                     United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 02-1081
                                  ___________

Jeffrey M. Kuha,                        *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Minnesota.
City of Minnetonka; William Roth;       *
Kevin Anderson; Dennis Warosh;          *
                                        *
            Defendants - Appellees.     *
                                        *
                                   __________

                           Submitted: October 7, 2002
                               Filed: May 8, 2003
                            Amended: April 27, 2004
                                 ___________

Before MURPHY, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       An opinion in this case was filed on May 8, 2003. Both parties filed timely
motions for rehearing by the panel and rehearing en banc. The motion for rehearing
by the panel is granted. Pursuant to the grant of that motion, this amended and
substituted opinion is filed.
       After fleeing a routine traffic stop in the early morning hours, the plaintiff-
appellant, Jeffrey M. Kuha, was tracked to a grassy field by two police officers and
a police dog. The dog, trained to bite and hold until commanded to release, bit Kuha
near his groin, severing his femoral artery. Pursuant to 42 U.S.C. § 1983, Kuha
brought an excessive force claim against the City of Minnetonka and several officers1
involved in the incident. Kuha also brought state tort claims for negligence, assault,
and battery. The district court granted summary judgment to the defendants, holding
that Kuha could not demonstrate a constitutional violation and therefore could not
state a claim under § 1983. The district court alternatively held that even if a
constitutional violation could be established, the police officers had qualified
immunity for their actions, and Kuha could not show that the violation was caused
by inadequate training or a custom, practice or policy of the City. The state claims
were dismissed under Minnesota’s immunity doctrine. This appeal followed.

       We reverse in part and affirm in part. We hold that Kuha’s allegation that the
police officers failed to give a verbal warning prior to using a police dog trained to
bite and hold is sufficient to state a Fourth Amendment claim. Thus, we disagree
with the district court’s initial determination that Kuha failed to allege a constitutional
violation. We also disagree with the district court’s conclusion that the City is not
liable under § 1983 as a matter of law. We agree, however, that the individual
officers are shielded from suit by qualified immunity, and that the state claims were
properly dismissed against all defendants.




      1
        The caption names William Roth, Kevin Anderson, and Dennis Warosh as
direct defendants. During summary judgment proceedings, Kuha voluntarily
dismissed his action against Officer Roth. See Appellant brief, at 3 (citing transcript
of summary judgment hearing, at 3).

                                           -2-
                                           I.

       On the evening of September 22, 1999, Kuha went to a bar with friends. He
states that he had four or five beers at the bar and then drove to a friend’s house.
Kuha claims he left his friend’s home at approximately 1:00 a.m., intending to drive
home. Shortly after leaving, he drove his car into a roadside curb, damaging the car
and flattening the tire. Kuha walked back to his friend’s house to get help. He and
his friend changed the tire and placed the damaged tire on the front seat of the car.
Kuha then continued on his way home.

       At approximately 5:30 a.m., Kuha encountered Officer Roth, a Minnetonka
police officer, who was driving in the opposite direction. Kuha failed to dim his
lights when he approached the oncoming police car. Officer Roth made a u-turn and
pulled Kuha over. Officer Roth called in the vehicle’s license plate information and
started to get out of the car for what appeared to be a routine traffic stop.

       At this point, Kuha opened his door, got out, looked at the officer, and ran from
his car, heading for a ditch and swamp abutting the road. Officer Roth attempted to
follow Kuha but Kuha disappeared into the swamp. Beyond the swamp was a hilly
area with high grass and dense brush and foliage. Beyond that were apartment and
office buildings. Officer Roth returned to his police car and called for back-up.
While waiting for back-up, Officer Roth inspected Kuha’s car, noting its damage and
the flat tire on the front seat. He also found Kuha’s wallet and concluded that the
picture on the license matched that of the person who had fled from the scene.

       Within minutes, Officers Warosh and Anderson arrived. They were
accompanied by Officer Anderson’s K-9 partner, “Arco.” Arco is trained under a
“bite and hold” method; thus, if given a “find” command, Arco will find, bite and
“hold” a suspect until commanded to release. While tracking Kuha, Officer Anderson
held Arco’s leash in one hand and a flashlight in the other. Officer Warosh provided

                                          -3-
cover for the K-9 team. Arco remained on his leash as they tracked plaintiff up a
steep, woody hill and toward a grassy field.

       Approximately thirty minutes after the initial stop, and as the K-9 team reached
the top of a hill, Arco alerted, indicating that plaintiff was relatively nearby. At this
point, Arco was around ten feet out on his lead. Arco bounded into the three-foot-
high grass and “seized” Kuha. Arco is trained to bite and hold the first body part that
he reaches. In this instance, Arco bit Kuha’s upper leg. Kuha was naked except for
his boxer shorts. He claims that he took off his clothes after swimming through the
swamp because they were wet and cold.

       Kuha states that he held his hands up to surrender as the officers approached
and before Arco bit him, but concedes that the officers may not have seen him
because of the high grass. The officers aver that they did not see the seizure but
instead heard Kuha scream and arrived on the scene immediately thereafter. Prior to
calling off Arco, Officers Anderson and Warosh inspected the area around and under
Kuha to ensure he was unarmed. During this time, Kuha gripped Arco’s head trying
to free his hold. Officer Anderson repeatedly told Kuha he would not call off the dog
until Kuha let go of the dog and put his hands up. Kuha eventually complied and
Officer Anderson called off the dog. It is undisputed that the entire apprehension,
from bite to release, took no more than ten to fifteen seconds.

       The officers then handcuffed Kuha and noticed that Kuha was bleeding from
the site where Arco bit him. They applied pressure to the wound and called for an
ambulance. A subsequent medical examination revealed that Arco’s bite had pierced
plaintiff’s femoral artery, causing substantial blood loss.

