                                                                       [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT                        FILED
                                                                      U.S. COURT OF APPEALS
                                 ________________________               ELEVENTH CIRCUIT
                                                                            JUNE 18, 2009
                                                                         THOMAS K. KAHN
                                       No. 08-13801                           CLERK
                                 ________________________

                           D. C. Docket No. 06-00984-CV-J-16TEM

ROBERT TRAMMELL,
                                                           Plaintiff-Appellant,

                                            versus

BRUCE A. THOMASON, in his
official capacity as Chief of Police of
the Jacksonville Beach Police
Department, Jacksonville Beach,
Florida, RICHARD KEITH DOROUGH,
individually, CITY OF JACKSONVILLE
BEACH, FL,
                                                           Defendants-Appellees.

                                  _________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                               _________________________
                                       (June 18, 2009)

Before TJOFLAT, ANDERSON and STAPLETON,* Circuit Judges.


       * Hon. Walter K. Stapleton, Senior United States Circuit Judge for the Third Circuit,
sitting by designation.
STAPLETON, Circuit Judge:

      Appellant Robert Trammell (“Trammell”) brought this action pursuant to 42

U.S.C. § 1983 against a state law enforcement officer and the City of Jacksonville

Beach, Florida, asserting that his Fourth and Fourteenth Amendment rights were

violated when he was seized with excessive force by a “K-9” police dog. The

District Court granted the officer’s and the City’s motions for summary judgment.

We will affirm the District Court’s determination with respect to the City.

However, because we find that a material dispute of fact exists as to whether the

law enforcement officer failed to remove the police dog promptly after discovering

that it had bitten the wrong person and because we conclude that such conduct

would foreclose official immunity for the officer, we will reverse the District

Court’s grant of summary judgment with respect to the officer.

                      I. Facts and Procedural Background

A. The Undisputed Facts

      On the evening of July 11, 2003, Robert Trammell (“Trammell”), a fifty-

seven year old Caucasian male, was visiting a friend, Henry Cooper (“Cooper”), at

Cooper’s townhouse in Duval County, Florida. At around 10 p.m., Trammell

stepped outside into Cooper’s backyard to make a telephone call. The small



                                          2
backyard was surrounded by a six-foot wooden security fence and was very dark.

While he was looking up a number on his phone, Trammell was suddenly knocked

to the ground and bitten on his throat by a police dog. As he struggled to remove

the dog, the dog repositioned itself and bit him multiple times on the throat. He

was rushed to the hospital in an ambulance. He required an eighteen day stay, four

operations, and incurred $147,514.82 in medical expenses for his severe injuries.

      On the same evening, the Atlantic Beach Police Department received a call

at approximately 9:17 p.m. from a woman reporting that her sister’s ex-boyfriend,

Robert Dillard (“Dillard”), was attempting to “kick-in” the sliding glass door in

her home. She described Dillard as a twenty-three year old African-American

male. Officers Douglas Paul Howell, Jr., and Shannon R. Hartley from the

Atlantic Beach Police Department were dispatched to the house. When they

arrived at the scene, they learned that Dillard had fled on foot and called for

assistance in tracking him.

      Because the Atlantic Beach Police Department did not own any helicopters

or have a K-9 unit of its own, the Jacksonville Sheriff’s Office deployed a

helicopter and one of K-9 units, consisting of Officer Dorough, a K-9 handler, and




                                          3
his police dog, a Belgian Malinois called Yacco.1

       Officer Hartley remained near the scene of the attempted break-in while

Officer Howell, Officer Dorough and Yacco began to search for Dillard. They

were joined by Officer Theron Golleher. Officer Dorough was informed that

Dillard was a twenty-three year old African American male, that he had two

outstanding misdemeanor warrants, and that he was suspected of committing a

residential burglary.

       When Officer Dorough commenced the search, he placed Yacco on a leash.

