Melgar Ex Rel. Melgar v. Greene

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSE R. MELGAR, parent and 

guardian of Oscar Melgar,

Plaintiff-Appellee,

v.  No. 08-2393

JOHN GREENE, Officer;

MONTGOMERY COUNTY, MARYLAND,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, Senior District Judge.

(8:07-cv-02988-PJM)

Argued: October 29, 2009

Decided: January 29, 2010

Before WILKINSON, MICHAEL, and AGEE,

Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkin-

son wrote the opinion, in which Judge Agee joined. Judge

Michael wrote a separate opinion dissenting in part and con-

curring in part.

COUNSEL

ARGUED: William Antoine Snoddy, OFFICE OF THE

COUNTY ATTORNEY FOR MONTGOMERY COUNTY,

2 MELGAR v. GREENE

MARYLAND, Rockville, Maryland, for Appellants. Terrell

Roberts, ROBERTS & WOOD, Riverdale, Maryland, for

Appellee. ON BRIEF: Leon Rodriguez, County Attorney,

Marc P. Hansen, Deputy County Attorney, Edward B. Latt-

ner, Chief, Division of Human Resources & Appeals,

OFFICE OF THE COUNTY ATTORNEY FOR MONT-

GOMERY COUNTY, MARYLAND, Rockville, Maryland,

for Appellants.

OPINION

WILKINSON, Circuit Judge:

In this case, we address the Fourth Amendment claim of a

lost and intoxicated thirteen-year-old boy who was acciden-

tally bitten by a police patrol dog used by an officer to find

him. The boy’s father, Appellee Jose Melgar, sued the canine

officer under 42 U.S.C. § 1983 and sued the officer and the

police department under Article 26 of the Maryland Declara-

tion of Rights. While we cannot accept the officer’s conten-

tions on the merits of plaintiff’s Fourth Amendment claim, we

do think he is entitled to qualified immunity in this case. As

to the state claim, we remand for dismissal without prejudice

to plaintiff’s right to proceed in state court.

I.

Around 7:00 p.m. on the night of March 17, 2006, Oscar

Melgar, then thirteen years old, learned about a birthday party

from his friend, Brian Bentacur. Oscar received permission

from his mother to go to the party with Brian, and Brian’s

mother agreed to take the boys. The party was in Gaithers-

burg, Maryland, approximately thirty minutes from Oscar’s

home in Rockville, Maryland.

Brian’s mother picked up Oscar around 8:15 p.m., and the

boys arrived at the party around 8:45 p.m. Approximately

MELGAR v. GREENE 3

thirty minutes after the boys arrived, an older youth, who was

about seventeen years old, started pouring mixed alcoholic

beverages of rum and cola. The beverages were served in

eight-ounce cups. Oscar knew he was being served alcohol,

although he had never had a drink before. Within ten minutes

of his first drink, Oscar consumed two additional eight-ounce

rum and colas. He began to feel the effects of the alcohol in

the middle of his third drink but still finished it.

Brian also was drinking, and one of the girls at the party

complained that he was becoming "too touchy." Oscar was

told to take Brian outside to "walk it off."

The outside temperature was in the upper thirties or lower

forties, and even Oscar later admitted that it was cold. Oscar

was wearing jeans and had a green warm-up jacket over his

shirt. Brian wore jeans but only had on a long sleeved shirt.

The boys started walking, intending to circle the block, but

they were not familiar with the neighborhood and got lost. As

they walked, Oscar could feel the effects of the alcohol grow-

ing stronger, and Oscar testified that Brian also appeared to

be growing increasingly intoxicated.

The two boys eventually sat down on a lawn. Oscar had a

phone but wanted to sober up before calling Brian’s mother

to pick them up. After sitting on the lawn for a few minutes,

Oscar saw a man walking a dog approaching. Oscar, who

admits he was drunk and not thinking straight by this point,

got up and walked away. He crossed the street, headed down

a sidewalk, and eventually crossed a lawn toward a home,

where he passed out under a holly bush. He stated that he

went under the bush "so nobody could see me drunk." His last

recollection was "getting cold, and trying to get warm."

Around 10:40 p.m., Jessica and Michael Sommerville were

walking together when they discovered Brian Betancur lying

on the ground. Ms. Sommerville testified that she saw another

4 MELGAR v. GREENE

boy stumble away from Brian as they approached. Ms. Som-

merville did not recognize Brian, and she began to question

him. She testified that Brian did not appear to be aware of the

cold weather, even though he was only wearing a tee shirt. In

addition, his speech slurred at times during their conversation,

although at other times it was clear. Because the situation

appeared unusual, Mr. Sommerville called 911 and reported

finding a boy lying on the ground.

Both paramedics and the Montgomery County Police

Department responded to the call. Officer Todd Uvary, the

first officer to respond, saw that Brian Betancur "was

extremely intoxicated" and had vomited and urinated on him-

self. He was told by paramedics that Brian was suffering from

hypothermia and a possible alcohol overdose. Both Sommer-

villes told the police about the other boy they had seen, and

Ms. Sommerville described his clothes. She also told the

police that he stumbled away and sounded like he was vomit-

ing, although Oscar later denied being sick. Officer Uvary

communicated this information to the next two officers to

arrive, Officers Holland and Camp. Concerned about the pos-

sibility that another intoxicated, lightly clothed boy could be

outside, the three officers circled the neighborhood for

approximately twenty minutes, using spotlights mounted on

their cars to look in yards. At least one officer also got out of

his car with a flashlight and looked in back yards.

