TonyaMarie Adams, individually and on behalf of A.H. v. City of Cedar Rapids

United States Court of Appeals
For the Eighth Circuit
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No. 22-3234
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TonyaMarie Adams, individually and on behalf of A.H.
Plaintiff - Appellee
v.
City of Cedar Rapids
Defendant
Nathan Trimble
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 13, 2023
Filed: July 24, 2023
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
TonyaMarie Adams, for her son A.H., sued Officer Nathan A. Trimble under
42 U.S.C. § 1983, alleging he used excessive force by not giving a warning while
searching with a canine trained to “bite and hold.” Trimble moved for summary

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judgment. The district court1 denied qualified immunity on the excessive force
claim. Trimble appeals. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
I.
Just before midnight, on August 11, 2020, a convenience store was
burglarized in Cedar Rapids. Police began looking for suspects. About an hour
later, they saw a Mazda parked within a mile of the robbed store. When police
approached, it sped off. Police pursued it until it crashed into a tree. Five male
passengers fled on foot.
Police arrested one passenger, who had a firearm. He identified two of the
other passengers, who police knew often carried guns. Other officers, including
Officer Trimble, learned of the armed suspect and his identification of two other
suspects. K–9 units were called to search for the remaining suspects.2 About 1:00
a.m., Officers Bergen and Carton, both canine handlers, began searching. Five
minutes later, Officer Trimble and his police dog, Ace, began searching. Ace was
trained to physically apprehend an individual during a track or search by “biting and
holding” until the officer instructs him to release. Cedar Rapids Police Department
policy requires canine handlers to issue a verbal warning when releasing a K–9 dog,
and before searching a structure or enclosure, to notify suspects that the dog will bite
unless they make their presence known and surrender.
Officer Trimble did not issue any warnings. Officers Bergen and Carton each
issued two warnings during their search:
1 The Honorable Mark A. Roberts, United States Magistrate Judge for the
Northern District of Iowa, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
2 The day before the robbery, a large windstorm, a “derecho,” hit Cedar
Rapids, creating debris throughout the city and limiting visibility.

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• At 1:03 a.m., Officer Bergen, over the squad car’s PA system,
announced: “Cedar Rapids Police K–9, subjects in the area
surrender yourself now, you will be found and bit by the dog. Cedar
Rapids Police K–9, subjects in the area surrender yourself now, you
will be found and bit by the dog. This is your last and final warning
to surrender yourself.” [Issued from about 1124 Ellis Blvd. NW]
• At 1:03 a.m., Officer Carton gave a similar K–9 warning over his
squad car’s PA system. [Issued from about the intersection of I Ave.
and 4th Street NW]
• At 1:12 a.m., Officer Carton gave a similar K–9 warning over his
squad car’s PA system. [Issued from about I Ave. and 9th St. NW]
• At 1:12 a.m., Officer Bergen saw an identified suspect under a car
in the driveway of a residence at 1117 9th St. NW. Officer Bergen
shouted a K–9 warning at the suspect. The suspect surrendered and
was arrested.
While the other officers were apprehending that suspect, Officer Trimble and
Ace walked east toward 8th St. NW. Ace alerted to “fresh human odor.” Ace led
Officer Trimble down an alley toward the backyard of a residence at 1108 8th St.
NW. At 1:13 a.m., Ace approached a metal trailer in the backyard. The trailer was
about 191 feet from where the last suspect was arrested. Ace located a person—later
determined to be A.H.—underneath the trailer. As trained, Ace bit A.H.’s upper
arm. A.H. was arrested and transported to a hospital for treatment of his bite wounds.
The hospital treated the wounds with antibiotic ointment and released A.H.
TonyaMarie Adams, on behalf of her son A.H., sued the City of Cedar Rapids
and Officer Trimble. The district court dismissed all claims against the City and all
claims against Officer Trimble except for the claim for excessive force in violation
of 42 U.S.C. § 1983. The district court denied qualified immunity to Officer
Trimble, ruling that a genuine dispute of fact existed about the adequacy of the other
officers’ warnings and that the law was clearly established that Officer Trimble had
to issue a warning. Trimble appeals, claiming he is entitled to qualified immunity
because the law was not clearly established. “Whether qualified immunity shields a
government official from suit is a question of law, which we review de novo.”
Yellow Horse v. Pennington Cnty., 225 F.3d 923, 927 (8th Cir. 2000).

