Jarrett v. Town of Yarmouth

United States Court of Appeals
For the First Circuit

No. 00-2498

JEROME JARRETT,

Plaintiff-Appellee,

v.

TOWN OF YARMOUTH, GERARD BRITT,
CHERYL NUGENT GOMSEY, RICHARD WHITE,
Defendants,

PETER MCCLELLAND, ROBERT CHAPMAN
Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten were on brief, for appellants Peter
McClelland and Robert Chapman.
Donald W. Cook, with whom Kathleen J. Wood was on brief, for
appellee.

May 6, 2003
 Per Curiam. On December 16, 1994, Jerome Jarrett fled

the scene of a minor traffic accident and was subsequently

apprehended by Shadow, a police dog controlled by Yarmouth Police

Officer Peter McClelland. Shadow bit Jarrett at least twice on the

leg in the course of corralling him before officers arrived to take

the suspect into custody. Jarrett filed 42 U.S.C. § 1983 claims

against Officer McClelland and Robert Chapman, the Yarmouth Chief

of Police,1 alleging that McClelland used excessive force in

releasing Shadow, and that Chief Chapman "tolerated a pattern and

practice of unjustified, unreasonable and excessive force regarding

McClelland's use of a dog to attack and bite." Jarrett also

brought suit against the Town of Yarmouth, seeking to hold the

municipality liable under a Monell theory, see Monell v. New York

Dep't of Soc. Services, 436 U.S. 658 (1978), for promulgating a dog

apprehension policy that deprived him of his constitutional rights.

After a bifurcated trial, a jury returned verdicts

against both Officer McClelland and Chief Chapman.2 The defendants

1
Jarrett also brought claims against Yarmouth police officers
Gerard Britt, Cheryl Nugent Gomsey, and Richard White, but did not
pursue these claims at trial.
2
The jury was not explicitly invited to issue a verdict with
respect to the Town in either phase of the trial; indeed, neither
the jury instructions nor the verdict forms expressly referenced
the Town as a party. These omissions have created some dispute as
to whether Jarrett properly preserved his municipal liability claim
below. Close scrutiny of the record reveals that Jarrett's counsel
did preserve the Monell claim, anticipating that if jury verdicts
against Chapman and/or McClelland were later reversed on grounds of

-2-
now contest the verdicts on appeal, arguing that the court erred in

denying their request for qualified immunity, and raising a host of

evidentiary challenges. After careful review, we find that Jarrett

suffered no constitutional injury. Accordingly, we vacate the

judgments against McClelland, Chapman, and the Town of Yarmouth.

I.

In the early morning hours of December 16, 1994, Yarmouth

Police Officer Gerard Britt observed the defendant sitting in his

car in a motel parking lot off of Route 28. Officer Britt then saw

Jarrett quickly exit the motel parking lot and drive off in the

opposite direction on Route 28. Britt radioed to fellow officer

Richard White, and the two officers unobtrusively tracked Jarrett,

who was driving in excess of sixty miles per hour. Several minutes

later, Jarrett exited into another parking lot off of Route 28.

Officer White followed Jarrett off the exit while Officer Britt

continued up the road and entered the parking lot from the opposite

end. The parties dispute what happened next. The appellants claim

that Officer Britt, now driving toward Jarrett, activated his

lights and signaled for Jarrett to stop. Yet Jarrett continued

driving directly toward Britt, who swerved abruptly and narrowly

avoided a collision. Jarrett insists that Britt never activated

qualified immunity notwithstanding the commission of a
constitutional violation, Jarrett could still claim attorney's fees
from the Town if it was implicated in the violation. However, for
the reasons that follow, we find that Jarrett's municipal liability
claim fails as a matter of law.

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his lights and that there was no near-collision. Both parties

agree, however, that Jarrett proceeded to drive into an adjoining

parking lot, where he ran into a cement post. Jarrett then exited

the vehicle, scaled a nearby fence, and fled into a residential

neighborhood.

At this point, two additional Yarmouth police officers

joined the chase. Officer Cheryl Nugent Gomsey had clocked Jarrett

driving over the speed limit while being followed by Officers White

and Britt on Route 28, and also observed him hit the cement post

and escape over the fence. Officer McClelland, the K-9 officer for

the Yarmouth Police, was also radioed to the scene by Officer

White, who reported (mistakenly, as it turned out) that he

recognized Jarrett as a suspect in a prior armed robbery. Officer

Gomsey arrived at the scene shortly after Jarrett fled from the

parking lot, and teamed with Officer McClelland and his dog Shadow

to track and apprehend Jarrett.

