Barker v. Gaylor

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JOHNY L. BARKER,

Plaintiff,

v. Civil Action No. 2:20-cv-00357

ANTHONY L. GAYLOR, individually, and

in his official capacity as a police

officer for the City of Charleston;

TROY VANHORN, individually, and in

his official capacity as a police

officer for the City of Charleston;

SHAUN MCCLURE, individually, and in

his official capacity as a police

officer for the City of Charleston; and

CITY OF CHARLESTON, d/b/a Charleston

Police Department, a municipal corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants’ motion for summary judgment,

filed on May 14, 2021. ECF No. 47. Plaintiff filed a response

on June 2, 2021, to which defendants replied on June 9, 2021.

ECF Nos. 52, 55.

I. Background

This case involves the deployment of a police canine,

K-9 Berkley, by Corporal Anthony L. Gaylor on May 22, 2019,

resulting in substantial injuries to plaintiff Johnny L. Barker.

On the morning of May 22, 2019, at approximately 8:00

AM, the Charleston Police Department (“CPD”) responded to a

trespassing complaint at 1520 Huron Terrace in Charleston called

in by the property owner, who encountered unknown male occupants

after entering the house. Gaylor Dep. 49-50, ECF No. 52-5;

McClure Dep. 53, ECF No. 52-6; Vanhorn Dep. 38, ECF No. 52-7.

The property was a two-story, dilapidated house with the windows

boarded and debris on the front porch. McClure Bodycam at 3,

ECF No. 52-3.

At the time, the house was being occupied by

plaintiff, Carol Jarvis, her son, Dylan Jarvis, and a male

companion of hers, whose name is unknown. Barker Dep. at 5-6.

None had permission to be on the premises. Id. Plaintiff, who

was also in the house, understood that, though the property was

abandoned, he and the other three did not have a right to be on

the property. Id. at 13. Dylan Jarvis left before the police

arrived. Id. at 7. The remaining three hid on the second floor

of the house when the police arrived. Id.

Corporal Shaun McClure, a Charleston Police officer,

and Officer Christian Harshbarger, a patrolman, were the first

to arrive at the house around 8:00 AM. Compl. and Answer at ¶

16. After a discussion with the homeowner, the officers

received permission to kick in the door, which they did.

McClure Bodycam at 3-4. While standing in the entryway of the

house, Harshbarger and McClure proceeded to give several

repeated commands in rapid succession for the occupants to

announce themselves, surrender themselves, and come downstairs.

Id. at 4-5. None of the occupants responded. Id. Harshbarger

indicated that he saw people walking on the second floor of the

home through gaps in the first-floor ceiling and shouted to the

occupants that he could see them. Id.

Plaintiff hid by crawling from a second-floor room

into a cramped and dilapidated crawlspace above the front porch

of the house behind some cabinets. Barker Dep. 7-8. The space

was about three to four feet tall and without full flooring.

Id. at 10-11. Plaintiff crawled over the rafters to get to his

hiding spot so that he would not fall through the floor. Id.

According to plaintiff, Jarvis’ male companion had likewise

crawled into that same space prior to plaintiff getting there,

forcing plaintiff to position himself in front of the other

occupant with his leg sticking out from behind the cabinet. Id.

at 8.

Sergeant Troy Vanhorn, a CPD officer, arrived on the

scene at approximately 8:09 AM. Compl. and Answer at ¶ 17. At

about 8:12 AM, Harshbarger gave another warning that “[w]e’re

gonna send the dog in to bite you!” Harshbarger Bodycam at 13-

14, ECF No. 52-2. Corporal Gaylor, a canine handler, arrived

with K-9 Berkley at the scene at approximately 8:17 AM. Compl.

and Answer at ¶ 18. Gaylor asked if the officers had warned

about the possible use of a police canine and Harshbarger

confirmed that he had. Harshbarger Bodycam at 17-18.

The officers gave another series of warnings to the

occupants as they entered the house, with Gaylor shouting

“Charleston Police canine! Come down or I’ll send the dog in and

you’re going to get bit!” and “I’m going to send the dog up

there! You’d better get the f—k down here now!” McClure Bodycam

at 19-20. McClure added “She has titanium teeth. Crunch,

crunch,” and shouted “Come on down unless you want bit.” Id.

Gaylor noted that he heard people moving upstairs. Id. The

female occupant came downstairs and was arrested by the

officers. Id. at 20-21. The woman denied that there were

others in the house but McClure noted that he had seen somebody

wearing blue jeans and that the property owner had seen a male

occupant. Id. Gaylor again shouted “Charleston Police! If you

do not come down, I will send up the dog, and you’re gonna get

bit.” Id.

Believing that at least one other individual was in

the house, McClure and Vanhorn discussed the use of K-9 Berkley,

a police canine with reinforced titanium teeth, outside of the

house. McClure Bodycam at 22-24; ECF No. 52-16 (pictures of K-9

Berkley’s teeth). McClure noted that while they were responding

to a simple trespass, he thought the dynamic had changed given

there were definitely individuals hiding in the house. Vanhorn

then stated “I’m not sure about the K-9 use” at 8:22 AM. Id.

During his deposition, Vanhorn acknowledged that one of the

reasons for this concern with respect to deploying the canine

was that the offense involved was trespassing, a low-level

misdemeanor. Vanhorn Dep. at 40. The officers decided to

attempt to clear the house themselves without use of the K-9.

