© Ken Wallentine Judge Advocate
No administrator, except perhaps the police chief of Beverly Hills if one believes the portrayal in Beverly Hills Cop I, II & III, is immune from the budget pressures of the nineties. Administrators are scrambling to garner federal grants, stretch city and county resources, and recruit private dollars to support their departments. Many savvy administrators are turning to the time-honored police service dog as a cost-effective member of the police team. Some administrators shy away, fearful of liability and bad public relations. Such thinking may well be short-sighted. This article explores current issues in civil liability and canine units, and dispels several popular canine liability myths.
Man's Best Friend
Ancient Egyptian papyri show that the use of dogs as law enforcement tools is at least several thousand years old. The spiked collar popular in cartoon illustrations has its roots in ancient Greece and Persia, where dogs equipped with harnesses with sharp spikes were sent in advance of an attack on mounted soldiers in an effort to injure the cavalry mounts. The expression "dogs of war" can be traced to the Middle Ages, when dogs wore armor and were trained to nip at the legs of opposing knights' mounts.
There is nothing new about using police dogs to quell criminal street gangs. Long before the Bloods and the Crips, the Parisian gendarmes were using police dogs at the turn of the century against roving gang members. A few years later, in 1907, a police dog program began in New York. The program lasted nearly twenty years. Between the mid- twenties and 1956, when the Baltimore Police Department launched a canine division, police dogs were virtually unseen in America, although their use was popular in England, France and Germany. By the late fifties, police canine programs were re-established, and a 1959 article in the IACP journal, The Police Chief, asked: "Use of Police Dogs a Fad?"
Today, hundreds of police agencies in North America deploy more than 7,000 police canine teams for tasks as widely diverse as drug detection, crowd control, suspect apprehension and officer protection. America's attention was focused on rescue dogs supplied by private organizations and police departments to search the rubble in the Oklahoma federal building following the bombing. Several Utah police departments have active canine programs, and at least one Wasatch Front department is presently evaluating the addition of a canine program to its rapidly-growing force.
Police dog use has certainly spawned civil litigation, although not on a scale proportional to traditionally liability-prone police activities. Plaintiffs in dog cases usually claim excessive use of force resulting from a dog bite, unconstitutionality of find and bite policies, or both. Few plaintiffs have succeeded in obtaining any significant damage awards. Preventative risk management through adequate training, supervision and documentation can eliminate nearly all probability of paying damages to a criminal whining about being bitten.
Find & Bite versus Find & Bark
Critics of police canine programs focus on find and bite policies followed by many departments. Under a find and bite philosophy, the dog is trained to search for a suspect and the dog is allowed to bite the suspect upon location. The dog is trained to release the suspect upon an "out!" command, or to release the suspect once the suspect ceases to resist. The greatest criticism leveled at find and bite policies is that the suspect is almost always bitten. The Los Angeles Police Department claims to have one of the leading canine programs in the nation, and to be a leader in canine training methods. The LAPD had a long-standing find and bite policy, having abandoned a find and bark philosophy after finding the find and bark approach to be ineffective. Accusations that the LAPD dogs are deployed primarily against minorities, and bad publicity over the Rodney King incident, preceded a switch back to the find and bark policy.
The find and bark philosophy is similar to find and bite, although the dog is trained to hold or circle the suspect and to maintain a constant bark until the suspect is secured by officers. The dog is not trained to engage the suspect unless the handler commands, the suspect fights with the dog, or the suspect takes aggressive action toward the handler. Critics of canine programs advocate a nation wide mandate on bark and hold training. The find and bark approach requires a superior canine and immediate supervision by the handler. Many trainers assert that find and bark trained dogs are unpredictable when they locate a suspect after an aggressive search or encounter. The LAPD initially gave up its find and bark policy largely based on studies which showed an inability to stop the dog from attacking in a find and bark situation.