After helping Shadow over the fence, Officer McClelland

placed him on his customary 15-foot lead and followed closely

behind as the dog tracked Jarrett. Officer Gomsey continued the

pursuit at some distance behind McClelland and Shadow so as not to

contaminate the scent. For approximately twenty minutes Shadow led

the officers along a circuitous route through the residential

neighborhood until McClelland spotted Jarrett standing in the

middle of the road, approximately fifty yards away. Officer Gomsey

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had fallen too far behind to see McClelland, Shadow, or Jarrett,

but she heard McClelland yell three times: "Stop, police, or I'll

send the dog." McClelland testified that after he issued these

warnings, Jarrett accelerated and disappeared around a corner.

Only then, according to McClelland, did he release Shadow with

instructions to locate Jarrett and hold him.

Shadow is trained to execute the "bite-and-hold"

technique upon release, meaning that he will bite and maintain his

hold upon a suspect until the handler orders him to let go.

Accordingly, a suspect who struggles with a dog trained to bite and

hold may be bitten several times if the dog loses his grip and is

forced to re-establish his hold. Yet the undisputed evidence at

trial indicated that the vast majority of jurisdictions within the

United States employ bite-and-hold policies. An alternative

technique, not widely adopted, is the "circle and bark" method. A

dog trained to circle and bark will circle his target, barking,

until his handler arrives. The dog will bite only if the target

then attempts to move outside the "circle".

Because Shadow was trained to bite and hold, Officer

McClelland knew with a high probability that if Shadow was

released, he would bite the fleeing suspect. In fact, within

thirty seconds of his release, Shadow apprehended Jarrett by biting

him on the leg. Shadow was only out of McClelland's sight for

those thirty seconds; as soon as McClelland found Shadow he

-5-
commanded him to release Jarrett, and Shadow complied. An

ambulance arrived within five minutes and transported Jarrett to a

hospital, where he received stitches for cuts on his lower right

leg. For the next two weeks Jarrett received daily medical

treatment for his injuries; one year after the incident he still

complained of pain and an inability to stand.

Not surprisingly, Jarrett recounts a different version of

events. At trial, he testified that after finishing his shift at

work, he picked up a car that he had recently purchased. He

claimed not to have noticed the police officers trailing him on

Route 28, and further testified that he pulled off the road into

the parking lot because he was experiencing brake problems and

trying to find a place to slow down. Jarrett admitted seeing

police lights shortly before hitting the cement post, but insisted

that he never saw a police cruiser heading toward his car.

According to Jarrett, he fled after hitting the cement post because

"I was driving illegally for one. And I knew that . . . if I got

arrested, I was going to end up going to jail." Indeed, the record

indicates that prior to the events in question, a warrant for

Jarrett's arrest was issued after he failed to appear at a

surrender hearing on a separate matter. However, both parties

agree that the police officers pursuing Jarrett on December 16 were

not aware of this outstanding arrest warrant.

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 After jumping the fence, Jarrett testified that he

slipped and fell down, at which point he heard someone yell "Stop."

He rose to his feet, and again heard someone yell, "Stop, or I'll

let the dog go." Jarrett claims that he stopped running and put

his hands in the air. Soon thereafter, however, Shadow jumped on

his back and bit him twice on the leg in response to verbal

commands issued from someone Jarrett could not see. Jarrett was

ultimately apprehended by officers McClelland and Gomsey and

charged with several misdemeanor offenses: (1) operating a motor

vehicle with a suspended license; (2) leaving the scene of an

accident; (3) operating an uninsured motor vehicle; and (4) failing

to stop for a police officer. He was also charged with several

civil infractions: (1) operating an unregistered motor vehicle; (2)

failing to yield at an intersection; (3) speeding; and (4)

operating a motor vehicle with defective equipment.

II.

On December 11, 1997, Jarrett filed section 1983 claims

against the Town of Yarmouth and five Yarmouth police officers in

the District Court of Massachusetts. Jarrett's complaint alleged

inter alia that Officer McClelland's act of releasing Shadow

constituted excessive force in violation of the Fourth Amendment,

characterizing Shadow as an "instrument of potentially deadly

force." Jarrett sought compensatory and punitive damages from

McClelland for his alleged use of excessive force, and punitive

-7-
damages from Chief Chapman for tolerating a pattern and practice of

excessive force by Officer McClelland.

