Dog Bite | Animal Behavior Expert Witness For Attorneys

Richard H. Polsky, Ph.D. CDBC
Los Angeles, California

“Bringing the science of animal behavior to attorneys”

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Excessive force in attack-trained police K-9’s

Dogs were first used by the police in the early 1900s, and by the 1950s the modern era of police dog use was underway in the United States police dog bite expert(Dorriety, Police Service Dogs in the Use-of-Force Continuum (2005) 16 Criminal Justice Policy Review 88). Since then police dogs have served as a tool for detection and identification and as a weapon to fight crime. They are now widely used for search and rescue, tracking, identification lineups, drug and bomb detection and the apprehension of criminal suspects.

The benefits specially trained dogs bring to the police are remarkable.
Nonetheless, despite their tremendous benefits, they are viewed by many as vicious and dangerous animals. Baby boomers may recall how police dogs were used to quell the historic civil rights demonstrations in Birmingham, Alabama in 1963. More recently, video footage on the Internet shows police dogs chasing and threatening people during the riots in 2011 in Vancouver and London. Also, inner-city residents have good reason to fear police dogs: Attacks on people by police dogs are disproportionately high when compared with attacks on people in more affluent areas. African-American teens have been called “dog biscuits” by Los Angeles Sheriff Department canine handlers. And there are many substantiated instances in which K-9 handlers used their police dog to attack and bite a suspect rather than using a less violent means for apprehension. Attacks on innocent bystanders happen at alarmingly high rates, and for no apparent reason, police dogs have been known to jump out of patrol cars and attack a nearby person.

Attacks by police dogs on humans have therefore led to numerous lawsuits. Victims have been paid millions of dollars in settlements. A field trip by middle school students to a courtroom is an example. The police handler spread marijuana residue on some students to demonstrate the drug detection skills of his dog. However, rather than alert to the presence of marijuana, the dog instead violently bit an 11-year-old boy on the leg. The case settled for over $200,000 against the city of Brazil, Indiana and the Brazil Police Department. In California, the city of Hayward settled a case for $1.5 million when an off-leash police dog, searching for a suspect, mistakenly attacked a man sleeping under a bush. In another lawsuit, the city of Pittsburgh (CA.) settled a case for $145,000 because of the plaintiff’s claim that excessive force was used by a police K-9 in his apprehension. And in 2017 the City of Palo Alto settled a lawsuit for $250,000 when a police K-9 jumped through the squad car window and mauled a 16- year-old boy who had already surrendered.

This article explains why police K-9s attack with excessive force. The discussion is made using an animal behavior perspective. The material is presented in the context of current law concerning liability against municipalities for constitutional violations of a person’s fourth amendment rights.

Background

Police dogs used for suspect apprehension are usually Belgian Malinoises purchased in Europe and brought back to the States for sale to the police. The dogs are selected from breeding lines that have been developed to imbue aggressive propensities in a dog. The dog may be tested to determine its suitability for police work at the time of purchase. Dogs are usually about two years of age at the time of purchase. The first level of Schutzhund training has already been taught to most dogs. Schutzhund training teaches obedience, tracking, and protection. The dog’s inherent aggressive tendencies are capitalized upon and further developed through Schutzhund training. Schutzhund training sets the foundation for the later teaching of the bite and hold technique.

A handler takes the dog under his tutelage as his K-9 “partner.” The head of the canine unit of the municipality’s police department oversees and is responsible for the selection of the handlers, the development of policy and procedures regarding the use of canines, monitoring the progress of the K-9 teams, their training, and reprimanding, temporarily removing or retiring the handler or dog from service.

Policy requires that the handler train his dog on a regular basis. Training records must be kept by the handler detailing the progress and behavior of the dog during training sessions. Usually, most police dogs serve a dual function: Drug and bomb detection and the apprehension of criminal suspects. Subsequently, the handler and his dog are certified as a team before their approval for use in the field.

The inherently dangerous nature of attacked-trained police K-9s

The principles of animal behavior science that govern aggressive behavior in dogs are the same regardless of the type of dog. Hence, the causes and mechanisms which underly police dog behavior and aggression (e.g., genetic propensities, motivation, cognition, conditioning and learning, arousal levels, impulsivity) are identical to those used to explain behavior and aggression of a pit bull or any breed. Animal behavior science explains why attack-trained police K-9s are inherently dangerous animals.

