593 F.3d 348 (4th Cir. 2010), 08-2393, Melgar ex rel. Melgar v. Greene

Docket Nº:08-2393.
Citation:593 F.3d 348
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:Jose R. MELGAR, parent and guardian of Oscar MELGAR, Plaintiff-Appellee, v. John GREENE, Officer; Montgomery County, Maryland, Defendants-Appellants.
Attorney:William Antoine Snoddy, Office of the County Attorney for Montgomery County, Maryland, Rockville, Maryland, for Appellants. Terrell Roberts, Roberts & Wood, Riverdale, Maryland, for Appellee. Leon Rodriguez, County Attorney, Marc P. Hansen, Deputy County Attorney, Edward B. Lattner, Chief, Divisi...
Judge Panel:Before WILKINSON, MICHAEL, and AGEE, Circuit Judges. Judge WILKINSON wrote the opinion, in which Judge AGEE joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part. MICHAEL, Circuit Judge, dissenting in part and concurring in part:
Case Date:January 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 348

593 F.3d 348 (4th Cir. 2010)

Jose R. MELGAR, parent and guardian of Oscar MELGAR, Plaintiff-Appellee,

v.

John GREENE, Officer; Montgomery County, Maryland, Defendants-Appellants.

No. 08-2393.

United States Court of Appeals, Fourth Circuit.

January 29, 2010

Argued: Oct. 29, 2009.

Page 349

[Copyrighted Material Omitted]

Page 350

ARGUED:

William Antoine Snoddy, Office of the County Attorney for Montgomery County, Maryland, Rockville, Maryland, for Appellants.

Terrell Roberts, Roberts & Wood, Riverdale, Maryland, for Appellee.

ON BRIEF:

Leon Rodriguez, County Attorney, Marc P. Hansen, Deputy County Attorney, Edward B. Lattner, Chief, Division of Human Resources & Appeals, Office of the County Attorney For Montgomery County, Maryland, Rockville, Maryland, for Appellants.

Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.

Page 351

Reversed and remanded by published opinion.

Judge WILKINSON wrote the opinion, in which Judge AGEE joined.

Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part.

OPINION

WILKINSON, Circuit Judge:

In this case, we address the Fourth Amendment claim of a lost and intoxicated thirteen-year-old boy who was accidentally bitten by a police patrol dog used by an officer to find him. The boy's father, Appellee Jose Melgar, sued the canine officer under 42 U.S.C. § 1983 and sued the officer and the police department under Article 26 of the Maryland Declaration of Rights. While we cannot accept the officer's contentions on the merits of plaintiff's Fourth Amendment claim, we do think he is entitled to qualified immunity in this case. As to the state claim, we remand for dismissal without prejudice to plaintiff's right to proceed in state court.

I.

Around 7:00 p.m. on the night of March 17, 2006, Oscar Melgar, then thirteen years old, learned about a birthday party from his friend, Brian Bentacur. Oscar received permission from his mother to go to the party with Brian, and Brian's mother agreed to take the boys. The party was in Gaithersburg, Maryland, approximately thirty minutes from Oscar's home in Rockville, Maryland.

Brian's mother picked up Oscar around 8:15 p.m., and the boys arrived at the party around 8:45 p.m. Approximately thirty minutes after the boys arrived, an older youth, who was about seventeen years old, started pouring mixed alcoholic beverages of rum and cola. The beverages were served in eight-ounce cups. Oscar knew he was being served alcohol, although he had never had a drink before. Within ten minutes of his first drink, Oscar consumed two additional eight-ounce rum and colas. He began to feel the effects of the alcohol in the middle of his third drink but still finished it.

Brian also was drinking, and one of the girls at the party complained that he was becoming " too touchy." Oscar was told to take Brian outside to " walk it off."

The outside temperature was in the upper thirties or lower forties, and even Oscar later admitted that it was cold. Oscar was wearing jeans and had a green warm-up jacket over his shirt. Brian wore jeans but only had on a long sleeved shirt.

The boys started walking, intending to circle the block, but they were not familiar with the neighborhood and got lost. As they walked, Oscar could feel the effects of the alcohol growing stronger, and Oscar testified that Brian also appeared to be growing increasingly intoxicated.

The two boys eventually sat down on a lawn. Oscar had a phone but wanted to sober up before calling Brian's mother to pick them up. After sitting on the lawn for a few minutes, Oscar saw a man walking a dog approaching. Oscar, who admits he was drunk and not thinking straight by this point, got up and walked away. He crossed the street, headed down a sidewalk, and eventually crossed a lawn toward a home, where he passed out under a holly bush. He stated that he went under the bush " so nobody could see me drunk." His last recollection was " getting cold, and trying to get warm."

