681 Fed.Appx. 210 (4th Cir. 2017), 14-7791, Maney v. Garrison

Docket Nº:14-7791
Citation:681 Fed.Appx. 210
Opinion Judge:THACKER, Circuit Judge.
Party Name:CHRISTOPHER LAWRENCE MANEY, Plaintiff -- Appellant, v. OFFICER TERENCE GARRISON, individually and in his official capacity as an Officer of City of High Point Police Department, Defendant -- Appellee, and THE CITY OF HIGH POINT, a municipality; CHIEF JAMES FEALY, individually and in his official capacity as Chief of City of High Point Police ...
Attorney:John Carl Vermitsky, MORROW PORTER VERMITSKY FOWLER AND TAYLOR PLLC, Winston-Salem, North Carolina, for Appellant. Patrick Michael Kane, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellee. Corinne B. Jones, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellee.
Judge Panel:Before TRAXLER, THACKER, and HARRIS, Circuit Judges. TRAXLER, Circuit Judge, concurring: PAMELA HARRIS, Circuit Judge, dissenting:
Case Date:March 09, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 210

681 Fed.Appx. 210 (4th Cir. 2017)

CHRISTOPHER LAWRENCE MANEY, Plaintiff -- Appellant,

v.

OFFICER TERENCE GARRISON, individually and in his official capacity as an Officer of City of High Point Police Department, Defendant -- Appellee, and THE CITY OF HIGH POINT, a municipality; CHIEF JAMES FEALY, individually and in his official capacity as Chief of City of High Point Police Department, Defendants

No. 14-7791

United States Court of Appeals, Fourth Circuit

March 9, 2017

Argued January 27, 2016

Page 211

UNPUBLISHED

Editorial Note:

Unpublished opinions are not binding precedent in this circuit. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. (1:12-cv-00800-JAB-JEP). James A. Beaty, Jr., Senior District Judge.

Maney v. Fealy, 69 F.Supp.3d 553, (M.D.N.C., 2014)

ARGUED:

John Carl Vermitsky, MORROW PORTER VERMITSKY FOWLER AND TAYLOR PLLC, Winston-Salem, North Carolina, for Appellant.

Patrick Michael Kane, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellee.

ON BRIEF:

Corinne B. Jones, SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellee.

Before TRAXLER, THACKER, and HARRIS, Circuit Judges.

OPINION

Page 212

THACKER, Circuit Judge.

Late on the night of May 4, 2010, Officer Terence Garrison (" Appellee" ) and his police dog, Bikkel, tracked a robbery suspect to an apparently abandoned house in High Point, North Carolina. At the front stoop, Bikkel sprang into action, biting an individual crouched behind a nearby bush. Unfortunately, it was not the suspect, but instead Christopher Maney (" Appellant" ). In the ten or so seconds that followed, Appellee realized Appellant did not match the physical description of the suspect he and Bikkel were tracking. But he nevertheless feared Appellant might pose a threat to the officers, and so ordered Appellant to show his hands before calling off the dog. During that time, Bikkel continued to bite and hold Appellant for a few seconds.

The district court concluded that Appellee was entitled to qualified immunity from Appellant's excessive force claim, and that a similar form of state-law immunity insulated him from Appellant's battery claim. In reviewing that decision, we must decide whether a police canine handler, whose dog suddenly and mistakenly bites a concealed bystander while tracking the scent of a robbery suspect, clearly violates the Fourth Amendment if he momentarily extends the seizure to assess the potential threat to officer safety. Like the district court, we think the law as it stood on the night in question did not clearly proscribe such conduct. We therefore agree that Appellee is entitled to immunity and affirm.

I.

We recite the facts in the light most favorable to Appellant. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2017, 188 L.Ed.2d 1056 (2014). Around 10:00 p.m. on the night of May 4, 2010, someone robbed the Sonic restaurant on South Main Street in High Point, North

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Carolina. Witnesses described the perpetrator as " a clean shaven black male[,] approximately thirty to forty years of age," who had a " bald head," stood " approximately five foot ten inches," and had a " medium build[.]" J.A. 164.1 He did not use a weapon and fled the scene on foot.

About a mile west of the Sonic, Appellant was bedding down for the night in a temporary camp where " homeless people and persons who are temporarily displaced often set up tents and other structures . . . ." J.A. 228. Unlike the suspect in the robbery, Appellant is white, not bald, and stands approximately five-feet five-inches tall. And, unlike the suspect, Appellant had committed no crime that night.

Appellee and his police dog, Bikkel, were on patrol in the area and joined in the robbery investigation. Bikkel is a Belgian Malinois trained to track and apprehend suspects using the bite and hold technique. That means Bikkel will bite and hold in three circumstances: (1) upon command; (2) if he encounters the suspect he is tracking; or (3) if he or Appellee is under attack.

