A federal appeals panel on Friday agreed that a Montrose County sheriff’s employee is not immune from lawsuit for allegedly using excessive force and his police dog against an apprehended suspect.

“There are a lot of days as a civil rights lawyer where barriers feel insurmountable, the structural disadvantages facing our clients too great. But some days remind me why we do the work – what it feels like to give clients a voice in a world that too often ignores them,” Ashok Chandran, an attorney with the NAACP Legal Defense and Educational Fund, wrote on Twitter. “Today is one of those days.”

A three-judge panel for the U.S. Court of Appeals for the 10th Circuit, based in Denver, agreed with a lower court’s denial of qualified immunity to Keith Sanders, a sheriff’s sergeant in Montrose County. While the judges noted the facts weighed in Sanders’ favor on the severity of the suspect’s crime – he was wanted on a felony – the panel determined Eric Tyler Vette did not appear to be a threat to anyone at the time of the alleged attack, nor was Vette trying to flee in that moment.

“In December 2017, a reasonable officer would have been on notice that striking Mr. Vette in the face and releasing a dog to attack him, after he was already apprehended by two officers, was unconstitutional,” wrote Judge Carolyn B. McHugh in the court’s opinion. The 10th Circuit had previously ruled it a constitutional violation to continue to use force against a suspect who is subdued.

On Dec. 31, 2017, a Montrose County sheriff’s sergeant attempted to pull over Vette to check for outstanding warrants. Vette drove away, and eventually continued evading on foot. Sanders and his police dog, Oxx, arrived to assist with the apprehension.

Reportedly, Sanders punched Vette and hit him with a dog chain, and also let Oxx attack. Photographs taken at the scene indicated teeth marks from the dog on Vette’s shoulder. Authorities charged Vette with vehicular eluding and identity theft, among other offenses.

Representing himself, Vette filed a federal complaint in August 2018 against the two sergeants and Oxx.

“There’s no reason why I was getting assaulted by deputy Sanders an Ox [sic] while after being apprehended,” Vette wrote, asking for $2 million from each of his alleged assailants. He requested that $1.5 million go to the state treasurer, $1.5 million to a charity in Montrose, and $0.5 million for “people and groups that help countries that need help.”

Sanders pointed to his narrative shortly after the apprehension that described how Oxx “came unlatched” and attempted to bite Vette, but Sanders had “prevented him from engaging further.”

The sergeant asserted qualified immunity, a judicial doctrine that generally shields government employees from civil liability absent a violation of clearly-established legal rights. Last year two judges on the U.S. Court of Appeals for the 10th Circuit, based in Denver, spoke out publicly about the increasing use of qualified immunity in police misconduct cases. Members of the U.S. Supreme Court have also signaled a discomfort.

In March 2020, U.S. Magistrate Judge Kathleen M. Tafoya denied qualified immunity to Sanders, finding it was unclear whether Vette was in custody when Sanders and Oxx arrived at the scene. She was unable to determine if Vette still posed a threat or was evading arrest, or whether the force used against him was excessive. Tafoya allowed the complaint against Sanders to proceed.

“Taken together, this Court’s precedents are clear: any use of gratuitous force on an already-apprehended subject violates the Fourth Amendment,” wrote Chandran, who represented Vette on appeal to the 10th Circuit. The Fourth Amendment prohibits unreasonable searches and seizures, and also is the basis for claims of excessive force.

Sanders argued to the 10th Circuit that the photos and Sanders’s contemporary reports contradicted Vette’s allegations. A three-judge appellate panel rejected the argument, noting half of Vette’s face was not visible in the photographs, and his shoulder showed “markings consistent with multiple instances of contact with a dog’s teeth.”

“Sergeant Sanders seems to imply that because the photographs do not display some greater level of injury inflicted by Oxx, the encounter between Oxx and Mr. Vette must have been relatively brief, which in turn suggests that Sergeant Sanders did not intend the encounter in the first place,” wrote McHugh.

“Sergeant Sanders will be free to make these arguments to a jury.”

An attorney representing Sanders said she had not yet spoken to her client and was not authorized to comment on the ruling.

The case is Vette v. Sanders.