Miller v. Clark County

• Decision Date: 21 August 2003
• Docket Number: No. 02-35558.,02-35558.
• Citation: 340 F.3d 959
• Parties: James Tracey MILLER, Plaintiff-Appellant, v. CLARK COUNTY; Edward J. Bylsma, in his capacity as a police officer for Clark County and as an individual, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 959

340 F.3d 959

James Tracey MILLER, Plaintiff-Appellant, v. CLARK COUNTY; Edward J. Bylsma, in his capacity as a police officer for Clark County and as an individual, Defendants-Appellees.

No. 02-35558.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2003 — Seattle, Washington.

Filed August 21, 2003.

John R. Muenster, Muenster & Koenig, Seattle, Washington, for the plaintiff-appellant.

Dennis M. Hunter, Clark County Prosecuting Attorney's Office, Vancouver, Washington, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; J. Kelley Arnold, Magistrate Judge, Presiding, D.C. No. CV-01-05528-JKA.

Before Arthur L. Alarcón, Ronald M. Gould, and Richard R. Clifton, Circuit Judges.

OPINION

GOULD, Circuit Judge.

We consider whether a sheriff's deputy violated a criminal suspect's Fourth Amendment right to be free from unreasonable seizures by ordering a trained police dog to "bite and hold" the suspect until officers arrived on the scene less than a minute later. Because we conclude that the officer's use of the dog here did not violate the suspect's Fourth Amendments rights, we affirm the district court's judgment.

I

A Clark County Sheriff's Deputy was on routine patrol on the night of January 21, 2001, when he became suspicious of the driver of a silver Pontiac Fiero.¹ The deputy had conducted a computerized check and discovered that the Fiero bore a license plate registered to a different vehicle. Because the switched license plate constituted a traffic infraction and was evidence that the vehicle might have been stolen, the deputy turned on his emergency overhead lights and siren to signal the driver to pull over. The driver, later determined to be James Tracey Miller (the plaintiff in this action), refused.

At the entrance to a long driveway, the driver slowed the Fiero, and a passenger exited. The deputy pursued the passenger, while the driver drove the Fiero up the driveway unpursued. The deputy called for backup.

Soon thereafter, one of the defendants, Sheriff's Deputy Edward Bylsma, arrived with his police dog "Kimon." Deputy Bylsma and the dog walked up the long driveway and found the Fiero, now unoccupied, in front of a house. Deputy Bylsma learned that the plaintiff Miller lived in the house with his parents and that Miller was wanted by police for the felony of attempting to flee from police by driving a car with a wanton or willful disregard for the lives of others. Deputy Bylsma was told by other deputies that the house's residents were not "law enforcement friendly" and that a "10-96," a mentally ill person, lived there. He was told that Miller had been seen running away from the house a few minutes earlier. Deputy Bylsma saw a seven or eight-inch knife on the Fiero's seat.

Deputy Bylsma, along with another deputy and the police dog, tracked Miller across Miller's parents' large rural property. Deputy Bylsma, the other deputy, and the dog passed through underbrush, over electric fences, and across a field before arriving at some dense, dark, wooded terrain. The search party paused, and Deputy Bylsma yelled: "This is the Sheriff's Office. You have five seconds to make yourself known, or a police dog will be sent to find you." There was no response. Deputy Bylsma then let the dog off his leash and gave the dog a command that directed the dog to search for the suspect and detain him by biting his arm or leg. Deputy Bylsma watched the dog enter the woods and heard the dog breaking through the underbrush, as if "working the scent." About one minute later, Deputy Bylsma heard Miller scream. Deputy Bylsma immediately ran into the woods in the direction of the scream. Because it was dark and the woods were unfamiliar to him, it took Deputy Bylsma between forty-five and sixty seconds to arrive at a location from which he could see Miller. Deputy Bylsma saw that Miller was unarmed and that the police dog was biting Miller's upper arm. Deputy Bylsma ordered the dog to release Miller, and the dog promptly complied.

Miller was arrested and taken to the hospital with a severe injury. Miller's skin was torn in four places above the elbow, and the muscles underneath were shredded. Miller's biceps muscle was "balled up" in the antecupital space. His brachialis muscle — the muscle closest to the bone and alongside the brachialis artery — was torn. Miller's injury went as deep as the bone. He underwent surgery by an orthopedic surgeon and spent several days in the hospital. Miller continues to suffer lingering effects from the dog bite.

