# Hope v. Taylor

> District Court, M.D. Florida · February 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10106933

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106933

## How later opinions describe it (automated extraction)

- finding it objectively reasonable for a police officer to use a canine to pursue a fleeing suspect he reasonably believed was armed
- noting “there is no case that has held [bite and hold] policies to be unconstitutional”
- noting that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge”
- finding that a list of complaints against officers did not establish a practice of deliberate indifference “the Plaintiff must present at least some evidence from which a reasonable jury could infer that the complaints were meritorious”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ELIZABETH DIANE HOPE,

Plaintiff,

v. Case No. 8:20-cv-196-VMC-AAS

AUSTIN TAYLOR,
and CHARLES RICHARD WELLS,

Defendants.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant
Austin Taylor’s Motion for Summary Judgment (Doc. # 46), filed
on December 17, 2020, Defendant Charles Richard Wells’s
Motion for Partial Summary Judgment (Doc. # 44), filed on
December 17, 2020, and Plaintiff Elizabeth Diane Hope’s
Motion for Summary Judgment (Doc. # 43), filed on December
16, 2020. For the reasons discussed below, Deputy Taylor’s
Motion is granted in part and denied in part, Sheriff Wells’s
Motion is granted, and Ms. Hope’s Motion is denied.
I. Background
The following facts are undisputed. On the evening of
June 3, 2019, Ms. Hope was sitting at a table outside her
friend’s home playing dominoes. (Doc. # 43-1 at 36:1-21). The
home was situated in a residential area, across the street
from a small field. (Id. at 34:1-35:2).
That same night, around 6:00 PM, Deputy Taylor began his
shift. (Doc. # 43-2 at 12:13-18). Deputy Taylor is an officer
who works with the K-9 unit of the Manatee County Sheriff’s
Office. (Id. at 5:2-12). As Deputy Taylor was driving his
patrol vehicle, he noticed a black Ford with tags matching a
vehicle listed as stolen. (Id. at 12:15-13:9, 14:11-13).
Circling around, Deputy Taylor pulled in behind the

suspected stolen vehicle. (Id. at 14:14-15:13). As he was
reporting this over his radio, the vehicle quickly pulled out
of the parking lot and drove away. (Id.). Deputy Taylor
followed the vehicle at high speeds until it stopped in front
of a residence. At this point, Deputy Taylor witnessed three
young males, around fifteen to eighteen years old, flee the
vehicle. (Id. at 16:4-17:17).
Deputy Taylor stopped his vehicle and released his K-9
partner Niko. (Id. at 16:22-17:12). Niko is trained to bite
and hold suspects, securing the individual until his officer
gives either the “release” command or physically removes him.
(Id. at 26:22-37:14; Doc. # 44-3 at ¶ 7).

Upon exiting the vehicle, Deputy Taylor gave Niko the
“engage” command, which is a command “to apprehend . . . the
people that were running.” (Doc. # 43-2 at 17:11-15). An
“apprehension” command and “bite” command are “loosely” the
same thing, as the dogs are trained to apprehend individuals
by “grab[bing] ahold and just kind of hold[ing] the suspect.”
(Doc. # 43-5 at 32:22-33:10). Once told to engage, Niko began
running, off-lead, towards the suspects. (Doc. # 43-2 at
17:11-12, 19:11-16, 26:13-17).
As Deputy Taylor was releasing Niko, the suspects were
crossing a guardrail next to a set of train tracks. (Id. at

20: 7-16). Niko failed to jump over the guardrail after the
suspects until prompted by Deputy Taylor. (Id. at 13-16).
After Deputy Taylor gave the “up” command, Niko cleared the
guardrail and ran in the direction of the suspects. (Id.).
Deputy Taylor followed, running to keep up. (Id. at 34:1-7).
At this point, the suspects were crossing an open field.
(Id. at 22:20-21). One suspect jumped on the roof of a nearby
van, while another ran to the right towards the residential
area where Ms. Hope was playing dominoes. (Id. at 24:19-
25:11, 25:16-19). Niko continued to run in the direction of
the suspect who went right, towards the residences. (Id. at
25:16-19). The suspect ran between an alleyway behind the

houses. (Id. at 28:9-15).
At this point, Niko encountered Ms. Hope and the parties’
stories diverge. In his deposition, Deputy Taylor testified
that Niko was walking past Ms. Hope, uninterested, until Ms.
Hope screamed, flipped a table, and started swinging her arms.
(Id. at 31:7-10). Deputy Taylor stated that the commotion
attracted Niko’s attention, causing the dog to turn and face
Ms. Hope. (Id. at 32:18-21).
Upon watching Niko lose sight of his target, Deputy
Taylor testified that he began administering the recall

command “here” and the “fuey” command, or “bad command,” to
tell Niko “[he] didn’t want [Niko] to go for those people.”
(Id. at 34:1-14).
According to Deputy Taylor, Niko responded to these
commands and started coming back towards him, but Ms. Hope
grabbed a chair and began using it as a shield between herself
and Niko. (Id. at 33:21-23). Ms. Hope “took the chair and
was, essentially, trying to push [Niko] away with the chair.”
(Id. 34:19-25). Deputy Taylor testified that this whole time,
he was running “straight towards” Niko through the open field
and giving him the recall and fuey command. (Id. at 34:1-11,
35:22-24). Despite these commands, Niko interpreted Ms.

