Luethje v. Kyle.
No. 24-1257. 3/19/2025. D.Colo. Judge McHugh. Fourth Amendment—Unlawful Search—Warrantless Arrest—Excessive Force—Qualified Immunity—Use of Canine—Failure to Supervise.
March 19, 2025
A neighbor called 911 to report that an unidentified male had approached Luethje’s residence, broken the front window, and fled. Kyle and Kelly, who were employed by the Douglas County Sheriff’s Office (the deputies), responded to the call. The deputies arrived at Luethje’s house, saw the broken window, and pushed canine Sig into the residence to bite the first person he encountered. Sig found and latched onto Luethje, biting his hands, abdomen, and arm. Luethje screamed but did not otherwise resist or attempt to remove Sig’s teeth. The deputies entered Luethje’s bedroom and questioned him for over one minute before calling Sig off. Luethje told the deputies that he lived there. The deputies ordered Luethje out of bed, handcuffed him, and placed him under arrest. Paramedics arrived and transported Luethje to the hospital, where he was treated for lacerations and puncture wounds. The deputies did not locate another person and found no evidence of a crime, and Luethje was not charged with any crime. Luethje sued Kyle and Kelly under 42 USC § 1983, asserting Fourth Amendment claims for (1) unlawful entry and search of his home, (2) unlawful arrest, and (3) unlawful use of excessive force. He also brought a failure to intervene claim against Kelly, Sig’s handler. The deputies moved to dismiss based on qualified immunity, including a link to the audio of the 911 call. Based on the facts alleged and the 911 audio, the district court held that for each claim, the deputies had violated Luethje’s constitutional rights and that the law establishing those rights was clearly established.
As an initial matter on interlocutory appeal, the Tenth Circuit considered whether the district court properly considered the audio recordings that the deputies submitted. The 911 audio apparently combined (1) audio of the 911 caller reporting that an unidentified male had broken the window of Luethje’s residence; (2) audio of the dispatcher reporting a potential burglary to law enforcement based on the 911 call; and (3) audio of the officers arriving at the residence and sending in Sig. The district court considered the combined audio as one unit. The Tenth Circuit determined that the 911 call was sufficiently central to Luethje’s claims, and the dispatch of that call to officers was sufficiently derivative of the call, to both be considered on a motion to dismiss. But because the complaint does not reference the later part of the recording documenting the deputies’ approach to Luethje’s residence, that section of the recording could not be considered in ruling on the motion to dismiss, so the Tenth Circuit did not consider it.
On the merits, as to the unlawful search claim, the deputies argued that they reasonably believed a suspect was committing a crime in Luethje’s house. Here, upon arriving, the deputies confirmed that the window was broken but observed nothing further that suggested an ongoing emergency, and their investigation upon arriving at the house was merely perfunctory. Further, they did not announce their presence or make contact with anyone inside Luethje’s home before clearing the window, sending Sig in alone and unsupervised, and commanding Sig to bite the first person Sig found. Thus, the deputies lacked an objectively reasonable belief, based on the information they had at the time of the entry, that there was an immediate need to protect their lives or the lives of others. And the scope and manner of their search was not reasonable. Accordingly, they failed to demonstrate exigent circumstances to justify a warrantless entry. Lastly, when this incident occurred, it was clearly established that law enforcement must have an objectively reasonable belief in an ongoing emergency to justify a warrantless entry and search. Therefore, the deputies are not entitled to qualified immunity on the unlawful search claim.
On the warrantless arrest claim, the deputies argued they had probable cause to arrest Luethje for criminal mischief. The parties agree that Luethje’s arrest began when Sig bit him while he was in bed and prevented him from moving. Here, based on the totality of the circumstances, the deputies did not have any information when they released Sig indicating that the first person Sig found inside was the person who broke the window, so Luethje was arrested without probable cause. Further, it was clearly established at that time that (1) no reasonable officer could have reasonably believed that the first, unknown person Sig found inside was the same person who had broken the window and fled, given the lack of a basic investigation of the residence; and (2) such a search is unsupported by even arguable probable cause. The deputies thus lacked probable cause to arrest Luethje for criminal mischief.
On the excessive force claim, the deputies contended that the force they used was reasonable under the circumstances and it was not clearly established at the time that their use of force was unconstitutional. However, here (1) the crime at issue was not severe, (2) Luethje did not pose an immediate threat to the safety of the officers or others, and (3) Luethje did not actively resist arrest or attempt to flee. Under the totality of the circumstances, the deputies’ use of Sig was not reasonable, so they violated Luethje’s Fourth Amendment right to be free of excessive force. And it was clearly established at the time that it would constitute excessive force to use a police canine to arrest and then continue to bite a suspect who was not resisting or fleeing.
The Tenth Circuit concluded that the deputies used unreasonable force against Luethje, and it was clearly established that using force under these circumstances violated the Fourth Amendment. Therefore, the district court properly denied qualified immunity to the deputies on the three individual claims. And because the deputies are not entitled to qualified immunity on the individual claims, Kelly is likewise not entitled to qualified immunity on the failure to supervise claim.
The order was affirmed.