Daniel Irish v. Keith McNamara, in his individual capacity as a Hennepin County Sheriff’s Deputy

United States Court of Appeals
For the Eighth Circuit
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No. 23-3034
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Daniel Irish
Plaintiff - Appellee
v.
Keith McNamara, in his individual capacity as a Hennepin County Sheriff’s
Deputy
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 13, 2024
Filed: July 18, 2024
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
After an on-duty police K9 bit Officer Daniel Irish while they both pursued a
suspect, he sued the K9’s handler, Deputy Keith McNamara, under 42 U.S.C. § 1983
for violating his Fourth Amendment right to be free from excessive force and
unreasonable seizure. The district court denied Deputy McNamara’s motion to
dismiss based on qualified immunity. Because it was not clearly established on these

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facts that the bite was a seizure, we reverse and remand with instructions to dismiss
the complaint.
I.
We take the complaint in the light most favorable to Officer Irish and accept
his factual allegations as true. Waters v. Madson, 921 F.3d 725, 734 (8th Cir. 2019).
The parties’ worlds collided on a rainy Minnesota afternoon in March 2022 after a
suspect led police on a high-speed pursuit that ended with a foot chase. An officer
radioed that the suspect had scaled a fence and was making a beeline through a
nearby cemetery.
Within seconds, Deputy McNamara arrived and deployed his K9, Thor,
without a leash. They hopped the fence and gave chase. Meanwhile, Officer Irish
radioed that he was heading to the cemetery and requested the suspect’s description.
Another officer responded, “Suspect, male, . . . he’s in a blue shirt now, blue jeans.
K9 just got over the fence. [Deputy McNamara] is pursuing him.” Officer Irish says
he never heard about the K9.
Meanwhile, over the wail of police sirens, Deputy McNamara repeatedly
commanded Thor, who could not see the suspect, to “get him!” as they raced down
the cemetery path. Officer Irish then turned into the cemetery ahead of them and
joined the pursuit. Thor bounded forward, outpacing Deputy McNamara and
running behind Officer Irish’s squad car. It was approximately 35 seconds after
Thor got over the fence when Deputy McNamara heard screaming. His body cam
picked up an agonized “Keith [McNamara]! Keith!” Too far away to restrain Thor,
Deputy McNamara repeatedly shouted, “Thor, come! Thor! Thor, out!”
Officer Irish’s body cam also captured the chaos. Shortly after he requested
the suspect’s description, he arrived in the cemetery, spotted the suspect just across
a ravine, opened his squad car door, and yelled, “Get on the fucking ground!” Thor
immediately attacked him. Officer Irish fought to control him but continued to give

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the suspect orders. Between breaths, Officer Irish told Thor to “get him!”—to no
avail. He gasped, “Keith! Keith! I didn’t know he was out.” Deputy McNamara
finally caught up and restrained and refocused Thor. Bloody but unbowed, Officer
Irish gave a K9 warning. The suspect started to inch away, so the officers released
Thor, who eventually vaulted through the ravine and apprehended him.
Following the incident, Officer Irish sued Deputy McNamara for violating his
Fourth Amendment right to be free from excessive force and unreasonable seizure.
He alleged that Deputy McNamara released Thor to apprehend the suspect and
intended for Thor to bite the first person found in the cemetery. Since that was him,
he faulted Deputy McNamara for failing “to give an effective K9 warning.” See
Adams v. City of Cedar Rapids, 74 F.4th 935, 939–40 (8th Cir. 2023) (finding it
clearly established as of 2020 that before using a K9, an officer must give the suspect
an “[adequate] warning and an opportunity to surrender” (citing Kuha v. City of
Minnetonka, 365 F.3d 590, 595–96, 598 (8th Cir. 2003), overruled on other grounds
by Szabla v. City of Brooklyn Park, 486 F.3d 385, 395–96 (8th Cir. 2007) (en banc))).
Deputy McNamara moved to dismiss the complaint based on qualified
immunity. During argument on the motion, the district court observed that this was
a “highly unfortunate accident,” but it nevertheless denied qualified immunity,
reasoning that it was clearly established that a seizure occurred within the meaning
of the Fourth Amendment. Deputy McNamara now invokes our limited jurisdiction
to review the court’s interlocutory order. See Faulk v. City of St. Louis, 30 F.4th
739, 742 (8th Cir. 2022).
II.
Qualified immunity provides government officials “some protection against
suits for civil damages.” Dundon v. Kirchmeier, 85 F.4th 1250, 1255 (8th Cir. 2023)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To prevail, Officer Irish
must show that the facts “demonstrate the deprivation of a constitutional or statutory
right” and that “the right was clearly established at the time of the deprivation.”

