Cooper v. Brown et al
Filing
72
ORDER granting 47 Motion for Partial Summary Judgment; granting in part and denying in part 49 Motion for Summary Judgment. Signed by District Judge Michael P. Mills on 1/12/2016. (rmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
JACOB COOPER
PLAINTIFF
VS.
CAUSE NO. 3:14-CV-91-MPM-SAA
LYNN BROWN AND
CITY OF HORN LAKE, MISSISSIPPI
DEFENDANTS
ORDER
This cause comes before the court on the motion of plaintiff Jacob Cooper for partial
summary judgment, as to the issue of liability, with regard to his Fourth Amendment claims
against defendant Lynn Brown, a Horn Lake police officer. Brown and his employer, the City of
Horn Lake, have responded with their own motions for summary judgment. This court, having
considered the memoranda and submissions of the parties, concludes that plaintiff’s motion for
partial summary judgment should be granted, that Brown’s motion for summary judgment on the
basis of qualified immunity should be denied, and that Horn Lake’s motion for summary
judgment should be granted.
This is a Fourth Amendment excessive force case filed by plaintiff Jacob Cooper arising
out of an incident in which he was attacked and injured by a police dog. At approximately 11
p.m. on April 21, 2013, plaintiff fled from the scene after he was stopped by Horn Lake police
officer Michael Pressgrove for suspicion of DUI. Plaintiff fled on foot, leaving his vehicle
behind, and he hid near a garbage bin in an alleyway. Several Horn Lake officers responded to
Officer Pressgrove’s call for assistance, among them Horn Lake K9 officer Lynn Brown and his
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dog, a Belgian Malinois named Sunny.
Sunny discovered plaintiff in his hiding place, and the parties disagree about whether she
initiated the attack on plaintiff herself, as Brown contends, or whether she was ordered to attack,
as plaintiff contends. The parties do agree, however, that city policy required that a suspect be
given a verbal warning prior to being attacked by a police dog and that no such warning was
given in this case. Moreover, Brown does not contend that he made any efforts to stop Sunny’s
attack on plaintiff after (under his version of events) she initiated it, until such time as he
managed to handcuff plaintiff. Both plaintiff and Officer Brown testified that it may have taken
between a minute and two minutes for Brown to handcuff plaintiff, during which time Sunny
continued her attack on plaintiff’s leg. Plaintiff suffered serious lower leg injuries as a result of
Sunny’s attack, and he has filed the instant § 1983 action against Brown and the City, alleging
that the use of force against him was objectively unreasonable under applicable Fourth
Amendment standards.
ANALYSIS
The court first considers Brown’s motion for summary judgment, based on qualified
immunity, in which he seeks the dismissal of the excessive force claims against him.
To establish a Fourth Amendment violation based on allegations of excessive force, a plaintiff
must prove: (1) injury (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable. Elizondo v. Green, 671
F.3d 506, 510 (5th Cir. 2012). In Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865 (1989),
the U.S. Supreme Court stated that the relevant factors for consideration on an excessive force
claim include, “the severity of the crime at issue, whether the suspect poses an immediate threat
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to the safety of the officers or others, and whether he is actively resisting or attempting to evade
arrest by flight.”
In considering the excessive force claims asserted against Officer Brown in his individual
capacity, this court applies the Fifth Circuit’s qualified immunity standard, which it has described
as follows:
This court applies a two-step analysis to determine whether a defendant is entitled
to summary judgment on the basis of qualified immunity. First, we determine
whether, viewing the summary judgment evidence in the light most favorable to
the plaintiff, the defendant violated the plaintiff's constitutional rights.” If the
evidence viewed in the light most favorable to Appellees demonstrates that a
constitutional violation occurred, “we next consider whether the defendant's
actions were objectively unreasonable in light of clearly established law at the
time of the conduct in question.
Freeman v. Gore, 483 F.3d 404, 410–11 (5th Cir. 2007).
Part of the power of the qualified immunity doctrine arises from the fact that it must
simply be raised as a defense by a defendant, and the plaintiff has the burden of establishing the
proof and arguments necessary to overcome it. See Pierce v. Smith, 117 F.3d 866, 871–72 (5th
Cir. 1997) (noting that the plaintiff bears the burden of demonstrating that an individual
defendant is not entitled to qualified immunity). Once again, plaintiff’s burden in this regard
includes an obligation to demonstrate that the defendants violated “clearly established law” at the
time of the conduct in question. The U.S. Supreme Court has made it clear just how heavy a
burden this may be.
In Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), the Supreme Court recently emphasized
that:
An official sued under § 1983 is entitled to qualified immunity unless it is shown
that the official violated a statutory or constitutional right that was “ ‘clearly
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established’ ” at the time of the challenged conduct. Ashcroft v. al–Kidd, 131 S.
Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011). And a defendant cannot be said to
have violated a clearly established right unless the right's contours were
sufficiently definite that any reasonable official in the defendant's shoes would
have understood that he was violating it. Id., at 2083–2084. In other words,
“existing precedent must have placed the statutory or constitutional question”
confronted by the official “beyond debate.” Ibid. In addition, “[w]e have
repeatedly told courts ... not to define clearly established law at a high level of
generality,” id., at 2074, since doing so avoids the crucial question whether the
official acted reasonably in the particular circumstances that he or she faced.
Plumhoff, 134 S. Ct. at 2023. Thus, the U.S. Supreme Court has stressed that plaintiffs’ burden
of demonstrating that defendants violated “clearly established law” requires not a citation to
generalized principles of law, but, rather, specific authority on point which “placed the statutory
or constitutional question” confronted by the official “beyond debate.” Id. Moreover, the
Supreme Court has very recently indicated that, to establish that the law in this regard was
“clearly established,” the plaintiff must be able to cite either a decision from that Court or a
“robust consensus of cases of persuasive authority in the Courts of Appeals.” Taylor v. Barkes,
135 S. Ct. 2042 (2015), citing City and County of San Francisco v. Sheehan, 135 S.Ct. 1765,
1778 (2015).
Plaintiff has, in fact, produced some federal appellate precedent in support of his
excessive force claim. For example, plaintiff cites Vathekan v. Prince George's County, 154
F.3d 173, 179 (4th Cir. 1998), in which the Fourth Circuit held that a “failure to give a warning
before releasing a police dog is objectively unreasonable in an excessive force context.” Plaintiff
also relies upon district court opinions from this circuit which reached a similar conclusion. See
Stranjac v. Jenkins, 2012 WL 3862377 at *11 (M.D. La. 2012)(“Even in the absence of Fifth
Circuit caselaw specifically addressing excessive force allegations in a dog bite case, no
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reasonable police officer could conclude that the use of a police dog is permissible when
employed, without warning, against a secured non-threatening suspect.”); Malone v. City of Fort
Worth, Tex., 2014 WL 5781001, *15 (N.D. Tex. 2014)(officer’s failure to warn suspect before
releasing dog and before lifting dog up where it could bite suspect precludes summary judgment
for officer on basis of qualified immunity).
While this court finds these opinions persuasive, it will assume that plaintiff has fallen
short of producing the “robust consensus” of federal appellate authority which is apparently now
required by the U.S. Supreme Court in most cases. It is thus significant that the U.S. Supreme
Court has held that there are exceptional cases in which a failure to meet this extraordinarily
stringent requirement of precedent may be excused. In Hope v. Pelzer, 536 U.S. 730 (2002), the
Supreme Court considered an Eighth Amendment claim in a case where prison guards
handcuffed a prisoner to a hitching post on two occasions, one of which lasted for seven hours
without regular water or bathroom breaks. Among other facts, the Supreme Court noted that
“[a]t one point, a guard taunted him about his thirst.” Hope, 536 U.S. at 738. Faced with these
facts, six Supreme Court Justices concluded that the Eleventh Circuit erred in concluding that the
defense of qualified immunity was available to the defendants. In so concluding, the Court
observed that “[a]s the facts are alleged by Hope, the Eighth Amendment violations [are]
obvious.” Id. The Supreme Court reached this conclusion in spite of the fact that the plaintiff
was unable to demonstrate federal appellate authority clearly establishing that it was unlawful to
tie a prisoner to a hitching post.
In subsequent decisions, the Supreme Court has explained Hope as standing for the
proposition that a failure to cite federal appellate authority supporting a claim may be excused in
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cases where the constitutional violation is “obvious.” In the 2004 decision of Brosseau v.
Haugen, for example, the Supreme Court wrote that:
Of course, in an obvious case, these standards can “clearly establish” the answer,
even without a body of relevant case law. See Hope v. Pelzer, 536 U.S. 730, 738,
122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) (noting in a case where the Eighth
Amendment violation was “obvious” that there need not be a materially similar
case for the right to be clearly established).
Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
The Hope exception is not frequently applied; indeed this court can not recall having
done so in a prior case. Nevertheless, the court considers it to be a highly important exception to
the exceedingly stringent showing of prior precedent which applies in most qualified immunity
cases. Indeed, if this exception did not exist, then defendants might feel at liberty to engage in a
wide variety of obviously unconstitutional conduct which had not yet been declared unlawful by
a “robust consensus” of federal appellate authority. It also seems clear that there must be some
mechanism for plaintiffs to “break through” the general requirement of prior precedent, lest the
law end up essentially frozen in place, with little potential for development based on novel fact
patterns or evolving law enforcement practices.