As the officers were unsuccessful in the initial search, Offi-

cer Camp called a sergeant for advice and was told that it

would be acceptable to bring a canine unit to the scene. Offi-

cer Camp called one of the appellants, John Greene, who was

dispatched at 11:27 p.m. When Greene arrived, the other offi-

cers told him that Oscar was last seen approximately an hour

earlier and that they had already made an unsuccessful search

on foot and by car. Greene also was told that Brian had been

taken by ambulance to the hospital for possible alcohol poi-

soning and hypothermia.

MELGAR v. GREENE 5

Greene decided to use his patrol dog, Carter, an animal

trained to find individuals and to bite them when he came in

contact, to make a quick search for the missing boy. While

Greene normally would have used a bloodhound to perform

such a search, his bloodhound was out of service with a knee

injury. Because the police department’s other bloodhound was

off duty, Greene estimated it would have taken approximately

another hour for it to respond. Additionally, because no scent

item was available, a bloodhound search would have been dif-

ficult even if one had been available.

Greene also evaluated several other factors in reaching his

decision. He considered that there was no definitive evidence

that anyone was actually missing or endangered. However, if

anyone was in fact missing, the cold weather, the presumed

intoxication, and the elapsed time were all of serious concern.

Greene also realized that no criminal suspect attempting to

evade capture was involved, making it likely that he would

see anyone before a dog got close enough to bite.

After deciding to use Carter to search, Greene put the dog

on a fifteen foot lead. He did not muzzle Carter, and there is

a factual dispute as to whether a muzzle would have signifi-

cantly limited Carter’s tracking ability.

Greene took Carter to the last point where Oscar was

reported seen and commanded Carter to "track." Carter cast

about looking for a scent and then began to track down the

sidewalk. Greene began to call out to Oscar, saying he was

there to help and to take him home. Oscar states he never

heard anyone, but the district court gave no credence to his

assertions because it recognized Oscar was inebriated and not

in a condition to hear. After tracking a short distance down

the sidewalk, Carter turned sharply across a yard and went

into a holly bush where Greene could no longer see him.

Greene did not interpret the turn as indicating that anyone was

close. The lead went slack, and only then did Greene realize

that Carter had found Oscar, who was asleep. By the time

6 MELGAR v. GREENE

Greene realized what was happening, the dog had already bit-

ten Oscar’s lower right leg.

Greene testified that he did not verbally call Carter off

because Oscar was struggling, and Greene was concerned that

if the dog released he might re-bite Oscar’s face. Instead,

Greene walked up the leash and physically removed the dog.

While this was happening, the dog pulled Oscar some five or

six feet. The parties dispute whether Greene pulled on the

dog.

The parties also disagree about whether Oscar struggled;

Green says that Oscar tried to pull his leg away from the dog,

while Oscar claims he held still. Oscar claims that Carter bit

him for fifteen or twenty seconds before he was removed. At

some point during this time, Carter of his own accord released

his grip momentarily and then bit Oscar a second time. Oscar

suffered two lacerations on his lower right leg just above the

ankle, one approximately 4.25 inches and the other 1.5 inches

long.

Oscar’s father, Jose Melgar, filed suit as Oscar’s parent and

guardian against defendants Officer Greene and Montgomery

County, Maryland. Melgar alleged under 42 U.S.C. § 1983

that Greene violated Oscar’s Fourth Amendment rights and

raised a similar claim against Greene and Montgomery

County under Article 26 of the Maryland Declaration of

Rights. Two other claims were voluntarily dismissed and are

not at issue here. Following discovery, defendants moved for

summary judgment. The district court denied the motion,

holding that a seizure "debatably" took place. It also declined

to determine whether Greene’s actions were reasonable under

the Fourth Amendment or Maryland Declaration of Rights but

noted that the issue was not appropriate for summary judg-

ment. Finally, the district court declined to grant Officer

Greene qualified immunity, and defendants timely appealed.

MELGAR v. GREENE 7

II.

A district court’s denial of qualified immunity is reviewed

de novo. Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003).

Following the Supreme Court’s recent decision in Pearson v.

Callahan, 129 S. Ct. 808, 821 (2009), we exercise our discre-

tion to use the two-step procedure of Saucier v. Katz, 533

U.S. 194 (2001), that asks first whether a constitutional viola-

tion occurred and second whether the right violated was

clearly established. At the summary judgment stage, this court

draws inferences in the light most favorable to the plaintiff.

Waterman v. Batton, 393 F.3d 471, 473 (4th Cir. 2005).

In this case, we address a narrow and specialized Fourth

Amendment problem. We are not dealing with the use of a

canine to track someone who is guilty of a serious criminal

offense. Likewise, this was not a hunt for someone who could

pose a threat to the community, nor was the person being

sought an adult. Rather, we are dealing with a juvenile, and

one, moreover, who was on foot and not in a car. Although

underage drinking was involved, the facts of the case mark it

as more of a search for a missing person than for any criminal

at large.

The ground rules for this sort of specialized undertaking

have not been sketched by courts in any kind of detail, and

Greene argues that the district court misinterpreted the Fourth

Amendment in two ways. First, he asserts that no seizure

occurred because he did not terminate Oscar’s freedom of

movement through means intentionally applied. See Brower v.

County of Inyo, 489 U.S. 593, 597 (1989). Second, Greene

argues that even if a seizure occurred, his actions were objec-

tively reasonable based on the circumstances known to him at

the time and did not constitute excessive force. We address

these arguments in turn.

A.

As a preliminary matter, we must decide whether a seizure

occurred. Officer Greene claims that he did not seize Oscar

8 MELGAR v. GREENE

with his dog because he did not intend to have Carter bite

Oscar. Br. of Appellants 15. While we have no doubt that the

bite was unintended, we nevertheless agree with the district

court that Oscar was seized. We have noted that a seizure

occurs even if officers "purposely detain a person under the

mistaken impression that he is someone else," Vathekan v.

