69 F. Supp. 3d 553
M.D.N.C.2014Background
- Around 10:09 p.m. on May 4, 2010, High Point police responded to an alleged Sonic restaurant assault/robbery and searched with Officer Terence Garrison and his K-9.
- Officers entered a wooded homeless camp; plaintiff fled and hid behind bushes under stairs of an abandoned house; Garrison had the K-9 on a 3-foot lead when they reached the porch (previously on 15-foot lead).
- Officers did not announce presence; the K-9 attacked plaintiff, tearing scalp tissue and then biting plaintiff’s left arm and left thigh; the attack lasted ~10 seconds.
- After the initial bite, Garrison concluded plaintiff did not match witness description (plaintiff: white, 5'5"; suspect: black, ~5'10"). Garrison nonetheless required plaintiff to show hands before removing the dog.
- Plaintiff sued under 42 U.S.C. § 1983 (excessive force) and state battery; other defendants and claims were dismissed earlier, leaving Garrison in his individual capacity.
- Court considered Garrison’s summary judgment motion arguing (1) force was objectively reasonable, (2) qualified immunity for § 1983 claim, and (3) public official immunity for state battery claim; plaintiff submitted an affidavit, portions of which the court struck for lack of personal knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garrison used excessive force in violation of the Fourth Amendment | The K-9 attacked while plaintiff was being required to show hands; extra bites after officer realized plaintiff was not the suspect were unreasonable | Use of the K-9 was objectively reasonable given a serious violent crime, flight risk, and split-second decisions | Court: on facts viewed for plaintiff, cannot find as a matter of law force was reasonable for all bites; genuine issue remains for initial/continued bites |
| Whether Garrison is entitled to qualified immunity for the § 1983 claim | Plaintiff: prior decisions (e.g., Kopf) put officer on notice that forcing compliance while a dog bites can be unconstitutional | Garrison: no clearly established law applied because K-9 remained on lead, split-second situation, and precedent not on point | Court: granted qualified immunity — right was not clearly established under the circumstances |
| Whether plaintiff's affidavit testimony should be considered on summary judgment | Plaintiff: affidavit statements describe visibility and officers’ perceptions | Garrison: several affidavit statements lack personal knowledge and should be disregarded | Court: struck portions that exceeded plaintiff’s personal knowledge (e.g., what officers could see, actions after plaintiff left scene) |
| Whether North Carolina public official immunity bars the state-law battery claim | Plaintiff: battery is an intentional tort so immunity should not apply | Garrison: acted within authority without malice; immunity applies | Court: public official immunity applies because plaintiff failed to show malice/corrupt intent; battery dismissed |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (1989) (establishes Fourth Amendment objective-reasonableness standard for use-of-force claims)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity standard for government officials)
- Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991) (noting a jury could find it unreasonable to require surrender while a police dog bites)
- Vathekan v. Prince George’s County, 154 F.3d 173 (4th Cir. 1998) (failure to warn before releasing a police dog can be objectively unreasonable)
- Melgar ex rel. Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010) (qualified-immunity discussion where court found law not clearly established)