The case proceeded to a jury trial, which the court

divided into two phases. In the first phase of the trial, the

jurors considered Jarrett's excessive force claim against Officer

McClelland. They ultimately returned a verdict for Jarrett,

finding by a preponderance of the evidence that "Officer Peter

McClelland used excessive force on Jerome Jarrett on 12/16/94."

However, the jury only awarded Jarrett one dollar in compensatory

damages and no punitive damages. Although, as noted above, the

Town of Yarmouth was not mentioned in either the jury instructions

or on the verdict form, the jury, unprompted, appended to their

verdict a recommendation that "the Town of Yarmouth be required

from this time forward to . . . . retrain current K-9 units to use

the find and bark method."3 Following the verdict, McClelland and

Chapman moved for judgment as a matter of law, renewing the

argument that they were entitled to qualified immunity.

The judge denied the motion, and the trial moved into its

second phase, where the jury considered Jarrett's claim for

punitive damages against Chief Chapman. After hearing the

evidence, the jury completed the verdict form for Phase II. In

response to the first question -- "Did defendant Peter McClelland

3
Jarrett does not argue on appeal that the jury's
"recommendation" alone imposes liability on the Town or has any
other binding effect.

-8-
act in accordance with the Town of Yarmouth (sic) policy and

procedure when he released the dog on December 16, 1994?" -- the

jury answered "Yes." As noted, the jury had earlier concluded in

Phase I that Officer McClelland used excessive force in

apprehending Jarrett on the night in question. See supra. These

two findings, coupled with the jury's admonition that the Town

should retrain its dogs to use the find and bark method, suggest

that the jury found the Town of Yarmouth's bite-and-hold policy to

be unconstitutional. The jury ultimately awarded Jarrett punitive

damages in the amount of "all reasonable legal fees and expenses

incurred by the plaintiff's attorney." The defense objected, and

the court ordered the jury to attach a specific dollar amount to

their verdict. After further deliberation, the jury came back with

a figure of $50,000, and the trial court entered judgment for

Jarrett in the amount of $1.00 for Phase I, and $50,000 for Phase

II.

McClelland and Chapman subsequently filed post-trial

motions for judgments as a matter of law, and, in the alternative,

sought new trials under Federal Rule of Civil Procedure 50(b). The

motions articulated two grounds for relief: 1) the two officers

were entitled to qualified immunity, and 2) the evidence did not

support the verdict in either phase of the trial. The district

court denied these motions, and the defendants appealed.

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 III.

A. Jurisdiction

As a threshold matter, Jarrett argues that we lack

jurisdiction to hear this appeal because the trial court failed to

enter a final appealable judgment or order. Specifically, he

points to the district court's failure to make any formal

disposition of his claims against Officer Gomsey, Officer Britt,

Officer White, and the Town of Yarmouth. According to the

appellant: "in a multi-defendant case such as this one where an

appeal is taken from an order or judgment disposing of claims

against less than all defendants, the appeal is premature and must

be dismissed."

Our jurisdiction is limited to "all final decisions of

the district courts of the United States." United States v.

Leichter, 160 F.3d 33, 35 (1st Cir. 1998) (quoting 28 U.S.C. §

1291) (emphasis added). We have previously observed that "[a]

'final decision' is ordinarily one which disposes of all the rights

of all the parties to an action." In re Licht & Semonoff, 796 F.2d

564, 569 (1st Cir. 1986). On numerous occasions, however, the

Supreme Court has stressed that § 1291 should be construed

practically rather than technically. See Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 375 (1981) (referring to "a tradition

of giving § 1291 a practical rather than a technical

construction"); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 486 (1975).

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Applying this pragmatic approach, at least two circuits have

concluded that a federal district court decision is appealable

under section 1291 even if it does not formally dispose of claims

that were abandoned at trial. See Vaughan v. Mobil Oil, 891 F.2d

1195, 1198 (5th Cir. 1990); American Nat. Bank & Trust Co. of

Chicago v. Bailey, 750 F.2d 577, 580-81 (7th Cir. 1984), cert.

denied, 471 U.S. 1100 (1985). The Fifth Circuit remarked in

Vaughan that it was "inclined to fasten finality upon a judgment

that reflects the intention of the judge to dispose of all the

business before him or her." 891 F.2d at 1197. Hence, "[a]n order

that effectively ends the litigation on the merits is an appealable

final judgment even if the district court does not formally include

judgment on a claim that has been abandoned." Id. at 1198

(citations omitted). Here, Jarrett does not contest that his

claims against Gomsey, Britt, and White were abandoned below.