Prince George’s County, 154 F.3d 173, 178 (4th Cir. 1998),

and it similarly follows that a seizure occurs if police pur-

posely detain a person but somehow use more force than

intended.

The Supreme Court has explained that a Fourth Amend-

ment seizure requires "an intentional acquisition of physical

control" which occurs "only when there is a governmental ter-

mination of freedom of movement through means intention-

ally applied." Brower v. County of Inyo, 489 U.S. 593, 596,

597 (1989) (emphasis in original). It has also explained that

"a seizure occurs if ‘in view of all the circumstances sur-

rounding the incident, a reasonable person would have

believed that he was not free to leave.’" Brendlin v. Califor-

nia, 551 U.S. 249, 255 (2007) (citing U.S. v. Mendenhall, 446

U.S. 544, 554 (1980) (Stewart, J., writing for a plurality)).

A government actor need not, however, seize an individual

in the precise manner intended. As the Supreme Court put it

in Brower v. County of Inyo:

[W]e cannot draw too fine a line, or we will be

driven to saying that one is not seized who has been

stopped by the accidental discharge of a gun with

which he was meant only to be bludgeoned, or by a

bullet in the heart that was meant only for the leg.

We think it enough for a seizure that a person be

stopped by the very instrumentality set in motion or

put in place in order to achieve that result.

489 U.S. at 598-99 (emphasis added). It is sufficient that "the

detention is ‘willful’ and not merely the consequence of ‘an

MELGAR v. GREENE 9

unknowing act.’" Brendlin, 551 U.S. at 254 (citing Brower,

489 U.S. at 596). In other words, so long as the instrumental-

ity is intended, a seizure occurs even if the degree of the

instrumentality’s effectiveness was unanticipated.

In the present case, Officer Greene specifically used his

dog to locate and stop Oscar. As such, Oscar was seized "by

the very instrumentality set in motion . . . to achieve that

result." Brower, 489 U.S. at 599. The fact that the seizure did

not occur in quite the manner Officer Greene had envisioned

does not change this fact, especially since Carter was trained

to bite any individual he found when tracking.

It is true that the focus of Officer Greene’s actions was on

finding a missing and potentially endangered person, but there

was also an element of criminality involved due to the possi-

bility that Oscar had engaged in underage drinking. See Md.

Code, Crim. Law, § 10-114 (prohibiting consumption of alco-

hol by individuals under 21); Md. Code, Crim. Law, § 10-117

(prohibiting service of alcohol to individuals under 21).

Although there is every reason to believe that Greene’s pri-

mary purpose was to help Oscar, the underlying alcohol con-

sumption is sufficient to bring the actions of Officer Greene

within the ambit of the Fourth Amendment and to support a

finding that there was a seizure.

This is not the case of County of Sacramento v. Lewis,

where no seizure occurred when police chasing a motorcycle

accidentally ran over and killed the motorcycle’s passenger.

523 U.S. 833 (1998). The Supreme Court explained that

"where a ‘pursuing police car sought to stop the suspect only

by the show of authority represented by flashing lights and

continuing pursuit,’ but accidentally stopped the suspect by

crashing into him," id. at 844 (quoting Brower, 489 U.S. at

597), there was no "governmental termination of freedom of

movement through means intentionally applied." Id. (empha-

sis in original). In other words, the pursuit in Lewis was

intended to bring about a stop by inducing the suspect to pull

10 MELGAR v. GREENE

over voluntarily, but police did not expect to physically

restrain the suspect by hitting him with a police cruiser. In

contrast, Officer Greene chose to use a dog conditioned to

bite its target when found and thus cannot claim that there

was no seizure when the dog he set in motion behaved exactly

as it was trained to do.

B.

Moving to the issue of excessive force under the Fourth

Amendment, Greene argues that he was entitled to judgment

as a matter of law because his decision to use a patrol dog to

locate a possible missing person was objectively reasonable

under the circumstances known at the time. While we appreci-

ate the difficult situation in which the officer found himself,

we cannot say as a matter of law that no constitutional viola-

tion occurred.

1.

It is well-established that "all claims that law enforcement

officers have used excessive force . . . should be analyzed

under the Fourth Amendment and its ‘reasonableness’ stan-

dard." Graham v. Connor, 490 U.S. 386, 395 (1989) (empha-

sis in original), including claims that police canines were

improperly deployed. Vathekan v. Prince George’s County,

154 F.3d 173, 178 (4th Cir. 1998). Reasonableness is evalu-

ated from the officer’s perspective, Rowland v. Perry, 41 F.3d

167, 173 (4th Cir. 1994), in recognition of the fact that offi-

cers cannot be expected to respond to information they did not

possess at the time they acted.

Police are often forced to make split-second decisions, a

factor which bears upon the reasonableness of their responses.

Graham, 490 U.S. at 396-97. But even when split-second

determinations are not involved, time constraints are still rele-

vant to reasonableness determinations. Waller v. City of Dan-

ville, 556 F.3d 171, 175 (4th Cir. 2009). In this case, Officer

MELGAR v. GREENE 11

Greene did not face the time pressures present in the pursuit

of armed criminals, see, e.g., Kopf v. Wing, 942 F.2d 265, 266

(4th Cir. 1991), but he nevertheless reasonably believed he

faced a ticking clock and the prospect of serious harm to the

boy due to Oscar’s presumed intoxication and exposure to the

elements.

2.

