By Jack Bouboushian, Courthouse News Service

CHICAGO – The Seventh Circuit denied immunity to a police officer accused of siccing his dog on a burglary suspect trapped in an empty pool, yelling, “You like to rob houses, punk?”

Mitchell Alicea had burglarized a residence in Hammond, Ind., when he saw a police vehicle and fled, the ruling states.

He ran down the street, through an alley, jumped over a fence into a backyard, and vaulted into an empty, 5-foot-deep pool where he crouched down to hide.

But Alicea could not hide from Sgt. Aubrey Thomas and his 72-pound police dog, Leo.

Leo tracked the suspect to the pool, at which point the parties’ stories diverge.

Alicea says he stood up and raised his hands in the air, but Officer Thomas commanded Leo to attack him.

“You like to rob houses, you f****** punk?” the officer yelled, according to Alicea’s story, as told in the Tuesday ruling (pdf) with redactions.

Thomas claims that Alicea did not immediately respond to requests to show his hands, causing him to fear he had a weapon. The officer says he ordered Leo to bite and hold Alicea so he could safety enter the pool to pat down and arrest the suspect. The dog latched onto Alicea’s right arm for several minutes, while he attempted to struggle free, causing permanent muscle damage, pain, numbness, and scarring.

Alicea then claims that Officer Alejandro Alvarez arrived on the scene, who allegedly punched him, and stomped on his head before dragging him to the squad car.

A federal judge found that the officers’ use of force was reasonable, given that Alicea’s prior flight cast doubt on the genuineness of his surrender.

But the Seventh Circuit reversed Tuesday.

“If Alicea attempted flight, he would need to get out of the pool first. The obstacle of vaulting out of the pool would provide Thomas with ample time to discharge his weapon or to command Leo to chase and hold Alicea. Moreover, Alicea gave no indication that he would flee. He immediately complied with Thomas’s orders,” U.S. Circuit Judge Ann Claire Williams said, writing for the three-judge panel. “While surrender is not always genuine, it should not be futile as a means to de-escalate a confrontation with law enforcement.”

Taking Alicea’s version as true, Thomas’ yelling “you like to rob houses, punk?” before commanding Leo to attack “casts doubt on Thomas's assertion that he made a split-second safety calculation,” Williams said. “If one infers from the statement that rather than making a safety calculation, Thomas was acting out of retaliation, then his decision to deploy Leo was not reasonable at all.”

The panel said it saw even less basis to find Alvarez’s alleged actions reasonable.

“At the point at which Alvarez first saw Alicea, Alicea’s arm was in the jaws of a seventy-two pound dog. Two other officers were already at the scene. A reasonable officer would not think that punching, kicking, and stomping on Alicea was required to control the situation,” the 15-page opinion states.

Given that the parties dispute whether Alicea was resisting arrest when Thomas ordered Leo attack, a grant of qualified immunity was inappropriate, the court concluded.

To Learn More:

Rise in Police Brutality and Misconduct Cases Creates New Revenue Sources for Lawyers (by Noel Brinkerhoff, AllGov)

10 Deputies Too Busy Beating Suspect Senseless to Notice News Chopper Filming Them (by Ken Broder, AllGov California)

99% of Police Brutality Complaints in Central New Jersey are Dismissed or Ignored (by Noel Brinkerhoff, AllGov)