      On May 25, 2000, Kuha pled guilty to the charge of disobeying a police officer.
According to Kuha, he ran from Officer Roth because he feared he may have been
over the legal alcohol consumption limit. Kuha claims he was afraid of being

                                          -4-
convicted for driving under the influence which would have severely hindered his
prospects for a career as a commercial pilot. A sample of Kuha’s blood was taken at
the hospital when he was treated for the dog bite. The sample placed Kuha’s blood
alcohol level above the legal limit. He was not charged with driving under the
influence, however, because of concerns that his blood loss may have altered the
results of the test.

                                         II.

       We review de novo the district court’s grant of summary judgment and its
qualified immunity determination. See Hill v. McKinley, 311 F.3d 899, 902 (8th Cir.
2002); Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir. 2002).

A.    Kuha’s § 1983 claims:

      “In order to survive a motion for summary judgment under § 1983, the plaintiff
must raise a genuine issue of material fact as to whether (1) the defendants acted
under color of state law, and (2) the alleged wrongful conduct deprived the plaintiff
of a constitutionally protected federal right.” Cooksey, 289 F.3d at 515 (citations
omitted).

       Kuha asserts that Officers Anderson and Warosh used excessive force in
violation of the Fourth and Fourteenth Amendments in: (1) using a dog trained in the
“bite and hold” method under the circumstances of the case – where Kuha had fled
from a minor traffic violation and there was no legitimate concern that he was armed
or dangerous; (2) allowing the dog to attack Kuha without warning; and (3) refusing
to call off the dog when it was clear that Kuha was unarmed and not dangerous.
Kuha alleges municipal liability based on the City’s failure to properly formulate a
police dog policy that contemplates less dangerous methods–e.g., the “find and bark”
method. Kuha also alleges municipal liability based on the City’s inadequate

                                         -5-
training, control and supervision of its officers regarding the appropriate use of police
dogs.

       Kuha’s excessive force claim is analyzed under the Fourth Amendment’s
“objective reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 395
(1989) (clarifying that “all claims that law enforcement officers have used excessive
force–deadly or not–in the course of an arrest, investigatory stop, or other ‘seizure’
of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard”) (emphasis in original). “The test of reasonableness under
the Fourth Amendment is not capable of precise definition or mechanical
application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979), quoted in Graham, 490 U.S.
at 396. “[H]owever, its proper application requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985),
characterizing the inquiry as “whether the totality of the circumstances justifie[s] a
particular sort of . . . seizure”). In sum, “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests [must be balanced] against the importance
of the governmental interests alleged to justify the intrusion.” United States v. Place,
462 U.S. 696, 703 (1983), quoted in Garner, 471 U.S. at 8.

       “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22
(1968)). “The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments–in circumstances that
are tense, uncertain, and rapidly evolving–about the amount of force that is necessary
in a particular situation.” Id. at 396-97. “[T]he question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances

                                           -6-
confronting them, without regard to their underlying intent or motivation.” Id. at 397
(citations omitted). “An officer’s evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force constitutional.” Id.
(citations omitted).

      In reviewing Kuha’s claims, the substantive law must be applied in the context
of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Thus, the relevant inquiry is
whether Kuha presented enough proof in support of his claim that a jury could
properly find that the degree of force used against him was not “objectively
reasonable.” We conclude that he did.

       Before reviewing Kuha’s specific claims, we briefly address, and reject, Kuha’s
contention that a police dog constitutes deadly force.2 No federal appeals court has
held that a properly trained police dog is an instrument of deadly force, and several
have expressly concluded otherwise. See, e.g., Vera Cruz v. City of Escondido, 139
F.3d 659, 663 (9th Cir. 1998) (defining “deadly force” as “that force which is
reasonably likely to cause death” and finding the possibility of death from a properly
trained police dog too remote to constitute deadly force); Robinette v. Barnes, 854
F.2d 909, 912 (6th Cir. 1988) (holding that “the use of a properly trained police dog
to apprehend a felony suspect does not carry with it a ‘substantial risk of causing
death or serious bodily harm’”) (footnote omitted, and quoting definition of “deadly
force” from Model Penal Code § 3.11(2)). In Robinette, the only published case
where a suspect was actually killed by a police dog, a burglary suspect was hiding

      2
        Under Tennessee v. Garner, 471 U.S. 1 (1985), it is objectively unreasonable
to use deadly force against a suspect “unless it is necessary to prevent [his] escape
and the officer has probable cause to believe that the suspect poses a threat of death
or serious physical injury to the officer or to others.” Id. at 3. We assume without
deciding that Garner’s probable cause standard could not be satisfied in this case.

                                         -7-
beneath a car and the police dog seized the suspect’s exposed neck. Id. at 911. The
Robinette court concluded that deadly force was not at issue because there was no
showing that the unusual circumstances which resulted in the suspect’s death were
foreseeable. Id. at 912 (describing incident as “an extreme aberration from the
outcome intended or expected”).