Greene argues that his actions were objectively reasonable

in light of a number of factors. He notes that he was sum-

moned to assist a search late at night for a lightly clad, intoxi-

cated teenager in cold weather. Greene knew that the

individual had not been seen for an hour and that officers had

already unsuccessfully searched the area in cars and on foot.

He also knew that Brian Betancur, the missing teenager’s

companion, had been taken by ambulance to the hospital with

possible alcohol poisoning and hypothermia.

Additionally, Greene points out that there was no reason to

believe that anyone was actually in danger since police offi-

cers were relying on the statements of Jessica and Michael

Sommerville, who had only briefly seen the missing individ-

ual. Because the person was not eluding pursuit as a criminal

suspect, Greene believed he would likely be out in the open

and visible before a dog could bite him.

Greene also argues that his behavior was objectively rea-

sonable because no scent item was available, making a blood-

hound search difficult. Even if police had a scent item,

Greene’s bloodhound was out of commission due to knee sur-

gery, and it would have taken some time for the department’s

other bloodhound, which was not on duty at the time, to reach

the area. Finally, Montgomery County Police Department

police guidelines allow the use of patrol dogs to search for

missing persons. Given all of these considerations, Greene

argues that his decision to use a patrol dog to locate Oscar

was reasonable, especially when the risk of death from hypo-

12 MELGAR v. GREENE

thermia was weighed against the unlikely possibility in

Greene’s view of a non-lethal dog bite. Br. of Appellants 18-

20.

By any objective measure, then, Greene was in a difficult

position. However, we do not think he is entitled to summary

judgment on the merits of the issue of Fourth Amendment

reasonableness. We recognize that police were searching pri-

marily for a missing person and that canines have a role to

play in such searches because of their keen sense of smell.

Nevertheless, there are several significant factual questions in

this case that make merits resolution of the excessive force

claim inappropriate for summary judgment.

3.

Plaintiff identifies factual disagreements on at least three

important points: the feasibility of muzzling Officer Greene’s

patrol dog, the reasonableness of the length of leash used, and

whether Greene should have recognized from Carter’s actions

that the dog was close to Oscar.

First, the parties disagree about whether the use of a muzzle

would have degraded Carter’s tracking ability to the point

where he would have been unable to perform his job. Officer

Greene testified that his dogs were never trained to track

while muzzled and that a muzzled dog would smell the inside

of the muzzle instead of the scent it was attempting to follow.

Plaintiff’s expert disagreed, however, stating that a muzzle

would have had only minimal impact on the dog’s tracking

abilities and that the failure to use a muzzle exposed Oscar to

an unreasonable risk of being bitten.

Second, it is not clear whether the fifteen foot lead used in

this case was needed or necessary. Greene and plaintiff’s

expert dispute the proper length of leash to be used in search-

ing for missing persons. Greene claims that his use of a fifteen

foot lead was necessary to give Carter sufficient room to cast

MELGAR v. GREENE 13

for scent and to track. The expert for plaintiff believes a

shorter lead was warranted because the longer lead simply

forfeited to too great an extent the officer’s ability to control

the animal. In fact, the length of leash leads appears to vary,

with some officers using a shorter lead than in this case, see

Trammell v. Thomason, 559 F. Supp. 2d 1281, 1284-85 (M.D.

Fla. 2008) (officer used six foot lead to search for fleeing

criminal suspect), and others using longer leashes. See Peter-

son v. City of Federal Way, No. C06-0036RSM, 2007 WL

2110336, at *1 (W.D. Wash. July 18, 2007) (officer used

thirty foot lead to search for hit and run suspect with outstand-

ing arrest warrants). While both of these cases involved seri-

ous criminal activity, they serve to demonstrate that the

reasonableness of a particular lead length may well vary

based on circumstances.

Finally, there is a dispute over when a reasonable officer

should have realized that Carter was close to locating Oscar.

Officer Greene testified that he did not realize that Oscar was

near when his dog reversed course and cut across the yard

right before entering the holly bush where Oscar was lying.

Plaintiff’s expert, however, stated that the shift in course was

significant and that a reasonable officer should have realized

what was occurring.

To reprise: Officer Greene faced a challenging situation

due to nighttime weather conditions, Oscar’s presumed intoxi-

cation, and the ever-lengthening time since Oscar was last

seen. Officers also did not resort to the use of a patrol dog to

locate a missing person until alternatives had been attempted

unsuccessfully. At the same time, there are factual disputes

regarding whether a muzzle, shorter lead, or more attentive

handler could have reduced the likelihood of an injury occur-

ring. The ground rules for such situations are not altogether

clear, but the obvious need is to strike a balance between

locating a missing and possibly endangered individual and

avoiding injury to that person when located. In that regard, we

14 MELGAR v. GREENE

must address whether the import of the above discussion is

one of future applicability or retrospective liability.

III.

Having declined to rule as a matter of law in the first stage

of the Pearson/Saucier analysis, our next question is whether

Officer Greene’s conduct violated clearly established federal

law.

A.

Qualified immunity provides officials with protection

"from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The goal of the doctrine

is to balance two important concerns, first "the need to hold

public officials accountable when they exercise power irre-

sponsibly" and second "the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably." Pearson v. Callahan, 129 S. Ct. 808, 815

(2009). The purpose of the immunity is to allow some room

for discretionary judgment in what are indisputably difficult

circumstances and not to have the prospect of being blind-

sided in hindsight discourage officers from the constructive

tasks they can in fact perform. See Gooden v. Howard

County, 954 F.2d 960, 967 (4th Cir. 1992) (en banc). Thus

officers will not be held liable, even if they violate statutory

or constitutional rights, unless they had prior guidance which

would allow them to determine that their contemplated action

was improper.

