A federal judge has allowed a lawsuit to proceed against four Lakewood officers who apprehended a suspect while their police dog caused severe injuries to his neck.

On Sept. 21, 2018, a Lakewood resident called 9-1-1 to report her roommate, Spencer Erickson, was hiding in an attic crawl space and may have a warrant for his arrest. The responding police officers learned that Erickson did not have a history of violence and that his warrants were for failure to appear in court and for failure to comply in a driving under the influence case.

Lakewood officers formed a plan at the home to use a police dog named Finn to apprehend Erickson, with Officer Edward Baggs calling and then texting Erickson requesting he come out. Otherwise, Baggs advised, “a K-9 unit would be deployed within the home.”

According to court filings, Erickson was asleep and did not respond, nor did he acknowledge the verbal commands of officers. Officer Ryan O’Hayre then released Finn into the house.

The dog entered Erickson’s room and when O’Hayre caught up to him, Finn was on the floor with Erickson, biting his neck. Reportedly, O’Hayre did not command the dog to disengage. Finn kept biting Erickson as officers restrained the man, and the dog allegedly returned to bite Erickson further after his collar slipped off.

“It’s just shocking,” Erickson’s attorney, Adam Frank, told The Denver Post in September 2019. “The Lakewood police were serving a couple of low-level warrants and investigating a misdemeanor property damage crime. This is policing 101. This is what officers across the metro area do 100 times a day.”

Lakewood, according to the court’s narrative, found the officers complied with policy and did not discipline any of them. As a result of the attack, Erickson reported lacerations “approximately six to seven centimeters long and five to seven and a half centimeters deep, which caused muscle tears and exposed his jugular vein.” Those injuries resulted in vocal cord damage, ongoing physical pain and “a fear of dogs.” 

Erickson sued the officers for excessive use of force and conspiracy, and the city of Lakewood for violating his rights. The officers argued that they benefitted from qualified immunity, and Lakewood contended Erickson had not adequately established the city’s liability. The defendants also asked for dismissal of the case for all officers except O’Hayre, while Erickson countered that they all had a role in executing the apprehension plan.

Chief Judge Philip A. Brimmer, in a Sept. 24 ruling, pointed to the precedent that federal liability does not require a person to place their hands on someone physically in order to violate their rights. A 2013 decision in a similar case found that a failure-to-intervene claim against an officer could succeed if the plaintiff proved the officer could have stopped a police dog’s attack.

The question in Erickson’s case was not only whether the other officers “could have intervened to terminate Finn’s attack,” but whether they “could have intervened to stop defendant O’Hayre’s release of Finn,” Brimmer wrote.

A failure-to-intervene claim can constitute a violation of rights if an officer witnessed another applying unreasonable force and had the opportunity to step in, but refrained. Because the officers knew about the plan and were aware of Erickson’s nonviolent history, “The Court finds that plaintiff’s complaint contains sufficient allegations to state a claim of excessive force under a failure-to-intervene theory,” Brimmer concluded.

Brimmer’s determination applied to Baggs in his attempt to contact Erickson. Officers Justin Richards and Matthew Christensen, who restrained Erickson during the attack, argued that “a small amount of force” was necessary for restraint. Brimmer disputed that “holding down a suspect’s extremities while a police dog repeatedly bites the suspect’s neck, causing severe injuries” was a small amount.

He found that Richards and Christensen were direct participants in Erickson’s injuries, rather than those who failed to intervene. As such, he allowed the lawsuit to proceed against them and O’Hayre.

On Erickson’s conspiracy claim, Brimmer decided the actions of the officers since arriving at the apartment supported the theory that they had “a meeting of the minds” about their roles, even knowing that they would send a potentially dangerous dog to apprehend a nonviolent suspect. 

Brimmer dismissed the claim against two other officers who were involved in the arrest but for whom no details existed about their actions. Lakewood did not equip its officers with body-worn cameras.

For Erickson’s liability claim against Lakewood to proceed, he needed to show that its employees committed a constitutional violation that was pursuant to the city’s policy or custom. Brimmer found the plaintiff’s argument insufficient to hold Lakewood accountable, observing Erickson failed to identify any unconstitutional policy or proof that Lakewood failed to adequately train its officers.

“Mr. Erickson wants what he has always wanted: justice from the city of Lakewood and the officers who sent their dog to nearly kill him,” said Frank, Erickson’s lawyer, on Monday. “To the best of our knowledge, Lakewood has changed nothing about their practices, and if an incident such as what happened to Mr. Erickson were to happen today, Lakewood would do the exact same thing, no matter the injury they caused.”

Attorneys for the city did not respond to a request for comment. A Lakewood Police Department spokesperson declined to talk about the pending case, but said all officers will have body-worn cameras by July 1, 2023 per state law.

The case is Erickson v. Lakewood et al.

This article has been updated with additional comment.