Hope’s actions as aggression and responded by biting Ms.
Hope’s arm. (Id. at 35:1-3).
“[A]s soon as [Niko] bit Ms. Hope,” Deputy Taylor
testified that he “took off running after him just to go get
ahold of him.” (Id. at 35:22-24). When asked whether he was
“still giving commands” while Niko “[was] on [Ms. Hope’s]
arm,” Deputy Taylor admitted that “no commands were given,”
“not after [Niko] got on her.” (Id. at 35:21-26:3). But as
soon as Deputy Taylor reached the dog, physically grabbed its
collar, and “was trying to get the dog off of [her],” he gave
the fuey and release, or “let go,” command. (Id. at 35:20-

36:3, 36:15-18). Deputy Taylor estimated that Niko was “on
[Ms. Hope’s] arm” for “less than five seconds.” (Id. at 36:5).
According to Ms. Hope’s version of events, she was
sitting outside with friends when she watched a large dog run
across a field after some boys. (Doc. # 43-1 at 38:14-39:8).
She thought the dog belonged to the boys, as she was unaware
a police search was being conducted and Deputy Taylor did not
warn the neighborhood he was releasing a dog in the area.
(Id. at 36:21-24; 39:2-12, 47:16-17; 43-11 at 5).
Ms. Hope did not realize Niko was a police dog until it
got closer, at which point she was terrified. (Doc. # 43-1
95:6-7). In her deposition, Ms. Hope explained that she tried

to go inside with her companions, but “[she] was sitting [at]
the table, so [she] couldn’t get up as quick as them.” (Id.
at 41:4-16).
Before Ms. Hope could get to safety, Niko lost sight of
his target and began “looking all around.” (Id. at 43:9-15).
He turned and “clocked his eyes on [Ms. Hope].” (Id. at 43:9-
15, 43:19-24, 95:1-3). According to Ms. Hope, Niko was
“watching” her with his “ears up,” which is a sign that he is
“targeted . . . and will immediately pursue.” (Id. at 43:19-
24, 95:1-3; 43-2 at 31:24-25). Ms. Hope testified that while

Niko was watching her, she did not hear Deputy Taylor attempt
to recall Niko with a “here” or “fuey” command. (Doc. # 43-1
at 43:9-15, 47:11-48:11, 95:22-96:7, 98:4; Doc. # 43-11 at
5). Instead, according to Ms. Hope’s sworn interrogatories,
Deputy Taylor watched, without verbally intervening, as Niko
came “right towards” her and jumped on her. (Doc. # 43-11 at
5; Doc. # 43-1 at 98:4-7).
At that point, Niko latched onto Ms. Hope’s arm and did
not let go. (Doc. # 43-1 at 99:6-17). According to Ms. Hope,
Deputy Taylor still did not issue a verbal command to release.
(Id. at 47:16-48:4, 96:12-22; Doc. # 43-2 at 35:20-36:3).
Only when Deputy Taylor reached the fray and was “trying to

get the dog off of [her]” did Ms. Hope hear Deputy Taylor say
anything, although she did not understand what he was saying.
(Doc. # 43-1 at 47:16-4). Even then, Niko did not respond to
Deputy Taylor’s command, and was only removed when Deputy
Taylor physically pulled the dog off Ms. Hope. (Doc. # 43-2
at 36:15-18).
Ms. Hope estimated during her deposition that the bite
lasted anywhere from three to five minutes. (Doc. # 43-1 at
52:15-17). Her expert witness opines that the severity of the
wound indicates a bite of at least two minutes, and that “Niko
would not have inflicted [a wound that severe] if he bit and

then quickly released.” (Doc. # 49-1 at 6).
As a result of Niko’s bite, Ms. Hope suffered severe
injuries, including infection, to the point where she “had to
have the whole thing cut out and have the whole arm
restructured.” (Doc. # 43-1 at 56:15-24, 58:17-24, 60:12-13).
No Manatee County Sheriff’s Office policy authorizes the
use of a K-9 to bite an innocent bystander, nor is there a
policy that allows an officer to continue a K-9 attack on a
bystander he comes to realize is innocent. (Doc. # 44-3 at ¶¶
8-9; Doc. # 44-5 at 4-5).
In the past, Niko has bitten at least one innocent
bystander. (Doc. # 43-9 at 3-4). Additionally, a list of

Niko’s previous deployments reflects that Niko has bitten
suspects to the bone and frequently needs to be removed from
suspects by physical means. (Doc. # 50-1).
Based on the aforementioned events, Ms. Hope filed the
instant action on January 24, 2020, alleging three counts:
(1) unreasonable seizure in violation of the Fourth and
Fourteenth Amendments against Deputy Taylor in his individual
capacity, pursuant to 42 U.S.C. § 1983 (Count I), (2)
deliberately indifferent policies, practices, customs,
training, and supervision in violation of the Fourth and