He held the leash in his right hand and his flashlight in his left hand. Officers

Howell and Golleher followed behind as he and Yacco began their ground search

for Dillard at his last known location. Yacco indicated that he “found” something

by becoming very still when he reached the outside back wall of the wooden fence

enclosing Cooper’s residence.

       Cooper’s yard was dark, and Officer Dorough could not see through the six-

foot security fence. For tactical reasons, he chose to remove part of the wooden

       1
         Yacco had been purchased by the City in 1998 after it was established that he met certain
standards for personality and prey instincts. Prior to being purchased, he had completed police
dog training in Holland. He had been trained in the “bite and hold” technique, in which the dog
bites the first body part he comes to when apprehending the suspect. Doc. 71 at 5. At the time of
the incident, Yacco had approximately 45 apprehensions that included biting the suspect. He had
never previously bitten anyone in the head or neck, nor had he previously bitten the wrong
suspect, other than on one occasion which was the result of an officer’s error during a training
exercise.

                                                4
fence and look through it, rather than look over it. He quickly shined his light

through the opening and saw no one. He found a spot on the fence that felt like a

gate and pulled out a few planks so he and Yacco could enter.

B. The Officers’ Version of the Remainder of the Event

       According to Dorough, he entered Cooper’s yard with Yacco on his leash.

Officers Golleher and Howell entered Cooper’s yard shortly afterward. Dorough

claims that, before he entered the backyard, he shouted two announcements or

warnings of his presence and intention to enter with Yacco, with each warning

followed by a five to fifteen second interval. Officers Golleher and Howell, who

were following behind, testified that they heard Officer Dorough make at least one

announcement.2 After hearing no response to his warnings, Dorough signaled to

Yacco to enter Cooper’s backyard.

       Dorough felt Yacco’s leash tighten as he followed the dog into the yard.

Upon entering Cooper’s backyard, Dorough saw that Yacco was engaged with

someone who he assumed was the suspect. The individual was lying face down on

the ground inside the fence to his right. Dorough yelled, “Let me see your hands!”

The individual rolled onto his side and wrapped his arms around Yacco. Dorough



       2
       The record does not indicate whether these officers heard Dorough simultaneously give
an announcement and enter, or whether there was a waiting period after the announcement.

                                              5
saw then that Yacco had bitten the individual on the throat, and he also saw for the

first time that the person was a Caucasian male. Dorough asserts that he

immediately yelled to Trammell to let go of Yacco while giving Yacco the verbal

command “stand still” to release his bite. Dorough claims that Yacco immediately

responded to the release command. Officer Golleher indicated that, when he

entered Cooper’s backyard, he saw Dorough lifting the dog away from Trammell.

C. The Facts in the Light Most Favorable to Trammell

      Prior to being bitten, Trammell did not hear or see any sign of police

activity that would have alerted him to the presence of the dog. He could hear the

neighbors on either side of the backyard making noise, but he did not hear any

police warnings, nor did he hear a police helicopter. After being initially knocked

to the ground, he was eventually able to sit up and pull the dog off of his throat by

holding it by the scruff of its neck. At some point, police officers arrived on the

scene with flashlights. They stood close enough to intervene, but they made no

move to remove the dog until Cooper, alerted by the noise, came running out of

the house and made them remove Yacco. Cooper asserts that, when he came out

of the house, he saw Trammell sitting up and holding a large dog at bay by the

scruff of its neck while the dog snapped at his face. Trammell’s shirt had been

ripped off of his back and shredded to his waist. His hands were shaking with the

                                          6
effort of holding back the dog. Three officers stood alongside the fence, next to a

waist-high board that had been laid across the entryway. They each had

flashlights trailed on Trammell but made no move to remove the dog. Only after

Cooper screamed that he was going to kill the dog did one of the officers say, “get

the dog off of him.” Another officer then reached down and grabbed the dog’s

leash off the ground near his foot and forcefully pulled it away from Trammell.

