This canine legal update was developed as a tool to assist canine units throughout the United States. It deals specifically with federal case law that mandates policy on canine use, deployment and control.
The cases at issue have been broken down into two general categories:
1) United States Supreme Court decisions, which affect all fifty states.
2) United States Court of Appeals decisions, which are broken
down into the thirteen federal judicial circuits, then further
listed by states affected by those individual circuit courts’ decision.
(Note that not all thirteen circuit courts have had case law applicable
to canine
use and deployment).
And lastly, six important other topics are discussed:
1) Police Service Dogs and the Use of Force Continuum;
2) Utilization of canines as an alternative to deadly force;
3) United States Department of Justice and International Association of Chiefs of Police recommendations on police service dogs.
4) An overview of canine apprehension methodologies and their relationship to bite ratios.
5) Canine liability settlement agreement. Several United States Court of Appeals cases are given as examples to minimize accidental bite liability.
6) Example canine deployment report, which illustrates the points, presented in this update.
Demise of Law Enforcement Canine:
There are three areas where canine units nationwide have either been terminated or the units reduced in size:
1) Deployment Issues:
The issue of not deploying the dog properly, which led to litigation, which resulted in either a settlement or a jury verdict against the agency.
2) Accidental (Unintentional) Bites:
Either civilians or other officers have been accidentally bit by a police service dog or contraband detector dog. This led to agency liability for that accidental bite.
Unfortunately, numerous police dogs have been shot and killed by fellow officers while they were being accidentally bit by a police dog.
3) Handler Compensation Issues:
The United States Department of Labor (DOL) mandates the
compensation of “at-home care” of police dogs under the Fair Labor Standards Act (FLSA). An agency’s
failure to compensate a handler has resulted in litigation
where the agency was found liable for 2-3 years of back pay
for each canine handler.
To summarize the reasonable conclusions drawn by these case decisions, eight key guidelines governing the use of Police Service Dogs are presented in brief:
1): Police Dog’s Primary Purpose, a Locating Tool:
Canines are a locating tool. Upon the location of the suspect, a use of force by
either the handler or the dog may or may not be necessary. The suspect controls this decision. The handler and the dog merely react and respond to what the suspect dictates. Law enforcement is simply a reactive business. The suspect dictates and controls his own destiny. One court concluded that criminals can largely control the circumstances of their crimes and can thus minimize the risk that force will be necessary.
2): Police Dog’s Secondary Purpose, a Use of Force:
The use of Police Service Dogs as a use of force is governed by the U.S.
Supreme Court decision in Graham v Connor. Excessive force
must be analyzed under the Fourth Amendment’s objective reasonableness
test. Taking into consideration the
totality of the circumstances, using the information available to the officer(s)
at the time of the incident, a three-part test should be used to satisfy and justify a canine deployment:
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.
3): Graham v Connor:
This case has been used in all canine excessive
force cases to evaluate the “reasonableness” of that force. Taking into consideration the totality of circumstances, using only the information available to the officer(s) at the time of the incident and allowing for the fact that officers are often forced to make split second judgements, Graham’s
three-prong test is applied as follows:
A) The Eighth Circuit Court held in Dennen v City of Duluth that having a police dog with you for handler protection, unleashed, while searching for a suspicious person, was reasonable and not a use of force. (Police dog as police presence, not as a use of force.)
B) The Sixth Circuit Court held in Dunigan v Noble that having a police dog with you for handler protection and entering a house to search for a fugitive, was lawful and not a use of force.
C) The Seventh Circuit held in Peals v Terre Haute Police Department that having a police dog with you inside a person’s garage, while serving an arrest warrant, either to protect the officers and apprehend suspects or to detect narcotics, was lawful.
D) The Eleventh Circuit Court held in Kerr v City of West
Palm Beach that using a dog against a person who had not
committed a crime, who posed no threat to the officer, was unreasonable.
E) The First Circuit Court held in Jarrett v Town of Yarmouth that using a dog against a suspect fleeing from a property
damage only traffic collision, who posed no threat to the officer, was
unreasonable.
F) The Seventh Circuit
Court held in United States v Lawshea that using a dog against a suspect
who fled from police, who posed a threat to the officer and was actively
resisting a detention, was reasonable.
