Introduction

In Richard Harrold v. Lewis Hagen, the Fourth Circuit vacated a Rule 12(b)(6) dismissal that had granted qualified immunity to Officer Lewis Hagen of the Chesterfield County Police Department. The plaintiff, Richard P. Harrold, alleged that after he broke into a car dealership and hid in an upstairs storage room, Officer Hagen found him lying in a submissive, fetal-like position and deployed police K-9 Kona without a contemporaneous command or warning, causing severe dog-bite injuries.

The central issue was not whether K-9 force can ever be used to apprehend a burglary suspect. Rather, it was whether, as of December 2021, it was clearly established that an officer may not use unnecessary, gratuitous, and disproportionate K-9 force against a suspect who is alleged to be unarmed, non-threatening, effectively cornered, and only passively resisting.

Summary of the Opinion

Judge King, joined by Judge Harris, held that the district court correctly found a plausible Fourth Amendment excessive-force violation but erred in concluding that the right was not clearly established. The Fourth Circuit defined the relevant right as the Fourth Amendment right of a non-threatening, unarmed, and passively-resisting suspect to be free from unnecessary, gratuitous, and disproportionate force by deployment of a police K-9.

The court emphasized that the district court focused too narrowly on whether Officer Hagen gave warnings before using the dog. While warnings matter, the majority held they do not answer the separate question whether the resulting force was gratuitous and disproportionate under the circumstances alleged. The judgment was therefore vacated and remanded. The dismissal of the state-law claims was also vacated because it depended on the dismissal of the federal claim.

Judge Richardson dissented, arguing that the majority defined the right at too high a level of generality and failed to follow Supreme Court qualified-immunity precedent requiring fact-specific clearly established law.

Analysis

Precedents Cited

1. Pleading, review, and procedural framework

• Evans v. United States supplied the de novo standard of review for Rule 12(b)(6) dismissals.
• Republican Party of N.C. v. Martin, Bell Atl. Corp. v. Twombly, and Ashcroft v. Iqbal framed the pleading standard: the complaint must state a plausible claim, and well-pleaded allegations are accepted as true.
• Lovern v. Edwards and Ridpath v. Bd. of Governors Marshall Univ. reinforced that courts must view alleged facts in the plaintiff’s favor at the motion-to-dismiss stage.
• Doriety for Estate of Crenshaw v. Sletten was important because the district court relied on body-worn-camera footage. The majority accepted that video may be considered only when it blatantly contradicts the complaint. Here, the footage did not eliminate the pleaded facts that mattered most: Harrold’s alleged submissive position and lack of threat when the dog was deployed.
• Lucas v. Henrico Cnty. Pub. Sch. Bd. supported vacating the dismissal of state-law claims once the federal claim was revived.
• Ex Parte Young appeared in connection with the dismissed official-capacity claim, which was not at issue on appeal.

2. Fourth Amendment excessive-force framework

• Graham v. Connor provided the governing excessive-force test: courts consider the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting or fleeing.
• Rowland v. Perry and Waterman v. Batton reinforced that reasonableness depends on the totality of circumstances and that force justified at one moment may become unjustified seconds later.
• Applying these principles, the majority agreed with the district court that the complaint plausibly alleged objectively unreasonable force because Harrold was allegedly cornered, prone or fetal-like, unarmed, and only passively resisting when K-9 Kona was deployed.

3. Qualified immunity and clearly established law

• Cooper v. Sheehan and Aleman v. City of Charlotte identified 42 U.S.C. § 1983 as the vehicle for suing state actors who violate federal rights.
• Pearson v. Callahan, Willingham v. Crooke, Mays v. Sprinkle, and Ashcroft v. al-Kidd set out qualified immunity’s two-part inquiry: whether a constitutional violation occurred and whether the right was clearly established.
• Winfield v. Bass and Occupy Columbia v. Haley guided the court’s first task: defining the right at the proper level of particularity.

