The Courts typically do not reinvent the wheel, and as such, a historical review of the major K-9 legality issues are as follows.
Demise of Law Enforcement Canine:
There are three (3) areas where canine units nationwide have either been terminated or the units reduced in size:
The First Demise, Deployment Issues:
This is the issue of not deploying the dog properly, which led to litigation, which
resulted in either an out-of-court settlement or a jury verdict against the agency.
Police Dog’s Primary Purpose, a Locating Tool:
Canines are a locating tool. Upon the location of the suspect, a use of force
by either the handler or the dog may or may not be necessary. The suspect
controls this decision. The vast majority of suspects, when confronted by a K-9, still surrender. The K-9 actually prevented and deescalated a use of force.
The handler and the dog merely react and respond to what the suspect dictates. Law enforcement is simply a reactive business. The suspect dictates and controls his own destiny. One court concluded that “criminals…can largely control the circumstances of their crimes and can thus minimize the risk that force will be necessary”.
Police Dog’s Secondary Purpose, a Use of Force:
The use of Police Service Dogs as a use of force is governed by the U.S.
Supreme Court decision in Graham v Connor: Excessive force must be analyzed under the Fourth Amendment’s objective reasonableness test. Taking into consideration the totality of the circumstances,
using only the information available to the officer(s) at the time of the incident, a
three-part test should be used to satisfy and justify a canine deployment:
A. The severity of the crime at issue;
B. Whether the suspect poses an immediate threat to the safety of the law
enforcement officers or others;
C. And whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
Control of K-9 force:
Control of a K-9 as a use of force, was strongly addressed in the U.S. Court of Appeals case, Kerr v City of West Palm Beach case. The Court stated “…the handler must have complete control over the actions of the dog. With such control the handler can recall and restrain the dog before a bite occurs (a verbal recall). Alternately, the handler can quickly remove the dog from the apprehended suspect” (a verbal out).
The U.S. K-9 industry standard is a verbal recall and verbal out. This has been addressed by the nationally recognized K-9 associations and Federal case law.
In addition, the courts have been emphasizing the “immediate release” of a suspect once the handler commands it.
The K-9 industry standard is yearly K-9 team certification. This is recommended by the nationally recognized United States Police Canine Association (USPCA), the North American Police Work Dog Association (NAPWDA), the National Police Canine Association (NPCA) and the National Narcotic Detector Dog Association (NNDDA). Both the verbal recall and verbal out are tested during yearly certification.
Certification is accepted by the Court system in two fashions:
The K-9 team is evaluated by a qualified person within the agency and certifies the K-9 team in-house. An analogy would be your firearms certification, other in-house training certifications, etc.
The K-9 team is evaluated and certified by a third party outside your agency. Examples would be another agency, a K-9 association, K-9evaluator, etc.
Training of the K-9 Team (Handler and Dog):
Training was strongly addressed in Kerr v City of West Palm Beach. The court
“Police Dogs must be subject to continual, rigorous training in law enforcement
techniques. Such training ensure that the dogs will continue to respond with
alacrity to the commands of their handlers; without such training, the dogs’ responsiveness to their handlers’ commands will deteriorate, resulting in more frequent and more serious injuries to apprehended suspects than might
The K-9 industry standard for canine maintenance training is a minimum of
sixteen (16) hours per month, four (4) hours per week, on average. This is
recommended by the United States Police Canine Association (USPCA), the
North American Police Work Dog Association (NAPWDA), and the National
Police Canine Association (NPCA). This training ensures that you do not have a
misbehaving dog / handler.
The recommended minimum applies to each K-9 team, not per K-9 discipline. In
other words, the minimum standard applies to a sole purpose dog and/or a cross trained, multi-discipline dog. Common sense would dictate that it will take longer to maintain a cross trained, multi-discipline dog. Remember, this is a MINIMUM standard.
K-9 Deployment Warnings:
You must afford the opportunity for peaceful surrender to a suspect, prior to
using a K-9 as a use of force.
There are three components of a canine deployment warning:
A. Your authority;
B. The request for peaceful surrender;
C. The consequence, a dog bite.
There have been several cases where the suspect claims he did not hear
the canine deployment warning. Based upon national studies, this is actually true and is a training issue that must be addressed by all agencies.
These K-9 warnings must be made unless you can articulate specific officer
safety issues. Warnings must be:
• Loud, clear and documented being heard at the far side of the building / area (amplified is suggested).
• The text of the warning must be documented in the report.
• The warning must be in the language of the community you are deploying in.
• In a large building / area, multiple warnings must be made while progressing through your search to ensure the warning was heard. This is another training issue that must be addressed by all agencies.