Accordingly, the district court's failure to enter judgment for the

three officers is a technical defect that does not undermine our

appellate jurisdiction. Firestone Tire, 449 U.S. at 373.

Jarrett also claims, however, that the court failed to

enter a verdict on Jarrett's municipal liability claim against the

Town of Yarmouth. We disagree. The district court properly

entered judgment against Officer McClelland and Chief Chapman, both

of whom were sued in their individual and official capacities.

Jarrett himself argues that "[w]hen an individual is sued in his

-11-
official capacity, the lawsuit is in reality a claim against the

entity." See Brandon v. Holt, 469 U.S. 464, 471-72 (1985);

Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir.

1993) ("An official capacity suit is, in reality, a suit against

the governmental entity, not against the governmental actor."). As

a general rule, therefore, a court entering judgment against

municipal officers in their official capacities is entering

judgment against the municipality as well. Superficially, however,

the facts of this case present an additional complication. While

Jarrett sued the officers in both their individual and official

capacities, the jury's award of punitive damages in Phase II

appears to resolve only Jarrett's claim against Chief Chapman in

his individual capacity. See Biggs v. Meadows, 66 F.3d 56, 61 (4th

Cir. 1995) ("[An] indication that a suit has been brought against

a state actor personally may be a request for . . . punitive

damages, since such relief is unavailable in official capacity

suits.").

Upon closer examination, the jury's award of punitive

damages on the Phase II verdict form does not undermine the

finality of the district court's decision with respect to the Town.

The proceedings below clearly reflect Jarrett's intent to resolve

the Monell municipal liability issue by soliciting the jury's

response to question one on the Phase II verdict form: "Did Peter

McClelland act in accordance with the Town of Yarmouth policy and

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procedure when he released the dog on December 16, 1994?" The

second question on the Phase II verdict form -- "Has the plaintiff

proved by a preponderance of the evidence that Chief Chapman

permitted and tolerated a pattern and practice of unjustified,

unreasonable and excessive force by Officer McClelland with respect

to the latter's deployment of Shadow?" -- was then intended to

resolve Chapman's liability in his individual capacity for faulty

supervision, and the punitive damages awarded related only to

Chapman in his individual capacity.

The jury's affirmative response to Question #1, coupled

with its earlier finding in Phase I that Officer McClelland used

excessive force to apprehend Jarrett, established a basis for

imposing liability on the Town for promulgating an unconstitutional

policy -- the precise disposition that Jarrett sought for his

Monell claim. By entering judgment on both verdicts, the district

court terminated litigation on the merits with respect to

McClelland, Chapman and the Town, see Vaughan, 891 F.2d at 1198,

thereby establishing a final, appealable decision. Accordingly,

finding no merit in Jarrett's jurisdictional claims, we proceed to

address the alleged constitutional violation.

B. The Alleged Constitutional Violation

1. The primacy of the constitutional question in the
qualified immunity inquiry

After the jury issued its verdict against Chief Chapman

in Phase II of the bifurcated proceedings, McClelland and Chapman

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moved for judgment as a matter of law, arguing inter alia that the

verdicts against them could not stand because the two officers were

entitled to qualified immunity. The district court denied their

motions, and McClelland and Chapman now argue on appeal that these

rulings were in error. "A district court's denial of qualified

immunity is a legal question that we review de novo." Davis v.

Rennie, 264 F.3d 86, 113 (1st Cir. 2001). In Saucier v. Katz, 533

U.S. 194 (2001), the Supreme Court offered the following general

guidance to courts reviewing qualified immunity determinations: "A

court required to rule upon the qualified immunity issue must

consider . . . this threshold question: Taken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officer's conduct violated a constitutional right? This

must be the initial inquiry." Id. at 201.

2. Reconciling the jury verdicts

Before addressing the merits of the constitutional

question, we must establish the factual predicate for our inquiry

by determining exactly what facts the jury found. As we observed

in Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999): "When a

qualified immunity defense is pressed after a jury verdict, the

evidence must be construed in the light most hospitable to the

party that prevailed at trial . . . [I]n such an exercise,

deference should be accorded the jury's discernible resolution of

disputed factual issues." Id. at 23 (internal citations omitted).