McClure Bodycam at 24-25.

At 8:24 AM, Gaylor, Vanhorn, and McClure searched the

upstairs of the home personally, loudly kicking in doors and

sweeping the various upstairs rooms and closets, which were in a

severely deteriorated condition and covered in debris. McClure

Bodycam at 25-27. After searching the second floor of the home,

Gaylor located plaintiff within the cramped crawlspace above the

front porch. Gaylor Bodycam at 5-7, ECF No. 52-1. Gaylor at

first attempted to crawl through the space for about a minute.

Id. at 8-9. When he saw Barker’s leg sticking out from behind

the cabinet, he demanded that plaintiff come out, shouting “Let

me tell you something right now, motherf—r. You’d better get

your f—king hands where I can see them. And I mean f—king RIGHT

NOW! I’m not gonna tell you again before I go get the f—king

dog. I’m looking right at you behind those f—king cabinet

drawers.” Id. at 8-10. Plaintiff did not move or respond to

Gaylor’s commands. Id. at 9-10. After about 20 seconds passed,

Gaylor stated “Hey, listen! I’m going for the dog,” as he made

his way out of the crawlspace. Id.

Gaylor then went down to the police cruiser and

retrieved K-9 Berkley. Id. at 10-11; Gaylor Dep. 54. On his

way out, Gaylor told McClure and Vanhorn that he was getting K-9

Berkley to which McClure responded “go get it” and Vanhorn

responded “alright.” Id. While Gaylor was retrieving K-9

Berkley, plaintiff received another series of warnings and

commands from Vanhorn and McClure. Vanhorn shouted to

plaintiff, “Charleston Police! We’re getting the dog. You better

come out. Charleston Police!” McClure Bodycam at 29 -30. About

one minute later, McClure told plaintiff, “I promise you, you

are not going to like getting bit by the dog. You best come out

now.” McClure Bodycam at 30-31. A few seconds later, one of

the officers commanded “come out before the dog comes in!” and a

few seconds after that, Vanhorn told Barker “This is your

warning. He’s bringing the dog in if you don’t come out.” Id.

At 8:30 AM, McClure suggested accessing plaintiff by breaking a

hole into the drywall separating the officers from plaintiff.

Id.

Gaylor returned upstairs at approximately 8:31 AM.

Gaylor Bodycam at 11-12. Gaylor shouted that he was “[c]oming

up!” with the K-9, and one of the upstairs officers repeated

this, stating, “Coming with the dog!” Id. Gaylor confirmed

with the other officers that plaintiff continued to not comply

with commands and one of the officers shouted “The dog is here!”

Id.

About 10 seconds later, Gaylor began crawling into the

crawlspace with K-9 Berkley. Id. Gaylor maintained a fairly

long lead on K-9 Berkley’s leash, which he estimated at about 15

feet and which he began to loosen as K-9 Berkley approached

plaintiff. Gaylor Dep. 101-02. Gaylor shouted to plaintiff

that “[t]his is your last warning.” Gaylor Bodycam at 11:45.

Within about one second of Gaylor giving plaintiff his last

warning, plaintiff yelled something, which plaintiff contends

was “I’m coming out.”1 Gaylor Bodycam at 11:48. Plaintiff’s

announcement came too late and Gaylor released the leash

1 Defendants appear to contest that plaintiff said “I’m coming

out.” The court cannot discern from the video whether plaintiff

did in fact state that he is coming out, though defendants have

not presented evidence that plaintiff did not state he was

coming out.

resulting immediately in plaintiff’s screams of pain as K-9

Berkley bit plaintiff’s right leg. McClure Bodycam at 31-32;

Barker Dep. at 19, 81.

K-9 Berkley continued to bite/chew on plaintiff’s leg

for about one to two minutes, until McClure handcuffed plaintiff

through a small hole in the wall between the room and the

crawlspace. Gaylor Bodycam at 12-13; McClure Bodycam at 32-33;

Gaylor Dep. 62. Gaylor commanded K-9 Berkley to release its

bite from plaintiff’s leg but it did not obey the command.

Gaylor Dep. 62. Gaylor had to crawl further into the crawlspace

and use his flashlight to pry K-9 Berkley’s jaws off of

plaintiff’s leg. Gaylor Dep. 61-62; Barker Dep. 83. K-9

Berkley was finally pried from plaintiff’s leg within about one

to two minutes. Id. One of the officers warned Gaylor over the

radio that the crawlspace was about to fall through. Gaylor

Bodycam at 14-15.

At 8:36 AM, plaintiff crawled out of the attic

compartment while handcuffed. McClure Bodycam at 35-37.

Plaintiff was wailing in pain and one of the officers observed

that plaintiff had lost control of his bowels. Id.; Answer at ¶

36; Gaylor Dep. 120. McClure led plaintiff from the second

floor down two flights of steps to the sidewalk outside.

McClure Bodycam 37-39. Plaintiff was able to walk out with

apparent difficulty and pain. Id. He was charged with

obstructing an officer and trespass in a structure or

conveyance. ECF No. 52-20 (Criminal Complaints and Dismissal

Orders). Both charges were dismissed.2 Id.

Plaintiff was treated by EMS and transported by

ambulance to Charleston Area Medical Center (“CAMC”). ECF No.

53-2 (plaintiff’s medical records). The EMS recorded the size

of the wound to be about that of a baseball on the rear of his

right leg. Id. He described his pain level as a 10 out of 10.

