Vathekan v. Prince George's County

• Decision Date: 28 August 1998
• Docket Number: No. 96-2246,96-2246
• Parties: Esther VATHEKAN, Plaintiff-Appellant, v. PRINCE GEORGE'S COUNTY, Maryland; Jeffrey J. Simms, Defendants-Appellees, and The City of Takoma Park, Maryland; B.L. Rich; Unknown Officers, of the Prince George's County Police Department; Unknown Officers, of the City of Takoma Park Police Department, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 173

154 F.3d 173

Esther VATHEKAN, Plaintiff-Appellant, v. PRINCE GEORGE'S COUNTY, Maryland; Jeffrey J. Simms,

Defendants-Appellees,

and

The City of Takoma Park, Maryland; B.L. Rich; Unknown

Officers, of the Prince George's County Police

Department; Unknown Officers, of the

City of Takoma Park Police

Department, Defendants.

No. 96-2246.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 3, 1997.

Decided Aug. 28, 1998.

ARGUED: Terrell Non Roberts, III, Roberts & Wood, Riverdale, Maryland, for Appellant. John Anthony Bielec, Associate County Attorney, Upper Marlboro, Maryland, for Appellees. ON BRIEF: Christopher A. Griffiths, Roberts & Wood, Riverdale, Maryland, for Appellant. Barbara L. Holtz, Acting County Attorney, Sean D. Wallace, Deputy County Attorney, Upper Marlboro, Maryland, for Appellees.

Before WILKINS and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge WILKINS and Senior Judge BUTZNER joined.

MICHAEL, Circuit Judge:

Esther Vathekan was mauled and disfigured by a police dog when a canine unit searched her house as she slept. She sued Corporal Jeffrey Simms, the officer conducting the search, and Prince George's County (Maryland) under 42 U.S.C. § 1983, contending that the dog's attack constituted excessive force in violation of her Fourth Amendment rights. The district court held that Vathekan was not seized under the Fourth Amendment, concluding instead that Fourteenth Amendment substantive due process standards governed the case. The court then granted summary judgment to the defendants after finding that the force used against Vathekan did not "shock the conscience" as required for a violation of substantive due process. The judgment for Simms was based on qualified immunity.

After considering Vathekan's appeal, we conclude that she properly identified the Fourth Amendment as the source of the right she alleges Simms violated. We hold that it was clearly established in 1995 that it is objectively unreasonable for a police officer to fail to give a verbal warning before releasing a police dog to seize someone. We conclude that there is a factual dispute about whether Simms failed to give a warning before sending his dog into the house where Vathekan lived. This unresolved factual issue makes it impossible to grant summary judgment to Simms on qualified immunity grounds. Accordingly, we reverse the district court's grant of summary judgment to Simms. Because the district court granted summary judgment to Prince George's County on the mistaken determination that the Fourth Amendment does not apply to this case, we also reverse the summary judgment for the county. The case will be remanded for further proceedings.

I.

In reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We also must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (citation omitted). Accordingly, we set forth the facts in the light most favorable to Vathekan, the nonmovant. ¹

A.

At the time of the attack in 1995 Esther Vathekan was a private duty nurse living in Takoma Park, Maryland. She lived in a one-story house with a furnished basement at 7604 Glenside Drive. The basement unit, which had a separate door to the outside, was rented to two students, Jonathan Lopez and another man. A staircase led from the basement to Vathekan's residence on the ground floor, and a door at the top of the stairs separated the two living units. This interior door was closed but unlocked at the time of the incident on January 10, 1995.

Early in the morning of that day Vathekan returned to her home after working the night shift. She slept until noon, had something to eat, and went back to bed. At about 1:10 that afternoon Lopez returned to his basement apartment. He discovered that the door was ajar and that its glass had been broken. Lopez immediately suspected that someone had broken into his apartment, and he went to the home of Berthnell Burnett across the street. Lopez asked Burnett to call the police. Lopez himself remained outside and watched as events unfolded.

