KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Contract sale Day Six / police dog bite case and qualified immunity
January 6, 2022
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THE SALE HAS STARTED AND RUNS THROUGH JANUARY 14, 2022 SEE BELOW FOR DETAILS
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police dog bite case and qualified immunity
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The article on November 24, 2021 was about a police officer shooting two dogs when responding to a burglar alarm. In that case the Judge held the officer didn’t have immunity.
More recently in Missouri case police officers were responding to a burglar alarm complaint from owners who were away but believed someone had entered the house. Turns out a homeless person decided to enter a screen porch and go to sleep. The police got to the house and released a police dog who found and got into an altercation with the homeless person, causing some personal injury from bites. The homeless person sued claiming the police used excessive force and violated Fourth Amendment rights under the US Constitution. Police officer moved for summary judgment to dismiss based on qualified immunity.
This Federal Court granted the motion. Here is an excerpt from the case.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION CRYSTAL RAY MILTON, ) ) Plaintiff, ) ) v. ) No. 4:20-CV-3 RLW ) JON BELMAR, et al., ) ) Defendants.
Defendants may be entitled to qualified immunity for those claims brought against them in their individual capacities. McRaven v. Sanders, 577 F.3d 974, 980 (8th Cir. 2009). “Qualified immunity protects a government official from liability in a section 1983 action unless the official’s conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To overcome the defense of qualified immunity, a plaintiff must show: (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation.” Howard v. Kansas City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009).
The court may address either prong first. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). “The Fourth Amendment protects citizens from being seized through excessive force by law enforcement officers.” Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir. 1999).
Claims that law enforcement officers used excessive force are analyzed under Fourth Amendment’s “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395 (1989) “To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Coker v. Arkansas State Police, 734 F.3d 838, 842 (8th Cir. 2013). Determining Case: 4:20-cv-00003-RLW Doc. #: 61 Filed: 12/23/21 Page: 8 of 18 PageID #: 1044 9 whether the force used was objectively unreasonable and, therefore unconstitutional “‘requires balancing of the individual’s Fourth Amendment interests against the relevant government interests.’” Hosea v. City of St. Paul, 867 F.3d 949, 957 (8th Cir. 2017) (quoting Cnty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1548 (2017)).
The reasonableness test under the Fourth Amendment is not suitable to rote application, and the United States Supreme Court has allowed 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.’” Plumhoff v. Rickard, 572 U.S. 765, 775 (2014) (quoting Graham, 490 U.S. at 397). Courts analyzing excessive force claims under the Fourth Amendment are to assess the amount of force used “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (quoting Graham, 490 U.S. at 396).
District courts have been instructed to pay “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; see also Malone v. Hinman, 847 F.3d 949, 952–53 (8th Cir. 2017). Excessive force claims involving police dogs are governed by the objectively reasonable standard established in Graham. Kuha v. City of Minnetonka, 365 F.3d 590, 596 (8th Cir. 2003), abrogated on other grounds by Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385 (8th Cir. 2007).
The Eighth Circuit has recognized that police dogs can be an important tool for law enforcement, and the use of a police dog trained only in the “bite and hold” method is not objectively unreasonable. Kuha, 365 F.3d at 600 (“the mere use of a police dog training to bite Case: 4:20-cv-00003-RLW Doc. #: 61 Filed: 12/23/21 Page: 9 of 18 PageID #: 1045 10 and hold does not rise to the level of a constitutional violation.”).
A constitutional violation may arise, however, based on the manner in which the police dog is employed. Szabla, 486 F.3d at 391. The Eighth Circuit has held that “a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender.” Kuha, 365 F.3d at 598; Szabla, 486 F.3d at 392 (same, citing Kuha).
It is undisputed that Defendant Wolf gave canine warnings when first entering the house, when going downstairs to the basement, and before entering the three-seasons room where Plaintiff was sleeping before Kelso bit her. Defendant Wolf, Sgt. Meyer, and Officers Tripp, Presson, and Dumstorff all testified that Defendant Wolf gave a canine warning before Kelso entered the three seasons room and bit Plaintiff. (Dep. of John Wolf at 132-33; Dep. of Eric Tripp at 27, ¶¶ 21- 24; Dep. of Aaron Meyer at 43, ¶¶ 17-8; Dep. of Jane Dumstorff at 20, ¶¶ 19-23; Dep. of Dillon Presson at 24, ¶¶ 5-13). Despite the testimony from the officers, Plaintiff maintains there is an issue of fact as to whether Defendant Wolf gave a canine warning before Kelso entered the three seasons room. She offers three arguments in support of her assertion, none of which the Court finds persuasive.
