UNITED STATES COURT OF APPEALS
SEVENTH CIRCUIT
DECISIONS AFFECTING:

CASE: PLAKAS v DRINSKI
19 F. 3d 1143 (1994)

INITIAL SUSPECT VIOLATIONS:

Since this is not a canine case, but a question of law based upon the use of non-deadly force before using deadly force, the court’s ruling as it applies to canine usage is reviewed below.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court used both Graham v Connor and Tennessee v Garner in its ruling.
2) A police officer who fatally shot a suspect when the suspect attacked him with a fireplace poker did not have to use non-deadly force before shooting.
3) The agency cannot be held liable for failing to equip officers with alternatives to using deadly force, such as a trained canine.
4) In this case, an alternative to deadly force was a police canine. The dog could have been used to disarm the suspect.
5) It is unusual to hear a lawyer argue that a police dog should have attacked his client, but he is right that such an attack might have led to a better result for his client. (And would, in the court’s view, have led to a different sort of lawsuit.)
6) The court concluded that where deadly force is justified, this is no duty to use non-deadly alternatives first.

CASE: ISBY v DUCKWORTH
175 F. 3d 1020 (1999)

This canine case was affirmed by the Seventh Circuit. 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 Seventh Circuit.

The unpublished decision found that it was objectively reasonable to use a police dog, and other uses of force, in a cell extraction.

INITIAL SUSPECT VIOLATIONS:

1) Isby refuses to exit his prison cell to be moved to a segregation unit.
2) During the cell extraction, Isby stabs an officer and his police dog with a homemade knife.
3) Officers then use a water hose and tear gas to subdue Isby and move him to his new cell.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Despite his contention that he acted in self defense, Isby is convicted of attempted murder and battery in criminal court.

2) Isby claimed that the officers violated his Eighth Amendment right of “no cruel and unusual punishments inflicted” because they used excessive force against him when moving him to a cell in the segregation unit.

The court concluded that given Isby’s actions, the force used to seize Isby was applied “in a good-faith effort to maintain or restore discipline, not maliciously and sadistically to cause harm.” Consequently, defendants did not violate Isby’s rights under the Eighth Amendment.

CASE: DYE v WARGO
253 F. 3d 296 (2001) Seventh Circuit

INITIAL SUSPECT VIOLATIONS:

1) Traffic violation.
2) Suspect Dye did not stop and attempted to evade police.
3) The vehicle pursuit ends when Dye stops and flees on foot.

CANINE DEPLOYMENT DECISION / FACTORS:

1) The canine was deployed to prevent Dye’s escape.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Dye attempted to sue the Police Service Dog as a “person” for violation of his fourth amendment rights.

2) The court concluded that a Police Service Dog is not a “person” subject to liability under federal section 1983.

3) A dog is not a proper defendant in litigation under Federal Section 1983.

Note: If your dog is subpoenaed into court, you might consider using this case to notify the judge that the dog is not a “person.” It is you, the handler, that should be subpoenaed, not the dog. The handler is the "expert" of the locating tool, the dog.

CASE: TILSON v CITY OF ELKHART, INDIANA
96 Fed. Appx. 413 (Seventh Circuit 2004)

This canine case was affirmed by the Seventh Circuit. The court’s decision was without a published opinion. Technically, this means 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 Seventh Circuit.

The unpublished decision found the use of a police dog was not excessive force.

INITIAL SUSPECT VIOLATIONS AND OFFICER’S ACTIONS:

1) A K-9 officer sees suspect Tilson driving very erratically. The officer believes Tilson is driving under the influence.
2) After a short failure to yield, Tilson stops and flees on foot.
3) The K-9 handler warns Tilson to stop or the police dog would be released to bite him.
4) Tilson fails to stop and is bitten by the dog.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court used Graham v Connor in order to determine if the dog bite was reasonable:

A) Severity of crime:
The officer reasonably suspected that Tilson was driving under the influence, which is a serious offense. Tilson also refused to stop when ordered to do so by the officer and instead resisted arrest by fleeing in his vehicle, a felony. Thus the crimes were sufficiently severe to allow a use of force.

B) Whether the suspect poses an immediate threat to the officer on the scene or others:
Driving under the influence poses an immediate threat to the officer on scene and others nearby. Tilson could have possessed a weapon. Tilson’s extreme behavior provided cause for the officer to believe Tilson was involved in activity considerably more nefarious than mere traffic violations.

C) Whether the suspect is actively resisting arrest or attempting to evade arrest by flight:
Tilson fled both in a vehicle and on foot from the officer.

2) The officer’s use of the dog to bite and hold a fleeing suspect until the officer could apprehend the suspect was not an excessive use of force.

CASE: DODD v CORBETT
154 Fed. Appx. 497 (Seventh Circuit 2005)

This canine case was affirmed by the Seventh Circuit. 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 Seventh Circuit.

The unpublished decision found use of the canine was not excessive force and the unsubstantiated claims by the plaintiff were not corroborated.

