Excessive Use of Force; Monell Liability; Qualified Immunity
Subject sues for excessive use of force, municipal (Monell) liability and gross negligence. Subject was at his home with a woman he had just met who flipped out, demanded sex and stabbed subject when he told her to leave. Subject was able to get her out of his house and lock the door. Subject then went into the bathroom to treat his wounds. Meanwhile, woman called 911 and reported (falsely) that subject had raped her. Court held it was apparent that responding LE were aware of woman stabbing subject. LE responds to the house. Subject let LE in, but then went back to the bathroom to treat his wound. Handler took subject to the ground while off leash PSD bit subject. Once he was on the ground, PSD bit subject again. Subject suffered wounds from bites which included broken bones in his foot.
Court held first that handler and other LE at scene were not entitled to qualified immunity because there was a material question of fact as to what happened (LE’s version significantly different than subject’s). Court also held that the municipality was not entitled to summary judgment either. “To make out a showing of an illegal policy or custom, a plaintiff must demonstrate one of the following: “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer (6th Cir. 2013) 735 F.3d 462, 478. Using the Graham factors, the court held that an off leash PSD biting a subject in his own home could be found to be excessive force, particularly in considering the second bite. The policy of the LE entity on use of force did not specifically address PSDs. All decisions regarding the use of PSDs, including the use of a leash, were left in the discretion of the handler. In addition, the policy did not address the requirements of certification and on-going training of the PSD. The other state claims were allowed to proceed as well.