A federal judge has refused to dismiss a lawsuit filed by a man who claims a Virginia Beach police officer released his dog on him and allowed the animal to maul him while he lay unresponsive in a vehicle, according to court records.
Attorneys for the City of Virginia Beach had asked U.S. District Judge Mark Davis to throw out the lawsuit on the basis of qualified immunity, which protects police officers and other government officials from lawsuits except when they have violated “clearly established” statutory or constitutional rights.
Johnathan Keenan initially sued Officer William P. Ahern in Virginia Beach Circuit Court in 2019, two years after he was attacked. Because the lawsuit involves a federal question involving a person’s constitutional rights, the city filed a request in federal court asking to have the case dismissed due to qualified immunity. Davis denied the motion in an opinion filed earlier this month.
The mauling incident occurred in April 2017 outside a Taco Bell on Virginia Beach Boulevard, according to court documents.
Ahern was working patrol when he saw a vehicle matching the description of one stolen hours earlier during an armed robbery and exchange of gunfire. The vehicle had the exact same license plate as the one reported stolen.
When Ahern and at least two other officers approached the vehicle, the driver’s side door was open and two people were inside. Ahern ordered them to get out, but only the driver complied.
The officer could see Keenan lying motionless and unresponsive on the front passenger’s seat, the documents said, and released his dog into the vehicle after Keenan failed to respond to his repeated commands to get out.
Keenan woke as the dog repeatedly bit him in the face and arm. The dog was still attached to him when Ahern pulled Keenan out.
Keenan suffered permanent scarring to his face and arm and nerve damage to his wrist as a result, said his attorney, Scott Flax. Flax said his client was unresponsive because he had ingested drugs and conceded he had a gun on him at the time.
Online court information shows Keenan was charged with multiple weapons and drug charges afterward. He later pleaded guilty and was sentenced to at least two years in prison.
Keenan’s lawsuit claims Ahern used excessive and unreasonable force to arrest him and caused him significant bodily injury. The officer knew, or should have known, that releasing the police dog under the circumstances was unnecessary, unlawful and unconstitutional, the claim states.
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The city attorney’s office filed a response last week arguing — in addition to the qualified immunity claim — the officer’s actions were lawful and justified, and that Keenan should have known there was a risk of injury when he engaged in criminal conduct.
Davis, however, wrote that releasing the police dog amounted to a “significant” use of force and was unreasonable in light of the circumstances.
“The Court has little difficulty concluding that the conduct alleged amounts to excessive force in violation of the Fourth Amendment,” which protects against excessive force and unreasonable arrests, the judge wrote in his opinion. “At no point prior to the attack did Keenan give any indication that he presented a danger to others or would attempt to escape.”
There also was no evidence Ahern was “forced to make a split-second judgment,” he wrote.
The judge, however, said the city and Ahern are free to bring up the qualified immunity defense again as more evidence in the case is presented.
Jane Harper, 757-222-5097, [email protected]