There are six (6) U.S. Court of Appeals cases that mandate giving suspects a
K-9 warning, prior to using a dog as a potential use of force:
• Sorchini v City of Covina
• Vathekan v Prince George’s County, MD
• Kuha v City of Minnetonka
• Szabla v City of Brooklyn Park, Minnesota
• Deorle v Rutherford
• Rogers v City of Kennewick
There is one U.S. Court of Appeals case that states an exception in giving a
suspect a warning. It addresses close officer proximity to a suspect, armed with a handgun:
• Estate of Rodgers v Smith
Remember, you are a canine handler, not a canine warning announcer. Have
someone else make the warning tactically (a third party announcement, from a third party location, etc.), while the K-9 handler remains behind cover and watches his dog’s alert behavior.
The Police Report or Supplemental Report:
This is the one area where K-9 handlers can actually prevent K-9 litigation. A well written report, covering the topics discussed in this article, actually prevents litigation. The report should minimally cover:
• Answering the three elements in Graham v Connor;
• Describing the K-9 deployment warnings and opportunity for surrender;
• Control of the K-9 as a use of force;
• The verbal recall or verbal out, if appropriate for the situation;
• The “immediate release” of a suspect once the handler commands it, if appropriate for the situation;
• Confirming the K-9’s targeting system (as discussed below).
For a K9 Report Management tool visit the KATS Platinum website.
The Second Demise, Accidental (Unintentional) Bites:
Both civilians and officers have been accidentally bit by a police service dog
or contraband detector dog. This led to agency liability for that accidental bite for negligence. Agencies must have a “pre-plan” in place, formulated by your Risk Management personnel, to immediately settle these bites in an in-field setting.
Due to the frequency of accidental bites, there are now two additional components in making a proper deployment under Graham:
A. You MUST confirm the dog’s targeting system is focused on the target. That means you MUST look at the dog’s targeting system, prior to releasing the dog. The dog’s targeting system is simple. The dog’s nose is the front sight and the dog’s ears are rear sights. There have been numerous accidental bites by releasing a police dog without having visually confirming the dog’s targeting system.
B. You must have clear cut target acquisition of the target, prior to releasing the dog to bite a suspect. There have been numerous accidental bites by releasing a police dog without having clear target acquisition, such as multiple people mixed in with the targeted suspect. Unfortunately, numerous police dogs have also been shot and killed by fellow Officers while they were being accidentally bit by a police dog. This has occurred numerous times and must be managed by both of these components.
The Third Demise, Handler Compensation Issues:
The United States Department of Labor (DOL) mandates the compensation of
“at-home care” of police dogs under the Fair Labor Standards Act (FLSA). An
agency’s failure to compensate a handler has resulted in litigation where the agency was found liable for two to three (2-3), typically three (3) years of back pay for each canine handler.
This issue arises if the agency does not kennel the dog at the police station or some other fixed work place site. The norm is for the handler to kennel and care for the dog at the handler’s home. The Department of Labor (DOL) has consistently held that time spent in the at-home care of police dogs is compensable time and that, to the extent that these hours exceed forty (40) in one week, time and one-half compensation must be paid.
Only one U.S. District Court case, Levering v District of Columbia, specifically states the “appropriate time” for such activity compensation. This case states “30 minutes per day”, seven days per week = a MINIMUM OF 3.5 HOURS PER WEEK.
Methods of compensation:
A. Factor all compensable time into the handler’s normal workday. The handler’s normal workday would consist of “__” hours of normal duties and “__” hours of FLSA compensable time, off = total workday hours. This method does not cost the agency any money whatsoever.
B. Pay the handler all FLSA compensable time. The rate would be at one and one-half hourly rate for any hours which exceed forty per week.
C. Do a combination of both methods of compensation as listed above. Factor the compensable time into the workday, but if call load prohibits letting the handler leave early, pay the handler for that day only, usually at one hour overtime.
Failure to abide by the FLSA has had disastrous results in K-9. The agency monetary liability upon an FLSA action is substantial. In the event of a FLSA action, the agency owes the handler:
The employee’s hourly rate of pay x 1.5 (O.T.) x 3.5 (weekly appropriate time) x 156 (the typical three year statute of limitations) x 2 (the FLSA mandated additional equal amount as liquidated damages) = total due to each handler. In addition, the handler’s attorney fees and costs are mandated to be paid by the agency as well. Those fees and costs are determined by the Court. This should provide motivation for an agency to be in compliance with the FLSA.
This article is simply a reminder of the three areas of the demise of law enforcement K-9. There is nothing new presented here, yet our industry still continues to have issues in these three areas. I think one of the reasons is our K-9 industry personnel turn-over rate. We have seen a tremendous recent turn-over in K-9 personnel on both a handler and supervisor / administrator level.