Fourteenth Amendments against Sheriff Wells in his official
capacity as Sheriff of Manatee County, in violation of 42
U.S.C. § 1983 (Count II), and (3) a state negligence claim
against Sheriff Wells in his official capacity as Sheriff of
Manatee County pursuant to Florida Statute § 768.28 (Count
III). (Doc. # 1).
Discovery is complete, and the parties have filed their
respective Motions for Summary Judgment. (Doc. ## 43, 44,
46). All parties have responded (Doc. ## 47, 48, 49, 50).
Only Sheriff Wells moved to file a reply, which the Court
granted. (Doc. ## 53, 54, 55). The Motions are now ripe for
review.
II. Legal Standard
Summary Judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
“Summary judgment may be inappropriate even where the
parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts.”
Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d

1294, 1296 (11th Cir. 1983). If there is a conflict between
the parties’ allegations or evidence, the non-moving party’s
evidence is presumed to be true and all reasonable inferences
must be drawn in the non-moving party’s favor. Shotz v. City
of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If
a reasonable fact finder evaluating the evidence could draw
more than one inference from the facts, and if that inference
introduces a genuine issue of material fact, the court should
not grant summary judgment. Samples ex rel. Samples v. City
of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (citing
Augusta Iron & Steel Works, Inc. v. Emp’rs Ins. of Wausau,
835 F.2d 855, 856 (11th Cir. 1988)).

Finally, the filing of cross-motions for summary
judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions must
be considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.” Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–
39 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary
judgment will not, in themselves, warrant the court in
granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not
genuinely disputed . . . .” (quotation omitted)).
III. Analysis
Deputy Taylor moves for summary judgment as to Count I
of the amended complaint (Doc. # 46), Sheriff Wells moves for
summary judgment as to Count II (Doc. # 44), and Ms. Hope
moves for summary judgment as to Count I and II. (Doc. # 43).
No party seeks summary judgment on Count III. The Court will
address each Motion separately.
A. Deputy Taylor’s Motion
Deputy Taylor moves for summary judgment on Count I of
the amended complaint, which is the Section 1983 claim against

him in his individual capacity. (Doc. # 46). Because there
was no clear prohibition against his actions, Deputy Taylor
contends he is entitled to qualified immunity. (Id. at 6).
Qualified immunity offers complete protection for
government officials sued in their individual capacities “as
long as their conduct does not violate clearly established .
. . constitutional rights of which a reasonable person would
have known.” Sharp v. Fisher, 532 F.3d 1180, 1182–83 (11th
Cir. 2008) (internal quotations omitted).
“An official seeking qualified immunity must initially

establish that he was acting within his discretionary
authority. If the official was acting within the scope of his
discretionary authority, the burden shifts to the plaintiff.”
McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007); see
also O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004)
(“To be even potentially eligible for qualified immunity, the
official has the burden of establishing that he was acting
within the scope of his discretionary authority.”).
i. Discretionary Authority
“A government official proves that he acted within the
purview of his discretionary authority by showing ‘objective
circumstances which would compel the conclusion that his

actions were undertaken pursuant to the performance of his
duties and within the scope of his authority.’” Hutton v.
Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990) (quoting
Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)).
The parties do not dispute that Deputy Taylor released
Niko, off lead, to pursue three young men suspected of
stealing a car. (Doc. # 43-2 at 14:11-13, 15:5-11, 16:4-
17:17). Under such circumstances, a police officer’s decision
to use a K-9 to apprehend a fleeing suspect is within the
officer’s discretionary authority. See Garner v. City of
Ozark, No. 1:13-CV-90-WKW, 2015 WL 728680, at *7 (M.D. Ala.

Feb. 19, 2015) (“There is little doubt that a police officer’s
decision to use a canine to apprehend a fleeing suspect is a
discretionary act because there is no hard and fast rule as
to the course of conduct that he must or must not take when
pursuing a suspect, and the officer must use his judgment to
determine what is just and proper under the circumstances.”
(internal quotations and alteration omitted)).
As Deputy Taylor satisfies the discretionary authority
requirement, “the burden shifts to [Ms. Hope] to show that
qualified immunity is not appropriate.” Vinyard v. Wilson,
311 F.3d 1340, 1346 (11th Cir. 2002) (internal citation and
quotation marks omitted). This is a two-part test. First,

“taken in the light most favorable to [Ms. Hope],” the alleged
facts must “show that the officer’s conduct violated a
constitutional right.” Storck v. City of Coral Springs, 354
F.3d 1307, 1314 (11th Cir. 2003) (citation omitted). Second,
“if a constitutional right would have been violated under the
plaintiff’s version of the facts, the court must then consider
‘whether the right was clearly established.’” Id.
Here, Ms. Hope alleges that Deputy Taylor violated her
Fourth and Fourteenth Amendment rights. The Fourth Amendment
guarantees that all individuals will “be secure in their
person . . . against unreasonable seizures.” U.S. Const.

