Kuha v. City of Minnetonka, 02-1081.

• Citation: 365 F.3d 590
• Decision Date: 08 May 2003
• Docket Number: No. 02-1081.,02-1081.
• Parties: Jeffrey M. KUHA, Plaintiff-Appellant, v. CITY OF MINNETONKA; William Roth; Kevin Anderson; Dennis Warosh; Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

365 F.3d 590

Jeffrey M. KUHA, Plaintiff-Appellant, v. CITY OF MINNETONKA; William Roth; Kevin Anderson; Dennis Warosh; Defendants-Appellees.

No. 02-1081.

United States Court of Appeals, Eighth Circuit.

Submitted: October 7, 2002.

Filed: May 8, 2003.

Amended: April 27, 2004.

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Kay N. Hunt, argued, Minneapolis, MN (Phillip A. Cole and Markus C. Yira, on the brief), for appellant.

Jon K. Iverson, argued, Bloomington, MN (Paul D. Reuvers and Jason J. Kuboushek, on the brief), for appellee.

Before MURPHY, JOHN R. GIBSON, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

An opinion in this case was filed on May 8, 2003. Both parties filed timely motions for rehearing by the panel and rehearing en banc. The motion for rehearing by the panel is granted. Pursuant to the grant of that motion, this amended and substituted opinion is filed.

After fleeing a routine traffic stop in the early morning hours, the plaintiff-appellant, Jeffrey M. Kuha, was tracked to a grassy field by two police officers and a police dog. The dog, trained to bite and hold until commanded to release, bit Kuha near his groin, severing his femoral artery. Pursuant to 42 U.S.C. § 1983, Kuha brought an excessive force claim against the City of Minnetonka and several officers¹ involved in the incident. Kuha also brought state tort claims for negligence, assault, and battery. The district court granted summary judgment to the defendants, holding that Kuha could not demonstrate a constitutional violation and therefore could not state a claim under § 1983. The district court alternatively held that even if a constitutional violation could be established, the police officers had qualified immunity for their actions, and Kuha could not show that the violation was caused by inadequate training or a custom, practice or policy of the City. The state claims were dismissed under Minnesota's immunity doctrine. This appeal followed.

We reverse in part and affirm in part. We hold that Kuha's allegation that the police officers failed to give a verbal warning prior to using a police dog trained to bite and hold is sufficient to state a Fourth Amendment claim. Thus, we disagree with the district court's initial determination that Kuha failed to allege a constitutional violation. We also disagree with the district court's conclusion that the City is not liable under § 1983 as a matter of law. We agree, however, that the individual officers are shielded from suit by qualified immunity, and that the state claims were properly dismissed against all defendants.

I.

On the evening of September 22, 1999, Kuha went to a bar with friends. He states that he had four or five beers at the bar and then drove to a friend's house. Kuha claims he left his friend's home at approximately 1:00 a.m., intending to drive home. Shortly after leaving, he drove his car into a roadside curb, damaging the car and flattening the tire. Kuha walked back to his friend's house to get help. He and his friend changed the tire and placed the damaged tire on the front seat of the car. Kuha then continued on his way home.

At approximately 5:30 a.m., Kuha encountered Officer Roth, a Minnetonka police officer, who was driving in the opposite direction. Kuha failed to dim his lights when he approached the oncoming police car. Officer Roth made a u-turn and pulled Kuha over. Officer Roth called in the vehicle's license plate information and started to get out of the car for what appeared to be a routine traffic stop.

At this point, Kuha opened his door, got out, looked at the officer, and ran from his car, heading for a ditch and swamp abutting the road. Officer Roth attempted to follow Kuha but Kuha disappeared into the swamp. Beyond the swamp was a hilly area with high grass and dense brush and foliage. Beyond that were apartment and office buildings. Officer Roth returned to his police car and called for back-up. While waiting for back-up, Officer Roth inspected Kuha's car, noting its damage and the flat tire on the front seat. He also found Kuha's wallet and concluded that the picture on the license matched that of the person who had fled from the scene.