Over the next few minutes several officers from the Takoma Park Police Department arrived on the scene. These officers established a perimeter around the house at 7604 Glenside Drive. One of the officers, Sergeant Coursey, asked Lopez whether anyone should rightfully be in the house. Lopez responded, "there shouldn't be." The Takoma Park officers called for assistance from the Prince George's County canine unit, and shortly thereafter Corporal Jeffrey Simms arrived with his dog, Castro. After officers on the scene told Simms that no one was at home, Simms was ready to unleash his dog for a search of the house.

At this point, Simms should have given a loud verbal warning that he was about to release the dog. The written Standard Operating Procedures for the Prince George's County canine unit make this requirement quite clear:

A canine will not be committed until an amplified announcement has been given. This will enable innocent persons to exit the area and afford suspects an opportunity to surrender.... It will be the canine handler's responsibility to ensure that the announcement is made.

Vathekan did not hear any warning, even though the window of her bedroom was directly above where Simms stood as he was preparing to release the dog. In addition, Lopez insists that he did not hear any announcement or warning from his position just across the street.

Simms then released the dog into the house at the basement entrance. Simms followed and issued the command, "Find him!", which signaled the dog to begin the search and to bite whomever it found in the house. After first searching in the basement, the dog ran up the stairs to Vathekan's quarters and began to "use[ ] his head in an attempt to force open the door." This indicated to Simms that there was a "human presence" on the other side of the door. Simms called the dog back down the stairs because one of the rooms in the basement had not yet been cleared. As soon as Simms and the dog completed the search of the basement, the dog ran back upstairs to the closed door, stopped, and again alerted to someone's presence on the ground floor.

Simms acknowledges that "[t]here was no announcement made" after the dog alerted at the interior door. According to Lieutenant David Morris, the commander of the Prince George's County Special Operations Division, canine officers are trained to give a second warning when a dog alerts to a person's presence behind an interior door. VanNess Bogardus, Vathekan's expert, was more pointed. ² Bogardus said:

Jeffrey Simms violated generally accepted police standards, practices and policies by failing to give a warning after Castro alerted on the door leading from the downstairs residence to Ms. Vathekan's residence. When the dog alerted, it became reasonably likely that a person was in the upstairs portion of the residence. Standard police procedure would have been to give a warning at that point in order [to] allow any such person an opportunity to surrender prior to being bitten by the dog.

Simms allowed the dog to go through the interior door into the ground floor area. Once through the door, the dog fixed on the target whose presence he had indicated to Simms moments before: that turned out to be Esther Vathekan. The dog bounded to the bed where Vathekan slept and bit into the left side of her skull. She struggled in vain to escape as the dog shook her violently. Suddenly, the dog let go of Vathekan's skull and then clamped its jaws firmly onto the right side of her face. Vathekan was now wide awake and fully conscious of the cracking sound of the bones in her face being crushed under the dog's vise-like grip. From his position across the street, Lopez could distinctly hear Vathekan's screams of terror and pain. ³

Upon hearing those same screams, Simms went toward the bedroom. He knew from the sound that the dog was biting a female, but since "the screams are the same whether they're innocent or criminal," he still believed that the victim might be a burglar. Simms got to the bedroom within a few seconds and called off the dog. Vathekan was carried from the scene in an ambulance, and she would spend the next six days in the hospital. Vathekan suffered serious and painful injuries from this attack, including deep lacerations to her head and face, fractured facial bones, and a permanently damaged tear duct in her right eye. She still experiences pain and discomfort from the injuries. And, although she has apparently had some reconstructive surgery, her face remains scarred and disfigured.

B.

Vathekan sued Simms and Prince George's County in the District of Maryland under 42 U.S.C. § 1983 for violations of her constitutional rights under the Fourth Amendment. She also asserted various state law claims. The case was initially submitted to a magistrate judge, who on January 6, 1996, recommended that summary judgment be denied as to the § 1983 claim. On July 15, 1996, however, the district court rejected that recommendation, holding that "[h]ere the use of canine force was objectively reasonable" for Fourth Amendment purposes. The court then granted summary judgment on the § 1983 claim in favor of Simms alone on qualified immunity grounds. Later, the district court shifted course and suggested to the parties that the dog's attack on Vathekan did not constitute a seizure under the Fourth Amendment at all. The court asked for and received briefing on whether the incident was governed instead by substantive due process standards under the ...