First, police K-9s are genetically programmed for heightened aggressive arousal and low attack thresholds.
Second, attack-trained police K-9s are taught to apprehend suspects using the controversial technique of bite and-hold. Currently, in the United States around 2,500 police departments have K-9 units and up to 75% of these units train their dogs to bite and hold. This technique teaches the dog to viciously attack a suspect by biting, vigorously shaking, forcibly latching onto the suspect’s arm or leg, and then holding its bite until commanded to release by the handler. Many hours of training are needed to teach this technique to the dog. And even if the dog becomes relatively skilled in this technique during training sessions, the method often breaks down when the dog is deployed in the field. The method is fraught with serious problems because it is unreliable. Moreover, bite and hold trained dogs usually inflict severe injury on a person and frequently the dog will refuse to release its bite after latching onto the suspect.

Third, attack trained police K-9s bite with tremendous force. This force is of high magnitude, certainly no less than the strength of a bite from an aggressive pit bull or Rottweiler. It is a force that can easily cause severe and permanent injury to a person. Its intensity has been compared to “an automobile wheel running over a body part.” Not surprisingly, one study found that when compared with bite injuries inflicted on people by non-police dogs, bites from a police K-9 resulted in more severe damage, longer hospitalizations, more surgeries and higher hospital costs (Meade, Police and domestic dog bite injuries: What are the differences? What are the implications about police dog use? 2006 Injury, 37, 395-401). Another study found that the use of canine force resulted in more trips to the hospital (67.5% of the time) than the use of other kinds of force such as a baton or laser (22% of the time or less) (McCauley, The Police Canine Bite: Force, Injury and Liability 2008 Report for the Center For Research In Criminology, University of Pennsylvania).

Fourth, police K-9s are unpredictable. There are many examples of their unpredictable nature. Take an incident which happened in Richmond, CA. A Belgian Malinois jumped out of a patrol car and attacked a 3-year-old boy. According to a witness, “The dog just grabbed him like he was a piece of rib eye meat.” The police were dumbfounded. “We are absolutely shocked,” according to a spokesperson for the Richmond Police Department. “We take great pride in our canine program and the quality of dogs we have. This dog has never shown this type of inappropriate behavior. Marco has appeared at more than 40 demonstrations in the community and has more than 400 hours of training.”

Fifth, police K-9s frequently attack the wrong person. There are many documented accounts of vicious attacks on innocent bystanders. Attacked-train police K-9s are eager to attack the first person they find after being deployed in the field to
search for a suspect. These dogs do not have the cognitive abilities to differentiate suspects from non-suspects.

Sixth, police K-9s are difficult to control. For example, it is often difficult to get the K9 to stop an attack even after the suspect has surrendered or been subdued. The handler’s lack of control over his canine partner stems from a combination of factors.
Namely, (a) the aroused emotional state the dog is in during an attack; (b) the strong desire to find a person to attack; (c) the bite and hold training the dog has received; (d) poor selection of the dog at the time of purchase, and (e) an inexperienced or poorly supervised dog/handler team. A shocking video illustrating an out-of-control K-9 can be viewed at http://www.sandiegouniontribune.com/news/public-safety/sd-me-dog-lawsuit- 20170718-story.html.

Why the force from an attack trained police K-9 quickly becomes excessive

This kind of force is delivered by an inherently dangerous animal and not a human. Hence, it differs from other weapons of force used by the police for suspect apprehensions, such as a baton, a taser, pepper spray or a gun. As such, canine force is a type of force that cannot be easily or quickly controlled. Hence, when applied to apprehend a suspect, there is the high probability that it will be delivered excessively and in a manner that violates a person’s fourth amendment rights.

Moreover, canine force quickly becomes excessive because:

1. Attacking a suspect is rewarding for the K-9.

Much like eating a dog biscuit is reinforcing to a hungry dog, the act of attacking is likewise rewarding to a dog who has been trained to attack. The self-reinforcing nature of aggression is well documented in the animal behavior literature. Moreover, the handler may praise the dog during an attack which further strengthens the dog’s desire to attack a suspect. These factors create a dog eager to attack and resistant to stopping its attack. The difficulty many handlers have in calling their dog off the suspect, either physically or with a verbal command, allows the attack to continue for unnecessarily long durations.

2. This force is high on the use of force continuum.

Courts have ruled that the force from an attack trained police canine is non- deadly (Robinette v. Barnes, 854 F.2d 909 (6th Cir.1988). Most police departments classify this force high on the use-of-force-continuum, placing it just below a deadly
force, such as a gun. Given its high position on the force continuum, there is a greater chance that this force will be delivered in circumstances that do not warrant its use because: (a) the agent of delivery is a highly aroused animal eager to attack, and (b) overzealous, inexperienced or racially biased handlers choose to use the K-9 rather than other lesser force options.

