Page 37 - TPA Journal November-December 2018

killed; the police were rightly informed that of force to a compliant arrestee is per se
Escobar had committed a felony assault; and unreasonable.” And we explicitly declined to
Escobar had fled into the night through multiple “opine on the line of reasonableness” ― with
backyards before hiding for approximately twenty good reason, as the present case reveals.
minutes.
Although, as with the suspect in Cooper,
On those facts, the totality of the circumstances Escobar’s hands were visible and he complied
and the Graham factors establish that Montee’s with Montee’s commands, much unlike the
use of force was not objectively unreasonable. situation in Cooper, Escobar had a knife within
The first Graham factor―the severity of the reach, and Montee had reason to believe he still
offense―favors Montee. posed a threat. Also, unlike Cooper, Montee had
been told that Escobar would have to be killed—
The second factor—whether Escobar posed a by Escobar’s own mother no less. A reasonable
threat—is the focus of the dispute. According to officer could easily conclude that Escobar’s
Escobar and the district court, a reasonable jury surrender was not genuine.
could find that Montee allowed Bullet to continue
biting after it would have been apparent “that Given the information from Escobar’s mother and
Escobar was no longer armed and was not the nature of the chase (at night, through multiple
resisting arrest.” That reasoning overlooks several backyards in a residential neighborhood), Montee
key facts: The chase was at night; Escobar had had reason to doubt the sincerity of Escobar’s sur-
hidden from the police for twenty minutes in a render. And because the knife remained within
neighbor’s backyard; the chase, along with the reach, Montee could reasonably believe that
warnings from Escobar’s mother, would lead a Escobar—if the dog was called off before
reasonable officer to believe that, as he had handcuffing—would then try to harm someone.
apparently promised, Escobar would not go Accordingly, a reasonable officer could think
without a fight; and the knife remained within Escobar posed a threat.
Escobar’s reach, ready to be used. In the face of
such facts, a reasonable officer could believe that Finally, the third Graham factor—whether the
Escobar’s “surrender” was a ploy and that he was suspect was resisting or attempting to flee—
ready to snatch the knife again once the dog was largely folds into the second. If Escobar may have
removed. posed a threat, then he also might have attempted
to flee once released by the dog. Accordingly,
The cases cited by Escobar are not to the contrary. based on all the circumstances, it was objectively
As Escobar rightly notes, we have consistently reasonable to permit Bullet to continue biting
held that a suspect does not pose an immediate Escobar until he was fully handcuffed and
threat where he unambiguously surrenders by, for subdued. Montee did not violate Escobar’s Fourth
example, placing his hands in the air and Amendment rights.
complying with the officers’ commands. Thus, in
Cooper, we held that officers used excessive force Escobar v. Montee, No. 17-10467, 5 th Cir., July
by permitting a dog to continue biting a suspect 11, 2018.
when they had no reason to think he had a ****************************************
weapon, his hands were visible, and he complied ******************************** -
with officers’ commands. Yet even there, we
cautioned that “we do not say that any application

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