NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0519n.06

                                          No. 19-2366

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 KURT HAMMOND,                                          )                         FILED
                                                        )                   Sep 04, 2020
        Plaintiff-Appellee,                             )               DEBORAH S. HUNT, Clerk
                                                        )
 v.                                                     )
                                                        )
 COUNTY OF OAKLAND, MICHIGAN, a                         )
                                                               ON APPEAL FROM THE
 Municipal        Corporation;  CHRISTOPHER             )
                                                               UNITED STATES DISTRICT
 CADOTTE, JAMES SALYERS, and DAVID                      )
                                                               COURT FOR THE EASTERN
 WELCH, Deputies, in their individual capacities,       )
                                                               DISTRICT OF MICHIGAN
 jointly and severally,                                 )
                                                        )
        Defendants-Appellants.                          )




       Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.

       KETHLEDGE, Circuit Judge. The facts of this case, as we are required to view them, are

that three Oakland County sheriff’s deputies pinned Kurt Hammond to the ground, handcuffed

him, and then ordered a police dog to bite him. The district court held that the deputies’ actions

violated Hammond’s clearly established constitutional rights, thereby precluding qualified

immunity. We affirm in part and reverse in part.

       We take the district court’s view of the facts in the light most favorable to Hammond. See

Machan v. Olney, 

, 1213 (6th Cir. 2020). On December 3, 2016, a woman stabbed

Kurt Hammond in the chest, fled from his house, and called the police to report that Hammond

had raped her. Several deputies—including Christopher Cadotte and his dog, Odin—went to

Hammond’s house to investigate. Hammond was tending to his stab wound when he heard
No. 19-2366, Hammond v. Oakland County, et al.


banging on the back door. He thought the woman’s friends had come to harm him, so he threatened

to call the police. The deputies responded, “We are the police!” Hammond told the deputies to

go to the front door, which he unlocked. Then Hammond “ran back into the bedroom” to continue

tending to his stab wound. The bedroom was out of the deputies’ sight, however, so they warned

Hammond to come back out or they would release Odin into the house.

       Hammond says he never heard that warning. Instead, while he was treating his stab wound,

he looked up and saw Odin inside, barking to indicate Hammond’s location to the deputies.

Cadotte and deputies James Salyers and David Welch then entered the house as Hammond came

out of the bedroom, within arm’s length of the deputies. Cadotte tackled Hammond to the ground,

where Salyers and Welch pinned him down to restrain him with handcuffs. Hammond refused to

show his hands, however, because he was clutching bandages to his chest wound. The deputies

eventually rolled Hammond onto his stomach and handcuffed him. At that point, Hammond says

that he “heard some kind of foreign language,” and then Odin started “ripping [him] in the back.”

Seconds later, Hammond says that he heard “another foreign language,” and that Odin “changed

positions on [his] back” and bit him again, this time on the right foot. Hammond cried out in pain

and told the deputies that Odin was biting him, but, according to Hammond, the deputies replied

that Odin “ain’t doing nothing but holding you.” Odin then shifted from Hammond’s feet to his

legs, “chewing and chewing” while, according to Hammond, the deputies “stood by and let the

dog do what it wanted to do[.]” Hammond says that he then heard a deputy tell Odin to “stop or

something,” but the dog would not listen, even biting Cadotte in the process before finally being

brought to heel. The entire takedown lasted approximately 20 seconds. Afterward Hammond was

taken to a nearby hospital and treated for his injuries, including several broken bones in his foot.




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No. 19-2366, Hammond v. Oakland County, et al.


       Hammond thereafter brought this claim under 42 U.S.C. § 1983, alleging that the deputies

used excessive force in violation of the Fourth Amendment. Hammond also sued Oakland County,

claiming that the County failed to have an effective dog policy and failed to train Odin. The

defendants moved for summary judgment, the deputies specifically on the basis of qualified

immunity. The district court denied the motion. This appeal followed.

       We review de novo the legal aspects of the district court’s denial of qualified immunity.

. Determinations of qualified immunity require us to answer two

questions: first, whether the officers violated a constitutional right; and second, whether that right

was clearly established in light of the specific context of the case.

those

questions in whichever order we see fit. Pearson v. Callahan, 

, 236 (2009). But our

jurisdiction is limited to the question whether the evidence, as considered by the district court in

the light most favorable to Hammond, shows a violation of his clearly established constitutional

rights. See Walker v. Davis, 

, 503 (6th Cir. 2011).

       Hammond first claims that the deputies violated “the Fourth Amendment’s prohibition on

the use of excessive force by arresting and investigating officers.” See Hayden v. Green, 

, 153 (6th Cir. 2011). We analyze that claim based on “the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 

,

396 (1989). In doing so, we consider “the severity of the crime at issue, whether the suspect

pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively

resisting arrest or attempting to evade arrest by flight.” Smoak v. Hall, 

, 783 (6th Cir.