Deputy Bylsma's police dog is a specially trained German Shepherd. The dog is trained to "bite and hold" a suspect's arm or leg until Deputy Bylsma orders the dog to release. The dog bites with a force of 800 to 1,200 pounds per square inch, and the longer the dog bites, the more severely a suspect will be injured. Ordinarily, the dog bites a suspect for only about four seconds before Deputy Bylsma orders the dog to release. Here, however, the dog bit Miller for between forty-five and sixty seconds, because it took Deputy Bylsma that long to locate Miller and confirm that the dog could release him without posing a threat to officers.

Miller filed this action against Deputy Bylsma and against Clark County under 42 U.S.C. § 1983 alleging that Deputy Bylsma's use of the police dog in these circumstances constituted excessive force in violation of Miller's Fourth Amendment right to be free from unreasonable seizures. Before trial, the district court granted the defendants partial summary judgment on one Fourth Amendment issue, holding that Deputy Bylsma's use of the police dog did not constitute "deadly force." After a bench trial, the district court entered judgment in favor of both defendants, holding that Deputy Bylsma's use of the dog was not unreasonable "excessive force" under the circumstances.² Miller appeals.

II

The use of force to effect an arrest is subject to the Fourth Amendment's prohibition on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To determine whether Deputy Bylsma's use of the police dog to "bite and hold" Miller was an unconstitutional unreasonable seizure, we first consider whether Deputy Bylsma's use of the dog constituted "deadly force" — a category of force that is reasonable only in special circumstances.³ Because we are reviewing the district court's grant of partial summary judgment to the defendants on the deadly force issue, we must determine, viewing the evidence presented on the summary judgment motion in the light most favorable to Miller,⁴ if there is a genuine issue of material fact as to whether Deputy Bylsma used deadly force. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).

Deadly force means force reasonably likely to kill. Vera Cruz v. City of Escondido, 139 F.3d 659, 660 (9th Cir.1997).⁵ To be characterized as deadly, force must present "more than a remote possibility" of death in the circumstances under which it was used. Id. at 663. We have held that an officer's ordering a police dog to bite a suspect does not pose more than a remote possibility of death in most circumstances. Brewer v. City of Napa, 210 F.3d 1093, 1098 (9th Cir.2000) ("[T]he Garner analysis with respect to deadly force generally does not apply to the use of police dogs.").⁶ Notwithstanding this general rule, we have never before had occasion to determine whether an officer's ordering a police dog to bite a suspect's arm or leg and permitting the dog to continue biting for up to one minute, an unusually long bite duration, poses more than a remote possibility of death. Viewing the facts in the light most favorable to Miller, we conclude that such a seizure does not pose more than a remote possibility of death.

Kimon, the German Shepherd that bit Miller, bites with up to 1,200 pounds per square inch of pressure — pressure roughly comparable to that exerted by a car tire running over a body part. Although Kimon is trained to bite a suspect's arms and legs, Deputy Bylsma admitted it is "possible" the dog could bite a suspect's head or neck if that body part presented itself most readily.

Even if Kimon avoids a suspect's head and neck, and bites a suspect's arm or leg, as the dog is trained to do, his bite may pose some modest threat to a suspect's life. One of Miller's expert witnesses, Dr. Craig Eddy, a surgeon, submitted an affidavit opining that "[a] dog with the wound-inflicting capability of the dog that bit Mr. Miller is capable of lacerating arteries in the arms or legs, resulting in death due to exsanguination." This expert opined that a suspect could die in a few minutes if a dog happened to bite a suspect's arm or leg in the wrong place, severing a critical artery, and if the suspect were then permitted to bleed to death.

Deputy Bylsma testified at his deposition that the longer a dog is permitted to bite a suspect, the greater the likelihood the suspect will be injured severely.

Even if it is "possible" that Kimon could bite a suspect's head or neck, that Kimon is "capable" of lacerating arteries that could result in a suspect's bleeding to death, and that Kimon injures a suspect more seriously the longer he bites, we still conclude that Deputy Bylsma did not use deadly force when he caused Kimon to bite Miller for up to sixty seconds. Such mere "possibilities" and "capabilities" do not add up to a "reasonable probability." Even when we credit Miller's evidence, as we must at this stage, the risk of death from a police dog bite is remote. We reiterate that the possibility that a properly trained police dog could kill a suspect under aberrant circumstances does not convert otherwise nondeadly force into deadly force. See Vera Cruz, 139 F.3d at 663. Miller has not presented evidence that he was subjected to "more than a remote possibility of death," see id., so we affirm the district court's...