Federal Court REJECTS Qualified Immunity as Basis for Dismissal in Dog Attack

“A federal judge has refused to dismiss a lawsuit filed by a man who claims a Virginia Beach police officer released his dog on him and allowed the animal to maul him while he lay unresponsive in a vehicle, according to court records.

Attorneys for the City of Virginia Beach had asked U.S. District Judge Mark Davis to throw out the lawsuit on the basis of qualified immunity, which protects police officers and other government officials from lawsuits except when they have violated “clearly established” statutory or constitutional rights.

When Ahern and at least two other officers approached the vehicle, the driver's side door was open and two people were inside. Ahern ordered them to get out, but only the driver complied.

The officer could see Keenan lying motionless and unresponsive on the front passenger's seat, the documents said, and released his dog into the vehicle after Keenan failed to respond to his repeated commands to get out.

Keenan woke as the dog repeatedly bit him in the face and arm. The dog was still attached to him when Ahern pulled Keenan out.

Keenan suffered permanent scarring to his face and arm and nerve damage to his wrist as a result, said his attorney, Scott Flax.

[Judge] Davis, however, wrote that releasing the police dog amounted to a “significant” use of force and was unreasonable in light of the circumstances.

“The Court has little difficulty concluding that the conduct alleged amounts to excessive force in violation of the Fourth Amendment,” which protects against excessive force and unreasonable arrests, the judge wrote in his opinion. “At no point prior to the attack did Keenan give any indication that he presented a danger to others or would attempt to escape.”

There also was no evidence Ahern was “forced to make a split-second judgment,” he wrote.”

However, the city is free to rationalize this attack as protected under “qualified immunity” at trial.

The Virginian Pilot, 3/32/21