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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
WILLIAM HOLIDAY,
Plaintiff,
v.
CITY OF KALAMAZOO,
Defendant.
Case No. 4:01-CV-161
March 7, 2003, Decided
March 7, 2003, Filed
Plaintiff, William Holiday ("Holiday"), has sued Defendant,
City of Kalamazoo (the "City"), pursuant to 42 U.S.C. § 1983 based on
the alleged use of excessive force by Kalamazoo Department of Public Safety
("KDPS") officers during their apprehension of Holiday on January 17,
2001. Holiday claims that the City failed to train the KDPS officers concerning
the proper procedure for apprehending a subject in a situation involving a
police dog where the canine handler is not present, which resulted in Holiday
suffering unnecessary bites from a police dog during Holiday's apprehension.
Before the Court are cross-motions for summary judgment by Holiday and the
City. Since Holiday has failed to
demonstrate that the alleged lack of training was the result of the City's
deliberate indifference, the Court will deny Holiday's motion and grant the
City's motion.
Facts and Procedural
Background
I. KDPS' January 17, 2001,
Apprehension of Holiday
On January
17, 2001, KDPS officers had several valid outstanding warrants for Holiday's
arrest, including a felony domestic violence warrant. That afternoon, KDPS
received a tip that Holiday was present at 620 Reed Avenue, Kalamazoo,
Michigan. KDPS Officers Peter Hoyt ("Hoyt"), John Halder ("Halder"),
Keith DeBlock ("DeBlock"), Dwight Stallard ("Stallard"),
and Dave Hunter ("Hunter") (collectively the "Officers")
responded to the tip. Hoyt, a canine specialist, was accompanied by his trained
police dog, Billy.
Once the Officers arrived at
620 Reed Avenue, Hoyt entered the dwelling's foyer and announced to Holiday:
"Kalamazoo Police Canine. You're under arrest. Call out now or I'll
release my dog." (Hoyt Interview at 1, Pl.'s Br. Supp. Mot. Summ. J.
Against Def. City Kalamazoo Ex. 10.) Hoyt caused Billy to bark several times as
a warning to Holiday. Upon hearing no response, Hoyt repeated the procedure
three times before releasing Billy to apprehend Holiday. (Id.)
Holiday saw
the Officers and Billy through a window, which caused Holiday to panic and
flee. Holiday escaped through a basement window. The Officers observed Holiday
running outside. Hoyt screamed a warning to Holiday: "Stop running or I'll
release the dog." (Id.) Holiday ignored the warning and continued to flee.
The Officers ran after Holiday.
During the pursuit, Hoyt
tripped and fell in the deep snow, losing his grip on Billy's leash. (Id.)
Billy continued to pursue Holiday with the other Officers, and Hoyt gave Billy
an oral command to "apprehend" Holiday. n1 (Id. at 2.) Billy nipped
at Stallard, who was chasing Holiday, until Hoyt called Billy off Stallard.
(Id.; Stallard Interview at 1, Pl.'s Br. Supp. Mot. Summ. J. Against Def. City
Kalamazoo Ex. 12.) Billy re-focused on Holiday, and Hoyt gave Billy another
"apprehend" command. (Hoyt Interview at 2.) Hoyt then yelled for
everyone to "stop running." (Id.) Holiday eventually stopped running
from the Officers and put his arms in the air. Hoyt then gave Billy a
"down" command, and Billy sat down approximately five feet from where
Holiday was standing. (Id.; Hoyt Dep. at 53-56, 62-63.)
Halder,
Stallard, and Hunter state that after Holiday stopped, it appeared that Holiday
was looking around in a furtive manner for an escape rout. (Halder Dep. at 29,
71-72; Stallard Dep. at 66-67; Hunter Dep. 51-52.) Hoyt was still approximately
twenty to thirty feet from the other Officers and Holiday at that time. (Hoyt
Interview at 2.) Hunter ordered Holiday to get onto the ground.
