486 F.3d 385 (8th Cir. 2007), 04-2538, Szabla v. City of Brooklyn Park, Minnesota

Docket Nº:04-2538.
Citation:486 F.3d 385
Party Name:Henry SZABLA, 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, individua
Case Date:May 18, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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486 F.3d 385 (8th Cir. 2007)

Henry SZABLA, Appellant,


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, Appellees.

No. 04-2538.

United States Court of Appeals, Eighth Circuit.

May 18, 2007

Submitted: April 18, 2006.

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[Copyrighted Material Omitted]

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

Jon K. Iverson, argued, Bloomington, MN (Jason J. Kuboushek, Bloomington, MN, Joseph E. Flynn, Susan S. Tice, Lake Elmo, MN, on the brief), for appellee.


COLLOTON, Circuit Judge.

Henry Szabla appeals the district court's 1 grant of summary judgment in favor of the appellees on his claims brought pursuant to 42 U.S.C. § 1983 and

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Minnesota law. A panel of this court affirmed the dismissal of most claims, but reversed the district court's grant of summary judgment on Szabla's claim for municipal liability against the City of Brooklyn Park, Minnesota. Szabla v. City of Brooklyn Park, 429 F.3d 1168 (8th Cir.2005). We granted the City's petition for rehearing en banc limited to the question of Brooklyn Park's municipal liability, and we now affirm that portion of the judgment as well.


At about 1:20 a.m. on August 17, 2000, police officers from the City of Crystal, Minnesota, responded to a report that an automobile had struck a tree near Becker Park. The officers found the car, which had been abandoned, and they saw that the car's windshield had been shattered and there was an imprint where a person's head had struck the windshield. The officers called the registered owner of the car, who said he had previously sold it. The officers then began to search for the driver, and one of the officers determined that assistance from a police canine would help to find the driver. The Crystal Police Department did not have a canine unit, so the officers requested assistance from the City of Brooklyn Park. Brooklyn Park dispatched one of its canines, Rafco, with his handler, Officer Steven Baker, to the scene.

When Baker and Rafco arrived at the abandoned car, Baker discovered a screwdriver, which he thought could have been used as a burglary tool or weapon, and observed "property" in the back seat of the car, which Baker believed could have been the fruits of a burglary. Baker testified that because officers did not know whether they were looking for a criminal suspect or an innocent injured person, he gave Rafco the command to "track," which is the command for Rafco to apprehend or bite the individual he is tracking. Baker said that he chose not to give Rafco the command to "search," a command that directs the dog to refrain from biting a person, because he was concerned about officer safety in the event the dog led him to a criminal suspect.

Baker began to search Becker Park once Rafco acquired a scent emanating from the crashed automobile. Baker had Rafco on a fifteen-foot leash, but provided the canine with only about a six-foot lead. He did not shout a warning that a police dog was in the area. Rafco led Baker through the park to a shelter within the park. Once Rafco entered the shelter, he bit Szabla, who had been asleep in the shelter. (Szabla slept in the park, which closed at 11 p.m., because it was across the street from a temporary employment agency that hired workers on a daily basis). Szabla kicked Rafco off, and Rafco bit Szabla a second time. Baker ordered Szabla to show his hands, and Baker instructed Rafco to release Szabla once he complied with the order. The Crystal officers arrived moments later, and they temporarily arrested Szabla. The officers released Szabla within two minutes, after verifying that he was not involved in the automobile accident. Szabla testified that when the officers were walking away, he heard one of them say, "I gave the dog too much leash." Szabla reported that he suffered 23 punctures on his legs and hip.

Szabla brought this action pursuant to 42 U.S.C. § 1983 and Minnesota state law against the cities of Crystal and Brooklyn Park, as well as the individual officers involved. The district court granted the defendants' motions for summary judgment. The district court concluded that Baker had used excessive force against Szabla, in violation of Szabla's Fourth Amendment rights, by commanding Rafco

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to "track," or bite and hold, without first providing a warning. The court held, however, that Baker was protected by qualified immunity, because the right to a warning was not clearly established at the time of the incident. The court also dismissed Szabla's claims arising under § 1983 against the Crystal police officers and the City of Crystal, as well as Szabla's claims under Minnesota law against all of the defendants. A panel of our court affirmed the judgment of the district court on each of these claims, Szabla, 429 F.3d at 1173-75, 1176-77, and they are not within the scope of this rehearing.

Szabla also raised a claim of municipal liability under § 1983 against the City of Brooklyn Park. The district court held that Szabla failed to specify which of Brooklyn Park's policies was allegedly unconstitutional, and ruled that the "isolated incident" of Rafco biting Szabla could not support a claim that the City acted with deliberate indifference by failing adequately to train its officers. The district court concluded that Szabla had not raised an argument, comparable to that discussed in Kuha v. City of Minnetonka, 365 F.3d 590, 603-07 (8th Cir.2004), that the City was liable for adopting a policy that authorized police officers to use a canine to bite and hold a suspect, but did not mandate that the officer give an advance warning. A panel of our court concluded that Szabla had adequately raised a claim based on Kuha in the district court, and held that he presented sufficient evidence to overcome Brooklyn Park's motion for summary judgment. 429 F.3d at 1175-76. We granted rehearing en banc to consider the merits of this claim for municipal liability.


Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipality is a "person" that can be liable under § 1983. Id. at 690, 98 S.Ct. 2018. At the same time, the Court concluded that a municipality may not be found liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691, 98 S.Ct. 2018. The Court did not address the full contours of municipal liability under § 1983, but established that a municipality cannot be held liable on a respondeat superior theory, that is, solely because it employs a tortfeasor. Id.

Monell was a case where the city's policy was itself unconstitutional. The policy compelled a constitutional violation by requiring pregnant female employees to take unpaid leaves of absence before their absences from work were medically necessary. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). The potential for municipal liability in that situation is well established, because a constitutional violation flows directly from a policymaker's deliberate choice reflected in an official policy or action. E.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 484-85, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 251-52, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Owen v. City of Independence, 445 U.S. 622, 627-29, 633 & n. 13, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). "Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving [the] issues

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of fault and causation is straightforward." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404-05, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). To establish a constitutional violation, no evidence is needed other than a statement of the municipal policy and its exercise. City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion).

But where an official policy is lawful on its face and does not compel unconstitutional action by an employee of the municipality, the analysis is different. As a plurality of the Court remarked in Tuttle, "[o]bviously, if one retreats far enough from a constitutional violation some municipal 'policy' can be identified behind almost any such harm inflicted by a municipal official." Id. at 823, 105 S.Ct. 2427 (plurality opinion). Accordingly, "some limitation must be placed on establishing municipal liability through policies that are not themselves unconstitutional, or the test set out in Monell [foreclosing respondeat superior liability] will become a dead letter." Id.

The appropriate limitation was addressed in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), which involved an allegation that constitutional violations resulted from a municipality's failure adequately to train its police force. The Court explained that " '[m]unicipal liability under § 1983 attaches where--and only where--a...

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