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II.
A public official is entitled to qualified immunity unless (1) “the official
violated a statutory or constitutional right” and (2) “the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “For a
right to be clearly established, ‘[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.’”
Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (en banc), quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Generally, “courts are required to view the
facts and draw reasonable inferences ‘in the light most favorable to the party
opposing the [summary judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378
(2007), citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However,
“[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380.
There is no dispute that Officer Trimble did not provide a warning when he
deployed Ace or when Ace alerted to fresh human odor during the search. The
parties dispute whether A.H. heard the warnings from the other officers. A.H., lying
underneath a trailer, testified he did not hear any warnings. A teenager, sitting on
the roof of a garage about 40-50 feet from A.H. in the opposite direction from the
officers, testified he heard the warnings.
The district court concluded that, at summary judgment, the adequacy of the
canine warnings given by other officers was a question of fact to be determined by
a jury. Contrary to Trimble’s passing arguments on appeal, the recordings and
witness testimony do not establish that the warnings could be heard from the location
where A.H. was lying on the ground. The evidence here does not blatantly contradict
A.H.’s testimony; a reasonable jury could believe his story. See Scott, 550 U.S. at
380 (ruling that the court erred by taking the facts most favorably to the non-movant

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when a videotape, capturing all relevant events, “blatantly contradicted” his factual
story such that “no reasonable jury could believe it.”). Taking the facts most
favorably to A.H., the district court correctly assumed he did not hear the warnings
and did not have an opportunity to surrender.3 See Tolan v. Cotton, 572 U.S. 650,
657 (2014) (“Our qualified-immunity cases illustrate the importance of drawing
inferences in favor of the nonmovant, even when, as here, a court decides only the
clearly-established prong of the standard.”); Williams v. City of Burlington, 27 F.
4th 1346, 1351 (8th Cir. 2022) (“This court may not make determinations of fact and
credibility in assessing whether a party is entitled to qualified immunity.”).
The district court ruled that Kuha v. City of Minnetonka, 365 F.3d 590 (8th
Cir. 2003) and Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007) (en
banc) clearly established that Officer Trimble was required to provide an adequate
warning when searching with his police dog trained to bite and hold. See L.G.
through M.G. v. Columbia Public Schools, 990 F.3d 1145, 1147 (8th Cir. 2021)
(To show a right is clearly established, a plaintiff may “identify existing circuit
precedent involving sufficiently similar facts that squarely governs the situation.”).
In Kuha, a suspect fled on foot after a routine traffic stop. Kuha, 365 F.3d at 595,
abrogated on other grounds by Szabla, 486 F.3d at 391-92. Two officers arrived
and searched together with a K–9 dog for the fleeing suspect. Id. Neither officer
gave a K–9 warning. Id. at 596. Thirty minutes into the search, the dog located
Kuha and, as trained, bit his leg. Id. at 595-96. This court held that the officers
violated Kuha’s constitutional right: “a jury could properly find it objectively
unreasonable to use a police dog trained in the bite and hold method without first
giving the suspect a warning and opportunity for peaceful surrender.” Id. at 598.
(The officers did receive qualified immunity because the law previously was not
clearly established to give “notice that it arguably was constitutionally impermissible
to use a police dog against Kuha without a verbal warning under the circumstances
of this case.” Id. at 602.) This court en banc assumed Kuha’s ruling about the
3 Asked about the issue of whether there is a violation, Officer Trimble stated
that he “would not abandon that issue if we go to trial. However, we did not focus
on it in this appeal.”

