Harris County Deputies Cleared in K-9 Bite Lawsuit

A federal appeals court has ruled that two former Harris County deputy constables cannot be sued for failing to stop a police dog from biting a man for 43 seconds during a 2021 arrest in northwest Houston, even though the man was lying on the ground and not actively resisting when the dog was released. The ruling shields Eric Bruss and Wayne Schultz from a lawsuit brought by Kerry Lee Thomas, who says the bite left his right arm with puncture wounds, scarring and lasting injuries. The Fifth Circuit Court of Appeals panel, made up of Circuit Judges Carolyn Dineen King, Jerry E. Smith and Irma Carrillo Ramirez, issued the decision on September 2, according to Justia Law. The panel found there was no clearly established law requiring Bruss and Schultz to intervene once handler Robert Johnson released K-9 Jeck on Thomas, distinguishing the case from prior rulings involving prolonged beatings or repeated tasing that courts have said clearly require officers to step in. As reported by the Houston Chronicle, the panel said the court has never held that officers have a constitutional duty to intervene in every canine arrest. The incident began on February 22, 2021, when Johnson, Bruss and Schultz responded to a report of two men screaming and yelling outside a house on Capstone Drive in the Acres Homes area. A dispatcher told the constables that the homeowner who called 911 was armed, according to the Chronicle's reporting. Johnson ordered Thomas and Raphael Gray to exit a red PT Cruiser, and Johnson and Schultz warned Thomas that the dog would be released if he did not stand. Schultz also pointed a Taser at Thomas during the encounter, per the same account. Body camera video reviewed in the case showed Thomas was lying on the ground and not actively resisting when Johnson released Jeck on him, and the dog bit Thomas' right arm for 43 seconds. Thomas and Gray were initially charged with trespassing, but those charges were later dismissed. Thomas tested positive for cocaine, PCP and other drugs, the Chronicle notes, though U.S. District Judge Lee H. Rosenthal found that at most, Thomas passively resisted the officers' order — which she said is not a license to use physical force. Rosenthal had rejected Bruss and Schultz's attempts to dismiss the lawsuit in both 2023 and 2025, ruling in August 2023 that she could not find a legitimate law enforcement reason for commanding a police dog to attack a suspect who had been compliant, prone and visibly unarmed for four minutes, according to the Chronicle. That finding stood in sharp contrast to the Fifth Circuit's ultimate conclusion. Bruss and Schultz had argued there was no precedent making them liable for failing to intervene in a canine arrest, and the appellate panel agreed, granting them qualified immunity. The Fifth Circuit's decision follows a pattern in the court's recent jurisprudence. In a comparable 2023 case, Sligh v. City of Conroe, the same appeals court similarly granted qualified immunity to a bystander officer when a police dog bit a suspect for more than a minute, ruling that officers who did not handle the dog are not automatically liable when a handler's dog fails or delays in releasing its hold, per Justia Law. That precedent stands in tension with the Fifth Circuit's own 2016 ruling in Cooper v. Brown, which established that allowing a police dog to continuously bite a non-threatening, compliant suspect who has stopped fleeing is objectively unreasonable under the Fourth Amendment — a standard that applies to handlers but has proven harder to extend to officers merely standing by. Harris County Constable Precinct 1's use-of-force policy classifies police dogs as a less-than-lethal form of force and directs officers to evaluate proportionality based on suspect resistance under the totality of the circumstances, according to court filings cited by Justia Law. A Precinct 1 internal investigation concluded that the officers' actions were justified and did not violate Thomas' rights. Neither Bruss nor Schultz still works for the constable's office. While Thomas' claims against Bruss and Schultz have now been dismissed, his lawsuit against Johnson's estate remains active. Johnson died by suicide in 2021 following a six-hour standoff with police, during which he confessed to sexually abusing children — a case that led to criminal charges against two fellow Precinct 1 employees, the Chronicle reported at the time. Johnson's death is why his estate, rather than Johnson himself, is now the defendant in Thomas' remaining claim. In a September 2024 amended court filing, Thomas' lawyers said veterinarians had repeatedly documented concerns about Jeck's excessive aggression years before the attack on Thomas, and that Precinct 1 leadership knew Johnson had previously been terminated from the sheriff's office for sexual misconduct, the Chronicle reported. Court filings detailing body camera footage also stated that officers at the scene were recorded cheering after Jeck bit Thomas, and that Johnson joked immediately afterward that the dog was full and satisfied. Jeck was retired from active duty in 2023 and has since died. Thomas first filed his lawsuit against Bruss and Schultz in 2023, accusing them of excessive force for failing to stop the dog attack. With the Fifth Circuit's ruling, that portion of the case is over, marking what Justia Law describes as another decision favoring officers in qualified-immunity litigation. The case against Johnson's estate, however, continues to move through the courts.