Reed v. Wallace

Filing 37

ORDER - Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: Defendant Chris Wallace's motion for summary judgment 23 is GRANTED. The complaint 1 is DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion). Signed by Judge Patrick J. Schiltz on 12/12/13. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ROBERT REED,

Case No. 12-CV-1948 (PJS/JSM)
Plaintiff,

v.

ORDER

CHRIS WALLACE,
Defendant.

Duane A. Kennedy, KENNEDY LAW OFFICE, for plaintiff.
Jenny Gassman-Pines and John M. Baker, GREENE ESPEL PLLP, for defendant.
Defendant Chris Wallace, an Olmsted County deputy sheriff, used a police dog to find
and detain plaintiff Robert Reed after Reed fled into dense woods to avoid being apprehended for
burglarizing a nearby home. Reed alleges that Wallace’s use of the police dog violated Reed’s
right under the Fourth Amendment to be free from excessive force. This matter is before the
Court on Wallace’s motion for summary judgment. ECF No. 23. Wallace’s motion is granted
for the reasons explained below.
I. BACKGROUND
The facts of this case are disputed in some respects, but, taking the record in the light
most favorable to Reed, a jury could find the following:
The Olmsted County Sheriff’s Office received a call reporting a burglary in progress
during the early morning hours of November 10, 2009. The caller reported that two individuals
had broken into her home and that she had witnessed them looking through her papers. See ECF
No. 26-1 at 2. Wallace and other officers were dispatched to the scene, but the burglars fled

before the officers arrived. Id. Wallace and the other officers immediately began searching for
the burglars in the rural area surrounding the residence.
The officers quickly came upon an unattended vehicle parked about a quarter mile from
the residence. See ECF No. 27-1 at 2; ECF No. 28-1 at 2. A records search connected the
vehicle to Edward Kearns, a suspect in other recent Olmsted County burglaries. See ECF
No. 27-1 at 2. Although the weather was cold, the vehicle’s engine was warm, suggesting that
the vehicle had been driven recently. Id.
The vehicle was parked near a heavily wooded area. Wallace suspected that one (or both)
of the burglars might be hiding in the woods, so he released a police dog to search for the
suspects. Before releasing the dog, however, Wallace gave the following warning: “This is the
Olmsted County Sheriff’s Office. You are under arrest. Respond to the sound of my voice or I
will release my dog and you will get bit.” Wallace Aff. ¶ 16 [ECF No. 26]. Hearing no
response, Wallace announced, “This is your final warning before I release my dog. Respond to
the sound of my voice or you will get bit.” Id. Again, Wallace heard no response. Wallace
released his dog to search the woods. Id. ¶ 17.
Wallace’s suspicion that someone connected to the burglary was hiding in the woods was
well founded. Reed testified that he and Kearns had spent the evening in a hotel room smoking
methamphetamine and marijuana. Reed Dep. 17-19 [ECF No. 30-1 at 2-29]. As night turned
into morning, the men ran out of drugs, so they drove to another location to purchase more. Id.
at 19-20. The men stayed at the new location for a while, consumed more methamphetamine,
then returned to Kearns’s car. Id. at 20-21. Needing money to purchase yet more drugs, the two
men drove to what Kearns said was his parents’ business — which, in fact, was the rural
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residence to which the police were later called. Id. at 23. Kearns parked the car a short distance
from the residence and walked down the road towards it, while Reed stayed near the vehicle and
smoked a cigarette. Id. at 22. About 20 to 40 minutes later — Reed could not remember exactly
how long, because he “was really speeded up” and not wearing a watch, id. at 23 — Kearns came
back up the road towards Reed and handed him burglary tools and a bag containing money. Id.
at 22-24. As the handoff occurred, the two men saw flashlights shining in the distance. Id. at 22.
Believing (correctly) that the police had arrived, Kearns and Reed fled. Id. at 28. Reed quickly
lost sight of the speedier Kearns, and, unsure of Kearns’s whereabouts, Reed decided to hide in
the nearby woods. Id. at 29.
As he hid in some underbrush, Reed remembered that there was a small bag containing
approximately three grams of methamphetamine in his pocket. Id. Reed did not want to be
discovered by police with illegal drugs in his possession, so Reed swallowed all of the
methamphetamine, going so far as to lick the bag clean of any residue. Id. at 29, 32. Reed later
testified that after swallowing the methamphetamine, “[e]verything went black. . . . I don’t even
think I could think anymore.” Id. at 34. Because he had blacked out, Reed did not hear
Wallace’s warnings that a police dog would be released into the woods if no response was given.
(And, because he blacked out, Reed cannot testify about what happened after he swallowed the
methamphetamine.)
In the meantime, Wallace lost sight of his dog. See Wallace Aff. ¶ 18. Under the policies
of the Olmsted County Sheriff’s Office, a police dog is not “permitted to roam at will” and must
remain “under [the] direct supervision of the handler at all times,” except when secured in a
kennel or similar area. ECF No. 33 at 11. Wallace therefore called for the dog to return to him.
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See Wallace Aff. ¶ 18. After calling for the dog, however, Wallace heard a voice screaming from
the woods. Id. The voice was Reed’s; although Reed did not realize it due to the effects of the
drugs that he had ingested, the police dog had discovered him and had been biting him. Reed
Dep. 34-35.
The officers entered the woods upon hearing the screams, and the dog returned to
Wallace. Wallace Aff. ¶ 20. Because the officers could not identify from where the screams had
come, Wallace released the dog once more to locate the suspect.1 Wallace Aff. ¶ 22. The dog
again found Reed and bit him, causing Reed to scream. Id. ¶ 23; Reed Dep. 35-36. Reed’s
screams led the officers to him, and Reed was arrested on suspicion of burglary.2
Although they did not know that Reed had swallowed three grams of methamphetamine,
the officers realized that something was wrong with him, as he was convulsing and having
difficulty breathing. See ECF No. 27-1 at 3. Reed was immediately transported to a nearby
emergency room. While treating Reed for the drug overdose, doctors also cleaned and bandaged
dog-bite wounds on his buttocks and arm, and they recommended that he take ibuprofen as
needed for any pain. See Baker Aff. Ex. G at 1-5 [ECF No. 30-1]; Reed Dep. 50. Later, doctors
also prescribed antibiotics for the wounds. Reed Dep. 52-53. Reed’s wounds are described in
his medical records as “[s]uperficial,” “scabbed over,” and “partial thickness in nature.”
Baker Aff. Ex. G at 1-5.