It is at
this point that the Officers' accounts slightly differ from Holiday's version
of events. Holiday contends that he began to voluntarily lower himself to the
ground, but he was "not fast enough" for the officers, because
"at least two of them grabbed him and helped him ease himself down on his
stomach." (Pl.'s Br. Supp. Mot. Summ. J. Against Def. City of Kalamazoo at
2.) Halder states that Holiday did not comply with the Officers' repeated
commands to go to the ground, so Halder grabbed Holiday's arms and began to
lower Holiday to the ground to handcuff him. (Halder Dep. at 27-30.) As Holiday
was being lowered to the ground, Billy began biting Holiday on his rib cage and
left arm. Holiday contends that he was already handcuffed at this time, while
the Officers maintain that Holiday was not handcuffed. (Hoyt Interview at 3.)
When Hoyt caught up to the group, he gave Billy an "out" command, and
Billy stopped biting Holiday. (Hoyt Interview at 3.) Holiday claims that Billy
bit him for approximately thirty seconds before Hoyt ordered Billy to release.
(Holiday Dep. at 52.) The Officers, however, state that the biting only took
place for a few seconds, (Stallard Dep. at 34), and that Holiday's thirty
second estimate is "way too long," (Halder Dep. at 76). Holiday
sustained minor injuries, none of which required stitches.
Hoyt opined
that Billy bit Holiday because Billy believed that Holiday was fighting with
the Officers as Holiday was being lowered to the ground. (Hoyt Dep. at 79-80.)
KDPS Sargent Pat Wright ("Wright"), who was personally involved in training
Billy, came to the same opinion when Wright later reviewed the incident.
(Wright Dep. at 54-55; Wright Aff. P 9, Def.'s Br. Supp. City of Kalamazoo's
Mot. Summ. J. Ex. A.)
II. KDPS Canine Program and
Officer Training Procedures
The KDPS
canine program was created in 1987. (Wright Aff. P 4.) From the canine
program's inception until January 17, 2001, KDPS canine officers responded to
over 12,700 calls for service with their police dogs and made over 1,800
arrests. (Id.) Based on the number of calls for service, compared with the
number of dog bites during the history of the canine program during that
thirteen year period, a canine bite occurred approximately one time for every
373 service calls, or 0.002% of the time. (Id.) Based on a study conducted by
KDPS, there have been no incidents similar to Holiday's January 17, 2001,
apprehension in the history of the KDPS canine program, i.e., no other cases
where a canine handler fell down or was otherwise disabled or incapacitated in
a canine apprehension situation and the other officers issued orders to the
suspect which allegedly caused the suspect to be bit. (Id. P 5.)
All newly hired KDPS officer attend an Advanced Police Academy
("APA") that lasts approximately four weeks. (DeBlock Dep. at 6.) During
the APAs, Wright personally instructs
most newly hired officers for a "four-hour block" on the use of
police dogs. (Wright Dep. at 9-10.) Wright's instruction includes training
officers that when the officers are in the presence of a police dog, the
officers should not have the offender move. (Id. at 22; Wright Aff. P 7.)
Additionally, Wright instructs the
officers that the officers should not do anything "unless it's at the
command of the dog handler." (Wright Dep. at 22; Wright Aff. P 7.) Prior to
the January 17, 2001, incident, KDPS did not provide any training in regard to
what officers were to do or not to do if the handler of the police dog becomes
disabled or incapacitated during an apprehension. (Wright Aff. P 8.) KDPS has
since instituted such training for all officers. (Id.)
Hoyt has received extensive and ongoing training as a canine
handler by KDPS. (Hoyt Dep. at 28-30; Wright Dep. at 51.) Three of the four
other Officers involved in the January 17, 2001, incident had received training
on the use of police dogs during their APAs. However, Wright did not
specifically recall what training, if any, Halder, Hunter, DeBlock, or Stallard
received. (Wright Dep. at 12-14.). DeBlock received training during his APA by
Wright on how police dogs are used to track and locate suspects, but he did not
recall training about apprehension of suspects. (DeBlock Dep. at 6-7, 10;
DeBlock Training Rs., Def.'s Br. Supp. City Kalamazoo's Mot. Summ. J. Ex. C.)
Stallard also stated that he received training during his APA on how police
dogs are used, but said he did not receive any training about what police dogs
will react to when the police dog is apprehending a suspect. (Stallard Dep. at
6-7, 67-69; Stallard Training Rs., Br. Supp. Def. City Kalamazoo's Mot. Summ.
