K9 Case's, Liability Settlement Agreements

In the event of an accidental (unintentional) canine bite, the policy of financially settling these incidents immediately in the field setting is becoming more popular.

Departments participating in this process usually follow this procedure:

1) Upon an accidental civilian bite, the handler will:

A) Provide immediate medical care;
B) Request a canine supervisor (or a regular supervisor who is trained in this process and procedure).

2) After medical treatment, either in the field or at the hospital, the canine supervisor (preferred over an attorney) will initiate the next step of this procedure.

3) In accordance with the departments’ legal counsel, the canine supervisor will offer to pay all the civilian’s medical bills and negotiate a monetary settlement immediately at that time.

4) Using the attached “Settlement Agreement” as an example, the canine supervisor will negotiate a price (usually within a pre-set limit as determined by the department’s legal counsel), fill in the agreement, have it signed and witnessed as indicated.*

* As determined by your department’s legal counsel, this document may need to be notarized. If so, pre-plan to have a notary available 24 hours a day. In addition, audio or video tape this entire process.

5) Pay the civilian and have him sign the acknowledgment. The settlement is complete.

It has been the experience of several departments that this policy has saved them thousands of dollars by simply negotiating effectively with the victim in this manner, and not with plaintiff attorneys at a later time.

The following case histories are examples of situations where use of the settlement agreement immediately following the incident, or subsequent medical treatment, may have eliminated or minimized potential litigation with plaintiff attorneys at a later date.

Although the settlement agreement was designed to financially resolve the issue of a truly “accidental bite” of a civilian who was, unfortunately, in the wrong place at the wrong time, it may also serve as an effective resolution in similar circumstances.

INITIAL SUSPECT VIOLATIONS:

This is an accidental dog bite case history.

1) An assault occurred involving baseball bats and a pellet gun used by suspects as weapons.
2) An eyewitness points out the suspect’s fleeing car to a canine officer.
3) Unfortunately, the officer is unaware that the car is not involved, nor are the occupants of the car suspects in this crime.

CANINE DEPLOYMENT DECISION / FACTORS:

1) None. The primary officer is a canine unit with no canine deployment planned.
2) The canine handler conducts a high-risk stop and the “suspects” were ordered out of their car.
3) While the canine handler was trying to subdue the driver, his canine exited the patrol car, unbeknownst to the officer, and without receiving any commands from the handler to do so.
4) Of his own volition, the dog proceeded to bite the heads of two minor females who had been passengers in the car.
5) The handler immediately called off his dog.
6) Shortly thereafter, it became clearly evident that this car and the occupants were not suspects in the crime.
7) The two females were released and received immediate medical care.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court ruled that the handler did not intend to seize the suspects with his Police Dog and thus, the dog’s attack on the suspects did not violate their Fourth Amendment rights. (The court did talk about Kerr v City of West Palm Beach, Eleventh Circuit).
2) The court ruled that the claim of excessive force had to be analyzed as an issue of reasonableness of seizure under the Fourth Amendment, using Graham v Connor, a U.S. Supreme Court case. There was no violation of the females’ civil rights as the handler/dog acted with negligent conduct, not deliberate indifference.
3) There was no policy or custom that violated the females’ rights and, therefore, no claim against the city and police chief.
4) The court concluded that this incident was unfortunate, however not every unfortunate incident amounts to a constitutional wrong.
NOTE: While this canine application did not give rise to a constitutional claim, state laws may impose strict liability for canine bites of non-suspects. As an example, California is a strict liability dog bite state.

CASE: VATHEKAN v PRINCE GEORGE’S COUNTY, MD.
154 F. 3d 173 (Fourth Cir. 1998)

INITIAL SUSPECT VIOLATIONS:

This is an intentional accidental dog bite case history.

1) Residential burglary with forced entry to a window.
2) The resident confirms that no one is legally in the house.

CANINE DEPLOYMENT DECISION / FACTORS:

1) A forced entry burglary to a residence.
2) Police dog was deployed without a verbal warning.
3) Unbeknownst to the resident and canine handler, an occupant is inside the house asleep upstairs with the television on.
4) The dog bites that occupant.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) All claims that law enforcement officers have used excessive force, including attacks by police dogs improperly deployed by their handlers, should be analyzed by the fourth amendment’s reasonableness standard.

2) A seizure occurs even when an unintended person is the object of the detention.

3) Plaintiff was “seized” when police dog, on command from police officer, found and bit plaintiff during search of house for possible burglar.

4) House occupants have a right to be free from excessive force when a seizure brought about by a police dog that was deployed without a verbal warning while plaintiff was asleep in her home.

5) It is clearly established that it is unreasonable for a police officer to fail to give a verbal warning before releasing a police dog to seize someone.

CASE: COCHRAN v CITY OF DEER PARK, TEXAS
108 Fed. Appx. 129 (Fifth Circuit 2004)

The Fifth Circuit Court affirmed this canine case. 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 Fifth Circuit.