1

The parties dispute whether Wallace gave an additional warning before the dog was
released the second time. Wallace asserts that he did, see Wallace Aff. ¶ 21, and Reed does not
know, because he was in a drug-induced blackout. Reed notes, however, that police reports do
not mention an additional warning. See ECF No. 32 at 3.
2

Reed later pleaded guilty to possession of burglary tools, and the state dropped burglary
and drug-possession charges. See ECF No. 30-1 at 33-34.
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Reed brings this action seeking to recover damages pursuant to 42 U.S.C. § 1983.3
According to Reed, Wallace’s use of a police dog to apprehend him, along with the manner in
which he used that dog, amounted to excessive force in violation of the Fourth Amendment.
Reed further alleges that he has suffered physical pain, scarring, and emotional trauma because of
Wallace’s use of excessive force. Compl. ¶ 36 [ECF No. 1]. Wallace now moves for summary
judgment, arguing that he is entitled to qualified immunity because his use of the police dog was
objectively reasonable and because Reed suffered only de minimis injuries.
II. ANALYSIS
A. Standard of Review
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A dispute over a fact is “material” only if its resolution might affect the outcome
of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

3

Although Reed mentions in the complaint that this action is also brought “under the
common law of the State of Minnesota,” Compl. ¶ 1 [ECF No. 1], he confirmed at the hearing on
the summary-judgment motion that he is not raising any state-law claims against Wallace.
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B. Excessive Force
1. Objective Reasonableness of Seizure
The Fourth Amendment prohibits unreasonable seizures. U.S. Const. amend. IV. The
right to be free from an unreasonable seizure includes the right to be free from excessive force
used to effect a seizure. See Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005). “Determining
whether the force used to effect a particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Graham v.
Connor, 490 U.S. 386, 396 (1989) (quotations omitted). Among the factors to be considered are
“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.” Id. “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.” Id.
(quotation omitted).
Applying these principles, the Court concludes that Wallace’s use of a police dog was
objectively reasonable under the circumstances. Officers were searching for two men suspected
of having committed a burglary, an inherently dangerous felony. Cf. U.S.S.G. § 4B1.2(a) (stating
that “burglary of a dwelling” is a “crime of violence” for purposes of the Sentencing Guidelines).
Wallace believed — and was correct to believe — that one or both of the burglary suspects might
be hiding in an area later described by Reed as “heavily wooded,” “really thick,” “jagged,” and
“very secluded.” Reed Dep. 29, 31. The sun had not yet risen, and visibility was minimal.
Wallace’s options at that point were (1) to let the suspects escape; (2) to blindly enter the woods
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himself and risk being ambushed; or (3) to use his police dog to find and detain the suspects.
Under the circumstances, it was eminently reasonable for Wallace to decide on the last option.
The manner in which Wallace used his police dog to apprehend Reed was also
objectively reasonable. The undisputed evidence in the record demonstrates that Wallace
announced twice that he would be releasing the dog before doing so, thus giving anyone lurking
in the woods an opportunity to surrender. Notwithstanding Reed’s allegations to the contrary in
the complaint, there is no evidence in the record that the officers deliberately or unnecessarily
prolonged Reed’s encounter with the dog. And not until the officers found Reed did they realize
(or could they have realized) that he did not pose a danger to them because of his drug-induced
blackout.
Because Wallace’s decision to use the police dog and the manner in which he deployed
