| *
Colorado
* Kansas * Oklahoma * New Mexico * Utah * Wyoming |
CASE: MARQUEZ v CITY OF ALBUQUERQUE
399 F. 3d 1216 (Tenth Circuit 2005)
INITIAL SUSPECT VIOLATIONS:
1) Suspect Marquez commits a residential burglary.
2) Police have information that Marquez was armed.
CANINE DEPLOYMENT DECISION/FACTORS:
1) Marquez flees the scene on foot and is picked up by a vehicle. The
vehicle was involved in another burglary.
2) The driver of the vehicle fails to stop for police and a high speed
pursuit takes place. The vehicle crashes into a wall.
3) Marquez, who is the passenger in the vehicle, flees on foot from the
car.
4) A canine handler warns Marquez to stop, however Marquez continues to
flee on foot, trying to climb a fence.
5) The canine handler, who was on scene alone, sends the police dog to
apprehend Marquez.
6) The dog bites Marquez, she surrenders and the handler takes her into
custody.
COURT’S RULINGS, FINDINGS AND COMMENTS:
1) The court used Graham v Connor as the factors to consider in addressing whether the dog bite was reasonable:
a) The severity of the crime at issue;
b) Whether the suspect poses an immediate threat to the safety of the law
enforcement officers or others;
c) And whether the suspect is actively resisting arrest or attempting to
evade arrest by flight.
2) The use of the police dog as a use of force was reasonable due to:
a) The handler believed Marquez was an armed burglary suspect;
b) Marquez attempted to evade arrest by running and trying to climb a fence;
c) The handler was the only officer on scene and was required to secure
two felony suspects.
3) The Fourth Amendment does not require police to use the least intrusive means in the course of a detention, only reasonable ones.
4) While the Tenth Circuit has not addressed whether the use of a police
dog is properly considered deadly force, every circuit to consider this
question has held that it is not. For purposes of this case, the court
assumed that the use of a police dog is not deadly force by that very fact.
CASE: CHAVEZ v CITY OF ALBUQUERQUE
402 F. 3d 1039 (Tenth Circuit 2005)
INITIAL SUSPECT VIOLATIONS:
1) A violent gang member, Chavez, commits a traffic violation and is stopped
by police.
2) Chavez flees from the stop in his vehicle and is involved in a high
speed pursuit. Chavez eludes the police.
CANINE DEPLOYMENT DECISION/FACTORS:
1)
Chavez’ vehicle
is discovered abandoned. A box of ammunition with eight rounds missing
is located in the vehicle.
2) Chavez breaks into an occupied apartment.
3) Chavez flees the apartment on foot.
4) A canine handler sees Chavez and warns him to stop or a police dog would
be released to apprehend him.
5) Chavez does not stop.
6) The canine handler releases the dog. The dog bites Chavez on the ankle.
7) Chavez removes the dog off the bite.
8) The handler, at gun point, orders Chavez to put his hands in the air.
9) Although Chavez complied, the handler orders the dog to re-engage him.
10) The dog bites Chavez until he complied with directions to lay prone
on the ground and was taken into custody.
COURT’S RULINGS, FINDINGS AND COMMENTS:
1) The court used the factors in Graham v Connor in order to determine if the canine use of force was reasonable:
a) The severity of the crime at issue;
b) Whether the suspect poses an immediate threat to the safety of the law
enforcement officers or others;
c) And whether the suspect is actively resisting arrest or attempting to
evade arrest by flight.
2) The use of the police dog as a use of force was reasonable due to:
a) Chavez was a suspected gang member;
b) Chavez fled from police;
c) Chavez led police on a high speed vehicle pursuit;
d) Chavez invaded an occupied apartment;
e) Officers believed Chavez was armed.
3)“Other bad acts” evidence, where other incidents in which arrestees claimed the handler used excessive force by deploying his police dog, was not admissible in this excessive force case, in order to show absence of mistake or accident or officer’s modus operandi. The officer did not contend that he had accidentally or mistakenly ordered his police dog to bite Chavez, and there was no question regarding the officer’s identity.
CASE: GUTIERREZ v P. HACKETT
131 Fed. Appx. 621 (Tenth Circuit 2005)
The Tenth Circuit Court affirmed this canine case. The court’s decision was without a published opinion. Technically, this means that the court’s findings, rulings and comments cannot be used or referred to in other cases.
Even with this decision without published opinion, the case may be referred to when certain matters of law are pointed out by the Tenth Circuit.
The unpublished decision found that it was reasonable to use a police dog to apprehend a vehicle burglary suspect who would not comply with officer’s orders to surrender and was possibly armed.
INITIAL SUSPECT VIOLATIONS AND OFFICER’S ACTIONS:
1) Gutierrez attempts a vehicle burglary.
2) Gutierrez, who is hiding in the victim’s vehicle, fails to comply
with officer’s orders to show his hands.
3) Gutierrez conceals his hands under his body.
4) A canine handler warns Gutierrez multiple times to exit the vehicle
or a police dog would be deployed to apprehend him.
5) The handler released the police dog and the dog bit Gutierrez.
6) Gutierrez exited the vehicle.
7) The handler ordered Gutierrez to the ground.
8) As soon as the handler could see Gutierrez’s hands, the handler
called off the dog.
COURT’S RULINGS, FINDINGS AND COMMENTS:
1) The court used the factors in Graham v Connor in order to determine if the canine use of force was reasonable:
a) The severity of the crime at issue;
b) Whether the suspect poses an immediate threat to the safety of the law
enforcement officers or others;
c) And whether the suspect is actively resisting arrest or attempting to
evade arrest by flight.
2) The use of the police dog as a use of force was reasonable due to:
a) Gutierrez committed a vehicle burglary in the middle of the night;
b) Gutierrez would not respond to multiple commands to emerge from the
vehicle;
c) Gutierrez kept his hands hidden in such a manner as to conceal a weapon;
d) As soon as Gutierrez revealed his hands to the officers, the dog was
called off.
3) The Fourth Amendment does not require the police to use the least intrusive means in the course of a detention, only reasonable ones.
4) The court ruled that it did not need to decide if the use of the police dog constituted deadly force. The parties did not argue that it did, so for purposes of this order and judgment, the court assumes that use of a police dog is not deadly force.
Created
and maintained by Terry Fleck. Contact: k9fleck@aol.com
Copyright © 1999
- 2009 Terry Fleck. All rights reserved.