This court notes that, while the district court in Stranjac did not explicitly rely upon
Hope, its previously-quoted conclusion that “[e]ven in the absence of Fifth Circuit caselaw
specifically addressing excessive force allegations in a dog bite case, no reasonable police officer
could conclude that the use of a police dog is permissible when employed, without warning,
against a secured non-threatening suspect” unmistakably utilizes Hope’s rationale. This
highlights the fact that Hope’s analysis is largely a matter of common sense which flows
naturally from general qualified immunity principles. Indeed, this court believes that any jurist
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would be hard-pressed to defend the contrary position, namely that obvious constitutional
violations should be excused merely because federal appellate courts had not issued opinions
unanimously concluding that the conduct in question was unlawful. This may be why the
Supreme Court stated in Brosseau that “[o]f course” a “body of relevant case law” is not required
in “obvious cases,” as if the matter were largely self-evident. Brosseau, 543 U.S. at 199.
This court believes that Hope’s logic is, in fact, self-evident, and it will apply that logic in
this case. Once again, it is incumbent upon plaintiff, under Hope, to demonstrate not only that
Officer Brown’s actions were unreasonable under Fourth Amendment standards, but that they
were “obviously” unreasonable. Clearly, Hope’s requirement that plaintiff demonstrate that
Officer Brown’s actions were “obviously” unreasonable subsumes the Fourth Amendment’s
mere “reasonableness” standard, and this court will therefore limit its discussion to Hope’s more
exacting standard. As discussed below, the court finds this to be one of the rare cases where the
plaintiff is able to demonstrate an “obvious” constitutional violation under Hope.
Prior to considering the facts of this case, this court notes that the Supreme Court has
recently emphasized that district courts are required to “draw[] inferences in favor of the
nonmovant, even when, as here, a court decides only the clearly-established prong” of the
qualified immunity standard. Tolan v. Cotton, 134 S. Ct. 1861, 1866, 188 L. Ed. 2d 895 (2014).
Tolan is significant in that it reminds district courts that, while the playing field is heavily tilted
towards the defendant in many aspects of the qualified immunity analysis, the customary
requirement that summary judgment facts be construed in favor of the non-moving party still
applies in this context. Based upon these considerations, this court now turns to the
reasonableness of Officer Brown’s actions in this case.
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In determining whether Officer Brown’s actions in this case were “obviously”
unreasonable, this court’s views are significantly influenced by photographs depicting the results
of the dog attack on plaintiff’s leg. [Exhibit 8, plaintiff’s motion for summary judgment]. First
of all, “pictures don’t lie,” and the photos do tend to corroborate plaintiff’s depiction of a
sustained and brutal dog attack upon him. Indeed, in his deposition, Officer Brown himself
acknowledged that plaintiff’s injuries were more severe than those which are typically seen in
cases where police dogs are employed against suspects:
Q: At what - now, hopefully, we’ll be able to agree to this. Jacob Cooper’s injuries as a
result of Sunny’s bite were severe?
A: Yes.
Q: And certainly not typical.
A: No, not typical of most of the dog bites we see. No, they’re not.
[Dep. at 57]. It strikes this court that the severity of plaintiff’s injuries should come as no
surprise to Officer Brown, since they occurred mere inches from him, as he was handcuffing
plaintiff. It further seems “obvious” that it was unreasonable for Brown to simply stand by and
allow such injuries to continue to be inflicted upon a non-violent suspect who was no longer
actively trying to escape or otherwise resist arrest.
In excessive force cases, the Fourth Amendment reasonableness analysis involves
balancing the nature of the harm inflicted upon a suspect with the law enforcement necessity, if
any, for inflicting that harm. See Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008). Given
that Officer Brown himself acknowledges that plaintiff’s injuries were more severe than in most
cases where dogs are employed, it should be apparent that the reasonableness analysis employed
in more typical dog attack cases is of less relevance here. Defendants cite favorable case law
regarding the use of tasers, but it should be apparent that, barring malfunction, the amount of
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force resulting from the use of a taser is much more predictable than the amount of force used
when a dog attacks a suspect. Simply stated, some dogs are much more aggressive than others,
and some dog attacks are much more brutal than others. In cases where the injuries inflicted on a
suspect are more severe, a greater showing of necessity is required in order for them to be
considered reasonable.
That brings this court to the necessity of using a police dog to physically subdue (as
opposed to merely locate) plaintiff in the first place. Plaintiff argues that a reasonable officer in
Brown’s position should have known that, even in the event that he somehow managed to
temporarily evade the dragnet looking for him, the chances that he would manage to escape
justice were quite low. Plaintiff notes that Brown was aware that law enforcement had both the
vehicle he was driving and his passenger in custody, and that while it later became known that he
had given Officer Pressgrove a false name, that was unknown at the time. In his deposition,
Brown conceded that, at the time he decided to deploy Sunny he knew that the suspect was not
charged with a violent offense or even a felony:
Q: But at this point you had no reason to believe - and when I say at this point, at the
point you made the decision.