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 After Phase I of the bifurcated trial, the jury

determined that Officer McClelland used excessive force when he

released Shadow. However, this verdict is consistent with both

versions of the facts set forth by the parties at trial. The

verdict could have reflected the jury's belief that Officer

McClelland ordered Shadow to bite and hold after Jarrett

surrendered himself, in which case the appellant clearly suffered

a constitutional injury. See Mendoza v. Block, 27 F.3d 1357, 1362

(9th Cir. 1994) ("[N]o 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."). However, it is also plausible

that the jury determined that Officer McClelland acted

unreasonably, even while crediting his testimony that Jarrett

disregarded McClelland's verbal warnings, thereby forcing the

officer to release Shadow to apprehend a fleeing suspect. Under

these circumstances, it is not clear that Jarrett's Fourth

Amendment rights would have been violated.

In resolving this factual ambiguity, we note the jury's

explicit finding in Phase II that Officer McClelland acted in

accordance with the policies and procedures of the Town of Yarmouth

when he released Shadow. Nothing in the record suggests that

Yarmouth policies permit an officer to command a police dog to

attack a suspect who has already surrendered. In fact, the

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relevant regulations, which the defendants introduced at trial,

tightly circumscribe the situations in which police officers may

use force:

Non-deadly force4 may be used by a police
officer in the performance of his duty:
a) when necessary to preserve the
peace, prevent commission of offenses, or
prevent suicide or self-inflicted injury; or
b) when necessary to overcome
resistance to lawful arrests, searches and
seizures, and to prevent escapes from custody;
or
c) when in self-defense, or defense of
another against unlawful violence to his
person or property.

These regulations cannot be construed to sanction the use of any

force against a suspect who has surrendered peacefully. Hence, no

reasonable jury could accept Jarrett's version of the facts -- that

he had already surrendered when Officer McClelland released Shadow

-- and simultaneously conclude that McClelland acted in accordance

with the policies and procedures of the Town of Yarmouth.

Notably, Officer McClelland also testified during Phase

I of the proceedings that additional department regulations

compelled police dog handlers to announce "Stop, police, or I'll

release the dog" three times before releasing, and Officer Gomsey

confirmed that this practice was "routine." Both officers further

testified that McClelland in fact issued these warnings before

4
The regulations define non-deadly force as "that degree of
force which in the circumstance is neither likely nor intended to
cause great bodily harm." By contrast, deadly force is narrowly
defined as force "inflicted by firearms."

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releasing Shadow on the night in question. At trial, no witness

contradicted the officers' testimony regarding the existence and

vitality of these regulations. Thus, if the jury ultimately found

that McClelland acted in accordance with Yarmouth policies and

procedures, they must have implicitly found that he issued the

proper verbal warnings to Jarrett before releasing Shadow.

In the end, we can safely attribute the following factual

findings to the jury: 1) Officer McClelland issued three verbal

warnings to Jarrett before releasing Shadow, and 2) at the time

McClelland released Shadow, Jarrett had not surrendered to the

police, but was resisting arrest by fleeing. The jury nonetheless

determined that the defendant's use of force was excessive under

the circumstances. We must now consider whether this verdict can

stand as a matter of law.

3. Officer McClelland's alleged use of excessive force

"Where . . . the excessive force claim arises in the

context of an arrest . . . of a free citizen, it is most properly

characterized as one invoking the protections of the Fourth

Amendment, which guarantees citizens the right 'to be secure in

their persons . . . against unreasonable . . . seizures' of the

person." Graham v. Connor, 490 U.S. 386, 394 (1989). The Graham

Court established a balancing test for determining whether a

particular exercise of force is constitutional: "Determining

whether the force used to effect a particular seizure is reasonable

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under the Fourth Amendment requires a careful balancing of the

nature and quality of the intrusion on the individual's Fourth

Amendment interests against the countervailing governmental

interests at stake." Id. at 396 (internal quotation marks

omitted). Courts conducting this balancing exercise must undertake

a fact-intensive inquiry that is highly sensitive to the

circumstances of the particular case:

Because the test of reasonableness under the
Fourth Amendment is not capable of precise
definition or mechanical application . . . its
proper application requires careful attention
to the facts and circumstances of each
particular case, including the severity of the
crime at issue, whether the suspect poses an
immediate threat to the safety of the officers
or others, and whether he is actively
resisting arrest or attempting to evade arrest
by flight.