G) The First Circuit Court held in Gill v Thomas that
using a dog against a suspect who fought the police,
who posed a threat to the officer and was actively resisting arrest,
was reasonable.
H) The Sixth Circuit Court held in Matthews v Jones that
using a dog against a suspect who fought the police,
who posed a threat to the officer and was actively resisting arrest,
was reasonable.
I) The Ninth Circuit Court held in Fikes v Cleghorn that
using a dog against a suspect who fought the police,
who posed a threat and fought officers, was reasonable.
J) The Eighth Circuit held in Kuha v City of Minnetonka that using a dog against a suspect who fled from a traffic
stop, but officers thought there was a more serious crime, who
was un-searched and officer’s were concerned about their safety and the
safety of the public, was reasonable.
KI) The Ninth Circuit Court held in Vera Cruz v City of
Escondido that using a dog against a burglar, who was
armed with a knife and was actively evading arrest by flight, was
reasonable.
L) The Ninth Circuit Court held in Mendoza v Block that
using a police dog to find Mendoza, an armed with a
gun, fleeing, hiding armed robbery suspect, and to secure him until
he stopped
struggling
and was handcuffed, was objectively reasonable under
these circumstances.
M) The Sixth Circuit Court held in Robinette v Barnes that using a dog to find a hidden, un-searched, burglary
suspect who was un-searched and actively evading arrest by hiding was reasonable.
N) The Tenth Circuit held in Marquez v City of Albuquerque that using a dog against a fleeing, armed, burglary suspect was reasonable.
O)
The Tenth Circuit held in Chavez v City of Albuquerque that
using a dog against a fleeing, armed, high speed vehicle pursuit and
burglary suspect
was reasonable.
P) The Ninth Circuit held in Miller v Clark County, that
using a dog against a high speed pursuit suspect,
who was un-searched and attempted to evade arrest by flight,
was reasonable.
Q) The Ninth Circuit Court held in Quintanilla v City
of Downey that using a dog to find a fleeing, hidden,
un-searched stolen car and high-speed pursuit suspect and to
secure him until he stopped
struggling and was handcuffed, was objectively reasonable.
R) The Ninth Circuit Court held in Brewer v City of
Napa that using a dog to find a fleeing, hidden,
un-searched stolen car and high-speed pursuit suspect, was reasonable.
S) The Eighth Circuit Court held in Mettler v Whitledge that using a dog to search for an armed with a rifle,
hidden assault with a deadly weapon suspect, was reasonable.
T) The Eighth Circuit Court held in Mann v Yarnell that using a dog to bite a non-compliant, resistive, attempted homicide with a gun, domestic violence, suicide by police suspect, was objectively reasonable.
There are two additional components in making a proper deployment under Graham:
- You MUST confirm the dog’s targeting system is focused on the target. That means you MUST look at the dog’s targeting system, prior to releasing the dog. Let me make this simple. The dog’s nose is the front sight and the dog’s ears are rear sights. There have been numerous accidental bites by releasing a police dog without having visually confirming the dog’s targeting system.
- You must have clear cut target acquisition of THE target, prior to releasing the dog to bite a suspect. There have been numerous accidental bites by releasing a police dog without having clear target acquisition.
4): Police dogs as less lethal (non-deadly) force:
There has never been a Federal or State case that has stated that police dogs are deadly force. In fact, just the opposite is true:
Fifteen cases, one from the United States Court
of Appeals First Circuit, Jarrett v Town of Yarmouth, three from the United
States Court of Appeals
Sixth Circuit, Robinette v Barnes, Matthew v Jones, and Dunigan
v Noble,
one from the Eighth Circuit, Kuha v City of Minnetonka, nine from the Ninth
Circuit, Gilliam v County of Los Angeles, Fikes
v Cleghorn, Quintanilla v
City of Downey, Vera Cruz v City of Escondido, Brewer
v City of Napa, Chrysler
v City of West Covina, Miller v Clark County, Parra
v City of Chino and Martineau
v City of Cypress and one from the Tenth Circuit, Marquez
v City of Albuquerque,
all specifically state that…
“…Police Service Dogs are not deadly force…”
“… Police Service Dogs can often help prevent officers from having
to resort to, or be subjected to, deadly force…"
5): Bite Ratio:
Regarding the issue of “bite ratio” as discussed in two cases, Ninth Circuit’s
Chew v Gates (L.A.P.D.) and Eleventh Circuit’s Kerr v City of
West Palm
Beach, their conclusions were non-directional.