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constitutional violation was correct. See Szabla, 486 F.3d at 392 (“[W]e accept
Kuha’s Fourth Amendment holding for purposes of analysis, and assume there is a
submissible case that Officer Baker was required to give a warning before using his
police dog to bite and hold.”).
Officer Trimble emphasizes that, unlike in Kuha and Szabla, other officers
provided warnings here. See Kuha, 365 F.3d at 599 (stating “officers could have
placed themselves out of harm’s way . . . and given a loud verbal warning that a
police dog was present and trained to seize by force.”) (emphasis added). As
discussed, the record here, viewed favorably to A.H. does not establish that other
officers’ warnings could be heard by A.H. to permit an opportunity for peaceful
surrender.
Officer Trimble stresses that Kuha and Szabla recognize “exceptional cases”
where a warning need not be given. See id. He claims the “exceptional case[]” here
is the risk to officer safety where suspects are armed and may have just committed
a burglary.
The Kuha decision did recognize that an officer may forego the warning
requirement due to a personal safety risk, but said this would be “rare.” Id. at 600.
Explaining the need for a warning except in rare circumstances, this court reasoned
that generally a warning “diminish[es] the risk of confrontation by increasing the
likelihood that a suspect will surrender.” See id. at 599 (“We agree that officer safety
is paramount but disagree that the district court properly decided as a matter of law
that requiring a verbal warning will put officers at increased risk.”). Whether Officer
Trimble was able to forego the warning requirement because of a risk to his safety
was a factual question in this case. See, e.g., id. (“[W]e see no reason why, in this
case, a rational jury would be precluded from finding that the officers could have
placed themselves out of harm’s way—e.g., at the top of the hill where they had a
good vantage point, or behind one of the nearby apartment buildings—and given a
loud verbal warning that a police dog was present and trained to seize by force.”).
The jury is best suited to make this determination. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge, whether he is ruling on a motion for summary judgment or for
a directed verdict.”). There may be rare circumstances when the threat to officer
safety is so obvious that it becomes a legal question, but this is not one of them.
Assuming the facts most favorably to A.H., he did not hear the other officers’
warnings and did not have the opportunity to surrender. Officer Trimble had fair
notice from this court’s precedent that the failure to give a warning and an
opportunity to surrender violated clearly established law. He is not entitled to
qualified immunity.
* * * * * * *
The district court’s order denying qualified immunity is affirmed.
GRASZ, Circuit Judge, dissenting.
Given our limited jurisdiction to hear an interlocutory appeal of a denial of
qualified immunity, we can only review “whether the uncontested evidence
demonstrates that [Officer Trimble] violated a clearly established constitutional
right.” Brown v. Fortner, 518 F.3d 552, 557 (8th Cir. 2008).
It is undisputed that Officer Trimble did not personally give a warning prior
to Ace biting A.H. And the court has correctly assumed, for purposes of summary
judgment, that A.H. did not hear the repeated warnings to surrender or risk being
bitten that were given by other officers in the search area. Where the court errs, in
my view, is in concluding the repeated amplified warnings in the search area were
legally inadequate and that “Officer Trimble had fair notice from this court’s
precedent that the failure to give a warning and an opportunity to surrender violated
clearly established law.” Ante, at 7.

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The court’s conclusion seems to be premised on two legal suppositions: (1)
our precedent imposes a subjective standard for canine warnings, rather than an
objective standard; and (2) our precedent clearly establishes this subjective standard
providing Officer Trimble with notice he must personally deliver a warning that is
heard by the suspect, and he cannot rely on amplified warnings by other officers in
the same search area that would reasonably be heard by the suspect. In my view,
both suppositions are flawed.
It is clearly established in this circuit that when police utilize a canine trained
to bite and hold, a suspect must be given a warning and opportunity to surrender.
See Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2003), abrogated on other
grounds by Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007) (en banc).
However, it is not clearly established that a police officer using a canine must
personally deliver the warning or that the officer must be able to verify the warning
was in fact heard by the suspect. We have never before held that it is constitutionally
unreasonable for an officer to rely on canine warnings given by others that would
reasonably be heard by suspects. Neither Kuha, nor any other precedent placed
Officer Trimble on notice of the formulation of Fourth Amendment law utilized by
the court today.
In Kuha, no warnings were given at all. 365 F.3d at 595. Here, there were
four warnings provided by officers within the search area, three of which were on
PA systems. Puzzlingly, the court’s holding implies Trimble himself was
constitutionally required to give additional verbal warnings. No previous case has
established this requirement. The court’s rationale in Kuha itself contradicted this
notion when it explained, “officers could have placed themselves out of harm’s way
. . . and given a loud verbal warning that a police dog was present and trained to
seize by force.” Id. at 599. If officers can place themselves out of harm’s way to
give a warning, then it was reasonable for Trimble to believe it was constitutionally
permissible to rely on the amplified warnings given by other officers. This is
especially true given the power outage, storm debris, and danger of revealing his
location to those he had reason to believe were armed suspects hiding in the dark.

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In finding a dispute of material fact, the court relies on its conclusion that “a
reasonable jury could believe [A.H.’s] story” about not hearing the warning. Ante,
at 4. But that is not the right question. Instead, the court should be asking whether
it was objectively reasonable for Officer Trimble to believe the suspect would have
heard the warnings provided.
In sum, I do not believe case law supports the position that Officer Trimble
was required to give additional warnings when multiple amplified warnings were
already given in the search area, or that it was constitutionally unreasonable to rely
on the objective sufficiency of those previous warnings. As such, the evidence does
not show a violation of a clearly established constitutional right, and qualified
immunity is appropriate here.
I respectfully dissent.
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