Id. (internal quotation marks and citations omitted). In reviewing

the conduct of law enforcement officials, "[t]he 'reasonableness'

of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20

vision of hindsight." Id. Because objective reasonableness is the

touchstone of the excessive force inquiry, the constitutional and

qualified immunity inquiries in this area are closely intertwined.

See Saucier, 533 U.S. at 206. Hence, the decisions of courts that

have previously addressed excessive force claims in the dog-biting

context may be instructive even if these claims were ultimately

resolved on qualified immunity grounds.

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 Before turning to the Graham balancing test, we digress

briefly to resolve an issue that has been lurking in the background

throughout this litigation -- namely, whether releasing a police

dog trained to bite and hold constitutes a use of deadly force.

The deadly/non-deadly distinction is significant in the Fourth

Amendment context; under clearly established law, the use of deadly

force is constitutional only if, at a minimum, a suspect poses an

immediate threat to police officers or civilians. See Tennessee v.

Garner, 471 U.S. 1, 11 (1985). Here, it is undisputed that Jarrett

did not pose such a threat. Accordingly, if the release of a

police dog is an exercise of deadly force, Officer McClelland

clearly violated Jarrett's Fourth Amendment Rights by releasing

Shadow to apprehend the appellee as he was running away.

In the leading case of Robinette v. Barnes, 854 F.2d 909

(6th Cir. 1988), the police released a dog into a building to

apprehend a burglary suspect. The dog fatally wounded the suspect

by biting him in the neck, and the administratrix of the decedent's

estate filed a § 1983 action alleging that the police had used

"unnecessary deadly force." Notwithstanding the fact that the

decedent was killed by the police dog, the Sixth Circuit determined

that "the use of a properly trained police dog to apprehend a

felony suspect does not carry with it a substantial risk of causing

death or serious bodily harm." Id. at 912 (internal quotation

marks and footnote omitted). The Ninth Circuit similarly concluded

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that the use of police dogs trained in the "bite and hold"

technique generally does not constitute deadly force, absent some

demonstration by the plaintiff "that properly trained police dogs

are reasonably capable of causing death." Vera Cruz v. City of

Escondido, 139 F.3d 659, 663 (9th Cir. 1997). Jarrett points us to

no contrary authority indicating that the use of trained police

dogs is considered deadly force under certain circumstances. In

fact, he concedes that "[b]ecause none of plaintiff's witnesses

testified that a police dog like McClelland's was deadly force, nor

did plaintiff's counsel argue it to the jury, and because the trial

court rejected plaintiff's deadly force instruction, the deadly

force issue is irrelevant to this appeal."

Consequently, our constitutional inquiry is confined to

the question of whether Officer McClelland exercised unreasonable

non-deadly force in releasing Shadow to apprehend Jarrett. Taking

into account the "jury's discernible resolution of disputed factual

issues," Iacobucci, 193 F.3d at 23, we can deduce how the relevant

events unfolded. As Officer McClelland was being radioed to the

scene, he overheard Officer White's conjecture that Jarrett was a

suspect in a prior armed robbery. McClelland arrived shortly after

Jarrett's unsuccessful efforts to elude two police officers ended

with him crashing his car into a cement post. Jarrett fled the

scene of this minor traffic incident, leaping a fence and racing

through an unlit residential neighborhood in the middle of the

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night to avoid arrest. Officer McClelland and Shadow finally

located Jarrett after tracking him for approximately twenty

minutes, and McClelland verbally warned him three times: "Stop,

police, or I'll send the dog." At that point Jarrett fled around

a corner, and McClelland released Shadow. In the ensuing thirty

seconds, Shadow apprehended Jarrett and bit him twice on the leg

before Officer McClelland arrived and commanded Shadow to release.

McClelland immediately radioed for an ambulance that arrived within

five minutes to transport Jarrett to a hospital, and shortly

thereafter the appellee received medical treatment for cuts to his

lower right leg.

After finding these facts, the jurors determined that

McClelland's application of the Town's bite-and-hold policy was

unreasonable, apparently because they found the policy itself to be

unconstitutional. Their indictment of the bite-and-hold policy,

however, finds no support in the case law. In a 1994 dog-biting

case factually similar to the case at bar, the Ninth Circuit noted

that

[w]hen 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

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 considered the constitutionality of such a
policy had upheld that practice.

