Christopher Maney v. Terence Garrison , 681 F. App'x 210 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7791
CHRISTOPHER LAWRENCE MANEY,
Plaintiff – Appellant,
v.
OFFICER TERENCE GARRISON, individually and in his official capacity as an
Officer of City of High Point Police Department,
Defendant – Appellee,
and
THE CITY OF HIGH POINT, a municipality; CHIEF JAMES FEALY,
individually and in his official capacity as Chief of City of High Point Police
Department,
Defendants.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. James A. Beaty, Jr., Senior District Judge. (1:12-cv-00800-JAB-JEP)
Argued: January 27, 2016 Decided: March 9, 2017
Before TRAXLER, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Thacker wrote the majority opinion. Judge
Traxler wrote a separate concurring opinion. Judge Harris wrote a dissenting opinion.
ARGUED: John Carl Vermitsky, MORROW PORTER VERMITSKY FOWLER AND
TAYLOR PLLC, Winston-Salem, North Carolina, for Appellant. Patrick Michael Kane,
SMITH MOORE LEATHERWOOD LLP, Greensboro, North Carolina, for Appellee.
ON BRIEF: Corinne B. Jones, SMITH MOORE LEATHERWOOD LLP, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
THACKER, Circuit Judge:
Late on the night of May 4, 2010, Officer Terence Garrison (“Appellee”) and his
police dog, Bikkel, tracked a robbery suspect to an apparently abandoned house in High
Point, North Carolina. At the front stoop, Bikkel sprang into action, biting an individual
crouched behind a nearby bush. Unfortunately, it was not the suspect, but instead
Christopher Maney (“Appellant”). In the ten or so seconds that followed, Appellee
realized Appellant did not match the physical description of the suspect he and Bikkel
were tracking. But he nevertheless feared Appellant might pose a threat to the officers,
and so ordered Appellant to show his hands before calling off the dog. During that time,
Bikkel continued to bite and hold Appellant for a few seconds.
The district court concluded that Appellee was entitled to qualified immunity from
Appellant’s excessive force claim, and that a similar form of state-law immunity
insulated him from Appellant’s battery claim. In reviewing that decision, we must decide
whether a police canine handler, whose dog suddenly and mistakenly bites a concealed
bystander while tracking the scent of a robbery suspect, clearly violates the Fourth
Amendment if he momentarily extends the seizure to assess the potential threat to officer
safety. Like the district court, we think the law as it stood on the night in question did not
clearly proscribe such conduct. We therefore agree that Appellee is entitled to immunity
and affirm.
I.
We recite the facts in the light most favorable to Appellant. See Plumhoff v.
Rickard, 134 S. Ct. 2012, 2017 (2014). Around 10:00 p.m. on the night of May 4, 2010,
3
someone robbed the Sonic restaurant on South Main Street in High Point, North Carolina.
Witnesses described the perpetrator as “a clean shaven black male[,] approximately thirty
to forty years of age,” who had a “bald head,” stood “approximately five foot ten inches,”
and had a “medium build[.]” J.A. 164. 1 He did not use a weapon and fled the scene on
foot.
About a mile west of the Sonic, Appellant was bedding down for the night in a
temporary camp where “homeless people and persons who are temporarily displaced
often set up tents and other structures . . . .” J.A. 228. Unlike the suspect in the robbery,
Appellant is white, not bald, and stands approximately five-feet five-inches tall. And,
unlike the suspect, Appellant had committed no crime that night.
Appellee and his police dog, Bikkel, were on patrol in the area and joined in the
robbery investigation. Bikkel is a Belgian Malinois trained to track and apprehend
suspects using the bite and hold technique. That means Bikkel will bite and hold in three
circumstances: (1) upon command; (2) if he encounters the suspect he is tracking; or (3)
if he or Appellee is under attack.
Appellee spoke with a witness who pointed out the area where the suspect had last
been seen running. Appellee then “put Bikkel on that scent, a suspect scent,” J.A. 269,
and followed behind on a 15-foot lead. The duo plus one additional officer, Riley
Edwards, tracked the scent to the homeless camp. Appellee “lit up the area” with his
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
4
flashlight and gave two verbal warnings that a police canine was in the area. Id. at 276.
He received no response and saw no movement in the camp.
By that time, Appellant was no longer at the camp because he had been warned by
another camp inhabitant that “a group of people w[as] approaching quickly from the
railroad tracks on the North side of the camp.” J.A. 229. Appellant “had no idea who
was coming and was scared,” because he “knew at the time that other people in the camp
had enemies who . . . could be violent.” Id. So he fled south on foot and “crouched in
the edge of the bushes” adjacent “to the stairs leading up to the front porch” of a nearby
residence. Id. The bushes were “devoid of foliage and leaves” and the area was
illuminated by two street lights. Id.
Across the street from the house where Appellant was hiding, Bikkel began “air
scenting,” which suggested to Appellee that the robbery suspect was nearby. J.A. 288.
Bikkel then tracked toward the house and Appellant’s position.
During this portion of the tracking, Appellee was trying to be quiet. Appellant
could clearly see the officers approaching, but they “did not announce themselves[.]”
J.A. 229. Bikkel “climbed the front steps . . . onto the porch,” passing within just a few
feet of Appellant’s position. Id. at 230. Appellee followed closely behind with his gun
drawn and shortened the lead on the dog to three feet. This gave him more control over
the dog’s movements. He also scanned the area near the stairs with his gun light, but did
not specifically look at the area where Appellant was hiding.
At the top of the stairs, Bikkel air scented again, indicating that the suspect was
likely “pretty close.” J.A. 296. Appellee’s attention was drawn in particular to the door
5
to a crawlspace at the front of the house, which was open. Based on Bikkel’s air
scenting, he believed the robbery suspect was likely concealed there, under the house.
Appellee did not, however, announce himself or warn of Bikkel’s presence. For his part,
Appellant “was concerned the dog or officers would attack [him] if [he] startled them,”
so he kept quiet and remained still, crouched in his position beside the stairs. Id. at 230.
The unfortunate events that followed unfolded in roughly ten seconds. Appellant
maintains he was “visible to the officers where [he] was crouching” 2 when, “[s]uddenly,
without warning or provocation,” Bikkel “lunged out” from the top step of the porch and
“bit [Appellant] on the top of [his] head[.]” J.A. 230. Appellee did not command Bikkel
to bite Appellant and there is no evidence Appellee knew Bikkel was going to lunge into
the bushes. Bikkel’s lunge in the direction of the bushes was also unexpected because the
duo had already tracked past that position on their way up the steps to the porch: as
Appellee explained, if Bikkel sensed the suspect in the bushes, he should have gone
“straight to there[; n]ever up on the porch.” Id. at 310. But given the indications that
Bikkel was tracking the suspect’s scent, once Bikkel sprang into action Appellee thought
2
The district court, reasoning Appellant could do little more than speculate about
whether he was visible to the officers, did not consider this portion of Appellant’s
affidavit. But we think it is reasonable to infer that Appellant was visible because the
bush he was crouching behind was bare, the area was illuminated by streetlights, and
Appellee scanned the area next to the stairs with his gun light as he approached. While
Appellant may have been visible, obviously neither Bikkel nor the officer saw him, as
neither reacted to his presence when they passed by him, and after they went by him,
Appellant remained crouched behind the bush.
6
the “suspect was in the bushes, and Bikkel had just screwed up” by passing that position
initially. Id.
“Following the initial bite, [Appellee] saw [Appellant] and could see [his] features
and skin color.” 3 J.A. 230. But “despite being able to see that [Appellant] was not the
suspect in the robbery,” Appellee “made no attempt to command the dog to stop his
attack.” Id. As Appellee explained, he found it unusual and threatening that Appellant
was hiding in the bushes in the darkness and had not identified himself. And, based on
Bikkel’s air scenting, he also believed the suspect was potentially still near at hand,
leaving the officers vulnerable to an ambush. In the tense seconds that followed,
Appellee, in an attempt to make sure the person hiding in the bushes was not a threat,
repeatedly ordered Appellant to show his hands, while Appellant “attempted to protect
[him]self from the dog and pleaded for the police to stop the dog’s attack, stating that
[he] had done nothing wrong.” Id. at 231.
Ultimately, Bikkel bit Appellant on the left arm and once more on the left thigh
before Appellee “finally told the dog to cease his attack.” J.A. 231. The bites left a “two
square inch” laceration on Appellant’s head and “deep puncture wounds” to his arm and
thigh “which led to profuse bleeding[.]” Id. at 230–31. When the dust settled, “officers
including [Appellee]” placed Appellant in handcuffs, id. at 232, called for emergency
3
The district court also declined to consider this statement from Appellant’s
affidavit. But Appellee’s own testimony confirms that he realized during the fracas that
Appellant was white and “did not match the physical description of the [robbery]
suspect.” J.A. 169.
