Opinion
Civ. No. H-97-4164.
December 1998.
MEMORANDUM OPINION
In this civil action, plaintiff Eugene Anderson is seeking to recover damages from Howard County and County Police Officer Edward M. Sprinkle. Suit has been brought under 42 U.S.C. § 1983 and under state law. Plaintiff alleges that his constitutional and common law rights were infringed in the early morning hours of April 4, 1997, when, following his participation in a burglary, he was apprehended by Howard County police officers and bitten by a K-9 dog.
Pretrial proceedings in the case have been extensive, and various pretrial rulings have been made by the Court. As a result of these rulings, six counts of the amended complaint remain pending before the Court. Plaintiff now asserts the following claims: Count I — battery; Count II — assault; Count III — violation of § 1983; Count V — violation of the Maryland Declaration of Rights; Count VI — gross negligence and Count VII — negligence. Defendant Sprinkle has been sued in each of these six counts, and Howard County has been named as a defendant only in Count V.
Following the completion of discovery, a final Pretrial Order and a Supplement to that Order were entered, and the case came on for trial before the Court sitting without a jury. Expert and other testimony was heard during the two day trial, and numerous exhibits were admitted in evidence. The testimony of the witnesses, and in particular the testimony of plaintiff Anderson and defendant Sprinkle, was conflicting in many respects. In resolving the issues of fact, due regard has been given by the Court to the credibility of the witnesses and the weight their testimony deserves. Findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., are contained in this Memorandum Opinion whether or not expressly so stated.
Trial by jury was waived by the parties, and both plaintiff and defendants have submitted pretrial briefs.
I Facts
In the early morning hours of April 4, 1997, plaintiff Anderson and Terence Randall participated in the theft of new appliances from a house under construction. The stolen appliances were loaded into a U-haul truck. Information concerning the theft and the route which the truck was taking was furnished to Howard County police officers who were then on patrol. When the truck was observed in the vicinity, several Howard County police officers, including Officer John Dorsey and defendant Sprinkle, began pursuit in their police cars.
Followed by the pursuing police vehicles in a high speed chase, the truck eventually turned onto Dobbin Center Way, a dead end street leading into the Dobbin Auto Park. While the U-haul truck was still moving, the two suspects, one of whom was plaintiff Anderson, jumped out of the vehicle and fled. Officers Dorsey and Sprinkle exited their vehicles and pursued the suspects on foot. At the time, Sprinkle was accompanied by his trained K-9 dog named "Gable." During the chase, Anderson ran through the parking lot and dived between two parked cars. Officer Dorsey was first on the scene, and a struggle ensued as Dorsey attempted to pull Anderson from his hiding place under one of the cars. Defendant Sprinkle then arrived and observed Dorsey struggling with the plaintiff. According to Sprinkle, he warned plaintiff repeatedly that if he did not surrender, the dog would be used in the apprehension. When Anderson continued to struggle with Dorsey, Sprinkle released the dog's lead and permitted the dog to bite Anderson. Anderson sustained a lacerated right ear and immediately surrendered. Anderson was taken to the Emergency Room of Howard County General Hospital for medical treatment, and later that morning his wound was sutured by Dr. Mario Vahos.
According to the doctor's notes, "A good anatomical repair was accomplished." When he saw Anderson several weeks later, Dr. Vahos noted that "the ear looks very good and is symmetrical with the other side."
At the police station, Anderson confessed to the burglary. He subsequently pled guilty to participating in the burglary and was sentenced to a term of imprisonment of one year. In this civil action, Anderson seeks compensatory damages for pain and suffering and other non-economic damages resulting from the allegedly wrongful police action.
Plaintiff's medical expenses were paid by Howard County, and no special damages have therefore been claimed.
