The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14410 FEBRUARY 2, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-62153-CV-WPD
HENRY J. LAFAVORS,
Plaintiff-Appellant,
versus
KEN JENNE,
et. al.,
Defendants,
DANIEL OLARTE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 2, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Henry Lafavors appeals the district court’s grant of Defendant/Appellee
Deputy Daniel Olarte’s Amended Motion for Judgment as a Matter of Law which
reversed a jury verdict against Olarte for Lafavors’ claim under 42 U.S.C. § 1983.
The jury had awarded Lafavors $5,000 in compensatory damages and $30,000 in
punitive damages. Judgment as a matter of law was entered because the district
court found that no constitutional violation occurred. The court held that even if a
constitutional violation did occur, Olarte was entitled to qualified immunity.1
Although we normally review a district court’s grant of judgment as a matter
of law de novo, “when a district court enters judgment as a matter of law on the
ground that a jury’s answers to special interrogatories are consistent with each
other but inconsistent with a general verdict, we review only for an abuse of
discretion.” Wilbur v. Corr. Servs. Corp. 393 F.3d 1192, 1199-200 (11th Cir.
2004) (internal citations omitted).
We agree with the district court that Olarte did not violate any of Lafavors’
constitutional rights in arresting him. To determine whether a constitutional
violation occurred, we consider the following factors: (1) the underlying crime’s
1
Lafavors sued several other officers involved as well, but the jury only delivered a
verdict in Lafavors’ favor against Olarte.
2
severity; (2) whether the suspect poses an immediate threat to the safety of the
officers or others; and (3) whether the suspect actively resists arrest or attempts to
flee. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d
443 (1989).
Looking at the first factor, the officers arrested Lafavors on twelve
outstanding felony warrants. Although the warrants were not for violent crimes,
felonies in Florida carry minimum sentences of one year, indicating significant
potential imprisonment. See Fla. Stat. § 775.08. Twelve felony warrants certainly
qualify as sufficiently severe underlying crimes to justify the use of force in
apprehending the suspect.
As for the second factor, the jury found in its interrogatory that Lafavors
resisted arrest when the police dog bit him and that the dog bit Lafavors before he
was placed in handcuffs (i.e., before the arrest was completed). But the jury also
found that Olarte gave Lafavors a warning and an opportunity to surrender before
using the dog, and Lafavors did not surrender. Because of Lafavors’ resistance as
well as his imposing physical stature (6'1" in height and 240 lbs.), Olarte could
have reasonably believed that Lafavors posed a threat to the officers justifying the
use of the dog. See Kerr v. City of West Palm Beach, 875 F.2d 1546, 1553 (11th
Cir. 1989).
3
As to the third factor, while the jury found that Lafavors did not attempt to
escape during the arrest, knowledge of his previous escape attempts, combined
with his resistance to the arrest, supports the conclusion that there was sufficient
resistance and risk of flight to warrant employing the dog. In light of these jury-
determined facts, we find that the force used was reasonable as a matter of law, and
the court correctly reversed the general verdict finding otherwise.
We agree with the district court that, even if a constitutional violation did
occur, Olarte is entitled to qualified immunity. Olarte was clearly acting within his
discretionary authority when he arrested Lafavors. Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002). Assuming that being bitten by a police dog while
resisting arrest violates a constitutional right, Lafavors cannot show that this right
was clearly established at the time of his arrest. The closest cases that a plaintiff
might rely upon in an effort to establish such a right merely hold that a police dog
bite after a defendant has been subdued, surrendered, or has ceased resisting or
fleeing would violate the suspect’s constitutional rights. Priester v. City of Riviera
Beach, 208 F.3d 919, 924-25 (11th Cir. 2000); Kerr, 875 F.2d at 1551-52.2 These
2
Kerr lends support to Lafavors’ arguments, but it is distinguishable. In Kerr, one of the
suspects, Uwaine Kerr, fled from the police when a patrolling officer shone his searchlight on
Kerr. Kerr, 875 F.2d at 1552. Kerr, assuming he had evaded the officer, stopped to urinate on
the side of a wall when the officer found him and ordered his dog to attack him. Id. The jury
found that this use of the dog was not justified. Id. at 1548 n.5. Unlike Lafavors, however, Kerr
was not being sought on multiple felony warrants and was not specifically resisting arrest at the
moment the dog bit him.
4
cases do not establish that Olarte’s split second decision about whether to employ
the police dog on Lafavors who had not surrendered and was resisting arrest at the
time violated Lafavors’ constitutional rights. Therefore, although we find that
Olarte committed no constitutional violation, even if he did, he would have
qualified immunity.
Accordingly the district court did not abuse its discretion in granting
Olarte’s Amended Motion for Judgment as a Matter of Law.
AFFIRMED.
5