7
medical services in order to give medical attention to Appellant, and discontinued their
search of the premises, even though Appellee believed the suspect was in fact under the
house or concealed nearby.
In the aftermath, Appellant sued, alleging a violation of his Fourth Amendment
right to be free from unreasonable seizure as well as a state-law claim for battery. The
district court granted Appellee’s motion for summary judgment, holding that although
Appellee’s use of force may have been unreasonable as a matter of law, an officer in
Appellee’s position would not have known “that his conduct violated a clearly
established right.” J.A. 382–84. The district court also concluded that Appellee was
immune from the battery claim because Appellant “failed to provide evidence that
[Appellee] was acting with a malicious intent to injure [Appellant].” Id. at 387–88. This
timely appeal followed.
II.
Our first task is to consider de novo the district court’s decision to grant Appellee
qualified immunity from Appellant’s Fourth Amendment claim. See Smith v. Ray, 781
F.3d 95, 100 (4th Cir. 2015).
A.
We begin by acknowledging that Appellant was guilty at worst of being in the
wrong place at the wrong time and failing to reveal himself to the police. His seizure
accomplished nothing (if anything it impeded the robbery investigation) and it took a
painful toll.
8
But qualified immunity protects government officials from liability, even in cases
with plainly bad outcomes, if “their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). The doctrine balances “the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Id. “When properly applied, it
protects all but the plainly incompetent or those who knowingly violate the law.”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted).
Our task, then, is not to ask whether Appellant’s injuries are regrettable, as surely
they are, but instead whether the facts taken in his favor show (1) that Appellee violated a
constitutional right, and (2) that the right was clearly established at the time of the events
in question. See al-Kidd, 563 U.S. at 735. We have discretion to decide which of those
questions to address first “in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236. In many cases it is beneficial to determine first whether the
facts establish a violation of the Constitution. See, e.g., Estate of Armstrong ex rel.
Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 899–900 (4th Cir. 2016). But in some
cases, and this is one, the “constitutional question is so factbound that” deciding it would
provide “little guidance for future cases.” Pearson, 555 U.S. at 237.
We therefore proceed to the second question, keeping in mind that “a defendant
cannot be said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would have
9
understood that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).
In other words, while a case directly on point is not required, “existing precedent must
have placed the . . . constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
“The dispositive question is whether the violative nature of particular conduct is clearly
established.” Mullinex v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (emphasis in
original) (internal quotation marks omitted).
B.
Appellant argues any reasonable officer would have known the force used in this
case was excessive for three reasons.
1.
First, Appellant maintains that our decisions in Kopf v. Wing, 942 F.2d 265 (4th
Cir. 1991), and Vathekan v. Prince George’s County, 154 F.3d 173 (4th Cir. 1998),
clearly establish that it is unreasonable to use a police dog without first giving a verbal
warning. In Kopf, we reversed a defense summary judgment where officers tracked
suspects in an armed robbery to a narrow alley, and released a dog into the enclosure
(allegedly) without warning. In doing so, we noted that the parties’ factual dispute over
the issuance of a warning was “crucial, because a forewarning that the dog is going to
attack, which provides the suspects a fair chance to surrender, is more reasonable than a
surprise assault.” 942 F.2d at 268. Similarly, in Vathekan, we reversed an award of
summary judgment based on qualified immunity where an officer released his dog into a
house where a suspected burglar may have been hiding (again, allegedly) without
warning, resulting in severe injuries to the home’s owner. As we explained, qualified
10
immunity was not warranted because “it was clearly established [by Kopf] that failing to
give a verbal warning before deploying a police dog to seize someone is objectively
unreasonable and a violation of the Fourth Amendment.” 154 F.3d at 179.
Yet despite the apparent clarity of those holdings, our subsequent decision in
Melgar ex rel. Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010), cast serious doubt on the
breadth of the warning requirement set forth in Kopf and Vathekan. In Melgar, an officer
used a police dog trained in the bite and hold technique to search for a missing teenager
in distress. Although the officer kept the dog leashed at all times, the canine nevertheless
found the boy, bounded into the bush beneath which he was hiding, and bit him on the
ankle causing serious injury. Like Appellant, the Melgar plaintiff asserted the officer’s
use of the dog violated the clear warning requirement set down in our prior cases. We
acknowledged that “Vathekan and Kopf . . . establish[ed] that a warning is necessary
before releasing a dog,” but identified a “vast difference between an officer releasing a
dog off a leash . . . and an officer exercising substantial control over a leashed animal.”
593 F.3d at 358. As a result, we granted the officer qualified immunity on the theory that
“[c]ases addressing the former simply do not provide sufficient guidance to officers in the
latter situation.” Id.We have serious doubts about the propriety of that distinction. As this case shows
(and, indeed, Melgar itself showed), a leashed dog may be easier to control to some
extent, but can nevertheless do serious damage if it tracks, locates, and ultimately bites
and holds a suspect. See also Kuha v. City of Minnetonka, 365 F.3d 590, 595–96 (8th
Cir. 2003) (leashed dog “bounded into the three-foot-high grass and ‘seized’” suspect),
11
abrogated on other grounds by Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir.
2007) (en banc). But whatever our reservations, there is no denying that Melgar muddied
the question of whether officers must issue warnings when utilizing police dogs on leash,
as Appellee did here. Indeed, the rule Appellant maintains was clearly established -- that
an officer must warn before using a canine, whether on leash or off -- was forcefully
articulated in the Melgar dissent, rather than the majority opinion. See Melgar, 593 F.3d
at 363 (Michael, J., dissenting) (arguing that officer “deployed” his canine despite
keeping it leashed where the dog was used in part for the deliberate purpose of finding a
lost teenager). As a result, we cannot say that any reasonable officer would have known
he was required to warn of Bikkel’s presence as he approached Appellant’s position.
2.
Appellant next argues Kopf clearly established that it is unreasonable to prolong a
dog bite seizure until a subject complies with orders to surrender. In that case, two
suspects fled the scene of an armed robbery and hid in an “extremely narrow” enclosure
between a shed and an adjoining fence. Kopf, 942 F.2d at 266. Police had reason to
believe the suspects might be armed, so a canine handler released a police dog into the
passageway, where he first bit the female and then the male suspect. The canine officer
called on the suspects to show their hands, but they did not. Two additional officers then
entered the corridor and began struggling with the male suspect. The canine handler at
that point recognized that the male suspect was unarmed but still did not command the
dog to release his hold. Instead, he joined his fellow officers in the enclosure, where all
three struck the suspect several times with blackjacks and flashlights.
12
By the time it was all over, the suspect had been “nearly beaten to death.” Kopf,
942 F.2d at 269. He was “frightfully mauled,” and arrived at the hospital in “critical
condition” with a fractured skull, subdural hematoma, and “lacerations of the upper lip,
chest, knee, leg, and scrotum.” Id. at 267. Under those circumstances, we expressed our
belief “that a jury could find it objectively unreasonable to require someone to put his
hands up and calmly surrender while a police dog bites his scrotum.” Id. at 268. But we
ultimately held that qualified immunity was inappropriate because the undisputed facts
did not “portray an extraordinary situation” justifying the “severe” and “extraordinary
force” allegedly used by the officers. Id. at 269.
Here, the district court reasoned that Kopf did not put the constitutional question
about Appellee’s conduct in this case beyond debate because in Kopf we “only found that
a jury may conclude that forcing a person to show his hands prior to calling off the police
K-9 is excessive force,” but did not state “definitively that such conduct did in fact
amount to a constitutional violation.” J.A. 383. The district court’s view is not
unfounded. Once a court has “viewed the evidence in the light most favorable to the
nonmovant, the question of whether the officer’s actions were reasonable is a question of
pure law.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc); see also Scott
v. Harris, 550 U.S. 372, 381 n.8 (2007). Our suggestion that a jury “could” find the
officers’ conduct in Kopf objectively unreasonable might, therefore, be read as
equivocation on a mixed question of law and fact rather than a definitive statement that
certain conduct violates the Fourth Amendment.
13
But we need not rest our holding on the ambiguity in Kopf’s language. Like the
district court, we think the facts of Kopf are too dissimilar from this case to provide
adequate guidance to an officer in Appellee’s position. The officers in Kopf were dealing
with an armed robbery suspect, albeit one who they knew was unarmed, outnumbered,
and effectively cornered by the time they asked him to surrender. And although the
suspect was fighting with the dog, he was also being subdued by three officers who were
hitting him with flashlights and blackjacks while the police dog continued to bite him on
the scrotum, among other areas. In other words, the officers were confronted with a
clearly unarmed suspect who was going nowhere; they outnumbered him and were
beating him into submission; and yet they chose to allow the dog to continue biting the
suspect in the most sensitive of areas.