Id. The treating physician at CAMC described “extensive deep

tissue lacerations to [plaintiff’s] right ankle,” “complex open

wounds,” and “significant soft tissue injury.” Id. at 9, 14-15.

Plaintiff remained at CAMC for 20 days before being discharged

on June 11, 2019. Id. While at CAMC, plaintiff required

several debridements – the removal of damaged tissue of a wound

- and the wound became infected with MRSA. Id. Plaintiff also

underwent an unsuccessful “free flap reconstruction.” Id.

Following discharge from CAMC, plaintiff needed to

reside with his parents in Harrison County, WV, given his

ongoing care needs. Barker Dep. 47. For a period of time

2 It is not clear whether Gaylor or any of the other officers

knew that the individual identified by plaintiff as the male

companion of Carol Jarvis was in the crawl space occupied by

plaintiff, if in fact he was.

plaintiff received at-home nursing care from a home health care

group, including vacuum-assisted closure of the wound and re-

wrapping of bandages. Id. at 55-56. Plaintiff continued to

live with his parents at least through the time of his

deposition on March 8, 2021. Id. at 57-58.

After being examined by a plastic surgeon at CAMC on

July 24, 2019, plaintiff was deemed ready for a skin graft

procedure. ECF No. 53-2 at 25. Plaintiff was unable to return

to undergo the plastic surgery due to plaintiff’s inability to

obtain transportation. Barker Dep. 48-49. Plaintiff has

alleged a cost of medical care and treatment resulting from the

canine attack in excess of $275,000. ECF No. 53-1 (Rule 1006

summary of medical expenses). Plaintiff reports continued pain,

discomfort, numbness, and swelling in his right leg, as well as

permanent scarring. Barker Dep. 78; ECF No. 52-15 (photograph

of plaintiff’s leg).

Plaintiff alleges six counts in his complaint, filed

May 22, 2019: Excessive Use of Force by Officer Gaylor in

violation of 42 U.S.C. § 1983 (Count I)3; Excessive Use of Force

by Officers Vanhorn and McClure, Bystander Liability arising

3 Plaintiff numbered Count I of the complaint with a Roman

numeral and the remaining counts with Arabic numerals. For the

purpose of consistency, the court hereinafter refers to all

counts with Roman numerals.

under 42 U.S.C. § 1983 (Count II); Excessive Use of Force by

Officer Vanhorn, Supervisor Liability under 42 U.S.C. § 1983

(Count III); Municipal Liability under 42 U.S.C. § 1983 by the

City of Charleston (“the City”) (Count IV); Assault and/or

Battery by Officer Gaylor (Count V); and Intentional Infliction

of Emotional Distress by Officers Gaylor, McClure, and Vanhorn

(Count VI). ECF No. 1.

II. Standard of Review

Summary judgment is appropriate only “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). “Material” facts are those necessary to

establish the elements of a party’s cause of action. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News

& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010). A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences

drawn therefrom in a light most favorable to the non-moving

party, a reasonable fact-finder could return a verdict for the

non-moving party. Anderson, 477 U.S. at 248.

Inferences that are “drawn from the underlying facts

. . . must be viewed in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). A party is entitled to summary judgment if the

record, as a whole, could not lead a rational trier of fact to

find for the non-moving party. Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991). Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable

fact-finder to return a verdict in favor of the non-moving

party. Anderson, 477 U.S. at 248.

III. Discussion

A. Excessive Use of Force

“The Fourth Amendment prohibits police officers from

‘using excessive force to seize a free citizen.’” Hupp v. Cook,

931 F.3d 307, 321 (4th Cir. 2019) (citing Jones v. Buchanan, 325

F.3d 520, 527 (4th Cir. 2003) and Graham v. Connor, 490 U.S.

386, 395 (1998)). “Rather, police officers are constitutionally

permitted to use only that force which is reasonable under the

circumstances.” Id.; see also Betton v. Belue, 942 F.3d 184,

191 (4th Cir. 2019). The standard of review for allegations of

unreasonable force under the Fourth Amendment is “an objective

one,” and “the question is whether a reasonable officer in the

same circumstances would have concluded that a threat existed

justifying the particular use of force.” Elliott v. Leavitt, 99

F.3d 640, 642 (4th Cir. 1996).

The Fourth Circuit has cautioned that “a reviewing

court may not employ ‘the 20/20 vision of hindsight’ and must

make ‘allowance for the fact that police officers are often

forced to make split-second judgments – in circumstances that

are tense, uncertain, and rapidly evolving.’” Id. at 642. “The

court’s focus should be . . . on the fact that officers on the

beat are not often afforded the luxury of armchair reflection.”

Id.

The court must pay “careful attention to the facts and

circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he

is actively resisting arrest or attempting to evade arrest by

flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). The

Fourth Circuit has also instructed consideration of the extent

of the plaintiff’s injuries. Rowland v. Perry, 41 F.3d 167, 174

(4th Cir. 1994). The court takes each factor in turn.

