Jeffrey M. Kuha v. City of Minnetonka; William Roth; Kevin Anderson; Dennis Warosh
No. 02-1081
United States Court of Appeals FOR THE EIGHTH CIRCUIT
May 8, 2003
Amended: April 27, 2004
Submitted: October 7, 2002
Before MURPHY, JOHN R. GIBSON, and MELLOY, Circuit Judges.
An opinion in this case was filed on May 8, 2003. Both parties filed timely motions for rehearing by the panel and rehearing en banc. The motion for rehearing by the panel is granted. Pursuant to the grant of that motion, this amended and substituted opinion is filed.
We reverse in part and affirm in part. We hold that Kuha‘s allegation that the police officers failed to give a verbal warning prior to using a police dog trained to bite and hold is sufficient to state a Fourth Amendment claim. Thus, we disagree with the district court‘s initial determination that Kuha failed to allege a constitutional violation. We also disagree with the district court‘s conclusion that the City is not liable under
On the evening of September 22, 1999, Kuha went to a bar with friends. He states that he had four or five beers at the bar and then drove to a friend‘s house. Kuha claims he left his friend‘s home at approximately 1:00 a.m., intending to drive home. Shortly after leaving, he drove his car into a roadside curb, damaging the car and flattening the tire. Kuha walked back to his friend‘s house to get help. He and his friend changed the tire and placed the damaged tire on the front seat of the car. Kuha then continued on his way home.
At approximately 5:30 a.m., Kuha encountered Officer Roth, a Minnetonka police officer, who was driving in the opposite direction. Kuha failed to dim his lights when he approached the oncoming police car. Officer Roth made a u-turn and pulled Kuha over. Officer Roth called in the vehicle‘s license plate information and started to get out of the car for what appeared to be a routine traffic stop.
At this point, Kuha opened his door, got out, looked at the officer, and ran from his car, heading for a ditch and swamp abutting the road. Officer Roth attempted to follow Kuha but Kuha disappeared into the swamp. Beyond the swamp was a hilly area with high grass and dense brush and foliage. Beyond that were apartment and office buildings. Officer Roth returned to his police car and called for back-up. While waiting for back-up, Officer Roth inspected Kuha‘s car, noting its damage and the flat tire on the front seat. He also found Kuha‘s wallet and concluded that the picture on the license matched that of the person who had fled from the scene.
Within minutes, Officers Warosh and Anderson arrived. They were accompanied by Officer Anderson‘s K-9 partner, “Arco.” Arco is trained under a “bite and hold” method; thus, if given a “find” command, Arco will find, bite and “hold” a suspect until commanded to release. While tracking Kuha, Officer Anderson held Arco‘s leash in one hand and a flashlight in the other. Officer Warosh provided
Approximately thirty minutes after the initial stop, and as the K-9 team reached the top of a hill, Arco alerted, indicating that plaintiff was relatively nearby. At this point, Arco was around ten feet out on his lead. Arco bounded into the three-foot-high grass and “seized” Kuha. Arco is trained to bite and hold the first body part that he reaches. In this instance, Arco bit Kuha‘s upper leg. Kuha was naked except for his boxer shorts. He claims that he took off his clothes after swimming through the swamp because they were wet and cold.
Kuha states that he held his hands up to surrender as the officers approached and before Arco bit him, but concedes that the officers may not have seen him because of the high grass. The officers aver that they did not see the seizure but instead heard Kuha scream and arrived on the scene immediately thereafter. Prior to calling off Arco, Officers Anderson and Warosh inspected the area around and under Kuha to ensure he was unarmed. During this time, Kuha gripped Arco‘s head trying to free his hold. Officer Anderson repeatedly told Kuha he would not call off the dog until Kuha let go of the dog and put his hands up. Kuha eventually complied and Officer Anderson called off the dog. It is undisputed that the entire apprehension, from bite to release, took no more than ten to fifteen seconds.
