On appeal, Thane Carl Chew seeks the
right to pursue his claims for damages resulting from dog bites inflicted on
him by a police dog the Los Angeles Police Department uses to capture
suspected criminals. Chew brought his action in federal district court
pursuant to 42 U.S.C. section 1983. He sued the City of Los Angeles, Police
Chief Daryl Gates, and various other members of the police department for
violations of his Fourth and Fourteenth Amendment rights. [**2] The district
court granted summary judgment to all of the defendants except Officer Daniel
Bunch. When Bunch's case went to trial, Chew introduced evidence that the
officer both turned the police dog loose on him and assaulted him directly.
The jury returned a general verdict in the amount of $ 13,000 against Bunch.
This appeal involves only the district court's grant of summary judgment in
favor of the other defendants, including the city. We have jurisdiction under
28 U.S.C. § 1291.
Although there are a number of important
issues raised by this case, the two most fundamental are whether the Los
Angeles Police Department's policy governing the use of dogs to seize fleeing
or hiding suspects is unconstitutional and whether, if so, the officers who
are responsible for promulgating that policy enjoy qualified immunity. The
latter question, while important, is more of theoretical than practical import
in this case because if the policy is unconstitutional the city will be liable
for whatever damages result in any event.
With respect to the first question, a
majority concludes that the district court erred in holding the police
department's policy [**3] governing the use of dogs constitutional. We do so
for somewhat different reasons. Judge Norris prefers to concentrate on the
issue of whether the force involved - the use of police dogs to seize and bite
people - is deadly, while I would approach the issue more broadly: by
examining the question whether the force is excessive - deadly or not.
Nevertheless, our conclusions are similar and both issues must be considered
by the factfinder upon remand.
Accordingly, we reverse the district
court's judgment in favor of the city. Because the matter is here on summary
judgment, we do not now hold the city's policy unconstitutional but merely
remand for a trial by jury of the substantial Fourth Amendment issues that
exist. [*1436]
With respect to the question of
qualified immunity, a different majority, Judge Trott and the author, agree
that the individual policymakers may not be held liable. We conclude that the
law with respect to the use of police dogs to seize and bite concealed
suspects was not sufficiently established that a reasonable officer would have
known that the Los Angeles Police Department's policy was unconstitutional.
I. Facts and Proceedings
At about 2 p.m. on [**4] September 4,
1988, an officer of the Los Angeles Police Department stopped plaintiff Thane
Carl Chew for a traffic violation in a part of the City of Los Angeles known
as Pacoima. Chew subsequently fled from the officer on foot and hid in a
scrapyard. The officer had not searched him for weapons. Upon discovering that
there were three outstanding warrants for his arrest, the officer radioed for
assistance. A police perimeter was set up around the scrapyard, and a
helicopter and canine units were called in to search for Chew.
Officer Bunch and his charge, police dog
Volker, were among those dispatched to assist in the search of the scrapyard.
Bunch unleashed Volker and, approximately two hours after Chew had fled to the
yard, Volker found him crouching between two metal bins. According to Chew, as
soon as he became aware of Volker's presence, he attempted to surrender and
yelled to the police to call off the dog. Both sides agree that at this point
Officer Bunch was not within sight of Volker. The parties further agree that
Officer Bunch did not immediately accede to Chew's request, that Volker bit
Chew several times and then seized him, and that Chew sustained severe
lacerations to [**5] his left side and left forearm. Chew asserts that he did
not offer resistance at any time after he spotted the dog and repeatedly
begged the officers to restrain his dog, but that Bunch instead ordered Volker
to attack. Bunch, on the other hand, vigorously denies that he ordered an
attack and maintains that when he first saw Chew, the suspect was hitting the
dog with a pipe. Bunch admits kicking at Chew in an attempt to disarm him and
to protect Volker, and acknowledges that he may have kicked Chew in the head,
face, or body.
Chew subsequently brought this action in
federal district court, alleging violations of his Fourth and Fourteenth
Amendment rights. The first claim of Chew's amended complaint named Officer
Bunch, Sergeants Donald Yarnall and Mark Mooring (who trained the L.A.P.D.
canines), and Captain Patrick McKinley (who had overall supervisory
responsibility for the K-9 unit) as defendants in their individual capacities.
In his second claim, Chew sued the City of Los Angeles under Monell v. New
York City Dep't of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct.
2018 (1978), for injuries allegedly resulting [**6] from the city's policy
regarding the use of canine force. In the latter claim he also named Police
Chief Daryl Gates in both his individual and official capacities as an
employee with policymaking authority. n1
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n1 McKinley was also named in the second
claim as a policymaker.
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The district court granted summary
judgment in favor of the individual defendants other than Bunch on the ground
of qualified immunity, and in favor of the City of Los Angeles on the ground
that Chew had failed to demonstrate that a city policy unlawfully caused his
injuries. The case proceeded to trial against Officer Bunch, and the jury
rendered a $ 13,000 general verdict in Chew's favor. Pursuant to California
Government Code §§ 815.2 and 825, the city has paid the judgment and
attendant fees and costs on Bunch's behalf.
II. Article III Jurisdiction
The city and the other remaining
defendants contend that Chew has been fully compensated by the $ 13,000
verdict against Bunch, and that in view of the city's decision to assume
"full responsibility" [**7] for all damages, no real case or
controversy with Chew remains. According to the defendants, allowing Chew to
pursue the instant action any further would result in an "advisory
opinion" that would at most identify different causal agents for an
injury that has already been fully redressed. Therefore, the defendants
[*1437] argue, we lack Article III jurisdiction over the present appeal.
Defendants did not raise this contention
in the district court, perhaps in part because the judgment against Bunch was
obtained after the court granted summary judgment for the remaining
defendants. In any event, there was no reason for either party to have raised
the question below. The issue relates solely to the effect of an unchallenged
judgment obtained against one defendant upon the plaintiff's right to appeal
judgments in favor of other defendants. As such, it may be raised for the
first time on appeal. n2
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n2 Neither party below wished to
challenge the judgment against Bunch on the merits. The question of the
preclusive effect of an unchallenged judgment may be raised initially when an
appellant attempts to pursue a claim that his adversary believes to be barred.
Accordingly, the appellee may raise the issue for the first time by asserting
a collateral estoppel or other preclusion argument in his appellate brief.
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Under Article III, federal appellate
courts may adjudicate only actual, ongoing controversies between the
litigants. Deakins v. Monaghan, 484 U.S. 193, 199, 98 L. Ed. 2d 529, 108 S.
Ct. 523 (1988). If there is no longer a live dispute between the parties or a
possibility that a plaintiff can obtain further relief, a case is moot. See
Sea-land Service, Inc. v. International Longshoremen's & Warehousemen's
Union, 939 F.2d 866, 870 (9th Cir. 1991) (case is moot if none of the issues
within it is viable). Here, the defendants' position appears to be that the
city's assumption of Bunch's liability to Chew precludes further litigation of
his claims for additional relief, thus rendering the instant appeal moot. See
13A Charles Alan Wright et al., Federal Practice and Procedure, § 3533.2 at
151 (Supp. 1993) (noting that mootness and claim preclusion are closely
related doctrines).
Chew's claims against the defendants are
not moot for two reasons. With respect to the first, we must start with the
fact, ignored by the defendants, that the three constitutional violations
alleged against Officer [**9] Bunch are different from the constitutional
wrongs that they allegedly committed. Chew asserted that Bunch violated his
constitutional rights first by improperly releasing Volker, a dangerous animal
trained to bite and maul suspects, next by ordering the dog to attack him
after he attempted to surrender, and finally by kicking him in the head and
body. Chew charges that the other defendants violated his rights by adopting
and implementing a policy of training and using police dogs in an unreasonable
manner. The allegations against the remaining defendants, if true, constitute
wrongs distinct from any committed by Bunch, regardless of the fact that the
dog bites are alleged to have resulted from the actions of all the defendants.
Notwithstanding Chew's articulation of
separate constitutional wrongs against the remaining defendants, those claims
would be moot unless Chew could obtain some type of relief for them. See
Sea-land, 939 F.2d at 870. The defendants assert that Chew is barred from
seeking damages against them because the injury Chew incurred was fully
compensated by the jury verdict and the subsequent payment of damages by the
city [**10] on Bunch's behalf. They are wrong. For the reasons set forth in
the next section, Chew can recover actual damages from the remaining
defendants. Moreover, it is well settled that a plaintiff may recover nominal
damages for a "separate and distinct [constitutional] wrong" whether
or not he is permitted to recover actual or punitive damages for that wrong.
Larez v. City of Los Angeles, 946 F.2d 630, 640 (9th Cir. 1991). Thus, Chew
would in any event be free to pursue his claims against the remaining
defendants for nominal damages.
Chew's claims are not moot, and we have
Article III jurisdiction over this appeal.
III. Issue Preclusion
The defendants' next contention, alluded
to briefly above, is that the jury verdict and its subsequent satisfaction by
the city serves to bar Chew from obtaining any actual damages against them.
Whether they are correct depends upon the basis for the verdict. If it was
based wholly or partly on the injuries inflicted by Volker after his release
[*1438] by the officer, the $ 13,000 damage award would necessarily represent
a factual determination of the damages that Chew suffered on account of the
dog bites. In that [**11] case both Chew and the defendants would be
collaterally estopped from relitigating the issue of the dog bite damages. See
RESTATEMENT (SECOND) OF JUDGMENTS § 50(2) and comment d (1982); FSLIC v.
Reeves, 816 F.2d 130, 135 (4th Cir. 1987); Gill & Duffus Services, Inc. v.
A.M. Nural Islam, 218 U.S. App. D.C. 385, 675 F.2d 404, 407 (D.C. Cir. 1982).
Moreover, in that event, because the judgment obtained as compensation for the
dog bite injuries would already have been paid in full, the so-called
one-satisfaction rule would preclude Chew from seeking a further monetary
award from the remaining defendants for those injuries. See id.
The initial question, therefore, is
whether the jury's verdict against Bunch was based, even in part, on the
dog-bite injuries. The party asserting preclusion has the burden of showing
that the issue as to which estoppel is claimed was actually adjudicated in a
prior proceeding. See Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th
Cir. 1980). Necessary inferences from the judgment, pleadings, and evidence
will be given preclusive effect, [**12] but if there is doubt as to the scope
of the prior judgment, collateral estoppel will not be applied. See Davis
& Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985) citing Harris v.
Jacobs, 621 F.2d 341, 343 (9th Cir. 1980). Where the prior judgment was based
on a general verdict, the inquiry is whether rational jurors must necessarily
have determined the issue as to which estoppel is sought. See id. at 1519; see
also United States v. Seley, 957 F.2d 717, 721, 722 n.3 (9th Cir. 1992)
(applying collateral estoppel where reasonable jurors could have reached only
one of two conceivable results).
While, on the basis of the record before
us, it appears that the jury may have compensated Chew for Volker's bites, we
cannot say with any assurance that it did so. We simply have no way of
knowing. It would not have been irrational or even unreasonable for the jury
to have compensated Chew for Bunch's kicks and not for the dog's bites, or, to
put it in more legalistic terms, for Bunch's direct rather than indirect
assault. We can only speculate as to which injury or injuries underlay the
verdict, [**13] and speculation will not support the application of collateral
estoppel. See Davis, 751 F.2d at 1519; see also Board of County Sup'rs v.
Scottish & York Insurance, 763 F.2d 176 (4th Cir. 1985) ("We cannot
distill special findings from a general verdict and to do so would intrude on
the independent role of a jury as much as would a court's unilateral amendment
of its verdict."). Consequently, we must presume, for collateral estoppel
purposes, that the verdict compensated Chew for Bunch's kicks and not for
Volker's bites.
This determination does not, however,
conclude the issue preclusion inquiry. Specifically, Chew is left with the
challenge of demonstrating that it is legally possible to assume that the jury
found Officer Bunch not liable for the dog bites and at the same time to hold
the remaining defendants liable for them. That challenge is easily met. A
judgment that Bunch is not liable for releasing Volker, given all of the
circumstances, would not preclude a judgment that by implementing a policy of
training and using the police dogs to attack unarmed, non-resisting suspects,
including Chew, the remaining [**14] defendants caused a violation of Chew's
constitutional rights. Supervisorial liability may be imposed under section
1983 notwithstanding the exoneration of the officer whose actions are the
immediate or precipitating cause of the constitutional injury. See Hopkins v.
Andaya, 958 F.2d 881, 888 (9th Cir. 1992) (noting that "the police chief
and city might be held liable for improper training or improper procedure even
if [defendant police officer] is exonerated").
The jury in this case could have
concluded that it was reasonable for Bunch to release Volker - even knowing
what he was likely to do to Chew - given the fact that the procedures adopted
by the city left him with no other means of apprehending the suspect that
involved less risk of bodily injury to himself or the suspect. Because it is
not clear that such a conclusion would be contrary to law or that rational
jurors could not have reached that result, the doctrine of [*1439] collateral
estoppel does not preclude further litigation of Chew's claims against the
remaining defendants for actual damages on the basis an unconstitutional
policy or the failure to supervise or train properly.
There [**15] is an additional reason why
the verdict against Bunch does not bar Chew from seeking a remand for a
further trial - a reason that applies only to the City of Los Angeles. The
jury might have excused Bunch from liability for the dog bites on the ground
of qualified immunity. The district court instructed the jury that a public
official is immune from liability "as long as his conduct does not
violate clearly established constitutional or statutory requirements of which
a reasonable person would have known." The city is not entitled to a
similar defense. See, e.g., Brandon v. Holt, 469 U.S. 464, 473, 83 L. Ed. 2d
878, 105 S. Ct. 873 (1985). Because there is a possibility that the jury
accepted Bunch's defense of qualified immunity and declined to award damages
for the dog bites on that ground, the issue of the city's liability has not
been actually and necessarily decided. See Barber v. City of Salem, Ohio, 953
F.2d 232, 237-38 & n. 1 (6th Cir. 1992) (explaining that verdict for
defendant police officers entitled to qualified immunity did not preclude
recovery against city).
For these reasons, [**16] the
satisfaction of the judgment against Bunch does not bar Chew from pursuing his
claims for actual damages for his dog-bite injuries against the remaining
defendants. Moreover, because it is not clear that Chew has received any
compensation at all for Volker's bites, the $ 13,000 judgment may not be
subtracted from any future recovery he obtains for those injuries. Thus,
whether they are labelled as arguments relying on mootness, claim preclusion,
issue preclusion or the one satisfaction rule, the jurisdictional or
procedural obstacles urged by the defendants present no barrier to any further
proceedings in this case. We must therefore turn to the merits of the district
court's grant of summary judgment in favor of all defendants other than Bunch.
IV. Merits
The district court granted summary
judgment in favor of the remaining defendants on the ground that the use of
Volker for the purpose of apprehending Chew was an objectively reasonable act.
Chew v. Gates, 744 F. Supp. 952, 956 (C.D. Cal. 1990). n3 We must determine,
viewing the evidence in the light most favorable to Chew, whether there are
any genuine issues of material fact and whether [**17] the district court
correctly applied the substantive law. Tzung v. State Farm Fire and Casualty
Co., 873 F.2d 1338, 1339-1340 (9th Cir. 1989).
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n3 The district court denied summary
judgment against Bunch because of allegations of unreasonable conduct that
applied solely to Bunch, namely, that Bunch ordered Volker to attack Chew
after he attempted to surrender, and wrongfully kicked Chew in the head and
body. Under the jury instructions, the jurors could have based their decision
on the theory that the use of Volker was unreasonable in itself. Because
summary judgment was denied, Chew was free, absent a contrary order by the
court, to introduce evidence to support any theory comprehended by his
complaint.
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A. The
City of Los Angeles
In order to succeed on his section 1983
claim against the city, Chew must demonstrate first that his seizure by Volker
was unconstitutional and second that the city was responsible for that
constitutional wrong. Monell, 436 U.S. at 690-94. [**18] Chew advances two
distinct theories of Monell liability. First, he contends that Officer Bunch
violated his Fourth Amendment right not to be subjected to excessive force by
unreasonably releasing Volker and that Bunch's action was caused by a city
policy, custom, or usage. Second, he argues that, regardless of the
reasonableness of Officer Bunch's action in releasing the dog (given the
alternatives then available to him), the city's policy of training police dogs
such as Volker to apprehend unarmed and non-resistant suspects by biting,
mauling, and seizing them was itself unreasonable and unconstitutional.
The district court held that the city
was not liable under either theory for the bites inflicted by Volker because
"the manner in which the police dog was used to apprehend Chew did not,
under the circumstances, infringe on his constitutional rights." 744 F.
Supp. at 956. n4 [*1440] Initially, we must determine whether the district
court correctly concluded that Chew suffered no constitutional injury. Under
Chew's first theory of municipal liability, whether a constitutional wrong was
committed depends upon an assessment of the objective facts and [**19]
circumstances bearing on the reasonableness of Officer Bunch's decision to
release Volker. The existence of a constitutional injury under Chew's second
theory is not dependent on the lawfulness of Officer Bunch's conduct, but
instead turns on the reasonableness of the city's general policy of training
dogs to bite and seize all suspects.
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n4 The district court was obviously
referring only to the release of Volker and not to Bunch's alleged order to
attack Chew after he attempted to surrender. The latter act, if it occurred,
would in any event have been contrary to city policy.
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For the reasons that follow, the
district judge erred in finding as a matter of law that Officer's Bunch's
decision to release Volker was reasonable. While the district court never
reached them, there are also genuine issues of material fact with respect to
whether Bunch's decision was made pursuant to city policy. Thus we are
required to remand for trial on Chew's first theory of municipal liability. It
is therefore unnecessary to determine whether [**20] the record requires
reversal on Chew's alternative Monell theory as well. Specifically, it is not
necessary to decide here whether the city's policy of training its police dogs
to bite and seize is unconstitutional. However, on remand, Chew is entitled to
pursue that question fully, as well as any other theory of municipal liability
as to which he can obtain probative evidence.