II The Claims and Defenses
Plaintiff is here seeking damages under various legal theories. Plaintiff contends that defendant Sprinkle committed assault and battery against him when he ordered Gable to attack without justification. He further contends that Sprinkle was negligent and grossly negligent in causing him injury without justification. Insofar as his state law claims are concerned, plaintiff asserts that defendant Sprinkle acted with malice.
In support of his § 1983 claim, plaintiff contends that defendant Sprinkle infringed his Fourth Amendment rights when he was unreasonably seized and when excessive force was used in the apprehension. The same claim is asserted under Articles 24 and 26 of the Maryland Declaration of Rights. According to plaintiff, Howard County is liable to him under principles of respondeat superior because of Sprinkle's violation of plaintiff's rights under the Maryland Declaration of Rights.
Insofar as all of plaintiff's claims are concerned, defendants contend that defendant Sprinkle acted reasonably and in accordance with good police practice when he permitted his police dog to inflict a single bite on plaintiff who was then struggling and resisting arrest after warnings had been given. Defendants further assert that defendant Sprinkle is entitled to qualified immunity under federal law and is also entitled to public official immunity under Maryland law.
Following due consideration of the parties' arguments and all the evidence presented at the trial, the Court has concluded that judgment in this case must be entered in favor of the defendants. After hearing the testimony and reviewing the exhibits admitted in evidence, this Court has determined that there is no merit to any of the claims asserted by plaintiff Anderson against defendants Sprinkle and Howard County. On the record here, the Court is satisfied that plaintiff Anderson has not met his burden of proving that he is entitled to compensatory damages under any of the legal theories advanced.
III Credibility of the Witnesses
In resolving the disputes of fact presented in this case, it has been necessary for the Court to determine the credibility of the key witnesses and to decide the weight that should be accorded their testimony. The testimony of plaintiff Anderson conflicted in many significant respects with that of defendant Sprinkle and Officer Dorsey. After seeing and hearing the witnesses, this Court will credit the testimony of defendant Sprinkle and Officer Dorsey where that testimony differed from the versions of the events given on the witness stand by plaintiff Anderson. In rejecting the testimony of plaintiff Anderson, the Court would note that he has been convicted in several different Maryland courts on five separate occasions of crimes punishable under Maryland law by imprisonment of one year. Pursuant to Rule 609(a)(1), F.R.E., the Court has considered such convictions as well as other evidence of record in assessing the credibility of plaintiff Anderson.
Plaintiff has been convicted of crimes in Howard County, Baltimore County and Baltimore City. The offenses included possession of heroin, theft, auto theft and burglary.
By way of contrast, the testimony of defendant Sprinkle and Officer Dorsey was consistent and straightforward. Other credible evidence in the case and reasonable inferences to be derived from such evidence support the versions of the disputed facts given by Sprinkle and Dorsey in their testimony.
Similarly, the Court will credit the opinion rendered by defendants' expert, Officer Richard E. Johnston. Johnston has many years experience in the training and use of police dogs like Gable. His account of the training of both Sprinkle and Gable will be given full credit by the Court. That Sprinkle had received extensive training in the use of a police dog in situations like the one involved in this case supports the version of the events given by Sprinkle in his testimony.
IV Discussion (a) Section 1983 and Maryland Declaration of Rights
Plaintiff Anderson has alleged that the actions of defendant Sprinkle violated his Fourth Amendment right to be free from excessive force during a seizure. Whether a police officer has violated the Fourth Amendment during an investigation or arrest depends upon the resolution of two issues: (1) whether in using force the police officer "seized" the suspect within the meaning of the Fourth Amendment and (2) whether the force used was objectively reasonable. Graham v. Connor, 490 U.S. 386, 395-96 (1989).