Amend. IV. This freedom encompasses the right to be free from
the use of excessive force in the course of an arrest. Graham
v. Connor, 490 U.S. 386 (1989).
All claims of excessive force “should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard.” Id.
at 395. Accordingly, to satisfy the first prong of the test,
Ms. Hope must demonstrate that: (1) a seizure occurred and
(2) the force used to effect the seizure was objectively
unreasonable. Troupe v. Sarasota County, 419 F.3d 1160 (11th
Cir. 2005).
ii. Was Ms. Hope Seized?
Deputy Taylor argues that no constitutional violation

occurred because Ms. Hope was not seized. (Doc. # 46 at 7).
The Court previously found that Ms. Hope was seized within
the meaning of the Fourth Amendment. (Doc. # 29).
At that time, the Court noted that “[i]n general, no
seizure occurs when innocent bystanders are harmed by police
actions,” but “[c]ourts take a different tack in cases
involving police dogs.” Hope v. Taylor, No. 8:20-cv-196-VMC-
AAS, 2020 WL 1677315, at *3 (M.D. Fla. Apr. 6, 2020) (internal
citations omitted). This is because “[o]nce deployed, a
police-dog is generally unable to discriminate between

suspects and innocent parties and is generally trained to
bite whomever it encounters, facts suggesting the officer’s
intention to seize whomever the dog ultimately does
encounter.” Id.
The Court comes to the same conclusion now. The Court is
not persuaded by Deputy Taylor’s comparison to Montanez v.
City of Orlando, 678 F. App’x 905, 907 (11th Cir. 2017). In
that case, the Eleventh Circuit held that a dog bite did not
constitute an excessive use of force because “there [was] no
evidence that [the officer] commanded or even willfully
allowed [the dog] to bite [the plaintiff].” Id. at 912. The
court continued, “To hold [the officer] liable, [the

plaintiff] must identify an intentional action that [the
officer] took or something that he should have done but
intentionally did not do to protect [the plaintiff].” Id.
Here, as the Court noted at the motion to dismiss stage,
Ms. Hope establishes an intentional deployment of Niko. Hope,
2020 WL 1677315, at *4. It is undisputed that Deputy Taylor
meant to release Niko from a police vehicle in order to pursue
three fleeing suspects. (Doc. # 43-2 at 17:2-17). Upon
release, Deputy Taylor gave Niko the “engage” command to
“apprehend . . . the people that were running.” (Id.). Even

if Ms. Hope was not the intended target of this command, her
“freedom to leave was terminated by [Deputy Taylor’s]
intentional release of his dog [into the neighborhood].”
Hope, 2020 WL 1677315, at *4. Ms. Hope has thus established
a seizure for the purposes of the Fourth Amendment.
iii. Was Ms. Hope’s Seizure Unreasonable?
Under Graham, courts must determine the “objective
reasonableness” of a seizure by balancing the “nature and
quality of the intrusion” against the “countervailing
governmental interest at stake.” 490 U.S. at 396. Such a test
does not look to an officer’s motivation or intent, but rather
asks if a reasonable officer would have taken the same action

under the same circumstances. Trammell v. Thomason, 559 F.
Supp. 2d 1281, 1290 (M.D. Fla. 2008), aff’d in part, rev’d in
part and remanded, 335 F. App’x 835 (11th Cir. 2009).
The Supreme Court has recognized that the “right to make
an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat
thereof to effect it.” Graham, 490 U.S. at 396. Thus, in
determining whether an officer’s use of force was objectively
reasonable, the court must consider several factors
including: “(1) the need for the application of force, (2)

the relationship between the need and the amount of force
used, (3) the extent of the injury inflicted and (4) whether
the force was applied in good faith or maliciously or
sadistically.” Slicker v. Jackson, 215 F.3d 1225, 1232–33
(11th Cir. 2000).
A court should also consider the Graham factors: (1) the
underlying crime’s severity, (2) whether the suspect poses an
immediate threat to the safety of the officers or others; and
(3) whether the suspect actively resists arrest or attempts
to flee. 490 U.S. at 396.
1. Initial Deployment
Both parties agree that on the day in question, Deputy

Taylor noticed a black Ford with tags matching a vehicle
listed as stolen. (Doc. # 43-2 at 12:20-13:9, 14:11-13). When
Deputy Taylor circled around to report the car, the driver
quickly drove off. (Id. at 14:25-15:14). Deputy Taylor
followed the car until it stopped in front of a residence, at
which point Deputy Taylor witnessed three suspects flee the
vehicle and take off running. (Id. at 16:4-17:17).
Deputy Taylor did not have an opportunity to search the
three suspects for weapons before they fled. (Id. at 16:18-
17:5). Although Deputy Taylor called in the information to
dispatch, other officers did not “really have a chance to get