1. Bunch's Decision to Release Volker
With respect to Chew's first theory -
that a triable issue of fact exists as to whether Bunch's release of Volker
constituted the use of unreasonable force - we start from the fundamental
premise that the use of force to effect an arrest is subject to the Fourth
Amendment's prohibition on unreasonable seizures. See Graham v. Connor, 490
U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). There is, of course, no
mechanical test for determining whether a particular application of force was
unreasonable; the reasonableness of a seizure must instead be assessed by
carefully considering the objective facts and circumstances that confronted
the arresting officer or officers. See id. at 396. [**21]
In determining reasonableness, "the
nature and quality of the intrusion on the individual's Fourth Amendment
interests" must be balanced against the "countervailing government
interests at stake." Id. (internal quotations omitted). To assess the
gravity of a particular intrusion on Fourth Amendment rights, the factfinder
must evaluate the type and amount of force inflicted. In weighing the
governmental interests involved the following should be taken into account:
(1) the severity of the crime at issue, (2) whether the suspect poses an
immediate threat to the safety of the officers or others, and (3) whether he
is actively resisting arrest or attempting to evade arrest by flight. Id. n5
The relevant inquiry is, moreover, an objective one - good intentions will not
redeem an otherwise unreasonable use of force, nor will evil intentions
transform an objectively reasonable use of force into a constitutional
violation. Id. at 397. Because questions of reasonableness are not well-suited
to precise legal determination, the propriety of a particular use of force is
generally an issue for the jury. See Barlow v. Ground, 943 F.2d 1132, 1135
(9th Cir. 1991), [**22] cert. denied, 120 L. Ed. 2d 872, 112 S. Ct. 2995
(1992); [*1441] White by White v. Pierce County, 797 F.2d 812, 816 (9th Cir.
1986).
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n5 Other courts have supplemented these
factors with such matters as whether a warrant was used, whether the plaintiff
resisted or was armed, whether more than one arrestee or officer was involved,
whether the plaintiff was sober, whether other dangerous or exigent
circumstances existed at the time of the arrest, and the nature of the arrest
charges. See Hunter v. District of Columbia, 291 U.S. App. D.C. 355, 943 F.2d
69, 77 (D.C. Cir. 1991). Their determination that the three factors
articulated in Graham do not constitute the exhaustive criteria for
determining excessive force is undoubtedly correct. In some cases, for
example, the availability of alternative methods of capturing or subduing a
suspect may be a factor to consider. These factors will all be appropriate for
the district court to take into account on remand.
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Here, the district court itself applied
the "objective reasonableness" test. The court reasoned that all
three of the factors articulated in Graham v. Connor supported the decision to
use canine force to arrest Chew, and on that basis held that Bunch's release
of Volker was reasonable as a matter of law. When all disputes of fact are
resolved in Chew's favor, as they must be for purposes of summary judgment, it
is apparent that application of the Graham factors would not have required a
rational jury to decide that using Volker to apprehend him was reasonable.
Moreover, the district court's decision to take the excessive force question
away from the jury conflicts with circuit law.
First, it is necessary to assess the
quantum of force used to arrest Chew. The three factors articulated in Graham,
and other factors bearing on the reasonableness of a particular application of
force, are not to be considered in a vacuum but only in relation to the amount
of force used to effect a particular seizure - an analysis the district court
never explicitly undertook. n6
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n6 There are two ways to interpret the
district court's silence on the question of the amount of force used. The
district court might have found it unnecessary to analyze the degree of force
used because it viewed canine force as slight and hence of little consequence,
or because it found that the amount of force used was self-evidently justified
on the record before it. Neither conclusion, however, is supportable.
Moreover, the better practice is to explicitly state on the record the court's
assessment of the quantum of force used to effect an arrest.
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By all accounts, the force used to
arrest Chew was severe. Chew was apprehended by a German Shepherd taught to
seize suspects by biting hard and holding. According to the defendants, Volker
had to bite the suspect three times before he could achieve an effective hold.
Chew adds that, gripping his left side and then his left arm with his jaws,
the dog dragged him between four and ten feet from his hiding place. Chew
asserts that his arm was nearly severed. Officer Bunch acknowledged that the
injuries to Chew's side and arm were "pretty severe," and that
"there was some serious lacerations." n7
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n7 Given the violent nature of Volker's
attack on Chew, and considering the fact that Volker was still engaged in
biting him when the officers came upon the scene, it is not surprising that
Chew was responding by hitting the dog with a metal pipe. (There is of course
no indication that Chew was armed with that instrument when he fled his car.
Rather, it appears that the pipe was in the scrapyard, readily available to
Chew as a defensive weapon at the time Volker assaulted him).
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Bunch had good reason to expect that
Chew might sustain exactly this type of mauling when he released Volker. All
of the K-9 officers testified that the police dogs were trained to bite
suspects unless a countermanding order was given by the handler. Here, because
Volker was sent to locate a concealed suspect, the dog would almost
necessarily be out of sight of its handler, and hence beyond the reach of a
countermanding order, if and when he came upon Chew. n8 Further, the
deposition of Sergeant Mooring established that if a suspect attempted to
elude the dog's bite instead of passively allowing the animal to maintain its
hold, the dog would repeatedly bite the suspect in an effort to obtain a
sustained grip with its jaws. Chief Gates' deposition disclosed that he was
"very much" aware that such bites could be fatal, and Officer Bunch
echoed this awareness. Cf. Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988)
(burglary suspect died of wounds inflicted when a police dog seized him by the
throat).
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n8 This conclusion is buttressed by
Sergeant Mooring's deposition testimony that there are "many, many
cases" in which the dogs would be out of sight of their handlers, and
that ordering the handlers to maintain constant surveillance over their
animals simply would not be feasible.
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[8] Second, it is necessary to turn to
the district court's application of the Graham criteria, beginning with the
most important single element of the three specified factors: whether the
suspect poses an immediate threat to the safety of the officers or others. The
record does not reveal an articulable basis for believing that Chew was armed
or that he posed an immediate threat to anyone's safety. Cf. Tennessee v.
Garner, 471 U.S. 1, 11, 85 L. Ed. 2d 1, 105 S. Ct. 1694 [*1442] (1985)
(holding that fourth amendment permits use of deadly force to apprehend a
fleeing felon where there is "probable cause to believe the suspect poses
a threat of serious physical harm"). Chew was initially stopped for a
traffic violation. Before he fled, he was asked for his driver's license, and
produced it. He also retrieved cigarettes and a lighter from his car, lit a
cigarette, and engaged in a certain amount of conversation with the officer
before his flight. Apparently, nothing about Chew's appearance or demeanor
gave the officer reason to believe he should search the suspect. It appears
from the record that after fleeing Chew [**27] hid in the scrapyard for an
hour and a half before Bunch released Volker in an effort to capture him. The
defendants do not suggest that Chew engaged in any threatening behavior during
this time, or that he did anything other than hide quietly. In light of these
facts, a rational jury could easily find that Chew posed no immediate safety
threat to anyone.
The existence of a factual question as
to whether Chew posed a safety threat would in itself be enough to preclude
summary judgment in favor of the defendants if we were to determine that
seizing a suspect by means of a German Shepherd trained to bite hard then hold
constitutes deadly force, see Garner, 471 U.S. at 11 (holding that fourth
amendment does not permit use of deadly force to apprehend suspect who poses
no immediate threat to the officer and no threat to others). Indeed, Judge
Norris's separate opinion rests on the conclusion that Chew has presented a
genuine issue of material fact with respect to whether the Los Angeles Police
Department's use of dogs constitutes "deadly force." He may well be
right. However, it is not necessary to decide here whether [**28] the record
sufficiently raises that question, for the grant of summary judgment must be
reversed whether or not Chew adduced adequate evidence tending to show that
the considerable force used here was "deadly." Of course, as stated
earlier, Chew is free on remand to pursue the deadly force issue fully.
The other two specified Graham factors
cut in favor of the defendants, but only slightly. With respect to whether
Chew was "actively resisting arrest," it is undisputed that he fled
and then hid from the police. He did not, however, resist arrest to the point
of offering any physical resistance to the arresting officers, nor, at the
time the officers released the dogs, did they have any particular reason to
believe that he would do so. With respect to whether he was attempting to
evade arrest by flight when Volker was released, the answer is yes and no. In
a general sense he was, but in more precise terms his flight had terminated,
at least temporarily, in the scrapyard. Still, a slight edge goes to the
government on this score.
Turning to the severity of the crime for
which Chew was arrested, although he was initially stopped for a traffic
violation, the traffic officer later discovered [**29] the existence of three
outstanding felony warrants for his arrest. The district court correctly
pointed out that outstanding felony warrants are not to be taken lightly.
However, in view of the fact that the record does not reveal the type of
felony for which Chew was wanted, the existence of the warrants is of limited
significance. A wide variety of crimes, many of them nonviolent, are
classified as felonies. The Supreme Court has observed that "while in
earlier times the gulf between felonies and the minor offences [sic] was broad
and deep, today, the distinction is minor and often arbitrary." Garner,
471 U.S. at 14 (internal quotation omitted). It added: "the assumption
that a felon is more dangerous than a misdemeanant [is] untenable." Id.
The existence of three warrants for undetermined crimes - for which Chew had
not been tried or convicted - is thus not strong justification for the use of
dangerous force. n9 [*1443] The significance of the warrants is further
diminished by the facts that Chew was completely surrounded by the police, and
that the prospects for his imminent capture were far greater than are [**30]
those of the many fleeing suspects who are fleeter than the police officers
chasing them.
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-Footnotes- - - - - - - - - - - - - - - - - -
n9 While defense counsel contended at
oral argument that the warrants were issued in connection with burglaries,
this information was not part of the record before the district judge, and
certainly was not known to Officer Bunch. Moreover, inclusion of this
information in the record would make no appreciable difference to the analysis
set forth in the text. In Garner, the Court noted that the fact that "an
unarmed suspect has broken into a dwelling at night does not automatically
mean he is physically dangerous." Id. at 21. The Court also took notice
of statistics showing that burglaries only rarely involve physical violence,
and of the FBI's classification of burglary as a "property" rather
than a "violent" crime. Id. Here, there is not even an indication
that the burglaries for which Chew was wanted occurred at night. See Cal.
Penal Code § 460 (1988 ed.).
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Footnotes- - - - - - - - - - - - - - - - - [**31]
This was not an occasion on which the
police were forced to make "split-second judgments" in circumstances
that were "rapidly evolving." Graham, 490 U.S. at 397. Chew was
trapped in the scrapyard for two uneventful hours before Volker bit and mauled
him. There was time for deliberation and consultation with superiors. There
was even time for the police to summon a helicopter to the scene, an airborne
vehicle which apparently aided the dogs in their search. What other tactics if
any were available - given the absence of urgency - is, again, a question to
be explored upon remand.
Under all of the circumstances, the
question of the reasonableness of the decision to use the force involved,
whether or not "deadly," to seize Chew must be submitted to a jury.
When the record is viewed in the light most favorable to the nonmoving party,
the Graham factors do not all support either side. However, the most important
factor - the absence of an immediate safety threat - cuts strongly in Chew's
favor, while the other two tilt only slightly in favor of the defendants. Such
a record does not render reasonable as a matter of law [**32] the considered
judgment to unleash a German Shepherd trained to seize suspects by
"biting hard and holding," by mauling and sometimes seriously
injuring them. Moreover, while no circuit precedent is precisely on point,
Reed v. Hoy, 909 F.2d 324 (9th Cir. 1989), cert. denied, 501 U.S. 1250, 115 L.
Ed. 2d 1053, 111 S. Ct. 2887 (1991) appears to establish the existence of a
jury issue a fortiori. n10 Reed demonstrates that whether a particular use of
force was reasonable is rarely determinable as a matter of law. That decision
controls the outcome of the excessive force question in this case. If Deputy
Hoy's split-second decision to use deadly force in response to an impending
threat to his own safety was not reasonable as a matter of law, we cannot say
that in this case the use of force that at the very least approaches deadly
proportions meets that standard. See Garner, 471 U.S. at 11 (threat to officer
and public must be immediate to justify application of deadly force).
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n10 Reed involved an angry confrontation
between Deputy Hoy and Reed after the deputy arrived at Reed's residence to
investigate a domestic dispute. Reed threatened Hoy first with a bamboo stick
and then with a splitting maul. Hoy repeatedly warned Reed to put down the
splitting maul, and retreated by walking backwards. Reed refused to heed the
warnings and continued to advance. Hoy then drew his service revolver, again
warned Reed to put down the maul, and shot him in the chest. Reed sued under
§ 1983, contending that Hoy used excessive force.
The court rejected Hoy's contention that
his actions were reasonable as a matter of law, holding instead that on the
record before it a rational jury could find for either party. Id. at 330.
Certainly Reed presented a greater and more immediate threat than Chew.
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Footnotes- - - - - - - - - - - - - - - - - [**33]
In conclusion, the question whether it
was reasonable under the Fourth Amendment for Bunch to release Volker was for
the jury. n11
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-Footnotes- - - - - - - - - - - - - - - - - -
n11 The defendants principally rely on
Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988) for the proposition that the
use of a police dog to apprehend Chew was reasonable as a matter of law.
Robinette was a § 1983 action brought by the estate of a burglary suspect
killed by a police dog who found him hiding in a car dealer's showroom, under
a car. Robinette does not control the result here. First, Robinette, which
predates Graham, appears to have been decided under the assumption that
anything short of deadly force may constitutionally be used to apprehend a
felon. See id. at 911-13; Jones v. County of DuPage, 700 F. Supp. 965, 971 n.
3 (N.D. Ill. 1988). This assumption conflicts with the holding and the
reasoning of Graham as well as with prior circuit law. See, e.g., Robins v.
Harum, 773 F.2d 1004 (9th Cir. 1985). Second, the court in Robinette concluded
that the officers on the scene had "probable cause" to believe that
the suspect threatened their safety. 854 F.2d at 913. No similar showing of
probable cause can be made here. Finally, in concluding that the use of canine
force was reasonable, the court was heavily influenced by the fact that the
suspect was "hidden inside a darkened building in the middle of the
night." 854 F.2d at 913 & n. 5. This case does not involve similar
circumstances; it involves a daytime arrest of a suspect who, though hiding,
was surrounded and might well have been captured without the infliction of
physical injuries.
A recent decision of this court, Mendoza
v. Block, No. 92-56225, slip op. 5619 (9th Cir. May 31, 1994), upheld a
district court's conclusion that the use of a police dog to find, bite, and
hold onto a bank robbery suspect was objectively reasonable under all of the
circumstances. However, the circumstances in Mendoza were far different from
the circumstances present here. In Mendoza the district court found that the
officers who released the dog had very strong reasons to believe that the
suspect posed an immediate threat to their safety and the safety of others:
the suspect was in immediate flight from a bank robbery, and radio broadcasts
from police headquarters stated that he was armed. See id., slip op. at 5631.
In short, the Mendoza facts appear to meet the standard for the use of deadly
force. Chew, by contrast, was not in immediate flight from any crime, and the
officers had no reason to believe that he was armed. Moreover, the plaintiff
in Mendoza was at large in a residential neighborhood. See id., slip op. at
3668. This location increased the chance that he would escape and be a threat
to the public. Finally, it is worth noting that the plaintiff in Mendoza
challenged only the individual decision to release the particular police dog
used to seize him; unlike Chew, he did not raise a challenge to the municipal
policy of training and employing the dogs in general.
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Footnotes- - - - - - - - - - - - - - - - - [**34] [*1444]
2. Municipal Liability
Although the district court ended its
inquiry with the question whether Chew's constitutional rights were violated
by the release of Volker (and the dog's subsequent conduct), we cannot.
Because a genuine dispute of material fact exists as to the constitutional
violation, we must consider whether the district court's grant of summary
judgment for the city may be affirmed on the ground that Chew's injury did not
result from the application or enforcement of an official city policy. See
Jackson v. Southern California Gas Co., 881 F.2d 638, 643 (9th Cir. 1989)
(summary judgment may be upheld based upon any ground supported by the
record).
Under the Monell doctrine, Chew may
recover from the city if his injury was inflicted pursuant to city policy,
regulation, custom, or usage. See Monell v. Dept. of Soc. Serv. of City of
N.Y., 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). City
policy "need only cause [the] constitutional violation; it need not be
unconstitutional per se." Jackson v. Gates, 975 F.2d 648, 654 (9th Cir.
1992); [**35] see also Collins v. City of Harker Heights, Tex., 117 L. Ed. 2d
261, 112 S. Ct. 1061, 1067 (1992). n12 City policy "causes" an
injury where it is "the moving force" behind the constitutional
violation, Monell, 436 U.S. at 694, or where "the city itself is the
wrongdoer." Collins, 112 S. Ct. at 1067.
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n12 Judge Norris's separate opinion is
slightly, if unintentionally, misleading when it states that we must determine
in this appeal whether the Los Angeles Police Department's policy is
constitutional. See opinion of Judge Norris at 6986. Of course, we need not
determine the constitutionality of the Department's policy here; we need only
determine whether the district court properly granted summary judgment in
favor of the city and its policy makers. Moreover, although Chew will
certainly be free to argue on remand that the city policy is unconstitutional
on its face, the city would not necessarily escape liability even if it showed
that the policy is facially constitutional. To prevail at trial, Chew need not
prove the policy unconstitutional. Rather, he need only show that the specific
use of force (i.e., Bunch's decision to release Volker) violated the
Constitution, and that city policy caused the unconstitutional application of
force in this instance.
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Footnotes- - - - - - - - - - - - - - - - - [**36]
There is little doubt that a trier of
fact could find that Chew's injury was caused by city policy. In the district
court, the city conceded, for purposes of summary judgment, the truth of
Chew's contention that departmental policy authorized seizure of all concealed
suspects - resistant or non-resistant, armed or unarmed, violent or nonviolent
- by dogs trained to bite hard and hold. n13 Construing city policy as the
appellee concedes we must, it doubtless could be found to [*1445] be the
"moving force" behind Chew's injury. Bunch released Volker because
his superiors instructed him that he was authorized to do so under the
circumstances of Chew's case. The instructions were based on what we assume to
be city policy. Accordingly, we must reverse the district court's grant of
summary judgment in favor of the City of Los Angeles.
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-Footnotes- - - - - - - - - - - - - - - - - -
n13 In their reply to the defendants'
answer to the summary judgment motion, defendants stated: [Chew] states there
is a factual issue as to whether the use of police dogs as of the date of the
incident was "policy" or "not policy." Of course if it was
not policy, there could be no Monell claim. However for the purpose of this
motion it is assumed that it was "policy." [Par. ] He also states
that there is a factual issue as to what the policy was. . . . However, for
the purpose of this motion, it is assumed that the dogs are used to find and
seize by biting a concealed suspect who refuses to surrender even if he offers
no physical resistance to the dog.
