                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-14410                 FEBRUARY 2, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                   D. C. Docket No. 03-62153-CV-WPD

HENRY J. LAFAVORS,


                                                    Plaintiff-Appellant,

                                  versus

KEN JENNE,
et. al.,

                                                      Defendants,

DANIEL OLARTE,

                                                     Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (February 2, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

       Henry Lafavors appeals the district court’s grant of Defendant/Appellee

Deputy Daniel Olarte’s Amended Motion for Judgment as a Matter of Law which

reversed a jury verdict against Olarte for Lafavors’ claim under 42 U.S.C. § 1983.

The jury had awarded Lafavors $5,000 in compensatory damages and $30,000 in

punitive damages. Judgment as a matter of law was entered because the district

court found that no constitutional violation occurred. The court held that even if a

constitutional violation did occur, Olarte was entitled to qualified immunity.1

       Although we normally review a district court’s grant of judgment as a matter

of law de novo, “when a district court enters judgment as a matter of law on the

ground that a jury’s answers to special interrogatories are consistent with each

other but inconsistent with a general verdict, we review only for an abuse of

discretion.” Wilbur v. Corr. Servs. Corp. 393 F.3d 1192, 1199-200 (11th Cir.

2004) (internal citations omitted).

       We agree with the district court that Olarte did not violate any of Lafavors’

constitutional rights in arresting him. To determine whether a constitutional

violation occurred, we consider the following factors: (1) the underlying crime’s



       1
         Lafavors sued several other officers involved as well, but the jury only delivered a
verdict in Lafavors’ favor against Olarte.

                                                 2
severity; (2) whether the suspect poses an immediate threat to the safety of the

officers or others; and (3) whether the suspect actively resists arrest or attempts to

flee. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d

443 (1989).

      Looking at the first factor, the officers arrested Lafavors on twelve

outstanding felony warrants. Although the warrants were not for violent crimes,

felonies in Florida carry minimum sentences of one year, indicating significant

potential imprisonment. See Fla. Stat. § 775.08. Twelve felony warrants certainly

qualify as sufficiently severe underlying crimes to justify the use of force in

apprehending the suspect.

      As for the second factor, the jury found in its interrogatory that Lafavors

resisted arrest when the police dog bit him and that the dog bit Lafavors before he

was placed in handcuffs (i.e., before the arrest was completed). But the jury also

found that Olarte gave Lafavors a warning and an opportunity to surrender before

using the dog, and Lafavors did not surrender. Because of Lafavors’ resistance as

well as his imposing physical stature (6'1" in height and 240 lbs.), Olarte could

have reasonably believed that Lafavors posed a threat to the officers justifying the

use of the dog. See Kerr v. City of West Palm Beach, 875 F.2d 1546, 1553 (11th

Cir. 1989).



                                           3
       As to the third factor, while the jury found that Lafavors did not attempt to

escape during the arrest, knowledge of his previous escape attempts, combined

with his resistance to the arrest, supports the conclusion that there was sufficient

resistance and risk of flight to warrant employing the dog. In light of these jury-

determined facts, we find that the force used was reasonable as a matter of law, and

the court correctly reversed the general verdict finding otherwise.

       We agree with the district court that, even if a constitutional violation did

occur, Olarte is entitled to qualified immunity. Olarte was clearly acting within his

discretionary authority when he arrested Lafavors. Vinyard v. Wilson, 311 F.3d

1340, 1346 (11th Cir. 2002). Assuming that being bitten by a police dog while

resisting arrest violates a constitutional right, Lafavors cannot show that this right

was clearly established at the time of his arrest. The closest cases that a plaintiff

might rely upon in an effort to establish such a right merely hold that a police dog

bite after a defendant has been subdued, surrendered, or has ceased resisting or

fleeing would violate the suspect’s constitutional rights. Priester v. City of Riviera

Beach, 208 F.3d 919, 924-25 (11th Cir. 2000); Kerr, 875 F.2d at 1551-52.2 These

       2
         Kerr lends support to Lafavors’ arguments, but it is distinguishable. In Kerr, one of the
suspects, Uwaine Kerr, fled from the police when a patrolling officer shone his searchlight on
Kerr. Kerr, 875 F.2d at 1552. Kerr, assuming he had evaded the officer, stopped to urinate on
the side of a wall when the officer found him and ordered his dog to attack him. Id. The jury
found that this use of the dog was not justified. Id. at 1548 n.5. Unlike Lafavors, however, Kerr
was not being sought on multiple felony warrants and was not specifically resisting arrest at the
moment the dog bit him.

                                                4
cases do not establish that Olarte’s split second decision about whether to employ

the police dog on Lafavors who had not surrendered and was resisting arrest at the

time violated Lafavors’ constitutional rights. Therefore, although we find that

Olarte committed no constitutional violation, even if he did, he would have

qualified immunity.

      Accordingly the district court did not abuse its discretion in granting

Olarte’s Amended Motion for Judgment as a Matter of Law.

      AFFIRMED.




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