[to the scene] by the time [anything] happened.” (Id. at
12:10-12). Deputy Taylor thus had to initiate pursuit
quickly, without any sort of perimeter ensuring the suspects
would be caught. (Id. at 12:10-12, 15:1-11). This is precisely
the sort of tense, uncertain, and rapidly evolving situation
the Eleventh Circuit contemplated in Graham. 490 U.S. 386,
397. The Court must make allowances for the fact that Deputy
Taylor was forced to make a split-second judgment while
pursuing three fleeing suspects. Id. at 396–97.
Accordingly, based on Graham and other relevant
authority, the Court finds that Deputy Taylor’s initial
release of Niko to pursue three suspects did not constitute

an excessive use of force under the circumstances. Id.; see
also Crenshaw v. Lister, 556 F.3d 1283, 1292-93 (11th Cir.
2009) (finding it objectively reasonable for a police officer
to use a canine to pursue a fleeing suspect he reasonably
believed was armed); Chatman v. Navarro, No. 14-CV-62793,
2016 WL 9444164, at *6 (S.D. Fla. July 1, 2016) (finding the
initial release of a police dog reasonable where suspect was
fleeing, officers did not have chance to search suspect for
weapon, and suspect was intentionally hiding from police).
The Court makes this finding regardless of whether
Deputy Taylor provided a warning to the suspects or the

neighborhood before releasing Niko. See Trammell v. Thomason,
335 F. App’x 835, 842 (11th Cir. 2009) (noting that there is
Fourth Circuit case law finding a constitutional violation
where a police dog was released without an adequate warning,
but holding that there is no equivalent case in the Eleventh
Circuit); Crenshaw, 556 F.3d at 1292 n.6 (finding that in the
case of a fleeing felon who “had shown anything but an
intention of surrendering,” police “acted reasonably in not
alerting Crenshaw that he had a canine”). Deputy Taylor is
therefore entitled to qualified immunity regarding his
initial decision to let Niko off his lead.
2. Continued Use of Niko

There remains, however, a separate question regarding
the continued use of K–9 force against Ms. Hope (i.e., whether
Niko should have been called off sooner than he was). Ms.
Hope claims that Deputy Taylor intentionally refrained from
recalling Niko until after the dog latched onto her arm and
injured her. (Doc. # 43 at 15; Doc. # 49 at 10, 12; Doc. #
43-11 at 5). According to Ms. Hope, no reasonable officer
would have allowed Niko to bite her and continue to bite her
for two to five minutes; therefore, Taylor violated her Fourth
Amendment by failing to intervene earlier. (Doc. # 49 at 11).
The Eleventh Circuit has noted: “[Priester v. City of

Riviera Beach, Fla., 208 F.3d 919 (11th Cir. 2000)]
establishes that, under certain circumstances, failure to
intervene in a dog attack is an obvious use of excessive
force.” Trammel, 335 F. App’x at 843.
The Court analyzes this issue separately from the
reasonableness of Niko’s initial deployment. See Chatman,
2016 WL 9444164, at *6 (finding an officer’s initial
employment of a police dog to be reasonable, but denying
summary judgment because there was a genuine dispute over how
long the officer allowed the dog to bite the plaintiff).
Whether qualified immunity applies to the continued use of
Niko depends on whether Officer Taylor appropriately

intervened to call the dog off of Ms. Hope. See Chatman, 2016
WL 9444164, at *6 (noting that “[w]hether qualified immunity
applies, therefore, depends on resolving the parties’ dispute
over the amount of time [an officer] allegedly allowed [a
dog] to bite [the plaintiff]”). The parties sharply dispute
this issue and offer conflicting testimony on both sides.
Deputy Taylor testified that he issued multiple recall
commands urging Niko to return, used a fuey command to tell
Niko he did not want him to engage with Ms. Hope, and “took
off running” towards Ms. Hope and Niko as soon as Niko bit
down. (Doc. # 43-2 at 33: 1-4, 34:8-11, 35:22-24). According

to Deputy Taylor, he removed Niko as quickly as possible and
the bite lasted no more than five seconds. (Id. at 36:5).
Ms. Hope presents a very different version of events.
According to Ms. Hope’s testimony, Deputy Taylor watched in
silence as Niko lost track of his intended suspect and fixated
instead on Ms. Hope, a woman in her forties (Doc. # 43-1 at
8:16-19, 47:14-11) whom Deputy Taylor “should have known
immediately was not the [young male suspects] for whom he was
searching.” Trammell, 559 F. Supp. 2d at 1294.
Despite Niko’s clear focus on a bystander (evidenced by
the fact that his ears were “up,” indicating he was “targeted”
and “[would] immediately pursue”), Ms. Hope testified that

Deputy Taylor failed to call the dog off with either a recall
or a fuey command. (Doc. # 43-1 at 43:12-24; 47:11-48:11;
94:8-9, 95:2-96:7; Doc. # 43-2 at 31:24-25; Doc. # 43-11 at
5). Absent an instruction to disengage, Niko did exactly what
he was trained to do: “apprehended” Ms. Hope and refused to
let go. (Doc. # 43-1 at 99:2-8).
Even upon realizing that Niko was biting and holding a
bystander, rather than a suspect, Ms. Hope testified that
Deputy Taylor still did not immediately command Niko to
release her. (Doc. # 43-1 at 47:16-48:4, 96:12-22; Doc. # 43-
2 at 35:20-36:3). Rather, taking Ms. Hope’s version of events

as true, Deputy Taylor waited until he physically approached
and grabbed the dog to command him to release. (Doc. # 43-1
at 47:16-48:4, 96:12-22; Doc. # 43-2 at 35:20-36:3).
According to Ms. Hope, this resulted in the bite lasting
two to five minutes. (Doc. # 43-1 at 52:10-17; Doc. # 49-1 at
6). To support this timing, Ms. Hope cites not only her own
deposition, but expert testimony that the severity of the
wound indicates a bite of at least two minutes. (Doc. # 49-1
at 6) (“Niko would not have inflicted [a wound that severe]
if he bit and then quickly released.”).
The Court cannot resolve these evidentiary disputes by
making credibility assessments or weighing evidence.