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Peterson v. Heinen, 89 F.4th 628, 633 (8th Cir. 2023) (citation omitted). We may
resolve the appeal under only the clearly established prong of the analysis. See
Gardner v. Bd. of Police Comm’rs, 641 F.3d 947, 950 (8th Cir. 2011); see also
Lombardo v. City of St. Louis, 38 F.4th 684, 690 (8th Cir. 2022) (cautioning that
“courts should think hard, and then think hard again, before deciding a constitutional
question that need not be resolved” (cleaned up) (quoting Camreta v. Greene, 563
U.S. 692, 707 (2011))).
For a right to be clearly established, the “contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Specificity
is especially important in the Fourth Amendment context,” City of Escondido v.
Emmons, 586 U.S. 38, 42 (2019) (citation omitted), meaning we must grant Deputy
McNamara qualified immunity unless Officer Irish identifies “controlling authority
or a robust consensus of persuasive authority [that] put[s] the constitutional question
‘beyond debate,’” Dundon, 85 F.4th at 1255 (quoting Ashcroft v. al–Kidd, 563 U.S.
731, 741–42 (2011)).
Our analysis begins and ends with the “threshold question” of whether Officer
Irish was seized within the meaning of the Fourth Amendment. See id.; cf.
Whitworth v. Kling, 90 F.4th 1215, 1217 (8th Cir. 2024). That amendment targets
the “misuse of power, not the accidental effects of otherwise lawful government
conduct.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989) (cleaned up) (citation
omitted). Nor does it transform a government employee’s every touch into a Fourth
Amendment seizure. Id.; accord Michigan v. Chesternut, 486 U.S. 567, 573 (1988)
(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
Instead, a seizure occurs when an officer, “by means of physical force or show
of authority, terminates or restrains [an individual’s] freedom of movement through
means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007)
(cleaned up) (citations omitted). The Supreme Court has explained that the “intent
that counts under the Fourth Amendment is the ‘intent that has been conveyed to the

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person confronted.’” Id. at 256–57, 260–61 (cleaned up) (quoting Chesternut, 486
U.S. at 575 n.7) (holding that all occupants in a car are seized during a traffic stop).
So long as the officer’s conduct is “willful,” a “seizure occurs even when an
unintended person or thing is the object of the detention.” Brower, 489 U.S. at 596,
599 (emphasis added) (citation omitted) (holding that a seizure occurred where a
fleeing suspect crashed into a roadblock).
Leveraging these principles, Officer Irish argues that because Deputy
McNamara willfully deployed Thor and objectively intended for him to bite the first
person he encountered, the bite was a seizure. The deputy counters that he did not
subjectively intend to seize Officer 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. We agree with Deputy McNamara.
We have already recognized that even after Brower and Brendlin, the law is
not clearly established in this area. As of 2007, it was not clearly established that an
officer “could effect a seizure under the Fourth Amendment without subjectively
intending to do so.” Gardner, 641 F.3d at 953. In Gardner, we explored the role
that subjective intent plays in a seizure analysis after an officer shot someone while
experiencing a medical reaction rendering him unable to “distinguish between reality
and fiction.” Id. at 950. We explained that Brendlin focused on “objective intent,”
but it didn’t “disavow statements in Brower that led lower courts and commentators
to focus at some level on the subjective intent of the officers.” Id. at 952–53. We
also observed that we said in a post-Brendlin case that “the occurrence of a seizure
depend[ed] on an officer’s subjective state of mind.” Id. at 953 (citing Moore v.
Indehar, 514 F.3d 756, 760–61 (8th Cir. 2008)). Given the “legal landscape,” we
remanded for the district court to decide whether a jury could find that the officer
“subjectively intended to effect a seizure.” Id.
Officer Irish says things have changed since Gardner, pointing to Torres v.
Madrid, which held that police seized a suspect “for the instant th[eir] bullets struck
her,” even though she temporarily eluded arrest afterward. 592 U.S. 306, 309, 317–

