Kopf v. Wing

942 F.2d 265, 1991 WL 149795
Court of Appeals for the Fourth Circuit·Decided August 9, 1991·No. No. 90-2462·Published·Cited by 67 cases

Opinion

OPINION

K.K. HALL, Circuit Judge:

Ada Kopf, personal representative of the estate of Anthony Casella, appeals the district court’s grant of summary judgment to defendants, police officers and county, in Casella’s § 1983 action alleging excessive use of force in making an arrest. Because we find that the appellant made a sufficient showing to survive summary judgment, we reverse and remand.

[266] I.

Reciting the facts of this case is no easy task. The parties’ competing renditions hardly coincide. In the following narrative, we attempt to identify disputed or unilateral assertions of fact as such.

At midnight on February 21, 1988, police received a report of the armed robbery of a carry-out pizza shop in Hyattsville, Maryland, by a white male with a handgun. One hundred dollars had been stolen. Witnesses had recorded the license number of the van in which the perpetrator had fled, and a bulletin was promptly broadcast to all local police.

Within minutes; two Hyattsville city officers spotted the van and gave chase. The van stopped, and the three occupants — Joseph Corcoran, age 29; Tammy Obloy, age 17 and four months pregnant; and Anthony Casella, age 19 — fled on foot. Corcoran fell, injured his leg, and was quickly apprehended. Corcoran had thrown the gun out of the window of the van; however, when a search of Corcoran and the van failed to uncover the gun, officers concluded that the remaining suspects might have it. Casella and Obloy hid behind a shed in the back yard of a house in the residential neighborhood. This hiding place was an extremely narrow passage between the shed’s wall and a fence. Photographs of it were before the district court.

More officers, county and city, arrived. Among them was appellee Joe Wing with his Prince George’s County canine unit dog, “Iron.” He made one unsuccessful track around the neighborhood with Iron, but, on a second try, Iron located Casella and Obloy behind the shed.

Wing testified on deposition that, in an “extremely” loud voice, he warned the suspects that they should come out or he would release the dog. Obloy testified that she heard no such warning. No civilian witness heard it, though they heard other aspects of the incident. Wing’s loud warning was, however, heard by other police officers.

Wing released Iron. Iron ran to the rear of the shed and entered the passage from the west side. Wing followed; when he reached the corner of the shed, he shined his flashlight and saw Iron encounter Ca-sella and Obloy. Obloy was closer, and Iron bit her first. Casella kicked the dog to try to make it stop biting. According to Obloy, Casella yelled to the officers that Obloy was pregnant and to get the dog off of her. Wing tried to get into the passage, but he could not because of a post that blocked the way. Wing stated that he repeatedly told the two to raise their hands, but they did not. Iron released Obloy’s leg and began biting Casella.

At this point, appellees Steven Kerpel-man and James Skyrm, also county policemen, entered the defile from the east side, which was blocked by a woodpile but was not so inaccessible as the west entry. Ker-pelman and Skyrm grabbed Casella, and the dog continued to bite. Wing did not order Iron to release; instead, noting that Casella had no weapon in his hands, Wing ran back around the shed to assist Kerpel-man and Skyrm.

Casella struggled with the dog, Kerpel-man, and Skyrm. By this time, Iron was biting Casella in the thigh and groin; still Wing allowed the biting to go on. Casella was kicking the dog and flailing his arms at the officers. He struck Wing, who responded with a blackjack blow to Casella’s head, or, as Wing put it at deposition, the “upper head body area.” Wing stated that he picked Obloy up and lifted her across the other people and the woodpile to an officer outside the defile in the yard. Wing acknowledged that Iron was still biting Ca-sella in the “upper thigh, groin area,” but he only ordered Iron to release after Obloy was removed. Both Kerpelman and Skyrm stated that Skyrm, not Wing, had thrown Obloy over the woodpile.

Kerpelman and Skyrm were meanwhile struggling with Casella, who was in a hunched-over position between standing and kneeling. Kerpelman saw Casella “lunge” toward Skyrm, barely missing Skyrm’s gun, and Kerpelman assumed that Casella was trying to get the gun. Skyrm responded by striking Casella with his blackjack, intending, he stated, to strike in [267] the clavicle. Though Casella was flailing his arms and sometimes striking the officers, Kerpelman and Skyrm managed to grab his shoulder and tried to pull him from the defile. Casella’s jacket came off instead, and money fell out of it. On their second try, Skyrm and Kerpelman were able to pull Casella out. During the struggle, Kerpelman struck Casella in the “upper body” with his flashlight “once, maybe twice” with enough force to break the flashlight. He did not remember if he delivered these blows before or after the officers had pulled Casella into the yard. His flashlight broken, Kerpelman then struck Casella “once or twice” in “the upper torso” with his blackjack. He admitted that these blows were inflicted after Casella had been removed from the defile.

Casella was subdued in the yard by all three officers. Contrary to Kerpelman, Skyrm stated that no one struck Casella after he was removed from behind the shed.

Obloy testified that Casella did not resist arrest. Rather, he tried to get Iron off of her, and a policeman said “don’t touch my dog” in a “real angry voice,” and then struck Casella in the head with a “nightstick thing.”

Daniel Stroup, whose backyard abutted the fence behind the shed, was one hundred feet away during the incident. He did not hear any announcement that Wing was going to release the dog, though he saw it released and then heard Obloy scream. Stroup looked at the scene the next day; he saw blood out in the yard, but not behind the shed. Robert Reymer was standing on a corner across the street. He heard no announcement, but he also heard Obloy’s scream. In addition, he testified that he could hear a “constant poom, poom, poom, like being punched or hit,” which lasted “approximately one minute.”

Casella was taken by ambulance to a local hospital. He was frightfully mauled. He was rambling senselessly, which the police attributed to use of drugs rather than Casella’s head injuries. A drug test was negative. He had four scalp lacerations, a fractured skull, and a subdural hematoma.

Iron had left his marks, too. Casella had lacerations of the upper lip, chest, knee, leg, and scrotum. He was listed in critical condition, and underwent cranial surgery that night. Photographs of some of Casel-la’s injuries, after treatment, were also before the district court.

Fully two weeks later, on March 4, 1988, Casella was still confused and incoherent, suffering from “traumatic aphasia.” 1 He was not released from the hospital until March 28, 1988. He later pled guilty to armed robbery and was sentenced to seven years in state prison.

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Kopf v. Wing, 942 F.2d 265, 1991 WL 149795 (4th Cir. 1991).

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