The officers then handcuffed Kuha and noticed that Kuha was bleeding from the site where Arco bit him. They applied pressure to the wound and called for an ambulance. A subsequent medical examination revealed that Arco‘s bite had pierced plaintiff‘s femoral artery, causing substantial blood loss.
On May 25, 2000, Kuha pled guilty to the charge of disobeying a police officer. According to Kuha, he ran from Officer Roth because he feared he may have been over the legal alcohol consumption limit. Kuha claims he was afraid of being
II.
We review de novo the district court‘s grant of summary judgment and its qualified immunity determination. See Hill v. McKinley, 311 F.3d 899, 902 (8th Cir. 2002); Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir. 2002).
A. Kuha‘s § 1983 claims:
“In order to survive a motion for summary judgment under
Kuha asserts that Officers Anderson and Warosh used excessive force in violation of the Fourth and Fourteenth Amendments in: (1) using a dog trained in the “bite and hold” method under the circumstances of the case – where Kuha had fled from a minor traffic violation and there was no legitimate concern that he was armed or dangerous; (2) allowing the dog to attack Kuha without warning; and (3) refusing to call off the dog when it was clear that Kuha was unarmed and not dangerous. Kuha alleges municipal liability based on the City‘s failure to properly formulate a police dog policy that contemplates less dangerous methods–e.g., the “find and bark” method. Kuha also alleges municipal liability based on the City‘s inadequate
Kuha‘s excessive force claim is analyzed under the Fourth Amendment‘s “objective reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 395 (1989) (clarifying that “all claims that law enforcement officers have used excessive force–deadly or not–in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard“) (emphasis in original). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979), quoted in Graham, 490 U.S. at 396. “[H]owever, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985), characterizing the inquiry as “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure“). In sum, “the nature and quality of the intrusion on the individual‘s Fourth Amendment interests [must be balanced] against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983), quoted in Garner, 471 U.S. at 8.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation.” Id. at 396-97. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
In reviewing Kuha‘s claims, the substantive law must be applied in the context of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Thus, the relevant inquiry is whether Kuha presented enough proof in support of his claim that a jury could properly find that the degree of force used against him was not “objectively reasonable.” We conclude that he did.
Before reviewing Kuha‘s specific claims, we briefly address, and reject, Kuha‘s contention that a police dog constitutes deadly force.2 No federal appeals court has held that a properly trained police dog is an instrument of deadly force, and several have expressly concluded otherwise. See, e.g., Vera Cruz v. City of Escondido, 139 F.3d 659, 663 (9th Cir. 1998) (defining “deadly force” as “that force which is reasonably likely to cause death” and finding the possibility of death from a properly trained police dog too remote to constitute deadly force); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (holding that “the use of a properly trained police dog to apprehend a felony suspect does not carry with it a ‘substantial risk of causing death or serious bodily harm‘“) (footnote omitted, and quoting definition of “deadly force” from Model Penal Code § 3.11(2)). In Robinette, the only published case where a suspect was actually killed by a police dog, a burglary suspect was hiding
“[T]he mere recognition that a law enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force.” Id. at 913; see also Vera Cruz, 139 F.3d at 661 (“[W]e do not read Garner as covering all uses of force that might result in death, no matter how remote the possibility.“). We find the likelihood of death from the use of a properly trained police dog to apprehend a suspect sufficiently remote as to preclude its characterization as deadly force.3 See id. at 663 (assuming “that a properly trained police dog could kill a suspect under highly unusual circumstances,” but concluding that “[t]he prospect of such an aberration doesn‘t convert otherwise nondeadly force into deadly force“). Accordingly, review of excessive force claims involving police dogs is properly
