RICHMOND (LN) — A divided Fourth Circuit panel on Monday vacated a qualified immunity dismissal in favor of a Virginia police officer who unleashed his K-9 on an unarmed, one-legged suspect found lying prone on a storage room floor, ruling that the right to be free from such force was clearly established years before the December 2021 incident.
Richard Harrold, a 44-year-old amputee missing his lower left leg, had broken into a used car dealership called VA Cars on Midlothian Turnpike in Chesterfield County, Virginia, triggering an alarm that brought Chesterfield County Police Officer Lewis Hagen and his K-9, Kona, to the scene. According to the complaint, Harrold retreated upstairs to a storage room, called out to police that he was not a threat, and was in a submissive, fetal-like position with his head down when Hagen found him.
The complaint alleged that Hagen "gave a signal to the K-9 to sic Harrold" without issuing any order or warning at that moment, and that Kona "did not simply bite Harrold and hold the same bite until an officer could perform an arrest," but instead "went into a full blown, violent attack" focused on Harrold's "buttocks, anus and scrotum, along with his legs and his amputated stump." Hagen, the complaint alleged, "mainly tried to pull the dog's leash, much as an amateur, first-time dog owner might do" rather than issuing clear commands to stop the attack.
The injuries were severe enough that a tourniquet and Israeli bandage were applied at the scene to prevent Harrold from bleeding out. Kona's jaws destroyed Harrold's prosthetic leg, and doctors later found a piece of the prosthetic's rubber sleeve embedded in one of the wounds. Harrold was transported to Chippenham Hospital's emergency department. He later pleaded guilty to two misdemeanors — trespassing and vandalism — and all other charges were dismissed.
The Eastern District of Virginia dismissed the Fourth Amendment excessive force claim on qualified immunity grounds in September 2024, crediting body-worn camera footage showing officers had shouted at least six warnings about the K-9 before Hagen deployed Kona, and concluding the constitutional right at issue was not clearly established. The district court had nonetheless concluded the complaint plausibly alleged an actual Fourth Amendment violation, ruling Hagen's application of force was not objectively reasonable under the Supreme Court's Graham v. Connor framework.
Writing for the majority, U.S. Circuit Judge Robert King said the district court committed a threshold error by framing the constitutional right too narrowly — asking only whether Hagen was required to give a final verbal warning immediately before deploying Kona, rather than asking whether a non-threatening, unarmed, and passively resisting suspect had a clearly established right to be free from unnecessary, gratuitous, and disproportionate K-9 force altogether. The majority held that right was clearly established as of 2013 under the circuit's decision in Meyers v. Baltimore County, which held that "[t]he use of any unnecessary, gratuitous, and disproportionate force, whether arising from a gun, a baton, a taser, or other weapon, precludes an officer from receiving qualified immunity if the subject is unarmed and secured."
Applying that principle to the facts alleged, King wrote that "because [Harrold] did not pose a threat to the officers' safety and was not actively resisting arrest [at the time he was discovered], a reasonable officer in [Officer Hagen's] position would have understood that his delivery of some, if not all, of the [dog bites] violated [Harrold's] Fourth Amendment right to be free from the use of excessive and unreasonable force" — language drawn from Meyers.
U.S. Circuit Judge Julius Richardson dissented, accusing the majority of defining the right at too high a level of generality in defiance of repeated Supreme Court instructions, including the Court's per curiam decision in Zorn v. Linton, 146 S. Ct. 926 (2026), which reversed the Second Circuit for the same error. Richardson argued that Meyers was materially distinguishable because it involved force used after a threat had already been eliminated, whereas Hagen deployed Kona to subdue a hiding suspect whose threat level he could not have confirmed. "Binding means binding," Richardson wrote. "Inferior courts may not treat vertical stare decisis as voluntary."
The case returns to the Eastern District of Virginia, where Harrold's five Virginia state law claims — dismissed without prejudice when the federal claim fell — are also revived. Hagen has not been deposed and has given no sworn account of the events of December 26, 2021.