By contrast, here, Appellee suddenly and unexpectedly found himself in relatively
close quarters with an unknown and concealed individual who had been hiding in the area
where Appellee expected to find the perpetrator of a recently committed robbery and
assault. Although Appellee quickly realized Appellant was not the suspect, he could also
reasonably have believed, based on Bikkel’s air scenting, that the potentially dangerous
criminal suspect was in fact still nearby. And it is undisputed that he quickly called
Bikkel off within just a few seconds after calling for Appellant to show his hands. Unlike
Kopf, there is no indication that Appellee gratuitously prolonged the biting after
determining that Appellant was unarmed and surrendering. Cf. Cooper v. Brown, 844
F.3d 517, 521, 523 (5th Cir. 2016) (affirming denial of qualified immunity where police
dog “continued biting [the nonresistant suspect] for one to two minutes”; officer did not
14
command the dog to release his bite until suspect had rolled onto his stomach and was in
handcuffs; and officer had “no reason to believe that [the suspect] posed a threat”);
Becker v. Elfreich, 821 F.3d 920, 929 & n.2 (7th Cir. 2016) (holding that allowing a
police dog to continue biting while the officer pulled a nonresistant suspect down the
stairs and knelt on his back clearly violated the Fourth Amendment, but specifically
noting the case did “not involve a split-second delay between the officer pulling [the
suspect] to the ground and directing [the dog] to” stop biting).
Under those circumstances we think an objective officer familiar with Kopf could
reasonably, even if mistakenly, have believed that he was not required to call Bikkel off
for the eight or so seconds that it took to surmise that Appellant posed no immediate
threat to officer safety. See Kuha, 365 F.3d at 600–01 (holding it was not unreasonable
for officers to extend a dog bite seizure for ten to fifteen seconds while searching the area
around an unarmed suspect who nevertheless inexplicably fled from a minor traffic stop).
In the end, whatever Kopf may say about the likelihood that a suspect will calmly
surrender while being bitten by a dog, the case is simply too factually dissimilar to place
the situation facing Appellee beyond constitutional debate. Accordingly, we agree with
the district court that Appellee’s decision to briefly prolong Bikkel’s seizure of Appellant
did not violate a constitutional right that was clearly established by Kopf.
3.
Appellant’s final argument, quite apart from Kopf and Vathekan, is that every
reasonable officer would have known that the use of any force was unreasonable here
because there was no basis for seizing Appellant in the first instance.
15
This argument requires us first to determine when the seizure began. “The
Supreme Court has explained that a Fourth Amendment seizure requires ‘an intentional
acquisition of physical control’ which occurs ‘only when there is a governmental
termination of freedom of movement through means intentionally applied.’” Melgar,
593 F.3d at 354 (quoting Brower v. Cty. of Inyo, 489 U.S. 593, 596, 597 (1989)). To be
sure, a seizure may occur “even when an unintended person or thing is the object of the
detention or taking, but the detention or taking itself must be willful,” rather than the
product of “an unknowing act.” Brower, 489 U.S. at 596. In other words, “one is
‘seized’ within the [F]ourth [A]mendment’s meaning only when one is the intended
object of a physical restraint by an agent of the state.” Rucker v. Harford Cty., 946 F.2d
278, 281 (4th Cir. 1991).
Here, several facts suggest Appellee did not initially intend to seize Appellant.
First, Appellee not only kept Bikkel on a leash as he approached the area where
Appellant was hiding, but also shortened the leash, presumably to exert greater control
over the dog’s movements. Second, Appellee did not know anyone was hiding in the
bushes (instead believing the robbery suspect was hiding under the house), and he did not
expect Bikkel to lunge towards the bushes, because the dog had already tracked past that
location without alerting or springing into action. Finally, it is undisputed that Appellee
did not command Bikkel’s first bite; instead, as even Appellant suggests in his affidavit
testimony, the dog “[s]uddenly, without warning or provocation . . . lunged out” from the
top step of the porch. J.A. 230. All of this suggests that, so far as Appellee was
concerned, the first bite was spontaneous and unexpected. And as a result, we think
16
Appellant did not become the intended object of a seizure for Fourth Amendment
purposes until Appellee realized what had happened but nevertheless declined to call off
the attack. Cf. Dunigan v. Noble, 390 F.3d 486, 492–93 (6th Cir. 2004) (no seizure
where officer did not command dog to bite and dog reacted instead to a bystander
entering the “dog’s defensive perimeter”). The question, then, is whether every
reasonable officer would have known the second and third bites were clearly
unreasonable.
A brief detention for investigative purposes is reasonable if an officer “observes
unusual conduct which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968); see also Turmon v.
Jordan, 405 F.3d 202, 205 (4th Cir. 2005). “Considering the totality of the
circumstances, we are to determine whether there was a sufficient objective,
particularized basis for suspecting the person seized of criminal activity.” United States
v. Massenburg, 654 F.3d 480, 485 (4th Cir. 2011). “Evidence that would support only a
mere hunch is insufficient, though a reasonable basis need not establish probable cause
and may well fall[ ] considerably short of satisfying a preponderance of the evidence
standard.” Id. (internal quotation marks omitted). “[R]elevant to the totality of the
circumstances are various individual factors traditionally relied upon by police officers,
such as whether the stop occurred in a high-crime area, or whether the suspect engaged in
evasive behavior or acted nervously.” United States v. Mayo, 361 F.3d 802, 805–06 (4th
Cir. 2004) (internal citation omitted).
17
The fact that an individual happens to be near to where police suspect criminal
activity is taking place, standing alone, does not provide reasonable suspicion to stop just
anyone in the area. See Mayo, 361 F.3d at 807. But that is not what happened here.
Instead, Appellant was crouching in the dark behind a bush in the immediate location
where, based on Bikkel’s tracking, Appellee expected to find the suspect in a recently-
committed robbery and assault. And while it is true that Appellee quickly realized
Appellant was not the suspect, we can hardly say there was nothing suspicious about the
situation or Appellant’s behavior.
Indeed, given that Bikkel confused Appellant’s scent for the suspect’s, we think a
reasonable officer could have believed the two were hiding together or had recently been
in close contact. 4 And although there were no reports of the robbery suspect acting with
an accomplice, Appellant was also actively hiding from the police as they approached,
behavior which we have previously found can contribute to an officer’s reasonable
4
This point bears emphasis. Some police dogs are trained to bite the first person
they encounter, making no distinction between suspects and bystanders. See, e.g., Lowry
v. City of San Diego, 818 F.3d 840, 849 (9th Cir. 2016) (“Bak was not trained to
differentiate between a young child asleep or . . . a burglar standing in the kitchen with a
butcher knife, and would simply bite the first person she found.” (quotation marks
omitted)), reh’g en banc granted, 837 F.3d 1014 (9th Cir. 2016). But Appellee
repeatedly testified, and it is undisputed in the record, that, unless he is ordered to do so
or responding to an attack, Bikkel will not bite unless he smells the scent of the subject he
is tracking. See, e.g., J.A. 270 (“Q: So if he’s not smelling that person, he won’t bite the
person? A: Correct.”). Given this distinction, we think a reasonable officer would be
entitled to draw certain inferences from Bikkel’s actions that could not be drawn from the
actions of a less discerning dog.
18
suspicion. 5 See, e.g., United States v. Sims, 296 F.3d 284, 286–87 (4th Cir. 2002)
(upholding Terry stop where an individual was found crouching and hiding around a
corner “a very short distance from the spot where a shot was reportedly fired”). Given
the totality of those circumstances, we cannot say it would have appeared beyond debate
to any reasonable officer that there was no reasonable suspicion to conduct an
investigative stop. For example, we think Appellee could have reasonably, if mistakenly,
suspected Appellant was hiding with and helping to conceal the robbery suspect and thus
an accessory after the fact. See N.C. Gen. Stat. § 14-7.
And we do not think it would have been patently obvious to any officer that
briefly using a police dog in the situation presented here would necessarily violate the
Fourth Amendment. It is true that Terry stops can, and generally should, be minimally
intrusive. See Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). But “the
right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion . . . to effect it.” Graham, 490 U.S. at 396 (emphasis
supplied). Officers conducting Terry stops may, therefore, “use such reasonable force as
may be necessary to” effectuate the stop, United States v. Haye, 825 F.2d 32, 35 (4th Cir.
1987), “to maintain the status quo[,] and to protect their safety,” United States v. Sinclair,
983 F.2d 598, 602 (4th Cir. 1993) (holding that officer’s decision to draw his weapon
5
The dissent would omit this fact from the reasonable suspicion analysis
altogether, on the theory that Appellant’s rationale for not identifying himself -- fear that
he would be bitten -- ultimately proved correct. I fail to see how that matters. The
question is whether Appellant’s decision to remain hidden would have appeared
suspicious to a reasonable officer.
19
during a Terry stop was not improper even though the officer “had no reason to believe
[the suspects] were armed and dangerous”); see also, e.g., Young v. Prince George’s Cty.,
355 F.3d 751, 755 (4th Cir. 2004) (citing prior cases upholding the use of handcuffs and
drawing of weapons during Terry stops).