Plaintiff's claim of excessive force during a seizure has been asserted both under § 1983 in Count III and under Articles 24 and 26 of the Maryland Declaration of Rights in Count V. The essential analysis is the same under both Articles 24 and 26 of the Maryland Constitution and the Fourth Amendment to the United States Constitution. Williams v. Prince George's County, 112 Md. App. 526, 547 (1996). Article 26 has been held to be in pari materia with the Fourth Amendment, and in the Court's consideration of plaintiff's claims asserted in both Count III and Count V, the standards established by the Supreme Court in Graham are controlling. Id. Like other claims that a police officer has used excessive force, an attack by a police dog deployed by its handler must be analyzed under the Fourth Amendment and its "reasonableness" standard. Kopf v. Wing, 942 F.2d 265, 267-68 (4th Cir. 1991); Vathekan v. Prince George's County, 154 F.3d 173, 178 (4th Cir. 1998).
There can be little doubt in this case that plaintiff Anderson was seized within the meaning of the Fourth Amendment. It is quite clear from the evidence that police officers Sprinkle and Dorsey used physical force to restrain Anderson's liberty and that there was therefore a governmental termination of his freedom of movement through means intentionally applied. See Brower v. Inyo County, 489 U.S. 593, 597 (1989).
The critical question presented by plaintiff's § 1983 and Maryland constitutional claims is whether Sprinkle's use of the dog Gable under the circumstances here was objectively reasonable. As indicated by the Supreme Court's Graham opinion, whether unreasonable force was used in the seizure of a suspect is a fact-specific inquiry, which requires the trial court to carefully balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the countervailing governmental interests at stake. Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). What must be decided is whether the totality of the circumstances justifies a particular sort of seizure. Garner, 471 U.S. at 8-9. Proper application of the test for determining whether in a particular case a police officer's use of force was objectively reasonable "requires careful attention to the facts and circumstances of each particular case, including 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.
The factors listed hereinabove in Graham are not, however, the only ones relevant to the reasonableness inquiry. The Court in Graham went on to say:
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . The 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.
Applying those principles to the circumstances here, this Court has concluded that defendant Sprinkle acted reasonably when he used his dog Gable in apprehending plaintiff Anderson. Although the crime at issue, a burglary, was not a violent one, consideration of the other Graham factors supports the finding that Sprinkle's conduct was objectively reasonable. The evidence discloses that Anderson was attempting to evade arrest by flight and that he was aggressively and actively resisting the police officers' attempt to arrest him. Moreover, Sprinkle did not know during the encounter whether or not Anderson was armed, and, in view of Anderson's continued physical resistance, Sprinkle was entitled to assume that this suspect posed an immediate threat to the safety of both police officers on the scene.
The credible evidence does not indicate, as claimed by Anderson, that he was handcuffed and supine when attacked by the dog. Rather, he was violently struggling with Officer Dorsey and refused to comply with repeated warnings from Sprinkle that if he did not surrender, the dog would be released. As established by Sprinkle's testimony, this warning was first given during the chase. Subsequently, when Anderson attempted to hide under a car and when he was resisting Dorsey's effort to dislodge him from his hiding place, the warning was given by Sprinkle three more times in a loud voice. Both Dorsey and Sprinkle so testified, and their testimony will be given full credit. That Anderson could have readily avoided any injury is apparent. He had to know that, if he continued to struggle and ignore repeated warnings to surrender, he was subjecting himself to the risk of being bitten by the K-9 dog.
Counsel for plaintiff has argued that Anderson did not possess a weapon and that it was therefore unreasonable for Sprinkle to use the force that he did and permit Gable to bite the plaintiff. But the absence of a weapon was not known until after Anderson had been arrested and patted down. Physical violence was being employed by Anderson during his vigorous struggle with Dorsey, and the officers' safety was therefore a concern. Indeed, Dorsey himself was even injured during the struggle and sustained a hyper-extended thumb. What Sprinkle did know was that Anderson and Randall were desperately attempting to flee. During the chase, they ran through a red light and were so anxious to avoid capture that they bailed out of their vehicle in the Auto Park while it was still moving. The truck then jumped the curb and finally stopped when it hit a tree.
