Barker v. Gaylor, Civil Action 2:20-cv-00357
| Decision Date | 02 August 2021 |
| Docket Number | Civil Action 2:20-cv-00357 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | JOHNY L. BARKER, Plaintiff, v. ANTHONY L. GAYLOR, individually, and in his official capacity as a police officer for the City of Charleston; TROY VANHORN, individually, and in his official capacity as a police officer for the City of Charleston; SHAUN MCCLURE, individually, and in his official capacity as a police officer for the City of Charleston; and CITY OF CHARLESTON, d/b/a Charleston Police Department, a municipal corporation, Defendants. |
Pending is defendants' motion for summary judgment, filed on May 14, 2021. ECF No. 47. Plaintiff filed a response on June 2 2021, to which defendants replied on June 9, 2021. ECF Nos 52, 55.
This case involves the deployment of a police canine, K-9 Berkley by Corporal Anthony L. Gaylor on May 22, 2019, resulting in substantial injuries to plaintiff Johnny L. Barker.
On the morning of May 22, 2019, at approximately 8:00 AM, the Charleston Police Department (“CPD”) responded to a trespassing complaint at 1520 Huron Terrace in Charleston called in by the property owner, who encountered unknown male occupants after entering the house. Gaylor Dep. 49-50, ECF No. 52-5; McClure Dep. 53, ECF No. 52-6; Vanhorn Dep. 38, ECF No. 52-7. The property was a two-story, dilapidated house with the windows boarded and debris on the front porch. McClure Bodycam at 3, ECF No. 52-3.
At the time, the house was being occupied by plaintiff, Carol Jarvis, her son, Dylan Jarvis, and a male companion of hers, whose name is unknown. Barker Dep. at 5-6. None had permission to be on the premises. Id. Plaintiff, who was also in the house, understood that, though the property was abandoned, he and the other three did not have a right to be on the property. Id. at 13. Dylan Jarvis left before the police arrived. Id. at 7. The remaining three hid on the second floor of the house when the police arrived. Id.
Corporal Shaun McClure, a Charleston Police officer, and Officer Christian Harshbarger, a patrolman, were the first to arrive at the house around 8:00 AM. Compl. and Answer at ¶ 16. After a discussion with the homeowner, the officers received permission to kick in the door, which they did. McClure Bodycam at 3-4. While standing in the entryway of the house, Harshbarger and McClure proceeded to give several repeated commands in rapid succession for the occupants to announce themselves, surrender themselves, and come downstairs. Id. at 4-5. None of the occupants responded. Id. Harshbarger indicated that he saw people walking on the second floor of the home through gaps in the first-floor ceiling and shouted to the occupants that he could see them. Id.
Plaintiff hid by crawling from a second-floor room into a cramped and dilapidated crawlspace above the front porch of the house behind some cabinets. Barker Dep. 7-8. The space was about three to four feet tall and without full flooring. Id. at 10-11. Plaintiff crawled over the rafters to get to his hiding spot so that he would not fall through the floor. Id. According to plaintiff, Jarvis' male companion had likewise crawled into that same space prior to plaintiff getting there, forcing plaintiff to position himself in front of the other occupant with his leg sticking out from behind the cabinet. Id. at 8.
Sergeant Troy Vanhorn, a CPD officer, arrived on the scene at approximately 8:09 AM. Compl. and Answer at ¶ 17. At about 8:12 AM, Harshbarger gave another warning that “[w]e're gonna send the dog in to bite you!” Harshbarger Bodycam at 13 14, ECF No. 52-2. Corporal Gaylor, a canine handler, arrived with K-9 Berkley at the scene at approximately 8:17 AM. Compl. and Answer at ¶ 18. Gaylor asked if the officers had warned about the possible use of a police canine and Harshbarger confirmed that he had. Harshbarger Bodycam at 17-18.
The officers gave another series of warnings to the occupants as they entered the house, with Gaylor shouting and McClure Bodycam at 19-20. McClure added and shouted “Come on down unless you want bit.” Id. Gaylor noted that he heard people moving upstairs. Id. The female occupant came downstairs and was arrested by the officers. Id. at 20-21. The woman denied that there were others in the house but McClure noted that he had seen somebody wearing blue jeans and that the property owner had seen a male occupant. Id. Gaylor again shouted Id.