J. Ex. B.) Halder and Hunter both stated that they received some police dog
training during their respective APAs, but neither recalled much of the content
of the instruction. (Halder Dep. at 6, 73, 76; HalderTraining Rs., Br. Supp.
Def. City Kalamazoo's Mot. Summ. J. Ex. E; Hunter Dep. at 11, 52-53; Halder
Training Rs., Br. Supp. Def. City Kalamazoo's Mot. Summ. J. Ex. D.) While KDPS
records indicate that DeBlock, Stallard, and Hunter received police dog
training at their APAs, there is no record that Halder attended the a training
session during his APA. (Wright Aff. P 6.) Wright surmises that Halder likely
missed the training session due to scheduling problems, and Wright is unaware
of any other KDPS officer who has missed the police dog training. (Id.)
III. Procedural History
On November
1, 2000, Holiday filed a three count complaint alleging that Hoyt, Halder,
DeBlock, Stallard, and Hunter used excessive force and were grossly negligent
in apprehending Holiday and the City was liable for the Officers' improper training pursuant to 42
U.S.C. § 1983. The City and the individual Officers filed separate motions for
summary judgment on November 8, 2002. Holiday filed his own motion for summary
judgment on his claims against the City and the individual Officers on the same
day. On January 30, 2002, the Court approved a stipulation by the parties
dismissing all claims against the individual officers. Thus, only Holiday's
claim against the City pursuant to 42 U.S.C. § 1983, and the summary judgment motions
regarding that claim, remain before the Court.
Standard of Review
Summary judgment is appropriate if there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter
of law. Fed. R. Civ. P. 56. Material facts are facts which are defined by
substantive law and are necessary to
apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute is genuine if a reasonable jury
could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to
the non-moving party, but may grant summary judgment when "the record
taken as a whole could not lead a rational trier of fact to find for the non-moving
party." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.
1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Discussion
There are no issues of material fact in dispute in the instant
case. While there are some discrepancies in Holiday's and the Officers'
accounts of what transpired during Holiday's apprehension on January 17, 2001,
none of these factual discrepancies are material. For purposes of this summary
judgment analysis, the Court will accept Holiday's version of events that the
Officers ordered Holiday to the ground causing Holiday to be bitten
unnecessarily. There is no dispute over the content of the training KDPS
provided to its officers or which officers received what training. The lone question before the
Court is whether KDPS' canine training program was adequate under 42 U.S.C. §
1983.
A municipality can be liable
under 42 U.S.C. § 1983 for constitutional violations resulting from the
municipality's failure to train municipal employees under certain
circumstances. City of Canton v. Harris, 489 U.S. 378, 380, 109 S. Ct. 1197,
1200, 103 L. Ed. 2d 412 (1989); see also Berry v. City of Detroit; 25 F.3d
1342, 1345 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1045-46
(6th Cir. 1992); Sell v. City of Columbus, 2002 U.S. App. Lexis 17955, 2002 WL
2027113, at *5-6 (6th Cir. Aug. 26, 2002). However, the municipality itself
must cause the constitutional violation at issue, because "respondeat
superior or vicarious liability will not attach under § 1983. Harris, 489 U.S.
at 385, 109 S. Ct. at 1203 (citing Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 694-95, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611
(1978)). "'It is only when the "execution of the government's policy
or custom ... inflicts the injury" that the municipality may be held
liable under § 1983.'" Id. (quoting Springfield v. Kibbe, 480 U.S. 257,
267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987) (O'Connor, J., dissenting)
(quoting Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38)).
"The inadequacy of police training may serve as the basis
for § 1983 liability only where the [city's] failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into
contact." Id. at 388, 109 S. Ct. at 1204 (emphasis added). The Harris
Court described "deliberate indifference" as:
in light of the duties
assigned to specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need. In that event, the
failure to provide training may fairly be said to represent a policy for which
the city is responsible, and for which the city may be held liable if it
actually causes injury.
Id. at 390, 109 S. Ct. at
1205 (footnote omitted). An example of "deliberate indifference" is
when "city policymakers know for a moral certainty" that the city's
armed police officers are required to arrest fleeing suspects, and the city does not train its officers in
the constitutional limits on the use of deadly force. Id. at 390 n.10, 109 S.
