Countless court decisions in suits for police dog action, and decisions upholding a dog's ability to create probable cause for a search based on an alert to controlled substances, repeatedly cite the dog's high level of training as a key factor in ruling in factor of the police.
Training after normal work hours and home care of the police dog is comprehensible time under the Fair Labor Standards Act (FLSA). Administrators should not turn a blind eye to the off-duty hours logged by K-9 handlers. To do so is an invitation for an FLSA lawsuit and Department of Labor citations. (See Jeff Chamberlain's March and April 1998 articles, POLICE, "Point of Law," for more information on FLSA.)
A sound policy, outlining when a police dog may be deployed to locate and/or apprehend a suspect will substantially reduce the risk of legal liability. The policy should be grounded in established law for use of force. In Graham vs. Connor, the United States Supreme Court established a pivotal three-part analysis for police use of force. The first question is the severity of the crime for which the suspect is being sought. The severity of the crime cannot be judged simply by the degree of the crime; some misdemeanors may be far more threatening than a felony bank fraud.
The second question in the Graham vs. Connor analysis is whether the suspect presents an immediate threat to the officers or public. Police dogs should generally not be deployed to locate and apprehend misdemeanor suspects but should be considered whenever officers are facing a serious threat, even if the suspect has only committed a misdemeanor.
The third inquiry in the Graham vs. Connor test is whether the suspect is actively resisting arrest or attempting to flee. Suspects who do not attempt to flee or offer physical resistance should never be involved with a police dog.
No court has ever ruled that the deployment of a trained police dog constitutes deadly force. A recent decision by the United States Court of Appeals, Vera Cruz vs. City of Escondido, has repeated the long-standing rule that the use of police dog to locate and apprehend a suspect is not deadly force.
This rule was first announced in the only federal lawsuit following an actual death caused by a police dog. In Robinette vs. Barnes, a burglar was fatally bitten by a police service dog.
Even though the burglar died as a result of the dog bites, the Robinette 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.
One significant feature of the Robinette decision is the court's note that deployment of a police K-9 can prevent the necessity of deadly force when deadly force may well be justified. The court stated: "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."
Although perceived by some as liability traps, the use of police service dogs rarely results in successful lawsuits against police agencies. Many police officers' lives have been saved when their furry friend took a bullet for them, or when the dog found a dangerous suspect who might not have been found by traditional searches. Police dogs save lives, can be the backbone of an effective public relations program, and most importantly-police dogs catch bad guys.
Ken Wallentine is the Chief Deputy Uintah County Attorney, an adjunct professor of criminal law at Colorado Northwestern College, and the Judge Advocate for the Utah Peace Officers Association. Wallentine writes and lectures extensively on search and seizure as well as K-9 issues and is the author of Preparing and Executing Search Warrants. Wallentine may be reached at [email protected]