Lafayette police officers who deployed a dog to bite an unarmed, allegedly unconscious man for 15-20 seconds cannot be held liable for excessive force, the federal appeals court based in Denver ruled last week.

Adrian Martinez was lying in the fetal position in a locked storage closet when police broke the door and immediately told their dog, Kenzi, to “get him.” Martinez claimed he was unconscious at the time and that the deployment of Kenzi, who left a four centimeter gash in his arm, was unreasonable.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed the officers were justified in letting Kenzi bite Martinez for at least 15 seconds, even though they never told Martinez he was under arrest nor warned him a dog bite was imminent.

“Mr. Martinez was inside the closet with the door closed before the Officers deployed the dog, so the Officers could not know whether he was subdued or hostile. They removed the dog when Mr. Martinez was subdued,” wrote Judge Scott M. Matheson Jr. in the panel’s July 12 order.

Martinez’s lawyer previously asked the judges to “be very clear” about the constitutionality of ordering police dogs to bite suspects, as there are other similar cases moving through the federal courts. However, the 10th Circuit opted not to “publish” its decision, meaning it is not intended to set a precedent in the six-state region covered by the circuit.

Case: Martinez v. Jenneiahn

Decided: July 12, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Scott M. Matheson Jr. (author)

Timothy M. Tymkovich

Allison H. Eid

Background: Federal judge sides with Lafayette officers who used dog to bite unarmed man

In response to Martinez’s excessive force lawsuit, the Lafayette officers asserted qualified immunity, which is a judicial doctrine generally shielding government employees from civil liability unless they violate a person’s clearly established rights. Typically, a right is clear when a prior court case, under highly similar circumstances, establishes an officer’s conduct amounts to a constitutional violation.

Martinez was hospitalized in February 2018 after a confrontation with bail bondsmen, who were not looking for him but nonetheless used force against him. Martinez woke up in the hospital and decided to leave, wearing just a gown and his underwear.

Although Martinez was not in custody at the time he walked out, the hospital notified police that Martinez did have warrants related to non-violent felony and misdemeanor offenses. Officers attempted to locate him, with witnesses reporting Martinez looking “confused” and attempting to enter vehicles.

Eventually, Kenzi detected Martinez in the locked storage closet of an apartment building. Martinez later said he passed out inside, but the police did not know that. Instead, six officers stood outside the closet for roughly 10 minutes and planned to breach the door.

Without warning Martinez, Officer Sean Jenneiahn directed Kenzi to bite Martinez immediately after the door opened. Martinez was lying in the fetal position at the time, but officers could not see his hands to determine if he was armed. After 15-20 seconds, Kenzi released Martinez. The bite wound exposed tissue in Martinez’s arm.

Martinez sued the officers for excessive force. Last year, U.S. District Court Senior Judge Raymond P. Moore granted the defendants qualified immunity after finding their conduct was not clearly unreasonable. Given the lack of communication and visibility between Martinez and the police, Moore decided the officers were not on notice that their conduct violated Martinez’s rights.

“Martinez suggests a number of different tactics which the officers could have used that would not have resulted in him receiving a four-centimeter wound in his arm. The Defendants concede that they could have used some of those suggested techniques,” he wrote. But “if Martinez had been armed, the police might have been endangered by any indecision or inaction.”

Martinez appealed to the 10th Circuit, arguing the officers’ actions set a dangerous precedent for other types of police encounters.

“There are many occasions where police don’t have full view of somebody. The classic example is a traffic stop,” said attorney Raymond K. Bryant during oral arguments. “Are we to say that … anytime a police officer pulls someone over, runs their plate and realizes there’s somebody with a warrant – and they can’t see the person’s hands – they can deploy a police dog? Absolutely not.”

The 10th Circuit judges wondered whether a dog bite was warranted under the circumstances, or if the police had other options.

“Wasn’t the problem that they had to extricate him from the closet safely? With regard to their safety?” asked Judge Allison H. Eid.

“Is a dog more of an escalation than a reasonable person would expect in these circumstances?” added Judge Timothy M. Tymkovich.

Matheson asked the officers’ attorney whether the police used excessive force against Martinez, even if it was not clearly unconstitutional.

“What the officer knew as the door was being opened was that he could not see Mr. Martinez’s hands,” responded Jonathan N. Eddy.

“He’s lying on his stomach and he wasn’t moving,” Matheson interjected. “And yet, there goes the dog.”

Ultimately, the panel did not decide whether using Kenzi to bite Martinez was unconstitutional. Instead, the judges found no court case under similar circumstances that clearly established the officers acted unreasonably.

No prior decisions, wrote Matheson, involved all of the factors relevant here: “a dog, outstanding felony arrest warrants, a suspect who had hidden in a small closet out of officers’ view, or a suspect who had evaded police.”

Bryant told Colorado Politics he was disappointed the panel relied on “subtle, minute, unimportant facts that they used to distinguish this case from others” in granting immunity. He noted the 10th Circuit has left law enforcement without guidance on the constitutionality of using dogs against suspects.

The case is Martinez v. Jenneiahn et al.