D. The District Court Proceedings

       One count of Trammell’s complaint in the District Court was brought

pursuant to 42 U.S.C. § 1983 against Officer Dorough in his individual capacity

alleging violations of the Fourth and Fourteenth Amendment’s proscription

against unreasonable seizure. Two counts were filed against the City and Bruce

A. Thomason in his official capacity as Chief of Police claiming liability under 42

U.S.C. § 1983 for Dorough’s Fourth and Fourteenth Amendment violations.3

       In support of his motion for summary judgment, Trammell argued that his

Fourth and Fourteenth Amendment right to be free from unreasonable seizure had

been violated (1) when Dorough released Yacco with no warning or with

       3
        The complaint included two additional counts relating to alleged violations of state law
concerning liability for damage done by dogs, and a count against the City for negligence under
Florida’s common law. The District Court dismissed without prejudice the state law negligence
claim and dismissed with prejudice the state law statutory claims. As these holdings have not
been appealed, and are not relevant to the remainder of Trammell’s claims, we need not discuss
them further here.

                                               7
inadequate warning and (2) when Dorough failed to remove Yacco promptly upon

realizing that Trammell was not Dillard. With respect to his first theory of

liability, the District Court concluded that the record evidence viewed in the light

most favorable to Trammell indicated that Dorough “entered the residential

backyard while simultaneously giving a K-9 warning.” Doc. 71 at 21.

Nevertheless, the Court concluded that his entry and the subsequent attack

violated Trammell’s right to be free from unreasonable seizure. It ultimately

granted summary judgment against Trammell, however, on the ground that the

right violated was not “clearly established” at the time of the attack and that

Dorough was accordingly entitled to official immunity.

      With respect to Trammell’s second claim, the District Court found that the

record viewed in the light most favorable to him indicated as follows:

      Even upon realizing that Yacco was not biting and holding the actual
      suspect and was off of his leash, Officer Dorough did not
      immediately command Yacco to release Trammell. Officers
      Dorough, Golleher and Howell did not immediately aid Trammell
      until Trammel’s [sic] friend Cooper rushed out of his house and
      demanded that they do so. Yacco only released Trammell after
      Officer Dorough physically removed the dog from Trammell’s person
      instead of by responding to Officer Dorough’s commands as he was
      trained to do.

Doc. 71 at 21.

      The Court then concluded that “[g]iven these facts, a reasonable jury could

                                          8
conclude that . . . use of the canine in the manner prescribed constituted

unreasonable and excessive use of force in violation of Plaintiff’s constitutional

rights under the Fourth Amendment.” Id. (quoting Reese v. Coxwell, No. 3:04-

CV-17, 2006 WL 680811 at *3 (N.D. Fla. March 13, 2006)).

       The District Court nevertheless entered summary judgment in Dorough’s

favor because

       [T]here [was] nothing in the record indicating that Officer Dorough’s
       conduct on July 11, 2003, was so beyond the hazy border between
       excessive and acceptable force that he should have known he was
       violating the Constitution. This was not a case in which Officer
       Dorough purposely “sicced” Yacco on a compliant and unsuspecting
       suspect or one where Officer Dorough let Yacco bite Plaintiff for an
       extended period of time. Therefore, based on the facts of the instant
       case, the Court finds that Officer Dorough is entitled to qualified
       immunity on Trammell’s Section 1983 claim.

Doc. 71 at 24.

       Finally, the District Court held that Trammell had failed to tender evidence

sufficient to support his claim that the City was liable for failing to train Dorough.4

The Court noted that a city can be held responsible for a failure to train police

officers only if that failure to train amounts to “deliberate indifference” to the

constitutional rights of persons with whom police come into contact. Id. at 25.



       4
        The Court properly treated the claim against Chief Thomason in his official capacity as
equivalent to the claim against the City. We do so as well.

                                                9
The District Court determined that Trammell had failed to meet this standard.5

                                II. Claims Against Dorough

       As we have indicated, the summary judgments favoring Dorough rest on

official immunity. “Qualified immunity protects government officials performing

discretionary functions ‘from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Priester v. City of Riviera Beach, 208

F.3d. 919, 925 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 102

S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). It “balances two important interests –

the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S.

