875 F.2d 1546 (11th Cir. 1989), 87-5837, Kerr v. City of West Palm Beach

Docket Nº:87-5837.
Citation:875 F.2d 1546
Party Name:Dorna F. KERR, et al., Plaintiffs-Appellants, v. CITY OF WEST PALM BEACH, et al., Defendants-Appellees.
Case Date:June 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1546

875 F.2d 1546 (11th Cir. 1989)

Dorna F. KERR, et al., Plaintiffs-Appellants,


CITY OF WEST PALM BEACH, et al., Defendants-Appellees.

No. 87-5837.

United States Court of Appeals, Eleventh Circuit

June 27, 1989

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James K. Green, West Palm Beach, Fla., Randall C. Berg, Jr., Florida Justice Institute, Inc., Peter M. Siegel, Miami, Fla., for plaintiffs-appellants.

Alberto A. Macia, Shea & Gold, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and EDMONDSON, Circuit Judges, and GIBSON [*], Senior Circuit Judge.

TJOFLAT, Circuit Judge:


In this case, individuals 1 brought suit against the City of West Palm Beach, its former chief of police, 2 and two police officers. 3 The plaintiffs alleged that they had suffered serious injuries as a result of their

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apprehension by dogs in the West Palm Beach Police Department's canine unit. Plaintiffs claimed that the Department's canine unit had used excessive force in their apprehension, in violation of the fourth and fourteenth amendments to the United States Constitution; 4 they therefore sought compensatory and punitive damages pursuant to 42 U.S.C. Sec. 1983 (1982) on behalf of themselves and a class of similarly situated individuals. The plaintiffs further contended that the policies of the West Palm Beach Police Department's canine unit were unconstitutional per se, in violation of the principles governing the constitutional use of force announced by the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); the plaintiffs therefore asked the court to declare the City's policies regulating the use of the canine unit unconstitutional, and to enjoin the Department from continuing to use its canine unit in an unconstitutional manner.

The district court refused to certify a class, and bifurcated the trial of plaintiffs' individual claims into liability and damages phases. After a trial on the issue of liability, the jury returned a verdict for three of the plaintiffs against the police officers, concluding that the officers had used excessive force in the plaintiffs' apprehension. 5 The plaintiffs and the defendant police officers thereafter settled these claims.

The jury also found against the City of West Palm Beach and its former police chief, concluding that they had inadequately trained and supervised the canine unit and "encouraged an atmosphere of lawlessness" out of which the plaintiffs' injuries arose. 6 After the jury returned its verdict, the City and its former police chief moved the court for judgment n.o.v. The district court granted their motion, concluding that the plaintiffs had not met the heavy burden of establishing municipal liability under section 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978).

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With regard to the plaintiffs' prayer for declaratory and injunctive relief, the court refused to enjoin the Department's continued use of its canine unit in the apprehension of suspects, concluding that the use of such force was not unconstitutional per se under the principles announced by the Supreme Court in Garner. In this appeal, the plaintiffs challenge the district court's denial of declaratory and injunctive relief, the court's granting of judgment n.o.v. in favor of the City of West Palm Beach and its former chief of police, and the court's refusal to certify a class. 7 We address these points after reviewing the facts established at trial.


Appellants maintain that the evidence they presented to the jury established that appellees, the City of West Palm Beach and its former chief of police, sanctioned the excessive force used by the defendant police officers; hence, appellants argue, the district court erred in granting appellees judgment n.o.v. In determining whether the court erred, we examine the facts in the light most favorable to appellants. See, e.g., Johnson v. Bryant, 671 F.2d 1276, 1279 (11th Cir.1982) (In reviewing ruling on motion for judgment n.o.v., court must consider evidence in light most favorable to party opposing the motion.). 8

In 1981, the West Palm Beach Police Department established a canine unit to aid in the apprehension of fleeing or concealed suspects. To train the unit, the City sent the chosen officers and newly purchased German Shepherd dogs to a twelve-week, 480 hour course in basic obedience and police work. At the time of the incidents involving appellants, the canine unit included two German Shepherd dogs, "Sultan" and "Nick," and their handlers, Police Officers Michael J. Pontieri and Jerry Chestnut.

