Maren Chaloupka – TLC Faculty & ’99 Grad 

At this time last year, our brother Michael Maddux had received discouraging news from a federal district court in the Middle District of Florida.  In a 1983 action against two officers of the Orlando Police Department, the trial judge had sustained the defense’s motion for summary judgment on qualified immunity.  Michael’s client, Colin, was driving on a suspended license, and blew through a stop sign.  When a police vehicle activated its siren and light, Colin turned into a parking lot, then got out of his car and ran.  One of the defendants chased him on foot into a wooded area.  Colin stopped running, and lay face-down on the ground. 

The police announced to Colin that they would use a police dog if Colin did not surrender.  Colin did not respond at first.  Then he shouted, “you got me.  I only ran because of my license.”  Even as Colin voiced his surrender, one of the defendant officers released the dog, which began biting Colin on the leg.  Colin shouted, “I’m not resisting” and begged the police to call off the dog.  This attack continued for five to seven minutes, during which Colin did not resist.  They neither handcuffed nor arrested Colin - - they just stood over him while the dog continued to bite.  Eventually, the officers finally handcuffed Colin and gave the dog a verbal command to release the bite.  By then, Colin’s leg was mangled, requiring emergent surgery (and six days of hospitalization).  The officers joked that Colin’s leg “looked like filet mignon.” 

Colin hired Michael, and Michael brought Colin’s case through two causes of action under 1983:  a 4th Amendment violation through the mere use of a police dog, and a separate constitutional violation for the prolonged attack after Colin surrendered.  The defense responded that qualified immunity shielded the officers from accountability to Colin.  The trial judge approved the defense’s claim, and dismissed the case. 

Michael determined that this case was too important - - Colin should not walk away, and Michael, as Colin’s attorney and confidante, could not walk away either.  Knowing that the Eleventh Circuit is hardly a bastion of liberal thought on civil rights laws, Michael took a deep breath, noticed his appeal, and began the careful work of preparing a brief and thinking ahead to oral argument.  Michael then argued the case in Atlanta in November 2011, to a three-judge panel which included two judges who were appointed in 1975 and 1976 (the ultimate author of the opinion was Mr. 1976). 

And last week, the Eleventh Circuit issued its decision - - a published decision, no less - - reversing the order of the district court and remanding Colin’s case for trial.  The court held that the initial decision to use a dog to help track and “initially subdue” Colin was constitutional; but, the officer used unconstitutionally excessive force for allowing the dog to attack Colin for five to seven minutes.  The court wrote: “

Critical to this determination is the fact that, in subjecting [Colin] to the dog attack, Officer Shanley increased the force applied at the same time the threat presented by [Colin] decreased … Evaluating Officer Shanley’s conduct at the time of the prolonged attack makes its unreasonableness plain.  Because [Colin] was begging to surrender, and because Officer Shalney could safely give effect to that surrender, the further infliction of pain was gratuitous and sadistic.  This the Constitution does not tolerate.”  (Emphasis in the original.) 

Providing a careful analysis of decisional authority on the use of police dogs, Michael moved this conservative court to find that there is a meaningful difference between a “split second” decision to use a dog to subdue and immediately arrest a fleeing suspect, versus a prolonged attack.  The court approved Michael’s research and analysis, and Michael’s application of that decisional authority to the facts of Colin’s case.  The court characterized the attack as “obviously cruel and unreasonable” and said that this case was “an ‘easy’ case about conduct so obviously unconstitutional that no prior case would be needed to make the holding explicit.”

On those strong holdings, the conservative Eleventh Circuit Court of Appeals sent Colin’s case back to the district court, to be set for trial.  Michael will now have the opportunity to present to a jury the arguments that moved this three-judge panel.  Michael has won Colin his day in court; he has made great new law in a defense-friendly area of the law; and he has shown us another example of how we can, and should, continue to serve our clients on appeal, no matter how daunting the prospect of appearing before a grumpy federal appeals panel.  Atta boy Michael (patteson@flash.net)! 

(PS – Admitting my bias, I’ll share that I am a proponent of incorporating TLC methods into appellate work, and persuading more TLC Warriors to do their own appellate work.  No one knows our cases and clients as well as we do.  Writing briefs is not tedious - - it is storytelling on paper rather than out loud.  And, given that many courts circulate draft opinions before oral argument, our oral arguments for our clients are our last and sometimes best chance to penetrate the thick hide of a cynical judge who rarely sees real humans.  For those Warriors who are contemplating attending Grad Course II this year, I am looking at convening a breakout session on the use of TLC methods in appellate work, as a cooperative sharing effort between those who handle their own appellate work and those who don’t but would like to start doing so.)