Campbell v. City of Springboro

700 F.3d 779

Samuel A. CAMPBELL and Chelsie Gemperline, Plaintiffs–Appellees,

v.The CITY OF SPRINGBORO, OHIO; Jeffrey Kruithoff, individually and in his official capacity as Chief of Police; Nick Clark, individually and in his official capacity as Police Officer for the City of Springboro, Ohio, Defendants–Appellants.

No. 11–3589.

United States Court of Appeals, Sixth Circuit.

Argued: June 5, 2012.

Decided and Filed: Nov. 29, 2012.

Rehearing and Rehearing En Banc Denied Jan. 4, 2013.

ARGUED:Wilson G. Weisenfelder, Jr., Rendigs, Fry, Kiely & Dennis, LLP, Cincinnati, Ohio, for Appellants. Matthew C. Schultz, Brannon & Associates, Dayton, Ohio, for Appellees. ON BRIEF:Wilson G. Weisenfelder, Jr., Rendigs, Fry, Kiely & Dennis, LLP, Cincinnati, Ohio, for Appellants. Dwight D. Brannon, Douglas D. Brannon, Brannon & Associates, Dayton, Ohio, for Appellees.

Before: KEITH, McKEAGUE, and DONALD, Circuit Judges.

DONALD, J., delivered the opinion of the court in which KEITH, J. joined, and McKEAGUE, J., joined in Parts II.A and II.D. McKEAGUE, J. (pp. 791–96), delivered a separate opinion dissenting from Part II.B, Part II.C, and the result.

OPINION

BERNICE B. DONALD, Circuit Judge.

Plaintiffs Samuel Campbell and Chelsie Gemperline were attacked on October 20, 2007 and October 11, 2008, respectively, by a police dog with the canine unit of the Springboro Police Department. Plaintiffs filed suit under 42 U.S.C. § 1983 against the canine's handler, the chief of police, and the City of Springboro, alleging excessive force, failure to supervise, and failure to properly train. Plaintiffs also asserted state law claims for assault and battery. The district court denied Defendants' motion for summary judgment. For the foregoing reasons, we AFFIRM the district court's denial of summary judgment.

I.

In 2004, the Springboro Police Department (“SPD”) selected Officer Nick Clark to form the department's first canine unit. The Chief of Police, Jeffrey Kruithoff, placed Clark in charge of selecting a dog and a training program. Clark chose a dog named Spike from Lynwood Kennels, a company that specializes in training canines and their handlers for law enforcement purposes. Lynwood Kennels provided the initial core training—a 300–hour canine handling course that Officer Clark and Spike completed in May, 2005. After completing that training, Spike and Clark obtained state certification. According to Officer Clark, the State of Ohio requires that canine units be regularly certified by the Ohio Peace Officer Training Commission and the Office of the Attorney General (“Ohio Training Commission”) in order to remain in compliance.

The SPD deployed Spike in the field immediately after he became state certified. Clark was responsible for making sure that Spike fulfilled training requirements. Clark believed that he and Spike were supposed to complete eight hours of maintenance training every other week to make sure Spike stayed sharp and did not develop bad habits. Brian Woods, the operator of Lynwood Kennels and a master trainer, testified that the monthly maintenance training should encompass all disciplines, including narcotics detection, tracking, obedience, bite training, and reasonable force training with a particular focus on any problem areas. Without such training, the dog's level of obedience may erode over time and the dog may not respond as well to the handler's commands. Clark admitted that he and Spike did not always engage in maintenance training on a regular basis. Spike received no training between September 19, 2007 and October 21, 2007, the date of the Campbell incident. Spike also received no training for over thirty days prior to the Gemperline incident, which occurred on October 11, 2008. Officer Clark testified that although his supervisors were aware that Spike's training was not current, they failed to allot sufficient time for training.

Prior to both bite incidents at issue in this case, Officer Clark notified his supervisors that he had been unable to keep up with the maintenance training and repeatedly requested that they allow him time to attend training sessions, but his requests were denied. Spike's state certifications lapsed for several months during the summer of 2007. The renewal deadlines for those certifications were April 28 and May 12, 2007. Spike was not actually re-certified until September 26, 2007. During his deposition, Clark testified that a police dog cannot be in service in Ohio unless the certifications are renewed. However, he interpreted the “renewal due date” posted on the certification forms not as a deadline, but rather as the earliest date upon which renewal can occur. During the lapse in Ohio certification, Spike was deployed in the field approximately ten times. Clark testified that within that time period, he notified Kruithoff and another supervisor that the certifications had expired. Spike's recertification occurred prior to the dates of the two bite incidents at issue in this case.

