Taking A Bite Out Of Crime

---

 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.

Immunization

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:

• Initial selection criteria and basic training of handler and canine 
• In-service training, including trials 
• Validity tests for narcotics detection 
• Patrol officer containment training 
• Deployments and apprehensions 
• Bites, including accidental bites 
• Corrective actions 
• Supervisory inspection of training and deployment 
• Awards and certifications 
• Public relations appearances
•  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.

Conclusion

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.