1. Severity of the Crime

At the time of the incident, plaintiff was engaged in

a trespass, a minor and likely non-violent offense. Defendants

characterize plaintiff as engaged in a burglary, a crime which

plaintiff was never charged with, and argue that burglary is a

serious and potentially violent felony. Under West Virginia

law, a burglary requires breaking and entering, or entering

without breaking, of a dwelling house, or outbuilding adjoining

a dwelling. W. VA. CODE § 61-3-11(a). A dwelling house

“includes, but is not limited to, a mobile home, house trailer,

modular home, factory-built home, or self-propelled motor home,

used as a dwelling regularly or only from time to time, or any

other nonmotorized vehicle primarily designed for human

habitation and occupancy and used as a dwelling regularly or

only from time to time.” See W. VA. CODE § 61-3-11(b). A

structure ceases to be a “dwelling house” for purposes of § 61-

3-11 when its occupants leave without any intention of

returning. State v. Scarberry, 418 S.E.2d 361, 364 (1992).

Moreover, a building must be “suitable for residential purposes”

to be considered a dwelling. Id.

Drawing inferences in the light most favorable to the

plaintiff as the non-movant, the responding officers could not

have reasonably concluded that they were responding to a

burglary call, as opposed to a simple trespass. Harshburger and

McClure had been dispatched for a reported trespass and

plaintiff was only charged with trespass and resisting an

officer. Incident Report, ECF No. 52-18. Despite the fact that

plaintiff and others were in fact occupying the building in the

days before the incident, there is no evidence that the

responding officers knew that they had been present for any

length of time prior to the morning of May 22. Moreover, the

appearance of the home was consistent with it having been

abandoned and unsuitable for residential purposes, given its

extremely dilapidated condition, boarded windows and doors, and

the refuse strewn throughout the house. Accordingly, for

purposes of summary judgment, plaintiff was at most engaged in

the relatively minor and nonviolent crimes of trespass and

obstructing an officer at the time of K-9 Berkley’s deployment.

2. Immediate Threat to Officers

Taken in the light most favorable to plaintiff, the

defendants had little reason to believe that plaintiff posed an

immediate threat to them or was armed, though he could have been

both. When K-9 Berkley was deployed against plaintiff, he was

cornered inside of a crawlspace with no path of escape, while at

least four police officers were present at the scene. At the

same time, the officers also did not affirmatively know that

plaintiff was not in fact armed or dangerous.

While Gaylor testified in his deposition that there

was ammunition present in the house, there was no evidence

existing prior to litigation that the officers were aware of or

considered the presence of ammunition or the presence of a

weapon during the incident. None of the officers verbalized the

fact that there was ammunition present at the scene or a concern

about plaintiff being armed. Ammunition was not mentioned in

their post-incident reports and ammunition was not taken into

custody. Plaintiff’s use of force expert, Dennis Root, reports

that it would have been a serious tactical error and officer

safety violation to not alert fellow officers to the presence of

ammunition at that time had any of the officers noticed it.

Root Report, ECF No. 52-10. Thus, whether the presence of

ammunition factored into the use of force decision is a disputed

material fact.

The officers also observed objects which did not

“fit[] into what is supposedly an abandoned house” and which

suggested a theft may have been taking place. Gaylor Dep. 98-

99. This included such innocuous items as baseball cards and a

cell phone. These items, of course, do not in themselves

suggest an immediate threat to the officers or the presence of a

weapon.

Finally, defendants observe that there was concern

that the crawlspace itself was dangerous, inasmuch as it was

dark, tight, and showed signs of potential collapse. Moreover,

they note that there were dirty needles present in the home.

These environmental conditions may have posed a danger to the

officers should they have undertaken to crawl through the space,

though it should be noted that these conditions did not pose an

immediate threat, such that defendants were forced to make

split-second decisions regarding the use of force. Rather, as

the videos make clear, they had several minutes to make

decisions regarding the method of extracting plaintiff from the

crawlspace.

3. Passivity of Resistance

At the time that force was deployed on plaintiff, he

was cornered inside the crawlspace, not moving or speaking at

all until he uttered something about one second before the

canine was deployed. Gaylor testified that he did not know at

the time whether plaintiff was even conscious or awake. Gaylor

Dep. 54. While defendants seek to characterize this as “active

fleeing” inasmuch as plaintiff went through the hole in the

wall, crawled through the crawl space, and says he pushed

Jarvis’ male companion further into his hiding place, none of

plaintiff’s movement occurred while the officers were present

and the extent of plaintiff’s flight was not known by the

officers at the time force was deployed. Rather, from the time

the officers located plaintiff until the deployment of K-9

Berkley, there is no evidence that plaintiff exhibited any

resistance to the officers beyond ignoring their commands to

surrender himself.

4. Severity of Injuries

Plaintiff sustained substantial injury to his leg as a

result of the deployment of K-9 Berkley. First, it bears

mentioning that K-9 Berkley had titanium crowns installed on his

teeth in November 2018. Gaylor Dep. 43. Moreover, a police

dog’s bite can impose between 1,200 and 2,000 pounds of force

per square inch. Vathekan v. Prince George’s County, 154 F.3d

173, 177 n. 3 (4th Cir. 1998). The video evidence evinces that

plaintiff was in extreme pain following K-9 Berkley’s attack and

plaintiff was immediately rushed to the hospital in an

ambulance.

As a result of the incident, plaintiff spent twenty

days in the hospital, undergoing multiple procedures, and

requiring post-discharge attention from home nurses and aid from

family members. Further, plaintiff testified to ongoing medical

issues resulting from the injury, including scarring, pain,

discomfort, numbness, and swelling.

