PERSONAL PROTECTION ARTICLES

Police Service Dogs Are Not Deadly Force

By K-9 Officer Brad Smith
West Covina Police Department
For years some attorneys have been arguing to the courts that police service dogs are deadly force. Before we go any further I think we should define deadly force so everyone is playing off the same sheet of music. Deadly force is defined as that force which creates a substantial risk of causing death or serious bodily harm.
If you recall form last months article on police service dogs as a safer and alternative means of force, Robinette v Barnes, 854F.2d 909, 1988 and Matthew v Jones, 1994 FED APP 327 and Fikes v Cleghorn 47 F. 3d 1011 (9th Circuit 1995) basically state police service dogs can often help prevent officers from using deadly force.
Lets look at some case law decisions which state police service dogs are not deadly force and dogs do not creates a substantial risk of causing death or serious bodily harm. Robinette Vs Barnes, 854F.2d 909, (6th Circuit, 1988) is the only case where the deployment of a police service dogs resulted in the death of a felony suspect. The court ruled the use of a properly trained police dog to apprehend a felony suspect does not carry with it a substantial risk of causing death or serious bodily injury. (The definition of deadly force). The court also said when a properly trained police dogs is used in an appropriate manner to apprehend a felony suspect, the use of the dog does not constitute deadly force.
In Gilliam v County of Los Angeles 37 f. 3d 1505 (9th Circuit, 1994) the court concluded the use of a canine was not excessive force and the canine was not deadly force. However the decision was without a published opinion.
In Quintanilla v City of Downey 84 F. 3D 353 (9th Circuit, 1996) the court looked at the evidence presented at trial and referring to Tennessee v Garner and Fikes v Cleghorn, the court ruled the use of a police dog during the arrest of a felony suspect did not create substantial risk of causing death or serious bodily harm. (The definition of deadly force). This could lead one to believe police service dogs are not deadly force.
The latest case is Vera Cruz v City of Escondido 126 F.3d 1214 (9th circuit 1997). Vera Cruz had vandalized a persons property, was intoxicated in public and challenged people to fight. The court looked at Graham v Connor and determined the use of a police service dogs on a misdemeanant was reasonable. The court also looked at Tennessee v Garner to determine if police service dogs constituted deadly force. The court concluded that police service dogs are not Deadly Force. They also added that criminals can largely control the circumstances of their crimes and can thus minimize the force that will be needed to arrest them.
Excessive Force Case to Watch
Mendoza v Block 27 F. 3d 1357 (9th Circuit 1994) is a canine case were the court determined the deputies were entitled to qualified immunity. The court looked at Robinette v Barnes, which stated using a police dog was not unreasonable when searching for a hidden felony suspect. Based on this the court concluded the use of a police dog was objectively reasonable.
There was also a questioned raised about excessive force being used on Mendoza. The deputies handcuffed Mendoza before having the dog release his bite. The court looked at Tennessee v Garner and Graham v Connor. The court considered whether the totality of the circumstances justified the use of force. The court concluded “the use of a police dog to find Mendoza, and to secure him until he stopped struggling and was handcuffed, was objectively reasonable under these circumstances.”
However; there is a case pending in the Ninth Circuit, Watkins v City of Oakland, California 98 Daily Journal D.A.R. 5623, which is being sent back to the United Sates District Court for the Northern District Court of California for trial.
In Watkins v City of Oakland a police service dogs was allowed to act independently away from the handler and bite the suspect for 10 to 30 seconds before showing his hands, assuring the officers he had no weapons, at least, in his hands. The Ninth Circuit thinks the excessive duration of the bite and the continuation of the attack could constitute excessive force.
In closing I want to leave you with a little trivia. I friend of mine who is a K-9 handler and attorney once wrote: “Police service dogs is the only law enforcement tool which can be recalled after deployment and they are the only law enforcement tool which if taken away from you by a suspect can’t be used against you.”
If you have any questions regarding my K-9 SWAT school I can be reached at West Covina Police Department or call 818-814-8400 ext 8998 or E-mail me at topdogwck1@aol.com My website is www.zyworld.com/skidds/home.htm

This article written and copyrighted by Brad Smith. All rights are reserved, and this article may not be duplicated in any manner without written permission from the author.