Turning to Kuha‘s specific claims, we conclude that a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender. In Vathekan v. Prince George‘s County, 154 F.3d 173 (4th Cir. 1998), the Fourth Circuit reversed a summary judgment ruling in favor of a police officer who deployed a police dog without a verbal warning. Id. at 178-79; see also Kopf v. Wing, 942 F.2d 265, 268-69 (4th Cir. 1991) (reversing summary judgment in favor of officer defendants where there existed a factual dispute regarding whether a verbal warning was given, and recognizing validity of plaintiff‘s argument that “a forewarning that the dog is going to attack, which provides the suspects a fair chance to surrender, is more reasonable than a surprise assault“). While other circuits have not addressed this precise issue, the presence or absence of a warning is a critical fact in virtually every excessive force case involving a police dog. See, e.g., Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 517 (9th Cir. 1999) (noting that officers gave three warnings in both Spanish and English before releasing police dog into a closed theater pursuant to burglary reports); Vera Cruz, 139 F.3d at 660-61 (officer gave two verbal warnings before sending police dog after fleeing suspect, who was drunk and had been harassing restaurant employees); Matthews v. Jones, 35 F.3d 1046, 1051 (6th Cir. 1994) (finding no excessive force as a matter of law where the record was clear that the officer warned plaintiff, a fleeing misdemeanant, several times before releasing the police dog to apprehend him); Robinette, 854 F.2d at 911 (holding fatal attack on suspect by police dog objectively reasonable where undisputed testimony showed that police shouted three warnings before releasing dog); see also IACP National Law Enforcement Policy Center: “Law Enforcement Canines,” (May 1992), Appellant‘s app. at A.227 (“It is essential that a verbal warning be issued prior to releasing the canine . . . . The warning should be given from behind cover and in such a manner, if possible, that would allow anyone . . . to hear it. . . . [T]he warning
The district court held that the officers were not required to put themselves in danger by giving away their location to a hiding suspect whom they did not know for certain was unarmed.4 We agree that officer safety is paramount but disagree that the district court properly decided as a matter of law that requiring a verbal warning will put officers at increased risk. To the contrary, such a practice would likely diminish the risk of confrontation by increasing the likelihood that a suspect will surrender. See Robinette, 854 F.2d at 914 (concluding that use of police dogs reduces likelihood of harm to officers, bystanders and suspects). While there may be exceptional cases where a warning is not feasible, we see no reason why, in this case, a rational jury would be precluded from finding that the officers could have placed themselves out of harm‘s way—e.g., at the top of the hill where they had a good vantage point, or behind one of the nearby apartment buildings—and given a loud verbal warning that a police dog was present and trained to seize by force. Although a verbal warning will not always result in a peaceful surrender, it may be, as argued by plaintiff, that, without such a warning, seizure by force is a nearly foregone conclusion. See Vathekan, 154 F.3d at 176 (noting that purpose of verbal warning is to “enable innocent persons to exit the area and afford suspects an opportunity to surrender“).
As to Kuha‘s other claims, we conclude that neither survives summary judgment. Kuha contends that the use of a police dog trained only in the bite and hold method was objectively unreasonable. In essence, Kuha argues that the governmental interest in apprehending a fleeing misdemeanant will never outweigh the potential harm inherent in canine assisted apprehensions. We disagree. Police
Kuha‘s claim of excessive force by the officers in the moments following his apprehension by Arco is a closer question. We must decide whether, construing the facts in the light most favorable to Kuha, a jury could properly conclude that it was objectively unreasonable for the officers to require Kuha to release Arco prior to calling off the dog. Cf. Watkins v. City of Oakland, 145 F.3d 1087, 1090 (9th Cir. 1998) (affirming denial of qualified immunity where plaintiff raised genuine issue of material fact as to whether the force used against plaintiff, “including allowing [the K-9] to continue biting [him] until [he] showed his hands, was reasonable under the circumstances“). As Arco was biting Kuha‘s upper leg, Kuha‘s hands gripped the dog‘s head in an attempt to minimize the damage and pain. Officer Anderson repeatedly told Kuha that he would not call off the dog until Kuha raised his hands
Kuha‘s argument is compelling. It does not, however, end our analysis. Graham requires “careful attention to the facts and circumstances of each particular case,” 490 U.S. at 396, and cautions against hindsight. Id. Here, the officers were confronted with an inexplicable flight from a minor traffic stop in the early hours of the morning. They knew the suspect had chosen to swim through a swamp rather than encounter a police officer. The area they were searching was difficult to traverse. The officers knew there were inhabited apartment buildings nearby and that residents would soon be leaving for work. They knew that Officer Roth had not seen a gun in the brief moments before Kuha fled, but, given the totality of the circumstances, they were reasonably wary of what they might encounter when they found Kuha, and reasonably concerned for their safety.
