly vigorous attempts to make contact” with the suspect prior to
entering Mr. Najar’s home without a warrant. Id. at 719 (“We applaud their restraint and
circumspection.”). Deputies Kyle and Kelly, however, did not announce their presence;
nor did they ring the doorbell or knock loudly on the front door.
Defendants suggest in their reply that they did make an announcement. “In
911/dispatch audio, a Deputy is heard stating, ‘we’re going to start making
announcements and see if we can get him to come out.’” ECF No. 25 at 8. 4 Based on the

Defendants include a Vimeo link to the 911 audio in their motion and ask that the Court consider it without
converting their motion to dismiss into a summary judgment motion. ECF No. 16 at 2 n.1. In ruling on a
motion to dismiss, in addition to the allegations in a complaint, the Court “may consider documents referred
to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the
documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). Neither party
challenges the authenticity of the 911 recording, but they disagree whether the 911 call is central to
Plaintiff’s claims. The Court finds that the recording is sufficiently central to Plaintiff’s claims. Indeed, the
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brief record before the Court, this argument is misplaced. First, the audio does not say
that the deputies “made” announcements; the audio says that the deputies will “start
making announcements.” Second, even assuming Defendants made announcements
(none are audible on the recording submitted to the Court), the audio indicates that
Defendants released the canine into Plaintiff’s home approximately six seconds after
stating that they will start making announcements. 5 Compare ECF No. 16 at 2 n.1 at 12:38
(unknown deputy stating that he will start making announcements), with id. at 12:44
(“We’re sending the dog in now.”).
Viewing the facts in the light most favorable to the nonmovant, Plaintiff has
adequately alleged facts to show Defendants’ entry and search was unreasonable.
***
To sum up, Defendants cannot satisfy either prong of the exigent circumstances
test. McInerney, 791 F.3d at 1231; Mascorro, 656 F.3d at 1205. Without an emergency
or other exigent circumstance present to justify the warrantless entry and search of
Plaintiff’s home, Plaintiff has sufficiently pleaded a Fourth Amendment violation.
2.

“Clearly Established” Prong

A public official’s conduct violates clearly established law when, at the time of the
challenged conduct, “the contours of a right are sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Ashcroft v. al-

911 call triggered the incident in question, and Plaintiff refers to it, albeit briefly, throughout his amended
complaint. ECF No. 5, ¶¶ 1, 15, 16 89. Therefore, the Court draws facts from this audio as well.
The Court acknowledges that there may be a “break” in the audio (as indicated by beeps in the recording),
but that information was not briefed or otherwise presented to the Court.

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Kidd, 563 U.S. 731, 741 (2011) (citations and formatting omitted). A right is clearly
established “when a Supreme Court or Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that the right must be as the
plaintiff maintains.” Thomas v. Kraven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting PJ
ex rel. Jensen v. Wagner, 603 F.3d 1182, 1196–97 (10th Cir. 2010)). It is the plaintiff’s
burden to demonstrate that the right was clearly established at the time of the challenged
conduct. Surat v. Klamser, 52 F.4th 1261, 1270 (10th Cir. 2022) (quotation omitted);
Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden
of citing to us what he thinks constitutes clearly established law.”). While the plaintiff need
not cite a case directly on point or with “identical facts,” the plaintiff still must show that
the law would have informed a reasonable officer in the defendant’s position that his
conduct was unlawful in that situation. See Kapinski v. City of Albuquerque, 964 F.3d 900,
910 (10th Cir. 2020); Knopf v. Williams, 884 F.3d 939, 949 (10th Cir. 2018) (citation
omitted). That is, the clearly established law must place the constitutional issue “beyond
debate.” Mullenix, 577 U.S. at 16 (quotation omitted).
Here, Defendants’ only proffered justification for entering Plaintiff’s home without
a warrant was the purported “exigencies of the situation”—an argument the Court has
already rejected. Thus, it was clearly established at the time of the incident that law
enforcement officials violate the Fourth Amendment when they enter and search a home
without a warrant, consent, or an exigency. See McInerney, 791 F.3d at 1236–38 (holding
that warrantless search of a home absent exigent circumstances was clearly established
law). Plaintiff has satisfied his burden of showing that the law was clearly established.
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***
Defendants’ motion to dismiss Claim One on qualified immunity grounds is denied.
D.

Claim Two: Unlawful Arrest
1.