In sum, the court does not conclude as a matter of law

that the deployment of K-9 Berkley was objectively reasonable

under the Fourth Amendment. While plaintiff’s dangerous hiding

place posed unique risks to the officers, the relatively minor

and nonviolent nature of the crime of trespass, the lack of a

known immediate threat to the officers, plaintiff’s passive

resistance, and the severity of his injuries weigh against

finding that deploying K-9 Berkley was objectively reasonable.

B. Qualified Immunity

Government officials are shielded “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). Qualified immunity provides police

officers with “‘ample room for mistaken judgments’ by protecting

‘all but the plainly incompetent or those who knowingly violate

the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). Officers “are not

liable for bad guesses in gray areas,” but “they are liable for

transgressing bright lines.” Maciarello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992).

For a right to be “clearly established,” it is not

necessary that “the very act in question have been previously

held unlawful,” but “in the light of pre-existing law the

unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). “[I]f the contours of the right are

sufficiently clear so that a reasonable officer would have

understood, under the circumstances at hand, that his behavior

violated the right” there is no entitlement to qualified

immunity. Bailey v. Kennedy, 349 F.3d 731, 741 (4th Cir. 2003)

(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).

Still, the Supreme Court has recently cautioned

against defining the right in question at too high a level of

abstraction, particularly in excessive use of force cases. City

of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019). This

is because it can be particularly difficult for an officer to

determine how the Fourth Amendment will apply to a given factual

situation. Id. Given the fact-specific nature of the use of

force inquiry, “police officers are entitled to qualified

immunity unless existing precedent squarely governs the specific

facts at issue.” Id. (quoting Kisela v. Hughes, 138 S.Ct. 1148,

1153 (2018).

Stated at the appropriate level of particularity, the

right allegedly violated by Officer Gaylor is that of a

passively resistant misdemeanant to be free from attack by a

police dog, or an equivalent level of force, where that

misdemeanant was (1) hiding in a location where the conditions

of that location posed substantial danger to an officer in

retrieving that individual, (2) where the officers did not know

whether the individual was armed or unarmed, and (3) following

many unheeded warnings (15 times in 20 minutes) that a police

canine would be utilized and that the canine would bite the

misdemeanant. Each of these facts is critical to the

reasonability of the use of force and bears on whether

plaintiff’s rights were violated.

No binding precedent in this circuit has held that the

use of police dogs in similar circumstances constituted the

unreasonable use of force. Plaintiff relies on two Fourth

Circuit 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). Both cases involved the release of a police dog either

without a warning or where there was a factual dispute as to

whether a warning was given. Kopf, 942 F.2d at 268 (factual

dispute as to whether warning was given “is crucial, because a

forewarning that the dog is going to attack, which provides the

suspects a fair chance to surrender, is more reasonable than a

surprise assault”); Vathekan, 154 F.3d at 179 (“Vathekan's claim

is based on her Fourth Amendment right to be free from excessive

force in the course of a Fourth Amendment seizure brought about

by a police dog that was deployed without a verbal warning”).

In contrast, plaintiff admitted that when the officers were

upstairs, he could hear what they were saying, including their

warnings. Barker Dep. 16. The video of the incident reveals

several instances of the officers shouting to plaintiff, while

they were upstairs and within a few feet of plaintiff, that they

were getting the dog and that the dog would bite him. The two

Fourth Circuit cases demonstrate that whether a victim is given

such a warning is crucial to the use of force inquiry. Kopf,

942 F.2d at 268; Vathekan, 154 F.3d at 179. Here, the plaintiff

was repeatedly warned.

Plaintiff also relies on two out-of-circuit cases, one

a circuit opinion and the other a district court decision, in an

effort to demonstrate that his right was clearly established at

the time of the incident. But see Edwards v. Goldsboro, 178

F.3d 231, 251 (4th Cir. 1999) (“If a right is recognized in some

other circuit, but not in this one, an official will ordinarily

retain the immunity defense”).

In Cooper v. Brown, the Fifth Circuit affirmed the

denial of summary judgment where a police canine continued to

bite a suspect not resisting arrest for one to two minutes. 844

F.3d 517, 521 (5th Cir. 2016). The suspect in that case had

fled on foot after being pulled over under suspicion of driving

under the influence of alcohol and hid inside a small wood-

fenced area used to store trash bins between two houses. Id.

The K-9 unit found the suspect and bit him for one to two

minutes, while the suspect made no further attempt to flee or to

strike the K-9. Id. The officer could see the suspect’s hands

and “appreciate[d] that he had no weapon.” Id. Cooper bears

little similarity to plaintiff’s case and cannot be said to put

the question of excessiveness of the use of force in this case

beyond question. Crucially, the officer in that case did not

face a comparable danger to that posed by crawling through a

narrow space without a proper floor in a dilapidated house to

extract a hidden suspect who may or may not be armed. Rather,

the officer in Cooper was on solid ground in a residential

neighborhood and knew that the suspect was unarmed.

Additionally, it does not appear that the suspect in Cooper

received any warning prior to the deployment of the police

canine. Id.