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Footnotes- - - - - - - - - - - - - - - - - [**37]
In its brief on appeal, the city ignores
the concessions it made in the district court and attempts to argue that even
if the department's policy was to use dogs to apprehend concealed suspects by
biting and mauling them, this policy was attributable only to the officers
responsible for training the canine units, and not to the police chief or the
police commission - the two entities vested with the authority to make
municipal policy. The city is bound by the concession it made in the district
court. However, even if it were not, summary judgment for the city would be
inappropriate on this record.
A city cannot escape liability for the
consequences of established and ongoing departmental policy regarding the use
of force simply by permitting such basic policy decisions to be made by lower
level officials who are not ordinarily considered policymakers. Los Angeles
could not, for example, distance itself from policy regarding the use of
firearms by de facto delegating the formulation of firearms policy to the
commander of the police academy. So too here: if the city in fact permitted
departmental policy regarding the use of canine force to be designed and
implemented at lower levels [**38] of the department, a jury could, and
should, nevertheless find that the policy constituted an established municipal
"custom or usage" regarding the use of police dogs for which the
city is responsible. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127,
99 L. Ed. 2d 107, 108 S. Ct. 915 (1988).
Further, even if we were to accept the
city's argument that no jury could find that departmental canine policy was
officially sanctioned, municipal liability could be found under the
"deliberate indifference" formulation of Monell liability. See City
of Canton, Ohio v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct.
1197 (1989). In order to accept the city's contention that departmental canine
policy was not officially sanctioned, we would have to find that the city
itself had no policy regarding the proper use of canine force, or, at best, a
policy of vesting complete discretion regarding the use of the canines in the
dogs' handlers. The record contains evidence that the dogs bit suspects in
over 40% of the instances in which they were used. Where the [**39] city
equips its police officers with potentially dangerous animals, and evidence is
adduced that those animals inflict injury in a significant percentage of the
cases in which they are used, a failure to adopt a departmental policy
governing their use, or to implement rules or regulations regarding the
constitutional limits of that use, evidences a "deliberate
indifference" to constitutional rights. Under such circumstances, a jury
could, and should, find that Chew's injury was caused by the city's failure to
engage in any oversight whatsoever of an important departmental practice
involving the use of force.
Finally, as noted earlier, on remand
Chew is not limited to pursuing any single theory underlying our decision that
summary judgment was improper. The district court's grant of summary judgment
for the city was based on the conclusion that Officer Bunch's decision to
release Volker was reasonable. However, municipal liability need not be
predicated on an "unreasonable" action on Officer Bunch's part. A
jury could conceivably decide, for example, that although the officer's
on-the-scene decision to use canine force was reasonable under the
circumstances, the city was nevertheless [**40] at fault for providing its
officers with dogs trained to bite and seize all concealed suspects regardless
of their efforts to surrender. If the plaintiff could prove at trial that
training in less dangerous means of detection and apprehension was both
feasible and effective from a law enforcement standpoint (and the city's
recent adoption of a "find and bark" policy suggests that it may
well have been n14), then [*1446] the city's failure so to train its dogs may
well have constituted an unreasonable municipal action regarding the use of
force.
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-Footnotes- - - - - - - - - - - - - - - - - -
n14 See "LAPD Begins Warnings on
Use of Dogs," Los Angeles Times, September 30, 1992, part B, p. 3, col. 5
(reporting that the department has commenced training its dogs to bark and
alert rather than to bite suspects).
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Footnotes- - - - - - - - - - - - - - - - -
Judge Norris has written separately in
order to discuss fully the critical issue of whether the city's policy
regarding the use of police dogs violates the Garner deadly force rules. The
matters set forth in his opinion are certainly appropriate [**41] for Chew to
pursue and develop by means of a proper evidentiary showing on remand.
Essentially, Judge Norris suggests that using police dogs trained to
"bite and seize" suspects to locate and hold concealed individuals
who are not reasonably believed to be dangerous may violate the Fourth
Amendment. He may well be correct. It is also possible, however, that siccing
dogs trained in such a manner on any suspects would be found to violate that
Amendment, if the method of training is found to be unreasonable in light of
available alternatives. Both of these issues are deserving of full exploration
upon remand.
B. The
Individual Defendants
1. Prima Facie Liability
Chew sues Gates, Mooring, McKinley, and
Yarnall in their individual capacities. n15 Although these defendants did not
personally participate in the infliction of Chew's injury, they may be held
individually liable if they "caused" him to be subjected to a
constitutional deprivation. Bergquist v. County of Cochise, 806 F.2d 1364,
1369 (9th Cir. 1986), disapproved on other grounds, Canton v. Harris, 489 U.S.
378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). [**42] The existence of
the requisite causal connection is implicit in the earlier conclusion that
liability on the part of both Officer Bunch and the city could flow from
Bunch's decision to use canine force against Chew. The remaining individual
defendants all served as links connecting the officer and the city in this
respect. Mooring and Yarnall designed and implemented departmental policy
governing the use of canine force, McKinley had overall supervisory
responsibility for the K-9 unit, and Chief Gates was not only responsible for
the operations of the department as a whole, but was familiar with the canine
incidents that occurred and regularly reported to the police commission on the
performance of the K-9 unit. Viewed in the light most favorable to Chew, this
evidence presents a genuine issue of material fact as to whether each of these
defendants authorized, approved, or acquiesced in the canine force policy - a
policy which may following trial be determined to constitute a cause of Chew's
injuries. See Los Angeles Protective League v. Gates, 907 F.2d 879, 894 (9th
Cir. 1990); McRorie v. Shimoda, 795 F.2d 780, 783-84 (9th Cir. 1986), [**43]
citing Heller v. Bushey, 759 F.2d 1371, 1375 (9th Cir. 1985), rev'd and
remanded on other grounds sub nom., City of Los Angeles v. Heller, 475 U.S.
796, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986).
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-Footnotes- - - - - - - - - - - - - - - - - -
n15 Chew also sues Gates in his official
capacity. Official capacity suits generally represent only another way of
pleading an action against the entity of which the officer is an agent.
Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099
(1985). Where, as here, the government entity receives notice and an
opportunity to respond to the official capacity suit, "[the] suit is, in
all respects other than name, to be treated as a suit against the
entity." Id. at 166.
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2. Qualified Immunity *
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-Footnotes- - - - - - - - - - - - - - - - - -
* The term "we" as used in
this section refers at all times to the author and Judge Trott. In the
preceding sections the occasional use of that term is not intended to imply
that any individual judge agrees with a particular proposition.
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Footnotes- - - - - - - - - - - - - - - - - [**44]
We conclude, however, that the district
court's grant of summary judgment in favor of the individual defendants other
than Bunch on the ground of qualified immunity was proper. For the purposes of
this section, we continue to assume that departmental policy authorized the
use against all concealed suspects of dogs trained to search for and apprehend
persons by biting and seizing them. 744 F. Supp. at 954. Whether the
defendants are entitled to qualified immunity for their actions in formulating
or implementing such a policy "turns on the objective legal
reasonableness of the action assessed in light of the legal rules that were
clearly established at the time it was taken." Anderson v. Creighton, 483
U.S. 635, 639, 107 S. Ct. [*1447] 3034, 97 L. Ed. 2d 523 (1987) (internal
cites and quotation marks omitted). Specific precedent is not required in
order to overcome a qualified immunity defense, but the law in question must
be sufficiently clear that the unlawfulness of the action would have been
apparent to a reasonable official. Id. at 640. [**45] Here, a reasonable law
enforcement official might well have failed to recognize that authorizing or
implementing the policy at issue would result in the violation of the
constitutional rights of persons seized by the police dogs.
When the incident that led to the filing
of this lawsuit occurred, the use of police dogs to search for and apprehend
fleeing or concealed suspects constituted neither a new nor a unique policy.
The practice was long-standing, widespread, and well-known. No decision of
which we are aware intimated that a policy of using dogs to apprehend
concealed suspects, even by biting and seizing them, was unlawful. At the time
of the incident in question, the only reported case which had considered the
constitutionality of such a policy had upheld that practice. See Robinette v.
Barnes, 854 F.2d 909 (6th Cir. 1988) (holding that use of police dog trained
to bite a suspect's arm or other available limb to apprehend a burglary
suspect hiding in a darkened building was constitutional). We are certain that
Robinette is not consistent with the law of this circuit today, see supra note
10, and seriously doubt whether we would ever have [**46] reached a similar
result. Nevertheless, at the time of Chew's arrest, Robinette was the only
appellate decision in the general area. n16 Because of the then current
widespread acceptance of the practice of using police dogs to make arrests,
and the absence of any contrary authority, we conclude that at the time of
Volker's assault there was no clearly established law prohibiting the use of
dogs in the manner permitted by the Los Angeles Police Department's policy.
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-Footnotes- - - - - - - - - - - - - - - - - -
n16 In attempting to distinguish
Robinette, see Opinion of Judge Norris at 7000-1, Judge Norris ignores one
crucial point: the dog in that case was trained and employed in essentially
the same fashion as the dogs at issue here, and the Sixth Circuit held that
dogs trained in such a manner did not constitute deadly force, even though the
dog in Robinette killed the plaintiff's decedent. Our inquiry on the deadly
force issue for qualified immunity purposes asks whether a reasonable officer
would have known that the use of police dogs in this manner constituted deadly
force. Robinette held that a police dog, trained to hold and bite, which
killed someone did not constitute deadly force. In light of this decision, it
is difficult to understand why a reasonable officer should have known that
L.A.P.D. police dogs trained and employed in a similar manner would be held to
be deadly force, especially since there is no evidence in the record that any
L.A.P.D. dog ever killed anyone.
Judge Norris reads Robinette as being a
decision about whether or not a "particular dog" constituted deadly
force. See Opinion of Judge Norris at 7000-1. It should be obvious, however,
that the Sixth Circuit would not have issued a published opinion if its
decision were so narrowly limited. If we were ordinarily to read cases in the
manner in which Judge Norris reads Robinette, Brown v. Board of Education, 347
U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), would stand for the proposition
that separate is inherently unequal only in Topeka, Kansas, (or possibly only
as to Linda Brown), Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60
(1803), would stand for the proposition that the courts have the power of
judicial review only when considering the validity of a statute conferring
mandamus jurisdiction, and our judiciary would be in an even worse state than
it already is. Certainly, in the case before us, a police officer in the Sixth
Circuit would have been entitled to qualified immunity. Under all of the
circumstances, see discussion infra, we believe an officer in the Ninth
Circuit was entitled to that protection as well.
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Footnotes- - - - - - - - - - - - - - - - - [**47]
Chew contends that it was apparent from
several district court decisions discussing the use of police dogs that the
department's canine force policy was unlawful. See Luce v. Hayden, 598 F.
Supp. 1101 (D. Me. 1984); Soto v. City of Sacramento, 567 F. Supp. 662 (E.D.
Cal. 1983); Starstead v. City of Superior, 533 F. Supp. 1365 (W.D. Wis. 1982).
The facts in all of these cases differ dramatically from the circumstances in
which the use of dogs was authorized under the L.A.P.D. policy. In Luce, the
plaintiff claimed that state troopers "sicced" a dog on him while he
was lying prone and handcuffed. Similarly, in Soto, the plaintiff alleged that
he had surrendered, was lying on the ground, and had spread his hands pursuant
to police instructions when the police released the dog that bit him. Finally,
Starstead dealt with a number of completely gratuitous uses of canine force,
including the use of biting dogs against [*1448] handcuffed suspects and
against a defendant stopped for a traffic violation. The circumstances in
these cases are too far removed from the policy involved [**48] here to be of
any aid to Chew.
Marley v. City of Allentown, 774 F.
Supp. 343, 345-46 (E.D. Pa. 1991), aff'd mem., 961 F.2d 1567 (3d Cir. 1992),
does not support Chew's claim, either. Marley was decided after the incident
in this case, and it involved an episode which took place after Chew's
apprehension. Accordingly, at best the decision is of limited use in
determining whether the policy at issue here was clearly unlawful at the time
the defendants formulated and implemented it. Marley also involved a very
different set of circumstances from this case. The district court in Marley
distinguished Robinette on two grounds: (1) that the suspect in Robinette was
a suspected felon, while the suspect in Marley was a suspected misdemeanant;
and (2) that the suspect in Marley was "either fleeing or stopping,"
while the suspect in Robinette was hiding. Id. at 345. On both grounds, Chew's
case is much closer to Robinette than to Marley. n17
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-Footnotes- - - - - - - - - - - - - - - - - -
n17 Judge Norris suggests that we miss
the point by noting the factual distinctions between this case and Marley. He
purports to rely only on Marley's qualified immunity methodology, a
methodology he claims is "mandated by our recent decision in
Mendoza." Opinion of Judge Norris at 7002. As we explain infra, the
methodology employed in Mendoza does not compel a finding of qualified
immunity in this case. Although "generic principles of excessive force
law," Opinion of Judge Norris at 7002, would lead a reasonable officer to
conclude that under some circumstances it would be unlawful to use a police
dog, those same generic principles would lead a reasonable officer to believe
that under other circumstances it would be lawful to do so. In light of the
well established nature of policies like the L.A.P.D's, and in light of the
cases discussing similar policies, this case falls squarely into the latter
category.
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Footnotes- - - - - - - - - - - - - - - - - [**49]
We conclude that as of the time Chew was
bitten by Volker the Los Angeles Police Department's longstanding policy
regarding the training and use of police dogs did not contravene clearly
established law. We recently explained in Mendoza v. Block, No. 92-56225, slip
op. 5619 (9th Cir. May 31, 1994), that "we do not believe that a more
particularized expression of the law is necessary for law enforcement
officials using police dogs to understand that under some circumstances the
use of such a 'weapon' might become unlawful." Mendoza, slip op. at 5629
(emphasis added). While our statement was quite simple, if not self-evident,
and was limited to the proposition that some uses of dogs will in particular
instances violate clearly established law, in his dissent Judge Norris
transmutes that modest statement into an all-encompassing and pervasive
pronouncement governing all uses of force. He claims that Mendoza stands for
the proposition that "the law governing all excessive force cases,
regardless of the instrument used to apply the force, is 'clearly
established.'" Opinion of Judge Norris at 7003 (emphasis in original).
Remarkably, he argues that, Mendoza establishes [**50] the rule that "the
generic principles established in Garner" render the law clearly
established in all excessive force cases. Opinion of Judge Norris at 7003. It
is difficult to recognize in Judge Norris's description of the case what
Mendoza actually says, and we must respectfully decline to read Mendoza as
establishing so broad and unprecedented a rule as Judge Norris urges. n18
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-Footnotes- - - - - - - - - - - - - - - - - -
n18 Indeed, we see no way of limiting
the principle Judge Norris would have us adopt: If Garner means that the law
is clearly established in every excessive force case, then Brandenburg v.
Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969) (per curiam), must
mean that the law is clearly established in every free speech case, and Trop
v. Dulles, 356 U.S. 86, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958), must mean that
the law is clearly established in every cruel and unusual punishment case. In
short, under Judge Norris's reading of Mendoza, we would always conclude that
the law is clearly established, regardless of the nature of the issue. Compare
Judge Norris's unlimited reading of Mendoza to his "particular dog"
reading of Robinette. See supra note 16.
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Footnotes- - - - - - - - - - - - - - - - - [**51]
We read our decision in Mendoza as
meaning exactly what it said: it is clearly established that under some
circumstances the use of police dogs is unlawful. However, that conclusion
clearly does not advance Chew's cause. The Mendoza court gave the following
example of the type of conduct that it considered prohibited by clearly
established law: "No particularized case law is necessary [*1449] for a
deputy to know that excessive force has been used when a deputy sics a canine
on a handcuffed arrestee who has fully surrendered and is completely under
control." Id. at 5629-30. While this statement of the law is
indisputable, the policy at issue here is far different from the siccing of
dogs on handcuffed arrestees. See supra p. 6974-75. Here, we must determine
whether it was clearly established that it was unlawful to use police dogs to
search for and apprehend concealed suspects by biting and seizing them. At the
time the individual defendants implemented the Los Angeles Police Department's
policy, the answer was, without question, "No." n19 Indeed, the
Mendoza opinion itself makes this clear, in a direct and unambiguous manner.
In surveying the established [**52] law regarding "the appropriate use of
police dogs," Mendoza, slip op. at 5628, the Mendoza court quoted the
following statement from the district court opinion in the instant case:
"Neither federal law nor California law clearly prohibits the training
and/or use of police dogs to find, seize, and hold suspects, by biting if
necessary." Chew v. Gates, 744 F. Supp. 952, 954 (C.D. Calif. 1990),
quoted in Mendoza, slip op. at 5628-29. Here, we simply reaffirm the statement
we endorsed in Mendoza: when the defendants implemented the policy at issue in
this case, it was not clearly established either that police dogs constituted
deadly force, or that the use of dogs to find, bite, and hold concealed
suspects was unreasonable. n20
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-Footnotes- - - - - - - - - - - - - - - - - -
n19 Our conclusion here is consistent
with the analysis in Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993),
in which we employed "a two-part analysis" to determine whether the
defendants were entitled to qualified immunity: "1) Was the law governing
the official's conduct clearly established? 2) Under that law, could a
reasonable officer have believed the conduct was lawful?" Id. at 871. In
Act Up!, we answered the first question in the affirmative, because "it
was clearly established in this circuit that it is unlawful to strip search an
arrestee brought to a jail facility on charges of committing a minor offense,
unless the officer directing the search possesses a reasonable suspicion that
the individual arrestee is carrying or concealing contraband." Id. at
871-72 (footnote and internal quotations omitted). We then said that it was
necessary to answer the second question, "whether a reasonable officer
could have believed probable cause (or reasonable suspicion) existed to
justify a search or arrest." Id. at 873. In this case, however, we
conclude that it was not clearly established that the use of dogs to search
for, bite, and seize hiding suspects was either deadly force or unreasonable
force. Thus we need proceed no further. Frequently, as here, the answer to Act
Up!'s first question dictates our decision on qualified immunity, and not only
when we decide that the law is not clearly established. In fact, in many cases
the answer to the first part of the test will provide the total answer to the
qualified immunity question, and a second and separate analysis will be
unnecessary. [**53]
n20 In light of Mendoza's reliance on
the district court opinion below, we simply cannot comprehend Judge Norris's
insistence on arguing that the case is controlling authority for his
contention that the officers are not entitled to qualified immunity as a
matter of law.