While a decision directly on point is not required to put

officials on notice of a "clearly established" right, "[t]he con-

tours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The

MELGAR v. GREENE 15

Supreme Court has cautioned against interpreting clearly

established law too generally for fear of allowing plaintiffs "to

convert the rule of qualified immunity . . . into a rule of virtu-

ally unqualified liability simply by alleging violation of

extremely abstract rights." Anderson, 483 U.S. at 639.

In the present case, plaintiff references two prior decisions

in arguing that Officer Greene’s actions violated clearly estab-

lished law, but their facts are simply not sufficiently similar

to provide prior notice to Officer Greene that his actions were

unreasonable. The decisions, Kopf v. Wing, 942 F.2d 265 (4th

Cir. 1991), and Vathekan v. Prince George’s County, 154

F.3d 173 (4th Cir. 1998), were both cases in which police

dogs were released from their leashes by officers attempting

to apprehend criminal suspects. See Kopf, 942 F.2d at 266

(police released dog in pursuit of armed robbery suspects);

Vathekan, 154 F.3d at 176 (police released dog into home sus-

pected to hide burglar). Those cases cannot fairly be under-

stood as providing near-strict liability on officers any time

they use police dogs. Rather, they must be understood in the

context of the right actually addressed, which was "that fail-

ure to give a warning before releasing a police dog is objec-

tively unreasonable in an excessive force context." Vathekan,

154 F.3d at 179 (emphasis added).

In striking contrast, Officer Greene kept Carter on a leash

at all times and was not pursuing a dangerous criminal but

was attempting to locate a missing person. There is a vast dif-

ference between an officer releasing a dog off a leash know-

ing with a good degree of certainty that it will find and bite

its target and an officer exercising substantial control over a

leashed animal with the expectation of being able to prevent

any injury. Cases addressing the former simply do not provide

sufficient guidance to officers in the latter situation.

Plaintiff also claims that Officer Greene violated clearly

established law by failing to give a verbal warning. This claim

was not even raised below and thus has been waived, see

16 MELGAR v. GREENE

Reply Br. of Appellants 6, but it is also unconvincing. While

the Vathekan and Kopf decisions do establish that a warning

is necessary before releasing a dog, 154 F.3d at 179; 942 F.2d

at 268, this case does not involve that situation. Here, in fact,

the officer expected his control over the animal by means of

the leash would render any warning unnecessary. Moreover,

Officer Greene did indeed call out to Oscar while using his

dog to track. The district court declined to credit Oscar’s

assertion to the contrary, in large part because it recognized

that he was unconscious in an alcohol-induced stupor at the

time. Further, while plaintiff’s expert suggested that a bull-

horn or police car p.a. system should have been used to give

a warning, there is no question that the expert’s opinion does

not reflect established law.

In an attempt to overcome these difficulties, plaintiff argues

that Officer Greene’s actions were professionally incompe-

tent. Br. of Appellee 35. See Malley v. Briggs, 475 U.S. 335,

341 (1986) (qualified immunity "provides ample protection to

all but the plainly incompetent or those who knowingly vio-

late the law"). The only support plaintiff offers for this notion

is a policy and accompanying commentary from the Interna-

tional Association of Chiefs of Police (IACP).

As an initial matter, the opinion of the IACP obviously

does not constitute clearly established law. Further, the

IACP’s policy explicitly allows the use of police canines "to

track missing persons," so long as they "remain on a leash of

sufficient length to provide a reasonable measure of safety to

the subject of the search without compromising the canine’s

tracking abilities."

Even without such explicit authorization, we would be

hard-pressed to say Officer Greene’s actions were contrary to

the IACP’s standards. The language on which appellee relies

merely notes that officers tracking a juvenile should "exercise

. . . care" and "consider alternatives to the deployment of a

canine." These directions simply do not prohibit the use of

MELGAR v. GREENE 17

patrol dogs to find missing juveniles. In essence, the instruc-

tions direct officers to proceed cautiously, and Greene did so.

The uncontroverted evidence is that he considered alternatives

to using his dog; he simply believed them inadequate.

Nor is appellee helped by the IACP’s opinion that police

departments should train their dogs to bark rather than to bite

when they locate the target of a search. Montgomery County

Police Department does have dogs that do not bite. It owned

two bloodhounds in March 2006. Due to no fault of Officer

Greene, one of the bloodhounds was unavailable due to sur-

gery, and the other was far away. Officer Greene made use of

the tools that were available to him on the night in question.

B.

In light of the foregoing principles, we hold that qualified

immunity is appropriate because Officer Greene did not vio-

late clearly established law in his search for a missing boy

who faced serious potential injury. Police officers did not use

a patrol dog as a first resort but rather first attempted a search

without one. They then sought and obtained permission from

their sergeant to call a dog. No bloodhound was available, and

if Greene had waited for the department’s off-duty canine

handler and his bloodhound to be rousted out and brought to

the scene, the police did not even have an item of Oscar’s

clothing to give the dog the scent. Time was not on the offi-

cers’ side. The night was cold, and they were looking for a

teenager who not only was lightly clothed but also whose con-

dition was likely to be exacerbated by potential alcohol poi-

soning. Nor were these concerns illusory, given that officers

knew that another youth had been taken to the hospital earlier

in the evening intoxicated and suffering from exposure.