A: No.
Q: - to deploy K9 Sunny, you had no reason to believe he had done anything other than
misdemeanor DUI.
A: Correct.
Q: And you also had no reason to believe that he had given improper identification prior
to your decision?
A: At that point, no I did not.
Q: Okay. And Officer Pressgrove never gave you any reason to believe in calling you
that Jacob Cooper had been a physical threat in any way.
A: No.
[Dep. at 57].
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While reasonable minds may disagree whether the basic decision to deploy a K9 unit to
search for plaintiff was necessary, this court does not believe that it was unreasonable, within the
meaning of the Fourth Amendment, to do so. In the court’s view, the Fourth Amendment
violation in this case took place not as a result of the basic decision to deploy a K9 unit to search
for plaintiff, but, rather, as a result of the manner in which a dog attack was used to subdue
plaintiff, once his location was discovered.
In his deposition, Officer Brown made it clear that plaintiff was not running away when
he was discovered, but that he was merely sitting in an alleyway. Brown also conceded that he
was aware that there were a number of other officers on the scene searching for plaintiff and that
some of them had passed by the location where he was hiding. Given these facts, it strikes this
court that once plaintiff’s location was discovered, the chances that he might be able to take
flight and escape a police dog and police officers searching for him, both in vehicles and on foot,
was close to zero. Under these circumstances, it strikes this court that, at an absolute minimum,
a reasonable police officer would have announced the presence of his police dog and given the
suspect an opportunity to decide if he wished to try to outrun her. In the unlikely event that the
suspect decided to do so, the use of the police dog to apprehend the fleeing suspect would
arguably be reasonable, assuming that the dog did not use an undue amount of force in doing so.
As it happens, Horn Lake policies require precisely the sort of announcement referenced
above, and, in his deposition, Brown conceded both the existence of such a policy and the fact
that he failed to follow it:
Q: But you didn’t give him any announcement?
A: No. I did not give him any verbal warning.
Q: Again, try to let me finish my 10
A: Okay.
Q: You did not give him any verbal announcement, which is required under Horn
Lake’s policy, to give him the opportunity to submit without being bitten?
A: Correct. [Dep. at 89].
Thus, Brown conceded in his deposition that he did not give plaintiff the verbal warning that was
required under the city’s policies prior to the start of the dog attack. The difference in the
parties’ version of events relates to whether or not Brown first ordered the dog to attack, as
plaintiff testified, or whether, as Brown contends, the dog initiated an attack which the officer
allowed to continue.
In their briefing, defendants place great emphasis upon their contention that Sunny first
bit plaintiff without orders to do so, apparently believing that this contention helps their case.
This court does not believe that it does. Under Brown’s version of events, he was confronted
with an attack by his dog upon a suspect which was both unauthorized and contrary to city
policy. And yet he allowed that attack to continue for a lengthy period of time, resulting in
serious injuries to plaintiff. What could be more unreasonable than that? Of course, Tolan
instructs that this court must credit plaintiff’s version of events in this context, and it is therefore,
arguably improper to consider Brown’s version of events at all. Moreover, Brown’s own expert,
Wendell Nope, testified that if plaintiff’s version of events is credited (as Tolan requires), then “I
would consider that as excessive force.” [Nope Dep. at 72-73]. Given that plaintiff must
demonstrate that Brown’s actions were “obviously” unreasonable, however, the court considers it
relevant to note that such a showing of unreasonableness can be made under either side’s version
of the material facts of this case.
In his deposition, Brown maintained that plaintiff did not sufficiently convey his
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“surrender” once Sunny began attacking him. Once again, however, plaintiff had a right under
city policy to decide whether to surrender before being attacked, and it was clearly unreasonable
for Officer Brown not to give him that opportunity to the extent possible, including by
terminating Sunny’s attack as soon as it began (under his version of events). Indeed, Brown
acknowledged in his deposition that it might prove difficult for a suspect to convey his surrender
while preoccupied with fending off a severe dog attack:
Q: So in your report where you put “refused to comply with commands” or something,
whatever the specific, you check a yes next to that?
A: Yes. That’s when I was trying to get him to come out to me or show me his hands.
Q: Okay.
A: That was for me.
Q: All right. And I think we agreed earlier, that would have been difficult for him to do with
a dog on him?
A: It’s not that it’s difficult for them to do, but I would have an understanding on why they
wouldn’t. But I’ve caught several people within my career, I’ve had people walk up to me
carrying the dog on them. I’ve had guys quickly show me their hands wanting the dog to
come off of them, and he failed to do that.