The legal controversy over find and bite versus find and bark has been fueled by a relatively small group of individuals. Don Cook and Robert Mann, two southern California plaintiffs' lawyers, claim that police dogs are "instruments of terror." Cook and Mann have taken their anti-dog philosophy to court on numerous occasions, with remarkably unsuccessful results. Although the small anti-dog movement aspires to have the find and bite approach declared unconstitutional, not one court in the United States has ever agreed with this claim.
Liability for Excessive Force
Lawsuits don't happen unless the dog bites. However, the mere fact that a police canine bites a suspect will not expose a department to civil liability. Most commonly, a plaintiff will allege excessive force. Other common theories of liability include failure to train and negligent supervision and/or retention.
A political entity usually cannot be held liable under a respondeat superior, or vicarious liability, theory. According to the Supreme Court's decision in Monell v. Department of Social Services, a government agency may be held liable only where the plaintiff can show: 1) that the plaintiff suffered a constitutional injury (such as excessive force), and 2) that the injury was due to an official agency "policy or custom." Although numerous lawsuits have alleged that a find and bite policy for apprehension of suspected felons is an unconstitutional injury in itself, no plaintiff has yet succeeded.
Excessive force complaints can arise in a number of contexts. A plaintiff may claim that the deployment of the police service dog is excessive as related to the degree of the offense, such as in the case of Kerr v. City of West Palm Beach, discussed below. A few courts have held that use of a canine to apprehend a misdemeanor suspect who poses no threat to the officers or public is facially unconstitutional. Allegations of excessive force may also arise from the actual bite, or from repeated biting after the apprehension. This can occur when the handler fails to promptly call the dog off, or the dog fails to obey the command. An unintentional bite may also generate an excessive force complaint. Police service dogs are trained to protect their handlers and a dog may mistakenly perceive a threat to its handler and attack without warning or command.
In Robinette v. Barnes, suit was brought by the survivors of a burglar who was fatally bitten by a police service dog. Officers responded to an intrusion alarm at a Nashville auto dealer and found evidence of forced entry. The canine handler shouted two separate warnings for the suspect to surrender or the dog would be sent into the building. When the suspect did not surrender, the dog was sent to locate the suspect. A third warning was shouted once the dog was in the building. The handler followed, but lost sight of his dog. After a few minutes, the handler found the dog biting the unconscious suspect's throat. The suspect later died of his wounds. This is the only reported case of a fatal injury from a police service dog in the United States in at least the past twenty-five years.
The first question facing the Robinette court was whether the deployment of the police service dog constituted deadly force. The factors to determine whether a particular force is deadly force include the intent of the officer to cause death or serious injury and the likelihood that the force will, in fact, result in death or serious injury. The court unequivocally stated that use of the dog did not constitute deadly force. The dog was well- trained and the handler and dog both received regular in-service training. Thus, the court found that the suspect's death was "an extreme aberration from the outcome intended or expected." The deployment of a properly trained police service dog does not constitute deadly force. Interestingly, the court also noted that even if the dog's bite could have been considered deadly force, the facts known to the officers at the time warranted the use of deadly force.
The court applied the test for excessive force dictated by the United States Supreme Court in Tennessee v. Garner. In Garner, a shooting case, the Court ruled that whenever a suspect is apprehended by the use of deadly force, there must be a balancing of the degree of force used to effect the seizure against the importance of the governmental interest. The Court stated that "where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force."
One year after the Robinette decision, the Supreme Court decided Graham v. Connor. The Court again applied the Fourth Amendment to use of force, setting out a three-part test for reasonableness of the force. The first factor is the degree of the crime. The second is the degree and immediacy of the threat against officers and the public. The third factor is whether the suspect is actively resisting attempts to arrest or apprehend him, either by force or fleeing. These factors must be considered in light of the totality of the circumstances known to the officers on the scene, not the 20/20 hindsight of a court. No longer is the officer's subjective intent a principal factor. However, an officer's intent can be significant in weighing a claim of malicious infliction of force by a canine.