       “[T]he mere recognition that a law enforcement tool is dangerous does not
suffice as proof that the tool is an instrument of deadly force.” Id. at 913; see also
Vera Cruz, 139 F.3d at 661 (“[W]e do not read Garner as covering all uses of force
that might result in death, no matter how remote the possibility.”). We find the
likelihood of death from the use of a properly trained police dog to apprehend a
suspect sufficiently remote as to preclude its characterization as deadly force.3 See
id. at 663 (assuming “that a properly trained police dog could kill a suspect under
highly unusual circumstances,” but concluding that “[t]he prospect of such an
aberration doesn’t convert otherwise nondeadly force into deadly force”).
Accordingly, review of excessive force claims involving police dogs is properly



      3
        We acknowledge some conflict within the case law as to whether the Model
Penal Code (MPC) definition of deadly force–“force that the actor uses with the
purpose of causing or that he knows to create a substantial risk of causing death or
serious bodily injury,” MPC § 3.11(2)–is appropriate for Fourth Amendment analysis.
Compare Vera Cruz, 139 F.3d at 661-63 (discussing case law and finding the MPC
definition inapposite to the Fourth Amendment context), with Robinette, 854 F.2d at
912-13 (applying MPC definition in context of police dog bite), and Ryder v. City of
Topeka, 814 F.2d 1412, 1414 n.11 (10th Cir. 1987) (approving MPC definition in
footnote and applying to police shooting). We find persuasive the reasoning
espoused in Vera Cruz: “The MPC is designed to govern criminal liability; Garner’s
deadly force rule sets the boundaries of reasonable police conduct under the Fourth
Amendment. We decline to put police doing their jobs in the same category as
criminals doing theirs.” Vera Cruz, 139 F.3d at 662. That said, under the MPC
definition our ultimate conclusion remains unchanged: the use of a properly trained
police dog in the course of apprehending a suspect does not constitute deadly force.

                                         -8-
governed by the general standard established in Graham rather than the deadly force
standard of Garner.

       Turning to Kuha’s specific claims, we conclude that 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. In
Vathekan v. Prince George’s County, 154 F.3d 173 (4th Cir. 1998), the Fourth Circuit
reversed a summary judgment ruling in favor of a police officer who deployed a
police dog without a verbal warning. Id. at 178-79; see also Kopf v. Wing, 942 F.2d
265, 268-69 (4th Cir. 1991) (reversing summary judgment in favor of officer
defendants where there existed a factual dispute regarding whether a verbal warning
was given, and recognizing validity of plaintiff’s argument that “a forewarning that
the dog is going to attack, which provides the suspects a fair chance to surrender, is
more reasonable than a surprise assault”). While other circuits have not addressed
this precise issue, the presence or absence of a warning is a critical fact in virtually
every excessive force case involving a police dog. See, e.g., Ruvalcaba v. City of Los
Angeles, 167 F.3d 514, 517 (9th Cir. 1999) (noting that officers gave three warnings
in both Spanish and English before releasing police dog into a closed theater pursuant
to burglary reports); Vera Cruz, 139 F.3d at 660-61 (9th Cir. 1997) (officer gave two
verbal warnings before sending police dog after fleeing suspect, who was drunk and
had been harassing restaurant employees); Matthews v. Jones, 35 F.3d 1046, 1051
(6th Cir. 1994) (finding no excessive force as a matter of law where the record was
clear that the officer warned plaintiff, a fleeing misdemeanant, several times before
releasing the police dog to apprehend him); Robinette, 854 F.2d at 911 (holding fatal
attack on suspect by police dog objectively reasonable where undisputed testimony
showed that police shouted three warnings before releasing dog); see also IACP
National Law Enforcement Policy Center: “Law Enforcement Canines,” (May 1992),
Appellant’s app. at A.227 (“It is essential that a verbal warning be issued prior to
releasing the canine . . . . The warning should be given from behind cover and in
such a manner, if possible, that would allow anyone . . . to hear it. . . . [T]he warning

                                          -9-
should be repeated . . . and a reasonable time given for the suspect to surrender before
the canine is released.”).

       The district court held that the officers were not required to put themselves in
danger by giving away their location to a hiding suspect whom they did not know for
certain was unarmed.4 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. To the contrary, such a practice would likely diminish
the risk of confrontation by increasing the likelihood that a suspect will surrender.
See Robinette, 854 F.2d at 914 (concluding that use of police dogs reduces likelihood
of harm to officers, bystanders and suspects). While there may be exceptional cases
where a warning is not feasible, we 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. Although a verbal warning
will not always result in a peaceful surrender, it may be, as argued by plaintiff, that,
without such a warning, seizure by force is a nearly foregone conclusion. See
Vathekan, 154 F.3d at 176 (noting that purpose of verbal warning is to “enable
innocent persons to exit the area and afford suspects an opportunity to surrender”).

      As to Kuha’s other claims, we conclude that neither survives summary
judgment. Kuha contends that the use of a police dog trained only in the bite and
hold method was objectively unreasonable. In essence, Kuha argues that the
governmental interest in apprehending a fleeing misdemeanant will never outweigh
the potential harm inherent in canine assisted apprehensions. We disagree. Police

      4
         We note that the search in this case involved hiking through dense brush,
foliage, and high grass, with flashlights and a police dog. Given this, we suspect that
the officers’ location was ascertainable without a warning, and, indeed, the record
suggests that Kuha heard their approach prior to his seizure.

                                         -10-
dogs serve important law enforcement functions, see Robinette, 854 F.2d at 914
(declining to “label ‘unreasonable’ a police practice [dog use] which has proven
useful in a variety of law enforcement situations”), and their use is not inherently
dangerous. There are innumerable situations where the use of a properly trained and
utilized police dog, even one trained only in the bite and hold technique, will not
result in physical interaction with the suspect, most obviously because the dog
remains on a leash until his handler releases him. Police are trained, and
constitutionally obligated, to use only that amount of force reasonably necessary to
effect a seizure. We will not presume that officers will abuse their discretion in this
respect. And, as discussed above, we believe it will be the rare case where a verbal
warning prior to releasing the dog would not facilitate a peaceful resolution of the
situation. In sum, the mere use of a police dog trained to bite and hold does not rise
to the level of a constitutional violation. Cf. Jarrett v. Town of Yarmouth, 309 F.3d
54, 63 (1st Cir. 2002) (discussing K-9 bite case law in context of qualified immunity,
and observing that “there is no case that has held [“bite and hold”] policies to be
unconstitutional”). And in this particular case, we agree that, given the odd turn of
events initiated by Kuha, the initial decision to use Arco to assist in Kuha’s
apprehension was objectively reasonable as a matter of law.