[Dep. at 53-54].
Nevertheless, Brown conceded that plaintiff did comply with most of his instructions,
including his order to roll over on his stomach:
Q: Do you remember the position that he was laying in?
A: I ordered him onto his stomach.
Q: Okay. And he complied?
A: Yes, he did. . . .
Q: Okay. And what did Sunny do when he was rolling?
A: She continued to hold onto his leg.
Q: Okay. How does he roll when a dog has a hold of his leg?
A: I can’t explain that. He was on his butt. When I told him to roll over, he rolled over
and laid down on his stomach and I was able to . . .
Q: Besides your orders for him to show his hands or submit to you after Sunny had
engaged, there were no orders which Mr. Cooper had not complied with of yours?
A: Correct. [Dep. at 53].
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Thus, Brown made it clear that the only order of his with which plaintiff did not comply were his
instructions to show his hands. Brown also made it clear, however, that the hands which he
wanted to see raised were otherwise occupied at the time, namely in trying to stop Sunny from
continuing to maul his leg:
Q: Okay. What did you see?
A: His hands on her head.
Q: Okay. Was he hitting her?
A: No.
Q: Okay. He was just holding his hands on her head?
A: Right.
Q: Okay. So you were able to see his hands. So you could appreciate at that point, at
least as far as you could tell, he had no weapon?
A: At that point, yes.
[Dep. at 82].
In judging the reasonableness of Brown’s actions, it strikes this court as quite significant
that he was able to perceive early in Sunny’s attack that there was no weapon in plaintiff’s hands.
Indeed, the ostensible purpose of having plaintiff show his hands was to demonstrate that he was
unarmed, but Brown testified that he could ascertain that such was the case by watching plaintiff
try to protect himself from Sunny’s attack. That being the case, it is very much unclear to this
court why it was either necessary or reasonable for Officer Brown to allow Sunny’s attack to
continue against an unarmed, non-violent suspect who had not been given the verbal warning
which Brown conceded was required under Horn Lake’s policies.
Once again, Brown conceded that plaintiff complied with his instructions to roll on his
stomach, and it is undisputed that he did eventually manage to pull his hands off Sunny’s head
and place them behind his back so that he could be handcuffed. The court finds it highly
significant that defendant’s own expert Nope conceded that it was unnecessary to allow a dog to
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remain on the bite past that point:
Q: Okay. So Sunny could have been called back once Mr. Cooper had submitted
to a backup position instead of being left on throughout the entire cuffing process?
A: Yes, sir.
Q: Okay. And that very well could have resulted in less injury to Mr. Cooper?
A: Yes, sir.
Q: Once Mr. Cooper rolled to his stomach and put his hands where Officer Brown
told him to put his hands, was there any reason to leave the dog on at that point?
A: I cannot think of any reason to allow the dog to remain physically engaged
after that point.
Q: In fact, officers cuff suspects in this manner routinely, correct?
A: Yes, sir.
Q: Without the use of a dog?
A: Yes, sir.
Q: And, in fact, most arrests occur without the use of a dog, correct?
A: Yes, sir, overwhelmingly.
Q: Okay. Is there any evidence you can show the jury in this case to account why
Officer Brown could not order his dog to a backup position once Mr. Cooper was
on his stomach instead of leaving the dog on?
A: No, sir.
[Nope Dep. at 57-58].
In the court’s view, it is a testament to the obvious nature of the constitutional violations
in this case that some of plaintiff’s strongest evidence comes from concessions made by
defendant’s own expert, who is to be commended for his honesty. This court believes that
Nope’s testimony makes it clear that, without question, Officer Brown’s actions became
“obviously unreasonable” when he continued allowing Sunny to bite plaintiff after he was on his
stomach and his hands were behind his back. This court believes that Brown’s actions were
obviously unreasonable even before then, but the issue seems to be simply indisputable at that
point. As discussed below, plaintiff testified that Brown seemed to take an inordinately long
time to handcuff him after he was on his stomach and his hands were behind his back, and it
seems clear that much of his injuries occurred after this point.
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Expert testimony aside, there is, in this court’s view, a macabre quality to the feats of
willpower which Officer Brown appears to regard it as necessary for suspects to perform in order
to obtain his mercy. Whether those feats involve a suspect dragging an attacking police dog with
him (presumably as part of a gesture of surrender), or, in this case, plaintiff managing to remove
his hands from the head of an attacking dog, Officer Brown’s testimony strikes this court as
being that of an officer who unreasonably fails to realize that his dog’s attacks makes it much
more difficult for a suspect to give the clear gestures of surrender he claims to be looking for. In
the court’s view, a reasonable police officer should know that a suspect being attacked by a
police dog will tend to be distracted by this fact and may not be able to either understand or fully
follow instructions regarding the manner of surrender. In this vein, the district court in Malone
aptly wrote that “[t]he court wonders how a man, who is prone on the ground and being attacked
by a dog, can reasonably be expected to expose his hands and unflinchingly hold them behind his
back.” Malone, 2014 WL 5781001, *10, n. 5.
