Massey v. Prince George’s County

Willie Massey (plaintiff) sued Prince George’s County (the county) (defendant) for allegedly using excessive force. Massey was sleeping in an abandoned building and claimed that he received no warning and offered no resistance before officers set a police dog on him. The officers claimed that they had warned Massey in a loud voice and that he had resisted arrest. Represented by the county attorney’s office, the county moved for summary judgment. The motion relied heavily on a Sixth Circuit case that held that using a police dog was justified if a suspect in a dark building did not respond to warnings and posed a threat to officers’ safety. Massey’s attorney filed a short opposition that did not cite any additional authority. The district court relied on the Sixth Circuit case to dismiss Massey’s federal claims and asked for briefing on Massey’s remaining state-law claims. In response, Massey’s attorney submitted a brief that, for the first time, mentioned the published Fourth Circuit case of Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991). Kopf held that summary judgment was inappropriate in an excessive-force case involving a police dog if there were disputes about (1) the loudness of the officers’ warning or (2) whether the victim was resisting arrest or just resisting being bitten by a dog. Maryland was in the Fourth Circuit, which made this authority controlling on the district court. The county was also the defendant in the Kopf case, and the county attorney’s office had defended the county throughout the lengthy Kopf case. Further, one of the attorneys in Kopf still worked at the county attorney’s office. However, the attorney who was defending the county against Massey’s claim had never mentioned the Kopf opinion to the court.