169 A.D.3d 1223
N.Y. App. Div.2019Background
- On Dec. 28, 2013 Troy PD responded to a robbery report; Officer Justin Ashe deployed his K-9, Elza, off-leash to conduct an area search.
- Elza moved out of Ashe's sight, encountered Theodore Relf (a passerby), growled, and bit/held Relf's knee.
- Plaintiffs sued under 42 U.S.C. § 1983 (excessive force/unlawful seizure), common-law negligence, and battery; claims against Sergeant White and an independent suit against Troy PD were dismissed below.
- Plaintiffs alleged the City failed to train/supervise and Ashe used excessive/unreasonable force by deploying an independent-trained K-9 known to bite without a handler command.
- Defendants moved for summary judgment; Supreme Court denied summary judgment on § 1983 claims, battery, negligent hiring/supervision, and on reargument reinstated negligence against Ashe but not the City.
- On appeal, the Appellate Division affirmed denial of summary judgment on § 1983, qualified immunity, battery, and negligence against Ashe, but reversed reinstatement of common-law negligence against the City based on the professional judgment rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether force used by K-9 constituted an unreasonable seizure under § 1983 | Relf was an innocent bystander seized by the dog; use of an off-leash dog that bites without handler command was excessive | Ashe followed training and procedure; search tactics were reasonable under the circumstances | Summary judgment denied; triable issues of fact on reasonableness remain |
| Whether Ashe is entitled to qualified immunity | Ashe violated clearly established Fourth Amendment rights by deploying a dog known to bite innocents | A reasonable officer would not have known his conduct was unlawful; qualified immunity applies | Summary judgment on qualified immunity denied; factual issues preclude entitlement to immunity |
| Whether battery claim against Ashe survives | Release of dog that intentionally was meant to seize suspects amounted to battery when it contacted an innocent person | Ashe lacked intent to contact Relf because he did not know Relf was present | Battery claim survives; intent to have the dog seize can support liability for unintended contact |
| Whether City is liable in common-law negligence for K-9 deployment/training | City customs/policies were vague and inadequate; failure to train/supervise evidences municipal negligence | Professional judgment rule shields municipality where officer acted pursuant to city procedures | Negligence claim against City dismissed based on professional judgment rule; negligence against Ashe survives |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (establishes Fourth Amendment objective-reasonableness test for use of force)
- City of Canton v. Harris, 489 U.S. 378 (municipal liability for failure to train requires deliberate indifference)
- District of Columbia v. Wesby, 138 S. Ct. 577 (qualified immunity framework; clearly established standard)
- Anderson v. Creighton, 483 U.S. 635 (qualified immunity: objective standard of what a reasonable officer would know)
- Crawford-El v. Britton, 523 U.S. 574 (distinguishes court’s legal question on clearly established rights from factual issues)
- Outlaw v. City of Hartford, 884 F.3d 351 (2d Cir. discussion of excessive force and qualified immunity analysis)
- Holland v. City of Poughkeepsie, 90 A.D.3d 841 (excessive force and jury issues; municipal liability discussion)
- Johnson v. City of New York, 15 N.Y.3d 676 (professional judgment rule requires exercise of discretion consistent with municipality’s procedures)
- Jones v. State of New York, 96 A.D.2d 105 (holding that releasing an instrumentality intended to seize can support liability for unintended contact)