       Kuha’s claim of excessive force by the officers in the moments following his
apprehension by Arco is a closer question. We must decide whether, construing the
facts in the light most favorable to Kuha, a jury could properly conclude that it was
objectively unreasonable for the officers to require Kuha to release Arco prior to
calling off the dog. Cf. Watkins v. City of Oakland, 145 F.3d 1087, 1090 (9th Cir.
1998) (affirming denial of qualified immunity where plaintiff raised genuine issue of
material fact as to whether the force used against plaintiff, “including allowing [the
K-9] to continue biting [him] until [he] showed his hands, was reasonable under the
circumstances”). As Arco was biting Kuha’s upper leg, Kuha’s hands gripped the
dog’s head in an attempt to minimize the damage and pain. Officer Anderson
repeatedly told Kuha that he would not call off the dog until Kuha raised his hands

                                         -11-
in the air. Kuha states that he tried to comply but his hands would instinctively return
to the dog’s head. Eventually Kuha did comply with Officer Anderson’s order and
the dog was called off. Kuha emphasizes that he was nearly naked during the attack,
that he was clearly unarmed, and that the officers had no indication that he was
dangerous.

       Kuha’s argument is compelling. It does not, however, end our analysis.
Graham requires “careful attention to the facts and circumstances of each particular
case,” 490 U.S. at 396, and cautions against hindsight. Id. Here, the officers were
confronted with an inexplicable flight from a minor traffic stop in the early hours of
the morning. They knew the suspect had chosen to swim through a swamp rather
than encounter a police officer. The area they were searching was difficult to
traverse. The officers knew there were inhabited apartment buildings nearby and that
residents would soon be leaving for work. They knew that Officer Roth had not seen
a gun in the brief moments before Kuha fled, but, given the totality of the
circumstances, they were reasonably wary of what they might encounter when they
found Kuha, and reasonably concerned for their safety.

        Turning to the actual seizure, it is undisputed that the entire incident lasted only
ten to fifteen seconds. Moreover, we note that this is not a case where the officers are
accused of siccing a police dog on a manifestly unarmed and compliant suspect. It
appears uncontested that the officers did not see the initial seizure since Arco was ten
feet ahead on his lead. They heard the scream and arrived immediately thereafter.
On arrival, the officers were confronted with Arco “holding” a nearly naked suspect
who had been hiding in three-feet-high grass. During the ten seconds or so that
ensued, the officers were searching the area under and around Kuha to ensure that he
was not hiding a weapon which could be used against the officers or the dog. At the
same time, Officer Anderson was ordering Kuha to release the dog’s head.




                                           -12-
       In light of the short time frame at issue and the conditions under which Kuha
fled and was found, we conclude that as a matter of law the officers’ actions after
Kuha was bitten were not objectively unreasonable. See Hill, 311 F.3d at 902 (stating
that issue of whether the evidence establishes a constitutional violation is a question
of law). We are mindful that we must construe the facts in the light most favorable
to Kuha, and we do so. But we cannot ignore the undisputed facts that are equally
relevant to our analysis. To do otherwise would vitiate Graham’s explicit recognition
of, and allowance for, a measure of deference to officer judgment given the “tense,
uncertain, and rapidly evolving” circumstances that officers often confront. Graham,
490 U.S. at 396-97.

B.    Qualified immunity:

        Because we find that Kuha made a sufficient showing to survive summary
judgment on his § 1983 claim, we must review the officers’ and City’s asserted
defenses. We agree with the district court that Officers Anderson and Warosh are
entitled to qualified immunity for their actions in this case. Under the doctrine of
qualified immunity, state actors are protected from civil liability when “their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), quoted in Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000). The qualified
immunity inquiry is a two-step process. First, the court must ask, “[t]aken in the light
most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001).
If a violation can be made out, the next step is to ask whether the constitutional right
was clearly established in light of the specific context of the case. Id. “For a right to
be deemed clearly established, the ‘contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.’”
Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).

                                          -13-
       Kuha has alleged facts sufficient to survive summary judgment on his Fourth
Amendment claim, which is based on the officers’ failure to give a verbal warning
prior to using a police dog to seize him. The second step of the qualified immunity
inquiry will still shield the officers from suit, however, if their conduct was
objectively legally reasonable in light of the information they possessed at the time
of the alleged violation. See Harlow, 457 U.S. at 818-19. In other words, if the
officers’ mistake as to what conduct the law required is reasonable, they are entitled
to the immunity defense. Saucier, 533 U.S. at 205. Defendants will not be immune,
however, “if, on an objective basis, it is obvious that no reasonably competent officer
would have concluded’ that the defendant should have taken the disputed action.”
Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). Thus, “[q]ualified immunity operates . . . to protect officers
from the sometimes ‘hazy border between excessive and acceptable force,’ and to
ensure that before they are subjected to suit, officers are on notice their conduct is
unlawful.” Saucier, 533 U.S. at 206 (internal citations omitted).