INITIAL SUSPECT VIOLATIONS AND OFFICER’S ACTIONS:

1) Suspect Dodd commits a commercial burglary and shoots a police officer who responded.
2) Dodd flees the scene on foot.
3) A police dog tracks Dodd over several miles and locates him.
4) The canine handler orders Dodd to show his hands.
5) Dodd refuses to do so.
6) The handler orders the dog to bite and hold Dodd.
7) The dog “compels” Dodd to show his hands.
8) The dog is removed from the less than five second bite and Dodd is handcuffed.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Dodd claimed that he complied with the canine handler’s command to show his hands. Dodd further claimed that he was compliant and handcuffed when the dog bit him.
2) Dodd only offered his own testimony to support his contention.
3) The jury chose to believe the canine handler and other officers that Dodd failed to comply with their demands.
4) The jury also found that under Graham v Connor, the canine handler and other officers used no more force than was necessary to affect Dodd’s arrest.

CASE: STRICKLAND V SHOTTS
155 Fed. Appx. 908 (Seventh Circuit 2005)

This canine case was affirmed by the Seventh Circuit. The court’s decision was without a published opinion. Technically, this means 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 Seventh Circuit.

The unpublished decision found use of the canine was not excessive force and the unsubstantiated claims by the plaintiff were not corroborated.

INITIAL SUSPECT VIOLATIONS AND OFFICER’S ACTIONS:

1) An officer attempts a vehicle stop for possible driving under the influence, on a vehicle being driven by suspect Strickland.
2) Suspect Strickland does not stop and a high speed pursuit takes place.
3) Strickland eventually stops his car, reaches into the passenger compartment and then flees on foot into a residential neighborhood.
4) Officers find Strickland inside a private residence, hiding in a bathroom.
5) Multiple officers try to subdue Strickland who resists arrest by fighting the officers.
6) A canine handler, in response to Strickland fighting the officers and thinking Strickland might be armed, commands his police dog to bite Strickland.
7) Strickland is taken 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) Driving while intoxicated is a serious offence that poses an immediate threat to the officer on scene and others nearby;
b) Strickland also posed a danger to officers and others in the residential neighborhood by both attempting to evade police by car and by foot;
c) Strickland also posed an immediate threat to the officers by fighting the police officers at the time of his arrest;
d) Officers had reason to believe Strickland was armed.

CASE: UNITED STATES V LAWSHEA
461 F. 3d 857 (2006) Seventh Circuit

INITIAL SUSPECT VIOLATIONS:

1) Suspect Lawshea was seen by officers in a complex at night where several fights had taken place, including one that involved a stabbing.
2) Lawshea is standing unusually close to another man.
3) Lawshea walks away from the K-9 handler and then runs away from the handler.

CANINE DEPLOYMENT DECISION/FACTORS:

1) The handler attempts to detain Lawshea by ordering him to stop.
2) The handler twice warns Lawshea to stop or a police dog would be released to bite him.
3) Lawshea continues to flee and the police dog is released.
4) Lawshea is bit by the dog and Lawshea fights the dog.
5) Lawshea stops struggling and the dog is removed.
6) Lawshea begins to move his hands underneath him in the waistband area.
7) The handler orders Lawshea three times to keep his hands out in front of him or the police dog would be released again.
8) Lawshea does not comply and the dog is released.
9) The dog bites Lawshea, he complies and the dog is removed.
10) A hand gun is found on the ground where Lawshea was reaching his hands into.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Police officer had reasonable suspicion to support Terry stop of defendant; officer saw defendant and another man standing close together in high-crime area just before midnight, and as officer approached in squad car, the other man ran into a nearby apartment, and defendant began walking and then ran away from officer, running around an apartment building three times and refusing to stop when officer ordered him to stop.

2) Police officer’s use of police dog to stop defendant by knocking him to the ground and biting his back, after defendant refused officer’s orders to stop running away from officer, did not transform officer’s Terry stop of defendant into an arrest requiring probable cause. Officer did not release dog and command dog to apprehend defendant until after defendant had twice disobeyed officer’s orders to stop running away from officer.

CASE: PEALS v TERRE HAUTE POLICE DEPARTMENT
535 F. 3D 621 (2008) Seventh Circuit

INITIAL SUSPECT VIOLATIONS:

1) The suspect, Peals, had an arrest warrant for battery resulting in injury and invasion of privacy.

CANINE DEPLOYMENT DECISION/FACTORS:

1) A team of officers went into Peals’ garage to arrest him.
2) A K-9 handler took his dog with him into the garage to either protect the officers and apprehend the suspects or to detect narcotics.
3) Peals was taken into custody without incident.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Presence of police canine units in arrestee’s garage, where arrest warrant was served, did not render protective sweep of garage unreasonable under Fourth Amendment; both officers and canines were lawfully present, and there was no showing that dogs were trained to sniff for non-contraband items.

2) As a general rule, K-9 units trained to protect officers and apprehend suspects may accompany police officers.

3) The officers and the K-9 units were lawfully present in Mr. Peals’ garage. The K-9 was trained either to protect the officers and apprehend suspects or to detect narcotics.

4) The Court has also held that K-9 units trained to detect contraband do not conduct a search when they sniff in an area where they are lawfully present.

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