Jarrett v. Town of Yarmouth, 00-2498.

• Decision Date: 06 May 2003
• Docket Number: No. 00-2498.,00-2498.
• Citation: 331 F.3d 140
• Parties: Jerome JARRETT, Plaintiff-Appellee, v. TOWN OF YARMOUTH, Gerard Britt, Cheryl Nugent Gomsey, Richard White, Defendants, Peter McClelland, Robert Chapman, Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 140

331 F.3d 140

Jerome JARRETT, Plaintiff-Appellee, v. TOWN OF YARMOUTH, Gerard Britt, Cheryl Nugent Gomsey, Richard White, Defendants, Peter McClelland, Robert Chapman, Defendants-Appellants.

No. 00-2498.

United States Court of Appeals, First Circuit.

Heard January 10, 2002.

Decided May 6, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied June 12, 2003.

Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten were on brief, for appellants Peter McClelland and Robert Chapman.

Donald W. Cook, with whom Kathleen J. Wood was on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

PER CURIAM.

On December 16, 1994, Jerome Jarrett fled the scene of a minor traffic accident and was subsequently apprehended by Shadow, a police dog controlled by Yarmouth Police Officer Peter McClelland. Shadow bit Jarrett at least twice on the leg in the course of corralling him before officers arrived to take the suspect into custody. Jarrett filed 42 U.S.C. § 1983 claims against Officer McClelland and Robert Chapman, the Yarmouth Chief of Police,¹ alleging that McClelland used excessive force in releasing Shadow, and that Chief Chapman "tolerated a pattern and practice of unjustified, unreasonable and excessive force regarding McClelland's use of a dog to attack and bite." Jarrett also brought suit against the Town of Yarmouth, seeking to hold the municipality liable under a Monell theory, see Monell v. Department of Soc. Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for promulgating a dog apprehension policy that deprived him of his constitutional rights.

After a bifurcated trial, a jury returned verdicts against both Officer McClelland and Chief Chapman.² The defendants now contest the verdicts on appeal, arguing that the court erred in denying their request for qualified immunity, and raising a host of evidentiary challenges. After careful review, we find that Jarrett suffered no constitutional injury. Accordingly, we vacate the judgments against McClelland, Chapman, and the Town of Yarmouth.

I.

In the early morning hours of December 16, 1994, Yarmouth Police Officer Gerard Britt observed the defendant sitting in his car in a motel parking lot off of Route 28. Officer Britt then saw Jarrett quickly exit the motel parking lot and drive off in the opposite direction on Route 28. Britt radioed to fellow officer Richard White, and the two officers unobtrusively tracked Jarrett, who was driving in excess of sixty miles per hour. Several minutes later, Jarrett exited into another parking lot off of Route 28. Officer White followed Jarrett off the exit while Officer Britt continued up the road and entered the parking lot from the opposite end. The parties dispute what happened next. The appellants claim that Officer Britt, now driving toward Jarrett, activated his lights and signaled for Jarrett to stop. Yet Jarrett continued driving directly toward Britt, who swerved abruptly and narrowly avoided a collision. Jarrett insists that Britt never activated his lights and that there was no near-collision. Both parties agree, however, that Jarrett proceeded to drive into an adjoining parking lot, where he ran into a cement post. Jarrett then exited the vehicle, scaled a nearby fence, and fled into a residential neighborhood.

At this point, two additional Yarmouth police officers joined the chase. Officer Cheryl Nugent Gomsey had clocked Jarrett driving over the speed limit while being followed by Officers White and Britt on Route 28, and also observed him hit the cement post and escape over the fence. Officer McClelland, the K-9 officer for the Yarmouth Police, was also radioed to the scene by Officer White, who reported (mistakenly, as it turned out) that he recognized Jarrett as a suspect in a prior armed robbery. Officer Gomsey arrived at the scene shortly after Jarrett fled from the parking lot, and teamed with Officer McClelland and his dog Shadow to track and apprehend Jarrett.

After helping Shadow over the fence, Officer McClelland placed him on his customary 15-foot lead and followed closely behind as the dog tracked Jarrett. Officer Gomsey continued the pursuit at some distance behind McClelland and Shadow so as not to contaminate the scent. For approximately twenty minutes Shadow led the officers along a circuitous route through the residential neighborhood until McClelland spotted Jarrett standing in the middle of the road, approximately fifty yards away. Officer Gomsey had fallen too far behind to see McClelland, Shadow, or Jarrett, but she heard McClelland yell three times: "Stop, police, or I'll send the dog." McClelland testified that after he issued these warnings, Jarrett accelerated and disappeared around a corner. Only then, according to McClelland, did he release Shadow with instructions to locate Jarrett and hold him.

