Alexander Baxter crouched silently with his hands in the air, wedged between a chimney and a water heater. Police had gotten a call that Baxter had broken into a home, and Officers Bracey and Harris pursued Baxter into a basement. But what came next wasn’t handcuffs and Miranda warnings: Officer Harris released a trained police canine that bit deeply into Mr. Baxter’s arm.
You might think the question of whether the police used excessive force would depend on the facts, like if Harris saw Baxter with his arms raised before he unleashed an attack dog. But the Sixth Circuit Court of Appeals “decline[d] to resolve the more complex constitutional question raised by Baxter’s claim.”
Instead, the court granted Officers Harris and Bracey qualified immunity, because no prior case was similar enough for a constitutional violation to be “clearly established.” Although an earlier case had established that the use of an attack dog against a suspect who was not fleeing was an excessive use of force, the court distinguished that case because the dog in Baxter’s case had better training and police had warned Baxter they might use the dog before he surrendered. It’s a distinction that perfectly illustrates how qualified immunity’s standard of “clearly established law” sets a nigh-impossible bar denying Americans the opportunity to challenge violations of their liberty.
The Supreme Court denied Baxter a writ of certiorari. Justice Thomas authored the sole dissent, expressing “strong doubts about our §1983 qualified immunity doctrine.”