       Kuha’s right to a verbal warning in this case was not clearly established at the
time of the seizure. Officers Anderson and Warosh were not on notice that it
arguably was constitutionally impermissible to use a police dog against Kuha without
a verbal warning under the circumstances of this case. See Hill, 311 F.3d at 904
(quoting Saucier, 533 U.S. at 201, for the proposition that “whether the alleged
constitutional right was clearly established ‘must be undertaken in light of the
specific context of the case, not as a broad general proposition’”); Jarrett, 309 F.3d
at 62 (characterizing relevant inquiry as “whether a reasonable officer would have
believed that releasing a trained police dog to apprehend [defendant] was lawful in
light of both clearly established law and the particular circumstances of that night”).
There are no cases from this circuit that mandate such a warning and a review of other
circuits offers little guidance on the issue. In most of the published K-9 bite cases,
the fighting issue is whether the initial decision to release the dog was objectively



                                         -14-
reasonable under the circumstances.5 Where a verbal warning was given, the
subsequent release of the dog to locate a hiding suspect has generally met that test.
It does not necessarily follow, however, that it was clearly established that the
absence of a verbal warning was objectively unreasonable.

       In those few cases turning on a failure to warn, significant factual differences
weigh against charging Officers Anderson and Warosh with notice sufficient to
warrant denial of qualified immunity. The Fourth Circuit, in a 1998 case, found it
clearly established that it is objectively unreasonable for a police officer to fail to give
a verbal warning before releasing a police dog to seize someone. Vathekan, 154 F.3d
at 175. Vathekan involved the release of a police dog into a house whereafter the dog
found, bit, and seriously injured a sleeping woman. Id. In an earlier Fourth Circuit
case, Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), the court concluded that releasing
a police dog, without warning, into an extremely narrow passage between a shed and
a fence, where the suspects were essentially trapped, could be deemed objectively
unreasonable. Id. at 268-69. While we agree with the general holding in both these
cases, they do not clearly establish that a verbal warning is always required. An
officer could conclude, as Officer Anderson testified in this case, that in situations
where the location of the suspect is less evident, a warning would place the officers
at undue risk from a hiding suspect. We cannot say that “no reasonably competent
officer” would have concluded otherwise. See Malley, 475 U.S. at 341 (“As the

       5
         Many of these cases involve allegations that an officer ordered a police dog
to attack even though the plaintiff had clearly and unambiguously surrendered. See,
e.g., Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (affirming
denial of qualified immunity where plaintiff claimed to have complied with officer’s
command to lie down, but then officer ordered the dog to attack him anyway); Luce
v. Hayden, 598 F. Supp. 1101 (D. Me. 1984) (denying summary judgment and
qualified immunity to defendants where arrestee alleged that while he was lying on
his back with his hands handcuffed behind him, the trooper had the dog bite the
arrestee multiple times). This case includes no such allegation and thus these cases
add little to our qualified immunity analysis.

                                           -15-
qualified immunity defense has evolved, it provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.”). Accordingly,
Officers Anderson and Warosh are entitled to qualified immunity for their actions in
this case.

C.    The City’s liability:

      Kuha also seeks to hold the City liable for the alleged constitutional violation.
Even though we find that the defendant officers are entitled to qualified immunity
protection, we must still address the question of municipal liability. This is so
because “[a] municipality that operates under a policy or custom that
unconstitutionally deprives a citizen of his or her rights may be liable under § 1983.
This is true even if the arresting officers are not held responsible because of some
good faith belief, meriting qualified immunity.” Tilson v. Forrest City Police Dep’t,
28 F.3d 802, 813 (8th Cir. 1994) (citations and footnote omitted). We, therefore,
turn next to the City’s liability.

       A city may be sued directly under § 1983 where “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by [the city’s] officers.” Monell v.
Dep’t of Social Servs., 436 U.S. 658, 690 (1978). Monell liability also attaches “for
constitutional deprivations visited pursuant to governmental ‘custom’ even though
such a custom has not received formal approval through the body’s official
decisionmaking channels.” Id. at 690-91. Municipalities cannot be held liable under
§ 1983, however, “unless action pursuant to official municipal policy of some nature
caused a constitutional tort.” Id. at 691. “[A] municipality cannot be held liable
solely because it employs a tortfeasor—or in other words, a municipality cannot be
held liable under § 1983 on a respondeat superior theory.” Id.




                                         -16-
      In order to ensure that Monell liability does not collapse into respondeat
superior liability, the Supreme Court has instructed courts to employ strict standards
of causation and culpability. See Board of the County Commissioners of Bryan
County v. Brown, 520 U.S. 397, 405 (1997). The Supreme Court has cautioned
against “blur[ring] the distinction between § 1983 cases that present no difficult
questions of fault and causation [with] those that do.” Id.

      In this circuit, we have taken care not to blur this distinction by differentiating
between the showing necessary when a plaintiff alleges an unconstitutional policy
and when a plaintiff alleges an unconstitutional custom. In Ware v. Jackson County,
Mo., 150 F.3d 873 (8th Cir. 1998), we stated,

      A plaintiff may establish municipal liability under § 1983 by proving
      that his or her constitutional rights were violated by an “action pursuant
      to official municipal policy” or misconduct so pervasive among
      non-policymaking employees of the municipality “as to constitute a
      ‘custom or usage’ with the force of law.” Monell v. Department of Soc.
      Serv., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)
      (Monell) (internal quotation omitted); see also McGautha v. Jackson
      County, 36 F.3d 53, 55-57 (8th Cir. 1994) (McGautha); Jane Doe A v.
      Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990) (Jane Doe A).
      “Official policy involves ‘a deliberate choice to follow a course of
      action * * * made from among various alternatives’ by an official who
      [is determined by state law to have] the final authority to establish
      governmental policy.” Jane Doe A, 901 F.2d at 645. Alternatively,
      “custom or usage” is demonstrated by:

             (1) The existence of a continuing, widespread, persistent
             pattern of unconstitutional misconduct by the
             governmental entity's employees;

             (2) Deliberate indifference to or tacit authorization of such
             conduct by the governmental entity's policymaking
             officials after notice to the officials of that misconduct; and

                                          -17-
             (3) Th[e] plaintiff[’s] injur[y] by acts pursuant to the
             governmental entity's custom, i.e., [proof] that the custom
             was the moving force behind the constitutional violation.