Dorsey testified that the pain was excruciating. During treatment, a cast was placed on his thumb, and he could not return to work for a month.
Randall ran into a nearby wooded area and was not apprehended until some time later.
Plaintiff further contends that, rather than unleashing his dog, Sprinkle should have used pepper spray or physical force in the apprehension. However, as Judge Smalkin of this Court has held, the fact that some lesser application of force or some other action might now seem preferable is immaterial to the question of whether the force actually used at the time resulted under the particular circumstances in a violation of the plaintiff's constitutional rights. Estate of Belew v. Ruppert, 694 F. Supp. 1214, 1215 (D. Md. 1988); see also Scott v. Henrich, 978 F.2d 481, 484 (9th Cir. 1992). The circumstances here were indeed "tense, uncertain and rapidly evolving. . . ." Graham, 490 U.S. at 397. In the absence of the "20/20 vision of hindsight," Sprinkle was forced to make the "split-second" judgment that he did. Id. at 396-97.
That Sprinkle acted reasonably under the circumstances here is supported by the expert testimony of Officer Johnston. How to train and use a police dog and its handler are "obscure skills," and an expert's opinion based on his specialized knowledge is important evidence in a § 1983 case involving a police dog's bite. Kopf v. Skyrm, 993 F.2d 374, 379 (4th Cir. 1993). Johnston testified that it was appropriate under the circumstances here for Sprinkle to use Gable in the manner that he did. Johnston also testified that both Sprinkle and Gable had previously received extensive training in the use of a K-9 dog during the apprehension of a suspect. Evidence of the prior training of Sprinkle and Gable supports the Court's determination that defendant Sprinkle acted reasonably.
Johnston had worked with K-9 dogs for some 24 years and had been officially certified as a K-9 instructor. Over the years, he has regularly trained and given instruction to police dogs and their handlers from many different jurisdictions in Maryland.
Plaintiff also relies on the fact that he sustained a bite in the area of his head and that his ear was badly lacerated. However, the extent of an injury is irrelevant to a Fourth Amendment analysis. Trout v. Frega, 926 F. Supp. 117, 122 n. 4 (N.D. Ill. 1996). This is not a case like Kopf v. Skyrm involving multiple bites by the police dog. See 993 F.2d at 375-77. Gable was withdrawn by Sprinkle after a single bite. Although Gable was trained to bite a suspect in areas of the body other than the head, it was Anderson's twisting and struggling during the dog's lunge which caused the wound to be inflicted on the ear rather than on the arm or on some other part of Anderson's body.
At various times during his struggle with Dorsey, Anderson's body was partially upright. At other times, he was in a prone position.
In sum, this Court, after applying the Graham factors to the circumstances of this case, has determined that the force used by defendant Sprinkle was objectively reasonable. Plaintiff has therefore not met his burden in this case of proving that defendant Sprinkle violated § 1983, nor that both defendants violated the Maryland Declaration of Rights. Judgment will accordingly be entered in favor of defendant Sprinkle as to Count III and in favor of both defendants as to Count V.
Since plaintiff has failed to prove the essential elements of the alleged constitutional violations, it is not necessary to consider defendants' alternative argument that defendant Sprinkle is entitled in any event to qualified immunity.See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
(b) The State Law Claims
In Counts VI and VII of the amended complaint, plaintiff alleges that defendant Sprinkle committed the torts of gross negligence and negligence when he ordered his dog to attack Anderson without justification. According to plaintiff, Sprinkle was both negligent and grossly negligent in the manner in which Gable was deployed during the encounter.
In responding to both Count VI and Count VII, defendant Sprinkle asserts that, since he is a public official, he is immune from tort liability under Maryland law in the absence of malice. Defendant relies both on the statutory grant of public immunity contained in Md. Code Ann., Cts. Jud. Proc. § 5-321(b)(1) and on the common law doctrine of public official immunity discussed inJames v. Prince George's County, 288 Md. 315, 323 (1980).
