Does the use of a search dog by an off-duty police officer violate qualified immunity?

MultiRegion, United States of America

The following excerpt is from Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994):

19 Our conclusion here is consistent with the analysis in Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir.1993), in which we employed "a two-part analysis" to determine whether the defendants were entitled to qualified immunity: "1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?" Id. at 871. In Act Up!, we answered the first question in the affirmative, because "it was clearly established in this circuit that it is unlawful to strip search an arrestee brought to a jail facility on charges of committing a minor offense, unless the officer directing the search possesses a reasonable suspicion that the individual arrestee is carrying or concealing contraband." Id. at 871-72 (footnote and internal quotations omitted). We then said that it was necessary to answer the second question, "whether a reasonable officer could have believed probable cause (or reasonable suspicion) existed to justify a search or arrest." Id. at 873. In this case, however, we conclude that it was not clearly established that the use of dogs to search for, bite, and seize hiding suspects was either deadly force or unreasonable force. Thus we need proceed no further. Frequently, as here, the answer to Act Up! 's first question dictates our decision on qualified immunity, and not only when we decide that the law is not clearly established. In fact, in many cases the answer to the first part of the test will provide the total answer to the qualified immunity question, and a second and separate analysis will be unnecessary.

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