                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT            FILED
                            ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              JUNE 20, 2008
                                  No. 07-13045
                                                            THOMAS K. KAHN
                                Argument Calendar
                                                                CLERK
                            ________________________

                      D. C. Docket No. 05-01221-CV-T-27EAJ

ERIC PACE,
                                                       Plaintiff-Appellant,
                                         versus

OFFICER KRISTOPHER S. AHLER,
individually and in his official capacity,
                                                       Defendant-Appellee.


                            ________________________

                                  No. 07-13444
                            ________________________

                     D. C. Docket No. 05-01221-CV-T-27-EAJ

ERIC PACE,
                                                       Plaintiff-Appellant,
                                         versus

CITY OF PALMETTO,
a municipal corporation,
OFFICER KRISTOPHER S. AHLER,
individually and in his official capacity,
                                                       Defendants-Appellees.
                               ________________________

                      Appeals from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                     (June 20, 2008)

Before EDMONDSON, Chief Judge, BLACK and FARRIS,* Circuit Judges.

PER CURIAM:

       Eric Pace appeals the district court’s grant of summary judgment to officer

Kristopher Ahler and the City of Palmetto on claims arising under 42 U.S.C.

§ 1983 and state tort law. All claims rely on Pace’s contention that officer Ahler

acted unreasonably when he used a police dog to apprehend Pace. Ahler released

the dog after Pace fled from a stolen vehicle and hid from police in a mangrove

swamp at night. The district court found officer Ahler’s use of the police dog did

not constitute a violation of the Fourth Amendment and Ahler was therefore

entitled to qualified immunity. Due to the lack of a constitutional violation, the

district court dismissed the § 1983 claims against officer Ahler and the City of

Palmetto. In similar fashion, the district court concluded Ahler was entitled to

statutory immunity against the state tort claim because Pace had not demonstrated

Ahler acted maliciously or in bad faith. See § 768.28(9)(a), Fla. Stat. On appeal,


       *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

                                                2
Pace argues the district court’s conclusions were erroneous.

       “Courts should determine the ‘objective reasonableness’ of a seizure by

balancing the ‘nature and quality of the intrusion’ against the ‘governmental

interest at stake.’” Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir.

2005) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). We perform this

balancing test by measuring “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.

       After reviewing the record de novo, and with the benefit of briefing and oral

argument, we conclude the district court committed no reversible error. Viewing

the facts of this case in the light most favorable to Pace, no constitutional violation

occurred under Graham because officer Ahler’s use of a police dog was not

objectively unreasonable. The state tort claim similarly fails because officer Ahler

did not act maliciously or in bad faith. Therefore, we affirm the judgments of the

district court.

       AFFIRMED.




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