429 F.3d 1168 (8th Cir. 2005), 04-2538, Szabla v. City of Brooklyn Park, Minnesota

Docket Nº:04-2538.
Citation:429 F.3d 1168
Party Name:Henry SZABLA, Plaintiff--Appellant, v. CITY OF BROOKLYN PARK, MINNESOTA, a Minnesota municipality; City of Crystal, Minnesota, a Minnesota municipality; Steven Baker, a canine officer of the City of Brooklyn Park, individually, and in his official capacity as a Police Officer of the City of Brooklyn Park; Officer Justin Tourville; Sgt. Stephen Holm
Case Date:December 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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429 F.3d 1168 (8th Cir. 2005)

Henry SZABLA, Plaintiff--Appellant,

v.

CITY OF BROOKLYN PARK, MINNESOTA, a Minnesota municipality; City of Crystal, Minnesota, a Minnesota municipality; Steven Baker, a canine officer of the City of Brooklyn Park, individually, and in his official capacity as a Police Officer of the City of Brooklyn Park; Officer Justin Tourville; Sgt. Stephen Holm, individually, and in their official capacities as Police Officers of the City of Crystal, Defendants--Appellees.

No. 04-2538.

United States Court of Appeals, Eighth Circuit.

December 1, 2005

Submitted: March 18, 2005

Appeal from the United States District Court for the District of Minnesota.

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Boris Parker, argued, Minneapolis, MN (Timothy R. Maher, on this brief), for appellant.

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

Joseph E. Flynn, argued, Lake Elmo, MN (Susan Steffen Tice, on the brief), for appellee City of Crystal, Officer Tourville, and Sgt. Holm.

Before WOLLMAN, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Henry Szabla appeals from the district court's entry of summary judgment against him in his 42 U.S.C. § 1983 (2000) civil rights suit against the City of Brooklyn Park, Minnesota; a Brooklyn Park police officer, Steven Baker; the City of Crystal, Minnesota; and two Crystal police officers, Justin Tourville and Stephen Holm. Szabla, who was homeless, was sleeping in a city park in Crystal when he was attacked by a police dog. He alleged a violation of his Fourth Amendment rights against unreasonable detention and unreasonable use of force in the course of a stop. He also alleged related state law claims. Szabla contends that the district court erred in holding that Szabla did not come forward with evidence sufficient to create a genuine issue of material fact to establish a Fourth Amendment violation by either municipality or by the Crystal police officers. Szabla also argues that the district court erred in holding that Baker was entitled to qualified immunity. Finally, Szabla takes issue with the district court's entry of summary judgment against him on his state law claims. We affirm in part and reverse and remand as to the § 1983 excessive force claim against the City of Brooklyn Park.

On the night of August 16-17, 2000, Henry Szabla slept in Becker Park, in Crystal, Minnesota. He chose Becker Park because it was across the street from Labor Ready, a temporary employment agency that hires workers on a daily basis, and Szabla wanted to be at Labor Ready at 5:30 the next morning so that he would be first in line to get a job for the day. Szabla settled in to a shelter for portable toilets that was partly empty, which gave him room to lie down on the concrete within the shelter.

Meanwhile, at about 1:20 a.m. on August 17, police in Crystal received a report of a car wreck near Becker Park. Three Crystal police officers, Justin Tourville, Mark Peterson, and Stephen Holm arrived at the scene to find a car rammed into a tree and abandoned. The car's windshield was broken, and there was an imprint where a head had hit the windshield. Hair was sticking out of the lining of the car's roof. The car had been abandoned. The officers contacted the registered owner of the car, who said that he had sold the car. The Crystal police determined that they needed to locate the driver because the car could have been stolen and the driver might be drunk or ill or injured. They requested a police dog to help them locate the driver. The City of Crystal did not have any police dogs, but it did have a cooperative arrangement with the City of Brooklyn Park, which agreed to send one of its police dogs, Rafco, and the officer who handled the dog, Steven Baker.

When Baker and Rafco arrived, Baker saw the car smashed into the tree, the broken windshield and the hair in the roof lining. He also noticed that there was a screwdriver on the ground next to the car and that the car was full of "property,"

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which suggested to him that the car might have been used in a burglary.