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Footnotes- - - - - - - - - - - - - - - - -
Although the decision in Robinette
bolsters our conclusion that the officers are entitled to qualified immunity
here, we rely principally on the fact that the policy employed by the Los
Angeles Police Department was a longstanding official policy, which was
well-known and similar to the policies employed in many police departments
throughout the nation, none of which had been judicially questioned. Pace
Judge Norris, we do not "regard Robinette as an automatic guarantee of
qualified immunity to officers in . . . dog bite cases." Opinion of Judge
Norris at 7000. Moreover, we do not mean to suggest by our decision that
officers will be entitled to qualified immunity if they authorize the use of a
new weapon or tactic which violates constitutional norms, simply because there
is no case stating that the specific weapon [**54] or tactic involved violates
the Constitution. To the contrary, if new weapons or tactics are sufficiently
similar in design, purpose, effect, or otherwise to weapons or procedures that
have been held unconstitutional, so that a reasonable officer would have known
that a court's holding of unconstitutionality would be extended to the new
weapon or tactic, then qualified immunity will not apply. Similarly, even if a
policy is longstanding and no case has declared it unconstitutional, officers
authorizing its continued use will not be entitled to qualified immunity after
a case has authoritatively declared unlawful other procedures that are not
"meaningfully distinguishable." Wood v. Ostrander, 879 F.2d 583, 592
(9th Cir. 1989), cert. [*1450] denied, 498 U.S. 938, 112 L. Ed. 2d 305, 111 S.
Ct. 341 (1990). Finally, we do not mean to suggest that all actions taken
pursuant to a longstanding policy are necessarily immunized. An officer who
unlawfully implements an official policy or ordinance in an egregious manner
or in a manner which clearly exceeds the reasonable bounds of the policy is
[**55] not entitled to qualified immunity, whether or not there is a case on
point declaring such actions unconstitutional. In other words, even in the
absence of relevant case law, if the manner of implementation of an otherwise
constitutional policy is not only unconstitutional but patently so, the
officer will be deemed to have violated "clearly established statutory or
constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727
(1982). Moroever, the existence of an unofficial or unacknowledged policy or
practice is not sufficient to immunize an officer from liability. The
clandestine nature of such a policy may suffice to put a reasonable officer on
notice that it violates established legal norms. Here, we simply do not
believe that, given the historical facts and circumstances, the use of police
dogs in the manner prescribed in the Los Angeles Police Department's policy is
sufficiently similar to other uses of force held to be unconstitutional by the
courts to put reasonable law enforcement officials on notice that the
department's policy [**56] violated the Fourth Amendment; nor do we believe
that the individuals here seeking qualified immunity were otherwise put on
notice by the nature of the conduct itself.
Because at the time of Chew's arrest the
Los Angeles Police Department's longstanding, well-known practice of using
police dogs to make arrests by biting and seizing was similar to that employed
by other police departments across the country, because no court had ever
questioned such a practice, and because the practice is "meaningfully
distinguishable" from other police conduct previously held
unconstitutional, we conclude that the doctrine of qualified immunity is
applicable. Accordingly, we affirm the district court's grant of summary
judgment to all of the individual appellees, specifically, defendants Gates,
McKinley, Mooring, and Yarnall.
V. The Dissent from the Reversal of the Judgment in Favor of the City of
Los Angeles
When public concern rises dramatically
over an issue like crime, and politicians in the highest offices throughout
the land rush to abandon any pretense of a commitment to fundamental
constitutional principles, it is essential that judges keep their cool - that
we, at least, remain determined [**57] to fulfill our role as the objective,
steadfast guardians of individual liberty. First and foremost, it is our
obligation to resist all temptations to succumb to hysteria, all inclinations
to ignore our responsibilities and simply to join the pack.
Regrettably, it is necessary to add here
that Judge Trott well knows that the reference to "the pack" is not
to "decent people genuinely worried about the world in which they and
their children live." Opinion of Judge Trott at 7009. Rather, the term
obviously refers to those who in making or enforcing our laws knowingly and
hypocritically disregard the Constitution and instead do what is most
expedient or serves their own self-interest. Judge Trott's maudlin attempt to
portray himself as the defender of "the People" provides a
fortuitous if most unfortunate example of that form of conduct.
Judges are not correspondents for
Newsweek. We do not campaign for office in large, crime-ridden metropolitan
areas. Nor, ordinarily, do we try to make the public believe that we are doing
something about a problem when in truth we are not. Judges are supposed to be
calm, dispassionate, and committed to the principles of law. We have a
particular [**58] responsibility to the Constitution, including the Fourth
Amendment.
Judge Trott makes clear his distaste for
the rules of law enunciated in Graham v. Connor and Tennessee v. Garner. It is
unfortunate he feels that way - although that is his privilege. However, to
call Chew a murderer and a rattlesnake is not. To accuse us of sending police
officers to "the jaws of danger," Opinion of Judge Trott at 7033,
demeans him and us. We are all experienced in the ways of law enforcement and
of [*1451] the Los Angeles Police Department. To talk of "judges tucked
away behind magnetometers," Opinion of Judge Trott at 7008, is
nonsensical.
There are serious legal issues involved
in this case that warrant informed discussion. Here, as with so many important
issues, by exchanging reasoned views we could increase each other's
understanding, and the public's as well. Rational, enlightened debate in this
case could advance the interests of justice and the welfare of society. Judge
Trott has the knowledge and experience to make a significant contribution to
our efforts to balance societal interests and individual rights. Perhaps next
time he will do so.
As for this case, we are not free to
[**59] abandon our responsibilities as Judge Trott suggests. We are not
permitted by our oaths of office to leave the protection of constitutional
rights to the unreviewed discretion of "a police chief, an elected mayor,
a police commission, and an elected city council." Opinion of Judge Trott
at 7039. Today we do, however, leave the final answer as to the reasonableness
of the city's policy and conduct to a jury, as the Constitution and our laws
command.
Judge Trott grossly mischaracterizes
today's holdings with respect to the use of excessive force. We do not send
police dogs to the sidelines. We reverse a summary judgment order, so that
there may be a full and fair factual trial before a jury of "the
People" regarding the practices followed by the Los Angeles Police
Department. No one should fear or condemn such a trial, least of all a judge
experienced in the law and in the legal process. The truth cannot be harmful
in this case. The public has a right to know how the Los Angeles Police
Department is training and using dogs that are capable of killing or maiming
human beings - to know whether the City is acting within the law. In addition,
the appellant, who was seriously injured, has [**60] a right to compensation
if the police department has acted in an unconstitutional manner. To say, as
does Judge Trott, that there is simply no legal question here is to denigrate
the Constitution. It is to say that the police, unlike all others, are above
the law - that their decisions as to how and when deadly force shall be used
are immune from judicial review. That way lies the beginning of the police
state and the end of freedom.
VI. Conclusion
The judgment of the district court is
AFFIRMED IN PART and REVERSED IN PART, and the case is REMANDED for further
proceedings against the City of Los Angeles only. NORRIS, J., concurring in
part and dissenting in part.
CONCURBY: NORRIS; TROTT (In Part)
DISSENTBY: NORRIS; TROTT (In Part) TROTT
DISSENT: NORRIS, J., concurring in part
and dissenting in part.
Thane Carl Chew was stopped by a Los
Angeles Police Department ("LAPD") officer for a traffic violation
and identified himself by presenting his driver's license. When the officer
returned to his car to check Chew's record, Chew ran away. The officer pursued
Chew, who scaled several fences during the chase before ultimately hiding in a
scrapyard. During the subsequent search, which involved a number of officers
[**61] and several K-9 units, Officer Bunch unleashed a police dog named
Volker to find Chew. Defendants stipulated for summary judgment purposes that
Chew "tried to surrender peacefully once he realized he had been
found" by Volker. Defendants' Reply to Plaintiff's Opposition to
Defendants' Motion for Summary Judgment at 2 [hereinafter "Defendants'
Reply"]. Nevertheless, Volker seized Chew by biting him hard and holding
on to him. Volker was out of Officer Bunch's sight when he located Chew and
initiated his attack. Volker's attack left Chew with severe bite injuries on
his arm and torso. At the time Officer Bunch released Volker, Bunch knew only
that there were three outstanding warrants for Chew's arrest on unspecified
felony charges. Officer Bunch had no reason to believe Chew was armed.
The City of Los Angeles and the four
individual officers charged with the policymaking responsibility for the LAPD
canine policy (then-Chief Daryl Gates, Captain Patrick McKinley, and Sergeants
Donn Yarnall and Mark Mooring), n1 moved for summary [*1452] judgment on the
ground that the LAPD canine policy was constitutional. In their summary
judgment papers, they made no reference to the facts of Chew's [**62] seizure
by Volker. They merely submitted the LAPD's written canine policy and asked
the court to declare it constitutional as a matter of law. n2 The individual
policymaking defendants also argued that they were entitled to summary
judgment on the ground of qualified immunity. The district court awarded these
defendants summary judgment, which Chew appealed after the jury rendered a
verdict in his favor against Officer Bunch.
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-Footnotes- - - - - - - - - - - - - - - - - -
n1 I use the term "canine
policy" to include both the LAPD policy regarding the dogs' training as
well as its policy governing the officers' use of the dogs.
n2 See Defendants' Motion for Summary
Judgment at 1 ("The policy or procedure sued [sic] by the Los Angeles
Police Department to employ police dogs to find and to seize felony suspects
who refuse to surrender is not in violation of the Fourth Amendment . . .
."); id. at 8 ("THE POLICY OR PROCEDURE OF THE LOS ANGELES POLICE
DEPARTMENT IN ITS USE OF TRAINED POLICE DOGS IS CONSTITUTIONAL").
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Footnotes- - - - - - - - - - - - - - - - -
I
The Constitutionality of the LAPD [**63]
Canine Policy
A
This appeal requires us to judge the
constitutionality of the LAPD canine policy under a well established principle
of excessive force law: Deadly force may not be used to prevent the escape of
a suspect unless "the officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the
officer or others." Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. 2d 1,
105 S. Ct. 1694 (1985).
In Garner, police shot and killed a
burglary suspect trying to escape by climbing a backyard fence. The suspect,
Edward Garner, an eighth grader, was 15. He was unarmed. Ten dollars and a
stolen purse were found on his body. See Garner, 471 U.S. at 3-4. The issue
presented in Garner was the constitutionality of a Tennessee statute that
permitted the use of "all necessary means" to apprehend fleeing
suspects, whether dangerous or not. Id. at 4. The Supreme Court held that the
Tennessee statute violated the Fourth Amendment insofar as it permitted [**64]
the use of deadly force to prevent the escape of a felony suspect who
"poses no immediate threat to the officer and no threat to others."
Id. at 11. In explaining its decision, the Court said: "the use of deadly
force to prevent the escape of all felony suspects, whatever the
circumstances, is constitutionally unreasonable. It is not better that all
felony suspects die than that they escape." Id. (emphasis added).
In this appeal, we must apply Garner to
decide the constitutionality of a municipal policy which permits the use of
police dogs to prevent the escape of all felony suspects, regardless whether
the officer "has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or
others." Id. at 3. See Los Angeles Police Department Canine Unit Manual
at 5, 9, 38, 39, 41, 44, 62 [hereinafter "LAPD Canine Manual"]. n3
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-Footnotes- - - - - - - - - - - - - - - - - -
n3 The LAPD canine policy explicitly
directs that dogs be trained to "seize by biting a concealed suspect who
refuses to surrender even if he offers no physical resistance to the
dog." Defendants' Reply at 2. Pursuant to that policy, dogs are trained
to keep their bite-hold on a suspect unless and until they are called off by
their handlers. See Deposition of Donn Yarnall at 57, 59-61; Deposition of
Daniel Bunch at 26-27; Deposition of Patrick McKinley at 44-46.
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - - [**65]
The LAPD canine policy tracks the
Tennessee statute in that it does not differentiate between dangerous and
non-dangerous felony suspects. The only material difference between the LAPD
policy and the Tennessee statute is that the statute authorized the use of
"all means necessary," whereas the policy authorizes only the use of
dogs. If the use of the LAPD dogs constitutes the use of deadly force, Garner
would stand in the way of defendants' motion for summary judgment because the
LAPD canine policy would be unconstitutional, as the Tennessee statute was
unconstitutional, for permitting the use of deadly force to prevent the escape
of felony suspects who do not pose "a significant [*1453] threat of death
or serious physical injury to the officer or others." Garner, 471 U.S. at
3. Accordingly, defendants' summary judgment motion in its present form must
be denied because the critical question whether the use of LAPD dogs, as
trained and deployed, constitutes the use of deadly force cannot be decided as
a matter of law on the summary judgment record before us.
Deadly force is force that creates a
substantial risk of [**66] causing death or serious bodily harm. n4 A gun
plainly qualifies as deadly force. Whether a dog also qualifies depends on how
it is trained to behave when confronting a suspect. For example, a dog trained
to find a suspect and bark until the dog's handler arrives would plainly not
qualify as an instrument of deadly force. n5 But a German Shepherd that is
behaviorally conditioned to go directly for a suspect's jugular would surely
qualify as an instrument of deadly force.
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-Footnotes- - - - - - - - - - - - - - - - - -
n4 See Model Penal Code § 3.11(2)
(1962) (deadly force is "force which the actor uses with the purpose of
causing or which he knows to create a substantial risk of causing death or
serious bodily harm"); see also Mattis v. Schnarr, 547 F.2d 1007, 1009
n.2 (8th Cir. 1976) (en banc) (using Model Penal Code definition of deadly
force); Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir.
1985) (same); Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir.
1987) (same); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (same).
[**67]
n5 Chew stresses that how a dog is
trained and used is critical to the determination whether it constitutes a
deadly instrument. In his papers opposing summary judgment, Chew distinguishes
between two different ways of training and using police dogs: a "find and
bark" policy, where dogs are trained not to attack and bite a stationary,
non-resisting suspect, but instead to bark until the dog's handler arrives,
and a "find, bite, and hold" policy such as the LAPD's. See Chew
Opposition to Defendants' Motion for Summary Judgment at 5-9. In fact, Chew
has documented how, throughout the 1980s, the LAPD vacillated between these
two different policies. According to Chew, beginning in 1980, the LAPD trained
its police dogs to find, bite, and hold suspects even if the suspects were
stationary and not resisting the dog. In 1984, this policy was abandoned in
favor of a find and bark policy used by many other law enforcement agencies.
In 1988, the LAPD returned to its original find, bite, and hold policy. See
id. at 5-6. More recently, it has apparently returned to a find and bark
policy. See "LAPD Begins Warnings on Use of Dogs," L.A. Times, Sept.
30, 1992, at B3.
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Footnotes- - - - - - - - - - - - - - - - - [**68]
Whether a particular instrument of force
qualifies as an instrument of deadly force is a question of fact. n6 Indeed,
whether particular dogs as trained and deployed qualify as deadly weapons has
been uniformly treated as a question of fact for the jury. n7 On the
evidentiary [*1454] record before us, the question whether or not the LAPD
dogs, as trained to bite and hold suspects, constitute instruments of deadly
force is an issue of fact that cannot be decided at summary judgment.
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-Footnotes- - - - - - - - - - - - - - - - - -
n6 See, e.g., United States v.
Schoenborn, 4 F.3d 1424, 1433 (7th Cir. 1993) (whether an object constitutes a
dangerous weapon under 18 U.S.C. § 113 is a question of fact that necessarily
depends on the particular facts of each case); Robinette v. Barnes, 854 F.2d
909, 912 (6th Cir. 1988) ("Many law enforcement tools possess the
potential for being deadly force . . . . As any faithful reader of mystery
novels can attest, an instrument of death need not be something as obviously
lethal as a gun or knife. The ubiquitous 'blunt object' kills just as
effectively."); United States v. Moore, 846 F.2d 1163, 1166 (8th Cir.
1988) ("The question of what constitutes a 'deadly and dangerous weapon'
[under 18 U.S.C. § 111] is a question of fact for the jury.").
State cases are in accord. See, e.g.,
People v. Fuqua, 58 Cal. 245, 247 (1881) ("There may . . . be cases in
which [a weapon's] character . . . depends upon the manner in which it was
used, and thus becomes a mixed question of law and fact. In cases of the
latter kind the character of the weapon must be left to the determination of
the jury, under appropriate instructions."); People v. White, 212 Cal.
App. 2d 464, 465, 28 Cal. Rptr. 67 (1963) (holding that whether any particular
instrument constitutes a deadly weapon is "at most a mixed question of
law and fact to be determined by the jury upon proper instructions");
People v. Tophia, 167 Cal. App. 2d 39, 47, 334 P.2d 133 (1959); People v.
Russell, 59 Cal. App. 2d 660, 665, 139 P.2d 661 (1943) ("In determining
whether an instrument, not inherently deadly or dangerous, assumes these
characteristics, recourse may be had to the nature of the weapon, the manner
of its use, the location on the body of the injuries inflicted and the extent
of such injuries."); People v. Simpson, 134 Cal. App. 646, 651, 25 P.2d
1008 (1933). [**69]
n7 For example, in Marley v. City of
Allentown, 774 F. Supp. 343 (E.D. Pa. 1991), aff'd without opinion, 961 F.2d
1567 (3d Cir. 1992), the jury was instructed to decide whether or not the use
of a dog that caused serious injuries to a fleeing suspect constituted the use
of "deadly" force. Id. at 346. After the jury returned a verdict for
the suspect, the city moved for judgment notwithstanding the verdict on the
ground that the deadly force instruction should not have been given because
the weapon used was merely a dog. The district court denied the motion. See
id.; see also State v. Sinks, 168 Wis. 2d 245, 483 N.W.2d 286 (Wis. Ct. App.
1992); People v. Nealis, 232 Cal. App. 3d Supp. 1, 283 Cal. Rptr. 376 (1991);
State v. Bowers, 239 Kan. 417, 721 P.2d 268 (1986); People v. Kay, 121 Mich.
App. 438, 328 N.W.2d 424 (1982); Michael v. State, 160 Ga. App. 48, 286 S.E.2d
314 (1981).
In Nealis, 232 Cal. App. 3d Supp. 1, 283
Cal. Rptr. 376, the California Court of Appeals affirmed a conviction for
assault with a deadly weapon that involved the siccing of a Doberman Pinscher.
The court explained first that "whether a specific dog in a given case is
a 'deadly weapon or instrument' is ultimately a question of fact for the
jury." Id. at 4. After emphasizing that the conclusion "will depend
upon the circumstances of each case," the court reasoned that there was
sufficient evidence regarding the viciousness of the dog to support
defendant's conviction for assault with a deadly weapon. Id. at 6.