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18 (2021); see also Atkinson v. City of Mountain View, 709 F.3d 1201, 1209 (8th
Cir. 2013) (observing that a seizure occurred when “the force itself necessarily—if
only briefly—restrained the person’s liberty” (cleaned up) (citation omitted)).
Torres observed that “the appropriate inquiry is whether the challenged conduct
objectively manifests an intent to restrain,” 592 U.S. at 317—a snippet of the opinion
that Officer Irish says leaves “no confusion” that an officer’s subjective intent is
irrelevant to whether a seizure occurred.
Setting aside the myriad ways Torres is factually distinguishable, we cannot
ignore that in the very same sentence Officer Irish quotes, the Court said that it
“rarely probe[s] the subjective motivations of police officers in the Fourth
Amendment context.” Id. (emphasis added). Rarely, not never. This qualified
language is consistent with the Court’s repeated observation that officers’ subjective
intent “is relevant to an assessment of the Fourth Amendment implications of police
conduct” insofar as “that intent has been conveyed to the person confronted.”
Chesternut, 486 U.S. at 575 n.7 (emphasis added); Brendlin, 551 U.S. at 260–61;
United States v. Warren, 984 F.3d 1301, 1304 (8th Cir. 2021) (quoting United States
v. Mendenhall, 446 U.S. 544, 554 n.6 (1980)); cf. Whren v. United States, 517 U.S.
806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.” (emphasis added)); McClendon v. Story Cnty.
Sheriff’s Off., 403 F.3d 510, 515 (8th Cir. 2005). Like Brendlin, Torres focused on
“objective intent,” but it didn’t disavow the Court’s prior statements or end any
“debate” on subjective intent’s role in whether a seizure occurred. See Gardner, 641
F.3d at 952–53 (identifying where language in Brower and Brendlin “allude[d] to an
officer’s subjective state of mind”).
Along these lines, we have identified a potential distinction between cases
where officers make “factual mistakes as to identity,” Moore, 514 F.3d at 760, and
those where officers “accidentally shoot a bystander who is not the intended target
of police action,” Gardner, 641 F.3d at 952. The former cases find seizures; the
latter do not. And importantly, decisions in the unintended-target cases “impl[y]
that an officer’s subjective state of mind [is] relevant . . . in determining whether a

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seizure occurred.” Id. (collecting cases); see also Moore, 514 F.3d at 760
(explaining that in an unintended-target case, “the question . . . [is] one of intent,”
meaning the plaintiff “must show that [the officer] intended to seize [him] through
the means of firing his weapon at [him]” (emphasis added)).
Officer Irish protests that the unintended-target cases are immaterial because
excessive force cases involving K9s are unique. See, e.g., Hope v. Taylor, No. 8:20-
cv-196, 2021 WL 694177, at *5–6 (M.D. Fla. Feb. 23, 2021) (taking a “different
tack” from unintended-target cases and holding that a seizure occurred where an
officer deployed a K9 that bit a bystander, not the intended suspects). He says that
by releasing Thor with the intent that he bite the first person he found, Deputy
McNamara had all the intent needed to effect a seizure.1 Though we have never
recognized a constitutional distinction between force-by-K9 and force-by-bullet, the
district court did. It relied on Szabla v. City of Brooklyn Park, where we found “a
submissible case of excessive force” after an officer’s K9 was tracking a suspect but
ended up biting an innocent bystander. 429 F.3d 1168, 1171–73 (8th Cir. 2005),
rev’d on other grounds en banc, 486 F.3d at 388. From Szabla, the district court
inferred an “[i]mplicit” holding that when an officer intentionally deploys a K9 to
find and bite a suspect and the K9 bites an innocent bystander, that bite is “a seizure
under clearly established law.”
1 In addition to Hope, Officer Irish supports his proposition with a scattershot
of out-of-circuit, mostly district court, opinions holding that police effect a seizure
by simply deploying a K9 that subsequently bites a bystander. E.g., McKay v. City
of Hayward, 949 F. Supp. 2d 971, 976, 979 (N.D. Cal. 2013). That said, some
opinions he cites hold that the K9’s bite of a bystander was a seizure, but they have
language implying that subjective intent was relevant to the seizure analyses. See,
e.g., Vathekan v. Prince George’s Cnty., 154 F.3d 173, 177–78 (4th Cir. 1998).
Meanwhile, Deputy McNamara alerts us to decisions where courts have found that
no seizure occurred where the K9 was actively tracking a suspect but bit a bystander.
E.g., Maney v. Garrison, 681 F. App’x 210, 219 (4th Cir. 2017). This is far from a
“robust consensus of persuasive authority” making it clearly established that Thor’s
bite was a seizure. See Dundon, 85 F.4th at 1255.