One significant feature of the Robinette decision is the court's note that deployment of a police canine can prevent the necessity of deadly force when deadly force may well be justified. The court stated:
Instead of generally causing deadly force to be used to apprehend criminals, we believe that these dogs can often 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.
A few years ago, the San Diego Police Department made a deliberate choice to increase the number of police canine teams in an effort to reduce shootings. Results show that the department has significantly reduced officer shootings of suspects armed with weapons other than firearms since the department bolstered its canine force. The department has enjoyed a corresponding increase in public approval.
A deployment policy should address both the severity of the crime, not just the degree of the crime. While most courts to consider the issue have disapproved of canine deployment to apprehend a misdemeanor suspect, the classification of the offense is just one element of the Graham analysis. In Matthews v. Jones, the suspect led police on a vehicle pursuit and a foot chase. The initial violation was a traffic offense. Once located by the canine team, Matthews developed a severe case of terminal stupidity. The police service dog found Matthews face-down, hiding his hands. The handler gave the traditional "show me your hands!" command, followed by an order to remain still. Matthews jumped up and was bitten, and then taken into custody. In deciding Matthews's excessive force claim, the court followed the Graham analysis, but noted that the key issue was that Matthews presented an obvious threat to the officers and it was far less important that the officers did not know if Matthews was a felon. Obviously, this was not a Utah case, as the plaintiff would likely have been guilty of the felony offense of evading.
Some bites called "unintentional" are simply bites not consciously intended by the handler, but very much intended by the dog. For example, in Blais v. Town of Goffstown, an officer stopped Blais, for driving under the influence of alcohol. As the officer dealt with Blais, Blais became confrontive and abusive. In the course of the arrest, Mrs. Blais jumped in the fray, and tried to free her husband from the officer's hold. The officer ordered his canine to equal the odds, and the dog bit Mrs. Blais. Four back up officers arrived and the fight continued. When Mrs. Blais (quite unwisely) once again jumped in, the dog bit her again, this time without any command. The court had little sympathy for Mrs. Blais's claim of excessive force. A department will not be liable for a dog's bite if the dog mistakenly believed that his handler was in danger unless the plaintiff can show an uncorrected pattern of mistaken bites.
There is little, if any, litigation over truly unintentional bites. This may be because wise administrators act quickly to resolve the damages and preserve public relations. One effective technique used by several agencies is an instant settlement. The effectiveness of a settlement agreement and liability release depends on three elements. First, a supervisor must have immediate access to funds up to a predetermined amount for a cash settlement, and an ability to charge emergency medical bills. Second, the agency's legal advisor must have a written settlement agreement prepared in fill-in-the-blank format. Third, the agency must settle with the bite victim before the victim catches the hungry lawyer advertisements on the late show. This type of quick settlement may significantly reduce the cost of an accidental bite and save administrators and political officials from public relations head aches.
Penny Wise and Dollar Stupid: Failure to Train
One of the frequently cited cases by police service dog critics is Kerr v. City of West Palm Beach. The Kerr case illustrates both the folly of inadequate investment in continuing training for canine teams and the risks of liability for excessive force when policies do not spell out rules for canine deployment. In Kerr, misdemeanor suspects who were bitten in three separate incidents brought suit against the West Palm Beach Police Department. Uwaine Kerr fled from police after officers attempted to stop him for questioning in a park at night. Once he thought he had escaped detection, Kerr stopped to urinate on a wall and was bitten by a police service dog. No charges were ever brought against Kerr. Another plaintiff, John Terrel, was lying intoxicated in some bushes when he was mistaken for a burglary suspect. A dog bit him and dragged him from under the bushes. The third plaintiff, Jimmy Arnold, stole some fishing tackle from an unattended car. He was bitten by a dog after the handler attempted to call the dog off. Not until the handler struck the dog with a metal flashlight did the dog release Arnold.
