UNITED STATES COURT OF APPEALS
SIXTH CIRCUIT
DECISIONS AFFECTING:

CASE:  ROBINETTE v BARNES
854 F. 2d 909 (Sixth Cir. 1988)

INITIAL SUSPECT VIOLATIONS:

1) Burglar alarm inside a closed business at night.
2) A broken glass door was located as the point of entry. (Forced entry!)
3) A suspect was seen hiding inside the building.

CANINE DEPLOYMENT DECISION / FACTORS:

1) A felony burglary had been committed.
2) A suspect was seen inside the building.
3) The suspect was hiding inside a darkened building.
4) The handler entered the building and shouted out a warning that he had a Police Service Dog and that anyone inside the building should come out, or the dog would be turned loose. The handler repeated the shouted warning. The handler gave three warnings before deploying the dog.
5) The canine was released to search and apprehend the suspect.
6) Somewhere inside the building, the handler again shouted out a warning to the suspect.
7) The canine located the suspect under a car in a darkened area; the canine bit the suspect in an area of the suspect’s body that was available to him – the neck.
8) The canine was recalled and immediate medical care given to the suspect, however, the suspect died at the hospital.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court looked at the Supreme Court case of Tennessee v Garner 471 U.S. 1 85L Ed 2d 1, 105 S Ct. 1694 (1985) and held that:

A) The Fourth Amendment prohibits the use of deadly force to prevent the escape of a suspected felon, unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
B) Although the court elaborated on the factors relevant to an assessment of a seizures’ reasonableness, the court did not expressly define what constitutes deadly force.
C) In this case the question was whether the totality of the circumstances justified a particular sort of seizure.

2) The court concluded in Robinette that whether deadly force has been used to seize a criminal suspect must be determined within the context of each case. Two factors are relevant to determine whether use of a specific law enforcement tool constitutes deadly force:

A) The intent of the officer to inflict death or serious bodily harm.
B) The probability, known to the officer but regardless of the officer’s intent, that the law enforcement tool, when employed to facilitate an arrest, creates a substantial risk of causing death or serious bodily harm.

3) Robinette’s court ruled that:

A) The use of a properly trained Police Dog to apprehend a felony suspect does not carry with it a substantial risk of causing death or serious bodily harm.
B) When a properly trained Police Dog is used in an appropriate manner to apprehend a felony suspect, the use of the dog does not constitute deadly force.

4) We do not dispute the fact that trained police dogs can appear to be dangerous, threatening animals. The dogs' ability to aid law enforcement would be minimal if they did not possess this trait. However, the mere recognition that a law enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force

5) The court’s observations in Robinette relative to the “reasonableness” of the use of Police Dogs was summarized as follows:

“Because the evidence establishes that there is not a substantial risk that the use of a Police Dog to apprehend a criminal suspect could result in the suspect’s death, we, too, are hesitant to label “unreasonable” a police practice which has proven useful in a variety of law enforcement situations.

Indeed, instead of generally causing deadly force to be used to apprehend criminals, we believe that these dogs often can help prevent officers from having to resort to, or be subjected to such force…the use of dogs can make it more likely that the officers can apprehend suspects without the risks attendant to the use of firearms in the darkness, thus, frequently enhancing the safety of the officers, bystanders and the suspect.”

CASE: MATTHEWS v JONES
35 F. 3d 1046 (Sixth Cir. 1994)

INITIAL SUSPECT VIOLATIONS:

1) Driving a vehicle, which was speeding and driving recklessly.
2) Fleeing from police in vehicle pursuit.
3) Fleeing from police on foot.

CANINE DEPLOYMENT DECISION / FACTORS:

1) Suspect Matthews fled into heavy trees and undergrowth.
2) Police did not know the extent of the crimes Matthews might have committed.
3) It was unknown if Matthews was armed.
4) It was unknown why Matthews fled from police.
5) Multiple announcements were made by canine handler, both at the beginning and throughout the duration of the search, for Matthews to surrender or else the dog would be released.
6) The canine located Matthews lying prone, his hands not visible.
7) The handler ordered Matthews not to move and told him if he remained still the canine would be recalled.
8) Matthews did not comply, quickly got up, and the canine bit Matthews on the arm.
9) The handler ordered the dog to release and Matthews was taken into custody.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) This case or seizure was analyzed under the Fourth Amendment’s objective reasonableness test as stated in the Supreme Court case: Graham v Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). The court stated that this holding made explicit what had been implied in the analysis in another Supreme Court case: Tennessee v Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), and that application of this test requires careful attention to the facts and circumstances of each particular case, including:

A) The severity of the crime at issue;
B) Whether the suspect poses an immediate threat to the safety of officers or others;
C) And whether he is actively resisting arrest or attempting to evade arrest by flight.

2) Graham also held that the reasonableness of an officer’s use of force is judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

3) In addition to Graham and Tennessee, Robinette v Barnes, 854 F. 2d 909 (Sixth Cir. 1988) was a case where a canine was used to find and apprehend a burglary suspect. The use of the dog resulted in the death of the suspect. This case used the reasonableness test set forth in Tennessee v Garner. Two factors were relevant to the determination of whether the use of a particular law enforcement tool constitutes deadly force:

A) The intent of the officer to inflict death or serious bodily harm.
B) The probability, known to the officer but regardless of the officer’s intent, that the law enforcement tool, when employed to facilitate an arrest, creates a substantial risk of causing death or serious bodily harm.

Robinette further stated:

1. The use of a properly trained Police Dog to apprehend a felony suspect does not carry with it a substantial risk of causing death or serious bodily harm.
2. When a properly trained Police Dog is used in an appropriate manner to apprehend a felony suspect, use of the dog does not constitute deadly force.

4) Although Robinette (1988) was decided before Graham (1989), it was decided under the objective reasonableness standard, which Graham requires.

5) In addition to this case being analyzed under Graham, Tennessee and Robinette, the court addresses the issue of felony versus misdemeanor crimes. The court held that a reasonable Police Officer, under these circumstances, would have believed that Matthews posed a threat to the officers’ safety, as well as the safety of others, and that this case cannot be distinguished from Robinette on the basis of the officer’s lack of specific cause to believe Matthews was a felon.

6) The court’s observations in Robinette, relative to its reluctance to label “unreasonable” the police practice of using Police Dogs, are equally applicable here:

“We believe that these dogs often can help prevent officers from having to resort to, or be subjected to, deadly force.

Any attempt to apprehend a criminal suspect presents the officer with a difficult and frightening situation, but certainly an attempt to arrest a suspect hidden inside an unfamiliar building during the nighttime presents a particularly confusing one.

The use of dogs can make it more likely that the officers can apprehend suspects without the risks attendant to the use of firearms in the darkness, thus, frequently enhancing the safety of the officers, bystanders and the suspect.”

CASE: DUNIGAN v NOBLE
(390 F. 3d 486 Sixth Circuit 2004)
(See Canine Liability Settlement Agreement Section)

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