A panel of federal judges ruled Tuesday that a Texas police officer used excessive force when his patrol dog bit an unarmed woman for roughly one minute, but it said the judicial doctrine known as qualified immunity shielded the officer from the woman’s lawsuit, court records show.
In an 18-page opinion first reported by NBC News, a three-judge panel from the 5th U.S. Circuit Court of Appeals found that K-9 officer Tyson Sutton of the police department in Conroe, north of Houston, violated Olivia Sligh’s constitutional rights during the encounter on July 5, 2018.
Sligh has told NBC News that she was having a mental health crisis when her boyfriend called 911 seeking help.
Body camera video of the confrontation showed Sutton siccing his patrol dog, Thor, on Sligh after she resisted orders from Sutton and a Montgomery County sheriff’s deputy.
The video shows the dog repeatedly biting Sligh as Sutton appears to shout release commands that are not obeyed.
Sligh said she was left with more than a dozen scars and herniated discs.
A U.S. district judge dismissed Sligh’s lawsuit alleging excessive force, describing Sutton’s use of the patrol dog in a 2022 decision as not “unreasonable.” The decision said Sligh "assaulted" the deputy, Alexis Montes, while he tried to handcuff her — an allegation Sligh denied.
But in Tuesday's decision, the panel concluded that Sutton's use of Thor "constituted an excessive use of force in violation of the Fourth Amendment."
The officers could have used physical force in a "more measured manner, or they could have provided a clear warning that they would employ a dog bite if Sligh did not comply. Instead, Sutton sicced Thor on Sligh without warning."
At the time, the decision says, Sligh was not suspected of a crime and did not pose an immediate safety threat. She was not trying to flee, and she was in need of emergency medical care, the decision says.
But the panel found that lawyers for Sligh had not overcome Sutton's qualified immunity, which bars lawsuits against law enforcement officers unless their conduct violates a clearly established right under the law or the Constitution.
Sligh's lawyers had relied on another dog bite case, in which a patrol animal bit an unarmed man suspected of driving under the influence for nearly two minutes. But the panel rejected that comparison, describing the man in that case as a "nonresisting plaintiff" who suffered an "intentionally prolonged application of force."
"Because the present case involves an application of unintentionally prolonged force against an actively resisting plaintiff, we do not find that Sutton’s violation of Sligh’s constitutional right was clearly established," the judges wrote.
The judges also dismissed other claims in the suit, including a "failure to intervene" allegation against Montes.
Sligh's lawyer, Randall Kallinen, said Tuesday that he planned to request a rehearing before the same panel. He said he also plans to ask the full 16-judge panel to weigh in.
A lawyer for Montes did not immediately respond to a request for comment.
A lawyer for Sutton, Steven Selbe, called the 5th Circuit's opinion "very thorough" and said it was the "correct outcome in my view."
Selbe has told NBC News that the body camera video "clearly contradicts" Sligh's allegations that the officers were acting recklessly and out of control.
Instead, he said, the video reveals the officers "did it right."
"It is both ironic and sad that Deputy Montes and Officer Sutton were trying to help the plaintiff and her actions led to an additional injury occurring," he said.
The U.S. Supreme Court declined last year to review two cases challenging qualified immunity, including an appeal from a Texas woman whose son died in a county jail while a guard watched and declined to intervene. A federal bill, the George Floyd Justice in Policing Act, also seeks to reform the judicial doctrine, but lawmakers have been unable to pass the legislation.