Kruithoff testified that he never specifically designated any member of his command staff to supervise the canine unit or to ensure that Spike was suitable for duty. Instead, oversight of the canine unit fell to the officers serving as Clark's supervising lieutenant and sergeant at any given time. Similarly, Lieutenant Wheeler testified that Officer Clark oversaw his own training.

While Woods and Clark agreed that Spike was trained as a “bark and hold” dog, they sharply disagreed on how he was trained to behave in a tracking situation. Woods explained that a “bark and hold dog is trained that if a person gets up and surrenders, the dog will not engage you. He will literally detain him or bark and hold him until such time as the person either attacks, flees, or is called [ ] back by the handler.” “[I]f the dog is trained in a bark and hold, that is what he should do....” According to Clark, however, the “bark and hold” approach does not apply in a tracking situation. Clark testified that when engaged in a fugitive track, even where the subject was compliant and not attempting to resist or flee, Spike was expected to bite the subject unless Clark saw the subject and restrained Spike verbally or physically.

There was similar disagreement on the subject among the testifying police officers. Chief Kruithoff believed during a track that Spike was not supposed to bite the subject if the subject remained still. Similarly, Lt. Wheeler indicated that Clark had told him that a bark and hold dog is supposed to first bark at a subject to indicate the subject's presence. If the subject makes any movement, the dog is expected to “bite and hold.” According to Lt. Parker, on the other hand, bark and hold doesn't apply during tracks, because it only applies to “off-leash” situations. He further testified that a tracking canine would always bite upon encountering a subject, unless the handler commands otherwise before the dog engages.¹

The evidence shows that Spike was involved in biting incidents with growing frequency in the first three years of his deployment in the field. In 2005, he successfully apprehended three suspects, none of whom were bitten. In 2006, Spike apprehended fourteen suspects, five of whom he bit. In 2007, he bit five of the six suspects apprehended.

A. Campbell Incident

On the evening of October 20, 2007 Samuel Campbell had gone out with his girlfriend, Lisa Parker, and another couple to a nightclub. At approximately 12:30 a.m., Parker decided to leave the club and walk home because she was intoxicated. When Campbell later decided to leave the club, he realized that he had Parker's car keys and needed to return them to her. When he arrived at Parker's house, he could see her through the window in the front door, lying on the couch. He pounded loudly on the front door for about five or ten minutes, but was unable to rouse her. Campbell walked around to the back and pounded on the back door for another two to three minutes, and then returned to the front of the house. Meanwhile, the tenant in the other half of Parker's duplex who had heard all of the pounding called the Springboro Police Department about the noise.

Officers Clark and Anderkin were dispatched to Parker's residence to respond to a possible domestic situation involving a male subject beating on Parker's front door. By the time the officers got to the scene, Campbell had already left Parker's residence and had begun to head toward his house on foot through Parker's backyard. Campbell heard the approaching sirens and suspected that a neighbor may have called the police because he had been pounding loudly on Parker's door. He decided to lie on the ground near an outbuilding in an attempt to avoid a confrontation with the police.

The neighbor told Anderkin that Parker's residence had recently been broken into and that at some point she had received death threats from someone. The neighbor also stated that he had seen a white male, later determined to be Campbell, kick the front door and then run around the side of the house as the officers approached. The officers then attempted unsuccessfully to rouse Parker by pounding on the back and front doors to the residence. They noticed that the doors appeared damaged, but they were unable to gain entry to the residence because both of the doors were securely locked. Clark testified it was their belief that the suspect had fled upon hearing police sirens, leading the officers to conclude that they were dealing with an attempted burglary and that the suspect was likely still in the area.

After outfitting Spike in a harness and twenty-foot tracking line, Clark deployed him near the side of the house. Spike eventually led the officers to a fence in an adjoining yard that led to the outbuilding near where Campbell had laid down on the ground. Clark maintains that he had no idea Campbell was that close and that he did not actually see Campbell until after Spike bit Campbell. Clark testified...