Turning to the actual seizure, it is undisputed that the entire incident lasted only ten to fifteen seconds. Moreover, we note that this is not a case where the officers are accused of siccing a police dog on a manifestly unarmed and compliant suspect. It appears uncontested that the officers did not see the initial seizure since Arco was ten feet ahead on his lead. They heard the scream and arrived immediately thereafter. On arrival, the officers were confronted with Arco “holding” a nearly naked suspect who had been hiding in three-feet-high grass. During the ten seconds or so that ensued, the officers were searching the area under and around Kuha to ensure that he was not hiding a weapon which could be used against the officers or the dog. At the same time, Officer Anderson was ordering Kuha to release the dog‘s head.
B. Qualified immunity:
Because we find that Kuha made a sufficient showing to survive summary judgment on his
Kuha‘s right to a verbal warning in this case was not clearly established at the time of the seizure. Officers Anderson and Warosh were not on notice that it arguably was constitutionally impermissible to use a police dog against Kuha without a verbal warning under the circumstances of this case. See Hill, 311 F.3d at 904 (quoting Saucier, 533 U.S. at 201, for the proposition that “whether the alleged constitutional right was clearly established ‘must be undertaken in light of the specific context of the case, not as a broad general proposition‘“); Jarrett, 309 F.3d at 62 (characterizing relevant inquiry as “whether a reasonable officer would have believed that releasing a trained police dog to apprehend [defendant] was lawful in light of both clearly established law and the particular circumstances of that night“). There are no cases from this circuit that mandate such a warning and a review of other circuits offers little guidance on the issue. In most of the published K-9 bite cases, the fighting issue is whether the initial decision to release the dog was objectively
In those few cases turning on a failure to warn, significant factual differences weigh against charging Officers Anderson and Warosh with notice sufficient to warrant denial of qualified immunity. The Fourth Circuit, in a 1998 case, found it clearly established that it is objectively unreasonable for a police officer to fail to give a verbal warning before releasing a police dog to seize someone. Vathekan, 154 F.3d at 175. Vathekan involved the release of a police dog into a house whereafter the dog found, bit, and seriously injured a sleeping woman. Id. In an earlier Fourth Circuit case, Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), the court concluded that releasing a police dog, without warning, into an extremely narrow passage between a shed and a fence, where the suspects were essentially trapped, could be deemed objectively unreasonable. Id. at 268-69. While we agree with the general holding in both these cases, they do not clearly establish that a verbal warning is always required. An officer could conclude, as Officer Anderson testified in this case, that in situations where the location of the suspect is less evident, a warning would place the officers at undue risk from a hiding suspect. We cannot say that “no reasonably competent officer” would have concluded otherwise. See Malley, 475 U.S. at 341 (“As the
C. The City‘s liability:
Kuha also seeks to hold the City liable for the alleged constitutional violation. Even though we find that the defendant officers are entitled to qualified immunity protection, we must still address the question of municipal liability. This is so because “[a] municipality that operates under a policy or custom that unconstitutionally deprives a citizen of his or her rights may be liable under
A city may be sued directly under
In this circuit, we have taken care not to blur this distinction by differentiating between the showing necessary when a plaintiff alleges an unconstitutional policy and when a plaintiff alleges an unconstitutional custom. In Ware v. Jackson County, Mo., 150 F.3d 873 (8th Cir. 1998), we stated,
A plaintiff may establish municipal liability under
