Entries categorized "Excessive Force"

Dog Bites, Excessive Force, and Municipal Liability

Szabla v. City of Brooklyn Park, No. 04-2538 (8th Cir. Dec. 1, 2005) is a sad tale.  In Szabla the plaintiff wanted to work, but he had no place to live.  He thus went to sleep at a local park that was across the street from a day-labor company.  Mr. Szabla was going to wake up at 5:30 a.m. and look for a job.  Unfortunately, he was attacked by a police dog.

While investigating a nearby automobile accident, Steven Baker told the police dog to "track."  A dog told to "track" looks for a person, and then bites the person without warning.  A dog told to "search" looks for a person, but waits until told to "bite," to bite the person found. 

After being told to "track," the dog pulled the police officer towards Mr. Szabla, and without provocation, the dog bit him - leaving 23 puncture wounds in Mr. Szabla's legs. Mr. Szabla sued the officers and the city.  And who can blame him.  All he wanted to do was work; police officers prevented that.  Mr. Szabla sued under an excessive force theory.  (Predicated on the Fourth Amendment, to state a claim under an excessive force theory, the plaintiff has to show that the police officer used objectively unreasonable force when searching or seizing a person.)  Recent caselaw supported Szabla's claim.

In Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2004), a three-judge panel of the Eight Circuit held that the police had to give a warning before sending the dogs after a suspect.   Id.  at 598 (holding that "a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender.")  Mr. Szabla was injured a couple of years before Kuha was decided, and thus the panel held that the officers had qualified immunity.

The panel properly held that although the officers were entitled to qualified immunity, the city was not.  (Although municipalities are not entitled to qualified immunity, it is so difficult to state a claim against them that they have protection almost equal to qualified immunity.)  Here, the panel noted that the in the city's dog-handling policy manual, there was no mention of the need for officers to give suspects a warning before siccing a 75-lb. German Shepherd on someone. A jury could infer from the absence of this warning that the city was deliberately indifferent to citizens' Fourth Amendment rights.

Judge Colloton dissented because he thought the deliberate-indifference standard the panel applied wasn't strict enough.  Whether or not a judge applies the deliberate-indifferent standard used by the majority or the dissent will literally "make or break" a municipal liability case.  Someone could write a great law review by analyzing the way in which courts define and apply deliberate indifference in municipal liability cases.

Cars and Excessive Force

If you're a drug dealer with a federal agent pointing his gun at you and your stopped car, don't start driving your car towards the agent.  You will get shot.  And even suckers like me won't have any sympathy.  See Robinson v. Arrugueta, No. 04-10856 (11th Cir. July 7, 2005).

However, Robinson also indicates that the law of excessive force is moving in a dangerous direction.  In Brosseau v. Haugen, 125 S.Ct. 597 (2004), the Supreme Court suggested that a car might be a deadly weapon.  In Robinson, the Eleventh Circuit (though looking to state law) held that a car was a deadly weapon.  One implication of this holding is that a police officer can use deadly force every time a person flees via car.  As I blogged in March:

A jury can't kill you unless your guilt is proved beyond a reasonable doubt.  But a police officer - whom we can't burden by requiring him to know the law, see Devenpeck - can kill you based on probable cause.  The Court's technical holding was that a "reasonable officer" would not have known that shooting someone in the back - instead of, say, shooting the tire out - as he's sitting in his car was excessive force. 

Granted, if the guy in Haugen was going to harm a child, I'd rather see him stopped quickly.  But I also don't sanction summary executions, which is what an on-the-street shooting is.  The Court should have required a bit more quantum of proof that the suspect was really dangerous instead of giving officers a blank check to open fire.

Certainly, we would not object to a police officer's shooting someone speeding through a school zone.  But given the way qualified immunity doctrine evolves, a few more people who present no harm to anyone will be shot, and a few police officers will escape liability, before this question, "When can you kill a fleeing motorist?" is answered.  The problem with qualified immunity is that it encourages police officers to cross the line separating lawful from unlawful conduct.  Which sometimes means, the line between life and death.

Excessive Force Rule Statement

I found this very helpful rule statement for excessive force cases in the Eighth Circuit:

We analyze excessive force claims related to arrests under the Fourth Amendment. E.g., Graham v. Connor, 490 U.S. 386, 395 (1989). To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, “the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The Supreme Court has instructed, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97. “Circumstances such as the severity of the crime, whether the suspect posed a threat to the safety of the officers or others, and whether the suspect was resisting arrest are all relevant to the reasonableness of the officer’s conduct.” Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir. 1990). “In addition to the circumstances surrounding the use of force, we may also consider the result of the force.” Crumley v. City of St. Paul, Minn., 324 F.3d 1003, 1007 (8th Cir. 2003); Patzner v. Burkett, 779 F.2d 1363, 1371 (8th Cir. 1985) (stating that, in considering the reasonableness of force used, the extent of any resulting injuries is relevant).

