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Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
or send comments electronically to Changes@ca5.uscourts.gov 

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The Daily Commentary (sample)

Sample case reviewed on January 10, 2017.
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Cooper v. Brown, No. 16-60042

http://www.ca5.uscourts.gov/opinions/pub/16/16-60042-CV0.pdf

Before STEWART, Chief Judge, SMITH, and DENNIS, Circuit Judges.

AFFIRMED. (December 27, 2016).

Posted in Appellate Jurisdiction, Civil Rights- Qualified Immunity, Excessive Force, Fourth Amendment

On a night in April 2013, Jacob Cooper was pulled over by Officer Michael Pressgrove on suspicion of driving under the influence. Believing that Cooper was intoxicated, Pressgrove administered a portable breath test, then returned to his patrol vehicle. Cooper panicked and fled on foot into a residential neighborhood. Because there was a passenger in his squad car, Pressgrove decided not to pursue Cooper. Instead, he radioed for backup, providing Cooper’s description and explaining that he was a DUI suspect and on foot. Officer Lynn Brown responded, arriving with his police dog Sunny. Pressgrove testified that he did not request a K9 unit and that it would have been unusual to deploy a K9 unit for a misdemeanor DUI. Pressgrove also testified that he did not know whether Cooper was armed, but had no reason to believe that Cooper had a weapon. Upon entering the residential neighborhood with Brown, Sunny discovered Cooper hidden in a cubbyhole and bit him on the calf. The parties disputed whether Sunny initiated the attack or whether, instead, Brown ordered it. Nonetheless, the facts following the initial bite were undisputed: Sunny continued biting Cooper for one to two minutes. During that time, Cooper did not attempt to flee or to strike Sunny. Brown instructed Cooper to show his hands and to submit to him. At the time of that order, Cooper’s hands were on Sunny’s head. Brown testified that he could see Cooper’s hands and could appreciate that he had no weapon. Brown then ordered Cooper to roll onto his stomach. He complied, and Brown handcuffed him. But he did not order Sunny to release the bite until after he had finished handcuffing Cooper. As a result of the bite, Cooper suffered years of severe pain from lower-leg injuries that required multiple surgeries, including reconstruction and skin grafts.

Cooper brought suit against Brown under 42 U.S.C. § 1983, alleging that Brown’s use of force was objectively unreasonable under the Fourth Amendment. After discovery, Cooper moved for partial summary judgment as to Brown’s individual liability, and Brown moved for summary judgment on the basis of qualified immunity. The District Court granted Cooper’s motion and denied Brown’s. It determined that Brown’s use of the police dog was objectively unreasonable, given that Cooper was not actively resisting arrest and was suspected of only a misdemeanor DUI. It further decided that Cooper’s right was clearly established. Brown appealed.

Cooper alleged that Brown violated his Fourth Amendment rights by applying excessive force. To prevail on an excessive-force claim, he must show “(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) (quoting Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009)). The record plainly showed that Cooper suffered an injury, but Brown contended that his application of force was objectively reasonable. In excessive-force claims, the reasonableness of an officer’s conduct depends on the “facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).

The Fifth Circuit’s application of the Graham factors showed that Brown’s conduct was objectively unreasonable. The Court recalled that DUI is a serious offense. That factor favored Brown, yet the remaining factors pushed heavily for Cooper. For instance, the Court opined that no reasonable officer could have concluded that Cooper posed an immediate threat to Brown or others. Cooper was not suspected of committing a violent offense, and Brown testified that Pressgrove, when calling for backup, had not warned that Cooper might be violent. Indeed, Brown’s own expert testified that there was no evidence that would have led a reasonable officer to believe that Cooper was a threat. Moreover, Cooper was not actively resisting arrest or attempting to flee or to strike Sunny. The only act of “resistance” that Brown identified was Cooper’s failure to show his hands because, although they were on Sunny’s head and visible to Brown, Brown wanted Cooper to raise his hands. But, given that Sunny was still latched onto Cooper’s calf at the time, the Court declared that his failure to raise his hands could hardly be characterized as “active resistance.” Finally, the Court emphasized that Brown was required to “assess not only the need for force, but also ‘the relationship between the need and the amount of force used.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). In sum, Brown subjected Cooper to a lengthy dog attack that inflicted serious injuries, even though he had no reason to believe that Cooper posed a threat, and without first attempting to negotiate. The undisputed facts established that Brown’s use of force was objectively unreasonable. The Court was careful to clarify that it was not saying that any application of force to a compliant arrestee is per se unreasonable, and refused to opine on the line of reasonableness. Instead, it stated only the obvious: “Under the facts in this record, permitting a dog to continue biting a compliant and non-threatening arrestee is objectively unreasonable.”

The Court next found that Cooper’s right was clearly established. The Court’s caselaw has made certain that once an arrestee stops resisting, the degree of force an officer can employ is reduced. Thus, Brown had “fair warning” that subjecting a compliant and non-threatening arrestee to a lengthy dog attack was objectively unreasonable. On this point the Court noted its decision in Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam), a case closely on point. Because it was unpublished, it did not constitute clearly established law for purposes of qualified immunity. Still the Court found that it aptly illustrated the established right. There, a suspect was pulled over and fled on foot. When the officers encountered him in a backyard, he was holding an iPod, which the officers claimed to think was a weapon. One officer tased the plaintiff five or six times, including after the plaintiff was on the ground and no longer resisting. The Court denied qualified immunity because the officer “should have known that he could not continue to shock [the plaintiff] with the taser after he was no longer resisting arrest.” Id. The Court noted that to the same effect, the Ninth Circuit held that “it was clearly established that excessive duration of the bite and improper encouragement of a continuation of the attack by officers could constitute excessive force that would be a constitutional violation.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998). And the Sixth Circuit denied qualified immunity to an officer who “allowed a ‘bite and hold’ dog, whose training was questionable, to attack two suspects who were not actively fleeing and who, because of proximity, showed no ability to evade police custody.” Campbell v. City of Springboro, 700 F.3d 779, 789 (6th Cir. 2012). In the end, the Court affirmed the order denying qualified immunity. As for Brown’s appeal of the partial summary judgment for Cooper, it was dismissed for want of appellate jurisdiction as it was not a “final” judgment capable of being appealed.

On Appeal from the United States District Court for the Northern District of Mississippi (Michael P. Mills).
Attorney for Appellant – Daniel J. Griffith, Cleveland, MS
Attorney for Appellee – Brandon Lyle Flechas, Southhaven, MS

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