A) Kerr: A high ratio of bites to apprehensions may strongly
indicate a misbehaving dog or a misbehaving handler.
On an average, less than 30% of apprehensions should result
in a bite; the average bite ratio
in the West Palm Beach department was 50%.
Thus, canine units with an average bite ratio of
20% or higher should be
reviewed.
B) Chew: The City of Los Angeles Police Canine
Unit had a bite ratio average of 40%. Since this
case has
been
resolved by an out-of-court settlement, this case
offers little guidance.
Every use of force, canine or otherwise, must be
reviewed to determine the constitutionality of
that force. A
separate investigation into each use of force to
insure it was proper,
must be completed after
that use of force. This investigation into each
use of force makes bite ratio a mute topic, since
each
bite, as a
use of force, is reviewed for
its constitutionality under Graham v Connor.
The policy of reviewing each use of force must
be articulated in writing, in the form of a policy
or general order.
6): Training Philosophies:
There
are approximately 16,000 police dogs in the United States. Approximately
70-80% of these dogs are using the “bite and hold” philosophy
of training. The balance, 20-30% of these dogs are using the “bark and hold” philosophy
of training.
And, although the training philosophies of “bark and hold” versus “bite and hold” was
also discussed in Kerr, Chew, Jarrett v Town
of Yarmouth, Kuha v City of Minnetonka, Miller
v Clark
County,
and Watkins v City of Oakland, the court conclusions
were:
A) Kerr: The department had a “bite and hold” policy;
the court ruled 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.
There was no discussion of a “bark and hold” method.
B) Chew: This department also had a “bite and hold” policy. Since this case has been resolved by an out-of-court settlement, this case offers little guidance. L.A.P.D. has returned to a “find and bark” policy.
C) Watkins v City of Oakland: This department
also had a “bite and hold” policy. The court ruled that “Oakland’s bite and hold policy did not violate clearly established law concerning the use of excessive force at the time of the incident”, in 1998. Since this case has been resolved by an out-of-court settlement, this case offers little guidance. Oakland has gone to a “find and bark” policy.
D) Jarrett v Town of Yarmouth: The mere use of
a police dog trained to bite and hold does not
rise to level
of a constitutional violation.
E) Kuha v City of Minnetonka: There is no case
that has held bite and hold policies to be unconstitutional.
F) Miller v Clark County: Deputy’s use of a police dog to bite and hold a suspect’s
arm did not constitute excessive force.
A few of the cases presented here were “positive control” cases,
that is the dog was deployed and controlled on
lead.
To summarily debate the “bark and hold” versus “bite and hold” issue is irrelevant. Court decisions dictate that in any type of search condition the handler must have complete control over the actions of his dog. Handler control dictates to the dog what type of response is appropriate for the situation. The handler makes the decision to escalate or de-escalate the dog’s
level of response, not the dog. In either the bark and hold
or bite and hold, the decision to deploy the dog will be
evaluated under
Graham v Connor.
In addition, the courts have been emphasizing the “immediate” release
of a suspect once the handler commands it. The courts have
also been emphasizing handler control. In six cases, Fikes v
Cleghorn,
Quintanilla v City of Downey, Martineau v City of Cypress,
Parra v City of Chino, Miller v Clark County and Vera Cruz v
City of
Escondido, the courts emphasized control by stating that
the police dog was trained to immediately release arrestees
on command, as
it did so in these cases.
Due
to the fact the courts are mandating “complete control” of the dog and the “immediate release” of
a suspect, once the handler commands it, it is time to consider
new tactics and training philosophies:
“Clear, Down and Move Up”:
• Clear: The dog clears an area, while you and your backup remain behind
cover;
• Down: Before the dog leaves your visual control, down the dog. The dog becomes the “point.”
• Move Up: You and your backup move up to the dog to the nearest cover.
The search continues with this pattern: Clear, down and move up; clear, down and move up, etc.
