Crime & Federalism

Szabla v. City of Brooklyn Park, No. 04-2538 (8th Cir. Dec. 1, 2005) is a sad tale.  In Szabla the plaintiff wanted to work, but he had no place to live.  He thus went to sleep at a local park that was across the street from a day-labor company.  Mr. Szabla was going to wake up at 5:30 a.m. and look for a job.  Unfortunately, he was attacked by a police dog.

While investigating a nearby automobile accident, Steven Baker told the police dog to "track."  A dog told to "track" looks for a person, and then bites the person without warning.  A dog told to "search" looks for a person, but waits until told to "bite," to bite the person found. 

After being told to "track," the dog pulled the police officer towards Mr. Szabla, and without provocation, the dog bit him - leaving 23 puncture wounds in Mr. Szabla's legs. Mr. Szabla sued the officers and the city.  And who can blame him.  All he wanted to do was work; police officers prevented that.  Mr. Szabla sued under an excessive force theory.  (Predicated on the Fourth Amendment, to state a claim under an excessive force theory, the plaintiff has to show that the police officer used objectively unreasonable force when searching or seizing a person.)  Recent caselaw supported Szabla's claim.

In Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2004), a three-judge panel of the Eight Circuit held that the police had to give a warning before sending the dogs after a suspect.   Id.  at 598 (holding 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.")  Mr. Szabla was injured a couple of years before Kuha was decided, and thus the panel held that the officers had qualified immunity.

The panel properly held that although the officers were entitled to qualified immunity, the city was not.  (Although municipalities are not entitled to qualified immunity, it is so difficult to state a claim against them that they have protection almost equal to qualified immunity.)  Here, the panel noted that the in the city's dog-handling policy manual, there was no mention of the need for officers to give suspects a warning before siccing a 75-lb. German Shepherd on someone. A jury could infer from the absence of this warning that the city was deliberately indifferent to citizens' Fourth Amendment rights.

Judge Colloton dissented because he thought the deliberate-indifference standard the panel applied wasn't strict enough.  Whether or not a judge applies the deliberate-indifferent standard used by the majority or the dissent will literally "make or break" a municipal liability case.  Someone could write a great law review by analyzing the way in which courts define and apply deliberate indifference in municipal liability cases.