The unpublished opinion found that it was not a Fourth Amendment constitutional violation for a police dog to accidentally bite someone.

1. The actual search condition is not clear.
2. An off lead police dog was searching an area/building for unknown suspects.
3. The dog locates an innocent third party and bites him.
4. The handler had no intention of biting the third party with the police dog.

1. The third party that was accidentally bitten by the dog, filed suit for excessive force.
2. The court ruled there was not a constitutional violation under the Fourth Amendment. A Fourth Amendment seizure only occurs when there is a governmental termination of freedom of movement through means intentionally applied.
3. In this case, the canine handler did not intend to seize this third party with his police dog.
4. A Fourth Amendment violation does not extend to conduct that is merely negligent.

1) Officers bring a police dog into the home of fugitive’s mother seeking to arrest fugitive.

1) The dog entered the house to protect the officers and to be used as a potential use of force on the fugitive.
2) The dog was not deployed as use of force on the fugitive’s mother.
3) The mother moved with officers as they searched the house. Instead of moving out of the officer’s path, she made the decision to remain close by.
4) The mother then stumbled into the dog’s defensive perimeter and was bit by the dog.

1) The officer lawfully brought the police dog into the house. The dog served a legitimate purpose of curtailing the possibility of flight by the suspect.

2) The officer who brought the police dog into the home of fugitive’s mother, seeking to arrest fugitive, did not seize mother through means intentionally applied.

3) Therefore, the mother could not establish a Fourth Amendment claim against the officer after she was bit by the dog.

4) Instead of moving out of the officer’s path, she made the decision to remain close by. She then stumbled into the dog’s defensive perimeter, and the dog responded, as trained, by defending its handler.

6) The mother also argued that the police dog is an instrument of deadly force. The court ruled:

A. No Federal appeals court has held a properly trained police dog is an instrument of deadly force.

B. We do not dispute the fact that trained police dogs can appear to be dangerous, threatening animals. The dog’s ability to aid law enforcement would be minimal if they did not possess that 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.

CASE: ROGERS V CITY OF KENNEWICK
2006 WL 2244514 (Ninth Circuit 2006)
2006 WL 3147414 (Ninth Circuit 2006)
2008 WL 5383156 (2008) U.S. Court of Appeals Ninth Circuit

The Ninth 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 Ninth Circuit.

1) A suspect is wanted for two traffic infractions and a misdemeanor violation for failing to stop.
2) The suspect flees into a house, on foot.
3) A police dog was deployed in a back yard to search for and bite the suspect.
4) The dog located and bit Rogers, who ended up not being the suspect, for at least one minute.
5) Rogers was sleeping in his daughter’s back yard.
6) Rogers protected himself from the police dog and Rogers was detained for resisting arrest and assaulting a police dog.

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

The severity of the crime at issue:
Two traffic infractions and a misdemeanor violation for failing to stop.

Whether the suspect poses an immediate threat to the safety of the officers or others:
There was no evidence that the suspect was armed or dangerous.

Whether the suspect is actively resisting arrest or attempting to evade arrest by flight:
There was, in fact, little evidence that any such fleeing suspect actually existed. Indeed, the initiating officer did not believe that the suspect had left the house into which he originally fled.

2) Police officers were not entitled to qualified immunity in a civil rights action brought by the victim of a “bite and hold” attack by a dog allegedly under the officers’ control; the crimes of which the victim was suspected were minor in severity, there was no evidence that the victim posed a threat to the safety of the officers or was attempting to evade arrest by flight, and there was clearly established case law regarding the reasonableness of the officers’ behavior.

3) Genuine issues of material fact as to whether it was reasonable for a law enforcement officer to authorize a search of private back yards for a misdemeanor traffic suspect precluded summary judgment for the officer in an action brought by the victim of a “bite and hold” attack by a dog allegedly under police control.

a) Failing to give a warning before releasing a police dog to bite and hold is unreasonable,
b) Causing a bite and hold dog to enter the backyard without a warrant was unreasonable even if the officers believed that somebody was in the yard,
c) Allowing the dog to continue biting a suspect for at least a minute was unreasonable, and
d) Repeatedly striking a subdued and prone suspect is unreasonable.
Therefore, the district court properly denied the officers’ request for qualified immunity.

5) The district court also properly denied summary judgment to the sergeant, who was the initial officer requesting police dog backup. The sergeant argues that he was not present at the time of the attack. However, at the time of the incident, it was clearly established that a supervisor can be held liable for the actions of subordinates if he “set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict the constitutional injury.

6) If a police officer had control over a dog when it bit a victim, and the officer had effectively ordered the dog to find and bite the individual he was tracking, it was of no legal consequence whether the officer and his fellow officers intended to restrain the victim specifically, or merely intended to restrain an unidentified person the officers were tracking.

