27 F.3d 1432 (9th Cir. 1994), 91-55718, Chew v. Gates

Docket Nº:91-55718.
Citation:27 F.3d 1432
Party Name:Thane Carl CHEW, Plaintiff-Appellant, v. Daryl GATES, individually and as Chief of the Los Angeles Police Department; City of Los Angeles, a Municipal Corporation and Public Entity of the State of California; and Daniel Bunch; Donald Yarnall; Mark Mooring; Patrick McKinley; and Does 1 through 10, 14, 16 through 20, inclusive, each individually and
Case Date:June 27, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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27 F.3d 1432 (9th Cir. 1994)

Thane Carl CHEW, Plaintiff-Appellant,


Daryl GATES, individually and as Chief of the Los Angeles

Police Department; City of Los Angeles, a Municipal

Corporation and Public Entity of the State of California;

and Daniel Bunch; Donald Yarnall; Mark Mooring; Patrick

McKinley; and Does 1 through 10, 14, 16 through 20,

inclusive, each individually and as a Los Angeles Police

Officer, Defendants-Appellees.

No. 91-55718.

United States Court of Appeals, Ninth Circuit

June 27, 1994

Argued and Submitted Aug. 18, 1992.

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George V. Denny, III, Los Angeles, CA, and Ralph Leardo, Law Offices of Nancy Ann Fellom, San Francisco, CA, (argued) for plaintiff-appellant.

Richard M. Helgeson, Asst. City Atty., Los Angeles, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: NORRIS, REINHARDT, and TROTT, Circuit Judges.

Opinion by Judge REINHARDT; Partial Concurrences and Partial Dissents by Judges NORRIS and TROTT.

REINHARDT, Circuit Judge:

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. 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. Sec. 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 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.

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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 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 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for injuries allegedly resulting 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. 1

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 Secs. 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" 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

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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. 2

Under Article III, federal appellate courts may adjudicate only actual, ongoing controversies between the litigants. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 527, 98 L.Ed.2d 529 (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, Sec. 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 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...

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