§ 1983 by proving that his or her constitutional rights were violated by an “action pursuant to official municipal policy” or misconduct so pervasive among non-policymaking employees of the municipality “as to constitute a ‘custom or usage’ with the force of law.” Monell v. Department of Soc. Serv., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (Monell) (internal quotation omitted); see also McGautha v. Jackson County, 36 F.3d 53, 55-57 (8th Cir. 1994) (McGautha); Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990) (Jane Doe A). “Official policy involves ‘a deliberate choice to follow a course of action * * * made from among various alternatives’ by an official who [is determined by state law to have] the final authority to establish governmental policy.” Jane Doe A, 901 F.2d at 645. Alternatively, “custom or usage” is demonstrated by:
- The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity‘s employees;
- Deliberate indifference to or tacit authorization of such conduct by the governmental entity‘s policymaking officials after notice to the officials of that misconduct; and
Th[e] plaintiff[‘s] injur[y] by acts pursuant to the governmental entity‘s custom, i.e., [proof] that the custom was the moving force behind the constitutional violation. Id. at 646 (citing Harris v. City of Pagedale, 821 F.2d 499, 504-07 (8th Cir. 1987) (Harris)).
Similarly, in Mettler v. Whitledge, 165 F.3d 1197 (8th Cir. 1999), we made this same distinction, stating:
[T]his Court does not use the terms “policy” and “custom” interchangeably when conducting a Monell analysis. Rather, a “policy” is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters. See Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998) (citing Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 645 (8th Cir.1990)). Ms. Mettler has not identified any official policy that arguably played a role in her son‘s death.
Therefore, we must determine whether Ms. Mettler has come forward with evidence from which a jury could reasonably find the existence of a relevant municipal custom. According to Ware, Ms. Mettler must satisfy three requirements to prove a municipal custom exists. These requirements are:
- The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity‘s employees;
- Deliberate indifference to or tacit authorization of such conduct by the governmental entity‘s policymaking officials after notice to the officials of that misconduct; and
Th[e] plaintiff[‘s] injur[y] by acts pursuant to the governmental entity‘s custom, i.e., [proof] that the custom was the moving force behind the constitutional violation. Id. (quoting Jane Doe A, 901 F.2d at 646) (alterations in the original).
It is important that the purpose underlying this distinction between policy and custom remains the focus of our inquiry in determining whether Monell liability may attach. Under Monell, a municipality can be found liable under
In this case, Kuha argues that his injuries are the result of the City‘s unconstitutional policy regarding the use of K-9 force—i.e., that the City violated his Fourth Amendment right to be free from excessive force by adopting and implementing a policy of training and using police dogs in an objectively unreasonable manner. Therefore, because Kuha alleges that his constitutional rights were violated by an action taken pursuant to an official municipal policy (as opposed
The City argues that summary judgment was properly granted on Kuha‘s Monell claim because Kuha did not allege facts sufficient to support a finding of “deliberate indifference.” In support of this argument, the City cites Shrum v. Kluck, 249 F.3d 773 (8th Cir. 2001). In Shrum, the plaintiff alleged a substantive due process claim stemming from a school district‘s decision to remain silent about sexual impropriety allegations against a teacher and to give him a neutral recommendation for another teaching position. Id. at 775. After being hired by another school district, the teacher sexually molested Shrum‘s son, and Shrum sought to vindicate her son‘s due process rights under
The City‘s reliance on Shrum is misplaced for two reasons. First, the plaintiff sought to impute
Second, the Shrum court‘s discussion of deliberate indifference pertained to whether Shrum came forward with sufficient proof to establish that the school district‘s conduct shocked the conscience. We held that “in some circumstances, official policy that is deliberately indifferent to unconstitutional conduct may satisfy the ‘shocks the conscience’ standard.” Id. We determined that the school district‘s conduct in entering into a confidential agreement with the offending teacher and
As we noted in Shrum, the essential elements of a