To be sure, a bite from a police canine is a significant use of force. See Melgar,
593 F.3d at 362 (Michael, J., dissenting). And we have long held the use of other
significant forms of force, whether “from a gun, a baton, a taser, or other weapon,
precludes an officer from receiving qualified immunity if the subject is unarmed and
secured.” Meyers v. Baltimore Cty., 713 F.3d 723, 734–35 (4th Cir. 2013) (discussing
prior precedent). Unsurprisingly, then, courts have denied qualified immunity to officers
who use dogs on suspects who have genuinely surrendered, see Becker, 821 F.3d at 929,
or immediately complied with police orders to do so, see Alicea v. Thomas, 815 F.3d 283,
290 (7th Cir. 2016).
Had Appellee encountered Appellant in broad daylight with time enough to call on
him to surrender, or had Appellant announced his presence to the approaching officers
and emerged from his hiding place with hands raised, this case would present an entirely
different question. Instead, Appellee had every indication that the suspect in an assault
and robbery was concealed somewhere in the darkness nearby, when Bikkel, who was
tracking the suspect’s scent, suddenly sprang into action. In the seconds that followed,
Appellee determined Bikkel had not seized the suspect. But the resolution of that
uncertainty understandably gave rise to more questions: Who was this person crouching
behind a bush, in the dark, near an abandoned house? Why did he continue hiding as
20
police approached? Why did Bikkel confuse him for the suspect? Was he acting in
concert with the suspect? Was the suspect still in fact nearby? And, in about as much
time as it takes to type (let alone to answer) those questions, Appellee sought to resolve
perhaps the most pressing uncertainty of all -- whether the unknown individual hiding
from police, in the spot where Bikkel had tracked the robbery suspect, was a threat to
officer safety. As soon as Appellee determined the answer to that question was “no,” it is
undisputed that he called Bikkel off and restrained the animal.
In sum, Appellee was faced with a situation that was tense, uncertain, and rapidly
evolving -- precisely the context in which the Supreme Court has counseled us to make
allowances for on-the-scene decisions about the amount of force that is necessary, “even
if it may later seem unnecessary in the peace of a judge’s chambers[.]” Graham v.
Connor, 490 U.S. 386, 396–97 (1989) (internal quotation marks omitted). Once he
ascertained that Appellant posed no threat and was not resistant, Appellee discontinued
the use of force, even though a reasonable officer could have considered Appellant’s
connection to the robbery suspect and reasons for hiding from the police as yet open
questions. Under those circumstances, we cannot say that every reasonable officer would
have known his conduct was, beyond question, a violation of the Fourth Amendment. 6
6
Appellant made passing reference in his briefing to the district court and this
court to the fact that the officers, including Appellee, handcuffed him for some period of
time while they treated his wounds and waited for emergency medical services personnel
to respond. Because Appellant failed to develop this argument to any extent in his brief,
we consider it waived. See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th
Cir. 2012).
21
C.
Judge Harris laments the severity of the force employed in this case, and
understandably so. One need not look far beyond each morning’s newspaper to find
alarming examples of police officers using force in ways that should give us -- as citizens
and as judges -- cause for concern. This case is no exception. That is why I would not
hold, much less suggest, that Appellee’s deployment of Bikkel complied with the Fourth
Amendment. 7
But current events remind us, too, that threats to officer safety are not imaginary,
and that police are often asked to intervene at a moment’s notice in tense, difficult
situations, on the basis of imperfect information and with little time for deliberation.
That is why we do not engage in “unrealistic second-guessing” of action taken in swiftly
developing situations, United States v. Sharpe, 470 U.S. 675, 686 (1985), and why we do
7
For this reason I find curious the dissent’s critique of our “rule” as it relates to
the timing of Appellee’s decision to call off the dog. Post at 47 n.5. It may be, as Judge
Harris suggests, that the use of force became unconstitutional the very second Appellee
realized Appellant was not his suspect. Perhaps not. I would simply leave that question
for another day, establishing no rule at all -- one way or the other. The timing of the
events in question is, however, relevant to the question we do answer: whether every
reasonable officer in Appellee’s shoes would have known his conduct violated the Fourth
Amendment. Some cases (ours and others) have made clear that gratuitously prolonging
the use of a police dog is unconstitutional. See, e.g., Kopf, 942 F.2d at 267–69 (no
qualified immunity where officer continued to allow dog to bite clearly unarmed suspect
that was surrounded by several officers who were beating the suspect into submission);
Becker, 821 F.3d at 929 & n.2 (no qualified immunity where officer allowed dog to
continue biting after pulling a nonresistant suspect down the stairs and knelt on his back).
Critically, though, what those cases do not say is that it is per se gratuitous for an officer
to make a split-second decision to use a dog to preserve the status quo when the tense,
rapidly-unfolding pursuit of a suspect suddenly escalates into the spontaneous seizure of
a concealed bystander.
22
not subject officers to personal liability for “bad guesses in gray areas,” Maciariello v.
Sumner, 973 F.2d 295, 298 (4th Cir. 1992).
Our task instead is to assess whether Appellee ran afoul of bright constitutional
boundaries. In the dissent’s view, the common sense answer is clearly “yes.” I agree that
common sense should guide our decision making. And when three judges consider the
same set of facts and in good faith take three different views of the law, common sense
tells me that things may not be as clear to every cop on the beat as the dissent would
suggest.
For example, a reader of the dissent’s cogent discussion of Terry’s stop and frisk
procedure could be forgiven for believing it well-settled that “a limited pat-down of a
suspect’s outer clothing . . . is all” the physical contact an officer may ever make with a
suspect on the basis of reasonable suspicion. Post at 41. That is certainly all that should
happen in the ordinary case. But as the dissent acknowledges, a “standard Terry stop . . .
is not what happened here.” Id. at 40. And an officer executing a seizure on the basis of
reasonable suspicion under considerably more exigent circumstances would be surprised
to learn that a frisk is all the physical contact permitted. In fact, when the classic Terry
tableau is replaced by something more dynamic, we and others have sanctioned stops
involving far more force. See United States v. Haye, 825 F.2d 32, 33–35 (4th Cir. 1987)
(officer acting on reasonable suspicion chased, tackled, and forcefully handcuffed a
suspect); United States v. Dykes, 406 F.3d 717, 720 & n.2 (D.C. Cir. 2005) (same and
collecting cases from other circuits); see also United States v. Lawshea, 461 F.3d 857,
860 (7th Cir. 2006) (using a police canine to stop and bite a fleeing suspect did not
23
convert Terry stop into custodial arrest requiring probable cause). True, those cases
mostly involve fleeing suspects, which Appellant was not. But discovered so suddenly
and unexpectedly as he was -- in circumstances a reasonable officer could have mistaken
for lying in wait -- the situation was unusual enough that this case cannot be resolved by
simply pointing out the differences between an ordinary Terry stop and what happened
here.
As one of our sister circuits explained over two decades ago, we have seen an
“expansion of Terry, including the trend granting officers greater latitude in using force
in order to neutralize potentially dangerous suspects during an investigatory detention.”
United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994) (internal quotation marks
omitted). “For better or for worse, the trend has led to the permitting of the use of
handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other
measures of force more traditionally associated with arrest than with investigatory
detention.” Id. at 1224–25. That trend may well be for the worse. But it unquestionably
blurs the lines about the degree of force that Terry permits. That “latitude . . . to
neutralize potentially dangerous suspects” may not stretch far enough to cover what
happened here (a question which, again, I do not resolve). But under the tumultuous,
spontaneous, and unexpected circumstances of this case, I do not think the answer is as
obvious as my dissenting colleague sees it, and that is what matters for purposes of
qualified immunity analysis.
None of that, however, should be taken as minimizing the impact of these events
on Appellant, who did not deserve the misfortune that befell him. Nor do I mean to
24
imply that officer safety is more important than citizen safety. Both are important
interests; when in tension they must be carefully balanced. Our conclusion that Appellee
is entitled to qualified immunity simply reflects one way in which we strike that balance:
by affording officers “breathing room to make reasonable” even if “mistaken judgments
about open legal questions.” al-Kidd, 563 U.S. at 743. Like the district court, I cannot
say Appellee acted perfectly under the circumstances. But by the same token I cannot
say his actions rose to the level of plain incompetence or knowing violations of the law.
And so, like the district court, I conclude that Appellee is entitled to qualified immunity.
III.
Finally, we briefly consider whether the district court properly granted Appellee
state-law immunity from Appellant’s battery claim.
“Under North Carolina law, public officials engaged in discretionary,
governmental duties enjoy absolute immunity from personal liability so long as they keep
within the scope of their official authority and act without malice or corruption.” Bailey
v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003) (citing Grad v. Kaasa, 321 S.E.2d 888,
890 (N.C. 1984)). “[A]n officer acts with malice when he ‘does that which a man of
reasonable intelligence would know to be contrary to his duty.’” Id. (quoting Grad, 321
S.E.2d at 890).
