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Departments : Point of Law

Dogs of War

The first of a two-part look at police K-9 legal issues, such as litigation over bite injuries, use-of-force policies and handler selection.

December 01, 1998  |  by Ken Wallentine, Attorney at Law

Working police dogs have been around almost as long as society has needed law enforcement.  Ancient Egyptians used dogs for keeping order.  In Greece and Persia, dogs were equipped with sharply spiked collars to tear at the legs of horses bearing cavalry soldiers.  When 19th-century Paris was faced with a gang problem, police dogs were set loose to disperse the gangs.  The first organized K-9 unit in the United States began in 1907 in New York City.  Today, there are over 7,000 police K-9 teams patrolling the nation.

As police service dog use continues in full swing, a body of special legal knowledge is beginning to develop.

An Invitation to Sue?

Police administrators often mistakenly believe that K-9 units are significant liability risks.  While a number of lawsuits are filed each year over use of a police dog, these suits generally are dismissed in the early stages of litigation, and before an expensive trial.  Even when a department's K-9 unit is successfully sued, the damages are typically insignificant in comparison to the damages paid in a single traffic collision with a police vehicle or a verdict for sexual harassment by a supervisor.

Plaintiffs may choose state or federal court, often opting for a Section 1983 civil rights suit under federal law to gain the advantage of federal attorney fees provisions.  In order to successfully litigate a federal civil rights claim, the plaintiff of a "clearly established constitutional right. Mere negligence cannot give rise to a federal civil rights suit.

In Andrade vs. City of Burlingame, the suspect/plaintiff was stopped following an attempt-to-locate broadcast for an assault suspect. Although the plaintiff Andrade had not been involved in the assault, his car matched the suspect vehicle description.  During a traffic stop, the officer ordered Andrade and his companions to lie down.

Andrade did not cooperate.  As the officer attempted to subdue Andrade, the officer's dog came out of the car and bit two other suspects who had complied with the order to lie down.  Upon realizing that his dog had joined the fight, the officer immediately called off the dog.

Andrade and his companions sued in federal court claiming civil rights violations for assault and battery, negligent and intentional infliction of emotional distress, and negligent training and supervision.  The court ruled that the essence of Andrade's complaint was that the officer had been negligent in leaving the car door open, allowing the dog to exit.  The court concluded, "it is clear that no constitutional violation occurred.  Negligent conduct is not sufficient to support a constitutional violation pursuant to section 1983...In view of all of the circumstances, plaintiffs cannot establish that the officer acted with deliberate indifference to their safety."

Discovery

Even though, as in the Andrade case, an officer and department may defeat a lawsuit, the plaintiff can still put the officer through the pains of the "discovery" process.  Discovery is the term applied to the steps allowed in both state and federal court to force each side to produce records, documents, dispatch tapes, in-car video tapes, and to subject officers to depositions (examination under oath by the opposing attorney) and interrogatories (lengthy written questioning).

The department's legal counsel should carefully assist the handler to respond to written interrogations.

Preventive Risk management

Gather important defensive evidence before there is even a hint of a lawsuit.  Some officers post warning signs, such as "Bad Dog-Stay Back," near their home kennels.  Count on the plaintiff's lawyer photographing the sign, enlarging it several times, and claiming that this sign proves that the department and the officer knew that the dog was vicious mauler.  To counter such tactics, make a home videotape of the police dog interacting with the handler's children, or kids at the D.A.R.E. graduation.  Such tapes also give the officer an opportunity to give the jury a look at the officer's human side and family life.  Document visits to Boy Scout and Brownie groups. If sued, and if the K-9 unit has an active public relations strategy, it is probable that at least one juror will have a child who has had a positive experience with the police dog.

Adequate records must be kept.  The following records are essential for risk management:

Initial selection criteria and basic training of handler and canine;

In-service training, including performance trials and awards won;

Patrol officer containment training; Deployments and apprehensions;

Veterinary care; Bites, including bites not intended by the handler;

Corrective and adjustment training;

Supervisory inspection of training and deployment;

Public relations appearances.

Even the best records, however, are useless of they are not periodically reviewed by command-level supervisors.

Much has been said about tracking police dogs' "bite ratios."  No court case in the last 10 years gives any serious weight to this concept.  A department, however, would be wise to keep records of each bite and to review each bite as a use of force.

Training Time

To maintain a solid level of performance, a K-9 team requires adequate training.  The average recommendation is 5 to 8 hours per week, depending on the tasks expected of the K-9 team.  The department and the handler should be willing to commit to at least one training hour per working day to maintain an effective K-9 unit.

CONTINUED: Dogs of War «   Page 1 of 2   »

Tags: Canine Units, Use-of-Force Policies


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