Operating under these difficult circumstances, Officer

Greene attempted to assist in locating Oscar Melgar before

excessive time elapsed. After weighing the risk of taking

action against the danger of doing nothing, Greene resolved

18 MELGAR v. GREENE

to use the dog that he had available. To mitigate the risk of

injury, he placed the dog on a leash. Because Oscar was not

a fleeing criminal or wanted for a serious crime, Greene

believed he would see Oscar and be able to curb his dog

before any contact occurred. Had Oscar not by his own

admission hidden in a bush due to embarrassment at his intox-

icated state, it is likely Greene’s assumption would have been

correct. Similarly, the district court found that Greene called

out to Oscar as he searched, quite reasonably rejecting

Oscar’s claims that he heard no such warnings in his inebri-

ated state. That a biting occurred is truly unfortunate, but it

was not due to Officer Greene violating clearly established

law.

Something of a postscript may be in order here. As plain-

tiff’s brief notes, on January 30, 2007 a neurologist examined

Oscar’s leg and "found two well healed scars on . . . the right

ankle." Br. of Appellee 11. The doctor’s prognosis was that:

Oscar will have permanent disruption in sensation

around the traumatic scars, and that he will need to

wear an ankle brace to protect the area during all ath-

letic activities indefinitely. Oscar plays soccer for a

team, and he has discomfort in the ankle when he

runs; the affected area of his leg is particularly sensi-

tive when someone kicks it or it is hit by a ball.

Br. of Appellee 12 (paragraph breaks omitted). To repeat, it

is regrettable that anyone was injured, but we will not penal-

ize an officer whose actions in the face of limited time and

uncertain legal principles may well have prevented a far

darker result and conceivably even saved the boy’s life.

IV.

Our resolution of this case on grounds of qualified immu-

nity is not a mere matter of semantics. Rather, it allows plain-

tiff to continue to pursue his state law claim under Article 26

MELGAR v. GREENE 19

of the Maryland Declaration of Rights, while a ruling on the

merits would foreclose that possibility. Article 26 is inter-

preted in pari materia with the Fourth Amendment, see

Mazuz v. Maryland, 442 F.3d 217, 231 (4th Cir. 2006) (abro-

gation on other grounds recognized by Cole v. Buchanan

County School Bd., 328 Fed. Appx. 204, 207 (4th Cir. 2009));

Richardson v. McGriff, 762 A.2d 48, 56 (Md. 2000), but

Maryland’s law of qualified immunity does not similarly track

federal law. As the Maryland Court of Appeals has explained,

"[p]roof that the official acted in objectively reasonable reli-

ance on existing law, which would exempt an official from

liability under § 1983, may be relevant to whether the official

committed a violation [of Maryland law], but it does not pro-

vide an immunity should a violation be found." DiPino v.

Davis, 729 A.2d 354, 371 (Md. 1999).

Nor have the parties briefed the issue of immunity under

Maryland law, with the exception of a single short paragraph

in appellee’s brief. See Br. of Appellee 38. It appears that

"Maryland common law qualified immunity . . . has no appli-

cation in tort actions based upon alleged violations of state

constitutional rights," Lee v. Cline, 863 A.2d 297, 305 (Md.

2004), but Maryland may or may not provide statutory immu-

nity under the Maryland Tort Claims Act, at least with regard

to government officials such as Officer Greene. See id. at 307-

10 (ruling that Maryland Tort Claims Act applies to constitu-

tional torts). Nevertheless, as the parties have not briefed the

issue, and as we have already resolved the federal claim in

this case, we decline to take the further step of deciding the

extent to which immunity may be appropriate under Maryland

law.

V.

We conclude with a brief response to our colleague in dis-

sent. The dissent notes mildly that Oscar Melgar was "at some

risk" and apparently does not share our belief that the officer

may have saved the plaintiff’s life. Post at 26. Perhaps the

20 MELGAR v. GREENE

dissent is right. But perhaps not. The night had far to go when

Oscar was found. It was a cold night to begin with, and tem-

peratures have been known to drop between eleven in the eve-

ning and three or four in the morning. To leave a young boy

with alcohol poisoning and hypothermia lying out in that

environment is to risk tragic consequences, and no reasonable

officer or person would have wished the night to end that

way.

The dissent notes a number of cases in which dogs have

inflicted bites, but that is not the point. For reasons earlier

expressed and due to circumstances beyond his control, the

officer did not have at his disposal the ideal canine. What

alternatives does the dissent contend were available to Officer

Greene, and why does the dissent believe those alternatives

were as effective? What exactly would the dissent have the

officer do? Does the dissent believe a reasonable officer, per-

haps fearing liability, should simply have abandoned Oscar to

his fate? Why would the dissent deny the individual officer

qualified immunity when the plaintiff’s state claim may pro-

ceed against both the public entity and the officer in state

court? Does the dissent suggest that the absence of an ideal

canine is the individual officer’s fault or that the officer

should somehow have financed a full complement of canines

out of his own pocket? Our friend in dissent asks that the

majority take "[b]older action." Post at 27. We ask simply that

a modest respect for this officer’s predicament be accorded

before denying him the immunity that the Supreme Court

states should be available "to all but the plainly incompetent

or those who knowingly violate the law." Malley v. Briggs,

475 U.S. 335, 341 (1986).

We do, of course, recognize that objective reasonableness

is the appropriate standard here, and indeed it is the one we

have applied. The dissent is surely right that "an officer’s

good intentions" do not make objectively unreasonable acts

constitutional. Post at 23. By the same token, however, undis-

puted good intentions should not be used to make an officer

MELGAR v. GREENE 21

a more inviting target for monetary damages. As to this offi-

cer, let it be said that he acted, not perfectly perhaps, in the

lens of leisured hindsight, but that he did the best he could

with what he had. For each of us, that’s not so bad an epitaph.

VI.

For the foregoing reasons, we hold that Officer Greene is

entitled to qualified immunity on plaintiff’s federal claim, and

we remand the case with instructions to dismiss without prej-

udice to plaintiff’s ability to proceed with his state claim in

state court.