Ct. at 1205 n.10 (emphasis added). Additionally, a city may be found to have
been "deliberately indifferent" if the city's police officers, in
exercising their discretion, "so often violate constitutional rights that
the need for further training must have been plainly obvious to the city
policymakers" who refuse to correct the problem. Id.
The Harris Court also noted some important limitations on a
municipality's liability. The Court stated:
In resolving the issue of a city's liability, the focus must be on
adequacy of the training program in relation to the tasks the particular
officers must perform. That a particular officer may be unsatisfactorily
trained will not alone suffice to fasten liability on the city, for the
officer's shortcomings may have resulted from factors other than a faulty
training program. It may be, for example, that an otherwise sound program has
occasionally been negligently administered. Neither will it suffice to prove
that an injury or accident could have been avoided if an officer had better or
more training, sufficient to equip him
to avoid the particular injury-causing conduct. Such a claim could be made
about almost any encounter resulting in injury, yet not condemn the adequacy of
the program to enable officers to respond properly to the usual and recurring
situations which they must deal. And plainly, adequately trained officers
occasionally made mistakes; the fact that they do says little about the
training program or the legal basis for holding the city liable.
Id. at 390-91, 109 S. Ct. at
1206 (internal citations omitted) (emphasis added).
Finally, "for
liability to attach ... the identified deficiency in a city's training program
must be closely related to the ultimate injury." Id. at 391, 109 S. Ct. at
1206. The plaintiff must thus show that the deficiency in the municipality's
training program actually caused the police officers to act in way that
violated the plaintiff's constitutional rights. Id. Put another way,
"would the injury have been avoided had the employee been trained under a
program that was not deficient in the identified respect?" Id.
In Russo, the Sixth Circuit applied Harris and held that a plaintiff, in order to show that a
training program violates substantive due process, must establish that: (1) the
training program was inadequate for the tasks that officers must perform; (2)
the inadequacy was the result of the municipality's deliberate indifference;
and (3) the inadequacy was "closely related to" or "actually
caused the ... injury." Russo, 953 F.2d at 1046 (quoting Hill v. McIntyre,
884 F.2d 271, 275 (6th Cir. 1989)); see also Berry, 25 F.3d at 1346.
In the
instant case, KDPS provided basic police dog training to its officers during
each officer's APA. There is no dispute, however, that KDPS did not train its
officers in regard to what officers were to do or were not to do if the handler of the police dog becomes disabled
or incapacitated in an apprehension situation. The Court knows of no law that requires
a municipality to train its officers for every possible contingency -- foreseen
and unforeseen, and it appears that the KDPS officers were adequately trained
for ordinary uses of police dogs. n2 It is unnecessary for the Court to
determine whether an adequate training program requires training for when the
dog's handler becomes disabled for one reason or another because the Court
finds that the City was not deliberately indifferent.
The City's deliberate indifference can be established in one of
two ways. Holiday may prove that the City acted with deliberate indifference by showing that: (1) the
City's training program was obviously inadequate and those obvious inadequacies
were very likely to result in constitutional violations by KDPS officers; or
(2) the occurrence of multiple similar violations, such that the City was put
on notice of the deficiencies in KDPS' training program and failed to correct
the flaw. Holiday fails to make either of these showings.
First, if the "need
for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, then the policymakers of the
city can reasonably be said to have been deliberately indifferent to the
need." Harris, 489 U.S. at 390, 109 S. Ct. at 1205. Holiday must show that
the City policymakers knew "for a moral certainty" that KDPS'
training program was insufficient. Id. at 390 n.10, 109 S. Ct. at 1205 n.10. Based on the undisputed facts before the Court, Holiday
has failed to make this showing. Holiday has not provided any affidavit from an
expert opining that KDPS' training program was insufficient, or any evidence
that KDPS' training methods differ from those employed by other police
departments. On the other hand, it is undisputed that KDPS provided basic
police dog training to its officers during each officer's APA, and KDPS
provided extensive and ongoing police dog training to KDPS' police dog
handlers. n3 KDPS' training included instructing officers that they should
defer to the more highly trained canine handlers in situations involving canine
apprehensions. The deficiency in KDPS' training that Holiday alleges is a
failure to specifically instruct the officers in situation where the canine
handler is incapacitated and not present at the scene of a canine apprehension.