7) Although Rogers was not the actual suspect that the police officers sought, the police K-9's biting of Mr. Rogers constituted a seizure under the Fourth Amendment.

8) Substantial evidence supported the jury's award of future economic damages. The jury's award of punitive damages was not excessive considering the officers' conduct and the amount and proportion of the damage awards. The district court did not abuse its discretion in awarding attorney's fees and costs to the Rogers.

SETTLEMENT AGREEMENT
Provided and Written by: Bruce D. Praet, Attorney
Ferguson, Praet & Sherman
(714) 953.5300

SETTLEMENT AGREEMENT

WHEREAS, on or about _________________, 199__, _________________________ (hereafter “______________________________”) was temporarily detained by officers of the __________________________________ department;

AND WHEREAS, ___________________________ received personal injuries arising out of and related to this detention and contact with officers and police dog(s) of the _______________ ____________________________ department;

AND WHEREAS, the City/County of ________________________________(hereafter “__________________________”), Officers __________________________________ (hereafter “Officers”) and _________________________________, without any admission of liability, desire to settle all claims and potential claims which might arise between them and arising out of the above-described incident;

IT IS THEREFORE AGREED TO AND BY THE PARTIES RECITED HEREIN THAT:

1. City/County agrees to make a total payment in the sum of ____________________ dollars (______________________) upon the notarized execution of this Settlement Agreement by __________________________.

2. __________________________ acknowledges that City/County and officers have fully informed him of his right to seek legal counsel prior to signing this Settlement Agreement and that he signs this agreement voluntarily with a full understanding and waiver of the right to counsel and each and every term of this Settlement Agreement.

3. _____________________________, for his part and in consideration of the payment referenced in Paragraphs 1 and 2 above, discharges City/County, Officers and any of their past and present agents, officers, servants, and employees, and each of them and each and every agent, employee, and representative thereof, from any and all actions, causes of action, obligations, costs, attorneys fees, damages, losses, claims, liabilities and demands of whatever character, including but not limited to, the generality of the foregoing releases and any and all causes of action or claims of whatever character including but not limited to, intentional torts, negligence and constitutional claims, and all matters alleged and which could or would have been alleged and all other counter-claims and cross-claims and all other pleadings which were filed or which could have been filed in said action.

4. ____________________________ does hereby expressly agree that this release extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, on his parts against City/County and each and every agent, officer, employee, servant and representative thereof and advisedly waives all rights granted to him under Section 1542 of the California Civil Code, which Section reads as follows:

A general release does not extend to claims which creditor does not know or suspect to exist in his favor, at the time of executing the release, which if known by him must have materially affected a settlement with the debtor.

5. ___________________________ does understand and hereby expressly agrees that this general and special release shall insure to the benefit of the successors in the interest of City/County and each and every agent, officer, employee, and representative thereof and shall be binding upon _________________________ and each of his successors in interest, agents and representatives.

6. It is further understood and agreed to by all parties to this Settlement Agreement that this settlement is a good faith compromise of a disputed claim, and that the payments referenced herein are not to be construed as an admission of liability on the part of any party hereto.

7. This Settlement Agreement constitutes the entire agreement between the parties hereto, and the terms of this agreement are contractual and not a mere recital.

8. The undersigned each states that he or she has carefully read the foregoing Settlement Agreement and knows the contents thereof and signs the same of his or her own free acts and will.

9. All parties and their counsel agree to cooperate in the preparation and execution of all documents called for by the terms of this Settlement Agreement.

10. It is further expressly agreed to and by the parties to the Settlement Agreement that the rights, obligations and liability established by the terms and conditions of this Settlement Agreement will not become effective and binding on any party hereto until such time as all parties have executed this agreement as called for herein.

11. It is further understood that this Settlement Agreement is without prejudice to the rights of any party hereto to pursue any remedy he or she may have against any party who is not expressly referenced in this agreement.

CITY/COUNTY OF ____________________________________________________

By: ________________________________ Dated: ___________________________

By: ________________________________ Dated: ___________________________

Attorneys for City/County of

________________________________________ and Officers

By: ________________________________ Dated: ___________________________

STATE OF CALIFORNIA )
) ss
COUNTY OF _________________ )

On this _______________ day of ________________, 199__, before me, the undersigned, notary public in and for the State of California, personally appeared ____________________ known to me to be the person whose name is subscribed to the within Settlement Agreement, and acknowledged to me that he executed the same.

Witness my hand and official seal.
_______________________________
Notary Public

I, _________________________________________, hereby acknowledge the receipt of ____________________________________ dollars (_____________________) in U.S. currency from the City/County of __________________________________ as full and final settlement of all claims described in the Settlement Agreement and liability release executed by me on _______________________.

______________________________

Witnessed:_____________________________

CANINE LIABILITY SETTLEMENT AGREEMENT