7th Circuit: Officer not entitled to qualified immunity

May 12, 2016

The 7th Circuit Court of Appeals affirmed a police officer who released a dog during an arrest to find a suspect is not entitled to qualified immunity.

Zachary Elfreich was one of four Evansville police officers sent to execute a search warrant on Jamie Becker after Becker allegedly held a knife to his brother-in-law’s neck. During the course of the arrest, Elfreich released his dog, Axel, and the dog’s bite severely injured Becker’s leg, causing permanent damage to muscle and nerves.

Becker claimed this was excessive force and a violation of his Fourth Amendment rights. He said Elfreich did not call off the dog until he was fully under handcuffs, which was too long. Elfreich claimed he was entitled to qualified immunity, but the District Court denied summary judgment for Elfreich, ruling he was not entitled to immunity. He appealed.

The 7th Circuit said it’s impossible to pin down whether using Axel carried a substantial risk of causing serious bodily injury. It’s not known how much forced Axel used or if he behaved the way he was trained.

However, Elfreich should have determined that Becker was surrendering when he came down the stairs with his hands up during the arrest and called off Axel. Becker did not exhibit any aggressive behavior during the arrest. Elfreich claimed that Becker may have been armed, but Elfreich had plenty of backup and he was armed as well.

The 7th Circuit said officers cannot use significant force on a non-resisting or passively resisting suspect, and Elfreich did that with Becker. A jury could reasonably find that Elfreich’s use of force was excessive and because no more than minimal force needed to be used to arrest Becker, Elfreich is not entitled to qualified immunity.

The case is Jamie Becker v. Zachary Elfreich, individually and as an officer of the Evansville Police Department, 15-1363.