Reprinted from Criminal Procedure: The Street Cop’s Guide
Reprinted by permission 8 2005 KR Wallentine All rights reserved (the most current version of this chapter is contained in the 2007 edition)
Use of force principles for canine teams do not vary from the general laws and principles governing all law enforcement use of force. However, there are some unique force application situations with canine teams. Police service dogs are locator tools; they are not primarily intended for deployment as a force option. Unlike any other tool in an officer's array, service dogs can be recalled once deployed. Service dogs also cannot be taken away from the officer and used against the officer. Many courts have acknowledged that deployment of a police service dog can prevent the necessity of using deadly force. Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988).
This chapter addresses the question of when a service dog should and should not be used to locate and/or capture a suspect. Remember that the primary function is to locate, not to bite. Though most service dog handlers have received special training in use of force, the following information will help officers know when they may properly request the assistance of a service dog to locate and apprehend a suspect.
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?"
Find and bite, or find and bark?
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 command, or to release the suspect once the suspect ceases to resist. 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 lawyers. Although the movement aspires to have the find and bite approach declared unconstitutional, not one court in the United States has ever agreed with this claim. Though widely criticized, the current International Association of Chiefs of Police Canine Model Policy recommend a bark and hold training regimen. Critics point out that many suspects are bitten by so-called bark and hold dogs, and that injuries may be exacerbated when a dog is not trained to bite and maintain the single bite. Bark and hold dogs are trained to bite whenever a suspect moves. To date there has been only one broad scale, scientifically validated, study comparing bite and hold-trained dogs and bark and hold-trained dogs and the likelihood of a bite. In 2003, the University of Central Florida released a study concluding that a bark and hold dog is more likely to bite a suspect in the course of a deployment.
Liability for a service dog bite
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. 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. 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.
The critical issue in defending a dog bite where excessive force is claimed is whether the dog should have been deployed in the first place. As with any evaluation of law enforcement use of force, this calculation includes the factors of Graham v. Connor. The first step in deciding when to send the dog is an evaluation of the crimes allegedly committed by the suspect. Then consider the degree of danger that the suspect poses to officers and public. Next, ask whether the suspect is actively fleeing or resisting arrest. Though not necessarily a factor imposed by courts, officers should also consider the age of the suspect and use particular caution in sending a dog to locate and/or apprehend a juvenile.
Are police service dogs equal to deadly force?
Officers responded to a burglar 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 and confirmed case of a fatal injury from a police service dog in the United States in at least the past twenty-five years. Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988).
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 does 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. Since the Robinette decision, numerous federal courts have considered whether police service dogs constitute deadly force. Each time, the court has agreed that a police service dog bite does not amount to deadly force. Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2003).
Some 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.
Misdemeanors
As a general rule, service dogs should not be used to locate or apprehend suspects who have committed only misdemeanors. Jarrett v. Town of Yarmouth, 309 F.3d 54 (1st Cir. 2002); Marley v. City of Allentown, 774 F.Supp. 343 (E.D. Pa.1991), aff'd, 961 F.2d 1567 (3rd Cir. 1992). A dog should never be used to locate and apprehend a non-violent misdemeanor suspect. Courts have carefully considered deployments in misdemeanors, primarily in cases where suspects flee from traffic stops. Following are some examples of misdemeanor deployments that have not resulted in liability, and the court's reasoning.
--Traffic stop for driving with improper license plates (a misdemeanor), leading to suspicion that the car could be stolen. After a short pursuit (a felony), the suspect ran into wooded terrain. The suspect left a large knife behind in the car, suggesting a propensity to carry weapons. The court ruled in favor of the officers because the may have committed felony auto theft and did commit felony evading, may have been armed, presented a danger evidenced by fleeing, and potentially waiting to ambush officer. The most significant factors were flight, and presumption of a threat to officers. Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003).
--Traffic stop for driving under the influence of alcohol. A suspect failed to stop for emergency lights, then stopped, got out of the car, yelled at the officer, got back in the car and drove off. After stopping in a back yard, the suspect ran. The officer gave warnings and sent the dog. The suspects femoral artery was punctured by the dog bite. The suspect's blood alcohol level was .344. The court found no liability. The court found that the suspect had initially committed a misdemeanor, compounded into a felony evading. The suspect posed an immediate threat through his continued flight on foot. Tilson v. City of Elkhart, Ind., 96 Fed.Appx. 413 (7th Cir. 2004).
--Traffic stop for failure to dim lights. After stopping, the suspect ran into a swampy area of high grass for no apparent reason. A thirty minute track with a dog resulted in finding the suspect, who was briefly bitten. The court ruled that the bite was reasonable force because the flight lead to several conclusions: the officers could reasonably assume that the suspect had committed some crime more serious than failure to dim lights, the suspect fled into a residential area where he could confront citizens, the suspect may have been armed. Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2003).