There is little doubt that defendant Sprinkle is a public official and that on April 4, 1997 he was performing a discretionary act within the scope of his official duties. Section 5-321(b)(1) bars a common law claim asserted against a police officer in the absence of proof of malice. Davis v. Dipino, 99 Md. App. 282, 290 (1994), rev'd on other grounds, 337 Md. 642 (1995); Thomas v. Annapolis, 113 Md. App. 440, 459 (1997);S.P. v. City of Tacoma Park, Civil No. JFM-95-1295 (Memorandum of December 5, 1995, slip op. at 16-17).
Plaintiff's claims asserted under Counts VI and VII must fail for lack of proof. Evidence of record does not indicate that defendant Sprinkle acted "without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and wilfully injure the plaintiff."Leese v. Baltimore County, 64 Md. App. 442, 480 (1985) (quoting H R Block, Inc. v. Testerman, 275 Md. 36, 43 (1975)). No evidence was presented at the trial indicating that defendant Sprinkle even knew plaintiff Anderson, much less that, in attempting to apprehend this suspect, he acted with an evil motive influenced by hatred directed against Anderson. As discussed in Part IV(a) of this Memorandum Opinion, defendant Sprinkle at the time of Anderson's apprehension was legally justified in deploying Gable in the manner that he did. Accordingly, plaintiff's claims of gross negligence and negligence asserted in Counts VI and VII of the amended complaint must fail.
Counts I and II seek a recovery from defendant Sprinkle under theories of battery and assault. Plaintiff alleges that defendant Sprinkle acted with implied or actual malice and that he put into motion a series of events resulting in the intentional touching of Anderson and in intentional threats of bodily harm by words and acts. In defending these claims, Sprinkle once again asserts that as a public official acting in a discretionary capacity, he is immune from liability under § 5-321(b)(1).
It is well established under Maryland law that a police officer is not responsible for an assault and battery if he has inflicted injury on a person who is being arrested, unless the officer acts with malice toward that person. MPJI 15:5. Malice exists when the officer intends to inflict an injury or acts from improper motivations or with ill will. Id. Thus, it has been held that the privilege is lost if the assault or battery is intentional or if the police officer acted with malice. Cox v. Prince George's County, 296 Md. 162, 171 (1983).
As noted hereinabove, plaintiff Anderson has not proved that defendant Sprinkle acted with malice when he allowed Gable to bite him. As this Court has determined, Sprinkle acted reasonably and was legally justified to act as he did during this confrontation in the early morning hours of April 4, 1997. Moreover, Sprinkle has testified that it was not his intent to injure Anderson by using his K-9 dog in the apprehension. Rather, he intended to use sufficient force to cause Anderson to stop resisting and submit to arrest. As disclosed by the evidence, the dog was released with the expectation that he would bite an arm or upper torso of the suspect. It was Anderson's struggling and vigorous resistance which caused the dog to bite his ear rather than some other less-exposed part of his body. Since defendant Sprinkle did not act maliciously or with the wrongful intent to injure plaintiff, Sprinkle is also entitled to judgment as to Counts I and II of the amended complaint.
In sum, plaintiff is not entitled to prevail on any of the claims asserted by him in this case under state law. All of plaintiff's state law claims depend upon proof that Sprinkle acted unreasonably and maliciously. After consideration of all the evidence presented at the trial, this Court has determined that Sprinkle's conduct at the time of plaintiff's apprehension was objectively reasonable and further that Sprinkle did not act maliciously or with the wrongful intent to injure the plaintiff.
V Conclusion
For all the reasons stated, this Court concludes that plaintiff Anderson is not entitled to recover damages from either one of the defendants under any of the claims asserted. Plaintiff Anderson has not met his burden of proving that defendant Sprinkle violated his constitutional rights or his rights under state law. Judgment will accordingly be entered in favor of the defendants, with costs. An appropriate Order will be entered by the Court.