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We do not read so much into Szabla. It never addressed whether the officer
subjectively or objectively intended to seize the plaintiff. See id. at 1172–74. And
it fits best in the mistaken-identity line of cases. The officer in Szabla told his K9 to
find and apprehend an unknown suspect, “ordered [the apprehended plaintiff] to
show his hands,” and then detained and refused to release him until the officers
determined that he was not the suspect they were after. Id. at 1172. In other words,
the officer arguably subjectively intended to seize the plaintiff whom he mistakenly
believed was the suspect. See Collins v. Schmidt, 326 F. Supp. 3d 733, 740 (D.
Minn. 2018) (stating that an “implicit holding in Szabla” is “that a seizure occurs
when a [K9] seizes an individual [whom] police did not know to be present, at least
when police initially believe that the individual is the suspect” (emphasis added)).
This case, on the other hand, fits best in the unintended-target line of cases.
Less than a minute before the bite, Deputy McNamara commanded Thor to “get
him!”—the fleeing suspect; during the bite, he repeatedly ordered Thor to disengage
from Officer Irish and quickly restrained him; and after the bite, he refocused Thor
toward the suspect. See Whitworth, 90 F.4th at 1218 (examining conduct after the
K9’s bite in deciding whether a seizure occurred); cf. Torres, 592 U.S. at 317 (noting
that the “amount of force remains pertinent in assessing the objective intent to
restrain”). So Szabla could not have put Deputy McNamara on notice that Thor’s
bite was a seizure.
In the end, this is a “narrow and specialized Fourth Amendment problem,” cf.
Melgar ex rel. Melgar v. Green, 593 F.3d 348, 353 (4th Cir. 2010)—where we must
ask “whether the violative nature of particular conduct is clearly established,”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (citation omitted). We are not
dealing with the use of a K9 against either a suspect or even a traditional bystander,
but rather against a fellow officer who was also involved in the chase. That brings
us to Schreckendgust v. White, where an officer sued her colleague for excessive
force after a K9, who was actively tracking a suspect, bit her while she was assisting
with the search. No. CIV 06-148, 2006 WL 8443207, at *2 (D.N.M. Dec. 11, 2006).
To decide whether a seizure occurred, the district court zeroed in on subjective

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intent, reasoning that the officer needed to “show that [the defendant] intended for
[the K9] to bite or attack her and that [she] was attacked as a result of that means
intentionally applied to her.” Id. at *4. She could not, so the court dismissed her
claim. Id.; see also Hansen v. City of St. Paul, No. 06–1286, 2007 WL 4224052, at
*1, 3–4 (D. Minn. Nov. 27, 2007) (holding that while an officer “willfully released”
the K9, “he did not intend to seize” the plaintiff, who was assisting him with
apprehending a 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. See District of
Columbia v. Wesby, 583 U.S. 48, 63 (2018) (cleaned up) (citation omitted). Contrary
to Officer Irish’s warning, our decision today does not mean that one police officer
could never seize another. See Ngo v. Storlie, 495 F.3d 597, 599–601, 605 (8th Cir.
2007) (finding a submissible case of excessive force after the defendant officer shot
the plaintiff, an unarmed plainclothes officer). 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.
III.
Because Officer Irish has not plausibly pleaded any facts suggesting that
Deputy McNamara subjectively intended to seize him, Deputy McNamara is
“entitled to qualified immunity on the face of the complaint.” Baude v. Leyshock,
23 F.4th 1065, 1071 (8th Cir. 2022) (cleaned up) (citation omitted). As the district
court observed, “[Deputy] McNamara never intended [this] to [] happen.” We
reverse and remand with instructions to dismiss Officer Irish’s complaint.
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