Dye v. Wargo

• Decision Date: 11 June 2001
• Docket Number: No. 00-3250,K-9,00-3250
• Citation: 253 F.3d 296
• Parties: (7th Cir. 2001) Anthony H. Dye, Plaintiff-Appellant, v. William B. Wargo, Jr.,named Frei, and City of Elkhart, Indiana, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 296

253 F.3d 296 (7th Cir. 2001)

Anthony H. Dye, Plaintiff-Appellant, v. William B. Wargo, Jr., K-9 named Frei, and City of Elkhart, Indiana, Defendants-Appellees.

No. 00-3250

In the United States Court of Appeals For the Seventh Circuit

Argued February 16, 2001

Decided June 11, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:99-CV-0165RM--Robert L. Miller., Jr., Judge.

Before Easterbrook, Manion, and Diane P. Wood, Circuit Judges.

Easterbrook, Circuit Judge.

Anthony Dye was injured while attempting to flee from the police in Elkhart, Indiana. After his capture, Dye pleaded guilty to three state felonies he committed during these events: attempted battery with a deadly weapon (a charge reduced from attempted murder), possession of a handgun by a convicted felon, and possessing a handgun within 1,000 feet of a school. In this federal litigation under 42 U.S.C. sec.1983 Dye seeks to turn the tables and collect damages on account of the injuries he sustained while being subdued. But the district court granted summary judgment in defendants' favor, ruling that Dye's claims are covered by a release.

Dye was carrying a firearm while driving his Corvette at 2:30 a.m. one day in Elkhart, Indiana. Officer William Wargo pulled behind the Corvette with his flashing lights on. Dye did not stop and made for his mother's house. After pulling into the driveway, Dye leapt from the car and ran toward the door. Wargo told his K-9, Frei, to prevent Dye's escape, which Frei did by biting one of Dye's legs, as Frei had been trained to do. At Wargo's direction, Dye assumed a prone position, and Frei released his leg. Before he could be handcuffed, however, Dye got up, pulled a semi- automatic pistol from his waistband, and opened fire. Wargo returned fire and called on Frei for aid. Dye got the worst of things: against Dye's multiple gunshot wounds (to his chest and both legs) and dog bites, Wargo suffered only a pinched nerve in his neck. Frei later received awards for valor in the line of duty.

Although this much is common ground, vital details are disputed. Wargo says that Dye was speeding, driving erratically, and ran a stop sign; Dye says that he was obeying all traffic laws. Wargo says that he activated his siren as well as his flashing lights; Dye denies hearing a siren. Dye asserts that he fled because the Elkhart police have a reputation for mistreating young black suspects; Elkhart denies that it has such a reputation. (An alternative hypothesis is that Dye hoped that he could hide the gun in his mother's house and avoid the stiff penalty for possession by a felon. But the reason for his flight is legally irrelevant, and Dye's explanation, even if true, is no justification.) Wargo contends that Frei released Dye after halting his flight and did not attack a second time until Dye refused to be handcuffed and sprang to his feet; Dye contends that the sequence was reversed and that he got back up to defend himself against Frei's unprovoked attack. Dye asserts that he shot at Frei only after Wargo refused to call off his dog; Wargo responds that he rather than Frei was Dye's target. According to Dye, his most serious injuries were received after he had given up, thrown the gun away, was again lying down, and had been rendered helpless by a bullet; according to Wargo, Dye had the gun in his hand and was trying to use it when he received his last wounds. If Dye's version is correct, these injuries at least would be actionable under sec.1983, for shooting a disarmed and passive suspect is a clear example of excessive force in violation of the fourth amendment. But if Wargo's version is correct, Dye has no valid com plaint.