A more recent, and more analogous, Fifth Circuit case

makes plaintiff’s point more doubtful. In Schumpert v. City of

Tupelo, an officer was surveilling a location for suspected drug

activities. 905 F.3d 310, 315 (5th Cir. 2018). When he pulled

over a vehicle he suspected to be involved in such activities

for a failure to use a turn signal and driving without a working

taillight, the driver, Schumpert, stopped the vehicle and ran

from the car into a nearby neighborhood. Id. Another officer

arrived with a K-9 and found Schumpert hiding in a crawl space

under a house. Id. The officer commanded that Schumpert show

his hands and come out or a dog would bite him. Id. After the

warning, Schumpert continued further into the crawlspace and the

officer released the dog who bit Schumpert. Id. In finding for

the defendant officer on qualified immunity grounds, the Fifth

Circuit distinguished Schumpert from Cooper, inasmuch as the

officer did not know whether the suspect was armed or dangerous

and the suspect’s continued resistance to arrest despite the

warning prior to the dog being released. Id. at 322.

The second out-of-circuit case plaintiff cites, a

district court case, held that an officer acted objectively

unreasonably when ordering a police dog to pursue an individual

fleeing on foot after being pulled over for having an improper

license plate. Marley v. City of Allentown, 774 F. Supp. 343

(E.D. Pa. 1991), aff'd mem., 961 F.2d 1567 (3d Cir. 1992). As

with Cooper, the facts of Marley are too dissimilar in material

ways to those the officers confronted in this case to properly

put the officers on notice here that the use of force was

unreasonable. Moreover, an out-of-circuit district court case,

on its own, would not ordinarily place an officer on notice as

to a right for purposes of qualified immunity. See Matusick v.

Erie Co. Water Authority, 757 F.3d 31, 61 (2d Cir. 2014).

Still, “the nonexistence of a case holding the

defendant's identical conduct to be unlawful does not prevent

the denial of qualified immunity.” Edwards, 178 F.3d at 251.

Where the violation is “obvious,” there need not be a factually

analogous case in order for the right to be clearly established.

See, e.g., Brosseau v. Haugen, 543 U.S. 194, 199 (2004). Given

the danger posed to the officers by the condition of the

crawlspace and the house in general, the fact that officers

could not determine whether plaintiff was armed, and plaintiff’s

continued silence and noncompliance with the officers’ commands

and over a dozen warnings that the canine would be dispatched to

bite plaintiff, this is not such an obvious case that the

officers were effectively put on notice that their actions

exceeded the bounds of the Fourth Amendment. The lack of an

analogous case establishing plaintiff’s relevant right entitles

defendants to qualified immunity.

Finally, plaintiff’s reference to the officers’

general subjective awareness of CPD’s policies against the use

of unreasonable or excessive force and of the Graham v. Connor

factors is not determinative of the qualified immunity issue.

The key issue is whether plaintiff’s right was clearly

established law at the time. Application of the Graham v.

Connor factors in determining the reasonability of use of force

is highly fact specific. See supra p. 13. The case law simply

does not show that plaintiff’s clearly established rights under

the Fourth Amendment were violated in this circumstance.

Accordingly, Count I of the complaint is dismissed.

Plaintiff’s claims for bystander liability against

Vanhorn and McClure (Count II) and for supervisor liability

against Vanhorn (Count III) are both derivative of his claim

that Gaylor violated his rights by deploying K-9 Berkley.

Because no clearly established right was violated, Vanhorn and

McClure are entitled to qualified immunity for the derivative

claims as well.

C. Monell Liability

Local governmental bodies may be liable under § 1983

based on the unconstitutional actions of individual defendants

where those defendants were executing an official policy or

custom of the local government that resulted in a violation of

the plaintiff's rights. Monell v. Dep't of Soc. Servs., 436

U.S. 658, 690-91 (1978). The Monell Court explained that “when

execution of a government's policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury the

government as an entity is responsible under § 1983.” Id. at

694. However, liability attaches “only where the municipality

itself causes the constitutional violation at issue.” City of

Canton v. Harris, 489 U.S. 378, 385 (1989); accord Holloman v.

Markowski, 661 F. App'x 797, 799 (4th Cir. 2016) (per curiam),

cert. denied, 137 S. Ct. 1342 (2017).

To present a claim for municipal liability, a

plaintiff must show (1) the officers acted pursuant to a policy

or custom and (2) the policy or custom caused a violation of the

plaintiff's constitutional rights. See, e.g., Kirby v. City of

Elizabeth City, 388 F.3d 440, 451 (4th Cir. 2004), cert. denied,

547 U.S. 1187 (2006). A plaintiff may demonstrate the existence

of an official policy in three ways: (1) a written ordinance or

regulation; (2) certain affirmative decisions of policymaking

officials; or (3) in certain omissions made by policymaking

officials that “manifest deliberate indifference to the rights

of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir.

1999). “Locating a ‘policy’ ensures that a municipality is held

liable only for those deprivations resulting from the decisions

of its duly constituted legislative body or of those officials

whose acts may fairly be said to be those of the municipality.”

Bd. of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-04

(1997).

To establish a Monell claim, the plaintiff “must point

to a persistent and widespread practice[ ] of municipal

officials, the duration and frequency of which indicate that

policymakers (1) had actual or constructive knowledge of the

conduct, and (2) failed to correct it due to their deliberate

indifference.” Owens v. Baltimore City State's Attorney's

Office, 767 F.3d 379, 402 (4th Cir. 2014) (quotation marks

omitted), cert. denied, 575 U.S. 983 (2015). “Sporadic or

isolated violations of rights will not give rise to Monell

liability; only ‘widespread or flagrant’ violations will.” Id.

at 403.

Plaintiff points to two theories of Monell liability:

(1) the Charleston Police Department’s failure to train officers

in use of force topics after their time of hiring and (2) a

custom of allowing officers to disregard a prohibition on the

use of canines against unarmed and undangerous misdemeanor

suspects contained in CPD’s Policy and Procedures Manual.