The West Palm Beach PD canine policy allowed the use of police service dogs to apprehend suspected felons and those suspected of "serious misdemeanors." However, what constituted a "serious misdemeanor" was left entirely to the dog handler's discretion. Police service dogs were being used to apprehend prostitutes, drunks and petty thieves without regard to the degree of threat posed to officers. Canine handlers displayed stars on the sides of their patrol cars indicating the number of bites their dogs had given. The canine unit kept a bite scrapbook with photos of suspects and wounds. Several incidents of dogs failing to "out," or release upon command, were documented, but no remedial training had followed. The department had no effective method of tracking and identifying performance concerns. The court found that the City was aware of inadequate training for the canine unit.
The Kerr defendants lost; judgments were entered against the City, the Chief of Police and the individual canine handlers. The court followed the "deliberate indifference" standard announced in City of Canton v. Harris. That test requires that the plaintiff show that the political entity did, in fact, inadequately train its officers, and that the failure to train is the result of an actual policy. Although it seems absurd that a city or county would adopt a policy of inadequately training its officers, according to City of Canton v. Harris, this element may be met if the plaintiff can show that the need for further or better training is "so obvious and the inadequacy so likely to result in the violation of constitutional rights . . . the policy makers of the city can reasonably be said to have been deliberately indifferent to the need." An earlier case, City of Oklahoma City v. Tuttle, emphasized that the failure to train policy must be the key element, requiring "considerably more proof [than a] single incident."
Many valuable lessons are evident from Kerr. Misdemeanor suspects who do not pose a threat to officers or the public should not be apprehended by police service dogs. Canine programs must be adequately supported with training resources, both in the initial selection and training of canine handlers and their dogs, and in in-service training. Utah departments are fortunate to have qualified training staff and an excellent canine training facility available at POST, and to be near the major canine training events. Due to the number of canine teams in the western states and California, several premiere performance trials and training, such as the International Police K-9 Conference, are often held within a day's drive from most Utah towns. Had it not been for the failure to train, the Kerr defendants would have very likely escaped all liability.
One of the most important messages of Kerr is that canine teams must be adequately supervised. Much of the court's discussion focused on what the supervisory officers did not do. The court commented that inadequate supervision of the canine handlers had caused "an atmosphere of lawlessness." One supervisory failing was poor reporting practices. Moreover, the court found that the department's procedures for reviewing citizen complaints was woefully inadequate when compared to other area departments.
So-called "bite ratios" were used to level criticism against the handlers and supervisors. A bite ratio is the calculation of actual bites compared to the number of apprehensions. The department had a bite ratio of approximately fifty percent, while the court felt that a reasonable ration would have been thirty percent or less. Bite ratios also figured in the case of Chew v. Gates, a case filed against the LAPD. However, the Chew case was privately settled following the trial court's initial decision and after remand from the appellate court, so the opinions hold little value as precedent. A department should not rely on bite ratio monitoring as its guard against misbehaving dogs and handlers. Each bite should be reviewed and considered in light of all of the circumstances, not just how the bite fits into some mathematical formula.
Police administrators have tremendous power to immunize themselves and their departments from canine-related lawsuits. Qualified immunity protects officers and departments who do not violate clearly established constitutional rights that would be known to a reasonable officer. Effective training simply must include regular updates on constitutional rights, particularly pertaining to the use of force.
The companion to adequate legal training is in-service training. Virtually all trial and appellate court opinions addressing liability for canine-related injuries address the issue of verbal control of the dog by the handler. The necessary degree of control can only be achieved and maintained by regular training. Handlers must train under the circumstances they and their dogs are likely to encounter. Non-handler officers should also be trained in containment and canine techniques so that they will be prepared to support the canine deployment, and not interfere and potentially cause injury.
Utah law offers liability protection for all political entities with police canine programs. Under Utah Code Ann. section 18-1-1, no agency will be liable for an injury caused by a police canine if the canine is trained as a police service dog and the injury occurs in the course of a reasonable apprehension, arrest, search for a suspect, or crowd control. Utah Code Ann. section 76-9-306, the provision criminalizing offenses against police service dogs, also exempts police canines from normal quarantine requirements in the event of a bite. Neither statute addresses the required level of training for the police service dog. To be well-protected, an agency should require that the police service dog be certified for patrol duty by Utah POST. Canine teams that participate in multi-agency task forces should be certified to the highest standard of the all participating agencies.