Within minutes, Officers Warosh and Anderson arrived. They were accompanied by Officer Anderson's K-9 partner, "Arco." Arco is trained under a "bite and hold" method; thus, if given a "find" command, Arco will find, bite and "hold" a suspect until commanded to release. While tracking Kuha, Officer Anderson held Arco's leash in one hand and a flashlight in the other. Officer Warosh provided cover for the K-9 team. Arco remained on his leash as they tracked plaintiff up a steep, woody hill and toward a grassy field.

Approximately thirty minutes after the initial stop, and as the K-9 team reached the top of a hill, Arco alerted, indicating that plaintiff was relatively nearby. At this point, Arco was around ten feet out on his lead. Arco bounded into the three-foot-high grass and "seized" Kuha. Arco is trained to bite and hold the first body part that he reaches. In this instance, Arco bit Kuha's upper leg. Kuha was naked except for his boxer shorts. He claims that he took off his clothes after swimming through the swamp because they were wet and cold.

Kuha states that he held his hands up to surrender as the officers approached and before Arco bit him, but concedes that the officers may not have seen him because of the high grass. The officers aver that they did not see the seizure but instead heard Kuha scream and arrived on the scene immediately thereafter. Prior to calling off Arco, Officers Anderson and Warosh inspected the area around and under Kuha to ensure he was unarmed. During this time, Kuha gripped Arco's head trying to free his hold. Officer Anderson repeatedly told Kuha he would not call off the dog until Kuha let go of the dog and put his hands up. Kuha eventually complied and Officer Anderson called off the dog. It is undisputed that the entire apprehension, from bite to release, took no more than ten to fifteen seconds.

The officers then handcuffed Kuha and noticed that Kuha was bleeding from the site where Arco bit him. They applied pressure to the wound and called for an ambulance. A subsequent medical examination revealed that Arco's bite had pierced plaintiff's femoral artery, causing substantial blood loss.

On May 25, 2000, Kuha pled guilty to the charge of disobeying a police officer. According to Kuha, he ran from Officer Roth because he feared he may have been over the legal alcohol consumption limit. Kuha claims he was afraid of being convicted for driving under the influence which would have severely hindered his prospects for a career as a commercial pilot. A sample of Kuha's blood was taken at the hospital when he was treated for the dog bite. The sample placed Kuha's blood alcohol level above the legal limit. He was not charged with driving under the influence, however, because of concerns that his blood loss may have altered the results of the test.

II.

We review de novo the district court's grant of summary judgment and its qualified immunity determination. See Hill v. McKinley, 311 F.3d 899, 902 (8th Cir.2002); Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir.2002).

A. Kuha's § 1983 claims:

"In order to survive a motion for summary judgment under § 1983, the plaintiff must raise a genuine issue of material fact as to whether (1) the defendants acted under color of state law, and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right." Cooksey, 289 F.3d at 515 (citations omitted).

Kuha asserts that Officers Anderson and Warosh used excessive force in violation of the Fourth and Fourteenth Amendments in: (1) using a dog trained in the "bite and hold" method under the circumstances of the case — where Kuha had fled from a minor traffic violation and there was no legitimate concern that he was armed or dangerous; (2) allowing the dog to attack Kuha without warning; and (3) refusing to call off the dog when it was clear that Kuha was unarmed and not dangerous. Kuha alleges municipal liability based on the City's failure to properly formulate a police dog policy that contemplates less dangerous methods-e.g., the "find and bark" method. Kuha also alleges municipal liability based on the City's inadequate training, control and supervision of its officers regarding the appropriate use of police dogs.

Kuha's excessive force claim is analyzed under the Fourth Amendment's "objective reasonableness" standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (clarifying that "all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard") (emphasis in original). "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), quoted in Graham, 490 U.S. at 396, 109 S.Ct. 1865. "[H]owever, 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." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), characterizing the inquiry as "whether the totality of the circumstances justifie[s] a particular sort of ... seizure"). In sum, "the nature and quality of the intrusion on the individual's Fourth Amendment interests [must be balanced] against the importance of the governmental interests alleged to justify the intrusion."...