Appellee spoke with a witness who pointed out the area where the suspect had last been seen running. Appellee then " put Bikkel on that scent, a suspect scent," J.A. 269, and followed behind on a 15-foot lead. The duo plus one additional officer, Riley Edwards, tracked the scent to the homeless camp. Appellee " lit up the area" with his flashlight and gave two verbal warnings that a police canine was in the area. Id. at 276. He received no response and saw no movement in the camp.

By that time, Appellant was no longer at the camp because he had been warned by another camp inhabitant that " a group of people w[as] approaching quickly from the railroad tracks on the North side of the camp." J.A. 229. Appellant " had no idea who was coming and was scared," because he " knew at the time that other people in the camp had enemies who . . . could be violent." Id. So he fled south on foot and " crouched in the edge of the bushes" adjacent " to the stairs leading up to the front porch" of a nearby residence. Id. The bushes were " devoid of foliage and leaves" and the area was illuminated by two street lights. Id.

Across the street from the house where Appellant was hiding, Bikkel began " air scenting," which suggested to Appellee that the robbery suspect was nearby. J.A. 288. Bikkel then tracked toward the house and Appellant's position.

During this portion of the tracking, Appellee was trying to be quiet. Appellant could clearly see the officers approaching, but they " did not announce themselves[.]" J.A. 229. Bikkel " climbed the front steps . . . onto the porch," passing within just a few feet of Appellant's position. Id. at 230. Appellee followed closely behind with his gun drawn and shortened the lead on the dog to three feet. This gave him more control over the dog's movements. He also scanned the area near the stairs with his gun light, but did not specifically look at the area where Appellant was hiding.

At the top of the stairs, Bikkel air scented again, indicating that the suspect was likely " pretty close." J.A. 296. Appellee's attention was drawn in particular to the door to a crawlspace at the front of the house, which was open. Based on Bikkel's air scenting, he believed the robbery suspect was likely concealed there, under the house. Appellee did not, however, announce himself or warn of Bikkel's presence. For his part, Appellant " was concerned the dog or officers would attack [him] if [he] startled them," so he kept

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quiet and remained still, crouched in his position beside the stairs. Id. at 230.

The unfortunate events that followed unfolded in roughly ten seconds. Appellant maintains he was " visible to the officers where [he] was crouching" 2 when, " [s]uddenly, without warning or provocation," Bikkel " lunged out" from the top step of the porch and " bit [Appellant] on the top of [his] head[.]" J.A. 230. Appellee did not command Bikkel to bite Appellant and there is no evidence Appellee knew Bikkel was going to lunge into the bushes. Bikkel's lunge in the direction of the bushes was also unexpected because the duo had already tracked past that position on their way up the steps to the porch: as Appellee explained, if Bikkel sensed the suspect in the bushes, he should have gone " straight to there[; n]ever up on the porch." Id. at 310. But given the indications that Bikkel was tracking the suspect's scent, once Bikkel sprang into action Appellee thought the " suspect was in the bushes, and Bikkel had just screwed up" by passing that position initially. Id.

" Following the initial bite, [Appellee] saw [Appellant] and could see [his] features and skin color." [3] J.A. 230. But " despite being able to see that [Appellant] was not the suspect in the robbery," Appellee " made no attempt to command the dog to stop his attack." Id. As Appellee explained, he found it unusual and threatening that Appellant was hiding in the bushes in the darkness and had not identified himself. And, based on Bikkel's air scenting, he also believed the suspect was potentially still near at hand, leaving the officers vulnerable to an ambush. In the tense seconds that followed, Appellee, in an attempt to make sure the person hiding in the bushes was not a threat, repeatedly ordered Appellant to show his hands, while Appellant " attempted to protect [him]self from the dog and pleaded for the police to stop the dog's attack, stating that [he] had done nothing wrong." Id. at 231.

Ultimately, Bikkel bit Appellant on the left arm and once more on the left thigh before Appellee " finally told the dog to cease his attack." J.A. 231. The bites left a " two square inch" laceration on Appellant's head and " deep puncture wounds" to his arm and thigh " which led to profuse bleeding[.]" Id. at 230-31. When the dust settled, " officers including [Appellee]" placed Appellant in handcuffs, id. at 232, called for emergency medical services in order to give medical attention to Appellant, and discontinued their search of the premises, even though Appellee believed the suspect was in fact under the house or concealed nearby.

In the aftermath, Appellant sued, alleging a violation of his Fourth Amendment right to be free from unreasonable seizure as well as a state-law claim for battery. The district court granted Appellee's motion for summary judgment, holding that although Appellee's use of force may have been unreasonable as a matter of law, an

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officer in Appellee's position would not have known " that his conduct violated a clearly established right." J.A. 382-84. The district court also concluded that Appellee was immune from the battery claim because...

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