3. This force is unique because it is delivered by an animal.

It stands worth repeating that this kind of force is delivered by an inherently dangerous animal and not a police officer capable of making split-second decisions. A dog is incapable of modulating the amount of force delivered so that it is commensurate with the circumstances present at the time of the incident. In contrast, a police officer knows when to modulate other kind of forces such as the strength or frequency in which a baton is swung or the delivery of a taser.

The bite and hold trained K-9 does not have the cognitive capacity to determine who to attack or know the circumstances which warrant an attack. This concern becomes problematic when the dog is off-leash as often is the case when the dog is searching for a suspect. And even if the handler is nearby, the dog is dependent for a command from the handler to stop the apprehension. However, often this is challenging because the dog will not listen. A bite and hold trained K-9 during apprehension is highly aroused and therefore resistant to separating itself from the suspect. Hence, it is understandable why the dog continues with what it has been trained to do. Namely, attack and bite a person.

The liability of municipalities

The fourth amendment protects people against the use of excessive force by the police. Specifically, Title 42 of the United States Code, Section 1983 makes it unlawful for the police to use unreasonable or excessive force in the apprehension and arrest of a suspect. Lawsuits are brought under the federal Civil Rights Act of 1964 (42 U.S.C
§1983).

The landmark ruling which addresses the use of force is Graham v. Connor (Graham v. Connor 490 U.S.C. 386, 109 S. Ct. 1865 (1989). The ruling states that the degree of force used must be based on a standard of “objectionable reasonableness.” Graham specified four principal factors in determining whether a particular kind of force was justified: the threat the suspect posed to the officer, the nature of the crime, whether the suspect was resisting arrest, and whether the officer could have used a
lesser force to make the arrest given the totality of circumstances present at the time of the apprehension.

Municipalities become defendants in lawsuits for fourth amendment violations due to excessive canine force because (a) their policies and procedures; (b) unreasonable conduct by not removing a dog from service when appropriate; (c) inadequate training or supervision of the handler or the dog; (d) indifference to previous conduct of a K-9 and failing to document or conceal such conduct; (e) failing to employ training techniques that would reduce the risk of harm caused by their K-9s, or (f) indifference to the dangers of the bite and hold technique.

There are many appellate rulings on the issue of excessive force by police K-9s under the Graham standard. Decisions are affirmed or reversed based on the fact pattern of each case. Common themes in many cases deal with the duration of the apprehension by the K-9, the severity of injury sustained by the plaintiff and the policies and procedures of the police department for use of K-9s for suspect apprehension.
Depending on the plaintiff’s allegations, individual police officers are sued, the municipality is sued, or both are named as defendants in the same lawsuit.

It is outside the scope of this article to analyze the appellate rulings on excessive force claims involving canines against municipalities. I refer the reader to Weintraub for an overview of municipal liability and the immunities they have against excessive canine force claims (Weintraub, A Pack of Wild Dogs: Chew v. Gates and Police Canine Excessive Force (2001) 34 Loy. L.A. L. Rev. 937). Examples of some rulings can be found in Smith v. City of Hemet, 394 F.3d 689, 707 (9th Cir. 2005), Miller v. Clark County, 340 F.3d 959, 968 (9th Cir. 2003), Chew v. Gates, 27 F.3d 1432, 1462 (9th Cir. 1994), and Hooper v. County of San Diego (629 F.3rd 1127 (9th Cir. 2011).

In Smith v. City of Hemet and in Chew v. Gates the Ninth Circuit reversed the District Court’s summary judgment on the basis that genuine issues of material fact raised triable issues for a jury to decide whether excessive force was delivered by the K-9. In Miller v. Clark County the Ninth Circuit affirmed summary judgment in favor of the defendant. In Hooper v. County of San Diego the appellant was arrested for resisting arrest after the police discovered that she was in possession of methamphetamine. A police K-9 was called to assist and the dog tore off large portions of her scalp. The court ruled that resisting arrest did not bar the appellant’s claim of excessive force against the County.

In Lowry vs. the City of San Diego, the plaintiff challenged the constitutionality of the bite and hold technique (Lowry v. City of San Diego, 818 F.3d 840, 856 (9th Cir.2016). The plaintiff sued the city on the bases that the police department’s policy of utilizing dogs trained in the bite and hold technique was unreasonable and excessive and the cause of her injury. Hence, use of these dog violated her fourth amendment rights.