Ct. 808, 815 (2009).

       We apply a two-part test to determine whether a defendant, acting within the

scope of his discretionary authority, is entitled to official immunity at the summary


       5
          The District Court held in the alternative that, since Officer Dorough was entitled to
official immunity on the claims against him, the City could not be liable on the related claims
against it. We agree with Trammell that this is not the case. While a constitutional violation on
the part of a municipal agent is a predicate to municipal liability under § 1983, see City of Los
Angeles v. Heller, 475 U.S. 786, 799 (1986), the availability of official immunity to the agent is
irrelevant to municipal liability. See Leatherman v. Tarrant County Narcotics Intelligence
Coordination Unit, 507 U.S. 163, 166 (1993).

                                                10
judgment stage: we determine whether the plaintiff has tendered a prima facie

case of a deprivation of a constitutional right and, if so, whether that right was

“clearly established” at the time of the violation. Saucier v. Katz, 533 U.S. 194,

201 (2001); Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003).

A. The Failure to Warn Claim

       Trammell insists that there is a material dispute of fact as to whether

Dorough gave any warning and, further, that even a simultaneous warning leaving

no time for identification or surrender would not have rendered the seizure

reasonable. We agree with Trammell that there is a material dispute of fact with

respect to whether and when any warning was given.6 That evidentiary conflict is

not, however, important to our analysis because we may assume for present

purposes, without deciding, that a constitutional violation occurred when Yacco

seized Trammell.

       Appellees’ brief, while insisting that the District Court properly found

official immunity with respect to this claim, does not take issue with its conclusion


       6
         Trammell testified that while in the small residential backyard he heard no warning and
that under the circumstances he would have heard one if it had been given. We conclude that a
jury could find that none was given. See Vathekan v. Prince George’s County, 154 F.3d 173,
180 (4th Cir. 1998) (“If a warning is not given, then a witness will not hear one. A juror could
reasonably conclude that if certain witnesses did not hear a warning, then no warning was given,
even if other witnesses testify to a warning.”) (emphasis in original). We also agree with
Trammell that he did not waive this contention.

                                               11
that a jury could find a violation of Trammell’s right to be free from unreasonable

seizure. Given this circumstance and our conclusion that the right found by the

District Court to have been violated was not “clearly established” at the time, we

exercise our discretion not to review the District Court’s determination that a

constitutional violation occurred. Pearson, 129 S. Ct. at 813.

      Accordingly, we now turn to whether Dorough violated a clearly established

constitutional right. A city employee is entitled to official immunity for a § 1983

violation unless the plaintiff can demonstrate that the official’s actions violated

clearly established constitutional law “of which a reasonable person would have

known.” Priester, 208 F.3d at 926; Storck v. City of Coral Springs, 354 F.3d

1307, 1313 (11th Cir. 2003).

      In determining whether a constitutional right is clearly established, the

salient question is whether the state of the law at the time of the incident gave

officials fair warning that their behavior was unlawful. Hope v. Pelzer, 536 U.S.

730, 741 (2002).

      For a constitutional right to be clearly established, its contours ‘must
      be sufficiently clear that a reasonable official would understand that
      what he is doing violates that right. This is not to say that an official
      action is protected by qualified immunity unless the very action in
      question has previously been held unlawful, see Mitchell [v. Forsyth,
      472 U.S. 511,] 535, n.12, 105 S.Ct. 2806, 86 L.Ed.2d 411; but it is to
      say that in the light of pre-existing law the unlawfulness must be

                                       12
      apparent.’

Id. at 739 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97

L. Ed. 2d 523 (1987)).

      Official immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Long v. Slaton, 508 F. 3d 576, 584 (11th Cir. 2007)

(quoting Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271

(1986)). An official is entitled to official immunity “unless their ‘supposedly

wrongful act was already established to such a high degree that every objectively

reasonable official standing in the defendant’s place would be on notice that what

the defendant official was doing would be clearly unlawful given the

circumstances.’” Id. (quoting Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir.