While such a situation occurred in the instant case, it is nonetheless a very
unlikely scenario. Under Harris, KDPS is only required to adequately train its
officers "to respond properly to the usual and recurring situations which
they must deal," not every remotely-possible situation the imagination can
conjure. Id. at 391, 109 S. Ct. at 1206. KDPS' training program was adequate to
train its officers to deal with routine apprehensions involving police dogs and
their handlers. Even though the adequately trained KDPS Officers may have made
a mistake in apprehending Holiday, it "says little about [KDPS'] training
program or the legal basis for holding the City liable." Id.
Second,
Holiday can show the City's deliberate indifference if the KDPS' training program
"so often violated constitutional rights that the need for further
training must have been plainly obvious to the city policymakers" who refused to correct the
problem prior to Holiday's apprehension. Id. at 390 n.10, 109 S. Ct. at 1205
n.10 (emphasis added). Based on the undisputed facts before the Court, Holiday
has failed to make this showing, because no such similar incident had
previously occurred. Since the inception of KDPS' canine program until January
17, 2001, KDPS canine officers responded to over 12,700 calls for service with
their police dogs and made over 1,800 arrests. Dog bites occurred in only
0.002% of the service calls, and there is no evidence that incidents similar to
Holiday's January 17, 2001, apprehension have ever occurred in the history of
the KDPS canine program.
The Court
thus finds that Holiday has failed to show that the inadequacy in KDPS' canine
training program was the result of the City's deliberate indifference.
Accordingly, the Court's analysis need not go any further. Since there are no
issues of material fact in dispute, the Court will grant summary judgment in
favor of the City.
Conclusion
For the foregoing reasons, the City of Kalamazoo's Motion for
Summary Judgment will be granted and Holiday's Motion for Summary Judgment
Against the City of Kalamazoo will be denied.
An Order consistent with this Opinion will be entered.
Dated: March 7, 2003
/s/ Gordon J. Quist
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 An
"apprehend" command orders the police dog to tackle a suspect using
his mouth to grab the suspect and bring the suspect to the ground. (Hoyt Dep.
at 23-25.) An "apprehension" involves the police dog biting the
suspect, usually on the arms, legs, or back. (Id.) Police dogs are not, however,
trained to "apprehend" passive people, (id.), but they are trained to
"engage" a suspect in the event of a physical confrontation with an
officer, (Wright Dep. at 20, 23). Once the police dog "engages" a
suspect, the police dog will not release the suspect until the police dog is
given a command from his handler. (Id. at 52.)
n2
Holiday cites Brown v. Bryan County, 219 F.3d 450, 458 (5th Cir. 2000), as an
example a police department's liability for failure to train under the so
called "single incident exception." In Brown, the officer in question
received no police training whatsoever and was given "wide latitude of
conduct" with little supervision or limitations. Id. at 458. Following
Bryan County, the Fifth Circuit issued a series of decisions finding no
liability for police departments that provided general officer training, but no
training in specific limited areas of police procedure. McClendon v. City of
Columbia, 258 F.3d 432, 442-43 (5th Cir. 2001) ("There is a difference
between a complete failure to train, as in Bryan, and a failure to train in one
limited area."); see also Gabriel v. City of Plano, 202 F.3d 741, 745 (5th
Cir. 2000) ("We have consistently rejected application of the single
incident exception and have noted that 'proof of a single violent incident
ordinarily is insufficient to hold a municipality liable for inadequate
training.'" (citations omitted)); Cozzo v. Tangipahoa Parish
Council-President Gov't, 279 F.3d 273, 288 (5th Cir. 2002) (fining no
"deliberate indifference" for police department's failure to train
officer in specific area). Bryan is factually dissimilar to the case at bar
since the Officers unquestionably received some training. The Court thus finds
Bryan unpersuasive in establishing the City's liability under the "single
incident exception."
n3 While it appears that Halder did not
receive basic police dog training at his APA, this single lapse is not fatal to
KDPS' overall training program. Harris, 489 U.S. at 390-91, 109 S. Ct. at 1206.