UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
DECISIONS AFFECTING:

CASE: KERR v CITY OF WEST PALM BEACH
875 F. 2d 1546 (Eleventh Cir. 1989)

Several parties filed a class action suit against the City of West Palm Beach for suffering injuries as a result of apprehension by dogs in the city’s canine unit.

INITIAL SUSPECT VIOLATIONS:

Several specific apprehensions formed the complaint, but in just three cases the jury found that officers used excessive force and were therefore liable:

Case #1:

Initial Suspect Violations:

1) None
2) Residential burglary in the area.

Canine Deployment Decision / Factors:

1) Canine conducts an area search in the vicinity.
2) Canine goes to the yard of another house and locates a drunk suspect asleep in the bushes.
3) The canine bit the drunk twice; the handler hit the drunk on the head with a flashlight, then, after the suspect was handcuffed, the canine bit him again.

Case #2

Initial Suspect Violations:

1) Theft of fishing rods and reels sticking out of the window of a parked car.

Canine Deployment Decision / Factors:

1) Canine conducts an area search in the vicinity to locate the suspect.
2) Canine locates the suspect up in a tree.
3) Suspect refuses to come down; handler pulls him out of the tree and places him prone on the ground.
4) Canine bites the suspect and will not call off of the bite until the handler hits the dog over the head with a flashlight.

Case #3

Initial Suspect Violations:

1) None.
2) Suspect Kerr is walking; upon seeing a police car he runs and hides in some bushes.

Canine Deployment Decision / Factors:

1) Handler orders Kerr out of bushes.
2) Kerr ran a distance then, thinking he was clear, stopped to urinate.
3) Canine was deployed on Kerr and bit him twice.


COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Arrests (Seizures):

The court looked to the principles in Tennessee v Garner. Garner teaches that federal courts are intended only to determine whether a particular seizure was deemed to be constitutional in light of the unique factual circumstances under which the police acted during their seizure action.

To the extent that canine force was used against suspects who posed a threat to the arresting officer, or to the community, this policy is constitutional.

2) The court threw out the class action suit, stating that the court must assess the reasonableness of the officers’ actions in light of the essentially unique factual circumstances.

Such determinations cannot be made en masse.

3) The remaining two issues in question were:

A) Did the department fail to adequately train the canine unit? (Negligent training)

B) Did the department fail to adequately supervise the canine unit to ensure that both the misbehaved canines, and handlers who had exhibited poor judgement using canine force against minor misdemeanor suspects, all received corrective training? (Negligent supervision)

The common element in both issues was FAILURE TO TRAIN. The jury at the original district court trial held the department liable in both these issues. The circuit court ruled that both these issues were questions to be answered by the jury at district court level.

The court concluded that Police Dogs must be subject to continual rigorous training in law enforcement techniques. Such training ensures that the dogs will continue to respond with alacrity to the commands of their handlers; without such training, the dogs’ responsiveness to their handlers’ commands will deteriorate, resulting in more frequent and more serious injuries to apprehended suspects than might otherwise occur.

At the district court trial there were two areas introduced to the jury in regards to these last two issues:

1) Bite Ratio:

One indication of a misbehaving dog is a high ratio of bites to apprehensions. Less than 30% of apprehensions, on an average, should result in a bite. Thus, canine units with a bite ratio exceeding 20% should be reviewed. The West Palm Beach Police Department had a bite ratio of 50%.

2) Bite and Hold versus Bark and Hold Dogs:

The dogs in this department were trained to “bite and hold.” It was stressed that in the “bite and hold” method of training, the handler must have complete control over the actions of the dog. With such control, the handler can recall and restrain the dog before a bite occurs. Alternately, the handler can quickly remove the dog from the apprehended suspect.

Control dictates that the handler can recall and restrain the dog before a bite occurs and alternately, the handler can quickly remove the dog from the apprehended suspect.

There was no discussion of “bark and hold” dogs.

(It was this case where the canine cars had “stars” placed on the doors indicating the amount of canine apprehensions. This became a status symbol among the members of the unit. With these cars “blatantly” displaying these stars, the jury could have inferred that policymakers were or should have been aware of problems within the unit.)

CASE: LAFAVORS V JENNE
2006 WL 249544 (Eleventh Circuit 2006)

The Eleventh Circuit affirmed this canine case. The court’s decision was without a published opinion. Technically, this means the court’s rulings, findings 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 Eleventh Circuit.

The unpublished decision found the use of the canine was not excessive force.

INITIAL SUSPECT VIOLATIONS:

1) Suspect Lafavors was wanted for twelve felony warrants.
2) The canine handler gives Lafavors a canine warning and opportunity to surrender.
3) Lafavors does not comply and the dog is released to bite Lafavors.
4) Lafavors complies and the dog is removed.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court looked to Graham v Connor in order to determine if the canine force was reasonable:

The underlying crime’s severity:

The officers arrested Lafavors on twelve outstanding felony warrants. Although the warrants were not for violent crimes, felonies in Florida carry minimum sentences of one year, indicating significant potential imprisonment. Twelve felony warrants certainly qualify as sufficiently severe underlying crimes to justify the use of force in apprehending the suspect.