Believing that at least one other individual was in the house, McClure and Vanhorn discussed the use of K-9 Berkley, a police canine with reinforced titanium teeth, outside of the house. McClure Bodycam at 22-24; ECF No. 52-16 (pictures of K-9 Berkley's teeth). McClure noted that while they were responding to a simple trespass, he thought the dynamic had changed given there were definitely individuals hiding in the house. Vanhorn then stated “I'm not sure about the K-9 use” at 8:22 AM. Id. During his deposition, Vanhorn acknowledged that one of the reasons for this concern with respect to deploying the canine was that the offense involved was trespassing, a low-level misdemeanor. Vanhorn Dep. at 40. The officers decided to attempt to clear the house themselves without use of the K-9. McClure Bodycam at 24-25.
At 8:24 AM, Gaylor, Vanhorn, and McClure searched the upstairs of the home personally, loudly kicking in doors and sweeping the various upstairs rooms and closets, which were in a severely deteriorated condition and covered in debris. McClure Bodycam at 25-27. After searching the second floor of the home, Gaylor located plaintiff within the cramped crawlspace above the front porch. Gaylor Bodycam at 5-7, ECF No. 52-1. Gaylor at first attempted to crawl through the space for about a minute. Id. at 8-9. When he saw Barker's leg sticking out from behind the cabinet, he demanded that plaintiff come out, shouting Id. at 8-10. Plaintiff did not move or respond to Gaylor's commands. Id. at 9-10. After about 20 seconds passed, Gaylor stated as he made his way out of the crawlspace. Id.
Gaylor then went down to the police cruiser and retrieved K-9 Berkley. Id. at 10-11; Gaylor Dep. 54. On his way out, Gaylor told McClure and Vanhorn that he was getting K-9 Berkley to which McClure responded “go get it” and Vanhorn responded “alright.” Id. While Gaylor was retrieving K-9 Berkley, plaintiff received another series of warnings and commands from Vanhorn and McClure. Vanhorn shouted to plaintiff, McClure Bodycam at 29 -30. About one minute later, McClure told plaintiff, McClure Bodycam at 30-31. A few seconds later, one of the officers commanded “come out before the dog comes in!” and a few seconds after that, Vanhorn told Barker Id. At 8:30 AM, McClure suggested accessing plaintiff by breaking a hole into the drywall separating the officers from plaintiff. Id.
Gaylor returned upstairs at approximately 8:31 AM. Gaylor Bodycam at 11-12. Gaylor shouted that he was “[c]oming up!” with the K-9, and one of the upstairs officers repeated this, stating, “Coming with the dog!” Id. Gaylor confirmed with the other officers that plaintiff continued to not comply with commands and one of the officers shouted “The dog is here!” Id.
About 10 seconds later, Gaylor began crawling into the crawlspace with K-9 Berkley. Id. Gaylor maintained a fairly long lead on K-9 Berkley's leash, which he estimated at about 15 feet and which he began to loosen as K-9 Berkley approached plaintiff. Gaylor Dep. 101-02. Gaylor shouted to plaintiff that “[t]his is your last warning.” Gaylor Bodycam at 11:45. Within about one second of Gaylor giving plaintiff his last warning, plaintiff yelled something, which plaintiff contends was “I'm coming out.”[1] Gaylor Bodycam at 11:48. Plaintiff's announcement came too late and Gaylor released the leash resulting immediately in plaintiff's screams of pain as K-9 Berkley bit plaintiff's right leg. McClure Bodycam at 31-32; Barker Dep. at 19, 81.
K-9 Berkley continued to bite/chew on plaintiff's leg for about one to two minutes, until McClure handcuffed plaintiff through a small hole in the wall between the room and the crawlspace. Gaylor Bodycam at 12-13; McClure Bodycam at 32-33; Gaylor Dep. 62. Gaylor commanded K-9 Berkley to release its bite from plaintiff's leg but it did not obey the command. Gaylor Dep. 62. Gaylor had to crawl further into the crawlspace and use his flashlight to pry K-9 Berkley's jaws off of plaintiff's leg. Gaylor Dep. 61-62; Barker Dep. 83. K-9 Berkley was finally pried from plaintiff's leg within about one to two minutes. Id. One of the officers warned Gaylor over the radio that the crawlspace was about to fall through. Gaylor Bodycam at 14-15.
At 8:36 AM, plaintiff crawled out of the attic compartment while handcuffed. McClure Bodycam at 35-37. Plaintiff was wailing in pain and one of the officers observed that plaintiff had lost control...
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