2002)).

      “[I]n this Circuit, the law can be ‘clearly established’ for [official] immunity

purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of

Appeals, or the highest court of the state where the case arose.” Wilson v. Strong,

156 F. 3d 1131, 1135 (11th Cir. 1998) (quoting Jenkins v. Talladega City Bd. of

Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). Thus, in order to show that

Dorough is not entitled to official immunity, Trammell must be able to point to

earlier case law from the Eleventh Circuit, the Florida Supreme Court, or from the

                                         13
United States Supreme Court that is “materially similar . . . and therefore provided

clear notice of the violation” or to “general rules of law from a federal

constitutional or statutory provision or earlier case law that applied with ‘obvious

clarity’ to the circumstances” and established clearly the unlawfulness of

Dorough’s conduct. Long, 508 F.3d at 584. Trammell has been unable to point us

to such a case or law and, accordingly, we must conclude that Dorough is entitled

to immunity.7

       While there was case law in July of 2003 from the Fourth Circuit finding a

constitutional violation where a police dog similarly trained was released without

an adequate warning,8 we have found no case from our Court, the Supreme Court

of the United States, or the Supreme Court of Florida which so holds. While

Trammell insists that Kerr v. City of West Palm Beach, 875 F.2d 1546, 1553 (11th

Cir. 1989), gave Dorough fair notice that a warning was required, it does not

clearly establish the relevant right.



       7
         Trammell argues that he is not required to point to “materially similar” case law from
this circuit after the Supreme Court’s decision in Hope, 536 U.S. at 739. We cannot agree. Hope
states that a plaintiff need not point to a prior case holding that the exact conduct in question was
impermissible. It is silent in regard to the issue of whether case law from another circuit alone
may be sufficient to put an officer on notice of the impermissibility of his conduct. Accordingly,
we remain bound by our circuit law on this issue.

       8
           See Vathekan, 154 F.3d at 180; Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991).

                                                 14
      Kerr considered whether a police department’s K-9 policy was

unconstitutional in light of allegations that the dogs were improperly trained and

supervised. As the factual basis for the claim, the plaintiffs introduced evidence

that the dogs had an impermissibly high bite-to-apprehension ratio, were used on

an unnecessarily wide range of crimes, and had been deployed without warning on

individuals who did not resist arrest or who had already surrendered. On appeal,

the Kerr Court determined that the city had failed to establish a adequate standards

for the K-9 unit. The Court further determined that the unconstitutional character

of the K-9 unit’s apprehensions was plainly obvious to city officials, who were

deliberately indifferent to the need to take corrective action.

      Kerr’s holding does not establish that a canine warning is required before

the release of a police dog. While some of the plaintiffs in Kerr alleged that they

had been bitten without a warning, the opinion focused on the city’s training

program and the high number of bites in the unit. It contained no legal analysis or

discussion of the warning issue and thus cannot be interpreted as putting Dorough

on notice that his conduct was constitutionally impermissible.

      In the alternative, Trammell asserts that Dorough is not entitled to qualified

immunity because the unlawfulness of his actions was readily apparent, even in

the absence of case law discussing his behavior. A “narrow exception” to the

                                          15
requirement of particularized case law exists in excessive force cases where “the

official's conduct lies so obviously at the very core of what the Fourth Amendment

prohibits that the unlawfulness of the conduct was readily apparent to the official,

notwithstanding the lack of caselaw.” Priester, 208 F.3d. at 926 (quoting Smith v.

Mattox, 127 F.3d 1416, 1419 (11th Cir.1997)).

      To come within the narrow exception, a plaintiff must show that the
      official’s conduct “was so far beyond the hazy border between
      excessive and acceptable force that [the official] had to know he was
      violating the Constitution even without caselaw on point.” See Smith,
      127 F.3d at 1419. This test entails determining whether “application
      of the [excessive force] standard would inevitably lead every
      reasonable officer in [the Defendants’] position to conclude the force
      was unlawful.” See Post v. City of Fort Lauderdale, 7 F.3d 1552,
      1559 (11th Cir.1993), as amended, 14 F.3d 583 (11th Cir.1994); see
      also Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir.1997).

