Police, The Fourth Amendment, Qualified Immunity

Judge Michael P. Mill criticizes K9 Handler Officer Lynn Brown of Horn Lake, MS police

with one comment

Case: Cooper v. Brown, Dist. Court, ND Mississippi 2016


This is a Fourth Amendment excessive force case filed by plaintiff Jacob Cooper arising out of an incident in which he was attacked and injured by a police dog. At approximately 11 p.m. on April 21, 2013, plaintiff fled from the scene after he was stopped by Horn Lake police officer Michael Pressgrove for suspicion of DUI. Plaintiff fled on foot, leaving his vehicle behind, and he hid near a garbage bin in an alleyway. Several Horn Lake officers responded to Officer Pressgrove’s call for assistance, among them Horn Lake K9 officer Lynn Brown and his dog, a Belgian Malinois named Sunny.

Sunny discovered plaintiff in his hiding place, and the parties disagree about whether she initiated the attack on plaintiff herself, as Brown contends, or whether she was ordered to attack, as plaintiff contends. The parties do agree, however, that city policy required that a suspect be given a verbal warning prior to being attacked by a police dog and that no such warning was given in this case. Moreover, Brown does not contend that he made any efforts to stop Sunny’s attack on plaintiff after (under his version of events) she initiated it, until such time as he managed to handcuff plaintiff. Both plaintiff and Officer Brown testified that it may have taken between a minute and two minutes for Brown to handcuff plaintiff, during which time Sunny continued her attack on plaintiff’s leg. Plaintiff suffered serious lower leg injuries as a result of Sunny’s attack, and he has filed the instant § 1983 action against Brown and the City, alleging that the use of force against him was objectively unreasonable under applicable Fourth Amendment standards.

. . .

Q: At what — now, hopefully, we’ll be able to agree to this. Jacob Cooper’s injuries as a result of Sunny’s bite were severe?
A: Yes.
Q: And certainly not typical.
A: No, not typical of most of the dog bites we see. No, they’re not.
[Dep. at 57]. It strikes this court that the severity of plaintiff’s injuries should come as no surprise to Officer Brown, since they occurred mere inches from him, as he was handcuffing plaintiff. It further seems “obvious” that it was unreasonable for Brown to simply stand by and allow such injuries to continue to be inflicted upon a non-violent suspect who was no longer actively trying to escape or otherwise resist arrest.

. . .

In his deposition, Officer Brown made it clear that plaintiff was not running away when he was discovered, but that he was merely sitting in an alleyway. Brown also conceded that he was aware that there were a number of other officers on the scene searching for plaintiff and that some of them had passed by the location where he was hiding. Given these facts, it strikes this court that once plaintiff’s location was discovered, the chances that he might be able to take flight and escape a police dog and police officers searching for him, both in vehicles and on foot, was close to zero. Under these circumstances, it strikes this court that, at an absolute minimum, a reasonable police officer would have announced the presence of his police dog and given the suspect an opportunity to decide if he wished to try to outrun her. In the unlikely event that the suspect decided to do so, the use of the police dog to apprehend the fleeing suspect would arguably be reasonable, assuming that the dog did not use an undue amount of force in doing so.

. . .

In his deposition, Brown maintained that plaintiff did not sufficiently convey his “surrender” once Sunny began attacking him. Once again, however, plaintiff had a right under city policy to decide whether to surrender before being attacked, and it was clearly unreasonable for Officer Brown not to give him that opportunity to the extent possible, including by terminating Sunny’s attack as soon as it began (under his version of events). Indeed, Brown acknowledged in his deposition that it might prove difficult for a suspect to convey his surrender while preoccupied with fending off a severe dog attack:

Q: So in your report where you put “refused to comply with commands” or something, whatever the specific, you check a yes next to that?
A: Yes. That’s when I was trying to get him to come out to me or show me his hands.
Q: Okay.
A: That was for me.
Q: All right. And I think we agreed earlier, that would have been difficult for him to do with a dog on him?
A: It’s not that it’s difficult for them to do, but I would have an understanding on why they wouldn’t. But I’ve caught several people within my career, I’ve had people walk up to me carrying the dog on them. I’ve had guys quickly show me their hands wanting the dog to come off of them, and he failed to do that.
[Dep. at 53-54].