Whether the suspect poses an immediate threat to the safety of the officers or others:

Lafavors resisted arrest when the police dog bit him and that the dog bit Lafavors before he was placed in handcuffs (i.e., before the arrest was completed). The handler gave Lafavors a warning and an opportunity to surrender before using the dog, and Lafavors did not surrender. Because of Lafavors’ resistance as well as his imposing physical stature (6’1” in height and 240 lbs.), the handler could have reasonably believed that Lafavors posed a threat to the officers justifying the use of the dog.

Whether the suspect actively resists arrest or attempts to flee:

Although Lafavors did not attempt to escape during the arrest, knowledge of his previous escape attempts, combined with his resistance to the arrest, supports the conclusion that there was sufficient resistance and risk of flight to warrant employing the dog. In light of these facts, we find that the force used was reasonable as a matter of law.

Case: PACE v AHLER
282 Fed. Appx. 769 (2008) Eleventh Circuit

The Eleventh Circuit affirmed this canine case. The court’s decision was without a published opinion. Technically, this means the court’s rulings, findings 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 Eleventh Circuit.

The unpublished decision found use of the canine was not excessive force.

INITIAL SUSPECT VIOLATIONS AND OFFICER’S ACTIONS:

1) Suspect Pace steels a vehicle.
2) Pace flees from the stolen vehicle into a mangrove swamp at night and hides from police.
3) The K-9 handler, Ahler, uses his police dog to track and apprehend Pace.

COURT’S RULINGS, FINDINGS, AND COMMENTS:

1) Courts should determine the “objective reasonableness” of a seizure by balancing the “nature and quality of the intrusion” against the governmental interest at stake (citing Graham v Connor).

2) The Court performs 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.”

3) 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.

4) The state tort claim similarly fails because Officer Ahler did not act maliciously or in bad faith.

Case:GRIMES v YOOS
2008 WL 4768865 (2008) Eleventh Circuit

The Eleventh Circuit affirmed this canine case. The court’s decision was without a published opinion. Technically, this means the court’s rulings, findings 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 Eleventh Circuit.

The unpublished decision found use of the canine was not excessive force.

INITIAL SUSPECT VIOLATIONS AND OFFICER’S ACTIONS:

1) A K-9 handler, Yoos, and his dog respond to a silent intrusion alarm at a closed business at night.
2) The K-9 searches and clears the building.
3) The officers hear a noise coming from an overgrown vegetation area next to the business.
4) Officers believe the noise was made by fleeing suspect(s).
5) Officers start to visually search the area by flashlight.
6) Officers quickly locate a recently discarded cash drawer.
7) The officers hear more movement in the vegetation.
8) The vegetation was very thick and there was no visibility.
9) A bent fence indicated that a suspect or suspects were fleeing.
10) Yoos decides to get his K-9 to search the area for the suspect(s).
11) Yoos did not know whether the suspect(s) were on the inside or outside of the fence and therefore, he did not announce his or the police dog's presence for fear that the suspect(s) might flee.
12) The K-9 quickly locates and bites the suspect, Grimes, who was concealing himself in the vegetation.
13) Once the handler saw Grimes was not armed, he ordered the K-9 to release the bite.
14) Immediate medical aid was given to Grimes.

COURT’S RULINGS, FINDINGS, AND COMMENTS:

1) Yoos's use of canine force was objectively reasonable (see Graham v Connor). It appears that he had reason to believe that the serious felony crime of burglary had recently occurred, as officers stated that they found a freshly broken window upon arriving at the building and Yoos stated that his police dog alerted to fresh human scent in the building.

2) It appears that the officers had reason to believe that the perpetrator was in the area of vegetation near the building, as officers stated that they saw an empty cash drawer in that area.

3) Furthermore, it appears that the officers had reason to believe that Grimes may pose a risk to their safety, as officers stated that the vegetation was thick and the visibility low, such that they could not see who was in the bushes and whether he or she was armed, and the officers each attested that they were concerned for their safety.

4) It appears that the officers had reason to believe that Grimes was trying to flee, as officers could hear movement in the vegetation and that a chain link fence nearby was bent, suggesting that someone had bent it in an effort to clear it.

5) Therefore, the officers could have reasonably believed that force was necessary because an unknown number of felony suspects were in a concealed area and were attempting to evade police apprehension (See Graham).

6) The fact that Yoos failed to warn Grimes of his and the police dog's presence does not alter the conclusion that the use of force was objectively reasonable. The city's policy manual and standards provided an exception to the warning requirement for situations in which warning might “allow the offender to escape.” Yoos stated in his police report that he did not give a warning because he did not know whether the suspect was on the inside or outside of the fence and did not want the suspect to flee.

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