Civil Rights – Jury to decide if officer violated arrestee’s rights

Where a reasonable juror could conclude that an officer violated an arrestee’s rights when he allowed his police dog to attack, bite and injure the man on two separate occasions, the officer’s motion for summary judgment was denied.

Background

Calvin Wesley claims that Lynchburg Police Officer Sergeant Seth Reed violated his constitutional rights in violation of 42 U.S.C. § 1983 and assaulted him in violation of Virginia law when, on two separate occasions, Reed allowed police K-9 Knox to attack, bite and severely injure him. He also claims Reed falsified a warrant leading to his unlawful arrest.

He argues the City of Lynchburg is also liable for these alleged constitutional violations. Reed and the City move for summary judgment.

City

On the excessive force claims, Wesley argues “LPD officers routinely engage in unconstitutional customs and practices regarding excessive use of force in general, and excessive use of force by police dogs in particular,” citing 15 instances where he believes LPD officers used excessive force.

Yet, Wesley appears to have not conducted any discovery to substantiate these allegations; indeed, his summary judgment opposition is completely silent as to either the pattern of excessive force or the City’s liability for either arrest at issue in this case. As such, Wesley failed to establish a “duration and frequency” that indicates the City (1) had actual or constructive knowledge of the conduct and (2) failed to correct it due to their “deliberate indifference.”

On the failure-to-train claims, Wesley asserts that “[i]t is obvious that LPD has failed to properly train officers in the use of force because of the multitude of instances in which officers have used force in violation of policy” and that this lack of training “caused LPD officers to believe that a police dog can be used to secure an unarmed fleeing suspect.” But Wesley provides no additional information from discovery to substantiate these allegations. As such, he has failed to establish that the City failed to update its training and thus “consciously disregard[ed]” its officers’ use of K-9s to inflict excessive force during arrests. The court will grant summary judgment to the City.

Reed

An objective reasonableness standard applies to excessive force claims and, in assessing reasonableness, courts consider (1) the “severity of the crime” that is subject to the stop or arrest, (2) “whether the suspect poses an immediate threat to the safety of the officer or other” and (3) “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”

The first element is “intended as a proxy for determining whether ‘an officer [had] any reason to believe that [the subject of a seizure] was a potentially dangerous individual.’” Regarding the March 11, 2021, encounter, Reed had been injured by Wesley during a 2017 arrest and knew Wesley had fought with another officer during a 2018 arrest. This factor favors Reed.

However, Wesley did not pose a threat to the officers when he was surrounded by five officers, a K-9 and a truck door and was initially compliant by voluntarily exiting his vehicle. As such, the second factor cuts favors Wesley. Finally, evaluating the facts in favor of Wesley, evaluate Reed’s conduct in the light most favorable to Wesley, and because of the “particularly important” second factor, a reasonable jury could find that Reed used excessive force by deploying Knox.

Reed argues “no reasonable officer . . . would have known he would be violating Wesley’s Fourth Amendment rights by utilizing a K-9 to effect his arrest when he was actively resisting and/or fleeing and was known to be a violent and dangerous individual.” A reasonable jury could disagree. It was clearly established by March 11, 2021, that Wesley had a right to be free from gratuitous K-9 force.

Regarding the second encounter, on Dec. 20, 2021, the first factor again favors Reed while the second factor favors Wesley. Once Wesley was on the ground, the third factor cuts in favor of denying summary judgment. Because the “particularly important” second and third factors favor of Wesley, reasonable jury could find that Reed used excessive force by allowing force to continue once Wesley was on the ground. Finally, Reed is not entitled to summary judgment because it is a clearly established right that officers cannot use gratuitous force against suspects during an arrest.

Next, on the malicious prosecution claim, based on the body-worn camera footage, a reasonable jury could find Reed misled the magistrate and prosecutors about Wesley assaulting him. Finally Reed is not entitled to summary judgment on the companion assault and battery and gross negligence claims

City’s motion for summary judgment granted. Reed’s motion for summary judgment denied.

Wesley v. Reed, Case No. 6:24-cv-00032, April 9, 2026. WDVA at Lynchburg (Moon). VLW 026-3-168. 26 pp.

Full-Text Opinion

VLW 026-3-168
Virginia Lawyers Weekly