2006) (internal quotation marks omitted). When, “as here, a plaintiff claims that excessive force

was used multiple times, the court must segment the incident into its constituent parts and consider




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No. 19-2366, Hammond v. Oakland County, et al.


the officer’s entitlement to qualified immunity at each step along the way.” Wright v. City of

Euclid, 

, 865 (6th Cir. 2020).

       Here, the first segment came before the dog bites. The deputies had come to Hammond’s

house—an area unknown to them but familiar to Hammond—to investigate an allegation of rape.

See Matthews v. Jones, 

, 1051 (6th Cir. 1994). They had no idea whether Hammond

was armed, and his unusual behavior—namely, unlocking the door and immediately retreating out

of sight—only heightened their suspicions. See 

. They warned

Hammond that they would deploy Odin if he did not surrender himself, and though Hammond

says he did not hear the warning, the officers could not have known that on the scene. See

finally encountered Hammond, he reappeared suddenly, within arm’s length of

the deputies, his hands not visible. Moreover, though the deputies ordered Hammond to show his

hands, Hammond admits that he refused. Thus, a reasonable officer could view Hammond’s

actions as threatening. The deputies therefore did not use excessive force when they deployed

Odin into the house to locate Hammond, tackled him to the ground, and pinned him there while

handcuffing him.

       The next segment came when Cadotte ordered Odin to bite Hammond after the deputies

had handcuffed him. We have held that police violate the Fourth Amendment when they order a

dog to bite a suspect who posed no threat to the officers’ safety and was not resisting arrest or

attempting to flee. See Campbell v. City of Springboro, 

, 787–89 (6th Cir. 2012).

Here, after the deputies handcuffed Hammond, he was on his stomach, handcuffed, with his hands

visible. Although he had refused to surrender his hands earlier, at that point the deputies could see

that Hammond was unarmed. And Hammond says he did nothing after the deputies handcuffed

him that could be interpreted as resistance. Yet after Cadotte gave Odin commands in a foreign



                                                -4-
No. 19-2366, Hammond v. Oakland County, et al.


language, the dog bit Hammond, first on his back and then on his leg and foot. Hammond could

“hear [his] bones crackling in [his] head,” and despite his pleas for help Cadotte did nothing to

stop the dog from doing “what it wanted to do[.]” A jury could therefore find that Cadotte used

excessive force when he ordered Odin to bite a handcuffed suspect who was not resisting arrest.

See

Odin’s bites came as a result of a “spontaneous response” to

Hammond’s “‘threatening’ movement into the dog’s defensive perimeter.” Dunigan v. Noble,

, 493 (6th Cir. 2004). Dog bites violate the Fourth Amendment only if they come

“through means intentionally applied.” Id.; see also Ashford v. Raby, 

, 802–03 (6th

Cir. 2020). Cadotte says that Odin bit Hammond’s legs and feet only after Hammond “began

flailing . . . and kicked toward Odin’s face,” but Hammond tells a different story. He insists that

these bites—and Cadotte’s commands to instigate them—came after the deputies had handcuffed

him and had pinned his legs down. Whether Hammond kicked toward Odin, as Cadotte claims, is

thus a question of fact that we lack jurisdiction to consider. See 

.

          Cadotte also argues that the law about the use of dogs was not clearly established at the

time of this incident. But we have found a Fourth Amendment violation when “an inadequately

trained canine” bit a handcuffed suspect. 

. Here, as there, Cadotte

ordered Odin to bite a suspect “who [was] not actively fleeing and who, because of proximity,

showed no ability to evade police custody.”

would have understood

that commanding a dog to bite a handcuffed suspect who was not attempting to flee would violate

the Fourth Amendment. Cadotte thus is not entitled to qualified immunity with respect to the bites.

          Hammond also claims that Deputies Salyers and Welch violated the Fourth Amendment

when they failed to stop the bites. Whether they did depends upon whether they “had both the



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No. 19-2366, Hammond v. Oakland County, et al.


opportunity and the means to prevent the harm from occurring.” Burgess v. Fischer, 

,

475 (6th Cir. 2013). But Hammond cites no caselaw clearly establishing that officers who are not

trained as dog handlers have a duty to intervene and control a dog notwithstanding the presence of

the dog’s handler.    Salyers and Welch are therefore entitled to qualified immunity from

Hammond’s claim.

       Finally, Oakland County appeals the district court’s denial of its motion for summary

judgment. Unlike a denial of qualified immunity, an order denying a county’s motion for summary

judgment “is not an independently appealable final decision.” Hopper v. Plummer, 

,

760 (6th Cir. 2018). And here the resolution of the deputies’ qualified-immunity appeal does not

resolve the County’s appeal. In that circumstance, the parties agree, we lack jurisdiction to hear

the County’s appeal.

denial of qualified immunity as to Deputy Cadotte’s commands to Odin to

bite Hammond, reverse the denial as to the rest of Hammond’s claims, dismiss Oakland County’s

appeal for lack of jurisdiction, and remand the case for proceedings consistent with this opinion.




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