The court notes that Officer Brown’s own testimony did not depict plaintiff’s ordeal as a
brief one. When asked about the length of time which Sunny was left “on this bite,” Officer
Brown testified as follows:
Q: About thirty seconds?
A: It was longer than thirty seconds, but it was no longer than a minute or two due to the
aspect I had to drag him out and then get him cuffed up. But once he was in handcuffs,
once those handcuffs clicked, it was a matter of seconds before she was off the bite. [Dep.
at 62].
A period of a “minute or two” strikes this court as being an exceedingly long period of time for
an officer to allow a dog to continue attacking a non-violent, defenseless suspect who had not
been given the verbal warning to which he was entitled under city policy. In the qualified
15
immunity context, courts are frequently reminded not to second-guess police officers based on
“split second” decisions they are required to make in the course of doing their jobs. While this
court fully agrees with this admonition, it appears that, in this case, Officer Brown had ample
time to consider the suffering and injuries that he was inflicting upon plaintiff and whether there
was any law enforcement justification for so doing.
Based on his own testimony, Officer Brown does not strike this court as an officer
reluctantly resorting to force, but, rather, one only reluctantly terminating the use of force.
Plaintiff’s testimony, which this court is required to credit at the summary judgment stage, places
Brown in a much worse light. In describing the attack on him, plaintiff testified as follows:
Q: Okay. And when he, the officer, got on your back, tell me again exactly what
happened there.
A: The dog was biting me on my leg, and I was trying to lay as still as possible screaming
bloody murder to please get the dog. And I could hear him snorting blood. He didn’t just
bite me, he grabbed a hold of me and he was eating me is what it felt like. He was
literally eating my flesh. . . . The dog, it was behaving like it was starving. It was like
something out of a horror movie where an animal is eating road kill. And it was Q: So you’re saying A: - Devouring me. [Dep. at 58].
Plaintiff’s testimony on the duration of the attack was quite similar to Officer Brown’s, stating
that it “felt like forever” but that it was realistically “over a minute at least.” [Dep. at 88].
As noted previously, one area where plaintiff’s testimony differs from Officer Brown’s
relates to whether Sunny first attacked him on her own initiative or whether Brown ordered her to
do so. According to plaintiff’s testimony, the latter is the case. In his deposition, plaintiff
described the initiation of the attack on him as follows:
A: . . . So I sat down beside the house. And Officer Brown and the dog - the dog passed
me and Officer Brown seen me out of the corner of his eye, pulled the dog back and said
“bite.” And he had the dog back and said “bite him.” [Dep. at 44].
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Plaintiff testified that it seemed to take an unduly long time for Brown to handcuff him and, thus,
for the dog attack to end. When asked why he felt that was the case, plaintiff testified as follows:
Q: Do you know why it took that amount of time?
A: No idea. Improper training on how to handcuff, I guess.
Q: Okay. Did you have any trouble getting your arms around?
A: No, sir. [Dep. at 88].
Plaintiff testified that, once the dog attack had ended, he asked Officer Brown about the reasons
for the attack:
A: . . . And he finally got the cuffs on me and got off of me. And I remember I
asked him, you know, why he let the dog eat me up like that. And he told me that
he didn’t have to get the dog off until he got the cuffs on. [Dep. at 44].
Brown’s alleged explanation (contradicted by his own expert) that “he didn’t have to get the dog
off until he got the cuffs on” seems quite consistent with his deposition testimony, which appears
to depict an officer in no great hurry to terminate the attack by his dog.
This court’s impressions regarding Officer Brown’s seeming eagerness to employ his
police dog is buttressed by the testimony of one of his former co-workers. Specifically, former
Horn Lake K9 officer Todd Baggett testified that:
Well, just some – some of the other – the stuff that we didn’t use the dog for
[Brown] would. You know, that’s why he would have 90 deployments to our 30.
You know, it’s just something we weren’t going to use a dog for. You know, and
I’ve always, even when I had a dog, I relied on what I do and not what the dog
does. So I could go out and do the same thing with or without the dog, you know,
aside from biting and stuff.
