From [HERE] Lafayette police officers acted reasonably by directing a dog to bite an unarmed, unconscious man for 20 seconds, a federal judge decided last month in rejecting the excessive force claims of plaintiff Adrian Martinez.

Although law enforcement knew Martinez had walked away from his hospital bed in February 2018, it was unclear whether he was in custody at the time. They subsequently learned Martinez had outstanding warrants for nonviolent offenses, and believed he had locked himself in the closet of a residential complex. 

Despite being prepared to use a taser, a less-lethal shotgun and a firearm against Martinez once they opened the door, police immediately ordered Kenzi, a dog, to "get him." They quickly saw Martinez was lying down, nearly naked in the closet and had no weapons.

U.S. District Judge Raymond P. Moore acknowledged other courts have found bites from police dogs constitute excessive force against non-resisting suspects, but he believed Lafayette officers reacted in a lawful manner given what they knew about Martinez's situation.

Martinez "was concealed from the police and nonresponsive to them. Those facts are significant when considering the situation from the point of view of a reasonable police officer," Moore wrote in his June 17 order. "If officers are unable to see or communicate with an individual, then it is reasonable that they would have greater concern for their safety when initiating an encounter."

Martinez ended up in the hospital on Feb. 18, 2018 after bounty hunters looking for his girlfriend attacked Martinez. Police in Erie had an ambulance transport Martinez to a hospital in Lafayette for treatment. The defendant officers later alleged Martinez was in custody at the time, but Martinez insisted he was not.

When he awoke, Martinez was reportedly confused and suffering from a concussion. He decided to leave the hospital on his own. Hospital security notified police, while also relaying that Martinez had four outstanding warrants, all of which were for his failures to appear in court.

Police crossed paths with Martinez beginning around 9:50 a.m. Officer Lauryn Macdonald saw him near the Luna Bella Apartments. Minutes later, a witness called police dispatch to report Martinez "looked confused" and tried to enter people's cars. Martinez went to the third floor landing of the apartment complex and entered a small closet, alleging he "fell unconscious" inside. It was unclear if he locked the door himself or whether the door locked automatically.

Macdonald, Sgt. Peter Voris and Cpl. Sean Jenneiahn — along with his dog, Kenzi — located Martinez in the closet more than an hour later. Other officers were present to provide cover and assistance when opening the closet door, as Martinez did not communicate to police while inside.

Witnesses allegedly heard officers warn Martinez they would send in a dog if he did not comply, while Martinez disputed those accounts. Ultimately, Voris forced open the closet door. 

At the time, The Daily Camera reported the Lafayette police's account – that Martinez "continued to be unresponsive" after Voris opened the door, after which Kenzi "was used to help subdue Martinez."

Body-worn camera video contradicted those claims. Moore, after viewing the footage, found it was "clear that what happened next took less than one second," in that Jenneianh immediately ordered Kenzi to bite Martinez, who was lying in the fetal position.

In total, Kenzi latched onto Martinez for 15 to 20 seconds, while Jenneianh encouraged the dog to "get him." Martinez reportedly suffered puncture wounds, scarring and continued pain. 

He filed suit against Jenneiahn, Macdonald and Voris alleging excessive force and the officers' failure to intervene in the attack.

"None of the defendant officers had any objective information suggesting that plaintiff Martinez was an imminent threat; in fact, after the door was opened but before releasing the dog, the defendant officers readily observed plaintiff wearing only his underwear in a non-threatening prone position," wrote attorney Ramond K. Bryant.

In June of last year, the officers asked Moore to grant them qualified immunity, which shields government employees from civil lawsuits unless they violate a person's clearly-established legal rights.

The defendants argued it was reasonable for them to perceive Martinez as a legitimate threat and to employ Kenzi instead of other tactics.

"By utilizing Kenzi, Corporal Jenneiahn could better ensure that plaintiff would be effectively subdued without the need for multiple officers to attempt to enter the closet," wrote the officers' attorneys, calling Kenzi "the most reasonable tool."

They also noted the duration of the dog's bite was "significantly less than one minute" and argued that was a reasonable length of time.

Moore evaluated Martinez's claims by noting what police knew prior to their encounter. They understood Martinez was acting strangely, trying to get into other vehicles and had active arrest warrants. He was locked inside a storage closet, did not communicate with officers and did not immediately show his hands.

"Martinez suggests a number of different tactics which the officers could have used that would not have resulted in him receiving a four-centimeter wound in his arm. The defendants concede that they could have used some of those suggested techniques," Moore wrote. "The reasonableness of a particular police action, however, does not necessarily turn on the existence of other, less intrusive tactics."

Overall, he was "hard-pressed" to conclude the use of Kenzi to bite Martinez was legally problematic, given the potential danger police would have faced if Martinez were armed with a weapon. Even if the officers had behaved unreasonably, Moore added, it was not clearly established that using force on an out-of-sight, uncommunicative suspect was unreasonable, even if he was lying prone.

"Martinez was not under police control at the point that they opened the door even if, as a practical matter, and from his point of view he could not have escaped or posed a danger," the judge concluded.

Moore's decision vacated the jury trial scheduled to begin on July 18. This week, Martinez filed an appeal of the judge's order to the U.S. Court of Appeals for the 10th Circuit.