REVERSED AND REMANDED

MICHAEL, Circuit Judge, dissenting in part and concurring

in part:

I respectfully dissent from the majority’s decision that Offi-

cer Johnathan Greene is entitled to qualified immunity. An

objectively reasonable police officer would not use a find-

and-bite dog to conduct a hasty and limited search for a miss-

ing thirteen-year-old boy who is highly intoxicated, harmless,

and not wanted for a serious crime. The danger to the boy of

using such a dog was well known long before this case:

With the bite-and-hold technique, K-9 dogs are

trained to bite and hold the suspect until commanded

to release the suspect by the law enforcement K-9

officer. The suspect often struggles to avoid pain,

injury, and arrest, prompting the dog to regrasp and

hold with greater bite force. With this technique, the

K-9 dog continues to bite and hold regardless of

what the suspect does (surrenders, stands still, or

attempts to flee). Injury is almost inevitable.

H. Range Hutson et al., Law Enforcement K-9 Dog Bites:

Injuries, Complications and Trends, 29 Annals of Emergency

22 MELGAR v. GREENE

Med., 637, 638 (1997) (emphasis added). Oscar Melgar was

seriously and permanently injured from the bite, re-bite, and

grip of Officer Greene’s dog. Melgar had a clearly established

Fourth Amendment right to be free from this method of sei-

zure brought about by Officer Greene.

I.

As many cases document, find-and-bite police dogs have

caused serious injury, disfigurement, and even death. See,

e.g., Trammell v. Thomason, 335 Fed. Appx. 835, 836 (11th

Cir. 2009) (victim underwent four operations and was hospi-

talized for eighteen days after police dog repeatedly bit his

throat); Crenshaw v. Lister, 556 F.3d 1283, 1286 (11th Cir.

2009) (police dog bit victim 31 times) Grimes v. Yoos, 298

Fed. Appx. 916, 917 (11th Cir. 2008) (police dog bite caused

victim to lose 30 percent of his arm); Miller v. Clark County,

340 F.3d 959, 961 (9th Cir. 2003) (police dog tore victim’s

skin in "four places above the elbow" and "shredded" the

muscles underneath); Vathekan v. Prince George’s County,

154 F.3d 173, 177 (4th Cir. 1998) (police dog bite put victim

in hospital for six days and caused permanent facial disfigure-

ment); Kopf v. Wing, 942 F.2d 265, 267 (4th Cir. 1991)

(police dog "frightfully mauled" victim and caused "four scalp

lacerations, a fractured skull, and a subdural hematoma");

Robinette v. Barnes, 854 F.2d 909, 911 (6th Cir. 1988) (police

dog bite to victim’s neck caused death); Gibson v. City of

Clarksville, 860 F. Supp. 450, 453 (M.D. Tenn. 1993) (police

dog bite required victim to undergo two surgeries and skin

graft).

Find-and-bite police dogs tend to be larger breeds, weigh-

ing 70 to 90 pounds or more. P.C. Meade, "Police Dog and

Domestic Dog Bite Injuries: What are the Differences?," 37

Injury Extra 395, 399 (2006), available at http://www.

sciencedirect.com. These dogs are taught to inflict forceful

bites using all of their teeth. Id. The force of a trained dog’s

bite is between 1,200 and 2,000 pounds per square inch.

MELGAR v. GREENE 23

Vathekan, 154 F.3d at 177 n.3 (citing Douglas U. Rosenthal,

Note, When K-9s Cause Chaos — An Examination of Police

Dog Policies and Their Liabilities, 11 N.Y.L. Sch. J. Hum.

Rts. 279, 296 (1994)). This amount of force is comparable to

an automobile wheel running over a body part. Miller, 340

F.3d at 962.

Here, a bite injury to Melgar was practically certain. The

unmuzzled dog was on a long, fifteen-foot leash and was

therefore not under reasonable control by Officer Greene.

Indeed, once the dog bit and held the boy’s leg, the officer

was concerned about disengaging the dog before it bit the boy

in the face with a disfiguring grip. As it was, the boy suffered

deep lacerations above the ankle, which left permanent injury

— a disruption of sensory nerves that causes particular dis-

comfort during athletic activities, such as soccer.

II.

For an official’s conduct to violate clearly established law,

a "prior case holding identical conduct to be unlawful is not

required." Vathekan, 154 F.3d at 179. "In evaluating whether

an officer is entitled to qualified immunity on an excessive

force claim, the question is whether a reasonable officer could

have believed that the use of force alleged was objectively

reasonable in light of the circumstances." Id. (internal cita-

tions and quotations omitted). The reasonableness of a "par-

ticular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight." Graham v. Connor, 490 U.S. 386, 396

(1989). The focus is not on the officer’s "underlying intent or

motivation." Connor, 490 U.S. at 397. An "officer’s good

intentions" do not "make an objectively unreasonable use of

force constitutional." Id.

The district court properly concluded that Melgar’s rights

were clearly established by our decision in Kopf, a case in

which a find-and-bite police dog "frightfully mauled" a sus-

24 MELGAR v. GREENE

pect. 942 F.2d at 267. That decision does not, as the majority

asserts, turn on the fact that the dog was released from its

leash. Rather, there was a material factual dispute about the

reasonableness of an officer’s use of a find-and-bite dog to

capture a suspected felon who fled from a vehicle, hid behind

a shed, and may have been armed. Id. at 266. Key factual

issues in dispute included whether the suspect was surrounded

by the police before the dog attacked, whether the suspect

physically resisted the police, and whether the police realized

that the suspect was unarmed. Id. at 268. These factual issues

were important to the determination of whether the dog was

improperly deployed under the circumstances — circum-

stances laden with danger that was not present here. The

police in Kopf were responding to a serious crime, an armed

robbery, and the objective was to arrest the suspect. Id. at 266.

