Watkins v. City of Oakland, Cal.

• Decision Date: 29 May 1998
• Docket Number: No. 96-17239,96-17239
• Citation: 145 F.3d 1087
• Parties: 98 Cal. Daily Op. Serv. 4057, 98 Daily Journal D.A.R. 5623 Nathaniel WATKINS, Plaintiff-Appellee, v. CITY OF OAKLAND, CALIFORNIA; Joseph Samuels, Jr.; Craig Chew; E. Lewis, Officer; T. Chu, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1087

145 F.3d 1087

98 Cal. Daily Op. Serv. 4057, 98 Daily Journal

D.A.R. 5623

Nathaniel WATKINS, Plaintiff-Appellee, v. CITY OF OAKLAND, CALIFORNIA; Joseph Samuels, Jr.; Craig Chew; E. Lewis, Officer; T. Chu, Defendants-Appellants.

No. 96-17239.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 9, 1997.

Decided May 29, 1998.

Claudia R. Leed, Deputy City Attorney; Stephen O. Rowell, Oakland, California, for defendants-appellants.

Elizabeth H. Eto, Oakland, California, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Stanley A. Weigel, District Judge, Presiding. D.C. No. CV-94-03932-SAW(JAB).

Before: BRIGHT, ^* FLETCHER and NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

Oakland Police Department (OPD) Chief Joseph Samuels, OPD Officer Craig Chew, and the City of Oakland appeal the district court's denial of their motion for qualified immunity and summary judgment in Nathaniel Watkins' action for damages from dog bite injuries inflicted on him by "Nero," an OPD canine, during his apprehension and arrest for burglary. Watkins brought this action in federal district court pursuant to 42 U.S.C. § 1983 claiming a violation of the Fourth Amendment's prohibition on the use of excessive force in effecting an arrest. The district court denied Chief Samuels and Officer Chew's summary judgment motion finding that Watkins had raised "a genuine issue of material fact as to whether the force used against [Watkins], including allowing Nero to continue biting [him] until [he] showed his hands, was reasonable under the circumstances." The district court also denied Oakland's motion for summary judgment finding the city could be liable if Officer Chew used excessive force in apprehending Watkins. Appellants appeal these interlocutory rulings.

BACKGROUND

On November 20, 1993, Officer Chew and his police canine "Nero" responded to a silent alarm at Hart & Son Auto Body Shop, a commercial warehouse in Oakland. Four other Oakland police officers also responded. Upon arrival, the officers established a perimeter outside the warehouse because they had seen a person running within the building. There was no evidence as to whether the person was armed. Before releasing Nero to search for the person, Officer Chew announced twice: "This is the Oakland Police Department canine unit. Give yourself up or I'll release my dog who is going to find you and he is going to bite you." Watkins did not surrender to the police and claims that he did not hear the announcement. Officer Chew released Nero, a 72 pound German Shepherd, to search. Nero ran out of sight of Officer Chew, located Watkins who was hiding in a car, and bit him. Upon arriving at the scene, Officer Chew did not call Nero off of Watkins; instead, he ordered Watkins to show his hands. Watkins, who was recoiling from the dog's bite, failed to comply. Officer Chew then pulled Watkins out of the car onto the ground. Nero continued to bite until Watkins complied with Officer Chew's orders to show his hands.

Officer Chew and Officer David Walsh, another officer at the scene, testified that ten to fifteen seconds elapsed between the time Officer Chew ordered Watkins to show his hands and the time Watkins complied with that order. The officers both agree that Nero continued to bite Watkins throughout that period. In a later statement to the OPD Internal Affairs Division, Officer Chew stated that the time period was about thirty seconds.

Officer Chew justified his delay in calling off Nero because Watkins, while resisting the dog, failed to show his hands to prove that he was unarmed. Watkins explained that he did not show his hands because he was resisting the dog and recoiling from the pain of Nero's attack. Watkins further claims that Officer Chew continued to allow Nero to bite him even though he was obviously helpless and surrounded by police officers with their guns drawn. Watkins was subsequently handcuffed, arrested and ultimately charged with a violation of California Penal Code § 459, commercial burglary.

The officers then called an ambulance for Watkins because of the injuries he sustained from Nero's bites on his foot. Adam Black, the paramedic who examined Watkins, noted "multiple lacerations and punctures to [Watkins'] left foot." Black reported "a jagged tearing of the skin" and a puncture deep enough to allow him to see Watkins' tendons.