Chew v. Gates, 27 F.3d 1432, 1447 (9th Cir. 1994) (citing

Robinette, 854 F.2d at 909). We are aware of no post-Chew

decisions suggesting that bite-and-hold policies are

unconstitutional per se. Indeed, four years after Chew, the Ninth

Circuit reiterated in Watkins v. City of Oakland, 145 F.3d 1087

(9th Cir. 1998), that since Chew "there had no been no change in

the law that would have alerted [the defendant] that his use of a

police dog to search and bite was unconstitutional." Id. at 1092.

The jury thus had no basis to conclude that the Town of

Yarmouth's bite-and-hold policy was unconstitutional. Our

determination that there is no record support for finding bite-and-

hold policies unconstitutional on their face, however, still leaves

open the question of whether the particular use of bite-and-hold

force at issue here was excessive under the circumstances. Without

excluding the importance of other factors, the Graham Court focused

its reasonableness inquiry on three factors in particular: 1)

whether the suspect is actively resisting arrest or attempting to

evade arrest by flight, 2) whether the suspect poses an immediate

threat to the safety of the officers or others, and 3) the severity

of the crime at issue. Graham, 490 U.S. at 396. As discussed

earlier, the jury must have concluded that Jarrett was "attempting

to evade arrest by flight" when McClelland released Shadow. With

regard to the second factor, McClelland could reasonably have

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concluded that Jarrett posed a threat to the safety of residents in

the neighborhood where the chase occurred. Jarrett's behavior

after the car accident was erratic, and tended to confirm Officer

White's suspicion that Jarrett was a suspect in a prior armed

robbery. McClelland could not discern whether Jarrett was armed

given the limited visibility, or predict the lengths to which

Jarrett would go to avoid arrest. The third Graham factor (the

severity of the crime at issue) slightly undermines the objective

reasonableness of McClelland's actions. At the time McClelland

released Shadow, he knew with certainty only that Jarrett had

committed several minor traffic infractions. However, this factor

alone is not dispositive, see Graham, 490 U.S. at 396, and we note

that at least one other court has upheld the reasonableness of

police-dog bites where the victim was only suspected of

misdemeanors, see Matthews v. Jones, 35 F.3d 1046, 1048 (6th Cir.

1994).

In the final analysis, after reviewing McClelland's

actions without "the 20/20 vision of hindsight," Graham, 490 U.S.

at 396, we simply do not find that McClelland's decision to release

Shadow was an exercise of objectively unreasonable force under the

circumstances. Our legal conclusion that McClelland did not use

excessive force to apprehend Jarrett is not inconsistent with the

jury's determination after Phase I that Jarrett did use excessive

force. As discussed earlier, it appears that the jury initially

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concluded that the Town of Yarmouth's bite-and-hold policy was

unconstitutional, and reasoned that any application of that policy

must be unconstitutional per se. Their reasoning was erroneous as

a matter of law. We conclude after conducting the Graham balancing

test that Officer McClelland's release of a dog trained to bite and

hold did not violate Jarrett's Fourth Amendment rights as a matter

of law.

Our determination that Jarrett suffered no constitutional

injury is dispositive of his municipal liability claim against the

Town of Yarmouth. As the Supreme Court observed in City of Los

Angeles v. Heller, 475 U.S. 796 (1986):

[N]either Monell . . . nor any other of our
cases authorizes the award of damages against
a municipal corporation based on the actions
of one of its officers when in fact the
[court] has concluded that the officer
inflicted no constitutional harm. If a person
has suffered no constitutional injury at the
hands of the individual police officer, the
fact that the departmental regulations might
have authorized the use of constitutionally
excessive force is quite beside the point.

Id. at 799 (original emphasis). Consequently, Jarrett's municipal

liability claim against the Town of Yarmouth must fail as a matter

of law.

IV.

We conclude that Officer McClelland did not violate

Jarrett's Fourth Amendment rights by using excessive force to

apprehend him on the night in question. In the absence of any

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constitutional violation, the verdicts against Officer McClelland,

Chief Chapman and the Town of Yarmouth must be vacated. The

decision of the district court is reversed, and this case is

remanded for entry of judgment in favor of defendants McClelland,

Chapman, and the Town of Yarmouth.

It is so ordered.

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