NEW ORLEANS - A federal appeals court has ruled for a Baytown cop who had his dog go after a suspect in a traffic stop on Valentine's Day.
The U.S. Court of Appeals for the Fifth Circuit on Nov. 1 affirmed dismissal of Benjamin Benfer's case against the City and Barry Calvert, who pulled Benfer over on Feb. 14, 2021, for allegedly running a red light in a car matching the description of a stolen vehicle.
Benfer and his wife were returning home from their jobs as environmental engineers. The car wasn't stolen but there was trouble anyway.
Benfer got out of his car and walked toward Calvert, refusing to stop. Calvert tried to restrain him but failed, then warned Benfer he had a police dog, named Hero, that would bite him if he continued to ignore instructions.
Benfer's wife decided to approach Calvert at this time, so Calvert pushed Benfer to the ground. His wife pushed Calvert, who called for the dog to step in.
The K-9 bit Benfer while Calvert handcuffed his wife. When Calvert told the dog to stop so he could handcuff Benfer, the dog did not. Calvert had to pull the dog off of Benfer.
A charge of resisting arrest was dropped, leading Benfer to sue. He alleged he was stopped without reasonable suspicion, arrested without probable cause and assaulted.
"Calvert's stop was justified at its inception," Judge Jerry Smith wrote in affirming Southern District of Texas judge Andrew Hanen.
"Calvert had received an alert to look for a stolen silver 2020 Toyota RAV4, and Benfer was driving a similar-looking Mitsubishi Crossover. Calvert saw Benfer's car through the rain, at night, and the decreased visibility made it difficult for Calvert to know that he had stopped the wrong kind of car."
Benfer's actions during the stop were also enough for Calvert to think something was up, the Fifth Circuit said.
"Calvert had barely exited his patrol car when Benfer left his vehicle, walked towards Calvert, and resisted arrest," it wrote.
Bodycam footage showed Benfer repeatedly breaking out of Calvert's grasps and ignoring commands, so there was reason to charge him with resisting arrest, the opinion says.
As for excessive force, in the form of dog bites, the Fifth Circuit said Calvert's decision to release Hero was constitutional, especially since Calvert was outnumbered.
"Benfer repeatedly resisted arrest and walked away from Calvert," Smith wrote. "Benfer ignored Calvert's warning that he had a dog who would bite Benfer if he continued to resist.
"Importantly, Calvert deployed the dog only after Mrs. Benfer made physical contact with him while he was trying to restrain Benfer."
Benfer's complaint said Baytown has a history of "vicious police dog attacks with no discipline, retraining or other consequences." It cited the case of Ralpheal White, who fled police in 2019 but was caught by Calvert.
Hero caught White too and bit him. He also sued the city and obtained a settlement after part of his case survived summary judgment.