Duane A. Kennedy, KENNEDY LAW OFFICE, for plaintiff.
Jenny Gassman-Pines, and John M. Baker, GREENE ESPEL PLLP, for defendant.
PATRICK J. SCHILTZ, District Judge.
Defendant Chris Wallace, an Olmsted County deputy sheriff, used a police dog to find and detain plaintiff Robert Reed after Reed fled into dense woods to avoid being apprehended for burglarizing a nearby home. Reed alleges that Wallace's use of the police dog violated Reed's right under the Fourth Amendment to be free from excessive force. This matter is before the Court on Wallace's motion for summary judgment. ECF No. 23. Wallace's motion is granted for the reasons explained below.
The facts of this case are disputed in some respects, but, taking the record in the light most favorable to Reed, a jury could find the following:
The Olmsted County Sheriff's Office received a call reporting a burglary in progress during the early morning hours of November 10, 2009. The caller reported that two individuals had broken into her home and that she had witnessed them looking through her papers. See ECF No. 26-1 at 2. Wallace and other officers were dispatched to the scene, but the burglars fled before the officers arrived. Id. Wallace and the other officers immediately began searching for the burglars in the rural area surrounding the residence.
The officers quickly came upon an unattended vehicle parked about a quarter mile from the residence. See ECF No. 27-1 at 2; ECF No. 28-1 at 2. A records search connected the vehicle to Edward Kearns, a suspect in other recent Olmsted County burglaries. See ECF No. 27-1 at 2. Although the weather was cold, the vehicle's engine was warm, suggesting that the vehicle had been driven recently. Id.
The vehicle was parked near a heavily wooded area. Wallace suspected that one (or both) of the burglars might be hiding in the woods, so he released a police dog to search for the suspects. Before releasing the dog, however, Wallace gave the following warning: "This is the Olmsted County Sheriff's Office. You are under arrest. Respond to the sound of my voice or I will release my dog and you will get bit." Wallace Aff. ¶ 16 [ECF No. 26]. Hearing no response, Wallace announced, "This is your final warning before I release my dog. Respond to the sound of my voice or you will get bit." Id. Again, Wallace heard no response. Wallace released his dog to search the woods. Id. ¶ 17.
Wallace's suspicion that someone connected to the burglary was hiding in the woods was well founded. Reed testified that he and Kearns had spent the evening in a hotel room smoking methamphetamine and marijuana. Reed Dep. 17-19 [ECF No. 30-1 at 2-29]. As night turned into morning, the men ran out of drugs, so they drove to another location to purchase more. Id. at 19-20. The men stayed at the new location for a while, consumed more methamphetamine, then returned to Kearns's car. Id. at 20-21. Needing money to purchase yet more drugs, the two men drove to what Kearns said was his parents' business - which, in fact, was the rural residence to which the police were later called. Id. at 23. Kearns parked the car a short distance from the residence and walked down the road towards it, while Reed stayed near the vehicle and smoked a cigarette. Id. at 22. About 20 to 40 minutes later - Reed could not remember exactly how long, because he "was really speeded up" and not wearing a watch, id. at 23 - Kearns came back up the road towards Reed and handed him burglary tools and a bag containing money. Id. at 22-24. As the handoff occurred, the two men saw flashlights shining in the distance. Id. at 22. Believing (correctly) that the police had arrived, Kearns and Reed fled. Id. at 28. Reed quickly lost sight of the speedier Kearns, and, unsure of Kearns's whereabouts, Reed decided to hide in the nearby woods. Id. at 29.
As he hid in some underbrush, Reed remembered that there was a small bag containing approximately three grams of methamphetamine in his pocket. Id. Reed did not want to be discovered by police with illegal drugs in his possession, so Reed swallowed all of the methamphetamine, going so far as to lick the bag clean of any residue. Id. at 29, 32. Reed later testified that after swallowing the methamphetamine, "[e]verything went black.... I don't even think I could think anymore." Id. at 34. Because he had blacked out, Reed did not hear Wallace's warnings that a police dog would be released into the woods if no response was given. (And, because he blacked out, Reed cannot testify about what happened after he swallowed the methamphetamine.)
In the meantime, Wallace lost sight of his dog. See Wallace Aff. ¶ 18. Under the policies of the Olmsted County Sheriff's Office, a police dog is not "permitted to roam at will" and must remain "under [the] direct supervision of the handler at all times, " except when secured in a kennel or similar area. ECF No. 33 at 11. Wallace therefore called for the dog to return to him. See Wallace Aff. ¶ 18. After calling for the dog, however, Wallace heard a voice screaming from the woods. Id. The voice was Reed's; although Reed did not realize it due to the effects of the drugs that he had ingested, the police dog had discovered him and had been biting him. Reed Dep. 34-35.
The officers entered the woods upon hearing the screams, and the dog returned to Wallace. Wallace Aff. ¶ 20. Because the officers could not identify from where the screams had come, Wallace released the dog once more to locate the suspect. Wallace Aff. ¶ 22. The dog again found Reed and bit him, causing Reed to scream. Id. ¶ 23; Reed Dep. 35-36. Reed's screams led the officers to him, and Reed was arrested on suspicion of burglary.
Although they did not know that Reed had swallowed three grams of methamphetamine, the officers realized that something was wrong with him, as he was convulsing and having difficulty breathing. See ECF No. 27-1 at 3. Reed was immediately transported to a nearby emergency room. While treating Reed for the drug overdose, doctors also cleaned and bandaged dog-bite wounds on his buttocks and arm, and they recommended that he take ibuprofen as needed for any pain. See Baker Aff. Ex. G at 1-5 [ECF No. 30-1]; Reed Dep. 50. Later, doctors also prescribed antibiotics for the wounds. Reed Dep. ...