Some of the statements that Dye has made under oath in this litigation are inconsistent with statements he made under oath in state court. For example, Dye's current assertion that he never fired at Wargo is inconsistent with the affirmative answer he gave when asked: "And you shot at an Elkhart City Policeman by the name of William Wargo, Jr.?" His current assertion that he fled toward his mother's home only because he feared violence at the hands of the police is inconsistent with this statement made to the state judge: "And by me knowing at the time I had a gun in my possession, you know, I tried to elude him. And being that I was pretty close to my mother's house, you know, I tried to make it there." One or the other of Dye's stories is perjury. His lawyer contends that Dye was entitled to lie in state court to ensure that the judge accepted the favorable plea bargain, and that we should therefore disregard his earlier sworn statements. That is not a position any judicial system can, or does, tolerate. See, e.g., United States v. Stewart, 198 F.3d 984 (7th Cir. 1999); Hugi v. United States, 164 F.3d 378, 381 (7th Cir. 1999). Cf. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806 (1999) (collecting cases from every circuit holding that a litigant is bound by answers given during a deposition, despite a later affidavit contradicting those answers, unless there is a legally valid reason why the deposition answers may be superseded). Although Dye observes that his statements when pleading guilty do not contradict anything he has asserted in this federal case about the last few moments of the encounter, why should these statements be believed when the rest of his story is so questionable? How can any court credit statements made by a litigant such as Dye who has proclaimed his willingness (indeed, asserts an entitlement) to lie under oath whenever deceit serves his interests? But we need not pursue this issue, because Dye cannot prevail even if he is entitled to retract his prior testimony.

Two of the three defendants do not belong in this case. In litigation under sec.1983 a municipality is not vicariously liable for the constitutional torts of its employees but is answerable only for the consequences of its policies. See Monell v. Department of Social Services, 436 U.S. 658 (1978). Elkhart does not have a policy of shooting suspects when they are down. Although Dye contends that Elkhart did not properly train either Wargo or Frei, shortcomings of this kind do not establish direct liability, because the Constitution does not require municipalities to conduct training programs. Poor training is instead a means of showing intent for those constitutional torts where intent matters, see Collins v. Harker Heights, 503 U.S. 115, 122-24 (1992); Canton v. Harris, 489 U.S. 378, 388 (1988), and excessive force under the fourth amendment is not one of those constitutional torts. See Graham v. Connor, 490 U.S. 386 (1989); Lester v. Chicago, 830 F.2d 706 (7th Cir. 1987). Proof of failure to train officers could be used to demonstrate that the municipality approves (hence has a policy of) improper conduct that training could extirpate. Such a claim in a case like this would depend on establishing that the City's policymakers knew that the police were using objectively unreasonable force in apprehending suspects, yet did nothing to solve the problem. See Canton, 489 U.S. at 388 n.8; Lanigan v. East Hazel Crest, 110 F.3d 467, 478-79 (7th Cir. 1997); Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996). Dye has not offered any evidence that use of excessive force is common in Elkhart, indeed has not produced evidence of even one prior incident. Cf. Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) ("considerably more proof than [a] single incident will be necessary . . . to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy' and the unconstitutional deprivation"). Thus the City cannot be held liable on the theory that lack of more extensive training for Wargo or Frei evinces a policy of using constitutionally improper force.

As for Frei: sec.1983 applies only to a "person" who acts under color of state law. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997). Under the Dictionary Act, 1 U.S.C. sec.1, "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals", but dogs are not on this list, whether or not they act under color of state law. Cf. Miles v. Augusta City Council, 710 F.2d 1542, 1544 n.5 (11th Cir. 1983) (a cat is not a "person" for purposes of the fourteenth amendment). A suit against a dog poses a host of other problems. Was Frei served with process? Did he retain as his lawyer Lynn E. Kalamaros, who purports to represent all three defendants? Was Frei offered the right of self-representation under 28 U.S.C. sec.1654? What relief does Dye seek from a dog--Frei's awards, perhaps? Could Frei claim qualified immunity? If a reasonable person in the defendant's position would not have understood that what he was doing violated the Constitution, damages are unavailable. See Anderson v. Creighton, 483 U.S. 635 (1987). Must we then ask whether a reasonable dog in Frei's position should have understood that he was violating Dye's constitutional rights? One could half understand pursuing Frei because he is not a party to the release. But at oral argument, when asked why he had named a dog as a defendant, Dye's lawyer replied that he deemed Frei an "employee" of the City and was hoping to hold the City vicariously liable for his deeds. That not only ignores Monell but also scotches any effort to skirt the release--for that document covers all of the City's employees. (Anyway, treating a dog as an "employee" would raise thorny issues under the Fair Labor Standards Act. Should Frei get time-and-a-half for overtime? Cf. Brock v. Cincinnati, 236 F.3d 793 (6th Cir. 2001).) All things considered, it is best to follow the Dictionary Act and hold that a dog is not a proper defendant in litigation under sec.1983. (Dye's state-law claims against Frei fare no...