Shadow is trained to execute the "bite and hold" technique upon release, meaning that he will bite and maintain his hold upon a suspect until the handler orders him to let go. Accordingly, a suspect who struggles with a dog trained to bite and hold may be bitten several times if the dog loses his grip and is forced to re-establish his hold. Yet the undisputed evidence at trial indicated that the vast majority of jurisdictions within the United States employ bite-and-hold policies. An alternative technique, not widely adopted, is the "circle and bark" method. A dog trained to circle and bark will circle his target, barking, until his handler arrives. The dog will bite only if the target then attempts to move outside the "circle".

Because Shadow was trained to bite and hold, Officer McClelland knew with a high probability that if Shadow was released, he would bite the fleeing suspect. In fact, within thirty seconds of his release, Shadow apprehended Jarrett by biting him on the leg. Shadow was only out of McClelland's sight for those thirty seconds; as soon as McClelland found Shadow he commanded him to release Jarrett, and Shadow complied. An ambulance arrived within five minutes and transported Jarrett to a hospital, where he received stitches for cuts on his lower right leg. For the next two weeks Jarrett received daily medical treatment for his injuries; one year after the incident he still complained of pain and an inability to stand.

Not surprisingly, Jarrett recounts a different version of events. At trial, he testified that after finishing his shift at work, he picked up a car that he had recently purchased. He claimed not to have noticed the police officers trailing him on Route 28, and further testified that he pulled off the road into the parking lot because he was experiencing brake problems and trying to find a place to slow down. Jarrett admitted seeing police lights shortly before hitting the cement post, but insisted that he never saw a police cruiser heading toward his car. According to Jarrett, he fled after hitting the cement post because "I was driving illegally for one. And I knew that ... if I got arrested, I was going to end up going to jail." Indeed, the record indicates that prior to the events in question, a warrant for Jarrett's arrest was issued after he failed to appear at a surrender hearing on a separate matter. However, both parties agree that the police officers pursuing Jarrett on December 16 were not aware of this outstanding arrest warrant.

After jumping the fence, Jarrett testified that he slipped and fell down, at which point he heard someone yell "Stop." He rose to his feet, and again heard someone yell, "Stop, or I'll let the dog go." Jarrett claims that he stopped running and put his hands in the air. Soon thereafter, however, Shadow jumped on his back and bit him twice on the leg in response to verbal commands issued from someone Jarrett could not see. Jarrett was ultimately apprehended by officers McClelland and Gomsey and charged with several misdemeanor offenses: (1) operating a motor vehicle with a suspended license; (2) leaving the scene of an accident; (3) operating an uninsured motor vehicle; and (4) failing to stop for a police officer. He was also charged with several civil infractions: (1) operating an unregistered motor vehicle; (2) failing to yield at an intersection; (3) speeding; and (4) operating a motor vehicle with defective equipment.

II.

On December 11, 1997, Jarrett filed section 1983 claims against the Town of Yarmouth and five Yarmouth police officers in the District Court of Massachusetts. Jarrett's complaint alleged inter alia that Officer McClelland's act of releasing Shadow constituted excessive force in violation of the Fourth Amendment, characterizing Shadow as an "instrument of potentially deadly force." Jarrett sought compensatory and punitive damages from McClelland for his alleged use of excessive force, and punitive damages from Chief Chapman for tolerating a pattern and practice of excessive force by Officer McClelland.

The case proceeded to a jury trial, which the court divided into two phases. In the first phase of the trial, the jurors considered Jarrett's excessive force claim against Officer McClelland. They ultimately returned a verdict for Jarrett, finding by a preponderance of the evidence that "Officer Peter McClelland used excessive force on Jerome Jarrett on 12/16/94." However, the jury only awarded Jarrett one dollar in compensatory damages and no punitive damages. Although, as noted above, the Town of Yarmouth was not mentioned in either the jury instructions or on the verdict form, the jury, unprompted, appended to their verdict a recommendation that "the Town of Yarmouth be required from this time forward to.... retrain current K-9 units to use the find and bark method."³ Following the verdict, McClelland and Chapman moved for judgment as a matter of law, renewing the argument that they were entitled to qualified immunity.

The judge denied the motion, and the...