Plaintiff relies heavily on the opinion of Dennis

Root, its use of force expert, to demonstrate that the lack of

follow-up training demonstrates deliberate indifference and

resulted in plaintiff’s injuries. Specifically, Root opines in

his report that officers did not receive adequate training in

“the use of force, the force decision-making process,

interpersonal communications, de-escalation techniques, and

policies and procedures.” Root Report at 39. Root concedes

that the CPD “appears to require all of its personnel to attend

some of these courses when they are first employed.” Id. at 38.

He notes, for example, that Gaylor, McClure, and VanHorn all

received training regarding the policies and procedures of CPD

regarding use of force, though “the training documentation

showed none of these topics had been taught or revisited at any

time since the initial instruction.” Id. Root also concedes

that CPD delivers annual trainings to officers but that he had

not received the lesson plans and thus could not determine with

specificity the content of the courses delivered by CPD. Id. at

37.

Assuming that the lack of follow-up training on the

topics Root identified amounted to deficient training on the

part of CPD, there is no evidence in the record that it arose

out of a deliberate indifference. While Root refers to the lack

of follow-up training as “‘deliberate’ or ‘conscious,’” he

provides no evidence or analysis as to how the City was put on

notice, actual or constructive, of the need to provide further

training. The only reference to a past incident which might

have given notice to CPD as to a need for further training was

the January 3, 2018 deployment of K-9 Berkley by Captain Gaylor

on an individual suspected of breaking and entering into an

automobile. See ECF No. 52-24 (Investigative Report). However,

the investigation of that case found that the deployment of K-9

Berkley on that suspect conformed to department policy, given

the suspect had a history of fleeing police, was known to carry

burglary tools that could be used as weapons, and the fact that

Gaylor was the only officer responding to the scene. Id.

Nothing in the report of that investigation evidences that the

use of force there could have been avoided had Gaylor or anyone

else received additional training. Root does not attempt to

show why this single incident did or should have alerted CPD to

a need to provide additional training to officers, nor does any

other evidence in the record suggest as much.

Further, plaintiff lacks evidence demonstrating a

causal connection between the supposed failure to train and the

violation of his rights. As the Supreme Court has noted,

That a particular officer may be unsatisfactorily

trained will not alone suffice to fasten liability on

the city, for the officer's shortcomings may have

resulted from factors other than a faulty training

program . . . Neither will it suffice to prove that an

injury or accident could have been avoided if an

officer had had better or more training, sufficient to

equip him to avoid the particular injury-causing

conduct. Such a claim could be made about almost any

encounter resulting in injury, yet not condemn the

adequacy of the program to enable officers to respond

properly to the usual and recurring situations with

which they must deal. And plainly, adequately trained

officers occasionally make mistakes; the fact that

they do says little about the training program or the

legal basis for holding the city liable.

Harris, 489 U.S. at 385. The case for a causal connection is

particularly weak where, as here, the officers each received the

kind of training that plaintiff’s expert suggests that they

should have received, though not as recently as he opines they

should have. Moreover, Root provides no details as to what the

content of such retraining might look like, or how frequently it

should be required, so that a factfinder could determine whether

such trainings would have avoided any potential deprivation of

plaintiff’s rights in this case.

Additionally, the evidence does not show whether the

involved officers had received the training that Root opines

would have avoided this incident more recently than their

initial training. While Root indicated that “[b]ased on the

training documentation I have received and reviewed, the

Charleston, West Virginia, Police Department did not provide its

personnel with the necessary force related training,” he also

stated that without the lesson plans, which he did not have, he

could not determine the content of the courses taught. The only

training history report in the record, that of McClure, shows

that he attended an eight-hour course on May 14, 2019, eight

days before the incident in this case, that purported to

“instill confidence in police officers to professionally handle

encounters with confrontational, non-compliant individuals

without violating their Fourth Amendment rights.” ECF No. 52-

17. While both Vanhorn and Gaylor indicated in their

depositions that they could not recall whether they had received

de-escalation training after their initial training with CPD,

they did not testify that they did not receive such training.

Accordingly, there is no basis to conclude that a policy of not

providing follow-up training on use of force at CPD caused

plaintiff’s rights to be deprived.

Root also opines that the CPD has a pattern or

practice of allowing officers to violate the written use of

force and canine policies. The written policy in question,

contained in the Policy and Procedures Manual, indicates that a

canine should not be deployed on a misdemeanor suspect unless

that individual is armed and dangerous or believed to be armed

and dangerous. CPD contends that it has discontinued this

policy in favor of one that evaluates canine use based on the

totality of the circumstances, rather than a simple felony /

misdemeanor dichotomy, without updating the Policy and

Procedures Manual, though it is unstated when such a change

occurred. Req. for Admission Nos. 5, 6, ECF No. 52-21. The

change in approach is further evidenced by the Investigative

Report arising out of the January 2018 deployment of K-9

Berkley, which indicates that at some unspecified time, the CPD

began employing a totality-of-the-circumstances type approach.

ECF No. 52-24. The analysis includes such factors as “the

severity of the crime; [w]hether the suspect poses an immediate

threat to the safety of the officer and others; and [w]hether

the suspect is actively resisting arrest or attempting to evade

arrest at the time.” Id.

