Colin Edwards ran away from Orlando police during a traffic stop and ended up with a K-9 bite so severe that he underwent surgery, was hospitalized for six days and now has a deformed leg.
Edwards filed suit against the K-9's handler and another officer in Orlando federal court, where a judge ruled both officers were immune from being sued and closed the case.
But an appeals court has now reversed that decision, and in a charged ruling said that Officer Bryan Shanley used excessive force when he allowed Rosco to attack Edwards for what could be as long as five to seven minutes.
"Because Edwards was begging to surrender, and because Officer Shanley could safely give effect to that surrender, the further infliction of pain was gratuitous and sadistic," the judicial panel with the 11th Circuit U.S. Court of Appeals wrote. "This the Constitution does not tolerate."
The appeals court ruling means the case will return to federal court in Orlando, where it could be heard before a jury. No date for the federal proceedings has been set.
Tampa attorney Michael P. Maddux, who represents Edwards, said courts have long accepted the use of police dogs.
And the judicial panel found that Shanley's decision to use Rosco help track Edwards after he ran away from a traffic stop Dec. 17, 2008, was constitutional.
But the level of force used in Edwards' case, the court found, was "unconstitutionally excessive."
Edwards was driving on Lenox Boulevard near Raleigh Street on Dec. 17, 2008, when Orlando police Officer Justin Lovett tried to pull him over.
Edwards, whose license was suspended, stopped his car but fled, scaled a fence, and then ran into a wooded area.
Lovett called for backup, and Shanley responded with Rosco.
Court records state Lovett and Shanley yelled and warned they would use the K-9 if Edwards didn't surrender. After hearing no response, the officers gave a second warning, and then entered the woods.
Rosco led the officers to Edwards, who was lying on his stomach, records said. The officers moved in closer to Edwards and told him to show his hands.
The arrest report said Edwards tried to resist by not putting his hands behind his back and didn't allow Shanley to handcuff him. The report said Edwards punched Rosco in the head and face three times.
But the appeal court's decision states that Edwards shouted, "You got me. I only ran because of my license."
As Rosco bit Edwards, he shouted, "I'm not resisting" and begged the officers to call off the K-9, the court record said.
Edwards said Rosco bit him for somewhere between five and seven minutes, though the appeals court noted that a jury will be free to reject Edwards' version of the events that unfolded that evening.
The appellate judges wrote that Shanley and Lovett stood over Edwards while Rosco maintained his bite. Eventually, Edwards was handcuffed, and at that point, Shanley commanded Rosco to release his bite.
Edwards, now 50, suffered serious injuries.
"My thought was even murderers have a right to surrender," Maddux said. "It was very clear he surrendered."
An Orlando Police Department spokesman said agency officials do not comment on pending litigation.
Maddux, who has other K-9 bite cases filed against other police officers, said he thinks judges will be looking at this court's latest ruling when reviewing similar cases.
"They're going to be looking at the duration of the attack and whether or not the defendant's actions and reactions to the attack by the dog constitute a continued threat," he said.
Julie Ebenstein, policy and advocacy counsel for the American Civil Liberties Union of Florida, said she thinks it is also striking that the appellate court found that Lovett could also be liable, even though he wasn't the dog's handler.
In its ruling, the judicial panel wrote that there is no dispute Lovett was present for the K-9 attack and that "he made no effort to intervene and stop the ongoing constitutional violation."
"I would hope that individual officers and police departments ... are looking closely at this case," Ebenstein said.
Copyright 2012 - The Orlando Sentinel, Fla.
McClatchy-Tribune News Service