Appellant argues that Appellee’s conduct was “malicious in that it was in reckless
disregard to [his] rights and safety.” Appellant’s Br. 21. But having determined that
Appellee transgressed no clearly established constitutional boundaries, that theory of
maliciousness fails. See Cooper v. Sheehan, 735 F.3d 153, 160 (4th Cir. 2013)
25
(explaining that state law “man of reasonable intelligence standard” is “functionally
identical” to federal “clearly established” standard). And Appellant’s remaining theory,
that Appellee actually wantonly intended to injure him, is, as the district court held,
unsupported by even Appellant’s version of the facts. Accordingly, we agree with the
district court’s conclusion that Appellee is immune from Appellant’s battery claim.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
26
TRAXLER, Circuit Judge, concurring:
I agree with Judge Thacker that the district court correctly granted summary
judgment against Maney on qualified-immunity grounds because it was not clearly
established on the night in question that Maney’s conduct was unconstitutional. Because
my analysis of this issue differs somewhat from Judge Thacker’s, I write separately
regarding that issue. 1
The doctrine of qualified immunity “balances two important interests - the need to
hold public officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It “gives government
officials breathing room to make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S.
Ct. 3, 5 (2013) (per curiam) (internal quotation marks omitted).
In determining whether an officer is entitled to summary judgment on the basis of
qualified immunity, courts engage in a two-pronged inquiry. 2 See Tolan v. Cotton, 134 S.
Ct. 1861, 1865 (2014) (per curiam). The first asks whether the facts, viewed in the light
1
I concur in Part III of Judge Thacker’s opinion, concerning the battery claim.
2
Courts are “permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
27
most favorable to the plaintiff, show that the officer’s conduct violated a federal right.
See Saucier v. Katz, 533 U.S. 194, 201 (2001).
The second prong of the qualified-immunity inquiry asks whether the right was
clearly established at the time the violation occurred such that a reasonable person would
have known that his conduct was unconstitutional. See Ridpath v. Board of Governors
Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006). “We do not require a case directly on
point” in order to conclude that the law was clearly established so long as “existing
precedent [has] placed the statutory or constitutional question beyond debate.” Ashcroft
v. al–Kidd, 563 U.S. 731, 741 (2011).
A claim that a police officer employed excessive force is analyzed under the
Fourth Amendment under an “objective reasonableness” standard. Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (en banc); see Graham v. Connor, 490 U.S. 386, 395
(1989) (holding that “all claims that law enforcement officers have used excessive force
– deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard”). The officer’s actions do not amount to excessive force if they “are
‘objectively reasonable’ in light of the facts and circumstances confronting [him], without
regard to [his] underlying intent or motivation.” Graham, 490 U.S. at 397. In
considering the reasonableness of an officer’s actions, we must consider the facts at the
moment that the challenged force was employed. See Henry, 652 F.3d at 531.
Evaluating the reasonableness of the officer’s actions “requires a careful balancing
of the nature and quality of the intrusion on the individual’s Fourth Amendment interests
28
against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396(internal quotation marks omitted). To properly consider the reasonableness of the force
employed we must “view it in full context, with an eye toward the proportionality of the
force in light of all the circumstances.” Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.
2005) (internal quotation marks omitted). We also must give “careful attention to the
facts and circumstances of each . . . case, including” three factors in particular: “the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. Moreover, “[t]he calculus of reasonableness
must embody allowance for the fact that 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.” Id. at 396-97.
Considering these factors in regard to Garrison’s actions, I cannot say that a
reasonable officer in Garrison’s position would have known that his actions violated the
Fourth Amendment. To begin, the crimes at issue were violent. The suspect that Officer
Garrison was tracking had committed a robbery and assaulted a woman in the process.
Indeed, common-law robbery constitutes a felony in North Carolina. See N.C. Gen. Stat.
§ 14-87.1; see also Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (“Though driving
while intoxicated is a serious offense, it does not present a risk of danger to the arresting
officer that is presented when an officer confronts a suspect engaged in an offense like
robbery or assault.”).
29
Second, Garrison had reason to perceive that the suspect he was tracking was a
significant threat to his own safety and the safety of his backup officer. The suspect
already had disregarded public safety by assaulting a female during his commission of
the robbery. And he had had time to gain a tactical advantage over the officers by taking
a position of cover in anticipation of their arrival. In the darkness of the night, Garrison
justifiably feared that he and his backup were vulnerable to a surprise attack.
Finally, there can be no doubt that the suspect Garrison was tracking was
attempting to flee.
When Bikkel suddenly lunged out at a person apparently hiding in the bushes,
Garrison understandably believed Bikkel had found the suspect. With Garrison having
been caught by surprise, attempting to negotiate the darkness, and suddenly faced with a
figure hiding in an area where Garrison expected to find the robbery suspect, Garrison
reasonably could have concluded that the person posed a risk of immediate danger to his
and his backup’s safety. See Estate of Armstrong ex rel. Armstrong v. Village of
Pinehurst, 810 F.3d 892, 905 (4th Cir.) (noting that “a police officer may only use serious
injurious force . . . when an objectively reasonable officer would conclude that the
circumstances present a risk of immediate danger that could be mitigated by the use of
force”), cert. denied, 137 S. Ct. 61 (2016). And this perception of severe danger would
not necessarily have been allayed by the discovery that the man hiding in the bushes was
not the robbery suspect. As Judge Thacker ably explains, Garrison had reason to suspect
that the man in the bushes was acting in concert with the suspect and that the suspect was
30
still nearby. 3 See ante at 18-19. Facing a suddenly developing threat, Garrison could
have reasonably believed that calling Bikkel off before confirming that the hiding man
was not armed would subject him and his backup to significant danger, and thus that
prolonging the seizure a few seconds was justified. Cf. Kuha v. City of Minnetonka, 365
F.3d 590, 600-01 (8th Cir. 2004) (holding, regarding officers pursuing a suspect who had
fled from a traffic stop and given no indication that he was armed, that no jury could
rationally conclude that the officers acted unreasonably in extending dog-bite seizure for
10 to 15 seconds while the officer handling the dog demanded that the suspect raise his
hands), abrogated on other grounds, Szabla v. City of Brooklyn Park, 486 F.3d 385, 395-
96 (8th Cir. 2007) (en banc). “The Constitution simply does not require police to gamble
with their lives in the face of a serious threat of harm.” Elliott v. Leavitt, 99 F.3d 640,
641 (4th Cir. 1996).
While the violence that Bikkel had the potential to inflict – and did inflict – was no
doubt substantial, a reasonable officer in Garrison’s position would distinguish his
situation from one in which an officer “sicc[ed] a police dog on a manifestly unarmed
and compliant suspect.” Cf. Kuha, 365 F.3d at 601 (emphasizing this difference in
3
Maney argues that the dog-bite seizure, or at least the part that occurred after
Officer Garrison realized it was happening, was unconstitutional because it was not
supported by reasonable suspicion that Maney was involved in criminal activity.
Assuming arguendo that such reasonable suspicion was necessary to justify the brief
continuation of the dog-bite seizure, I agree with Judge Thacker that a reasonable officer
in Garrison’s position could have believed that requirement was satisfied. See ante at 18-
19.
31
holding that no rational jury could find officer’s actions in prolonging the dog-bite
seizure were unconstitutional). Indeed, Garrison promptly called off his dog only
seconds later, as soon as he was able to see that Maney was not holding a weapon. See
J.A. 284 (testimony that Garrison took Bikkel off in one to two seconds once he saw
Maney was not holding a weapon). Cf. Becker v. Elfreich, 821 F.3d 920, 929 n.2 (7th
Cir. 2016) (holding that continuation of dog-bite seizure constituted excessive force but
emphasizing that the case did “not involve a split-second delay between the officer
pulling [the suspect] to the ground and directing” the dog to end the seizure).
Furthermore, nothing in the record indicates that Garrison took an unreasonable amount
of time to make that determination.
Maney maintains that Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), would have
alerted any reasonable officer that it was unconstitutional to demand that Maney show his
hands before calling Bikkel off. Maney particularly focuses on our statement in that case
that a jury could rationally “find it objectively unreasonable to require someone to put his
hands up and calmly surrender while a police dog bites his scrotum.” Id. at 268. But the
context of that statement shows that it did not establish the unconstitutionality of
Garrison’s actions. In Kopf, the biting of the suspect to which we referred occurred after
the officer handling the dog realized that the suspect was not holding a weapon. See id.
at 266 (“[The officer handling the dog] did not order [the dog] to release; instead, noting
that [the suspect] had no weapon in his hands, [the officer handling the dog] ran back
around the shed to assist [the two other officers]. [The suspect] struggled with the dog
[and the two other officers]. By this time, [the dog] was biting [the suspect] in the thigh
32
and groin; still [the officer handling the dog] allowed the biting to go on.”). Our
statement was made in the context of explaining that a jury, in determining the
reasonableness of the force the officers employed, might rationally conclude that the
suspect should not be faulted under those circumstances for continuing to offer some
resistance to the dog’s attack. See id. at 268. To a reasonable officer in Garrison’s
position, Kopf would have, at most, established that Maney’s refusal to immediately
show his hands should not be interpreted as an act of aggression or noncompliance. It
would not have alerted him that it would be unconstitutional to briefly prolong the dog-
bite seizure while he determined that the man he reasonably viewed as a serious threat to
him was not holding a weapon. See Kuha, 365 F.3d at 600-01 (noting that while the
officers knew that the officer who made the traffic stop from which the suspect fled had
not seen a gun, the officers were nonetheless “reasonably wary of what they might
encounter when they found [the suspect],” and they were “reasonably concerned for their
safety”).