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Footnotes- - - - - - - - - - - - - - - - - [**70]
In their summary judgment papers,
defendants fail to address this question: whether the dogs they train to bite
and hold suspects are deadly force. They proffer no evidence whatsoever on the
magnitude of the risk that their dogs will kill or seriously injure suspects.
They provide no empirical data, for example, showing how frequently LAPD dogs
bite the suspects they confront or the seriousness of the injuries suspects
sustain when they are bitten. In short, defendants ask us to declare their
canine policy constitutional as written without the benefit of evidence on the
risk of harm the dogs represent.
In opposing the summary judgment motion,
Chew proffered considerable evidence that the LAPD dogs, as trained and
deployed, create a substantial risk of serious injury to suspects. He cites
deposition testimony of Sergeant Yarnall that Volker was not trained to grip
only a suspect's arm or leg, but instead was trained to bite whatever part of
the suspect's body was necessary for an effective hold. See Chew Supplemental
Memorandum of Points and Authorities in Opposition to Defendants' Motion for
Summary Judgment at 14 (citing Deposition of Yarnall at 33-35). Chew also
cites deposition [**71] testimony of then-Chief Daryl Gates that Gates was
"very much" aware that Volker, as trained, could maim and even kill
a suspect, Deposition of Daryl Gates at 21, n8 as well as testimony of Officer
Bunch acknowledging that dog bites can be "fatal" or cause
"serious and permanent" injuries, Deposition of Bunch at 30-32.
Furthermore, Bunch acknowledged that Chew's injuries were "pretty
severe," with "serious lacerations." Id. at 126. When read in a
light most favorable to Chew, this evidence raises a genuine issue of material
fact as to whether the LAPD dogs, as trained and deployed pursuant to the LAPD
canine policy, create "a substantial risk of causing death or serious
bodily harm." Model Penal Code § 3.11(2). n9
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-Footnotes- - - - - - - - - - - - - - - - - -
n8 In addition, Chew points to
deposition testimony of Sergeant Mooring who estimated that suspects suffer
bite injuries in over 40 percent of the cases in which police dogs are
deployed. Deposition of Mark Mooring at 72-75.
n9 Even if it is determined on remand
that the use of LAPD dogs such as Volker does not constitute the use of deadly
force, I agree with Judge Reinhardt that defendants would still not
necessarily be entitled to prevail in this action. The objective
reasonableness of the City's canine policy - as written and as applied to the
particular facts of this case - would still turn on a genuine issue of
material fact. See Opinion of Judge Reinhardt at 6965-66.
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Footnotes- - - - - - - - - - - - - - - - - [**72]
In sum, the Supreme Court held in Garner
that by authorizing the use of deadly force against all fleeing felons, the
Tennessee statute was based on an anachronistic brightline distinction between
felons and misdemeanants. As the Court made clear, the critical factor in
determining when the use of deadly force is warranted is not whether the law
classifies the suspect's crime as a felony or as a misdemeanor, but whether
the suspect poses a significant threat of harm to others. See Garner, 471 U.S.
at 11, 14, 19-20. The LAPD canine policy relies upon this same outdated and
constitutionally irrelevant distinction between felonies and misdemeanors. See
LAPD Canine Manual at 5, 9, 38, 62. Thus, if the LAPD dogs, as trained and
deployed, constitute instruments of deadly force, then the LAPD canine policy
violates the Fourth Amendment in exactly the same manner as did the Tennessee
statute because it fails to limit the application of deadly force to those
suspects who pose a significant threat to [*1455] others. Whether the LAPD
dogs constitute instruments of deadly force is a genuine issue of fact which
precludes [**73] summary judgment on the theory advanced by defendants - that
the LAPD canine policy, as written, is constitutional as a matter of law.
B
It is important to make clear that even
if the unleashing of Volker constituted the application of deadly force
against Chew, it would not have been excessive force if Officer Bunch had
probable cause to believe that Chew posed a significant threat of serious
bodily harm to themselves or to others. If he had probable cause to believe
Chew posed such a threat, the use of deadly force to prevent his escape would
have been objectively reasonable under Garner. n10 In that scenario, Chew
would have no standing to challenge the constitutionality of the LAPD canine
policy because he would have suffered no constitutional injury.
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-Footnotes- - - - - - - - - - - - - - - - - -
n10 "Where the officer has probable
cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force." Garner, 471 U.S. at 11-12.
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Footnotes- - - - - - - - - - - - - - - - - [**74]
Whether Officer Bunch had probable cause
to believe Chew posed a significant threat of serious physical harm to others
is an issue of fact that cannot be resolved on summary judgment. n11 Officer
Bunch knew that Chew was a felony suspect, but the nature of the felonies was
unknown. And after Garner, Chew's suspected felony status alone was
insufficient to create the probable cause necessary to use deadly force. See
Garner, 471 U.S. at 14 ("The assumption that a 'felon' is more dangerous
than a misdemeanant [is] untenable."). The evidence in the summary
judgment record does not establish as a matter of law that Chew posed any
greater threat than Edward Garner did. In neither case did the officer have
reason to believe the suspect was armed. In both cases, there was probable
cause to believe the fleeing suspect was a felon, but no reason to believe he
"posed a significant threat of death or serious physical injury to the
officer or others." Id. at 6986. Finally, in neither case did the
circumstances of the attempted escape add anything to suggest that the suspect
was dangerous. Garner ran from the home where the burglary [**75] was
committed through the backyard to a fence, which he had begun to climb when he
was shot. Chew made a break for it while talking peacefully to the officer who
had stopped him for a traffic violation, jumped several fences, and was hiding
in a scrapyard when he was found by Volker. Despite Chew's attempt to
surrender peacefully, see Defendants' Reply at 2, Volker seized Chew by biting
him repeatedly. On these facts, we cannot grant summary judgment to defendants
on the ground that Chew posed the requisite threat as a matter of law any more
than we could have decided that Garner posed the same threat as a matter of
law. n12
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-Footnotes- - - - - - - - - - - - - - - - - -
n11 Just as defendants stood mute in
their summary judgment papers on the specific issue whether LAPD dogs such as
Volker constitute instruments of deadly force, they stood mute on the issue
whether Chew posed a threat to others.
n12 On this issue, Judge Trott engages
in appellate factfinding in saying that Chew posed a significant threat of
serious bodily harm to others. See Opinion of Judge Trott at 7011-15.
Apparently, Judge Trott believes that police have probable cause to believe
that anyone with an outstanding felony arrest warrant who flees by jumping
fences and by hiding in places such as scrapyards poses such a threat. See id.
at 7014, 7029. In support of his factfinding, Judge Trott approvingly quotes
the testimony of Sergeant Yarnall, who stated: "You cannot assume that
the man is not armed. You will die." Id. at 7013 (citing Deposition of
Yarnall at 102). Yarnall's testimony is consistent with the LAPD canine policy
which specifically instructs officers to assume that all felony suspects are
armed. See LAPD Canine Manual at 41.
However, the position of Sergeant
Yarnall, the LAPD Canine Manual, and Judge Trott is inconsistent with Garner,
which holds that police cannot automatically assume that all fleeing felony
suspects pose a significant threat of serious physical harm to others. See
Garner, 471 U.S. at 21 (holding unconstitutional the use of deadly force
against a felony suspect not known to be armed who fled the scene of a
burglary by scaling a fence). Whether Judge Trott personally believes this
Supreme Court law is unsympathetic to the realities of modern law enforcement
is irrelevant to our disposition of this appeal.
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Footnotes- - - - - - - - - - - - - - - - - [**76]
C
In echoing defendants' refrain that the
LAPD's canine policy is constitutional as a [*1456] matter of law, Judge Trott
raises the specter that our decision today may lead to "the elimination
of the use of police dogs in this circuit to find hiding felony
suspects," no matter how the dogs are trained or deployed. Opinion of
Judge Trott at 7008-9. To dramatize the importance of well-trained police dogs
to law enforcement and the public safety, Judge Trott recounts the story of
Pascha, the police dog that helped the LAPD apprehend a career violent
criminal known as the "Balcony Burglar." Id. at 7034. However, the
heroic story of Pascha has no bearing on the question before us: whether on
this record defendants are entitled to summary judgment.
Like Judge Trott, I recognize that
Pascha was a great hero. Also like Judge Trott, "I do not believe that
the deployment per se of police dogs to find hiding felony suspects is
unreasonable." Id. at 7032. n13 However, I don't buy Judge Trott's
inflammatory rhetoric and doomsday prediction that denying defendants summary
judgment will prevent the use of all police dogs in all instances. Lest my
opinion be misinterpreted, I emphasize [**77] two points.
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-Footnotes- - - - - - - - - - - - - - - - - -
n13 On this point, Judge Trott's
reasoning suffers a breakdown in logic. He fallaciously assumes that just
because the use of police dogs is not always unreasonable, the use of police
dogs is always reasonable. Opinion of Judge Trott at 7032.
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Footnotes- - - - - - - - - - - - - - - - -
First, I am not saying that all police
dogs, regardless of how they are trained and deployed, constitute deadly
force. I am saying only that whether the police dogs, trained by the LAPD to
bite and hold, are instruments of deadly force is an issue of fact that cannot
be resolved on the summary judgment record before us. There are obviously many
ways to train and deploy a police dog so that it is not deadly force, one of
which is the "find and bark" policy that is apparently once again in
use by the LAPD. See supra note 5. Whether or not a dog is permitted to roam
out of sight of its handler, as Volker was, would be another factor to
consider.
Second, I am not saying that the use of
a police dog, even if trained to deliver deadly force, is necessarily
unreasonable. [**78] I am saying only that under Garner, if a dog is trained
to deliver deadly force, then the Fourth Amendment requires that its use be
limited to those situations where there is probable cause to believe that the
suspect poses a significant threat of death or serious bodily harm. In the
case of the Balcony Burglar, which involved the pursuit and apprehension of a
person suspected of committing numerous murders, rapes, and robberies,
Pascha's use, whether deadly force or not, plainly did not violate the Fourth
Amendment.
II
The City's Monell Liability
In resting its summary judgment
motion solely on the argument that the LAPD's "find, bite, and hold"
canine policy is constitutional as a matter of law, the City conceded that
Officer Bunch acted in accordance with LAPD policy when he unleashed Volker to
hunt down and seize Chew. See Opinion of Judge Reinhardt at 6968 n.13. On
appeal, following the jury verdict that Officer Bunch violated Chew's Fourth
Amendment rights, the City has changed its tune. It now argues that Officer
Bunch's actions constituted nothing "more than . . . a random act or
isolated event that resulted in a constitutional rights violation."
Appellees' [**79] Br. at 31. In other words, it argues that it is not liable
for Chew's dog bite injuries because even if Volker's use in this case
constituted an unreasonable seizure in violation of the Fourth Amendment, the
City was not the "moving force" behind the violation. Id. at 32
(stating that "there is no evidence of any policy to engage in the
actions attributed to the officer"). See Monell v. Department of Social
Servs. of City of New York, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct.
2018 (1978) (a city is liable only if city policy "causes" or is
"the moving force" behind a constitutional violation).
The City's appellate position is a
180-degree reversal from its stipulated position below that Officer Bunch's
use of Volker to seize Chew complied fully with the LAPD canine policy. I
agree with Judge Reinhardt that we must hold the City to the concession it
made for summary judgment purposes, see [*1457] Opinion of Judge Reinhardt at
6967-69, n14 and reject the City's new Monell position - which it takes for
the first time on appeal - distancing itself from Officer Bunch's conduct. n15
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-Footnotes- - - - - - - - - - - - - - - - - -
n14 I also agree with Judge Reinhardt
that the verdict against Officer Bunch does not moot or preclude Chew's claims
against the remaining defendants. See Opinion of Judge Reinhardt at 6953,
6955-57. [**80]
n15 On remand, it is inevitable that the
City will repudiate the stipulation it made for summary judgment purposes that
Officer Bunch released Volker pursuant to LAPD policy. They have already tried
to do so on appeal. The City's strategy makes the deadly force issue
critically important to the proper resolution of Chew's claims. Under the
Garner deadly force analysis, if the LAPD dogs are found to be instruments of
deadly force, then the policy itself, insofar as it authorized the use of
deadly force against non-dangerous felony suspects, would be unconstitutional.
In that event, Officer Bunch's conduct would have been authorized by an
unconstitutional canine policy.
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Footnotes- - - - - - - - - - - - - - - - -
III
Qualified Immunity n16
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-Footnotes- - - - - - - - - - - - - - - - - -
n16 Although Judge Reinhardt and Judge
Trott constitute a majority on the qualified immunity issue, I refer to the
majority opinion as the "Opinion of Judge Reinhardt" for clarity.
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The individual defendants (Gates,
McKinley, Yarnall, [**81] and Mooring), who had the policymaking
responsibility for the LAPD canine policy, argue that even if the policy did
violate the Fourth Amendment, they would have no liability for Chew's injuries
because they enjoy qualified immunity. The doctrine of qualified immunity
shields "government officials performing discretionary functions . . .
from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L.
Ed. 2d 396, 102 S. Ct. 2727 (1982).
A
The doctrine of qualified immunity
requires a two-prong inquiry: "1) Was the law governing the official's
conduct clearly established? 2) Under that law, could a reasonable officer
have believed the conduct was lawful?" Act Up!/Portland v. Bagley, 988
F.2d 868, 871 (9th Cir. 1993). The first prong involves a pure question of law
for the court to decide, Mendoza v. Block, No. 92-56225, slip op. 5619,
5626-27 (9th Cir. May 31, 1994); the second prong involves a mixed question of
fact and law requiring [**82] the application of the clearly established law
to the facts of the particular case.
1
The first prong of the qualified
immunity test requires us to ask whether the Fourth Amendment principles
governing the use of police dogs to prevent suspects from escaping were
clearly established at the relevant time. In Mendoza, also a dog bite case,
the officers argued that the law governing the use of police dogs was not
clearly established because of the paucity of case law specifically addressing
the use of dogs in police work. We rejected that argument: The deputies argue
that the law guiding the use of police dogs at the time Mendoza was bitten was
not clearly established. They point to the lack of case law addressing the use
of dogs to locate fleeing suspects, and argue that under the circumstances
they could not reasonably have known how to pattern their conduct so as to
avoid liability.
* * * This does not mean, however, that
there was no clearly established law that would indicate to the deputies that
a constitutional right might be violated when using a dog during an arrest.
Mendoza argues that the use of a police dog in this case constituted excessive
force. Officers [**83] have a considerable amount of guidance from the courts
in the permissible use of force while making an arrest. It is clearly
established that "the use of excessive force by police officers in an
arrest violates the arrestee's Fourth Amendment right to be free from an
unreasonable seizure." White v. Pierce County, 797 F.2d 812, 816 (9th
Cir. 1986). "The reasonableness of [*1458] force is analyzed in light of
such factors as the requirements for the officer's safety, the motivation for
the arrest, and the extent of the injury inflicted." Id. This analysis
applies to any arrest situation where force is used, whether it involves
physical restraint, use of a baton, use of a gun, or use of a dog. We do not
believe that a more particularized expression of the law is necessary for law
enforcement officials using police dogs to understand that under some
circumstances the use of such a "weapon" might become unlawful. For
example, no particularized case law is necessary for a deputy to know that
excessive force has been used when a deputy sics a canine on a handcuffed
arrestee who has fully surrendered and is completely under control. An officer
is not [**84] entitled to qualified immunity on the grounds that the law is
not clearly established every time a novel method is used to inflict injury.
See Anderson, 483 U.S. 635 at 640. We therefore hold that the deputies' use of
the police dog is subject to excessive force analysis, and that this law is
clearly established for purposes of determining whether the officers have
qualified immunity. Id. at 5628-30 (emphasis added).
Mendoza is controlling authority that
the first prong of the qualified immunity test is satisfied in this case: the
use of LAPD dogs is governed by established principles of excessive force law.
It is a basic tenet of excessive force law that deadly force may be used only
if necessary to prevent the escape of a suspect who poses "a significant
threat of death or serious physical injury." Garner, 471 U.S. at 3. Thus,
Garner held unequivocally that deadly force cannot be used to prevent the
escape of all felons regardless of the danger they pose to others. Deadly
force may only be used to prevent the escape of some felons - those [**85] who
pose a serious threat to the safety of others.
2
The second prong of the qualified
immunity inquiry requires us to apply the clearly established principles of
excessive force law to the facts of the particular use of force in this case.
Here we must ask whether, in light of the clearly established law governing
the use of force, a reasonable officer in defendants' policymaking position
could have believed it constitutional to adopt a policy permitting the use of
dogs to bite and hold felony suspects, regardless whether they posed "a
significant threat of death or serious physical injury to the officer or
others." Id. at 6986.
In Garner, the Court held that a
Tennessee statute violated the Fourth Amendment to the extent it permitted the
use of deadly force to prevent the escape of felons who did not pose a
significant threat of serious harm to others. After Garner, it could not have
been clearer to the defendants that the LAPD canine policy was
unconstitutional to the extent it authorized the use of deadly force to
prevent the escape of felony suspects who did not pose the requisite threat.
Because the LAPD policy does not limit the use of police dogs to felony [**86]
suspects reasonably believed to be dangerous, the question whether a
reasonable officer could have believed the LAPD canine policy was
constitutional turns on whether a reasonable officer could have believed the
use of LAPD dogs such as Volker did not constitute the use of deadly force.
That is a question we cannot decide on
the summary judgment record before us. As I have already explained, a genuine
issue of fact exists whether the LAPD dogs, as trained and deployed,
constitute deadly force. See supra at 6989-91. For emphasis, I will repeat
that defendants proffered no evidence in support of their summary judgment
motion regarding the danger posed by the LAPD dogs, such as evidence of the
type, frequency, and severity of injuries they have inflicted. On the other
hand, Chew offered evidence such as the deposition of ex-Chief Gates, who
testified that he was "very much" aware that Volker, as trained,
could maim and even kill a suspect. See supra at 6989-90. Accordingly, because
we cannot decide whether a reasonable policymaker could have believed that the
LAPD dogs were not deadly force, we cannot decide that defendants are entitled
to summary judgment on the [*1459] ground [**87] they rely upon in their
motion - that a reasonable officer could have believed the LAPD canine policy
was constitutional as written. n17
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-Footnotes- - - - - - - - - - - - - - - - - -
n17 It is important to realize that as
policymakers, the defendants must be held to a stricter standard of
accountability than officers forced to make snap judgments in the heat of
battle on today's dangerous streets. We are not addressing here the qualified
immunity of a handler who in a split-second decision releases his dog against
a suspect who shows a glint of metal in his hand. Instead, we are addressing
the qualified immunity of high-level city officials entrusted with the weighty
responsibility to study, analyze, draft, and implement an effective police
policy that does not violate the Constitution.