Nevertheless, Brown conceded that plaintiff did comply with most of his instructions, including his order to roll over on his stomach:

Q: Do you remember the position that he was laying in?
A: I ordered him onto his stomach.
Q: Okay. And he complied?
A: Yes, he did. . . .
Q: Okay. And what did Sunny do when he was rolling?
A: She continued to hold onto his leg.
Q: Okay. How does he roll when a dog has a hold of his leg?
A: I can’t explain that. He was on his butt. When I told him to roll over, he rolled over and laid down on his stomach and I was able to . . .
Q: Besides your orders for him to show his hands or submit to you after Sunny had engaged, there were no orders which Mr. Cooper had not complied with of yours?
A: Correct. [Dep. at 53].
Thus, Brown made it clear that the only order of his with which plaintiff did not comply were his instructions to show his hands. Brown also made it clear, however, that the hands which he wanted to see raised were otherwise occupied at the time, namely in trying to stop Sunny from continuing to maul his leg:

Q: Okay. What did you see?
A: His hands on her head.
Q: Okay. Was he hitting her?
A: No.
Q: Okay. He was just holding his hands on her head?
A: Right.
Q: Okay. So you were able to see his hands. So you could appreciate at that point, at least as far as you could tell, he had no weapon?
A: At that point, yes.
[Dep. at 82].

In judging the reasonableness of Brown’s actions, it strikes this court as quite significant that he was able to perceive early in Sunny’s attack that there was no weapon in plaintiff’s hands. Indeed, the ostensible purpose of having plaintiff show his hands was to demonstrate that he was unarmed, but Brown testified that he could ascertain that such was the case by watching plaintiff try to protect himself from Sunny’s attack. That being the case, it is very much unclear to this court why it was either necessary or reasonable for Officer Brown to allow Sunny’s attack to continue against an unarmed, non-violent suspect who had not been given the verbal warning which Brown conceded was required under Horn Lake’s policies.

. . .

In the court’s view, it is a testament to the obvious nature of the constitutional violations in this case that some of plaintiff’s strongest evidence comes from concessions made by defendant’s own expert, who is to be commended for his honesty. This court believes that [Officer Brown’s expert witness’s] testimony makes it clear that, without question, Officer Brown’s actions became “obviously unreasonable” when he continued allowing Sunny to bite plaintiff after he was on his stomach and his hands were behind his back. This court believes that Brown’s actions were obviously unreasonable even before then, but the issue seems to be simply indisputable at that point. As discussed below, plaintiff testified that Brown seemed to take an inordinately long time to handcuff him after he was on his stomach and his hands were behind his back, and it seems clear that much of his injuries occurred after this point.

Expert testimony aside, there is, in this court’s view, a macabre quality to the feats of willpower which Officer Brown appears to regard it as necessary for suspects to perform in order to obtain his mercy. Whether those feats involve a suspect dragging an attacking police dog with him (presumably as part of a gesture of surrender), or, in this case, plaintiff managing to remove his hands from the head of an attacking dog, Officer Brown’s testimony strikes this court as being that of an officer who unreasonably fails to realize that his dog’s attacks makes it much more difficult for a suspect to give the clear gestures of surrender he claims to be looking for. In the court’s view, a reasonable police officer should know that a suspect being attacked by a police dog will tend to be distracted by this fact and may not be able to either understand or fully follow instructions regarding the manner of surrender. In this vein, the district court in [a previous case] aptly wrote that “[t]he court wonders how a man, who is prone on the ground and being attacked by a dog, can reasonably be expected to expose his hands and unflinchingly hold them behind his back.”

The court notes that Officer Brown’s own testimony did not depict plaintiff’s ordeal as a brief one. When asked about the length of time which Sunny was left “on this bite,” Officer Brown testified as follows:

Q: About thirty seconds?
A: It was longer than thirty seconds, but it was no longer than a minute or two due to the aspect I had to drag him out and then get him cuffed up. But once he was in handcuffs, once those handcuffs clicked, it was a matter of seconds before she was off the bite. [Dep. at 62].
A period of a “minute or two” strikes this court as being an exceedingly long period of time for an officer to allow a dog to continue attacking a non-violent, defenseless suspect who had not been given the verbal warning to which he was entitled under city policy. In the qualified immunity context, courts are frequently reminded not to second-guess police officers based on “split second” decisions they are required to make in the course of doing their jobs. While this court fully agrees with this admonition, it appears that, in this case, Officer Brown had ample time to consider the suffering and injuries that he was inflicting upon plaintiff and whether there was any law enforcement justification for so doing.