[Plaintiff’s exhibit “K,” p.32.] This court is not in a position to judge Officer Brown’s character,
and it cannot say whether he is simply an overzealous police officer primarily concerned with
bringing suspects to justice, or whether there might have been a darker, more sadistic, motivation
behind his actions. The jury may inquire into this issue when it decides the issue of punitive
17
damages against him. See Smith v. Wade, 461 U.S. 30, 31 (1983)(holding that “a jury may be
permitted to assess punitive damages in a § 1983 action when the defendant's conduct involves
reckless or callous indifference to the plaintiff's federally protected rights, as well as when it is
motivated by evil motive or intent.”).
At this juncture, this court must simply decide whether, under Hope, Officer Brown’s
actions were “obviously” contrary to the Fourth Amendment. For the reasons explained above,
this court concludes that they were. This court acknowledges that, in relying upon Hope, it is
invoking an exception which is not frequently applied. This court notes that while plaintiff did
not expressly cite Hope in his briefing, he did cite the Stranjac decision which, as noted
previously, clearly utilizes Hope’s rationale. At any rate, Hope constitutes an established part of
the U.S. Supreme Court’s qualified immunity jurisprudence, upon which this court is entitled to
rely. Indeed, this court believes, as previously stated, that Hope is not merely an established, but
also a very important part of the Supreme Court’s qualified immunity jurisprudence. Once again,
without such an exception, officers might be permitted to act with impunity in cases involving
fact patterns which have not been sufficiently addressed by federal appellate authority, and
federal jurisprudence might be left frozen in place.
This court has invoked the Hope exception because it believes that granting Brown
summary judgment based on plaintiff’s failure to produce sufficient federal appellate court
authority would work a clear miscarriage of justice in this case.1 This court has previously
1
The court notes that even Brown appears to concede that summary judgment in his favor might be
deemed inappropriate, writing in his brief that “[t]he question of submissiveness is necessarily linked to
duration of the apprehension, and under the scenario presented by plaintiff should either be ruled
favorably for Officer Brown as a matter of law, or if not, is one for the jury.” [Brief at 2].
18
delineated numerous facts specific to this case which render Brown’s actions more unreasonable
than simply employing his dog against a suspect, and the extreme nature of these facts
distinguish this case from more typical cases involving dog “holds” upon suspects. Indeed, this
court believes that cases involving fact patterns as egregious as this one generally settle before
they even get to the federal appellate stage. Moreover, the very purpose of requiring a plaintiff to
produce authority clearly establishing the illegality of the defendant’s actions is to establish that
the defendant had “fair notice” that his actions were contrary to law. See Plumhoff , 134 S. Ct. at
2023, citing Brosseau, 543 U.S. at 200. While it may be rather fictional to assume that police
officers read federal appellate decisions at all, that is the rationale behind the requirement. The
Hope exception properly recognizes that such a showing is unnecessary in cases where it should
have been “obvious” to a reasonable officer that his actions were unlawful.
In this case, it should, in fact, have been obvious to any reasonable officer in Brown’s
position that his actions were objectively unreasonable and thus unlawful under the Fourth
Amendment, for the reasons previously stated in this order. The court therefore concludes that
the defense of qualified immunity is unavailable to Brown in this case, notwithstanding
plaintiff’s failure to produce a “robust consensus” of federal appellate authority in support of his
claim. Brown’s motion for summary judgment will therefore be denied.
That does not resolve this court’s inquiry, since plaintiff has filed his own motion for
partial summary judgment against Officer Brown, solely on the issue of liability. In that motion,
plaintiff seeks a ruling from this court that Brown’s actions in this case were objectively
unreasonable and that plaintiff is entitled to judgment as a matter of law. The U.S. Supreme
Court recently recognized that “objective unreasonableness is a question of law that can be
19
resolved on summary judgment,” see Mullenix v. Luna, 136 S. Ct. 305, 308 (2015), although this
clearly does not mean that federal judges are required to resolve Fourth Amendment excessive
force cases on summary judgment. Indeed, in many cases, there will be disputed fact issues
appropriate for resolution by a jury, and this court does not read Mullenix as a broad mandate
requiring district judges to make a heads-or-tails evaluation of Fourth Amendment cases on
summary judgment. In certain cases, however, the facts will either be undisputed, or the
defendant’s actions will appropriately be regarded as either reasonable or unreasonable under
either party’s version of the facts. In such cases, summary judgment on the issue of objective
reasonableness may well be appropriate, or even required.
This court’s natural inclination is to allow juries to decide issues such as this, and it
would frankly prefer to do so in this case. Nevertheless, considering Mullenix’s admonition that
objective reasonableness is an issue of law for this court to resolve, it can discern no reason not
to grant plaintiff’s motion for partial summary judgment as to the issue of Brown’s liability.