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Footnotes- - - - - - - - - - - - - - - - -
B
Defendants' claim of qualified immunity
is based almost exclusively on the Sixth Circuit's decision in Robinette v.
Barnes, 854 F.2d 909 (6th Cir. 1988). In that case, a police dog bit a
suspect's neck and killed him, an event that the Sixth Circuit [**88] said was
an "extreme aberration." Id. at 912. n18 On the record before it,
the court held that that particular dog did not constitute deadly force, and
that the use of non-deadly force was reasonable under the totality of
circumstances of the case. See id. at 912-13. Alternatively, the court held
that even if the dog was a deadly weapon, its use would have been reasonable
because the suspect "threatened [the officer's] safety and the safety of
the other officers present." Id. at 913. Defendants here argue they are
entitled to qualified immunity because Robinette was the only relevant federal
court of appeals opinion on the books when they adopted the LAPD canine
policy.
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-Footnotes- - - - - - - - - - - - - - - - - -
n18 "Although we cannot ignore the
fact that, in this case, the use of a police dog did result in a person's
death, we also cannot ignore the evidence in the record which indicates that
this tragic event was an extreme aberration from the outcome intended or
expected." Id.
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Footnotes- - - - - - - - - - - - - - - - - [**89]
In Mendoza, we discounted Robinette as
authority on the issue of qualified immunity in other dog bite cases because
it was "fact-specific." See Mendoza, slip op. at 5629 ("It is
therefore questionable whether fact-specific case law guided the deputies' use
of a police dog when they arrested Mendoza."). We did not regard
Robinette as an automatic guarantee of qualified immunity to officers in other
dog bite cases. Instead, we affirmed the district court's award of qualified
immunity because the district court had made a finding of fact, following an
evidentiary hearing, that "Mendoza was fleeing arrest for a bank robbery
. . . the deputies believed he was armed . . . [and] the deputies could
reasonably have believed he posed a danger not only to themselves but also to
the property owners." Id. at 5631. Under these findings of fact, the use
of police dogs to prevent Mendoza's escape would satisfy the requirements of
Garner even if the dogs constituted deadly force. See Garner, 471 U.S. at
11-12.
My colleagues seem to think that after
Robinette, a reasonable officer could have believed it was constitutional
[**90] to deploy German Shepherds trained to bite and hold even non-dangerous
suspects. Implicit in their reasoning is the assumption that it follows, as
the night the day, that once a particular dog is judicially determined to be
an instrument of non-deadly force, a reasonable officer could believe that no
dog is an instrument of deadly force, however trained and deployed.
My analysis rejecting defendants' claim
of qualified immunity based on Robinette is supported not only by Mendoza, but
also by Marley v. City of Allentown, 774 F. Supp. 343 (E.D. Pa. 1991), aff'd
without opinion, 961 F.2d 1567 (3d Cir. 1992). Because the Marley court
applied qualified immunity analysis to the precise issue presented in this
case - a claim of qualified immunity based on Robinette - it is instructive to
lay out Marley in some detail.
Exactly as in this case, the officer in
Marley staked his claim of qualified immunity on Robinette, moving for a
directed verdict on the ground that the Sixth Circuit "said that the use
of a police dog was not deadly force." Transcript of district court
proceedings in Marley v. City [**91] of Allentown, July 2, 1991, at 188-89.
The district court denied the motion, and the case went to the jury with the
instruction that "deadly force means force that's likely to kill or
likely to seriously injure. You heard about the training of the [*1460] police
dog and how it's handled. You need to determine whether or not that was deadly
force under that definition." Id. at 200. Following the jury's verdict
against the officer, he moved for judgment notwithstanding the verdict, again
arguing that he was entitled to qualified immunity on the basis of Robinette.
In denying the motion, the Marley court
used the same level of generality we later approved in Mendoza to determine
whether the applicable law was clearly established at the time of the
officer's conduct. The Marley court refused to limit itself to police dog
cases and instead considered the qualified immunity claim in light of the
generic excessive force principles laid down in cases such as Garner. The
Marley court observed that "in Robinette, the . . . Sixth Circuit merely
applied [Garner] to the facts of the case before it" and concluded that
there was no Fourth Amendment violation. [**92] 774 F. Supp. at 345. The
Marley court then explained that the application of Garner to the facts of its
dog bite case led to a different result than the result in Robinette.
Accepting the jury finding that the dog represented deadly force, the court
held that in light of Garner, no reasonable officer could have believed it was
lawful to use the dog to seize a fleeing suspect who "one could
reasonably conclude . . . posed no threat to the officer." Id.
Marley's qualified immunity methodology
- looking beyond dog bite cases to generic principles of excessive force
jurisprudence and then applying those principles to the facts of the
particular case - is not only correct, it is mandated by our recent decision
in Mendoza. Mendoza teaches that under the first prong of qualified immunity
analysis, generic principles of excessive force law apply regardless whether
the particular instrumentality of force involves "physical restraint, use
of a baton, use of a gun, or use of a dog." Mendoza, No. 92-56225, slip
op. at 5024. Garner provided explicit guidance for the LAPD policymakers that
if they train dogs to bite and seize suspects [**93] in a way that creates a
"substantial risk of causing death or serious bodily harm," Model
Penal Code § 3.11(2), they had better restrict their use to suspects
reasonably believed to be dangerous.
Throughout Part IV.B.2 of Judge
Reinhardt's opinion, my colleagues scramble their qualified immunity analysis
by failing to consider separately the two independent prongs of the qualified
immunity test. See supra at 6996, 6998-99. They do so because they fail to
recognize that prong one - the "clearly established" law prong -
raises a pure question of law that does not turn on the particular facts of
the case; the facts do not enter into the analysis until we reach the second
prong, where we apply the established law - in this case generic principles of
excessive force law - to the facts. This analytical flaw is demonstrated by
the way they criticize my use of Mendoza and Marley as precedent. See Opinion
of Judge Reinhardt at 6976-78. I cite both cases as authority that the law
governing all excessive force cases, regardless of the instrument used to
apply the force, is "clearly established." Indeed, I cite Mendoza as
controlling circuit authority that the first prong [**94] of the qualified
immunity inquiry is satisfied in excessive force cases by the generic
principles established in Garner. Mendoza should foreclose any further
discussion on the first prong. In criticizing my limited use of Mendoza and
Marley as precedent, my colleagues discuss the facts of those cases, as well
as the facts of Chew's case, in a way that injects facts into what should be a
pure question of law: "Was the law governing the official's conduct
clearly established?" Act Up!, 988 F.2d at 871. The result is a
fundamental and far-reaching error in deciding the qualified immunity issue at
the wrong level of generality. n19
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-Footnotes- - - - - - - - - - - - - - - - - -
n19 Compare Opinion of Judge Reinhardt
at 6977-78 ("Here, we must determine whether it was clearly established
that it was unlawful to use police dogs to search for and apprehend concealed
suspects by biting and seizing them.") (emphasis added) with Mendoza, No.
92-56225, slip op. at 5629 ("It is clearly established that 'the use of
excessive force by police officers in an arrest violates the arrestee's Fourth
Amendment right . . . .' This analysis applies to any arrest situation where
force is used, whether it involves physical restraint, use of a baton, use of
a gun, or use of a dog. We do not believe that a more particularized
expression of the law is necessary . . . .") (citation omitted) and
Marley, 774 F. Supp. at 345-46 (the officer "should have been aware of
the constitutional constraints enunciated in Garner, and it was not
objectively reasonable for him to think that unleashing a trained attack
dog" to apprehend this fleeing suspect comported with Garner).
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Footnotes- - - - - - - - - - - - - - - - - [**95] [*1461]
My colleagues also fail to recognize
that I make use of Mendoza and Marley as authority that the second prong of
the qualified immunity test is fact-specific. In Mendoza, the district court
granted qualified immunity on the basis of facts it found at a pre-trial
evidentiary hearing; in Marley, the jury returned a verdict against the
officer. The district court subsequently denied the officer's motion for JNOV.
In other words, even though both were dog bite cases, the Mendoza and Marley
courts reached different results on the qualified immunity issue by applying
established generic principles of excessive force law to the particular facts
of the case. n20
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-Footnotes- - - - - - - - - - - - - - - - - -
n20 My colleagues miss the point when
they say that Marley could not have guided the Chew defendants in adopting the
LAPD canine policy because that case was decided after the incident in this
case. I do not cite Marley for that purpose; I cite it for its careful
analysis of a similar plea of qualified immunity based on Robinette - first,
that Marley considered generic excessive force law from cases such as Garner;
second, that Marley recognized that particular dogs could be instrumentalities
of deadly force and that that fact question is one for the jury; and third,
that Marley discounted the value of the fact-specific case of Robinette in its
qualified immunity analysis.
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Footnotes- - - - - - - - - - - - - - - - - [**96]
C
Another reason offered by my colleagues
for cloaking the policymaking officers with qualified immunity is that the
LAPD canine policy was "a longstanding official policy, which was
well-known and similar to the policies employed in many police departments
throughout the nation, none of which had been judicially questioned."
Opinion of Judge Reinhardt at 6978. First, there is no basis in the record for
the majority's assertion that the policy was "well-known" and
"similar" to other canine policies. Second, an unconstitutional
police practice does not metamorphose into a constitutional practice by
escaping judicial scrutiny over time. The happenstance that a particular
police practice has not yet been "judicially questioned" is
meaningless. Since courts do not sua sponte review police practices, the fact
that a practice has not yet been "judicially questioned" may simply
mean that an actual case or controversy that squarely presents the issue has
not found its way into a published opinion.
To give the majority its due, it at
least acknowledges that if a police policy is not "'meaningfully
distinguishable'" from a policy that has been declared unlawful, then
qualified immunity [**97] may not be invoked no matter how widespread and
longstanding the policy is. Opinion of Judge Reinhardt at 6979 (quoting Wood
v. Ostrander, 879 F.2d 583, 592 (9th Cir. 1989)). What the majority fails to
explain is how the use of LAPD dogs - trained to roam beyond the handler's
control, bite hard, and seize even non-resisting, non-dangerous suspects - is
"meaningfully distinguishable" for Fourth Amendment purposes from
the use of guns or other deadly weapons against non-dangerous suspects.
From the victim's perspective, deadly
force is deadly force, regardless of whether the force comes from the muzzle
of a gun or the muzzle of a dog. Nor does it matter from the perspective of
the law. The Fourth Amendment requires that an officer's use of force be
reasonable regardless whether the force involves "physical restraint, use
of a baton, use of a gun, or use of a dog". Mendoza, No. 92-56225, slip
op. at 5024. Garner specifically limits the use of deadly force regardless of
the instrumentality used. Garner, 471 U.S. at 31 (O'Connor, J., dissenting)
(criticizing the majority's failure "to [**98] limit its holding to the
use of firearms" only); see also Mathis v. Parks, 741 F. Supp. 567, 572 (E.D.N.C.
1990) ("Garner makes clear that there are limits to the use of deadly
force against arrestees, regardless of the nature of the instrumentality used
in applying the force."). Because defendants have failed to produce a
scintilla of evidence on the issue of the frequency and severity of the
injuries caused by LAPD dogs, I cannot accept my colleagues' unexplained
assumption that LAPD dogs such as Volker are "meaningfully
distinguishable" from a gun in [*1462] that they pose no
"substantial risk of causing death or serious bodily harm." Model
Penal Code § 3.11(2).
In sum, after Garner, no reasonable
officer could believe it lawful to authorize the use of deadly force against
suspects who do not pose "a significant threat of death or serious
physical injury to the officer or others." Garner, 471 U.S. at 3.
Accordingly, the individual defendants' claim of qualified immunity must
necessarily turn on the factual question whether a reasonable policymaker
could have believed that dogs [**99] trained pursuant to the LAPD canine
policy did not pose "a substantial risk of causing death or serious
bodily harm." Model Penal Code § 3.11(2). In their motion for summary
judgment, defendants stand mute on this question. They merely ask that their
policy, as written, be held constitutional as a matter of law. At this stage
of the litigation we cannot cloak the individual defendants with qualified
immunity since there is no evidence that would permit us to determine that a
reasonable officer could have believed LAPD dogs such as Volker do not
constitute deadly force.
CONCLUSION
Defendants are not entitled to summary
judgment on the ground that the LAPD canine policy, as written, is
constitutional as a matter of law. Furthermore, the City is not entitled to
summary judgment on a Monell defense because, for purposes of summary
judgment, it admitted to being the moving force behind Officer Bunch's
deployment of Volker. Finally, the individual defendants who are responsible
for the LAPD canine policy are not entitled to summary judgment on the basis
of qualified immunity.
TROTT, Circuit Judge, Concurring and
Dissenting:
My respected colleagues have come to
some unsupportable conclusions [**100] about this case that are irreconcilable
with the real world of police work and its hazards. In so doing, I believe
they have inappropriately hobbled the police in this circuit with respect to
the use of a valuable tactic in connection with the difficult and perilous
task of pursuing and arresting felons who seek to evade arrest by secreting
themselves in menacing environments. Thus, I am unable to join in the part of
Judge Reinhardt's opinion holding that the initial release of Volker by
Officer Bunch constituted a use of unreasonable force. n1
- - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n1 I do concur, however, in the part of
Judge Reinhardt's opinion holding that defendants Gates, McKinley, Mooring,
and Yarnell are entitled to qualified immunity. Judge Reinhardt's introduction
to his opinion correctly characterizes my views.
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
I
At this moment in history, criminals are
succeeding in doing what no foreign power has ever been able to accomplish:
they have invaded our streets, parks, beaches, and backyards and made many
feel like prisoners in their own homes. [**101] More and more, criminals are
carrying and using firearms. This appalling condition is a matter of common
knowledge and concern. As I write this dissent, Mayor Sharon Pratt Kelly of
Washington, D.C., our nation's capitol no less, has asked the President of the
United States to call out the National Guard to combat crime in her city. The
President himself says that violence is "tearing the heart out of
America." Jonathan Alter, one of our nation's keenest observers,
describes our condition this way:
The paradox of the American gun culture
is that it is undermining the very values it was meant to protect. Remember
Franklin Roosevelt's famous Four Freedoms? These were what we ostensibly
fought World War II over. One of them was "freedom from fear." That
battle has been lost. As crime grows arithmetically, fear grows geometrically.
Even outside major cities, ours is now a land of real freedom only during
daylight and in certain neighborhoods. We've reached a point in recent years
where otherwise optimistic, spontaneous people believe they must constantly
peer over their shoulders as if they were being pursued by the secret police
in some old communist regime. [*1463]
This routinized [**102] fear is now so
much a part of American life that we've begun to take it for granted. We
instinctively avoid large sections of cities, using mental maps in our heads
that are unavailable to tourists. In my case, it was a stay in Japan that
jolted me into recognizing how much freedom I'd lost at home. Japan is crowded
and culturally stifling, but it's possible to walk in a park in Tokyo at
midnight without the slightest trepidation, just as it was here as recently as
the 1950s. This freedom felt strange to me, as if a state of fear about
physical safety is normal. And it is. Barricading oneself at home all night is
now natural; wandering around freely and alone - once the quintessential
American experience - is foolhardy. Roads like Route 66 once symbolized
freedom; they now symbolize danger. Even a time-honored cultural tradition
like flipping the bird to some idiot driver is now in jeopardy. Instead of
just screaming back, he might blow your head off. Jonathan Alter, There's a
War On at Home, Newsweek, Sept. 27, 1993, at 42. Given this climate, the job
of a police officer has never been more difficult, or more dangerous.
Judge Reinhardt finds fault with my
interest in relating [**103] our decision in this case to the world around us.
I do so because I am not comfortable entombed in the purity of abstractions as
we decide in Constitutional terms whether a tactic used by the police to
apprehend hiding felons is reasonable. I believe that before judges tucked
away behind magnetometers and deputy marshals in the safety of courtrooms tell
police officers and hiding felony suspects which seizures are reasonable and
which are not, we must integrate into our decision making process a thorough
understanding of the context of the issue and all the practical ramifications
of our holding, one of which may be the elimination of the use of police dogs
in this circuit to find hiding felony suspects. Because of fear of lawsuits
and liability, this decision may be fatal to canine units, and by their
demise, the ability of police to combat criminals will be seriously hampered.
See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1992) ("Finally, there is
the danger that fear of being sued will 'dampen the ardor of all but the most
resolute, or the most irresponsible [public officials], in their unflinching
discharge of [**104] their duties.'") (citation omitted). Thus, it seems
to me that the task of interpreting the principles in our Constitution and
applying them to various conditions and circumstances requires an
understanding of human existence that is informed by more than law books.
Furthermore, I do not believe that
grounding a holding on this issue in the realities of our times is either
"succumbing to hysteria" or "joining the pack." The
"pack," as Judge Reinhardt pejoratively chooses to call them, appear
to me to include decent people genuinely worried about the world in which they
and their children live; and the "hysteria" sounds to me like
appropriate concern about their safety threatened by rampaging criminals. I
doubt that we serve the People well by dismissing them as an hysterical pack
or by telling them that their elected leaders speaking out on this subject are
hypocrites.
Ample precedent exists to support my
approach to deciding whether something is unreasonable under the Fourth
Amendment. Part of the genius of that amendment is its use of principles that
are flexible enough to respond to evolving challenges and conditions. Three
examples should suffice to make this point.
When the Supreme [**105] Court decided
in New Jersey v. TLO, 469 U.S. 325 (1985) that searches of schoolchildren by
teachers and administrators shall depend not on probable cause, but "on
the reasonableness, under all the circumstances, of the search," id. at
339, the Court relied greatly on information about contemporary conditions in
schools. The Court said, "Maintaining order in the classroom has never
been easy, but in recent years, school disorder has often taken particularly
ugly forms: drug use and violent crime in the schools have become major social
problems." Id. at 339.