      Id. at 646 (citing Harris v. City of Pagedale, 821 F.2d 499, 504-07 (8th
      Cir. 1987) (Harris)).

Ware, 150 F.3d at 880.

      Similarly, in Mettler v. Whitledge, 165 F.3d 1197 (8th Cir. 1999), we made this
same distinction, stating:

      [T]his Court does not use the terms “policy” and “custom”
      interchangeably when conducting a Monell analysis. Rather, a “policy”
      is an official policy, a deliberate choice of a guiding principle or
      procedure made by the municipal official who has final authority
      regarding such matters. See Ware v. Jackson County, 150 F.3d 873, 880
      (8th Cir. 1998) (citing Jane Doe A v. Special Sch. Dist., 901 F.2d 642,
      645 (8th Cir.1990)). Ms. Mettler has not identified any official policy
      that arguably played a role in her son's death.

             Therefore, we must determine whether Ms. Mettler has come
      forward with evidence from which a jury could reasonably find the
      existence of a relevant municipal custom. According to Ware, Ms.
      Mettler must satisfy three requirements to prove a municipal custom
      exists. These requirements are:

                   (1) The existence of a continuing, widespread,
                   persistent pattern of unconstitutional misconduct by
                   the governmental entity’s employees;

                   (2) Deliberate indifference to or tacit authorization
                   of such conduct by the governmental entity’s
                   policymaking officials after notice to the officials of
                   that misconduct; and


                                        -18-
                    (3) Th[e] plaintiff[’s] injur[y] by acts pursuant to the
                    governmental entity’s custom, i.e., [proof] that the
                    custom was the moving force behind the
                    constitutional violation.

      Id. (quoting Jane Doe A, 901 F.2d at 646) (alterations in the original).

Mettler, 165 F.3d at 1204.

        It is important that the purpose underlying this distinction between policy and
custom remains the focus of our inquiry in determining whether Monell liability may
attach. Under Monell, a municipality can be found liable under § 1983 only where
the municipality itself caused the constitutional violation at issue. Monell, 436 U.S.
at 694. Requiring a showing of deliberate indifference to a pattern of unconstitutional
conduct in circumstances where there is no official municipal policy that a plaintiff
can point to ensures that the municipality is held liable for its own actions and not the
aberrant actions of its employees. However, where, as here, the plaintiff points to an
allegedly unconstitutional official policy, alleges that municipal employees complied
with that policy, and claims that such compliance caused the deprivation of his or her
constitutional rights, causation and culpability are not at issue. See Bryant County,
520 U.S. at 406-07 (stating that, where plaintiff has not alleged that “municipal action
itself violated federal law, or directed or authorized the deprivation of federal rights,”
plaintiff “must demonstrate that the municipal action was taken with ‘deliberate
indifference’ as to [the municipal action’s] known or obvious consequences”).

      In this case, Kuha argues that his injuries are the result of the City’s
unconstitutional policy regarding the use of K-9 force—i.e., that the City violated his
Fourth Amendment right to be free from excessive force by adopting and
implementing a policy of training and using police dogs in an objectively
unreasonable manner. Therefore, because Kuha alleges that his constitutional rights
were violated by an action taken pursuant to an official municipal policy (as opposed


                                          -19-
to a failure to train, for instance), our analysis must proceed under the direct route to
Monell liability, which does not require a separate and distinct showing of “deliberate
indifference.” See Bryan County, 520 U.S. at 411 (“[T]he conclusion that the action
taken or directed by the municipality or its authorized decisionmaker itself violated
federal law will also determine that the municipal action was the moving force behind
the injury of which the plaintiff complains.”); Williams v. Kaufman County, 352 F.3d
994, 1014 n. 66 (5th Cir. 2003) (stating a showing of deliberate indifference is not
necessary “when the municipality (through its policymaker) has directly caused the
injury.”); Gibson v. County of Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002)
(distinguishing between direct and indirect paths to Monell liability and stating that
the indirect route requires proof of deliberate indifference); Ware, 150 F.3d at 880
(stating “deliberate indifference” showing necessary when plaintiff alleges an
unconstitutional “custom or policy,” whereas an official policy is shown when it
“involves ‘a deliberate choice to follow a course of action . . . made from among
various alternatives’ by an official” with final authority to make governmental policy)
(quoting Jane Doe A, 901 F.2d at 645); Donovan v. City of Milwaukee, 17 F.3d 944
(7th Cir. 1994) (“The City also may be held liable for damages under Monell if
Donovan [a § 1983 plaintiff] could demonstrate that one or more of the officers took
unconstitutional action pursuant to an official policy.”).

       The City argues that summary judgment was properly granted on Kuha’s
Monell claim because Kuha did not allege facts sufficient to support a finding of
“deliberate indifference.” In support of this argument, the City cites Shrum v. Kluck,
249 F.3d 773 (8th Cir. 2001). In Shrum, the plaintiff alleged a substantive due
process claim stemming from a school district’s decision to remain silent about sexual
impropriety allegations against a teacher and to give him a neutral recommendation
for another teaching position. Id. at 775. After being hired by another school district,
the teacher sexually molested Shrum’s son, and Shrum sought to vindicate her son’s
due process rights under § 1983. Id.