In this incident, the plaintiff was bitten in her face by an off-lease police K-9, named Bak, deployed to search an office building at night because of a suspected burglary. The dog found the plaintiff sleeping on a couch, but she was not the suspect. The plaintiff had accidentally set off an alarm and shortly after that fell asleep in the suite in which she worked.

Initially, the District Court granted summary judgment for the defense, but the Ninth Circuit reversed this decision. Subsequently, in June 2017, the Ninth Circuit sitting en banc reaffirm the District Court’s summary judgment ruling. No test was made of the constitutionality of the bite and hold technique, however. For a detailed legal analysis of this case see Dobrott (Dobrott, Excessive Force, Police Dogs, and the Fourth Amendment in the Ninth Circuit: The Use of Summary Judgement in Lowry v. City of San Diego (2018) 59 B.C.L. Rev.E. Supp. 1).

Nonetheless, there were sufficient bases to support the plaintiff’s argument that utilization by the municipality of dogs trained in the bite and hold technique was excessive and unreasonable. Namely, as discussed earlier, because of their inherently dangerous nature, these dogs are difficult to control and likely to bite any person they encounter. Hence, it was foreseeable that Bak would bite and injure the plaintiff, a non- suspect. In fact, the police officer testified that Bak could attack someone other than the suspect because dogs “are just animals.” Unfortunately, the court did not consider the inherently dangerous nature of attack-trained police canines in making their decision.

Conclusions about the bite-and-hold technique & excessive force

Attack-trained police canines are inherently dangerous animals. Their behavioral nature and how they are trained and used makes it likely that a person’s fourth amendment rights will be violated. Bite and hold trained police canines are difficult to control. They often make behavioral errors such as biting the suspect for excessively long durations or not releasing the suspect when commanded to do so by the handler. As such, even in the hands of the most experienced handler, there is the high probability that canine force will be delivered in a manner that violates the standards outlined in Graham. Every deployment of a bite and hold trained K-9 carries the foreseeable risk that a person, suspect or non-suspect, will be severely and permanently injured. The technique is cruel and inhumane because its application can cause lifelong pain-and-suffering and profound psychological damage.

There has been a debate about the use of a supposedly less violent technique. Namely, that of find and bark (also referred to as circle and bark). This technique teaches the dog to alert by barking after finding a suspect. Proponents of this technique argue that its use will reduce bite frequencies. However, contrary to what one might expect, find and bark trained dogs have higher bite ratios (that is, they were more likely to bite suspects during apprehensions) when compared with bite and hold trained dogs (Mesloh, Barks or bites? The Impact of training on police canine force outcomes. Police Practice and Research, 2006, 7, 323-335). Hence, find and bark trained dogs appear to be just as dangerous, if not more so, then the find and bite trained dogs. Both training techniques instill in the dog a high degree of aggressive arousal and the strong desire to find a person to bite.

Winning a lawsuit against a municipality for excessive force by a police K-9 depends in part on proving that the policies and procedures of the police were the cause of the plaintiff’s injuries. Detailed information about the individual dog involved in the event and what the municipality knew about the dog is needed. Discovery should focus on collecting all training and deployment records about the dog and the policies municipalities have about the use of these dogs. The handler of the dog needs to be questioned about (a) the methods used to train the dog; (b) past bite instances; (c) any difficulties with the dog; (d) the protocol followed when the incident happened, and (e) the supervision received from the supervisor of the canine unit.

It is incumbent upon municipalities to find ways to mitigate the severe danger attack-trained police canines present to the public and to the suspects these dogs apprehend. Police departments are reluctant to change policy about when these dogs are used or how they are trained, however. This resistance remains in part because current case law favors the police in that it does not regard police dogs as a deadly force. Hence, police know that these dogs can be deployed without being unduly concerned about a person’s fourth amendment rights. In general, the police are defensive about their dogs and handlers cover-up for the behavioral errors their dogs make. Significant changes in the law regarding excessive force caused by attack- trained police K-9s will likely come about only when courts begin to recognize the inherently dangerous nature of these animals.

Further resources on excessive force by Police K9s

• Police K-9 in Atlantic City New Jersey brutally attacks suspect

News about appellate decision on widely publicized K9  lawsuit in San Diego – Lowry v.  city of San Diego

Use of attack train police canines  becomes controversial in St. Paul Minnesota

Teenager attacked by police K-9 in Palo Alto receives $250,000 settlement

 

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