Id.

      We are unpersuaded that Dorough’s conduct lies so far beyond the border of

permissive and excessive conduct that every reasonable officer in Dorough’s

position would have concluded that his behavior was unlawful. Accordingly, we

will affirm the District Court’s determination that Dorough is entitled to qualified

immunity for his conduct in allegedly releasing Yacco without a warning.

B. The Failure to Remove Yacco Promptly

      With respect to Trammell’s second claim against Dorough, we agree with



                                         16
the District Court’s description of the record viewed in the light most favorable to

Trammell and with its conclusion based on the record so viewed that a seizure

with excessive force occurred. Given that version of the events, we find our prior

decision in Priester helpful on both the issue of whether a violation occurred and

the issue of whether official immunity is available to Dorough.

       In Priester, officers used a K-9 dog to track the scent of a robber leading

away from the scene of the robbery. The plaintiff hid from the officers in a canal

but voluntarily stood up and put his hands in the air when the officers shined a

light into the canal. The officers told the plaintiff to lie down or else they would

release the dog. The plaintiff complied, but the handler released the dog anyway.

The plaintiff testified that, although he begged the officers to call the dog off, the

defendants stood and watched “for an eternity” while the dog continued to attack

and bite the plaintiff. Id. at 924.

       This Court held not only that the officer who deliberately sicced the dog on

the victim engaged in a violation of clearly established constitutional law, but also

that an accompanying officer acted objectively unreasonably in failing to intervene

to stop the use of force. We further held that official immunity was not available

to the officers:

       Nor do we think particularized case law is necessary to overcome

                                          17
      Defendant Cushing's claim of qualified immunity. That a police
      officer had a duty to intervene when he witnessed the use of excessive
      force and had the ability to intervene was clearly established in
      February 1994. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th
      Cir.1986) (“If a police officer, whether supervisory or not, fails or
      refuses to intervene when a constitutional violation such as an
      unprovoked beating takes place in his presence, the officer is directly
      liable under Section 1983.”); see also Post, 7 F.3d at 1560 (“A police
      officer has the duty to intervene when another officer uses excessive
      force.”); Fundiller v. City of Cooper City, 777 F.2d 1436, 1441-42
      (11th Cir.1985); Harris v. Chanclor, 537 F.2d 203, 206 (5th
      Cir.1976). When we defer to the jury's implicit fact finding, the
      excessive force in this case was obvious and was such that every
      reasonable officer would have known that it was clearly in violation
      of Priester's constitutional rights. Cushing observed the entire attack
      and had the time and ability to intervene, but he did nothing. No
      particularized case law was necessary for a reasonable police officer
      to know that, on the facts of this case and given that the duty to
      intervene was clearly established, he should have intervened.

Id.

      Priester establishes that, under certain circumstances, failure to intervene in

a dog attack is an obvious use of excessive force. As in Priester, Trammell insists

that Officer Dorough permitted his dog to engage in an attack after it became

apparent that he was not the suspect and posed no apparent danger to the officers.

This fact alone is sufficient to establish that Dorough allegedly violated a clearly

established constitutional norm, even if Dorough did not deliberately “sic” Yacco

on Trammell.

      We further note that, viewing the record in the light most favorable to

                                          18
Trammell, the attack lasted for a significant period of time. While Dorough

testified that he immediately called Yacco off once he realized his mistake, the

record evidences a number of things that transpired between the commencement of

the attack and its conclusion which could lead a factfinder to conclude that the

officers’ reactions were not instantaneous. Cooper testified, for example, that the

attack continued long enough for him to realize that there were flashlights in his

backyard and to go to the back porch to investigate the source of the lights. When

he arrived at his back screen door, he could see that Trammell’s shirt had already

been torn off of his back and shredded to his waist. He had time to observe the

officers standing and staring at Trammell, to threaten to kill the dog, and to start to

move across the yard toward Trammell before Yacco was removed by the officers.