When a suspect surrenders, any use of force, canine or otherwise, must immediately stop. From that point on, unless you can articulate why the suspect was a continued threat, the use of force will be excessive.
Examples:
• “Bring the dog to me” or “show me you hands.”
• The “hard out” or the “tactical out.”
Joining the dog in the fight:
In the field, there are probably two options for a handler after the dog
engages a suspect:
1) Handler maintains his cover, recalls or downs the dog and orders the suspect back to you, or
2) Join the dog in the fight and immediately calling off the dog when either the suspect surrenders or is under control.
If you have not trained to join the dog in the fight, the dog will interpret you running up on him as a correction. Therefore, this training issue must be addressed in training. The dog must be conditioned to think you are joining him in the fight, such as the dog would experience in pack order, not correcting him.
In addition, dogs want to be dominant and also want suspects to be submissive. Therefore, if the dog has not de-centralized the suspect by knocking him to the ground, the handler’s number one priority is to get the suspect on the ground. Again, the dog must be conditioned in training to expect a ground fight.
7): Written Canine Policy:
As indicated in the section concerning “Police Service Dogs and Use of Force Continuum,” a
written policy should exist in all canine units, specifying
departmental policies regulating the control of canine
units, consistent with
case law, for canine usage and deployment in felony
and misdemeanor actions.
Two model policies are provided; “International Association of Chiefs of Police (IACP) Law Enforcement Canine Model Policy” and the “Sample
Guidelines for the Use of Police Service Dogs.”
The authority to deploy a police dog should be addressed. A Police Service Dog Handler shall have the ultimate authority not to deploy the dog. The handler will evaluate each situation and determine if the use of a Police Dog is technically feasible. Generally the decision to deploy the dog shall remain with the handler, however, a supervisor sufficiently appraised of the situation may decide not to deploy the dog.
8): Training:
Training was strongly addressed in the Eleventh Circuit
Court case, Kerr v City of West Palm Beach. The court
stated: 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.
The industry standard for canine maintenance training is
a minimum of sixteen (16) hours per month, (4) hours
per week, on average. This is recommended by the United
States Police Canine Association (USPCA), the North
American Police Work Dog Association (NAPWDA) and
the National Police Canine Association (NPCA). This training
ensures
that you do not have a misbehaving dog.
The recommended minimum applies to each K-9 team, not per K-9 discipline. In other words, the minimum standard applies to a sole purpose dog and/or a cross trained, multi-discipline dog. Common sense would dictate that it will take longer to maintain a cross trained, multi-discipline dog. Remember, this is a MINIMUM standard.
If your agency is short-sighted and is below the recommended minimum of sixteen (16) hours per month, training is further discussed in the Agency Liability section under "Training" and "Supervision" (See: City of Canton, Ohio v Harris and Davis v Mason County).
Lastly, plaintiff’s attorneys in these canine cases are now
focusing on seven areas:
1): Training and Supervision:
Plaintiff’s attorneys are focusing their suits in these two areas:
A) Negligent Training:
In Kerr v City of West Palm Beach, 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.
Training is further addressed in vicarious liability under negligent training and in City of Canton, Ohio v Harris and in Davis v Mason County.
B) Negligent Supervision:
In Kerr v City of West Palm Beach, the court concluded that supervisors failed to adequately supervise the performance of members of the canine unit to ensure that both misbehaving dogs and officers exhibiting bad judgement in the use of canine force received corrective training.
Supervision applies to all supervisors and includes supervision of standards; training, testing and evaluation to those standards; appointment, entrustment and retention of both the dog and handler; deployment and the use of canine force.
Supervision is further addressed in vicarious liability under negligent supervision and in Davis v Mason County.
2): Documentation of suspect Injuries:
Photographs of any injury to the suspect should be taken to document the injury. Since the suspect will take a photo that is most advantageous to him, we should take the photo that is most advantageous to us. That will normally be after medical treatment, prior to bandaging, if any.
3): Canine Deployment Warnings:
You must afford the opportunity for peaceful surrender to a suspect, prior to using a canine as a use of force.
There are three components of a canine deployment warning:
A. Your authority;
B. The request for peaceful surrender;
C. The consequence, a dog bite.