There's No Such Thing as a Free Lunch
Agencies that wish to maintain a police canine program must be prepared to pay the cost. The initial cost may be minimal with good public support. Many agencies receive significant donations for canine programs. One Utah agency's program hard costs are supported entirely by annual corporate donations. Such costs include the initial modification of a patrol vehicle, home kennel facilities, harnesses and leads, food, regular grooming and veterinary care.
Canine programs involve investments of time for the handlers. An average of one hour per day must be allotted for care and training. Administrators cannot expect that this time will come out of the handler's personal time. The Wage and Hour Division of the U.S. Department of Labor has ruled that grooming, feeding and training time are all compensable. Transportation time for officers who kennel their dogs at home is also compensable. A recent claim against the City of Houston Police Department resulted in significant back pay settlements to several canine handlers. Unfortunately for the handlers dedicated to the program, the claim also resulted in a substantial curtailment of the canine program.
The worst thing that administrators can do with wage and hour issues is to turn a blind eye and hope that their officers never raise the claim. Either bite the bullet and pay overtime, or reduce the patrol time required for the handler, or create a solution. Most legal rights can be signed away (ever heard of a Miranda waiver?). Consult with your legal counsel and meet with the handlers to achieve a compromise that avoids FLSA liability and allows the department to keep the canine program. For more information on the applicability of the FLSA to public safety, see Wallentine, Fair or Foul: The Fair Labor Standards Act, Utah Peace Officer 82 (Summer 1993).
Happy Trails! (of paper)
Documentation can avoid a world of worries. Keep records and create a positive public image for your agencies canine program. Use a computer program, such as the KATS program, that can generate charts and regular reports. At a minimum, the following records must be maintained:
Create a visual record of positive public relations events. For example, if a canine team is asked to make an appearance at the D.A.R.E. program graduation, make it a public relations moment. This may even generate a contribution from one of the parents! Photograph and videotape the dog among the dozens of fifth-graders. Videotape the dog in the handler's home, playing with the handler's young children. Record visits with Girl Scouts and Boy Scouts. This will knock the wind out of some plaintiff's attorney who later calls this same dog a "ferocious instrument of terror." Let the community know about the dog's successes in detecting drugs that otherwise would have been sold in local schools. After all, if your agency is sued, one juror who knows of the dog's contributions may be all it takes to win the case! An effective public relations program will do far more than just sell the canine team. It will greatly enhance the image of your entire department.
Once the performance records are created, use them. Command-level supervisors should be assigned to monitor the training and performance of each handler/dog team. The agency risk manager or legal counsel should periodically audit performance records to inspect for liability concerns or performance trends.
Administrators beginning or maintaining a canine program can significantly reduce their department's liability for canine actions. Before embarking on a canine program, administrators should commit to adequate training for the canine teams, just as firearms qualification and familiarity, use of force and emergency vehicle operations require significant training commitments. Document the selection and training process and maintain complete records, taking care to create successful public relations at the same time. Consult with departmental legal counsel to draft policies that steer canine activities away from known liabilities. When the accidental bite occurs, be prepared to make it a legal and practical success for the citizen and the police department. Canine programs can be cost-effective and nearly liability-free with proper planning, documentation and supervision.
This article is intended to discuss basic liability management issues associated with police canine programs. For specific questions, officers should contact their agency counsel. City and county attorneys and administrators interested in a sample liability release and settlement agreement, or who have questions about liability issues are welcome to contact Ken Wallentine, Utah Peace Officers Association Judge Advocate. The KATS (K9 Activity Tracking System) Software reporting program addresses tracking, narcotics detection, apprehensions and numerous other necessary canine record keeping needs. For further information, contact Eden Consulting Group at 1-604-575-2979.