Watkins was taken to Highland Hospital Emergency Room, where X-rays revealed fractures of the second and third metatarsals. There, Dr. Johnson observed a split great toe nail; a three centimeter laceration, one centimeter deep between the first and second toes; a five centimeter open area exposing macerated superficial tendons; macerated soft tissue between the second and third toes; a two centimeter laceration between Oakland, at the time of the incident, employed a "bite and hold" canine policy. Police dogs were trained and tested to bite solidly, bite hard, and hold on. The dogs were trained to rebite if needed and to bite whatever part of the person's body is nearest to them. They were not trained to avoid biting any part of the anatomy. Oakland's policy allowed handlers to release the dogs to find and bite suspects even where the handler had no reason to believe that the person was armed. Police dogs were allowed to act independently of the handler and were thus often out of visual contact when they found and bit a person.

the third and fourth toes and a three centimeter laceration on the plantar surface. By December 15, doctors noted a six by eight centimeter non-healing ulcer over and down the third and fourth extensor tendons requiring two subsequent skin graft surgeries. As of April 1995, Watkins still suffered mobility problems and complained of pain.

In the five years prior to November 1993, Oakland police dogs found and bit thirty-six commercial burglary suspects. Oakland considered police dogs to be less dangerous weapons than police batons. Oakland did not, however, include police dogs in its guidelines for the use of nonlethal force.

Oakland provided a Bite Review Panel that reviewed every incident in which an OPD dog bites a suspect. After reviewing each incident, this panel issued a finding of Justified, Unjustified, or Accidental. Of the 284 bites reviewed, 256 were found Justified, five Unjustified, and seven Accidental, with the results of the remainder unknown. With regards to the arrest of Watkins, the Bite Review Panel found Nero's biting Watkins justified. Similarly, OPD Internal Affairs Division found Watkins allegations of the use of excessive force in effecting his arrest unfounded.

A. Jurisdiction

1. Chief Samuels and Officer Chew's qualified immunity claims.

We have jurisdiction to review a district court's order denying summary judgment on a qualified immunity defense under the collateral order doctrine. Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir.1996). However, our jurisdiction is limited to purely legal issues. The collateral order doctrine "does not sanction review of a district court's order denying the defendant's motion for summary judgment on qualified immunity grounds when the basis for the defendant's motion is that the evidence in the pretrial record is insufficient to create a genuine issue of fact for trial." Id. at 1317 (citing Johnson v. Jones, 515 U.S. 304, 313-19, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). Since the district court found genuine issues of fact concerning the reasonableness of Officer Chew's actions, our review is limited to determining whether clearly established law existed at the time of the incident that Officer Chew's actions could have violated. Johnson, 515 U.S. at 317, 115 S.Ct. 2151 (limiting "interlocutory appeals of 'qualified immunity' matters to cases presenting more abstract issues of law").

For purposes of the appeal of the denial of immunity, we must "take, as given, the facts that the district court assumed when it denied summary judgment for [a] (purely legal) reason." Id. at 319, 115 S.Ct. 2151. In cases like this one where the district court does not explicitly set out the facts that it relied upon, we undertake a review of the pretrial record only to the extent necessary "to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Id. We review the district court's denial of qualified immunity to Chief Samuels and Officer Chew under those constraints.

2. The City of Oakland's interlocutory appeal.

"[A] municipality is not entitled to the shield of qualified immunity from liability under § 1983." Brandon v. Holt, 469 U.S. 464, 473, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); see also Chew v. Gates, 27 F.3d 1432, 1439 (9th Cir.1994). Ordinarily, denial of summary judgment that does not dispose of all claims against all parties is not a final appealable order. See Cheng v. CIR, 878 F.2d 306, 309 (9th Cir.1989) (noting that "orders granting partial summary judgment, because We do not find the district court's denial of summary judgment to Oakland inextricably intertwined with the denial of qualified immunity to Officer Chew and Chief Samuels. In Chew, we held that the liability of Los Angeles for a police dog bite was separate from the officer's qualified immunity defense. See 27 F.3d at 1445 (affirming the district court's grant of qualified immunity while reversing the district court's award of summary judgment to the City of Los Angeles). We reasoned that:

they do not dispose of all claims, are not final appealable orders under section 1291"). However, Oakland requests that we take pendant jurisdiction over the district court's denial of its motion for summary judgment because the officers' claim of qualified immunity is "inextricably intertwined" with the issue of Oakland's liability. See Swint v. Chambers County Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In Swint, the...