Despite the fact that Trammell has been unable to put a precise time frame on the

attack, his testimony and that of Cooper is sufficient to raise the factual possibility

that the attack continued for some significant length of time.

      If a jury concludes that the officers failed to stop the attack promptly after

they became aware that Trammell was not the suspect, Priester compels the

conclusion that Officer Dorough engaged in an obvious violation of Trammell’s

rights by failing to stop Yacco’s attack. Accordingly, the District Court erred in

awarding summary judgment to Dorough on this issue. We will reverse.

                                          19
                           III. Claims Against the City

      Before us, Trammell makes a single claim against the City. He contends

that the evidence would support a finding that the City had a policy or practice

“approv[ing] warnings that [are] simultaneous to the deployment of the dog,” thus

requiring no waiting period after the warning of identification or surrender.

      The City’s written regulations do not speak to the issue of the timing of

warnings, and Trammell’s claim is based exclusively on the testimony of

Dorough’s supervisor. He testified that, although not required by the regulations,

it was standard practice at the time for an officer to give two warnings before

deployment, thus providing an opportunity for identification or surrender. This, of

course, does not support Trammell’s argument. Trammell insists, however, that

the supervisor gave conflicting testimony that does. We find no inconsistency.

The testimony referenced by Trammell was that a hypothetical officer who gave a

warning simultaneous to deployment would not be in “violation of Jacksonville

Beach Police Department regulations” because they did not speak to the timing

issue. Doc. 54 at 222-24. Accordingly, the most that can be said is that the

record, viewed in the light most favorable to Trammell, indicates that the City had

no policy foreclosing simultaneous warnings.

      In order for a plaintiff to hold a government entity responsible for an alleged

                                         20
violation of his constitutional rights, the plaintiff must establish that the violation

resulted from a policy or custom of the city. City of St. Louis v. Praprotnik, 485

U.S. 112, 125, n. 2, 108 S. Ct. 915, 925 (1988) (“We have held that Congress

intended to hold municipalities responsible under § 1983 only for the execution of

official policies and customs, and not for injuries inflicted solely by employees or

agents.”). “A policy is a decision that is officially adopted by the municipality, or

created by an official of such rank that he or she could be said to be acting on

behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489

(11th Cir. 1997) (citing Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479-80

(11th Cir.1991)). “A custom is a practice that is so settled and permanent that it

takes on the force of law.” Id. (citing Monell v. Department of Social Services,

436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978)).

       In order to establish a municipality’s liability for an officer’s actions, the

plaintiff must show that the act is one which the municipality has officially

“sanctioned or ordered.” McCormick v. City of Fort Lauderdale, 333 F.3d

1234,1243 n.13 (11th Cir. 2003) (quoting Brown v. City of Clewiston, 848 F.2d

1534, 1538 (11th Cir. 1988)). See also Pembaur v. City of Cincinnati, 475 U.S.

469, 483 (1986) (holding that municipal liability under § 1983 attaches “where –

and only where – a deliberate choice to follow a course of action is made from

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among various alternatives by the official or officials responsible for establishing

a final policy with respect to the subject matter in question.”). Trammell has not

tendered evidence from which a reasonable factfinder could infer that the City had

a policy sanctioning or ordering simultaneous warnings and deployments. Nor has

he come forward with any other evidence demonstrating that officers regularly

engaged in the practice of providing only a warning simultaneous to the

deployment. We will therefore affirm.

                                   V. Conclusion

      We will affirm the District Court’s summary judgment in favor of the City.

While we agree with the District Court that Dorough is entitled to official

immunity with respect to his action in deploying Yacco, we will reverse the

summary judgment in favor of Dorough and remand for further proceedings with

respect to his alleged failure to promptly remove Yacco.




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