Yet we held that even if "force was necessary to arrest [the

suspect], a reasonable jury could find the degree of force

excessive." Id. at 269.

The district court looked to Kopf as the relevant precedent

rather than Vathekan, which focused on whether the officer

issued a warning before releasing a find-and-bite dog. 154

F.3d at 180. Vathekan, however, was grounded on Kopf which

we capsuled as follows: "In Kopf we held that the improper

deployment of a police dog that mauls the target constitutes

excessive force in violation of the Fourth Amendment." Id. at

179 (citing Kopf, 942 F.2d at 268) (emphasis added). "De-

ployment," of course, refers to the arrangement or use of a

thing or force for a "deliberate purpose." Merriam-Webster’s

Collegiate Dictionary (11th ed. 2007).

Officer Greene deployed his find-and-bite dog in part for

the deliberate purpose of finding Melgar. As the majority rec-

ognizes, a seizure within the meaning of the Fourth Amend-

ment occurred because the method used was "intentionally

applied"; Melgar was seized "by the very instrumentality set

in motion" to terminate his freedom of movement. Brower v.

County of Inyo, 489 U.S. 593, 597, 599 (1989). By the same

MELGAR v. GREENE 25

token, Greene’s deployment of the dog was a deliberate use

of force because he knew that if the dog made physical con-

tact with Melgar, it would bite and hold him.

The district court correctly denied Greene qualified immu-

nity because the facts proffered by Melgar show that the

deployment of a find-and-bite dog amounted to the use of

excessive force. Despite Greene’s futile hope that he could

conduct a controlled, contact-free search for a teenager who

he believed was in danger, his use of an unmuzzled find-and-

bite dog on a long leash to execute this search was objectively

unreasonable. First, Officer Greene was not attempting to find

a fleeing adult who was suspected of committing a serious fel-

ony and might be armed. Although Melgar had illegally con-

sumed alcohol, the search was "primarily for a missing

person," not a criminal suspect, as the majority concedes.

Ante at 12. Melgar was harmless, unarmed, intoxicated, and

lost — not attempting to evade arrest.

Second, Officer Greene’s use of the find-and-bite dog is not

rendered reasonable by his subjective intent to "conduct a

hasty search" and "not to spend a lot of time on [it]." J.A. 174,

176. Greene’s description of a "hasty search" indicates that

the situation did not call for the ultimate in aggressive mea-

sures — the use of a find-and-bite dog — notwithstanding the

chilly temperature. He said that a key purpose of a "hasty

search" is to gather information: "environmental information,

information about the missing person, place last seen, et

cetera." J.A. 175. He recognized that there were obvious risks

in using a find-and-bite dog to conduct a hasty search: "If a

dog locates a person and the dog has been tasked with locat-

ing a person, whether it be on a track, an open-building

search, [or] an off-lead search, the dog will, in the absence of

a command, seize the person usually by a limb and hold on."

J.A. 180 (emphasis added). Greene’s knowledge that his dog

was trained to bite targets without command renders immate-

rial the majority’s argument that the dog was not released

from its leash. An unmuzzled find-and-bite dog searching in

26 MELGAR v. GREENE

the dark with the considerable freedom of movement afforded

by a fifteen-foot lead was not under "substantial control," as

the majority claims. Ante at 15.

Third, in light of what Officer Greene knew about Melgar

and his companion, using a find-and-bite dog, with the atten-

dant risk, was not warranted. Greene knew that Melgar’s

companion was found passed out on the ground, that Melgar

was probably intoxicated to about the same degree, and that

Melgar might also be found "laying out" somewhere. J.A.

174. In these circumstances, allowing an unmuzzled dog on

a long leash to search for Melgar invited a serious bite injury

that was practically inevitable.

Officer Greene’s decision in this case was not in the "hazy

border between excessive and acceptable force" so that a rea-

sonable officer could not have known that he was violating

the Fourth Amendment. Saucier v. Katz, 533 US. 194, 205

(2001). Greene’s decision and conduct were out of bounds.

However good his intentions (which are irrelevant to the

clearly established right analysis), Greene made an objec-

tively unreasonable miscalculation when he concluded that he

could stop the dog before it bit and injured Melgar. The situa-

tion merited police attention and effort to be sure, but Melgar

was not suspected of a serious crime and he was not evading

arrest. Although Melgar was at some risk, the degree of risk

did not justify the use of a dog trained for one task: finding,

biting, and furiously holding on to the target.

III.

I concur in the majority’s determination that Officer Greene

seized Melgar with the dog. Morever, I am somewhat encour-

aged by the majority’s refusal to "say as a matter of law that

no constitutional violation occurred," ante at 10, and its state-

ment that "the obvious need is to strike a balance between

locating a missing and possibly endangered individual and

avoiding injury to that person when located," id. at 13. Still,

MELGAR v. GREENE 27

the majority holds that Officer Greene did not violate clearly

established law. We should not inch toward clearly estab-

lished law bite by disabling bite. Bolder action is called for

today, and the basis for that action is the widely known dan-

ger that find-and-bite dogs present. It is already clearly estab-

lished that the improper deployment of a find-and-bite dog

that mauls its target constitutes excessive force in violation of

the Fourth Amendment. Kopf, 942 F.2d at 268. A police offi-

cer’s deliberate use of such a dog to search for a missing and

harmless boy like Melgar violates this clearly established

right.