A federal judge has dismissed part of a lawsuit involving a Colorado Springs police dog who apprehended a man while he was in the shower.
John Mullins, the Colorado Springs man who in February filed a complaint against the city over his 2019 arrest, saw claims against two of the officers on scene and the city tossed in a ruling handed down by U.S. District Judge William J. Martínez on Dec. 15.
The judge, however, ruled that Mullins’ claims against the officer responsible for handling the police dog could proceed. Martínez noted that the K-9 officer, Brian Kelly, didn’t stop the dog from biting Mullins for as long as 25 seconds.
Mullins said when the dog — known as Broc — was sent after him, he was upstairs taking a shower and did not hear police orders. He said he made no attempt to resist the dog nor officers after Broc pulled him “naked” and “clearly unarmed” from the shower.
The city on Aug. 6 filed a motion to dismiss the case, saying Mullins failed to show the department has a policy or pattern of enforcing constitutional violations, or that officers failed to intervene, adding that “defendant officers acted reasonably and did not use excessive force.”
The motion also said that a “reasonable officer could have believed that [Mullins] was dangerous and likely to resist or evade arrest,” adding that Mullins overlooked in his complaint his “violent criminal history.” He also did not allege officers knew he was in the shower, the motion said.
The city attorney’s office did not respond to multiple calls and emails seeking comment, and Colorado Springs police spokeswoman Natashia Kerr said CSPD doesn’t comment on active litigation.
Police had obtained a warrant for Mullins’ arrest on suspicion of third-degree burglary, criminal mischief and theft. Mullins ultimately pleaded guilty to felony menacing and received a three-year sentence in prison.
Department of Corrections records show he’s incarcerated at the Trinidad Correctional Facility, and court records indicate he’d received prison sentences in other cases, including at least one identity theft case.
The dog’s bite, Mullins claimed in the complaint, threatened a major artery in his leg and caused “massive blood loss.” He was immediately rushed to the hospital, where he was told he required “multiple emergency surgeries.” He was arrested around a week later.
Denver defense attorney David Lane, who’s representing Mullins, said police had spoken with his client’s mother and sister at the door of the home. The complaint said police could have communicated with Mullins through them.
Lane said Mullins suffered “permanent damage” from the canine’s bite.
“His leg is still impaired, there’s nerve damage to him … and there’s no reason on earth that should have happened,” Lane told The Gazette.
The complaint, filed Feb. 26, is seeking damages — to be determined at trial — for humiliation, emotional distress and other pain and suffering.
Martínez ruled that Mullins couldn’t pursue claims against the two other police officers because the complaint didn’t adequately show they were involved in the dog’s release. The judge also ruled that the officers, because they hadn’t been sufficiently shown to have been trained as dog handlers, couldn’t be held accountable for failing to remove Broc from Mullins’ leg.
The judge also ruled that Mullins’ claim that the city was liable for its officers’ actions and inaction because they enforced informal customs and formal policies — and failed to properly train officers — was insufficient.
For K-9 officer Kelly, however, Martínez agreed that he should have removed Broc from Mullins’ leg sooner than he did, adding that Mullins had a clearly established “right not to be attacked by a canine in these circumstances.”
“A reasonable officer in this jurisdiction should have known that it was constitutionally impermissible to allow a canine to continue to bite Mullins while he was lying on his bathroom floor, naked and unarmed, offering no resistance and with no ability to flee police,” Martínez wrote.
Martínez allowed Mullins at the end of the ruling to file a motion seeking to refile an amended complaint that could “plausibly plead facts” curing the “deficiencies” in claims that were tossed.
Lane said that option was being discussed, but that as far as he was concerned, the case was still in play.
“We think these bystander officers should have not allowed this to happen, but as long as we’re still in court against the main wrongdoers, that’s fine,” Lane said.
This content was originally published here.
