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
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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
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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
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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.
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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
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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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Jarrett v. Town of Yarmouth
Court: Court of Appeals for the First Circuit
Date filed: 2002-10-25
Citations: 309 F.3d 54
Copy CitationsCombined Opinion