                                          -20-
       The district court granted summary judgment in favor of the school district.
We affirmed on the ground that Shrum failed to generate a genuine issue of material
fact on both the question of the school district’s requisite level of culpability and on
the school district’s causation of the constitutional injury at issue. Id. at 780. We
held that, when the underlying constitutional violation is a substantive due process
claim, a plaintiff must satisfy the formidable “shocks the conscience” standard. Id.
at 779. In some cases, deliberate indifference to an employee’s unconstitutional
conduct may satisfy this standard. Id. In addition, we held that there was not such
a high degree of predictability in giving the offending teacher a neutral letter of
recommendation that the school district could fairly be said to have caused Shrum’s
son’s injuries. Id. at 780.

       The City’s reliance on Shrum is misplaced for two reasons. First, the plaintiff
sought to impute § 1983 liability on the school district by way of the indirect route
to Monell liability. See id. at 779 (distinguishing policy as “‘an official policy, a
deliberate choice or a guiding principle or procedure made by an official with
authority’” from custom as “a ‘persistent, widespread patter of unconstitutional
conduct of which officials have notice and subsequently react with deliberate
indifference or tacit authorization’” (quoting Johnson v. Outboard Marine Corp. 172
F.3d 531, 536 (8th Cir. 1999))). Therefore, contrary to the City’s assertion, we did
not hold in Shrum that a § 1983 plaintiff seeking to impose Monell liability on a
municipal entity must always come forward with a separate and distinct showing of
deliberate indifference irrespective of the type of claim alleged.

       Second, the Shrum court’s discussion of deliberate indifference pertained to
whether Shrum came forward with sufficient proof to establish that the school
district’s conduct shocked the conscience. We held that “in some circumstances,
official policy that is deliberately indifferent to unconstitutional conduct may satisfy
the ‘shocks the conscience’ standard.” Id. We determined that the school district’s
conduct in entering into a confidential agreement with the offending teacher and

                                         -21-
providing him with a neutral employment recommendation was not so deliberately
indifferent that it rose to the level of shocking the conscience. Id. at 779-80. We
concluded that summary judgment was appropriate because “Shrum failed to prove
the essential elements of her § 1983 claim because [the school district’s] behavior did
not meet the significantly high culpability threshold of ‘shocking the conscience’ and
did not sufficiently cause the constitutional violation.” Id. at 780.

       As we noted in Shrum, the essential elements of a § 1983 claim are: “(1)
violation of a constitutional right, (2) committed by a state actor, (3) who acted with
the requisite culpability and causation to violate the constitutional right.” Id. at 777.
We did not impose a fourth element in Shrum. Instead, proof of the third element can
sometimes be satisfied by proof of deliberate indifference when the alleged
unconstitutional conduct stems from an alleged violation of a plaintiff’s substantive
due process rights. Because Kuha has not alleged that the City violated his
substantive due process rights and because he has alleged that his constitutional
injuries were caused by the officers’ compliance with an official municipal policy, the
City’s deliberate indifference argument is unavailing.

        Applying the principles set forth in Monell and its progeny, it is clear that the
City’s motion for summary judgment must be denied. Chief of Police Joy Rikala
testified in deposition that everything that transpired in the apprehension of Kuha was
in accordance with Department policy. Rikala dep. at 77; see also id. at 102 (“Q.
You’re fully satisfied that in all of the respects of [Officer] Anderson’s behavior and
his use of the K-9[,] Minnetonka’s policy was carried out appropriately? A. Yes.”).
Moreover, Chief Rikala’s ratification of the officers’ conduct undermines her attempt
to distinguish between training procedures, by which the dogs are trained to bite and
hold all suspects, and official policy, which condones K-9 use in only limited
circumstances. See Directive No. 50.1.3: Using Canine for Apprehension of
Criminals (authorizing K-9 use in the following situations: to prevent continued
criminal activity or escape of a person “whom the officer has reasonable cause to

                                          -22-
believe has committed a felony or gross misdemeanor crime”; protection of an officer
or other person from bodily harm; or “other tactical use”).

       We have already held that a jury could properly find that the failure to give a
verbal warning before using a police dog trained to bite and hold is objectively
unreasonable. If, at trial, the jury determines that a Fourth Amendment violation
occurred in this case, then the jury can also reasonably conclude that the City’s policy
on police dogs–which authorizes the use of dogs trained only to bite and hold, and
which did not mandate a verbal warning in this scenario–caused the constitutional
violation. See Monell, 436 U.S. at 694 (explaining that city policy “causes” an injury
where it is “the moving force” behind the constitutional violation).

       The City is free to argue at trial that the bite and hold policy does, in fact,
require a verbal warning. The Department’s Directive No. 50 touches on verbal
warnings but in a limited way. Section 50.1.1 states: “The canine handler gives a
verbal warning before entering a building and on each successive floor to search.”
It is unclear whether this verbal warning requirement extends to the situation
here—where a K-9 is used outdoors. If the jury agrees and finds that the City’s
policy requires warnings, the City will not be liable for officer conduct which
conflicted with the policy. For summary judgment purposes, however, the indoor-
specific character of Directive No. 50 and Chief Rikala’s ratification of all aspects of
the officers’ conduct undermine the City’s argument on this point.

        Accordingly, Kuha is entitled to maintain his Monell action. See Chew v.
Gates, 27 F.3d 1432, 1444-45 (8th Cir. 1994) (reversing summary judgment in city’s
favor where there was “little doubt that a trier of fact could find that [plaintiff’s dog
bite] injury was caused by city policy” where departmental policy “authorized seizure
of all concealed suspects–resistant or nonresistant, armed or unarmed, violent or
nonviolent–by dogs trained to bite hard and hold”) (emphasis in original).