The Court used the same approach in
Michigan State Police v. Sitz, 496 U.S. 444 (1990) when it decided that
sobriety checkpoints to combat drunk driving did not entail unreasonable
[*1464] seizures of motorists. In rejecting arguments that such seizures were
unreasonable under the Fourth Amendment, Chief Justice Rehnquist said, No one
can seriously dispute the magnitude of the drunken driving problem or the
State's interest in eradicating it. Media reports of alcohol related death and
mutilations on [**106] the nation's roads are legion. The anecdotal is
confirmed by the statistical. "Drunk drivers cause an annual death toll
of over 25,000 and in the same time span cause nearly one million personal
injuries and more than five billion dollars in property damage." Id. at
451 (citations omitted). In a concurring opinion, Justice Blackmun observed
that "for the period from 1900 through 1969 motor vehicle deaths in the
United States exceeded the death toll of all our wars," adding that he
was "pleased . . . that the Court is now stressing this tragic aspect of
American life." Id. at 456.
Finally, the Supreme Court ended
segregation by race in public schools based on a look at the reality of
segregated education, not merely by resorting to theorization. The Court said,
"In approaching this problem, we cannot turn the clock back to 1868 when
the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v.
Ferguson was written. We must consider public education in the light of its
full development and its present place in American life throughout the Nation.
Only in this way can it be determined if segregation in public [**107] schools
deprives these plaintiffs of the equal protection of the laws." Brown v.
Board of Education of Topeka, 347 U.S. 483, 492-493 (1954).
Thus, just as contemporary reality has
been used to justify school searches, drug testing, sobriety check points, and
magnetometers in airports, I believe contemporary reality has a place in
deciding this case. No one "likes" these invasive techniques, but
they have become indispensable in our attempt to preserve our liberties from
criminals.
II
Chew was a fugitive. He was one of the
class of people Mayor Kelly, President Clinton, and Jonathan Alter are
concerned about. When braced by the police, he ran and hid in a scrapyard, a
place filled with iron and steel implements easily used as weapons. He wedged
himself between large steel dumpsters and covered his hiding place with
cardboard to avoid being seen by a police helicopter hovering overhead. His
own attorney has described this scrapyard as "massive." Three felony
warrants were outstanding for Chew's arrest. The police knew about these
warrants. No one could misunderstand Chew's motivation in fleeing. Yet, the
majority claims [**108] this set of facts and circumstances would support a
finding that Chew posed no immediate safety threat to anyone. Not only is this
bizarre claim monumentally mistaken, but it translates into a holding that
will make more perilous the work of police officers patrolling our streets.
Every police officer alive today in the
United States of America understands that a suspected felon wanted by the law
is one of the most dangerous criminals at large in our communities. The walls
of law enforcement memorials across our nation are inscribed with the names of
unsuspecting officers slain in routine traffic stops by persons like Chew. To
claim that Chew engaged in no threatening behavior while hiding in a massive
scrapyard badly misunderstands the threat he posed to those sworn to apprehend
him. Such an hallucination is impeached many times over by the record. Police
officers engaged in searches for hiding felony suspects know that their own
lives are at risk. I respectfully believe the majority opinion does precisely
what Justice Oliver Wendell Holmes cautioned against when he wisely said,
"We must think things not words, or at least we must constantly translate
our words into the facts [**109] for which they stand, if we are to keep to
the real and the true." Oliver W. Holmes, Law in Science and Science in
Law, in Collected Legal Papers 210, 238 (1920).
This case involves more than just
stopping a fleeing suspected felon in flight. Yes, Chew was in a state of
flight, but he had temporarily hidden in a dangerous environment, [*1465]
demonstrating an unwillingness to surrender. He was using concealment as a
tactic to remain at large. Now, the duty of the police was to go into that
environment, physically arrest him, and bring him out. This challenge is much
different from chasing a running suspect, and it goes into dimensions that are
distinguishable from and more demanding than those reviewed by the Supreme
Court in Tennessee v. Garner, 471 U.S. 1 (1985). See Robinette v. Barnes, 854
F.2d 909, 913-14 (6th Cir. 1988) (commenting on the difference between a
fleeing and a hiding felony suspect). Indeed, Tennessee v. Garner permits the
use of significant force to apprehend a fleeing felon "where the officer
has probable cause to believe that the suspect poses a threat of serious
[**110] harm to the officer or to others. . . ." Id. at 11. This is
precisely the situation faced by the officers in this case, and I believe the
force used to seize Chew was patently reasonable.
Once hidden, a fleeing suspected felon
has an unmistakable advantage against an approaching officer. The potential
for ambush under these circumstances is enormous. Ferreting out hiding
criminals is a precarious task. As Sgt. Yarnell, who started the Los Angeles
Police Department K-9 Unit, testified in his deposition, "To me, it's a
very unsafe situation to go into a location where a suspect has concealed
himself, especially in today's day. There are so many armed people out there,
it's very, very dangerous." Any police officer who would walk unprotected
into such an environment would only be doing so on the set of a television
show. When a real police officer is assaulted, real injury can occur. This is
precisely why the police used trained dogs. The dogs can quickly find hiding
criminals, and thankfully, they can do so without endangering the lives of the
police officers for whom the dogs work. As Sgt. Yarnell testified, "Dogs
[can] search much more efficiently, much faster, and with greater [**111]
safety than a human being."
As noted by the district court,
"Chew fled before he could be checked for weapons." Chew v. Gates,
744 F. Supp. 952, 956 (C.D. Cal. 1990). The officers may not have known for
certain whether Chew had a weapon, but after he fled, it would have been more
than foolish for them to assume he did not; and it would be singularly
inappropriate for us to essentially force the police to make such a dangerous
assumption.
Sgt. Yarnell testified that an officer
must assume for the sake of his own safety that each suspect he is searching
for is armed: Q. [By Chew's counsel.] Let's assume that the handler has been
given no reason to believe that he is armed. A. Ah, but sir, this is the
mistake. You cannot assume that the man is not armed. You will die. I mean, it
is a realistic world out there, and I'm sorry, but that is the truth. And you
must assume that each suspect that you are searching for is armed, for your
own safety. Q. Okay. A. Okay? So unless you are told otherwise, for a fact,
that he is not armed, you must assume that he is. Q. All right. A. But even -
yes. I'm sorry. Go ahead. Q. So that is part of the training [**112] that the
officers receive? A. That's part of the training from the day they are in the
academy, and it's part of the training I give them, absolutely, yes. Q. I
thought that was so. A. Well, it must be. Otherwise, you're going to die.
(emphasis added).
It is also correct that the officers may
not have known the nature of the three felonies for which Chew was wanted, and
that some felonies are nonviolent. But by fleeing, by jumping over at least
four fences, and by hiding in a precarious environment, Chew became
presumptively dangerous. Surely the officers who saw Chew on the fence of the
scrapyard knew they did not have a benign check bouncer on their hands.
Moreover, Chew was more than just a fleeing suspect. He had been formally
charged by a court for felonies arising out of three separate episodes, thus
demonstrating a pattern of lawless behavior. Yes, the precise nature of the
three felonies might not have been immediately known to the officers, but they
[*1466] had ample probable cause based on Chew's flight and behavior (i.e.,
the totality of the circumstances), to believe the felonies were of a nature
that made him dangerous. To hold otherwise is to [**113] be guilty of nothing
short of nit-picking. Certainly Chew could have been searched for weapons the
moment he was finally apprehended. No one could seriously argue otherwise.
Bunch testified that when he found Chew, Chew was beating Volker with a metal
pipe. Better Volker than Bunch.
The majority opinion unpersuasively
attempts to water down the reality of these events, describing the search and
pursuit as two "uneventful" hours. "Uneventful?" A
helicopter in the air? One hundred and ten degree air temperature? Sixteen
police officers surrounding an uncooperative suspected fleeing felon now
cornered and hiding in a scrapyard? Incidently, there were at least three
police dogs, including Volker, and three handlers combing the scrapyard
looking for Chew. Why three and three? Because the officers believed the dogs
could not last long in the extreme heat. Maybe this scenario would be
uneventful to a judge, but not to any police officer at the scene. Time was of
the essence. Among other things, all police officers know that if a fleeing
felon escapes, the next time he is stopped, unsuspecting fellow officers will
have an unmarked, silent rattlesnake on their hands. They must get him [**114]
now, in the scrapyard and in the daylight, not permit him to escape to menace
them or the public in the future. How the majority can claim, indeed even
"emphasize", that "this was not an occasion on which the police
were forced to make 'split second judgments'" completely escapes me.
Even Chew could not describe what
happened as "uneventful." Here excerpted from his deposition is how
he recounts this episode. Q. [By the deputy city attorney.] Now, at the time
that you were arrested on this matter, there were some felony warrants out for
your arrest; is that correct? A. From my understanding, yes. Q. How many
felony warrants were there?
. . . . A. You mean when I got arrested?
Q. At that time, yes, A. One. Q. Okay. And what was that for? A. Burglary.
. . . . Q. Was it a residential
burglary, if you recall? A. Yes. Q. What about the burglary conviction of
October of '88 in Lancaster; was that also a residential burglary? A. Yes.
. . . . Q. Okay. And then what happened
next? A. [The officer who stopped me] proceeded back to his car. Q. What
happened next? A. I lit a cigarette up.
. . . . Q. Okay. And then what happened?
A. I remember [**115] I was getting scared? Q. Why were you getting scared? A.
Because I was unaware [sic] of me having a warrant. Q. And what was the
warrant for? A. My understanding was burglary. Q. Was it a bench warrant or an
arrest warrant, if you know? A. That, I'm not sure of. Q. Did you fail to
appear for court? A. Yes.
. . . . Q. Okay. So you're aware of one
warrant out for your arrest that apprised you of a burglary; is that correct?
A. Yes.
MR. DENNY: [Counsel for Chew.] And his
failure to appear for that burglary charge.
. . . . Q. And the officer went back to
his car during that couple seconds? A. Yes. Q. What happened next? A. I
panicked. [*1467] Q. Okay. Because of the warrant? A. Yes. Q. And what
happened next? A. I took off running. Q. Did the officer ever frisk you at any
time before he took off running? A. Not that I remember. Q. And where did you
run to? A. I think I was running eastbound if my recollection is - that's what
I recall the direction. Q. Did you cross San Fernando Road as you were
running? A. Yes. Q. No particular place, but eastbound. Q. How far did you
run? A. Until when? Q. Until the first [**116] time you stopped. A. Stopped or
stopped running? Q. Till the first time you stopped running. A. Approximately
2,300 yards. Q. Okay. And where were you when you stopped running? A. In the
scrap yard. Q. Were you able to see the officer the first time you stopped? A.
Which officer? Q. The one who had - you gave your license - who you gave your
license to the first officer you saw? A. I'm not sure. Q. Did you look to see
if he was chasing you? A. Yes. Q. And did you see him? A. I couldn't tell you.
I couldn't see him visually, but I saw his police car.
. . . . Q. When you first started
running, what happened? A. I started to run. Q. And what happened next? A. I
came to a fence, proceeded to climb it. Q. Okay. What happened next? A. I then
took off running towards the, I guess it would be, southeast direction to the
corner of the area that I was in. Q. What happened next? A. I was then going
to proceed to jump another fence to get into a wash that was nearby. Q. What
happened next? A. I looked to my right, I guess that would be south, and saw a
police car. Q. What happened next? A. I then took off running again heading
[**117] north if my directions are correct. Q. What happened next? A. I jumped
another fence and proceeded running. Q. What happened next? A. I then jumped
another fence and proceeded to run. Q. What happened next? A. I looked north
of the scrap yard I was in at that particular time. Q. And what did you see?
A. I saw between where the entrance gates come up and I saw what appeared to
be a black and white police car driving northbound on Branford Street.
. . . . Q. Okay. What happened next? A.
I then proceeded to run to the entrance gate. Q. And where was that located?
A. Right there in front of Branford Street. Q. What happened next? A. I then
approached - came up to the fence and proceeded to climb the fence. Q. This is
a fence on Branford? A. Yes. Q. Were you climbing - were you exiting the junk
yard or entering the junk yard?
A. I was going to try to exit the junk
yard. Q. Okay. What happened next? A. As I came to the top of the fence that I
was climbing, I saw, if I remember right, two officers looking in the yard
that was - [*1468] that I just came from, which was right next door. Q. Okay.
What happened next? A. They both looked [**118] up at me or I should say I
know of one for sure that looked up at me and saw me.
. . . . Q. Okay. After you saw the two
officers, which you indicated you believe that one of the officers saw you,
what happened? A. I then jumped back into the scrap yard, not junk yard but
scrap yard as I know it, and proceeded to run back to where the direction that
I saw the officer - the car drive by on Branford Street.
. . . . Q. And what happened after you
got to the top of the fence? A. That's when I saw, if I remember right,
officers. Q. Okay. And what did you do then? A. I jumped down off the fence
back into the scrap yard because I saw one officer. Both of them might have
looked. I'm not sure. I know one looked up at and so I then jumped back down
there.
. . . . Q. Okay. What happened after you
got to the approximate point of Point F [referring to a diagram]? A. I then
looked - no. That was when I heard what appeared to be a helicopter.
. . . . Q. Okay. And then what happened?
A. I then looked around. Q. Okay. And you saw nothing but scrap metal;
correct? A. Yes. You might call it that, yes. Q. And then what happened? A. I
then proceeded to hide myself. [**119]
. . . . Q. Okay. How did you hide
yourself? A. I squeezed myself self in between what appeared to be - if I
remember right, four dumpsters; one stacked on top of each other as one pile
and the other eight which was one stacked on top of the other one were fairly
closed to one another.
. . . . Q. Hiding. You were hiding
between the dumpster for about two hours? A. Yes, around there, yes. Q. During
those two hours, did you see or hear anything? A. Yes. Q. What? A. A
helicopter. Q. Okay. Anything else? What else? A. Commotion.
. . . . Q. Okay. Could you describe this
commotion a little bit more, please, that you heard? A. Well, it appeared to
me it sounded like I heard - it sounded like not a regular voice but a voice
over either a P.A. system, radio or - I don't know because I couldn't see.
. . . . Q. Okay. Okay. You hid yourself
at point I and you waited there about two hours; correct - A. Correct. Q. -
until you were found; is that correct? A. Correct.
. . . . (emphasis added).
Chew was actively albeit silently
resisting arrest. This entire episode was rife with life-threatening
"split-second judgments" as the [**120] police searched for him.
Bunch and Volker were in the yard for half an hour before Volker found him.
Yet the majority opinion tries to characterize Chew's behavior as not menacing
because he did not do "anything other than hide quietly." With all
respect to my good friends, this is a false characterization that makes the
event sound like a children's game of hide-and-go-seek. The majority's claim
that a hiding quietly Chew posed "no immediate safety threat to
anyone" adds new meaning to the word "absurd." Common sense
tells us we must look at the circumstances from the perspective of the police,
not the hiding suspect. [*1469]
But perhaps the most upside-down
argument in the majority's opinion is the following "syllogism": 1)
A police dog is more likely to bite a hidden suspect than one out in the open;
2) Chew managed to conceal himself from the officers; 3) Therefore, Chew
deserved to be protected from the dog. This twisted logic inappropriately
removes the responsibility for the increased risk from the suspect and places
it in on the officers, effectively rewarding concealment, resistance, and a
refusal to surrender. Chew was responsible for this risk. [**121] Are we to
call off searches when a suspect conceals himself because the risk of dog
bites - or for that matter shootings - is thereby increased?
III
The recurring flaw in the majority's
analysis is that it breaks the facts and circumstances of this case into
disconnected pieces, gelds the pieces, and then argues that each deodorized
piece does not demonstrate Chew was a safety risk. This approach is at war
with the requirement that we measure the reasonableness based on the totality
of the circumstances. The flaw is most apparent in the opinion's treatment of
(1) Chew's behavior before he panicked ("Nothing about Chew's appearance
or demeanor gave the officer reason to believe he should search [Chew before
he fled]."); (2) Chew's behavior in the scrapyard ("The defendants
do not suggest that Chew engaged in any threatening behavior during this time,
or that he did anything other than hide quietly."); (3) Chew's attempt to
resist arrest by wedging himself between the dumpsters ("He did not,
however, resist arrest to the point of offering any physical resistance to the
arresting officers."); (4) the significance of the outstanding warrants
("[Because] the record does not reveal the [**122] type of felony . . .,
the existence of the warrants is of limited significance."); and (5) the
length of the search ("Chew was trapped in the scrapyard for two
uneventful hours . . . ."). (emphasis added).
There are three errors of logic in this
piecemeal approach. First, the opinion bases its ultimate conclusion on
incomplete and mischaracterized premises. Second, the "no immediate
safety threat to anyone" conclusion is tacitly assumed in each premise,
i.e., the question is begged by sneaking the rabbit into the hat. Third, the
fallacy of composition is mischievously at work insofar as each emasculated
and quarantined piece of the whole is used to compel an adulterated and
invalid conclusion. If this were a proper way to reason, which it manifestly
is not, one could easily make the case that World War II wasn't really a
significant threat to our national security, just as the majority opinion
claims Chew's behavior that afternoon did not pose an "immediate safety
threat to anyone." No rational jury could so find.
This same kind of analytical mischief is
also at work in the manner in which the majority characterizes the LAPD's K-9
policy. Just as the threat posed [**123] by Chew's behavior is belittled, the
threat posed by police dogs operating under the LAPD's policy is vastly
exaggerated. The majority makes it sound like the purpose of the policy was to
"maul" all suspects. This is untrue, as is the idea that dogs were
trained to attack and bite all suspects. The controlling Canine Manual makes
it clear that care is taken to minimize the physical danger to suspects: All
protection, criminal apprehension and search training shall incorporate
control training. Control training includes false starts, outs, n2 and out
from attack, call outs, long outs, out while fighting, hold, hold and bark and
transports. Great emphasis shall be placed on training as it will ensure
optimum control and will decrease the chances of accidental or unnecessary
bites.
- - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n2 An "out" is a command to a
police dog to cease whatever the dog is doing and return to the handler.
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
Metropolitan Div., Los Angeles Police
Dep't., Canine Unit Manual 19-20. The training exercises in the Canine Manual
demonstrate [**124] that the dogs are trained not to bite when [*1470] biting
is unnecessary, just as officers are trained not to shoot when it is not
appropriate. n3
- - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n3 These are the control training
exercises: 1. Criminal Apprehension (Running) The dog shall be placed in a
stay facing the decoy. The decoy shall be standing motionless 30 yards away
from the dog. Upon direction of the evaluator, the decoy shall break and run
away from the dog. The dog shall remain stationary. When the decoy has run 40
yards, the handler shall send his dog. The dog must apprehend the decoy by
catching and biting him hard. The dog must bite and hold the decoy until
commanded to "out," upon which the dog must immediately release the
decoy and return to his handler's heel. 2. Criminal Apprehension (Stationary)
The dog shall be placed in a stay facing the decoy. The decoy shall be
standing stationary facing the dog 50 yards away. Upon command, the dog will
apprehend the motionless decoy by biting him hard. The dog must bite and hold
the decoy until commanded to "out," upon which the dog shall
immediately release the decoy and return to his handler's heel. 3. False Start
The dog shall be placed in a stay facing the decoy. The decoy shall be facing
the dog and standing motionless at a distance of 30 yards. Upon direction of
the evaluator, the decoy shall break and run away from the dog for 30 yards.