The written policies of the West Palm Beach Police Department provided that the canine unit would be employed as follows:

I. Background: Due to the rising number of burglaries, building alarms, and suspects fleeing on foot or hiding, the K-9 Unit has been formed to effect a faster, safer, and more efficient way to handle these searches. The following Order is enacted so that the officers involved in a K-9 Unit-assisted-search will understand their responsibilities, and maximum effectiveness through a well coordinated effort can be achieved.


III. Operational guidelines for the K-9 Unit:

A. When force should be used by the K-9 unit:

  1. In protection of the handler or other Officers.

  2. Fleeing felony suspects after refusing to stop.

  3. Hiding felony suspects that refuse to come out.

  4. Hiding felony suspects that are not visible to the handler.

  5. When the dog is being assaulted.


    E. In general, searches shall commence, if the suspect does not surrender or halt after being challenged. The K-9 handler will use the method he feels will be most effective and productive.

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    F. When force is used by the K-9 unit, it will be handled in the same manner as other uses of force by Officers.

  6. The suspects' injuries will be photographed, in color and black and white, when the dog has bitten the suspect.

  7. All suspects that have been bitten by the dog[ ] will be taken to the nearest hospital for treatment.

  8. The shift commander will be notified of the incident by the K-9 handler. The shift commander, before his tour of duty ends, will prepare an investigative letter directed to the Patrol Captain and detailing the force used.

    City of West Palm Beach, Police Procedure Order # K-9 (February 17, 1981). Testimony at trial established that in assessing whether to use canine force, an officer did not need to have probable cause to believe that the suspect committed a felony; instead, a "reasonable suspicion" was sufficient.

    Significantly, undisputed testimony at trial revealed that the West Palm Beach Police Department also had an oral policy allowing officers to use the canine unit to apprehend fleeing and concealed individuals suspected of a "serious misdemeanor." This oral policy did not define what constituted a serious misdemeanor, relying instead on the individual officer's discretion in making this determination. The evidence established that the accepted scope of a serious misdemeanor was very broad, encompassing violations of city ordinances as well as Florida statutes. Thus, the canine unit was used to apprehend fleeing or concealed individuals suspected of prowling, of drunkenness, of petty larceny, of prostitution, of traffic offenses--even individuals whose only offense was being in a city park after hours. In fact, since disobeying the command of an officer was itself a misdemeanor, testimony revealed that under the Department's policy, an officer, in his discretion, could use canine force to apprehend any suspect that continued to flee after being ordered to stop.

    Dogs in the canine unit were trained to "bite and hold" a suspect. This method of training is employed by many other police departments throughout the country. The distinctive aspect of this training method is its aggressive nature: unless the handler countermands his order, the dog will seek to seize a suspect even if that individual complies with the officer's orders. Thus, injury to the apprehended suspect is often inevitable.

    Under the bite and hold method of training, a dog seeks to subdue a suspect by biting his arm or leg; if, however, the dog has no access to such an appendage, the dog will bite the suspect on any available area of his body. Upon being bitten by a dog, a suspect usually attempts to free himself; the dog, however, is trained to maintain his hold on the suspect until ordered to release the suspect by its handler. Thus, if the dog should lose his hold as a result of the suspect's attempts to free himself, the dog will seek to reestablish it. As a result, suspects often suffer serious injury from multiple bites received during the course of an apprehension. 9

    The severity of an apprehended suspect's injuries can be reduced if the handler has complete control over the actions of his dog. With such control, the handler can recall or restrain the dog before a bite even occurs. Alternately, the handler can quickly remove the dog from the apprehended suspect, minimizing the possibility that the suspect will be further injured in an ensuing struggle. Since a police dog that is apprehending a fleeing suspect is often far in front of its handler, canine law enforcement training stresses the use of oral commands, which the dog can obey even when its handler is at a distance, rather than "leash" commands, which require the officer to touch the dog or, in some instances, to pull the dog off the suspect. The evidence in this case established that handlers in the West Palm Beach canine unit often had to reinforce their verbal commands by leash commands. In addition, the evidence

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    established that the canine unit's handlers often used very long leashes--up to thirty feet in length--and that the length of these leashes was blamed by...

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