Anderson, 477 U.S. at 255; Trammell, 335 F. App’x at 844
(reversing a grant of summary judgment on qualified immunity
“[d]espite the fact that Trammel has been unable to put a
precise time frame on the attack” because his testimony was
“sufficient to raise the factual possibility that the attack
continued for some significant length of time”). Were a jury
to credit Ms. Hope’s testimony that Deputy Taylor remained
silent until after Niko engaged, indeed until after he grabbed
Niko minutes later, it could conclude that Deputy Taylor acted
unreasonably by failing to call off Niko sooner. Priester,
208 F.3d at 927; Trammell, 559 F. Supp. 2d at 1295.

Accordingly, there are genuine issues of material fact
surrounding whether and how long Deputy Taylor allowed Niko’s
bite to occur before he intervened. This dispute precludes
summary judgment on the issue of qualified immunity. See
Chatman, 2016 WL 9444164, at *6 (denying summary judgment on
qualified immunity where there was conflicting testimony on
the length of the dog bite); see also Baker v. Cohen, No. 09-
60103-CIV, 2010 WL 3385266, at *14 (S.D. Fla. Aug. 5, 2010),
report and recommendation adopted in part, No. 09-60103-CIV,
2010 WL 3385264 (S.D. Fla. Aug. 26, 2010) (denying summary
judgment on qualified immunity because “based on the record
it appears there are issues of material fact, the existence

of which precludes summary disposition the issue of whether
the K–9 in this case should have been called off earlier than
it was, and whether plaintiff Baker sustained injuries as a
result of failure to remove the dog sooner”).
iv. Was the Right Clearly Established?
The Court turns to the next step in the qualified
immunity analysis, which is to determine whether the right
was “clearly established.” Trammel, 559 F. Supp. 2d at 1294–
95.
In Priester, the Eleventh Circuit denied qualified
immunity to an officer who let a K–9 bite a suspect for a

period of two minutes, during which it was clear that the
suspect did not pose a threat of bodily injury to the officer
and the suspect was not attempting to flee or resist arrest.
208 F.3d at 927. In Edwards v. Shanley, the Eleventh Circuit
summarized Priester in the following way: “Quite simply, []
we held in Priester that it was unconstitutional to subject
a compliant suspect to the ‘eternity’ of two minutes of dog
attack.” 666 F.3d 1289, 1298 (11th Cir. 2012). The court
continued that it was similarly unconstitutional to subject
a compliant suspect to a longer attack of five to seven
minutes, “especially where that suspect is pleading for
surrender.” Id.

Therefore, at the time of Niko’s bite, “clearly
established federal law prohibit[ed] the police from
subjecting a compliant subject who is attempting to surrender
to a lengthy dog attack.” Id.
v. Conclusion
In sum, Deputy Taylor’s Motion is granted in part and
denied in part. Deputy Taylor is entitled to qualified
immunity for his initial decision to release Niko in pursuit
of the suspects. However, a genuine dispute of material fact
exists regarding whether Deputy Taylor should have intervened
earlier. A reasonable jury could conclude that Deputy Taylor

purposefully permitted the bite to go on longer than
necessary, constituting excessive force. The existence of
this dispute precludes summary judgment on the issue of
whether Niko should have been called off earlier than he was,
and whether Ms. Hope sustained injuries as a result of failure
to remove the dog sooner.
Count I will accordingly proceed to trial, but is limited
to the claim Deputy Taylor used excessive force by failing to
call off Niko once he realized Ms. Hope was not a suspect.
B. Sheriff Wells’s Motion
Sheriff Wells moves for summary judgment on Count II of
the amended complaint, which is the Monell claim against him

in his official capacity as Sheriff of Manatee County. (Doc.
# 44). Sheriff Wells argues that the Monell claim fails
because Ms. Hope cannot demonstrate an underlying
constitutional deprivation, and even if she did, Ms. Hope
cannot demonstrate that the Sheriff’s Office’s policies were
the moving force behind her injuries. (Id. at 9, 13). The
Court agrees with the latter argument.
The Court has already determined that Deputy Taylor’s
initial deployment of Niko was not an excessive use of force
under the circumstances. Therefore, Ms. Hope’s Monell claim
based on Niko’s initial deployment must fail as a matter of