Based on his own testimony, Officer Brown does not strike this court as an officer reluctantly resorting to force, but, rather, one only reluctantly terminating the use of force. Plaintiff’s testimony, which this court is required to credit at the summary judgment stage, places Brown in a much worse light. In describing the attack on him, plaintiff testified as follows:

Q: Okay. And when he, the officer, got on your back, tell me again exactly what happened there.
A: The dog was biting me on my leg, and I was trying to lay as still as possible screaming bloody murder to please get the dog. And I could hear him snorting blood. He didn’t just bite me, he grabbed a hold of me and he was eating me is what it felt like. He was literally eating my flesh. . . . The dog, it was behaving like it was starving. It was like something out of a horror movie where an animal is eating road kill. And it was —
Q: So you’re saying —
A: — Devouring me. [Dep. at 58].
Plaintiff’s testimony on the duration of the attack was quite similar to Officer Brown’s, stating that it “felt like forever” but that it was realistically “over a minute at least.” [Dep. at 88].

As noted previously, one area where plaintiff’s testimony differs from Officer Brown’s relates to whether Sunny first attacked him on her own initiative or whether Brown ordered her to do so. According to plaintiff’s testimony, the latter is the case. In his deposition, plaintiff described the initiation of the attack on him as follows:

A: . . . So I sat down beside the house. And Officer Brown and the dog — the dog passed me and Officer Brown seen me out of the corner of his eye, pulled the dog back and said “bite.” And he had the dog back and said “bite him.” [Dep. at 44].
Plaintiff testified that it seemed to take an unduly long time for Brown to handcuff him and, thus, for the dog attack to end. When asked why he felt that was the case, plaintiff testified as follows:

Q: Do you know why it took that amount of time?
A: No idea. Improper training on how to handcuff, I guess.
Q: Okay. Did you have any trouble getting your arms around?
A: No, sir. [Dep. at 88].
Plaintiff testified that, once the dog attack had ended, he asked Officer Brown about the reasons for the attack:

A: . . . And he finally got the cuffs on me and got off of me. And I remember I asked him, you know, why he let the dog eat me up like that. And he told me that he didn’t have to get the dog off until he got the cuffs on. [Dep. at 44].
Brown’s alleged explanation (contradicted by his own expert) that “he didn’t have to get the dog off until he got the cuffs on” seems quite consistent with his deposition testimony, which appears to depict an officer in no great hurry to terminate the attack by his dog.

This court’s impressions regarding Officer Brown’s seeming eagerness to employ his police dog is buttressed by the testimony of one of his former co-workers. Specifically, former Horn Lake K9 officer Todd Baggett testified that:

Well, just some — some of the other — the stuff that we didn’t use the dog for [Brown] would. You know, that’s why he would have 90 deployments to our 30. You know, it’s just something we weren’t going to use a dog for. You know, and I’ve always, even when I had a dog, I relied on what I do and not what the dog does. So I could go out and do the same thing with or without the dog, you know, aside from biting and stuff.
[Plaintiff’s exhibit “K,” p.32.]

This court is not in a position to judge Officer Brown’s character, and it cannot say whether he is simply an overzealous police officer primarily concerned with bringing suspects to justice, or whether there might have been a darker, more sadistic, motivation behind his actions. The jury may inquire into this issue when it decides the issue of punitive damages against him. See Smith v. Wade, 461 U.S. 30, 31 (1983)(holding that “a jury may be permitted to assess punitive damages in a § 1983 action when the defendant’s conduct involves reckless or callous indifference to the plaintiff’s federally protected rights, as well as when it is motivated by evil motive or intent.”).

. . .

In the court’s view, the City of Horn Lake should not take undue comfort in its conclusion that it may have “only” been negligent in ensuring that the policies it has adopted are followed. Officer Brown is the City’s employee, and it is now clearly on notice of this court’s findings regarding his use of excessive force in this case. The City may also consider the testimony of its former K9 officer Baggett that Officer Brown was much more willing to employ police dogs against suspects than other officers. What is merely negligent in this case may be deliberately indifferent in the next, and the court trusts that the City will consider the proof developed in this case in deciding how its citizens should best be protected from the unjustified use of force. The fact that the City has adopted beneficial policies in this context suggests that its heart may be in the right place on this issue, but good intentions and good policies are insufficient if they are not enforced.  . . .

Written by Burgers Allday

January 22, 2016 at 7:41 pm

Posted in Uncategorized

One Response

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  1. You smell like cabbage

    Barney Fife

    January 29, 2016 at 2:04 pm

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