Littrell v. Franklin, Nos. 03-2534 & 03-2790, *7 (8th Cir. Nov. 2, 2004).

Motley v. Gates

I was finally able to read Motley v. Gates in full.  It's a very long opinion, so I am going to summarize its legal questions and answers.  Then I will provide the court language relevant to those propositions.  Although my version is lenghty, it takes up 75% less ink than full opinion.

To entice you to read my summary, I'll give you a teaser: A police officer in this case pointed his gun at a 5-week-old baby.

1. Is it unconstitutional to conduct a warrantless search of a woman's home when her boyfriend (a parolee) has been in jail for over six weeks?  Yes - the woman told the police her boyfriend has been taken into custody six weeks prior to the search.  All the police officers had to do was call his parole officer to verify this information.  Since there were no exigent circumstances, and the officers did not have a search warrant, they should have errored on the side of verification.

2. Do a police officer use excessive force during the course of a when he pointed a gun at a five-week-old baby while he's laying in his crib?  Yes - how the trial court judge found otherwise really bothers me.

3. Do police officers who allow a their colleague to point a gun at a baby behave unreasonably?  Yes - officers are under an affirmative duty to intervene when a colleague is violating a citizen's constitutional rights.

4. Is the person who left the parolee's address information remain stale, and then provided this information to the search officers, the "moving force" behind a rights violation.  Yes - the officer sent his subordinates out to conduct warrantless searches of parolees' homes.  Since the only basis for the search was to "clean up" the neighborhood, he should have ensured that the addresses were fresh.

5. Would a reasonable officer have known that the answer to Questions 1, 2, 3, & 4 is, "Yes."  Yes - the caselaw established at the time of the search sufficiently established the above propositions.

Janae Jameson was a gang member, Darla Motley was his girlfriend, and together they had a baby - Juan Jameson. 

Father was release from prison in February 1998.  The next February he was taken back into custody.

Six weeks after father was taken into custody, members of the LAPD and ATF decided to conduct a search of his (and others parolees') homes.

At 10 or 10:30 a.m., Motley heard a knock at her door.  It was Officer Kading.  Kading said that he and father's parole officer had a search warrant and wanted to search her apartment.  Kading was lying. 

Mother said that father was taken back into jail 6 weeks ago and that he was still in custody.  One of the police officers told mother that father had been released from jail 3 days earlier, but mother knew that he was lying.  Mother said that she would not consent to a search.

Kading said that he would arrest mother and take baby into foster care if she did not get out of his way.  Mother opened the gate to her house, Kading entered, and promptly shoved his forearm into her face. 

All four officers - with guns drawn - entered mom's apartment.  Officers took turns pointing their guns and rummaging through mom's property.

As Kading approached the bedroom, mom told him that baby was back there.  A few moments later, mom heard baby screaming.  When she goes into baby's bedroom, she sees Kading pointing his gun at the baby. 

One of the officers asked mom to whom baby belonged.  When she told them, they laughed at her and mocked her.  Kading also insinuated that he was going to steal mom's ping pong table.

As the officers left, Kading said, "Let them know that Newton Street had been there."
A few weeks later, mom moved away.  She felt terrorized and was afraid the officers would come back for her.  Then she sued.

Was the search unconstitutional?

The officers in this case set out to conduct a parole search.  Instead, assuming that Motley’s account is true, the officers used duress to gain access to the home of an innocent mother and her baby and conducted a warrantless search in a harassing manner. It is clear that if no parolee lived at Motley’s residence at the time of the search, the search violated Motley’s Fourth Amendment right to be free from warrantless searches.

The less stringent Fourth Amendment requirements for a parole search are the only justification the officers here have offered for why this search was constitutional. However, Jamerson had been incarcerated for six weeks at the time of the search, and Motley testified that her apartment was no longer Jamerson’s residence. Without requiring a close temporal connection between a parolee and the residence to be searched, officers would have carte blanche to search, without probable cause, any place where a parolee used to live. Eventually, as in this case, these searches would not affect the incarcerated “parolee” at all, only violate the privacy of the people he left behind.