the police dog were both objectively reasonable, Wallace is entitled to summary judgment on
Reed’s claim of excessive force.
2. De Minimis Injury
Reed’s claim fails for a second reason. Even if Wallace’s actions were not objectively
reasonable, Wallace is nevertheless entitled to qualified immunity under Chambers v. Pennycook
because Reed suffered only de minimis injuries. 641 F.3d 898 (8th Cir. 2011). In Chambers, the
Eighth Circuit held that a plaintiff need not show more than de minimis injuries in order to
prevail on a claim of excessive force. Id. at 906-08. But because the Eighth Circuit’s previous
case law had not been clear on this point, the police officers who had been sued in Chambers —
and who had inflicted only de minimis injuries on the plaintiff — were found to be entitled to
qualified immunity. Id. at 908-09. Wallace argues that, because the arrest in this case took place
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before Chambers was decided, and because the dog inflicted only de minimis injuries on Reed,
he too is entitled to qualified immunity. The Court agrees.
This case is squarely controlled by Chambers. As Reed conceded at the hearing on the
summary-judgment motion, Wallace undoubtedly had the right to detain him on the suspicion
that he was involved in the nearby burglary. Because Wallace had the right to detain Reed, he
necessarily had the right to use some degree of force against Reed. Graham, 490 U.S. at 396
(“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.”). This sets Reed’s case apart
from cases in which, under the plaintiff’s version of the facts, the officer did not have the right to
make an arrest or otherwise detain the plaintiff. Cf. Nguyen v. Lokke, No. 11-CV-3225, 2013
WL 4747459, at *3 (D. Minn. Sept. 4, 2013) (“When there is no right to seize a citizen — that is,
when there is no right to detain a citizen even momentarily — then there is also no right to use
force against that citizen.”); Smith v. Appledorn, No. 11-CV-2966, 2013 WL 451320, at *3
(D. Minn. Feb. 6, 2013) (“[B]efore a police officer can use physical force, the arrest or
investigatory stop itself must be justified.”).
Because Reed’s injuries were de minimis, Chambers dictates that Wallace is entitled to
qualified immunity, even if he acted unreasonably. As noted above, the medical reports from the
night of the arrest describe Reed’s dog-bite wounds as “[s]uperficial,” “scabbed over,” and
“partial thickness in nature.” Baker Aff. Ex. G at 1-5. Photographs of Reed’s wounds taken
shortly after his arrest confirm this assessment. See Maitland Aff. Ex. D [ECF No. 29]. No
treatment was necessary beyond cleaning, bandaging, and applying antibiotics to the wounds —
the type of “treatment” that a parent would provide to a child who scraped an elbow. Baker Aff.
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Ex. G at 1-5; Reed Dep. 45-54. Reed confirms that, although some scarring persists, he does not
suffer any continuing physical pain as a result of the dog-bite wounds. Id. at 56. And although
Reed was hospitalized following the arrest, that hospitalization was occasioned by Reed’s drug
overdose, not by the dog bites. Under these facts, Reed’s injuries must be considered
de minimis. See LaCross v. City of Duluth, 713 F.3d 1155, 1157-58 (8th Cir. 2013) (episodes of
anxiety resulting from use of Taser are de minimis injury); Wertish v. Krueger, 433 F.3d 1062,
1067 (8th Cir. 2006) (“relatively minor scrapes and bruises and the less-than-permanent
aggravation of a prior shoulder condition were de minimis injuries . . . .”); Smith v. Buck, No. 12CV-0163, 2013 WL 1658397, at *1 (D. Minn. Apr. 17, 2013) (adopting Report and
Recommendation finding that similar wounds from a dog bite resulted only in de minimis
injury).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Defendant Chris Wallace’s motion for summary judgment [ECF No. 23] is
GRANTED.

2.

The complaint [ECF No. 1] is DISMISSED WITH PREJUDICE AND ON THE
MERITS.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 12, 2013

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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