Baker put on Rafco's tracking harness and took him to the wrecked car to get the scent of the driver. Then Baker gave Rafco the command to "track," which means to find and apprehend a person. The track command focuses on one person and instructs the dog to bite and hold the person until the handler arrives. In contrast, a "search" command would have told the dog to range out over an area and follow any scent that comes up. When told to "search," the dog should not bite. When tracking, the dog is kept on a tracking harness with a lead. Baker testified that because he did not know whether the driver was fleeing because he was involved in a crime or whether the driver had a head injury or needed medical attention, Baker reduced the fifteen-foot lead to less than six feet. Baker testified that the dog was so close his tail was brushing Baker's knees.

Baker and the dog ran through the park. They approached the shelter for the portable toilets. As soon as he came by the wall, Rafco turned in the shelter and bit Henry Szabla, who was lying on the floor of the shelter. Szabla turned over, and grabbed the dog's head; the dog lost his hold and bit Szabla again. Baker ordered Szabla to show his hands. When Szabla put his hands out, Baker called the dog off. Szabla had bites on his legs. The number of actual bites was not clear from the record, but Szabla counted twenty-three tooth punctures on his legs and hip.

Crystal officer Holm arrived. He called Justin Tourville, who was in training, to handle the situation. Szabla testified that the police handcuffed him while he was still lying down and made him get up off the concrete by himself, while handcuffed. They patted him down and had him retrieve his billfold. When the police determined from talking to Szabla that he had no relationship to the car wreck, they took off the cuffs. Szabla himself estimated that he was in handcuffs for about "two minutes, if that." Szabla heard one of the officers say, "I gave the dog too much leash." Szabla was taken to the hospital by ambulance and treated for the bites.

Szabla brought this suit under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights against the use of excessive force and against unreasonable seizures. He also alleged state law claims under a state dog-bite statute and for common law negligence, negligent training, false arrest, intentional infliction of emotional distress, and assault.

The defendants moved for summary judgment. The district court held that Szabla had come forward with evidence that Baker had violated Szabla's Fourth Amendment right against use of excessive force in seizing his person. Szabla v. City of Brooklyn Park, No. 03-866ADM/AJB, 2004 WL 1144064, at *3 (D. Minn. May 18, 2004). The claim was predicated on Baker's use of the track or bite-and-hold command without first giving warning that he was going to do so. However, the court held that at the time of the seizure of Szabla, in August 2000, the right to an oral warning before a police dog was given the command to track was not clearly established, and Baker therefore did not violate Szabla's clearly established right. Id. at *4. The court rejected the claim of unlawful detention against the individual Crystal officers, since the record showed Szabla had not been unreasonably detained, but rather that the officers had an objectively reasonable basis to believe that Szabla may have been armed and dangerous. Id. at *5. The court held that Szabla's Monell-type1 claims against Brooklyn Park and

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Crystal were without merit because Szabla could not identify a pattern, practice or policy of the municipalities that caused a constitutional violation. Id. at * 5-6. In particular, the court stated that Szabla did not argue that Brooklyn Park caused the violation of his rights by its policy on police dogs, which did not require warning before giving a bite-and-hold command. Id. at *5, n.5.

As to the state law claims, the court held that the state dog-bite statute was not applicable because it covered bites that occurred "in any place where the person may lawfully be," Minn. Stat. § 347.22, whereas Szabla was in a park after closing time, which was prohibited by an ordinance of the City of Crystal. 2002 WL 144064, at *6. The court held that the common law claims against the individual officers were barred by the state doctrine of official immunity and that the claims against the municipalities were barred by the corresponding doctrine of vicarious official immunity. Id. at *8.

We review de novo the district court's grant of summary judgment and its qualified immunity determination. Kuha v. City of Minnetonka, 365 F.3d 590, 596 (8th Cir. 2004).

I.

Szabla contends that the district court erred in holding that Baker was shielded by qualified immunity from Szabla's claim that Baker violated his Fourth Amendment right against the use of excessive force. When the defense of qualified immunity is raised on a motion for summary judgment, the first question must be whether the facts, taken in the light most favorable to the plaintiff, show the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, then we consider whether the right was clearly established in the specific context of the case. Id.

In Baker's case, both questions are answered by our recent decision in Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2004). In Kuha we considered whether the use of a dog to track and bite a fleeing suspect without giving the suspect prior warning violated the Fourth Amendment's prohibition against the use of excessive force. In that case, the police were tracking a fleeing suspect who had disappeared into a swamp. We...

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