Maney further argues that Kopf and Vathekan v. Prince George’s County, 154
F.3d 173 (4th Cir. 1998), would have alerted any reasonable officer in Garrison’s position
to the fact that Garrison acted unconstitutionally by not giving a verbal warning as he
approached the house. He particularly notes that Vathekan stated that “Fourth Circuit
precedent existing in 1995 clearly established that failure to give a warning before
releasing a police dog is objectively unreasonable in an excessive force context” and that
“it was clearly established in 1995 that failing to give a verbal warning before deploying
a police dog to seize someone is objectively unreasonable and a violation of the Fourth
33
Amendment.” Id. at 179. In my view, however, these statements were not sufficient to
put a reasonable officer on notice a warning was constitutionally required as Garrison
approached.
As Bikkel started air scenting across the street from the house and Garrison sensed
that the suspect was pretty close, he made the judgment that attempting to be quiet, and
thereby retaining the element of surprise, would provide important protection against a
sudden and unexpected attack from a suspect whose location Garrison had not yet
identified. J.A. 331-32; see Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (noting
that courts should not “undercut the necessary element of judgment inherent in a
constable’s attempts to control a volatile chain of events”). This judgment was certainly
not an unreasonable one. Cf. Kuha, 365 F.3d at 603 (reasoning that in situation in which
suspect was hiding in a location unknown to the officers, reasonable officer could
conclude that “a warning would place the officers at undue risk”; distinguishing Kopf and
Vathekan). And importantly, as Garrison and Bikkel climbed onto the porch, Garrison,
unlike the officers in Kopf and Vathekan, did not release his dog. In fact, Garrison
shortened Bikkel’s lead from 15 feet to three feet to increase his control over the dog and
to reduce the chance that Bikkel would encounter and bite a bystander. On that basis, an
officer in Garrison’s position could have reasonably believed he was not violating the
rule articulated in Vathekan requiring the issuance of a warning before releasing a dog.
Indeed, we relied on this very distinction in Melgar ex rel. Melgar v. Greene, 593 F.3d
348 (4th Cir. 2010). Specifically, we noted the “vast difference between an officer
releasing a dog off a leash knowing with a good degree of certainty that it will find and
34
bite its target and an officer exercising substantial control over a leashed animal with the
expectation of being able to prevent any injury.” Id. at 358. On that basis, we held that
the officer did not violate clearly established law for failure to give verbal warning while
tracking with his dog on a 15-foot lead because “the officer expected his control over the
animal by means of the leash would render any warning unnecessary.” Id.Nor do I believe that Kopf and Vathekan would have instructed a reasonable
officer that a warning – and cessation of the dog-bite seizure – was necessary once
Garrison realized the dog had engaged someone. By that time, Garrison was suddenly
facing an emergency situation. Despite the breadth of the language from Vathekan
requiring warnings before the deployment of a dog, nothing in Vathekan – or Kopf –
concerned a potential serious and immediate threat to the officer. In Vathekan, when the
dog was released, officers had already established a perimeter around the house in which
they believed the suspect was located and there clearly was no immediate threat to any of
those officers. See 154 F.3d at 176. In Kopf, as well, several officers were out of harm’s
way and had cornered the suspects behind a shed when the dog was released. See 942
F.2d at 266. Especially considering the fact-intensive nature of the Graham test for
excessive force, I do not believe that a reasonable officer in Garrison’s position would
have understood those cases to address the present situation, see Estate of Rodgers ex rel.
Rodgers v. Smith, 188 Fed. App’x 175, 182 (4th Cir. 2006) (“Kopf and Vathekan stand at
most for the principle that the Fourth Amendment is violated when an officer who faces
no immediate threat deploys a police dog without prior warning.” (emphasis in original)).
35
In sum, for all of the aforementioned reasons, I believe that a reasonable officer in
Garrison’s position could have concluded that he was constitutionally justified in
prolonging the dog-bite seizure for a few seconds while he confirmed that the man hiding
in the bushes was not holding a weapon. I therefore believe the district court properly
granted summary judgment to Officer Garrison on the basis of qualified immunity.
36
PAMELA HARRIS, Circuit Judge, dissenting:
As my colleagues in the majority recognize, this is a most unfortunate case.
Because he was homeless, Mr. Maney found himself “in the wrong place at the wrong
time,” Maj. Op. at 8 1: outside a vacant house thought to shelter the suspect in an
unarmed robbery. Maney was not himself suspected of any crime, armed or not, and he
did not attempt to flee or to resist. Nevertheless, Officer Garrison deliberately subjected
him to a canine attack in order to rule out any possibility that he might pose a threat.
Whether or not a more customary Terry stop might have been authorized, I think it is
clear enough that the circumstances did not justify the sustained mauling of Maney.
Clear enough, that is, to warrant denial of qualified immunity to Garrison on
Maney’s excessive force claim. As the majority cogently explains, even if Garrison
violated the Fourth Amendment when he decided to allow his dog to continue attacking
Maney, qualified immunity will protect him from liability unless the Fourth Amendment
right in question was “clearly established” at the time of the events in question. Maj. Op.
at 9-10. The “border between excessive and acceptable force” can be a “hazy” one,
Saucier v. Katz, 533 U.S. 194, 206 (2001), and where the question is close, then it cannot
be said that “any reasonable official in the defendant’s shoes would have understood”
that he was outside constitutional bounds, Plumhoff v. Rickard, 134 S. Ct. 2012, 2023
(2014), as is required before liability may be imposed.
1
“Maj. Op.” refers to the majority opinion, and “Conc. Op.” to the concurring
opinion.
37
There is one question in this case that might qualify as a close one, and that is
whether Garrison was justified in seizing Maney at all, let alone by way of canine attack.
For present purposes, I will credit Garrison’s account of events, which has Bikkel,
Garrison’s dog, launching the attack on Maney on his own initiative and to Garrison’s
surprise. And on that premise, I will assume that no seizure occurred until Garrison —
again, by his own testimony — observed the attack and determined that Maney was not
his suspect, and then intentionally let the mauling continue until Maney could show his
hands and demonstrate that he was unarmed. See Brower v. Cty. of Inyo, 489 U.S. 593,
596–97 (1989) (Fourth Amendment seizure occurs when officer terminates freedom of
movement through means intentionally applied); Maj. Op. at 16-17. 2 But there is no
dispute that there was in fact a seizure here, and that means that the threshold question in
this case, before we even get to the use of force, is why Garrison was entitled to detain
Maney in the first place.
With no help from Garrison, who fails to address this question altogether, the
majority posits that Maney’s seizure was authorized by Terry v. Ohio, 392 U.S. 1 (1968),
which allows for a brief investigative stop on reasonable suspicion of criminal activity.
2
In fact, there remains a material dispute as to precisely when Garrison saw
Maney and recognized that he was not the robbery suspect. As noted above, Garrison
claims that he realized Maney was present only after the canine attack already was in
progress. But a reasonable jury crediting Maney’s version of events could find
otherwise. Because Maney contends that the bushes in which he was crouched were
“devoid of foliage and leaves,” J.A. 229, and that the area was lit by two streetlights, it is
reasonable to infer that Maney was visible to Garrison before the attack. Whether
Garrison saw Maney before or after Bikkel’s attack began bears materially on the
reasonableness of Garrison’s actions, making summary judgment inappropriate.
38
Although Garrison knew that Maney was not the unarmed robbery suspect he was
tracking — and also that no accomplice to that unarmed robbery had been reported — he
might reasonably have believed, according to the majority, that Maney was involved in a
crime. Maj. Op. at 17-19.
I think the better view is that there was not reasonable suspicion sufficient to
support a Terry stop in this case. As the majority recognizes, Maj. Op. at 18, “an
individual’s mere presence in an area of expected criminal activity . . . is not enough to
support a reasonable, particularized suspicion that the person is committing a crime.”