law. See Knight ex rel. Kerr v. Miami-Dade Cty., 856 F.3d
795, 821 (11th Cir. 2017) (noting that “there can be no policy
based liability or supervisory liability when there is no
underlying constitutional violation”). Furthermore, even if
a jury were to find that Deputy Taylor’s continued use of
Niko constituted excessive force, Ms. Hope cannot establish
that an official policy or unofficial custom caused Deputy
Taylor to prolong Niko’s bite.
The Supreme Court has placed strict limitations on
municipal liability under Section 1983. Grech v. Clayton
Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). Liability
may not be based on the doctrine of respondeat superior.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Instead, liability may only attach when an official policy
causes a constitutional violation. Id.
“A plaintiff, like [Ms. Hope], has two methods by which
to establish a county’s policy: identify either (1) an
officially promulgated county policy or (2) an unofficial
custom or practice of the county shown through the repeated
acts of a final policymaker for the county.” Grech, 335 F.3d
at 1329 (citations omitted). “Regardless of whether the basis
of the claim is an officially promulgated policy or an

unofficially adopted custom, it must be the ‘moving force
behind the constitutional deprivation before liability may
attach.’” Fundiller v. City of Cooper City, 777 F.2d 1436,
1442 (1985) (internal citation omitted).
i. Officially Promulgated Policy
No Manatee County Sheriff’s Office policy authorizes the
use of a K-9 to bite an innocent bystander. (Doc. # 44-3 at
¶¶ 8-9; Doc. # 44-5 at 4-5). Nor is there a policy allowing
an officer to continue a K-9 attack on a bystander he comes
to realize is innocent. (Doc. # 44-3 at ¶¶ 8-9; Doc. # 44-5
at 4-5). Instead, Ms. Hope argues that the Sheriff’s Office’s
policy of using the “bite and hold” method, rather than the

“find and bark” method, was the “moving force behind K9 Niko’s
prolonged attacks on innocent bystanders.” (Doc. # 43 at 17).
The Eleventh Circuit has recognized the
constitutionality of using police dogs trained in the bite
and hold method. Kerr v. City of W. Palm Beach, 875 F.2d 1546,
1554 (11th Cir. 1989); see also Pace v. City of Palmetto, 489
F. Supp. 2d 1325, 1333 (M.D. Fla. 2007) (“The bite and hold
training method is not unconstitutional. Nor is it
objectionable [or] unreasonable.” (citing Kerr, 875 F.2d at
1550)), aff’d sub nom. Pace v. Ahler, 282 F. App’x 769 (11th
Cir. 2008). Other circuits have reached similar conclusions.

See Jarrett v. Town of Yarmouth, 309 F.3d 54, 63 (1st Cir.
2002) (noting “there is no case that has held [bite and hold]
policies to be unconstitutional”); Kuha v. City of
Minnetonka, 365 F.3d 590, 600 (8th Cir. 2003) (holding that
“the mere use of a police dog trained to bite and hold does
not rise to the level of a constitutional violation”),
abrogated on other grounds.
Nonetheless, Ms. Hope argues that the Eleventh Circuit’s
decision in Trammel compels a different result. (Doc. # 50 at
6). In Trammel, the Eleventh Circuit reversed summary
judgment on the issue of qualified immunity because the
plaintiff “raise[d] the factual possibility that [a police

dog] attack continued for some significant length of time.”
335 F. App’x at 844. The Eleventh Circuit held, “If a jury
[were to conclude] that [an officer] failed to stop [a dog
attack] promptly after they became aware that [the victim]
was not the suspect, Priester compels the conclusion that
[the officer] engaged in an obvious violation of [the
victim’s] rights.” Id.
Ms. Hope argues that it is “clear from [the Trammel
court’s] ruling that a failure to remove a police dog
promptly, will result in a violation of the constitutional
rights of a bite victim.” (Doc. # 50 at 6). Since the bite

and hold method “leads to the inability of an officer to
remove the police dog promptly,” Ms. Hope argues that the
policy is per se unconstitutional. (Id.).
The Court disagrees. Because Trammel is an unpublished
opinion, it is not binding on this Court. United States v.
Rodriquez–Lopez, 363 F.3d 1134, 1138 n. 4 (11th Cir. 2004).
Rather, Kerr remains the controlling precedent on the bite
and hold method in the Eleventh Circuit, and under Kerr the
mere use of the method does not establish an unconstitutional
policy. 875 F.2d at 1554.
Even as a persuasive authority, Trammel does not suggest
that the mere use of the bite and hold method is

unconstitutional. In Trammel, the Eleventh Circuit noted that
“under certain circumstances, failure to intervene in a dog
attack” constitutes excessive force. 335 F. App’x at 843
(emphasis added). But the bite and hold method does not
inherently prevent an officer from intervening to stop a dog
bite. Id. at 844. Nothing in Trammel indicates that an officer
who promptly intervenes, but struggles to remove his dog due
to the bite and hold method, has engaged in unconstitutional
behavior. Id. Therefore, under both the binding authority of
Kerr and the persuasive authority of Trammel, the mere use of
the bite and hold method does not establish an

unconstitutional policy. Id.; 875 F.2d at 1554.
Ms. Hope also makes a brief argument that the Sheriff’s
Office does not require its dogs to wear “e-collars” (devices
worn by dogs used to discourage negative behavior), and the
“lack of a mandatory e-collar on police dogs is the moving
force behind constitutional violations like the one [Ms.
Hope] suffered.” (Doc. # 50 at 6-7). Ms. Hope does not provide
any case law to support the proposition that the Fourth
Amendment requires officers to utilize e-collars, or indeed
any particular equipment. To the extent Ms. Hope is arguing
that the lack of a mandatory e-collar policy contributes to
a widespread custom of using dogs to effect unconstitutional