“Constitutional Violation” Prong

“A police officer may arrest a person without a warrant if he has probable cause to
believe that person committed a crime.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.
1995). “Probable cause exists if facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy information are sufficient
to lead a prudent person to believe that the arrestee has committed or is committing an
offense.” Jones v. City and County of Denver, 854 F.2d 1206, 1210 (10th Cir. 1988). In
the qualified immunity context, courts ask whether there was “arguable probable cause”
for the challenged conduct. Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014).
“Arguable probable cause is another way of saying that the officers’ conclusions rest on
an objectively reasonable, even if mistaken, belief that probable cause exists.” Id.
Defendants argue that their conduct was lawful because they had arguable
probable cause to arrest him for criminal mischief. ECF No. 16 at 9. The Court disagrees.
At this early stage, Plaintiff has sufficiently pleaded an unlawful arrest in violation
of the Fourth Amendment. Defendants had very little information to inform their decision
to arrest Plaintiff, and they did nothing to investigate the alleged crime. Specifically, the
911 caller reported a man breaking a front window and then fleeing without entering. ECF
No. 5, ¶ 59. “When Defendants approached the broken window, they did not hear or
observe anything inside the home.” Id., ¶ 60. Then, once inside the home, Plaintiff
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confirmed that he lived there. Id., ¶¶ 63–64. Nonetheless, Defendants handcuffed and
arrested him. Id. Although Plaintiff confirmed that “he was the one who broke the window
to his own home,” Defendants did not ask him why he broke the window or whether he
owned the home. They simply arrested him.
Had they asked, the answer may have been simple: that he had lost his keys and
he broke the window because it was frigid outside. Indeed, in considering the 911 audio
Defendants asked the Court to consider, the 911 caller acknowledged that the person
who broke the window may have just lost his keys and decided to climb through the
window of his own home—which makes sense because Plaintiff alleged that it was
“freezing cold” that February night. ECF No. 25 at 5; ECF No. 5, ¶ 37. Defendants’
explanation of this portion of the 911 call is unavailing, see ECF No. 25 at 5 (“A review of
the 911 audio will show only two passing comments regarding the possibility of lost keys,
and that both were uncertain and purely speculative; at no point did the caller state the
suspect ‘looked’ like he forgot his keys.” (emphasis added)), as the caller clearly
considered the possibility that the man may have been breaking into his own home. See
ECF No. 16 at 2 n.1 (Vimeo link) at 01:18 (“He may have just been breaking into his house
because he lost his keys or something.”), id. at 6:25 (“Yeah, it might be his house and he
just lost his keys. I don’t know.”).
Whether the Court “view[s] it as a need for more pre-arrest investigation because
of insufficient information” or “inadequate corroboration,” the information Defendants
possessed fell short of “reasonably trustworthy information indicating that a crime had
been committed” by Plaintiff. Cortez, 478 F.3d at 1116–17 (citing BeVier v. Hucal, 806
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F.2d 123, 128 (7th Cir. 1986) (“A police officer may not close her or his eyes to facts that
would help clarify the circumstances of an arrest. Reasonable avenues of investigation
must be pursued especially when, as here, it is unclear whether a crime had even taken
place.”); id. at 1116 n.7 (“[M]erely because officers are not required to do a more thorough
investigation once they have probable cause ‘does not suggest that an officer has no duty
to investigate an alleged crime before making an arrest.’” (quoting Gardenhire v.
Schubert, 205 F.3d 303, 318 (6th Cir. 2000)).
Plaintiff has plausibly alleged that Defendants arrested him without probable cause
in violation of the Fourth Amendment.
2.

“Clearly Established” Prong

Having determined at this early stage that Defendants lacked arguable probable
cause to arrest Plaintiff, the law was clearly established that the Fourth Amendment
prevented Defendants from arresting Plaintiff under those circumstances. See Cortez,
478 F.3d at 1116.
***
Dismissal of Claim Two on qualified immunity grounds is therefore unwarranted.
C.

Claim Three: Excessive Force
1.