Plaintiff provides no evidence showing that CPD has

not in fact abandoned the earlier, written policy in favor of

the totality-of-the-circumstances approach referenced in the

January 2018 Investigative Report, over a year prior to the May

2019 incident here, and in the City’s discovery responses in

this case. Nor is any argument presented that CPD was not

constitutionally permitted to make such a change. Rather, the

new policy much more closely tracks the requirements of the

Fourth Amendment. See e.g., County of Los Angeles v. Mendez, ––

– U.S. ––––, 137 S. Ct. 1539, 1542 (2017) (“The operative

question in such cases is ‘whether the totality of the

circumstances justifie[s] a particular sort of search or

seizure’”).

Further, no evidence in the record causally connects

the change in policy, nor the supposed non-compliance with the

earlier written policy, to the deprivation of plaintiff’s

constitutional rights. Accordingly, this practice cannot be

shown to have caused plaintiff’s constitutional injury and thus

cannot form the basis for a Monell claim. Thus, there is no

basis for holding the City of Charleston liable under § 1983 and

Count IV should be dismissed.

D. Assault and/or Battery

Defendants argue that summary judgment should be

granted as to Count V inasmuch as Gaylor’s conduct was

privileged under state law. An activity that would otherwise

subject a person to liability in tort for assault and battery

does not constitute tortious conduct if the actor is privileged

to engage in such conduct. Hutchinson v. W. Va. State Police,

731 F. Supp. 2d 521, 547 (S.D. W. Va. 2010), aff’d sub nom.

Hutchinson v. Lemmon, 436 F. App’x 210 (4th Cir. 2011). A

police officer is privileged under state law if he or she acts

reasonably under Fourth Amendment standards. Id. Inasmuch as

the reasonability of Gaylor’s conduct is still an issue of

disputed material fact, Count V cannot be dismissed as to

Gaylor.4

Defendants also argue that the West Virginia

Governmental Tort Claims and Insurance Reform Act (“WVGTCIRA”)

immunizes political subdivisions (like the City) from liability

for intentional torts, such as assault and/or battery. See W.

VA. CODE § 29-12A-4(b)(1) and (c). Plaintiff does not contest

4 The court notes that while defendants have pled immunity and

qualified immunity as general defenses in their answer, they do

not raise an immunity defense in their summary judgment briefing

as it relates to Count V.

this argument. Accordingly, Count V is dismissed as to the City

of Charleston.

E. Intentional Infliction of Emotional Distress

An IIED claim under West Virginia law requires a

showing:

(1) that the defendant’s conduct was atrocious,

intolerable, and so extreme and outrageous as to

exceed the bounds of decency; (2) that the defendant

acted with the intent to inflict emotional distress,

or acted recklessly when it was certain or

substantially certain emotional distress would result

from his conduct; (3) that the actions of the

defendant caused the plaintiff to suffer emotional

distress; and, (4) that the emotional distress

suffered by the plaintiff was so severe that no

reasonable person could be expected to endure it.

Syl. Pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W.

Va. 1998). “Whether conduct may reasonably be considered

outrageous is a legal question, and whether conduct is in fact

outrageous is a question for jury determination.” Id. at 428.

As to the officers, defendants argue for summary

judgment inasmuch as they believe their conduct was reasonable

and lawful. Plaintiff presents no evidence of conduct engaged

in by McClure or Vanhorn which could constitute conduct which is

atrocious, intolerable, and so extreme and outrageous as to

exceed the bounds of decency. Their acquiescence to Gaylor’s

use of K-9 Berkley does not meet the high bar under West

Virginia law. Nor do the comments that defendants made

regarding the dog having sharp teeth or plaintiff’s loss of

bowel control, that plaintiff characterizes as taunts, rise to

that level. Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va.

1991) (“conduct that is merely annoying, harmful of one's rights

or expectations, uncivil, mean-spirited, or negligent does not

constitute outrageous conduct”).

Likewise, Gaylor’s deployment of K-9 Berkley cannot

reasonably be considered to be sufficiently outrageous to

constitute intentional infliction of emotional distress. While

the objective reasonableness of deploying K-9 Berkley remains an

issue of disputed fact, no reasonable jury could find that

utilizing a canine to effect an arrest against a suspect who

could be armed and dangerous, who disregarded more than a dozen

warnings that a canine would be used, and who was in a location

that posed substantial danger to the officer involved amounted

to extreme and outrageous conduct exceeding the bounds of

decency.

Finally, defendant argues that the City is immunized

under WVGTCIRA inasmuch as Count VI alleges an intentional tort.

See W. VA. CODE § 29-12A-4(b)(1) and (c). As with Count V,

plaintiff does not contest this argument. Accordingly, Count VI

is dismissed as to the City of Charleston and as to each of the

three individual officer defendants in this case.

IV. Conclusion

Accordingly, it is hereby ORDERED as follows:

1. Counts I, II, III, IV, and VI are dismissed as to

all defendants;

2. Count V is dismissed as to defendant the City of

Charleston;

3. Defendants’ motion for summary judgment is denied as

to Count V insofar as it pertains to defendant

Anthony L. Gaynor.

Based on the foregoing, the City of Charleston, Troy

Vanhorn, and Shaun McClure are dismissed from this action. The

case shall proceed only as to Count V against Anthony L. Gaylor.

The Clerk is directed to forward copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: August 2, 2021

- Bb,

Jo . Copenhaver, Jr.

Senior United States District Judge

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