Chew v. Gates

Incident Summary & Facts

At about 2 p.m. on September 4, 1988, a Los Angeles police officer stopped Thane Carl Chew for a traffic violation in Pacoima. Chew produced his license, lit a cigarette, and talked with the officer. When the officer went back to his car, Chew ran on foot, scaled several fences, and hid in a large scrapyard. He had not been searched for weapons. The officer then learned of three outstanding felony warrants, of unspecified type in the record. Police set up a perimeter and brought in a helicopter and canine units. About two hours after Chew fled, Officer Daniel Bunch unleashed the police dog Volker, a German Shepherd trained to “bite hard and hold.” Volker found Chew crouching between metal bins, out of Bunch’s sight.

Chew says he tried to surrender and begged officers to call off the dog. For summary judgment purposes, the defendants stipulated that he tried to surrender peacefully. Volker bit him three times, dragged him four to ten feet, and caused severe lacerations; Chew says his arm was “nearly severed.” Bunch said that when he arrived, Chew was hitting the dog with a metal pipe, apparently found in the scrapyard. Bunch admitted kicking at Chew, possibly in the head. A jury awarded Chew $13,000 against Bunch.

Procedural posture: The district court had granted summary judgment to the City of Los Angeles on the merits, and to Chief Daryl Gates and the K-9 policymakers on qualified immunity. Chew appealed those rulings.

Core Legal Issue

(1) Was releasing a bite-and-hold police dog on a concealed, non-dangerous suspect reasonable as a matter of law under the Fourth Amendment, and could the City be liable under Monell? (2) Were the individual policymakers entitled to qualified immunity?

The Holding

The court reversed summary judgment for the City, because a jury must decide whether the force was excessive and caused by city policy. It affirmed qualified immunity for Gates, McKinley, Mooring and Yarnall, because the law on canine bite-and-hold policies was not clearly established. The case was remanded against the City only.

The Court’s Analysis:

• Quantum of force: severe. Volker bit Chew three times, dragged him, and was “beyond the reach of a countermanding order” because he searched out of the handler’s sight. Chief Gates knew such bites could be fatal. Courts must first assess the amount of force before weighing the Graham factors.
• Immediate threat, “the most important single element”: Nothing showed Chew was armed or threatening; he simply hid quietly. Felony warrants of unknown type carry limited weight (Garner). Flight and hiding favored the government “only slightly,” since Chew was surrounded.
• No split-second pressure: “This was not an occasion on which the police were forced to make ‘split-second judgments.’” After two hours, there was time to deliberate, so reasonableness was a jury question.
• Monell: The City conceded that its policy authorized dogs to seize all concealed suspects, so policy could be the “moving force.” A city cannot avoid liability by letting lower-level officials set force policy. Evidence that dogs bit suspects in over 40% of deployments could also support deliberate indifference.
• Qualified immunity (Reinhardt and Trott, JJ.): The bite-and-hold practice was longstanding and widespread. The only appellate decision, Robinette, had upheld it, so no clearly established law barred it.
• Separate opinions: Judge Norris would have sent to a jury whether the dogs, as trained, were deadly force under Garner, and would have denied immunity. Judge Trott (dissenting on the merits) saw a hiding felon in a scrapyard full of “implements easily used as weapons” as presumptively dangerous and a ripe ambush risk.