Around 10:40 p.m., Jessica and Michael Sommerville were walking together when they discovered Brian Betancur lying on the ground. Ms. Sommerville testified that she saw another boy stumble away from Brian as they approached. Ms. Sommerville

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did not recognize Brian, and she began to question him. She testified that Brian did not appear to be aware of the cold weather, even though he was only wearing a tee shirt. In addition, his speech slurred at times during their conversation, although at other times it was clear. Because the situation appeared unusual, Mr. Sommerville called 911 and reported finding a boy lying on the ground.

Both paramedics and the Montgomery County Police Department responded to the call. Officer Todd Uvary, the first officer to respond, saw that Brian Betancur " was extremely intoxicated" and had vomited and urinated on himself. He was told by paramedics that Brian was suffering from hypothermia and a possible alcohol overdose. Both Sommervilles told the police about the other boy they had seen, and Ms. Sommerville described his clothes. She also told the police that he stumbled away and sounded like he was vomiting, although Oscar later denied being sick. Officer Uvary communicated this information to the next two officers to arrive, Officers Holland and Camp. Concerned about the possibility that another intoxicated, lightly clothed boy could be outside, the three officers circled the neighborhood for approximately twenty minutes, using spotlights mounted on their cars to look in yards. At least one officer also got out of his car with a flashlight and looked in back yards.

As the officers were unsuccessful in the initial search, Officer Camp called a sergeant for advice and was told that it would be acceptable to bring a canine unit to the scene. Officer Camp called one of the appellants, John Greene, who was dispatched at 11:27 p.m. When Greene arrived, the other officers told him that Oscar was last seen approximately an hour earlier and that they had already made an unsuccessful search on foot and by car. Greene also was told that Brian had been taken by ambulance to the hospital for possible alcohol poisoning and hypothermia.

Greene decided to use his patrol dog, Carter, an animal trained to find individuals and to bite them when he came in contact, to make a quick search for the missing boy. While Greene normally would have used a bloodhound to perform such a search, his bloodhound was out of service with a knee injury. Because the police department's other bloodhound was off duty, Greene estimated it would have taken approximately another hour for it to respond. Additionally, because no scent item was available, a bloodhound search would have been difficult even if one had been available.

Greene also evaluated several other factors in reaching his decision. He considered that there was no definitive evidence that anyone was actually missing or endangered. However, if anyone was in fact missing, the cold weather, the presumed intoxication, and the elapsed time were all of serious concern. Greene also realized that no criminal suspect attempting to evade capture was involved, making it likely that he would see anyone before a dog got close enough to bite.

After deciding to use Carter to search, Greene put the dog on a fifteen foot lead. He did not muzzle Carter, and there is a factual dispute as to whether a muzzle would have significantly limited Carter's tracking ability.

Greene took Carter to the last point where Oscar was reported seen and commanded Carter to " track." Carter cast about looking for a scent and then began to track down the sidewalk. Greene began to call out to Oscar, saying he was there to help and to take him home. Oscar states he never heard anyone, but the district court gave no credence to his assertions

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because it recognized Oscar was inebriated and not in a condition to hear. After tracking a short distance down the sidewalk, Carter turned sharply across a yard and went into a holly bush where Greene could no longer see him. Greene did not interpret the turn as indicating that anyone was close. The lead went slack, and only then did Greene realize that Carter had found Oscar, who was asleep. By the time Greene realized what was happening, the dog had already bitten Oscar's lower right leg.

Greene testified that he did not verbally call Carter off because Oscar was struggling, and Greene was concerned that if the dog released he might re-bite Oscar's face. Instead, Greene walked up the leash and physically removed the dog. While this was happening, the dog pulled Oscar some five or six feet. The parties dispute whether Greene pulled on the dog.

The parties also disagree about whether Oscar struggled; Green says that Oscar tried to pull his leg away from the dog, while Oscar claims he held still. Oscar claims that Carter bit him for fifteen or twenty seconds before he was removed. At some point during this time, Carter of his own accord released his grip momentarily and then bit Oscar a second time. Oscar suffered two lacerations on his lower right leg just above the ankle, one approximately 4.25 inches and the other 1.5 inches long.

Oscar's father, Jose Melgar, filed suit as Oscar's parent and guardian against defendants Officer Greene and Montgomery County, Maryland. Melgar alleged under 42 U.S.C. § 1983 that Greene violated Oscar's Fourth Amendment rights and raised a similar claim against Greene and Montgomery County under Article 26 of the Maryland Declaration of Rights. Two other claims were voluntarily dismissed and are not at issue here. Following discovery, defendants moved for summary judgment. The district...

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