United States v. Bumpers, 705 F.3d 168, 171-72 (4th Cir. 2013) (internal quotation marks
omitted). And that is mostly what this case is about: Maney’s unfortunate presence
outside the house to which Garrison had tracked his suspect. The only other factor relied
on by Garrison was that Maney was not exhibiting “normal bystander behavior,” J.A. 169
— that is, Maney was crouched in the bushes near an abandoned house at a little after
10:00 p.m. and did not identify himself to the police. 3 But Garrison had just passed
through what he knew to be a homeless camp, approximately 150 yards away, so he was
3
At no point in his deposition did Garrison suggest that he believed that Maney
and his suspect had close contact while working together, leading Bikkel to confuse
Maney’s scent with the suspect’s. Cf. Maj. Op. at 18; Conc. Op. at 30. Instead, Garrison
attributed Bikkel’s attack on Maney solely to the fact that Maney happened to find
himself in proximity to a suspect hiding under the house: “[T]he way the wind was
blowing, [the suspect’s] odor was conjugating up where all the bushes were, where Mr.
Maney was hiding.” J.A. 278. But that explanation is called into question by the fact
that Garrison never bothered to look under the house for the suspect he allegedly believed
to be hiding there. So a reasonable jury could conclude that what Garrison actually
understood was that Bikkel simply had made a mistake, and that his suspect was nowhere
on the premises.
39
aware that there was a perfectly innocent explanation for Maney’s presence near the
abandoned house. And I would not count against Maney his failure to stand and identify
himself, which Maney — quite reasonably, in hindsight — attributes to his fear that a
sudden movement might prompt a dog attack. Citizens are under no free-standing
obligation to identify themselves to the police, see Brown v. Texas, 443 U.S. 47 (1979)
(overturning defendant’s conviction for refusing to stop and identify himself to police),
and it was Garrison who failed to give the standard announcement or warning — the
same one he gave while tracking through the homeless camp — that would have put
Maney on notice that he should speak up and allowed him to come forward in safety.
That is the question that this case should be about: whether Maney’s presence at
the scene of the police action justified a brief investigative Terry stop based on
reasonable suspicion. Had events unfolded as they should have — had Garrison seen
Maney and detained him without deploying Bikkel, or ended Bikkel’s attack as soon as
possible but further detained Maney to ensure that he posed no threat — then we could
have the customary debate about whether there was reasonable suspicion sufficient to
support a Terry stop. In my opinion, there was not. But this is a qualified immunity case,
and I will assume, arguendo, that whether a standard Terry stop was justified is not
“beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), as required to defeat
qualified immunity.
A standard Terry stop, of course, is not what happened here. Garrison did not end
the attack on Maney as soon as he realized that Bikkel was biting a man who was not his
suspect, and then detain Maney by ordinary means. Instead, he made the deliberate
40
decision to detain Maney by way of an ongoing canine attack, until Maney could show
his hands and satisfy Garrison that he was not armed. And at that point in the
proceedings — when Garrison, by his own account, intentionally prolonged a violent
assault on Maney to determine whether he might pose a threat — I believe we have run
out of close questions of law.
First, no reasonable officer could think that he was entitled to effectuate a Terry
stop by way of canine attack. On this point, Terry and its progeny are perfectly clear.
Terry carves out an exception to the general rule that seizures of the person must be
justified by probable cause, allowing for brief investigative stops on the lesser standard of
reasonable suspicion. 392 U.S. at 21-22. But precisely because a Terry stop requires
only reasonable suspicion and not probable cause for an arrest, Terry authorizes only a
carefully “limited intrusion on the personal security of the suspect,” Florida v. Royer, 460
U.S. 491, 500 (1983) (plurality opinion) (police exceeded limited intrusion allowed on
reasonable suspicion when they removed suspect from public area of airport and detained
him in private room for questioning) — classically, an approach on the street to question
a suspect about his conduct, see Terry, 392 U.S. at 23. And Terry itself addresses the
question of what an officer may do to protect his safety during such a stop: If and only if
the officer has an objective and articulable reasonable suspicion that a suspect is armed
and dangerous — a standard that nobody argues was met in this case — then the officer
may conduct a limited pat-down of a suspect’s outer clothing for a weapon, and that is
all. Id. at 24-25.
41
The gap between what Terry allows on reasonable suspicion and what transpired
in this case is so vast that no reasonable officer could have failed to appreciate the
difference. Any suggestion that a police officer, operating only on reasonable suspicion
and without probable cause, and with no objective basis for believing a suspect to be
armed — no report of a crime involving a weapon, no weapon or suspicious bulge
observed, not even a furtive gesture — could skip past the stop and question, past the
frisk, and go directly to canine attack under the auspices of Terry simply cannot be
credited.
It is true, as the majority explains, that officers conducting Terry stops may use
“such reasonable force as may be necessary” to effectuate the stop. United States v.
Haye, 825 F.2d 32, 35 (4th Cir. 1987). But any such use of force must be consistent with
the general Terry framework described above, which, again, allows only for significantly
limited intrusions on personal freedom and security, in light of the fact that there is no
probable cause of criminal activity. That is why, as the cases cited by the majority make
clear, Maj. Op. at 19-20, the hard questions in this area are about things like displays of
force — we have permitted officers to draw weapons during a Terry stop, see United
States v. Sinclair, 983 F.2d 598, 602 (4th Cir. 1993), but have described the practice as an
“extraordinary measure[],” United States v. Taylor, 857 F.2d 210, 213-14 (4th Cir. 1988)
— and the use of handcuffs to restrain a suspect known to be armed, see Young v. Prince
George’s Cty., 355 F.3d 751, 755 (4th Cir. 2004). Use of a canine attack in a reasonable-
suspicion stop, where a suspect is not resisting, attempting to flee, or otherwise making
42
extraordinary measures “necessary,” is not a hard question, and it cannot be reconciled
with settled understandings about the limited nature of the intrusion permitted by Terry.
I do not want to belabor what I think is an obvious point. But this is an issue on
which we must not allow confusion or excuse error. Because they are permitted on less
than probable cause, Terry stops are exceedingly common; in New York City alone,
police conducted 4.4 million reasonable-suspicion stops between January 2004 and June
2012. Floyd v. City of New York, 959 F. Supp. 2d 540, 556 (S.D.N.Y. 2013). Countless
citizens who ultimately will be found to have committed no crime are subject to Terry
stops on a daily basis. No police officer should be under the impression that whether
canine attacks may be used to carry out those stops, as a first resort against suspects who
are neither fleeing nor resisting, is an open or difficult question.
Second, even if we were to hypothesize some other justification for Maney’s
seizure, so that Terry’s restrictions do not apply, it would remain clear that the Fourth
Amendment’s more general limits on the use of force were exceeded here. Whatever the
imagined alternative basis for Maney’s seizure — and assuming, for the sake of
argument, that there was one, despite the undisputed absence of probable cause — use of
force in its effectuation would be subject to the “objective reasonableness” test of
Graham v. Connor, 490 U.S. 386, 394-97 (1989). And while many Graham cases
present close questions, this is not one of them.
On one side of the Graham balance, we have the degree of force used against
Maney. See 490 U.S. at 396 (balancing “nature and quality of the intrusion on the
individual’s Fourth Amendment interests” against countervailing government interests);
43
Turmon v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005) (nature of intrusion on individual
interests generally measured by the amount of force employed, with consideration of
extent of injuries). A mauling by a police dog is not only terrifying for the subject but
also likely to inflict severe injury; as we have explained, “[t]he force of a police dog’s
bite is between 1,200 and 2,000 pounds per square inch,” Vathekan v. Prince George’s
Cty., 154 F.3d 173, 177 n.3 (4th Cir. 1998). In this case, Garrison’s dog first bit the top
of Maney’s head, tearing away a two-square-inch section of hair, skin, and tissue. This
wound ultimately required a fifteen-and-three-quarter-inch skin graft. Then, as Maney
pleaded with the police to stop the attack, the dog bit Maney twice more, causing deep
wounds on his left arm and left thigh. Those injuries led to a brachial artery blood clot
and profuse bleeding, bruising, and swelling.
And on the other side of the balance, we have the weight of the government
interest in prolonging the canine attack on Maney, rather than ending the attack and
substituting normal means of detention. See Graham, 490 U.S. at 396. That interest is to
be evaluated in light of the totality of the circumstances and with special attention to the
so-called Graham “factors”: “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. And as the district
court held, not one of those factors can explain why it was necessary or constitutionally
reasonable to employ a canine attack against Maney once Garrison realized that Maney
was not his suspect. At that point, “there was no crime at issue associated with
[Maney],” severe or not, that could justify this level of force. J.A. 379. Nor was there
44
any objective reason to suspect Maney of being a threat, notwithstanding Garrison’s
“contention that hiding from police is not normal bystander conduct,” J.A. 380; again,
Garrison, who was responding to a call on an unarmed robbery, saw nothing — not a
weapon, not a bulge, not a movement — to indicate that Maney was armed. And finally,
Maney was not fleeing from the police when force was deployed, or otherwise resisting
efforts to detain him. Id. Perhaps Garrison reasonably could have believed that Maney’s
presence on the scene and failure to identify himself justified a brief investigative stop.
