Two Douglas County sheriff’s deputies whose dog bit the sleeping resident at a Highlands Ranch home can be sued for excessive force and other alleged constitutional violations, the Denver-based federal appeals court agreed on Wednesday.

Tyler Luethje sued Deputies Travis Kyle and Scott Kelly after they responded to a report that someone had broken into Luethje’s house. The deputies, according to Luethje’s lawsuit, quickly sent their dog inside the home, where it bit Luethje in his bedroom and caused lasting nerve damage.

A trial judge determined the two men were not entitled to qualified immunity, which generally shields government employees from civil lawsuits unless they violate a person’s clearly established legal rights. The defendants appealed, but a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed the deputies, as alleged, had acted unreasonably.

“The deputies’ argument they ‘reasonably believed’ there was a suspect inside who was ‘reluctant to talk to the police’ stretches the facts alleged beyond recognition,” wrote Judge Carolyn B. McHugh in the March 19 opinion. “The bare possibility that someone was committing a crime inside, without more, is not sufficient to warrant an objectively reasonable belief in an ongoing emergency.”

In Luethje’s narrative, the deputies arrived at his home one evening in February 2022 in response to a 911 caller’s report that someone had broken a window on a house. Kyle allegedly broke the rest of the glass when he arrived so the police dog could enter through the window. The dog located Luethje, who was alone in the house, and bit down on him.

“I live here!” Luethje allegedly screamed repeatedly. The deputies found Luethje, who disclosed he was the one who broke the window. The deputies then handcuffed him and escorted him to their patrol vehicle, where Luethje was in “extreme pain.” As Luethje went to the hospital for his injuries, the deputies searched his home without a warrant.

In moving to dismiss Luethje’s claims, the defendants attached a recording of the 911 call. The caller was a passerby walking his dog, who told the dispatcher:

• The intruder “maybe just was breaking into his house because he lost his keys or something.”

• “He was breaking a window. He stopped.”

• “I’m not gonna go back and check” the address. “I’m so sorry. It’s really cold and snowing like crazy.”

• “It might be his house and he lost his keys. I don’t know.”

The deputies’ motion to dismiss argued the 911 call illustrated they had a reasonable belief a burglary was in progress and a victim “may be in imminent danger.” But in a June 2024 order, U.S. District Court Judge Charlotte N. Sweeney disagreed.

“Defendants failed to exercise any restraint prior to releasing the dog and entering the home; they made no attempt to knock on the door or ring the doorbell before releasing the police canine,” she wrote. “Instead, they released the canine into a private residence at approximately 7:00 p.m. where it could have bitten (and, in fact, did bite) a resident of the home.”

Sweeney concluded the allegations, if proven, showed the deputies acted unreasonably in entering the home and using force on Luethje. She allowed the claims to proceed.

The defendants appealed Sweeney’s denial of qualified immunity to the 10th Circuit. During oral arguments last month, McHugh repeatedly pressed the deputies’ lawyer about the decision to send in a dog trained to bite based on so little information.

“The canine was sent inside to bite the first person it found, right?” she asked. “It could have been the homeowner. It could’ve been a child of the homeowner. It could have been someone’s grandmother.”

“It could have been,” responded Andrew C. Steers of the Douglas County Attorney’s Office.

“Under the same circumstances, could they have shot into the house?” continued McHugh.

No, said Steers, because “the dogs are trained to bite and hold, they’re not trained to kill.”

“I’m still not sure what your answer is on the 5-year-old child,” interjected Judge Gregory A. Phillips. “If the dog goes in and does the same thing on the 5-year-old child, you’re saying, ‘Well, that would be different and that’s not our case.’ But behind that, what I’m hearing you say is that would be OK, too.”

Steers replied that there are “circumstances where that might be reasonable.”

“With a 5-year-old?” said Phillips. “What are you talking about?”

Ultimately, the panel upheld Sweeney’s decision denying the deputies immunity. McHugh wrote that the deputies, as alleged, had no reason to believe there was an ongoing emergency, did not perform an investigation before sending in the dog, and had no grounds to think whichever person the dog would bite was guilty of anything.

“Letting the canine enter first without conducting any additional investigation and without any indication that an emergency was unfolding was not objectively reasonable,” she wrote. “As counsel admitted, the canine was as likely to bite a child residing in the home as any intruder.”

The case is Luethje v. Kyle et al.