--Pedestrian stop for suspicion of underage alcohol consumption. A college honor student and football player was walking home from a drinking party with a sack in his hand. When the suspect saw a patrolling officer, the suspect fled. The officer followed, taking his unleashed dog with him. The handler put the dog on a leash when it appeared that the dog had picked up the suspect=s scent. There was no dog bite. The suspect was severely injured when he fell into a rocky creek bed. The suspect had barbiturates and amphetamines in his blood, as well as a blood alcohol level of .227. The suspect claimed that using the unleashed dog to locate a misdemeanor suspect constituted excessive force. The court disagreed. Dennen v. City of Duluth, 350 F.3d 786 (8th Cir. 2003).
--Pedestrian stop for intoxication. An intoxicated man went to a fast food restaurant late and night and demanded to be served. He challenged workers to fight, and smacked a window. Returning home, he strapped on a large knife and walked to the liquor store, when he found officers looking for him. Thus far, he had committed only misdemeanors. The suspect ran from officers. After a warning, the dog apprehended the suspect by a bite to the arm. Though the court found the crimes to be minor, officers reasonably believed that the suspect could have committed a burglary at the restaurant. The court ruled in favor of the officers because of the act of flight upon seeing officers, and the possession of the large knife. The court repeated the doctrine that a dog bite does not constitute deadly force. Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1997), cert. denied, 525 U.S. 869 (1998).
--Suspect fled after minor traffic violations. The suspect fled on foot into a residential area. Officers knew that the suspect had a record for armed robbery, and feared for the safety of the citizens. The suspect was seen hiding under a car, and refused to come out. After warnings that a dog would be sent, a dog bite the suspect and helped him out from under the car. The bite was ruled to be reasonable due to the flight and the reasonable fear for citizens= safety. Shannon v. City of Costa Mesa, 46 F.3d 1145 (9th Cir.), aff'd sub nom. Shannon v. City of Santa Ana, 516 U.S. 822 (1995).
-- Suspect attempted to climb a fence into a Grateful Dead concert. The suspect approached a fence, apparently intending to climb it and enter concert grounds without a ticket. An officer some distance away shouted a quick warning, and sent his dog to capture the suspect. The issue before the court was whether the plaintiff was entitled to a damage award without taking the case to a jury. The plaintiff argued that the law clearly stated that a deployment for a property crime misdemeanor was unreasonable. The court refused to grant the plaintiff judgment without a trial, but noted that all of the cases addressing dog bite use of force involved crimes that were significantly more severe. Mason v. Hamilton County, 13 F.Supp.2d 829 (S.D. Ind. 1998).
The recurrent lesson in these, and similar cases, is that a service dog may be deployed on a misdemeanor suspect when the suspect flees, or actively resists arrest in some way. This is consistent with the three factors posed by Graham v. Connor. 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 are considered in light of the totality of the circumstances known to the officers on the scene, not the 20/20 hindsight of a court.
Felonies
The use of a police service dog to apprehend felony suspects generally receives more favorable treatment in court. The more violent and threatening of a felony committed, the more likely it is that the use of force will be ruled as reasonable. However, officers cannot simply equate the commission of a felony with a crime sufficiently serious to send a dog to apprehend the suspect. Suspects who are suspected of a felony involving the use or threat of a weapon, assaultive behavior, or a threat of serious bodily injury or death, and who are actively fleeing or resisting, may be apprehended by a police service dog. The following cases offer general guidelines for deployments on felonies.
--Suspect was driving a stolen car and lead officers on a pursuit. The suspect threw a glass bottle at an officer, then fled on foot over a fence and into a truck yard, where he hid. Numerous warnings were shouted. A dog was sent. The dog bit the suspect and the suspect put the dog in a headlock. The canine handler dragged the entwined dog and suspect out from under a car. The court found the force to be reasonable because the crime was a felony, the suspect assaulted an officer, the suspect fled, the suspect ignored repeated warnings and commands to surrender, and the suspect continued to resist when located. This is one of many cases where the court discussed the issue of bite and hold and bark and hold dogs and refused to rule that the use of bite and hold dogs is unreasonable. Quintanilla v. City of Downey, 84 F. 3d 353 (9th Cir. 1996), cert. denied, 519 U.S. 1122 (1997).