Finally, the purpose of allowing parole searches without a warrant is to assure that the parole serves as a period of genuine rehabilitation and that the community is not harmed by the parolee’s being at large. When the parolee is no longer “at large” and the search no longer affects his interests, both of these justifications are absent. Construing the facts in her favor, Motley has established that the officers violated her Fourth Amendment right to be free of warrantless searches.

Merely relying on information that father lived at the apartment was insufficient in light of contrary evidence.

It is incumbent on the officer[s] executing a search warrant to ensure the search is lawfully authorized and lawfully conducted.  The Groh Court emphasized that unless there are exigent circumstances, officers are required to carefully ensure that  constitutional requirements are met when searching a person’s residence, and are not entitled to qualified immunity when they do not. Id. at 1294 n.9. The same care, if not more, must be taken when the officers are searching without a warrant, under an exception to the warrant requirement.

The searching officers’ responsibilities include a duty to conduct a reasonable investigation: Although a police officer is entitled to rely on information obtained from fellow law enforcement officers, . . . this in no way negates a police officer’s duty to reasonably inquire or investigate these reported facts.  Furthermore, the fact that the officer relied on information received from another law enforcement officer does not ipso facto mean that he was not reckless.


We recognize that law enforcement officers cannot always believe what citizens tell them. However, here, there were no exigent circumstances, the officers had no reasonable suspicion that Jamerson was involved in criminal activity, and Motley told them unequivocally that Jamerson was in custody, even in the face of the officers’ lies. The officers had only been given Jamerson’s name and last known address and they knew the information might not be current because of the transient nature of parolees. Once Motley informed them that Jamerson did not live there, all the officers would have had to do is make one phone call to determine whether Jamerson was in custody. They did not. If Motley’s testimony is true, it was not reasonable for the searching officers to believe that Jamerson lived in Motley’s home.

The court denied the officers' qualified immunity defense because there was no good reason to believe that father lived there (he'd been in jail for 6 weeks and the officers could easily have confirmed this).  And, in 1999, the law in the Ninth Circuit was sufficiently clear that a reasonable officer would have know that you can't search even a parolee's home unless you have probable cause to believe that he lives there.

Failure to update parolee information.

Just as a warrant must be supported by probable cause, in March 1999 it was clearly established that officers must have reason to believe that a parolee lives at a certain address; without the requisite cause, the officers cannot constitutionally conduct a parole search. As the supervisor in charge of the search, Ruegg was responsible for ensuring that the searching officers had that substantial evidence. Instead, Ruegg delegated the task of checking Jamerson’s parole status to some unnamed person at least six weeks before the search took place.  Ruegg then relied on the stale information, without using any of three easily available methods of checking Jamerson’s parole status on or anytime near the day of the search.7 Ruegg admitted he knew that parolees did not always live at the addresses they listed when they were first released, yet he did not even contact Jamerson’s parole officer to obtain any current information about where Jamerson actually lived. In short, Ruegg dispatched officers to conduct a parole search without any evidence that Jamerson was connected to a specific criminal activity and without sufficient evidence to support probable cause, let alone a reasonable suspicion that Jamerson lived at the given address at the time of the search.

Under these circumstances, as the supervisor of the Unit and the search in question, it was not reasonable for Ruegg to simply assume that the information about Jamerson was accurate. We therefore reverse the district court’s determination that Ruegg was entitled to qualified immunity for his role in the search.

Did Kading use excessive force when he pointed the gun at baby?
Use of a weapon against someone who is helpless constitutes excessive force. Pointing a gun at a person’s head can constitute excessive force. Most importantly, in 1999, no reasonable officer could have believed that pointing a gun at a child, particularly a five-week-old baby, was reasonable during the course of a non-exigent (and unconstitutional) search.  Officer Kading is not entitled to qualified immunity for pointing a deadly weapon at a tiny infant.

Was it unreasonable for the other officers to fail to intervene?

Even if the officers had substantial reason to believe that Jamerson lived in Motley’s home, Kading, Sanchez, and Black would be liable for violating Motley’s Fourth Amendment rights, because they conducted — or allowed the search to be conducted — in an unconstitutional manner. It has long been clear that a parole search is unreasonable under the Fourth Amendment if it is conducted in a harassing manner.


Of the four officers who went to Motley’s apartment, only Webster never entered the home. Each of the other officers either participated in harassing and intimidating Motley and her child during the search, or failed to intervene to stop the harassment. An officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights.  A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers. If Motley’s testimony is true, any reasonable officer would have known that this search was harassing and unreasonable under the Fourth Amendment. Kading, Black, and Sanchez are not entitled to qualified immunity for the unconstitutional search of Motley’s home.