But under Graham, there is simply nothing — not one factor — that could have led a
reasonable officer to think that he could use the level of force associated with a canine
attack to carry out that investigation. 4
Third, the sudden and fast-moving nature of Garrison’s encounter with Maney
does not compel a different result. It is true, as Graham instructs and the majority
explains, that “[b]ecause ‘police officers are often forced to make split-second judgments
— in circumstances that are tense, uncertain, and rapidly evolving,’ the facts must be
evaluated from the perspective of a reasonable officer on the scene, and the use of
hindsight must be avoided.” Waterman v. Batton, 393 F.3d 471, 476-77 (4th Cir. 2004)
(citation omitted) (quoting Graham, 490 U.S. at 397); see Maj. Op. at 21, 24. But the
4
The concurring opinion applies the Graham factors not to Maney but to the
unarmed robbery suspect Garrison was tracking, and concludes that a reasonable officer
could have believed himself authorized to subject that suspect to a canine attack. Conc.
Op. at 29-30. I have my doubts. But regardless, that is not the question in this case.
What matters here is whether Garrison acted reasonably under Graham when he decided
to extend a violent attack against a person he recognized was not the suspect for whom he
was searching.
45
problem here is not facts discovered after the events in question, with the luxury of
hindsight; it is that on the facts as perceived by Garrison himself, at the scene and in the
heat of the moment, no reasonable officer could have thought that the Fourth Amendment
allowed him to extend Bikkel’s violent attack on Maney.
This not a case, that is, in which things moved so quickly that Garrison was
powerless to discern or respond to changing circumstances. On the contrary: Garrison
testified that notwithstanding the commotion surrounding Bikkel’s initial attack on
Maney, he came to a deliberate decision to permit the canine — undisputedly on a lead
and within his control — to continue mauling Maney until Maney showed his hands. The
tense conditions of the encounter did not prevent Garrison from ascertaining, correctly,
that the man being mauled — white and not bald — was not his bald, African-American
suspect. And they did not cause Garrison to misperceive the existence of a weapon, or
even a gesture that might have been a reach for a weapon. Cf. Anderson v. Russell, 247
F.3d 125, 130 (4th Cir. 2001) (because facts are viewed “from the perspective of the
officer” under Graham, use of deadly force justified where officer reasonably but
incorrectly perceived subject to be armed and reaching for a gun); Waterman, 393 F.3d at477–80 (given split-second nature of decision, use of deadly force justified where officers
reasonably perceived vehicle lurching forward as assault on them).
What Garrison got wrong was not the facts, but the law: It is not the case, as
Garrison appears to have believed, that — in the absence of probable cause, an attempt to
flee or resist, or even a mistaken perception of a weapon or threatening gesture — Maney
could be subjected to a canine attack for failure to exhibit “normal bystander behavior” at
46
the scene of a police investigation into an unarmed robbery. J.A. 169. And that kind of
legal misjudgment, we have made clear, will not render the use of force reasonable, no
matter how pressing the circumstances. Even in the most rapidly evolving and fraught
encounters, lasting no more than moments and involving perceived threats far graver than
the one Garrison believed himself to be facing, police officers are charged with applying
Fourth Amendment use-of-force restrictions on a second-by-second basis, and responding
immediately to changed circumstances or new information. See Waterman, 393 F.3d at
481 (“[F]orce justified at the beginning of an encounter is not justified even seconds later
if the justification for the initial force has been eliminated”); Brockington v. Boykins, 637
F.3d 503, 507 (4th Cir. 2011) (deadly force justified at start of encounter no longer
justified seconds later). Bikkel’s attack on Maney may have been brief 5 and tumultuous,
and — crediting Garrison’s account — it may have begun as an unintentional restraint
and thus a non-seizure for Fourth Amendment purposes. But “pars[ing] the sequence of
events as they occur[red],” Brockington, 637 F.3d at 507, what matters is the precise
moment in which Garrison consciously decided to allow Bikkel to continue mauling a
5
It is worth noting that under the majority’s rule, as I understand it, the brevity of
Bikkel’s attack on Maney may be a virtue, but it is not a necessity. For the majority,
what makes this case a close enough question to trigger qualified immunity is not that
Garrison ended the attack on Maney seconds after deciding to allow it; it is that Garrison
ended the attack as soon as he had satisfied himself that Maney did not pose a threat.
Maj. Op. at 21; see Conc. Op. at 32. Had it taken longer for Garrison to assure himself
that Maney meant him no harm — had, for instance, Bikkel’s attack prevented Maney
from showing his hands quickly, as a police canine attack often will do, see Kopf v. Wing,
942 F.2d 265, 268 (4th Cir. 1991) (reasonable jury could find it objectively unreasonable
to require person to show his hands and surrender while being attacked by police dog) —
then the duration of the attack could have been extended accordingly.
47
non-suspect in his unarmed robbery case. And at that moment, on the facts as he
perceived them, Garrison made an objectively unreasonable legal judgment.
Finally, as I have said already, I do not believe that this case falls within a “gray
area,” see id. at 508, entitling Garrison to qualified immunity because the Fourth
Amendment limits he exceeded were not sufficiently “clearly established” to put him on
notice. Our qualified immunity analysis takes into account “not only already specifically
adjudicated rights, but those manifestly included within more general applications of the
core constitutional principle invoked.” Amaechi v. West, 237 F.3d 356, 362–63 (4th Cir.
2001); see Hope v. Pelzer, 536 U.S. 730, 741 (2002) (officials can “be on notice that their
conduct violates established law even in novel factual circumstances”). And for the
reasons given above, my view is that the “core constitutional principle[s]” and doctrine
articulated in Terry and Graham make manifest that canine attacks may not be used in
the first instance to seize suspects on, at best, reasonable suspicion, and without objective
indicia of a weapon.
But if more were required, then I believe it is provided by our cases dealing
directly with police canine attacks. Those cases clearly establish that Graham’s objective
reasonableness standard applies to police canine attacks, see Vathekan, 154 F.3d at 178;
that even the weighty government interest in apprehending armed and fleeing robbery
suspects may not be enough to justify a canine attack under Graham, see Kopf v. Wing,
942 F.2d 265, 266, 268-69 (4th Cir. 1991); and that dog attacks are no exception to the
rule that even in a fast-moving and tense situation, a use of force that is excusable at one
moment may become unreasonable at the next, and that officers are obliged to respond
48
accordingly, see id. at 268 (perception that suspect was armed might justify initial dog
attack, but not continuation once officers fail to see weapon). And even if that were not
sufficient, there still would be our determination in Vathekan that a police officer may not
use a canine attack as a first resort against a person found on the scene of a suspected
burglary — after a resident has assured the police that no innocent person should be on
the premises — in order to rule out the possibility that he or she is a burglar or otherwise
poses a threat. 154 F.3d at 176-79. Unless we are going to require that the precise
conduct at issue already have been held unlawful in order to defeat qualified immunity —
which we do not, see id. at 179 — then surely this is close enough. 6
And then, finally, there is common sense. See Brockington, 637 F.3d at 508.
Garrison was tracking an unarmed-robbery suspect with no reported accomplice at
around 10:00 p.m., while accompanied by a second police officer and a police canine.
While I do not doubt that finding Maney crouched outside a vacant house may have been
startling and even frightening — notwithstanding Garrison’s awareness of the homeless
camp in the immediate vicinity — common sense would dictate that use of a violent
6
In Vathekan, the particular conduct at issue was a police officer’s failure to
“enable innocent persons to exit the area” by giving a verbal warning before unleashing
his dog. See 154 F.3d at 176. And in its assessment of Vathekan, the majority focuses on
the distinction between on- and off-leash status and the requirement of an off-leash
warning. Maj. Op. at 10-12; Conc. Op. at 34-35. But the point is that an off-leash
warning is required in order to avoid the unintentional mauling of “innocent persons,”
154 F.3d at 176 — even those who appear to have no legitimate reason for being on the
scene of a suspected crime. No reasonable officer could fail to understand that the same
principle, a fortiori, would prohibit Garrison’s intentional decision to allow the continued
mauling of Maney.
49
canine attack to address those fears was an overreaction. And if there is a paucity of case
law addressing the intentional use of a police canine attack against a non-fleeing, non-
resisting, non-suspect in a non-armed robbery, common sense tells us that this is because
the principles of Terry and Graham are sufficiently clear that no reasonable police officer
could so badly misjudge their application.
In the end, what is missing from this case is any sense of proportionality, the
touchstone of Graham’s objective reasonableness standard. See Vathekan, 154 F.3d at
179. Garrison imposed an enormous cost on Maney when he allowed Bikkel to continue
his savage attack. He did so intentionally, knowing that Maney was not the suspect he
was tracking, without any indication that Maney was armed, and absent any resistance by
Maney, in order to address an inchoate concern that Maney nevertheless might pose some
threat. Because I believe that the Fourth Amendment unmistakably renders that response
disproportionate and excessive, I must respectfully dissent.
50