seizures, the Court addresses that issue below.
ii. Unofficial Custom
Since Ms. Hope does not establish an unconstitutional
policy, to survive summary judgment she must establish a
widespread custom of Manatee County Officers using their dogs
in an unconstitutional way. She fails to do so.
Ms. Hope’s only evidence of a widespread
unconstitutional practice is (1) a list of Niko’s previous
deployments from the Manatee County Sherriff’s Office and (2)
an incident report recounting Niko’s inadvertent bite of a

bystander in 2018. (Doc. # 50-1; Doc. # 43-9).
Although these records reveal that some of Niko’s bites
were severe, and that Niko had to be removed from most
suspects by physical force, Ms. Hope fails to show how these
incidents involved constitutionally excessive force. She does
not provide any evidence indicating the handlers in these
cases intentionally prolonged Niko’s bite or failed to
promptly call Niko off, as she accuses Deputy Taylor of doing.
See Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir.
1998) (holding that a plaintiff could not establish a Monell
claim when he could not point to any other incidents involving
similar facts). Even when Niko bit a bystander in 2018, the

evidence indicates his handler quickly intervened to remove
him. (Doc. # 43-3 at 3-4).
Ms. Hope must point to factually similar scenarios in
order to establish a widespread custom. See Mercado v. City
of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005) (upholding
dismissal of a Monell claim where plaintiff “was given a list
of all cases involving excessive force, but [could not] show
that any of them involved factual situations that [were]
substantially similar to the case at hand”). A list of Niko’s
previous bites, without more, does not show that any of these
bites involved excessive force. See Adams v. Custer, No. 14-

CV-80403-CIV, 2016 WL 155081, at *19 (S.D. Fla. Jan. 12, 2016)
(holding that without any sort of “statistical context or
expert explanation, the plaintiff’s statistical evidence of
prior police-involved shootings and complaints of excessive
force is insufficient as a matter of law to sustain a custom
and practice claim under Monell against the Sheriff”), aff’d
sub nom. Adams v. Sheriff of Palm Beach Cnty., 658 F. App’x
557 (11th Cir. 2016).
Absent any context, testimony, or evidence indicting
these situations were factually similar to Ms. Hope’s bite,
a jury could not reasonably find that the Sheriff’s Office
had a widespread custom of either allowing dogs to bite

bystanders or prolonging dog bites in violation of the Fourth
Amendment. See Samarco v. Neumann, 44 F. Supp. 2d 1276, 1290
(S.D. Fla. 1999) (finding that a list of incidents where other
suspects were seriously injured by police dogs was not enough
“to convince a reasonable jury that the Sheriff’s Office had
a custom of depriving persons of their Fourth Amendment
rights”); cf. Shehada v. Tavss, 965 F. Supp. 2d 1358, 1374
(S.D. Fla. 2013) (finding that a list of complaints against
officers did not establish a practice of deliberate
indifference “the Plaintiff must present at least some
evidence from which a reasonable jury could infer that the

complaints were meritorious”). Sheriff Wells’s Motion is
accordingly granted.
C. Ms. Hope’s Motion
In Ms. Hope’s Motion, she seeks summary judgment on
Counts I and II of the amended complaint. (Doc. # 43).
Regarding Count I, the Court has already held that Deputy
Taylor is entitled to qualified immunity regarding his
initial decision to let Niko off his lead. Therefore, this
portion of Ms. Hope’s Motion is denied.
Furthermore, the Court has also held that there is a
genuine dispute of material fact surrounding the
circumstances of Niko’s bite. If a jury were to credit Deputy

Taylor’s testimony that he recalled Niko and pulled him off
within five seconds, it could reasonably conclude that no
excessive use of force occurred. Ms. Hope’s Motion is
accordingly denied as to the remainder of Count I, as there
are genuine factual disputes that require resolution by a
jury. See Anderson, 477 U.S. at 255 (noting that
“[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge”).
Regarding Count II, the Court has already found it proper
to grant summary judgment in favor of Sheriff Wells.

Therefore, this portion of Ms. Hope’s Motion is also denied.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Austin Taylor’s Motion for Summary Judgment
(Doc. # 46) is GRANTED IN PART AND DENIED in part. Deputy
Taylor is entitled to qualified immunity for his initial
decision to release Niko. The Motion is denied to the
extent Ms. Hope alleges Deputy Taylor used excessive
force by failing to call off Niko once he realized Ms.
Hope was not a suspect.
(2) Defendant Charles Richard Wells’s Motion for Partial
Summary Judgment (Doc. # 44) is GRANTED. Summary

judgment is granted in favor of Sheriff Wells as to Count
II.
(3) Plaintiff Elizabeth Diane Hope’s Motion for Summary
Judgment (Doc. # 43) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
23rd day of February, 2021.

VIR IA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106933. Public record. Not legal advice.