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THE SALE HAS STARTED AND RUNS THROUGH JANUARY 14, 2022. ORDERS ARE FILLED AS RECEIVED [UP TO 6 WEEK WAIT for sale orders - longer for update orders] ORDERS ARE FILLED AS RECEIVED [UP TO 6 WEEK WAIT for sale orders - longer for update orders]
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The Standard Form Agreements are all updated. This year there are important updates. All contracts should be updated this year. One change is the inflation and supply chain delay provision; there are many others. 2022 updated contracts are ON SALE now; SAVE THOUSANDS DURING THIS SALE
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NOTICE:
The Standard Form Agreements have been updated for 2022. This year, because of unprecedented economic issues that have recently affected the alarm industry, all contracts should be updated. Check with our Contract Administrator, Eileen Wagda, at 516 747 6700 ext 312 to see if your forms need updating. Keep in mind that updates are free for 6 months and half price for 12 months from your original order date. Requests for updates will be processed after the new orders are processed. The sale ends January 14, 2022; the sooner you order the sooner you will get the contracts. Please do not call requesting priority unless you are a Concierge Client or have paid for expedited service.
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How to order: order at www.alarmcontracts.com - ordering is easy - order on-line during the sale and save thousands of dollars. Need help ordering? Call our Contract Administrator Eileen Wagda at 516 747 6700 x 312 for assistance. Concierge Clients can call our Concierge Program Coordinator Stacy Spector, Esq for assistance at 516 747 6700 x 304. Concierge Clients receive an additional 10% off the sale price. You can join the Concierge Program before ordering to receive the discount and you should take advantage of this program.
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Contract sale runs through January 14, 2022, ending at midnight EST. The discount will be applied to orders received between now and January 14, 2022 by midnight*. This will definitely be the best deal of 2022. When you place the order the full price will come up. We will apply the discount manually when we process the order. Contracts will be delivered by email only.
Here's the deal:
Buy 1 All in One Residential, Commercial or Fire All in One and get $100 off and $50 off Disclaimer Notice save $150
Buy 2 All in One forms and get $100 off first and $200 off second and $75 off Disclaimer Notice and $100 off alarm.com rider and $100 off the Honeywell Notifier rider. Save up to $575.
Buy 3 or more All in One forms and get same as above and $300 off the third form and $400 off the fourth form. Save up to $1275.00 [Residential, Commercial, Fire, Home Automation]
Commercial Mobile Surveillance Lease $1000. Save $250
Fire All in One with Security Rider $1275.00. Save $300.00 Add the Commercial Fire All in One and the Commercial All in One and get $200 off each. Save $700.00
Qualifier Agreement $1200.00 Save $300.00
Digital Sign And Display Sales, Hosting And Service $437.50 save 50% $437.50
Computer Consulting and Service $437.50 save 50% $437.50
Nationwide DIY with monitoring. $3500.00 save $1000.00**
Nationwide PERS with or without GPS tracking. $3500.00 Save $1000.00**
* Your order must be placed on line at www.alarmcontracts.com and received by our office no later than January 14, 2022 by midnight EST. Orders must contain valid credit card payment and be processed; you will receive confirmation. Fill out the order form; the full prices will show and we will apply the discount before processing the order. Orders arriving after sale ends will be processed at regular published rates. Orders will be processed in order received. Rush orders, delivered by email within 48 hours, add 15% - call Eileen to process.
Concierge Clients will receive their Concierge Program Discount on the Sale Price. Sign up for the Concierge Program before placing your contract order to receive the additional discount.
** Does not include consultation or modification
What's our Guarantee policy re updates?
Free updates within 6 months of purchase***
Half price within 6 months to 1 year***
*** applies to original purchase only
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To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com
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CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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