Administrating a K9 unit - Ken Wallentine

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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.

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  1-403-569-6822.