“Constitutional Violation” Prong

The Fourth Amendment outlaws the use of excessive force while making an arrest.
Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007). In evaluating a
Fourth Amendment claim of excessive force, courts ask “whether the officer’s actions are
objectively reasonable in light of the facts and circumstances confronting them.” Graham
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v. Connor, 490 U.S. 386, 397 (1989) (internal quotations omitted). Answering this
question “requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental
interests at stake.” Id. at 396 (internal quotations omitted). The government’s interest at
stake is determined under the totality of the circumstances and is guided by the Graham
factors: “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.” Id.
Looking at the totality of the circumstances alleged, Plaintiff has sufficiently
pleaded an excessive force claim. As noted above, Defendants lacked arguable probable
cause that Plaintiff had engaged in criminal activity. There also was insufficient evidence
to suggest that Plaintiff posed an immediate threat to others. Defendants argue that they
“feared a victim may be captive inside the home at 7:00 p.m. -- a time when residents
would ordinarily be present.” ECF No. 25 at 7. But Defendants point to no allegations or
evidence that anyone else was in the home. Plaintiff also alleges that he was sleeping in
his own bed when the canine attacked him. ECF No. 5, ¶ 75. Taken as true as the Court
must, those allegations show that Plaintiff posed no threat to anyone nor was he actively
resisting arrest. Id., ¶¶ 75–77. Thus, in the absence of any facts suggesting that
Defendants heard or observed any aggressive or threatening conduct, under the present
alleged facts, Defendants’ conduct—releasing a canine into a home without any warning
(or, at most, approximately a six-second warning)—was unreasonable.
On the facts alleged, Defendants employed unnecessary and excessive force in
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violation of the Fourth Amendment when they arrested Plaintiff on February 11, 2022.
2.

“Clearly Established” Prong

It is clearly established in the Tenth Circuit that a police officer may not use
excessive force on a non-violent, non-resisting suspect. Casey, 509 F.3d at 1282–83.
This is especially true where, as here, the suspect was not given any “chance to submit
peacefully to an arrest.” Id.
Plaintiff alleges that he was sleeping in his bed at the time Deputy Kyle released
his canine and ordered the canine to “attack and bite Mr. Luethje.” ECF No. 5, ¶ 71. He
alleges that he posed no threat to the deputies or anyone else at the time of the attack.
Id., ¶ 75. Under these circumstances, it was clearly established in this Circuit that there
were limits to the amount of force that the deputies could use, no matter the form or
manner that force may take. See Morris v. Noe, 672 F.3d 1185, 1191–97 (10th Cir. 2012)
(officer employed excessive force when officer threw down suspect who carried no
weapon, made no overt threats, and did not get within reach of the officer); Cavanaugh v.
Woods Cross City, 625 F.3d 661, 666–67 (10th Cir. 2010) (holding that it was clearly
established that the officer could not use a Taser against unarmed misdemeanant who
did not pose an immediate threat and was not resisting or evading arrest without first
warning the suspect).
Courts in this Circuit have extended these principles to police canine encounters.
See, e.g., Mullins v. City of Colorado Springs, 575 F. Supp. 3d 1360, 1372 (D. Colo. 2021)
(the plaintiff was in his home in the shower and did not hear any warnings before the
officers released the canine; the Court held that the plaintiff’s “right not to be attacked by
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a canine in these circumstances was clearly established by February 27, 2019”); Cook v.
City of Albuquerque, 639 F. Supp. 3d 1185, 1202 (D.N.M. 2022) (refusing to grant officer’s
summary judgment on excessive force claim for deployment of police dog without
warning); Trujillo v. City of Lakewood, Colo., No. CIVA08CV00149-WDM-CBS, 2009 WL
3260724, at *4 (D. Colo. Oct. 9, 2009) (citing Casey and finding that “deploying a dog
without restraint or warning is similar to using pepper spray or taser on a suspect without
giving the suspect a warning and chance to first comply”); id. (“I conclude that [] a
reasonable officer would be on notice that releasing a police dog, without first warning
and giving a suspect the opportunity to comply, is an unconstitutionally excessive use of
force.”); cf. Crall v. Wilson, 769 F. App’x 573, 577 (10th Cir. 2019) (use of police canine
could be reasonable where officer loudly announced that he would deploy canine if the
occupant of the bedroom did not emerge); Marquez v. City of Albuquerque, 399 F.3d
1216 (10th Cir. 2005) (officer acted reasonably in using canine to apprehend fleeing
suspect after high-speed chase because the officer first warned the suspect to halt).
The Court finds that a reasonable law enforcement officer in Defendant Kyle’s
situation would be on notice that releasing a police dog into a private home without
warning and without the suspect posing an immediate threat was clearly established at
the time of the incident.
***
Defendants’ motion to dismiss Claim Three on qualified immunity grounds is
denied.

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D.

Claim Four: Failure to Intervene

Defendants argue that Deputy Kelly had no obligation to intervene because a
clearly established constitutional violation did not occur. ECF No. 16 at 14–15. Because
the Court has determined that Plaintiff sufficiently pleaded a clearly established
constitutional violation, and because Defendants did not respond to Plaintiff’s authority or
arguments with respect to Claim Four, the Court denies Defendants’ request to dismiss
that claim.
IV. CONCLUSION
Consistent with the foregoing analysis, Defendants’ Motion to Dismiss Amended
Complaint, ECF No. 16, is DENIED.
DATED this 5th day of June 2024.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge

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