The dog shall remain stationary during this exercise. 4. Call Off (Stationary)
The dog shall be placed in a stay facing the decoy. The decoy shall be
standing motionless facing the dog 50 yards away from the dog. Upon direction
of the evaluator, the handler will send his dog to apprehend the decoy. When
the dog is within 20 yards of the decoy, the handler shall command his dog to
"out." The dog must cease all aggression and return to his handler's
heel. 5. Call Off (Running) The dog shall be placed in a stay facing the
decoy. The decoy shall be standing motionless facing the dog at a distance of
30 yards. Upon direction of the evaluator, the decoy shall break and run away
from the dog. The dog shall remain stationary. When the decoy has run 40
yards, the handler shall send his dog to apprehend the decoy. When the dog is
within 20 yards of the decoy, the handler shall command his dog to
"out." The dog must cease all aggression and return to his handler's
heel. The decoy must continue running until told to stop by the evaluator. 6.
Suspect Hold (Stationary) The dog shall be placed in a stay facing the decoy.
The decoy shall be standing motionless facing the dog at a distance of 30
yards from the dog. Upon command, the dog shall run to the decoy and bark
continuously at him. The decoy should remain as still as possible. At this
time, the evaluator may direct the decoy to attack the dog, or direct the
handler to call his dog to a heel. The handler must remain standing at his
original position during the exercise. Any attack by the decoy shall dictate
his apprehension by the dog without any influence from the handler. The dog
shall bite the decoy hard and hold the bite until commanded to
"out." The dog shall then immediately release the decoy and return
to his handler's heel. 7. Hold (Running) The dog shall be placed at a stay
facing the decoy. The decoy shall face the dog standing motionless 30 yards
from the dog. Upon direction from the evaluator, the decoy shall break and run
away from the dog. When the decoy has run approximately 40 yards, the handler
shall command his dog to apprehend the decoy. When the dog is within 50 yards,
the decoy shall stop, face the dog, and remain motionless. When the decoy
stops, the handler shall command his dog to hold the decoy. The dog must stop
within six feet of the decoy and bark at him continuously. The evaluator may
then order the decoy to run, attack the dog, or direct the handler to call his
dog to a heel. The handler must remain standing at his original position
during this exercise. Id. at 25-26.
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - - [**125]
IV
"To determine the constitutionality
of a seizure 'we must balance the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion'." Tennessee v.
Garner, 471 U.S. at 8 (quoting United States v. Place, 462 U.S. 696, 703, 77
L. Ed. 2d 110, 103 S. Ct. 2637 (1983)). In this respect, "reasonableness
depends on not only when a seizure is made, but also how it is carried
out." Id. (emphasis added). The question we must answer is "whether
the totality of the circumstances justified a particular sort of . . .
seizure." Id. at 8-9 (emphasis added).
In my judgment, the totality of the
circumstances I have outlined thus far are manifestly "exigent" as
that concept has been used by the Supreme Court to justify certain exceptional
police practices. See United States v. Santana, 427 U.S. 38, 42-43, 49 L. Ed.
2d 300, 96 S. Ct. 2406 (1976) (allowing warrantless entry of a home while in
"hot [**126] pursuit"). The circumstances most [*1471] certainly
create probable cause to believe Chew "posed a threat of serious harm to
the officers or to others. . . ." Tennessee v. Garner, 471 U.S. at 11. In
addition to these integrated facts and circumstances that weigh heavily in
this balancing process, I also note the following.
First, a biting dog is not a bullet from
a firearm. A trained dog is much less dangerous than a shotgun. See Robinette,
854 F.2d at 912 (concluding the use of a properly trained police dog to
apprehend a felony suspect does not constitute the use of deadly force). A
police dog can inflict fatal wounds, but experience has shown that this is not
a common event. Id. at 913. By comparison, when police shoot, they must always
be prepared to accept the possibility of a fatality. Tennessee v. Garner
stands as a witness to this reality. Indeed, while we have expended over
eighteen months deciding this case, I have heard oral argument in an appeal
involving the shooting by police in San Francisco of a recluse engaged in
resisting the service of [**127] an administrative inspection warrant. n4 The
estate of the accused argued in that case that the police should be liable
under 28 U.S.C. § 1983 for violating the decedent's rights because they
entered the decedent's house with firearms when they should have used a
"less violent alternative," i.e., police dogs. I quote from their
brief:
- - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n4 Alexander v. City and County of San
Francisco, No. 92-16751.
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
If there eventually arose some
compelling reason to seize Mr. Quade, police could have employed a canine
unit. The San Francisco Police Department has police dogs that are specially
trained to search for and discover persons hiding in buildings.
Police admit that a canine unit was
available and could have been utilized. Appellees' own police expert
acknowledged that a dog unit was a viable option and would have involved less
chance of injury to Mr. Quade.
No doubt had Chew been shot, his estate
would be arguing in this case that dogs should have been used to apprehend him
because, [**128] of course, dogs represent a "less violent
alternative."
Essentially, I agree with the Sixth
Circuit:
Indeed, instead of generally causing
deadly force to be used to apprehend criminals, we believe that these dogs
often can prevent officers from having to resort to, or be subjected to, such
force. Any attempt to apprehend a criminal suspect presents the officer with
[a] difficult and frightening situation, but certainly an attempt to arrest a
suspect hidden inside an unfamiliar building during the nighttime presents a
particularly confusing one. The use of dogs can make it more likely that the
officers can apprehend suspects without the risks attendant to the use of
firearms in the darkness, thus, frequently enhancing the safety of officers,
bystanders and the suspect. Robinette, 854 F.2d at 914 (emphasis added).
Searches for hiding suspects are very tense occasions where fingers are
appropriately, but dangerously, near triggers. Accidental shootings are not
uncommon.
Second, I see a compelling interest in
protecting police from death or serious bodily injury at the hands of holed up
criminals. The use of properly trained dogs to seize persons [**129] like Chew
fosters this interest.
Third, before Los Angeles Police
Department K-9 Unit police dogs are released, hiding suspects are given this
warning: "This is the police. We are going to use a police dog to find
you. There is a possibility you will be bitten by the dog. If you surrender
now, the dog will not be used. You have one minute." This gives the
suspect control over his own fate. See Tennessee v. Garner, 471 U.S. at 29
(O'Connor, J., dissenting) ("To avoid the use of deadly force . . ., the
suspect need merely obey the valid order . . . .").
Fourth, the massive deployment of police
officers required to contain someone like Chew depletes their ranks elsewhere
during the many hours that it takes to conduct a painstaking search of a
scrapyard. Sgt. Yarnell testified that in an era of limited resources and
severe budgetary constraints, [*1472] economic concerns were a factor
motivating the K-9 program.
Taking these factors into consideration
in their totality, and realizing that all Chew had to do to avoid this fate
was surrender, the scales balance easily in favor of the use of police dogs to
assist in [**130] these types of seizures. I do not believe that the
deployment per se of police dogs to find hiding felony suspects is
unreasonable. Thus, I agree with the district court that the release of a
police dog to apprehend Chew was objectively reasonable as a matter of law.
See Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 109 S. Ct. 1865
(1989). If wanted felony suspects normally surrendered and never attacked
police officers, I suppose the result in this case might be different, but
that is a fanciful world in which we do not live.
I am not persuaded by the majority's
attempt to discredit Robinette v. Barnes, which Judge Reinhardt suggests was
wrongly decided. In Robinette the suspect was hidden in a dark building in the
nighttime, but the principle active in Robinette is that a suspected felon
hiding from the police may be flushed out by a biting police dog without
offending the Fourth Amendment. As Sgt. Yarnell testified, "Daylight has
nothing to do with it." Darkness aggravates the problem, but daylight
does not dispel it. I believe Chew and Robinette stand on equal footing in
this context: it was [**131] objectively reasonable in both instances to use
police dogs to apprehend them. The minimal factual differences between these
cases are insufficient to require different results.
What should the police have done to make
their conduct reasonable? After Tennessee v. Garner, Chew while running could
not be stopped with a bullet. He must be allowed to run. This increases the
possibility that he will find a place to hide. Then what? Chew obviously was
not going to surrender on his own initiative. His own deposition makes this
clear. Nightfall was approaching. It is naive to believe Chew was not buying
time until darkness became his ally. Should the police have left their dogs in
their kennels and conducted a massive dumpster by dumpster search for Chew
before it got dark? Is that the reasonable way to conduct this operation? Were
the police required to maintain their perimeter until they starved Chew out?
Should the police have given up and gone home? The Fourth Amendment should not
require that we send police into the jaws of danger or permit suspected felons
to go on their way. Tennessee v. Garner was intended to protect fleeing
nondangerous suspects from gunshots, not to allow [**132] them to escape or to
endanger the suspect's pursuers or the public.
In my view, the enforcement challenge
presented by Chew and the challenge presented by Ronald Mendoza are
constitutionally indistinguishable. See Mendoza v. Block, 27 F.3d 1357 (9th
Cir. 1994). We held in Mendoza that releasing a police dog to find a hiding
felon was objectively reasonable, and we should to do here.
V
It is unfortunate police find it
necessary to carry guns and use police dogs. My colleagues are correct: Police
dogs can inflict considerable damage on human beings. Nothing I say should be
taken for a moment to condone the unprofessional, careless, or inappropriate
use of police dogs. A jury in this case returned a verdict for Chew because it
believed Officer Bunch went over the line when Chew was finally found. So be
it. Police dogs must be well trained, and they must be used appropriately. But
in situations like this, the risk of dog bites to menaces like Chew is
insignificant in my judgment when compared to the risk posed to police
officers forced to go into deathtraps to search for suspected felons. On
occasion, officers misuse guns. Sometimes they misuse batons. [**133] But I
would not therefore render the use per se of guns or batons unreasonable under
the Fourth Amendment, only their misuse.
Police dogs are capable of feats beyond
the capacity of human beings, primarily because of their remarkable senses,
including the sense of smell. In one well-known case, a police dog named
Pascha ended a one-man crime wave by a career criminal dubbed the
"Balcony Burglar," a burglar who had terrorized [*1473] the Westside
of Los Angeles County for many years. Pascha's widely publicized contribution
to the safety of the community was heralded in many newspaper articles during
January, 1980. The following are excerpts from those articles showing the
importance of well trained police dogs to law enforcement and the public.
Police this morning cornered and
arrested a man they believe is the "Balcony Burglar" - suspected in
three murders, 130 burglaries and numerous rapes - following a dramatic
pre-dawn manhunt near Century City.
The suspect, identified as Harold
Holman, 33, of Los Angeles was taken into custody after being sniffed out and
attacked by a Santa Monica police dog.
Police said Holman was captured about
4:30 a.m., when he was found hiding under a [**134] triplex at 2103 Benecia
Ave.
Following his capture, Holman was taken
to Los Angeles New Hospital for treatment of bites on his arms suffered when
the dog "chewed him up." He was taken to the West Los Angeles
Division police station for questioning following treatment.
Holman was booked at the station in
connection with a burglary committed less than an hour before his capture.
. . . .
The sequence of events leading up to
this morning's capture of Holman began when a prowler entered a second-story
residence at 2343 Fox Hills Drive about 3:20 a.m. Neighbors summoned police
after hearing the woman resident screaming for help.
Officers in one of the patrol cars
dispatched spotted a man running across Olympic Boulevard near Benecia about
three blocks north from the scene of the break-in. Officers then cordoned off
an area bounded by Beverly Glen Boulevard, Fox Hills Drive, Olympic and
Benecia and began searching for the suspect.
A police helicopter was called in and
used its powerful flood lights to illuminate the neighborhood while 15 police
officers on the ground combed the neighborhood.
As the search perimeter was sealed off,
the West Los Angeles officers called for help from Santa [**135] Monica, where
two dogs were being used as part of a special stakeout team looking for the
burglar who this week had murdered two people and looted numerous apartments
in Santa Monica in recent weeks.
At about 4:15 a.m., West Los Angeles
officers received another call, this one from a woman in the search area
reporting a prowler climbing her fence and knocking over trash cans.
The dogs were brought in, and it was
Pascha, a German shepherd handled by officer Barney Melekian, who caught the
scent and traced the suspect to a crawlspace under the triplex.
The animal held Holman at bay, growling
and biting the suspect several times on the hands and arms before officers
took the man into custody. SMPD Dog Traps Man in WLA Chase, Santa Monica
Outlook, Jan. 18, 1980, at A-1, A-8.
A grateful public also has been sending
its own rewards to Pascha this week. At latest count, seven boxes of dog
biscuits have arrived at Santa Monica police headquarters.
Melekian took all the congratulations in
stride, stressing that it was actually the teamwork among the departments that
led to the suspect's capture.
If West L.A. (police) hadn't quickly
sealed off the neighborhood where the suspect was spotted, [**136] "we
never would have found him," said Melekian.
That comment brought this response from
a West L.A. officer: "Without that dog, we probably never would have
found him. If we had, it probably wouldn't have been for several more hours
and maybe only after a shooting."
. . . .
"So we go over there and the dog
'keys' right away. He follows a scent for about 300 yards, over fences,
through yards and alleys. He lost it for awhile out on Beverly Glen, then he
picked it up again and took us back through a yard (2103 Benecia [*1474] Ave.)
and to this crawlspace opening. Then he just went bananas."
"I called for other officers to
surround the house, then we yelled a warning under the house that we're
sending the dog in. We didn't get an answer so we pushed in the screen and the
dog went under and I went after him."
Melekian said Pascha found the suspect
about 20 feet from the opening. "The guy tried to kick at the dog, and a
fight sorta ensued. He was trying to choke the dog, which may be why he got
some sore fingers."
. . . .
Lt. Glen Ackerman of the West L.A.
detective bureau said five or six officers nightly had been working stakeouts
during their off-duty hours for about six weeks [**137] prior to the arrest.
That meant cruising streets from 1 a.m.
to 6 a.m., after already putting in a full day of work.
"We had a lot of tired detectives
when this was over." Ackerman said. "The morning of the capture was
an event of great jubilation over the apparent end of this crime
pattern."
. . . .
"This was a case where the dog
really proved his worth." Oswald added as he scratched the docile Pascha
behind the ears.
Pascha "doesn't know this guy was
so important." Melekian said, with Pascha lying at his feet like a
105-pound puppy. "He was just doing his job, like with the other 70 or 80
guys he's gone after."
. . . .
Being a hero is nothing new for Pascha.
He received the Police Department's Merit of Valor in 1978 for his efforts to
control a robbery suspect who had attacked an officer. Mike Tipping, A Party
for Pascha, Santa Monica Outlook, Jan. 26-27, 1980, at A-1, A-4.
It was a classic police operation in
almost every respect. The LAPD helicopter kept the man pinned down while the
patrol cars on the perimeter prevented his escape. All that remained was for
Pasha [sic] to come in from Santa Monica to track the man down.
As it turned out, the suspect had run
under [**138] my bedroom window to a building two houses down, pulled open the
screen cover leading to a crawl space under the house, replaced the screen,
and inched his way about 30 feet under the house.
It's possible that if Pasha hadn't
picked up the scent, somebody might have found him but just about everybody
involved said the odds were greater that they wouldn't have found him. Even if
they had, considering that he was armed with a .38 pistol, it most likely
would have turned out to be a major SWAT operation.
. . . .
Since he started his career as a police
dog, Pasha has assisted in more than 300 felony arrests. He's found about 50
crime suspects who were doing their best not to be found, and he's only bitten
19 of them That's mainly because Melekian does his best to discourage him from
chewing up criminals. Actually, there's no malice in Pasha. Melekian explains.
Biting people is sort of a game, like catching a Frisbee is for other dogs.
The rules of the game, basically are,
that Pasha can't bite anybody unless Melekian orders him to or they try to
attack Melekian or another officer, or - and this is the key rule - they try
to move after Pasha has sniffed them out.
If a burglar, for example, [**139] is
discovered by Pasha hiding in a building, the dog most likely will simply bark
and stand guard, perhaps placing his mouth ever so gently on the suspect's
arm. If the suspect stands perfectly still, there's nothing to worry about.
But one move and Pasha is free to bite.
In training, that's a reward and it works the same way in real situations,
although Melekian says Pasha never bites any harder than the "level of
resistance" he encounters.
"Of the 19 people he's bitten, 12
had guns." Melekian says, "We train the dogs to go for the arm. If
somebody tries to [*1475] kick him, he'll take the leg. But it's a myth that
they go for the throat. The most serious injury he's caused was a broken
arm." William Overend, Pasha the Wonder Dog, Force's Finest German
Shepherd Gets His Man, L.A. Times, Jan. 31, 1980, § 4, at 1, 8-9.
As our streets and communities become
more dangerous, and as the police come under increasing fire from criminals,
it is a tragic mistake for this court to send police dogs to the sidelines in
favor of sending in officers to flush out hiding felony suspects like Chew. I
repeat Melekian's words: "Of the 19 people [Pasha has] bitten, 12 had
guns." The irony in [**140] this case is the unstated assumption of the
majority that a hiding suspect is in less danger from officers carrying
firearms than from a police dog. This assumption may be far from accurate.
Without police dogs, the police might
still be looking for the Balcony Burglar, Ronald Mendoza, or for that matter,
Thane Carl Chew himself. Police dogs by themselves certainly won't solve all
our problems, but at least they will protect and help keep alive the officers
we pay to catch those dangerous criminals who violate our laws. Such
protection is hardly unreasonable. I doubt as Judge Reinhardt claims that
using police dogs to flush out hiding felony suspects is the "beginning
of the police state and the end of freedom." The decision to establish a
K-9 Unit to locate hiding suspected felons should be left to the governmental
process. As a matter of policy, the executive and legislative branches of
local government can arrive at an informed conclusion, just as they have with
the use of guns, tasers, batons, and chokeholds. As in Los Angeles, a police
chief, an elected mayor, a police commission, and an elected city council are
best positioned to make these decisions and to determine the needs [**141] and
overall interests of the community.
