The majority panel’s decision enlarges the realm of police encounters where less lethal force can be applied for a long enough period to become deadly. In light of the number of deaths that result from prolonged police dog maulings, tasings, and restraint holds, immunizing these forms of force against a subdued individual could lead to more avoidable police killings in the Second Circuit. While the majority’s opinion seeks to justify its divergence from other circuits because the officers may have feared a subdued Mr. McKinney would resume resistance, that possibility was equally present in the out-of-circuit cases denying qualified immunity for continued canine force. Finally, the majority opinion is alarming given the prevalence of police brutality against people experiencing mental health crises—a group that is often on the receiving end of unjustifiable police violence. The Court should grant en banc review on this issue of exceptional importance.
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