Indeed, this court has already concluded, in rejecting Brown’s motion for qualified immunity,
that his actions were not only unreasonable, but “obviously” unreasonable within the meaning of
Hope. That being the case, this court can find no justification not to grant plaintiff’s motion for
summary judgment on the basis of Brown’s actions being merely “unreasonable.” Indeed,
reserving these issues for ruling at trial might only give Brown an incentive to try to recant his
own deposition testimony, but this court finds that testimony to be clear enough. Plaintiff’s
motion for summary judgment against Brown will therefore be granted, and the jury will be
asked to decide only the issue of damages (including punitive damages) against him.
That brings this court to the motion for summary judgment filed by Brown’s employer,
20
the City of Horn Lake. As discussed previously, Brown testified that his actions were contrary to
city policy regarding the use of police dogs, and plaintiff concedes that the City has enacted a
number of commendable policies in this context. In arguing that the City should nevertheless be
held liable, plaintiff maintains that it is not following the policies which it adopted:
While Horn Lake has adopted a written policy for the use of canines, it is clear
that the policy is not being enforced. For example, the policy requires that a
canine unit be requested by the “initial responding unit” or the “on-scene
supervisor” after it has been determined that the crime is significant enough to
warrant the deployment of a canine unit. Exhibit “H,” p. 5. This policy makes
perfect sense. The initial responding unit will have the most knowledge of the
situation, or in the alternative, a commanding officer will make the call.
However, it is clear that this policy is knowingly not being enforced. Defendant
Brown chose to deploy his dog against a misdemeanor DUI suspect on his own
with no input from Officer Pressgrove or any commanding officer. Contrary to the
written policy, Sgt. Lance Weems testified that it is the practice of Horn Lake to
allow its canine handlers to make their own calls on whether to deploy their
canines. Exhibit “J,” pp. 21-22.
[Plaintiff’s brief at 18].
In the court’s view, plaintiff’s proof and arguments fall short of that required to establish
municipal liability in this context. In so concluding, the court first notes that the Fourth
Amendment violation which it finds to have occurred in this case relates to Officer Brown’s
specific decisions regarding the use of force in this case. Plaintiff cites generalized city policies
regarding the authority to employ K9 units, and it may well be the case that some approaches in
this context are better than others. It does not necessarily follow, however, that a municipality’s
failure to follow its own procedures regarding the authority to deploy K9 units constitutes a
Fourth Amendment violation.
It should also be clear that a city’s failure to adequately enforce existing policy does not
establish that it has adopted a policy or custom in favor of the exact opposite of that policy. It is,
21
in the court’s view, much more likely to indicate that the city may intend that its policy be
followed but that it has failed to be sufficiently diligent in ensuring that such is the case.
Clearly, allegations that a city adopted beneficial policies but has failed to follow them sound in
simple negligence, not the sort of “deliberate indifference” which the Supreme Court has
required to be shown in cases where municipalities are sought to be held liable for the acts of
their employees based upon allegations of inadequate training, supervision or hiring. See City of
Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197 (1989); Board of Comm'rs of Bryan Cty. v.
Brown, 520 U.S. 397, 117 S. Ct. 1382 (1997).2
In the court’s view, the City of Horn Lake should not take undue comfort in its
conclusion that it may have “only” been negligent in ensuring that the policies it has adopted are
followed. Officer Brown is the City’s employee, and it is now clearly on notice of this court’s
findings regarding his use of excessive force in this case. The City may also consider the
testimony of its former K9 officer Baggett that Officer Brown was much more willing to employ
police dogs against suspects than other officers. What is merely negligent in this case may be
deliberately indifferent in the next, and the court trusts that the City will consider the proof
developed in this case in deciding how its citizens should best be protected from the unjustified
use of force. The fact that the City has adopted beneficial policies in this context suggests that its
heart may be in the right place on this issue, but good intentions and good policies are
2
This court notes parenthetically that the Mississippi Attorney General has issued an opinion that
municipalities in this state have a duty to “defend and indemnify” their employees “in federal law actions
for acts or omissions occurring within the course and scope of their duties.” See Mr. Greg Hardy, 1995
WL 108943 (1995). This is consistent with this court’s experience regarding the practical effect of
federal court judgments against municipal employees in this state. Thus, while this issue does not impact
this court’s analysis in this case, it is noteworthy that the legal distinction between Officer Brown and the
City of Horn Lake is not as great as it may at first appear.
22
insufficient if they are not enforced. With that caveat, the City’s motion for summary judgment
will be granted.
In light of the foregoing, it is ordered that plaintiff’s motion for partial summary
judgment against Officer Brown is granted, Officer Brown’s motion for summary judgment on
the basis of qualified immunity is denied, and the City of Horn Lake’s motion for summary
judgment is granted.
So ordered, this the 12th day of January, 2016.
/s/ Michael P. Mills
U.S. DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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