Jones v. Wild , 244 F. App'x 532 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6526
WILLIAM E. JONES, JR.,
Plaintiff - Appellant,
versus
T. R. WILD, S.O.D. 124/Badge 327; PTL; OFFICER
BENDER, Police Officer; K-9 OFFICER BOSCO, K-9
Dog,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:06-cv-00169-JBF)
Submitted: June 27, 2007 Decided: July 30, 2007
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William E. Jones, Jr., Appellant Pro Se. Richard Hoyt Matthews,
PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William E. Jones, Jr., a Virginia prisoner, appeals the
district court’s order granting summary judgment in favor of
Defendants and dismissing his action filed under 42 U.S.C. § 1983(2000). Jones claims he was attacked by a police dog during his
arrest, in violation of his constitutional right to be free from
excessive force. For the following reasons, we affirm.
We review de novo a district court’s order granting
summary judgment and view the facts in the light most favorable to
the nonmoving party. Beverati v. Smith, 120 F.3d 500, 503 (4th
Cir. 1997). We find that although the district court properly
concluded the officers did not violate Jones’s constitutional
rights, it applied the incorrect legal standard in analyzing his
excessive force claim. See Whitley v. Albers, 475 U.S. 312 (1986)
(describing standards applicable to alleged Eighth Amendment
violation arising out of the use of force by prison officials
during a prison riot). The use of force at the time of Jones’s
arrest is properly analyzed under the Fourth Amendment. See
Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir.
1998).
Because Jones reached into his car after being commanded
to put his hands up, and an officer gave a verbal warning prior to
releasing the dog, the facts in the record, even when viewed in
Jones’s favor, fail to support the conclusion that the police dog
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was unreasonably deployed. See id. at 178. By his own account,
Jones resisted after the officers deployed the dog. Given that the
officers were actively trying to gain control over Jones to
effectuate his arrest, we cannot conclude that it was unreasonable
for officers to wait until the situation had subsided completely
and Jones was secured in the police vehicle before calling off the
dog. See, e.g., Saucier v. Katz, 533 U.S. 194, 205 (2001)
(“Because ‘police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a
particular situation,’ the reasonableness of the officer’s belief
as to the appropriate level of force should be judged from that
on-scene perspective.” (citations omitted) (quoting Graham v.
Connor, 409 U.S. 386, 395 (1989)). Thus, even construing the
record in his favor, Jones cannot establish a constitutional
violation.
Accordingly, we affirm the district court’s order
granting summary judgment in favor of the officers on modified
reasoning. We dispense with oral argument because the facts and
legal contentions are adequately addressed in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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