                                          -23-
D.    The state tort claims:

       The district court correctly granted summary judgment on the plaintiffs’ state
tort claims. See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998)
(noting that application of immunity is a question of law subject to de novo review).
Minnesota’s official immunity doctrine provides that “a public official charged by
law with duties which call for the exercise of his judgment or discretion is not
personally liable to an individual for damages unless he is guilty of a willful or
malicious wrong.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Min. 1988)
(quotation and citation omitted);6 accord Kari, 582 N.W.2d at 923. The doctrine is
“intended to insure that the threat of potential liability does not unduly inhibit the
exercise of discretion required of public officers in the discharge of their duties.”
Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996) (quotation
omitted). “Official immunity involves the kind of discretion which is exercised on
an operational rather than a policymaking level, and it requires something more than
the performance of ‘ministerial’ duties.” Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn.
1992).

       On appeal, Kuha argues that the officers’ actions were ministerial rather than
discretionary and thus official immunity is inapplicable.7 Kuha’s theory posits that
once the police made the decision to use a police dog to apprehend him, the assault
and battery–i.e., the dog bite–was inevitable and no discretionary decisions were

      6
       In Elwood, the Minnesota Supreme Court clarified that the federal immunity
doctrine does not control state common law claims. 423 N.W.2d at 677. Thus, our
review of Kuha’s state claims is independent of our analysis and conclusions
regarding qualified immunity.
      7
        After concluding the officers’ actions were discretionary, the district court
found “no evidence whatsoever of malice” on the officers’ part. Kuha has not
challenged that aspect of the district court’s ruling in his appellant briefs and we
therefore decline to reach the issue.

                                        -24-
involved. See Watson, 553 N.W.2d at 411 (“A court reviewing immunity issues must
examine with particularity the nature of the conduct the plaintiff alleges as the basis
of a negligence claim.”).

       For reasons already discussed, we reject the contention that the use of a
properly trained police dog inevitably results in apprehension by force and/or
involves no discretion on the officers’ part. To the contrary, once the discretionary
decision is made to use a dog to assist in an apprehension, the dog’s handler must
continuously assess the evolving situation and make operational discretionary
decisions—e.g., how to instruct the K-9, when to give a verbal warning, whether and
when to let the dog off its leash, etc. See State v. City of Mounds View, 518 N.W.2d
567, 569-70 (Minn. 1994) (“recogniz[ing] that generally the duties of police officers
call for the exercise of significant judgment and discretion”); S.L.D. v. Kranz, 498
N.W.2d 47, 50 (Minn. 1993) (recognizing, as relevant considerations in official
immunity inquiry, “the nature, quality, and complexity of [the] decision-making
process”); Pletan, 494 N.W.2d at 41 (noting the many factors that must be weighed
in the discretionary decisions to engage in, and to continue, a high speed chase of a
fleeing criminal suspect). In this case, the officers’ decision to use a police dog, and
the moment by moment decisions made in the course of that use, were, as a matter of
law, discretionary acts, and the officers are entitled to official immunity. See Kari,
582 N.W.2d at 923 (stating that official immunity is appropriate where “an official
must make instantaneous decisions often on the basis of incomplete information”);
Watson, 553 N.W.2d at 415 (finding official immunity appropriate where the
“situation unfolded in a manner which was far from ‘fixed and designated’ . . .”);
Elwood, 423 N.W.2d at 679 (quoting with approval Ross v. Consumers Power Co.,
363 N.W.2d 641, 679 (Mich. 1984), for proposition that “police faced with a
potentially dangerous situation ‘must be given a wide degree of discretion in
determining what type of action will best ensure the safety of the individuals involved
and the general public, the cessation of unlawful conduct, and the apprehension of
wrongdoers.’”).

                                         -25-
        Whether to extend this immunity to the City is a policy question. Pletan, 494
N.W.2d at 42. Vicarious official immunity is appropriate where the threat of liability
against the governmental employer could deter the police officer from exercising his
independent judgment in deciding whether, and how, to pursue a suspect in the future.
S.L.D., 498 N.W.2d at 51. We agree with the district court that vicarious official
immunity is appropriate in this case. Although Kuha was initially stopped for failing
to dim his lights, his behavior following that stop led the officers to reasonably
believe that more might be at issue than a mere traffic infraction. See Pletan, 494
N.W.2d at 43 (refusing to fashion “a bright-line exception to vicarious official
immunity in instances toward the lower end of the risk continuum” because “so many
factors come into play in any [given case]”). Thus, this is not the type of reckless
conduct on the officers’ part which might suggest that the City should remain subject
to suit. See id. (suggesting that poor judgment which rises to the level of recklessness
might support a denial of vicarious official immunity); Kari, 582 N.W.2d at 925
(denial of official immunity appropriate only where “the wrongful act so
unreasonably put at risk the safety and welfare of others that as a matter of law it
could not be excused or justified”). Given the circumstances under which Kuha fled,
and the area into which he fled, we conclude that policy considerations support
extending the officers’ official immunity to the City. See Pletan, 494 N.W.2d at 43
(holding that with respect to police pursuits, the police officer’s official immunity
extends to the officer’s public employer).

                                          III.

       With respect to Kuha’s § 1983 claim, we reverse the district court’s judgment
in favor of the City and remand for further proceedings consistent with this opinion.
As to the district court’s qualified immunity determination, we conclude that the law
with respect to the use of police dogs was not sufficiently established that a
reasonable officer would have known that the failure to give a verbal warning could
be deemed unconstitutional. Finally, with respect to the state tort claims, we agree

                                         -26-
with the district court’s conclusion that the individual officers are entitled to official
immunity and that vicarious official immunity for the City is appropriate in this case.
                         ______________________________




                                          -27-