4. Excessive force involving weapons, tasers, pepper spray, and K-9s

• Meyers v. Baltimore Cnty., Md. was the majority’s central precedent. It held that officers may not use unnecessary, gratuitous, and disproportionate force against an unarmed and secured person. The majority treated that principle as applying regardless of whether the force comes from a taser, baton, gun, or police dog.
• Park v. Shiflett and Orem v. Rephann supported the broader rule that force used to punish, intimidate, or subdue a non-threatening person can be excessive.
• Vathekan v. Prince George's Cnty. established that an unreasonably deployed police dog can constitute a Fourth Amendment excessive-force violation, and also recognized the significance of warnings in K-9 cases.
• Maney v. Garrison was cited for the proposition that a police canine bite is a significant use of force.

5. Dissent’s qualified-immunity authorities

Judge Richardson relied heavily on Supreme Court decisions requiring highly specific clearly established law, including Zorn v. Linton, City of Tahlequah v. Bond, Rivas-Villegas v. Cortesluna, City of Escondido v. Emmons, Kisela v. Hughes, District of Columbia v. Wesby, White v. Pauly, Mullenix v. Luna, City & Cnty. of San Francisco v. Sheehan, Carroll v. Carman, Plumhoff v. Rickard, Stanton v. Sims, Reichle v. Howards, Ryburn v. Huff, and Brosseau v. Haugen.

The dissent viewed the proper question as whether clearly established law prohibited deploying a K-9 against a fleeing, hiding, potentially armed burglary suspect after repeated warnings. It also relied on Putman v. Harris, Armstrong v. Vill. of Pinehurst, Barnes v. Felix, Melgar v. Greene, Rambert v. City of Greenville, McLenagan v. Karnes, Anderson v. Russell, Milstead v. Kibler, Belton v. Loveridge, and Sigman v. Town of Chapel Hill to argue that courts must evaluate the encounter from the reasonable officer’s perspective, including uncertainty about whether a hiding suspect may be armed.

Legal Reasoning

The majority’s reasoning proceeded in three steps.

1. Define the right correctly. The court rejected the district court’s narrow focus on a final verbal warning. The real alleged violation was not merely failure to warn; it was deploying a K-9 to maul a person who, on the complaint’s facts, was not threatening anyone and was effectively contained.
2. Find a plausible constitutional violation. Under Graham v. Connor, the alleged force was disproportionate because Harrold was not accused of a violent crime against a person, was allegedly unarmed, was not actively attacking or fleeing when found, and suffered severe injuries.
3. Find the right clearly established. The majority held that Meyers v. Baltimore Cnty., Md. clearly established by 2013 that officers may not use unnecessary, gratuitous, and disproportionate force against an unarmed, secured person. Because a police K-9 is a serious force instrument, that rule applied to K-9 deployment as well.

Impact

This published decision is significant for Fourth Amendment and qualified-immunity litigation in the Fourth Circuit.

• K-9 warnings are not dispositive. Giving warnings may matter, but it does not automatically immunize a later dog-bite deployment if the suspect is allegedly non-threatening and passively resisting.
• K-9 force is treated as serious force. The opinion reinforces that police dogs are not merely search tools; deployment to bite is a significant use of force.
• Rule 12(b)(6) qualified-immunity dismissals remain difficult. Courts must accept the plaintiff’s well-pleaded facts unless video evidence blatantly contradicts them.
• The dissent signals future tension. The disagreement over how specifically to define the right may invite en banc or Supreme Court review, especially in light of cases like Zorn v. Linton and Kisela v. Hughes.

Complex Concepts Simplified

• Qualified immunity: A defense shielding officers from damages unless they violated a constitutional right that was clearly established at the time.
• Clearly established law: Existing precedent must give a reasonable officer fair warning that the conduct is unlawful.
• Rule 12(b)(6): A motion asking whether the complaint states a legally plausible claim, not whether the plaintiff can ultimately prove it.
• Excessive force: Force that is objectively unreasonable under the Fourth Amendment considering the crime, threat, resistance, and total circumstances.
• Blatant contradiction by video: Body-camera footage may override a complaint only if it clearly disproves the plaintiff’s allegations.

Conclusion

The Fourth Circuit’s key holding is that, by December 2021, it was clearly established that police may not deploy a K-9 to inflict unnecessary, gratuitous, and disproportionate force on a non-threatening, unarmed, passively resisting suspect. The decision narrows the protective force of qualified immunity at the pleading stage in K-9 excessive-force cases and clarifies that warnings, while relevant, are not a complete constitutional safe harbor.