Rare officer v. officer lawsuit over Hennepin County K9 mauling ordered thrown out by federal appeals court

A rare excessive force lawsuit pitting Minnesota law enforcement officers against each other after one officer was mauled by another’s K-9 must be dismissed, a federal appeals court ruled this week.

A three-judge panel from the Eighth Circuit U.S. Court of Appeals sided with Hennepin County Sheriff’s Deputy Keith McNamara in his bid to dismiss a civil suit filed against him last year by a former Champlin police officer attacked by McNamara’s K-9 as the two pursued a suspect together.

Daniel Irish, who now works as a police officer in Brooklyn Park, had alleged that McNamara did not warn others that he had released the K-9 named Thor as police tracked a suspect who had led them on a pursuit into Osseo in March 2022. Irish sued over his Fourth Amendment right to be free from excessive force and unreasonable seizure.

U.S. District Judge Ann Montgomery in August 2023 denied McNamara’s request to dismiss the complaint after he argued that he was entitled to qualified immunity. Montgomery noted that the mauling was a “highly unfortunate accident” but concluded that it was “clearly established” that a seizure occurred within the meaning of the Fourth Amendment. Irish had argued that McNamara willfully deployed Thor during the pursuit and “objectively intended for him to bite the first person he encountered.”

McNamara countered that he did not “subjectively” intend to seize Irish and that because “the law is unclear as to whether subjective or objective intent should be considered,” it was not clearly established that Thor’s bite was a seizure. The Eighth Circuit panel this week agreed with McNamara and reversed Montgomery’s ruling. The lawsuit now goes back to Montgomery with instructions from the appellate court to dismiss.

Megan Larson, a spokesperson for the Hennepin County Sheriff’s Office said Friday that the office was “satisfied with the court’s decision and we have no further comment.”

Irish’s attorneys said he still suffers from the effects of C. difficile and other gastrointestinal ailments brought on by antibiotics taken to treat a deep skin infection caused by Thor’s attack.

“Officer Irish did exemplary policework that day,” said Andrew Noel, an attorney representing Irish. “He is disappointed by the court’s ruling but he continues to serve the people of Brooklyn Park every day.”

Writing for a panel that included Judges Ralph Erickson and Duane Benton, Judge Jonathan Kobes concluded that this case “fits best in the unintended-target line of cases.”

McNamara commanded Thor to go after the fleeing suspect less than a minute before the dog bit Irish. He repeatedly ordered Thor to disengage from Irish and refocused the K9 toward the suspect.

“All told, we cannot say that it was ‘sufficiently clear that every reasonable official [in Deputy McNamara’s shoes] would understand’ that he acted unlawfully — or even within the scope of the Fourth Amendment. Contrary to Officer Irish’s warning, our decision today does not mean that one police officer could never seize another,” Kobes wrote in the 9-page ruling. “We hold only that it was not clearly established as of March 2022 that an officer in Minnesota could seize a fellow officer with a K9 without subjectively intending to do so.”

The ruling was the second order issued this week from an appellate court regarding a police K-9 attack. On Wednesday, the Minnesota Supreme Court ordered that the State Patrol can be sued for liability after an unprovoked attack by one of its K-9s on an Owatonna car dealership employee, saying that qualified immunity for the agency does not apply under the state’s dog bite statute.