--Armed bank robbery suspect hiding. The suspect fled onto private property and was hiding in bushes. Over twenty warnings were broadcast from a helicopter=s loudspeaker. A dog was sent to find the suspect, and the dog bit the suspect. The suspect fought the dog and was bitten again. It comes as no surprise that the court found the use of a service dog to find a fleeing, armed suspect, who had committed a violent felony, to be objectively reasonable. This case is the classic circumstance for proper use of a dog. Better that the dog find the suspect than officers face the risk of gunfire from a hidden suspect. Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994).
--Suspect wanted only for driving under the influence of alcohol and driving with a suspended license. As the officer checked the status of the suspect=s license, the suspect fled into nearby woods. A citizen reported that the suspect had been in a neighbor's garage (thus committing a minor felony). A canine handler located the suspect, and shouted a warning to stop or the dog would be sent. The suspect shouted at the officer and continued to flee. The dog quickly caught the suspect with one minor bite, and immediately released the suspect. The officer shouted at the suspect to remain still so that the dog would not bite again. The dog sat calmly. The suspect then bolted and began to run. The dog again stopped him. The court noted that the crimes were not particularly severe. The suspect was not charged with burglary of the garage. Nonetheless, the use of the dog was reasonable due to the flight. Carey v. Cassista, 939 F.Supp. 136 (D. Conn. 1996).
Warnings
Most canine deployment policies require that a verbal warning be given before release a dog to locate a suspect. Loud, repeated warnings not only encourage the suspect to surrender, but also help avoid liability for any dog bite. Matthews v. Jones, 35 F.3d 1046 (6th Cir. 1994) (fact that warning given made deployment objectively reasonable). The crucial issue in most dog bite lawsuits is whether the dog should have been used in the first place. To that end, a warning greatly increases the reasonableness of the deployment as the suspect makes the deliberate choice not to surrender. Ruvalcaba v. City of Los Angeles, 167 F.3d 514 (9th Cir. 1999) (officers gave three warnings in both Spanish and English before releasing police dog into a closed theater). Warnings should be loud, clear, and repeated. Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1997), cert. denied, 525 U.S. 869 (1998).
There is no absolute constitutional right to any warning before the use of force, generally, or before the deployment of a service dog. Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2003). However, courts have found deployments without warnings to be objectively unreasonable in circumstances where the suspect would not have known that police were present, or where the suspect was effectively contained in a perimeter. Occasionally, officer safety may be compromised by revealing the officer's location by shouting a warning. Consider the possibility of a warning by loudspeaker from the perimeter. In the Kuha case, officers argued that a warning as they searched through tall grass would have posed a safety risk. The court suggested that a warning could have been shouted from a nearby hilltop.
Warnings are particularly critical when the suspect may not be aware of officers' presence. Officers responding to a mistaken burglary report sent a dog into a residence without warnings, despite a department policy mandating loud verbal warnings. The dog found the lawful resident asleep in her bed and bit her in the face, crushing some of her bones. The victim suffered substantial injuries. The court refused to grant immunity to the officers due to the lack of warnings. Vathekan v. Prince George's County, 154 F.3d 173 (4th Cir. 1998). Similarly, another court found deployment without warnings to be unreasonable where the suspects were contained in a narrow alley. It did not help matters that one of the suspects was a pregnant teenage girl. Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), rev'd following remand sub nom., Kopf v. Skyrm, 993 F.2d 374 (4th Cir. 1993).
Unintended bites
Unintended bites happen. The bite may be intended by the dog, in response to a person=s behavior, but not intended by the handler. For example, an officer stopped a suspect for driving under the influence of alcohol. The suspect became confrontational and abusive. In the course of the arrest, the suspect's wife tried to free the suspect from the officer=s hold. The officer ordered his canine to assist and the dog bit the wife. Four back up officers arrived and the fight continued. When the suspect's wife once again jumped in, the dog bit her again, this time without any command. The court had little sympathy for he claim of excessive force. A department will not be liable for a dog's bite if the dog mistakenly believed that an officer was in danger. Blais v. Town of Goffstown, 119 N.H. 613 (1979). Persons who attempt to interfere with a canine operation cannot claim excessive force when their own actions result in an unintended bite. Dogs are trained to protect their masters. Dunigan v. Noble, 390 F.3d 486 (6th Cir. 2004).
There is little 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 promptly. This type of quick settlement may significantly reduce the cost of an unintended bite.
Liability protection
Some state laws extend special liability protection for canine programs. For example, Utah law offers liability protection for all political entities with police canine programs. Under Utah law, 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 18-1-1. The Utah Code provision criminalizing offenses against police service dogs, also exempts police canines from normal quarantine requirements in the event of a bite. Utah Code Ann. section 76-9-306. To be well-protected, an agency should require that the police service dog be certified for patrol duty by the state police standards and training agency. Canine teams that participate in multi-agency task forces should be certified to the highest standard of the all participating agencies.
