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Elkhart police K-9 excessive force case to continue

October 8, 2018

An Elkhart police officer accused of using excessive force when he deployed a K-9 officer on a suspect lying in a cornfield has lost his bid for summary judgment and qualified immunity in federal court.

Plaintiff Marvin Edward Long sued Officer Jason Ray after a multi-state chase in October 2016. Long was fleeing Michigan law enforcement after a robbery in that state when he crossed into Indiana and ended up in a cornfield.

When Ray and other officers found Long in the cornfield, he was lying on his stomach in the dirt. Both parties have a different version of what happened next, with Ray saying he deployed his police dog, Zayne, after Long refused to comply with multiple requests to show his hands. Long, however, maintains that he complied with all police orders, including orders to show his hands.

Long also submitted a bodycam recording of the incident, but Indiana Northern District Judge Philip P. Simon said the video was “largely unhelpful.” The recording was made late at night and has no sound, Simon said, and does not depict the events “in a way that entirely corroborates either party’s version of the encounter.” Further, though the video does depict Long showing his hands to law enforcement, he is not doing so until Zayne had already been deployed.

Simon relied on three cases from the 7th Circuit Court of Appeals to support his decision to deny Ray’s motion for summary judgment: Johnson v. Scott, 576 F.3d 658 (7th Cir. 2009); Alicea v. Thomas, 815 F.3d 283 (7th Cir. 2016); and Becker v. Elfreich, 821 F.3d 920 (7th Cir. 2016).

“To me, these cases make clear why summary judgment in favor of Officer Ray on this issue is not warranted,” Simon wrote Friday in Marvin Edward Long v. Jason Ray, 3:16-cv-846. “Here, Long was not actively fleeing at the time police encountered him. While it is true he was not turning himself into police and had previously fled across state lines, the fact remains he was discovered lying face down on the ground by multiple officers.”

“… Accepting Long’s version of the events, he was entirely compliant with the officers, submitted to their commands and showed them his hands,” Simon continued. “If this is all true, and again I accept it as such for present purposes, then it is hard to see how such an individual would be posing an active threat to the officers.”

Thus, the judge determined it would be up to a jury to decide whether Ray used excessive force when he deployed Zayne. He also determined that qualified immunity could not keep the case from going to a jury because, under Alicea and Becker, “use of a K-9 specifically upon a non-resisting or passively resisting individual may constitute excessive force.”

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