By Jason Hiveley, Attorney, Iverson Reuvers and Condon LLC
Date: September 2019
The use of canines (a.k.a. K-9s) is a widespread practice among law enforcement. This article provides an overview of some information about dog bites and liability risks surrounding use of law enforcement canines and potential immunities.
The history of law enforcement canines in the United States dates back to 1907 with the New York City Police Department. Although popular in Europe, the use of canines did not become widespread in the United States until the 1950s.
The City of Anoka was the first entity in Minnesota to use dogs in law enforcement, forming Minnesota’s first K-9 unit in 1967. Minneapolis and St. Paul formed K-9 units at about the same time. Minneapolis’ first canine class graduated in 1971. Today, the St. Paul Police Department is one of the premier training facilities for K-9s in the country.
Canines are one tool used by law enforcement to fight crime. The dogs may also foster a sense of community involvement and safety. Today, law enforcement agencies deploy more than 15,000 dogs for tasks as widely diverse as drug, explosives, cadaver, wild life, accelerant and mercury detection. They are also used for evidence recovery, tracking escaping criminals or lost persons, searching for hidden suspects and suspect apprehension. Dogs’ superior sense of smell perfectly suits them to help law enforcement with search activities.
When law enforcement agencies use the dogs as a “use of force” option, the potential exists for a lawsuit to be filed alleging both state law and federal civil rights claims.
Civil Rights Statute: 42 U.S.C. Section 1983
As with any seizure or “use of force,” it may result in a lawsuit arguing that the use violates the Fourth Amendment to the U.S. Constitution. The right of citizens to be free from excessive force is clearly established under the Fourth Amendment’s prohibition against unreasonable seizures. A violation of this right will support an action under 42 U.S.C. § 1983, the federal law that provides individuals a right to sue for violations of their constitutional rights.
The use of force in making an arrest is excessive under the Fourth Amendment if it is not objectively reasonable under the particular circumstances. When considering the particular circumstances, courts consider factors including:
- the severity of the crime at issue.
- whether the suspect posed an immediate threat to the safety of the officers or others
- whether the suspect actively resisted arrest or attempted to evade arrest by flight.
Force that later seems unnecessary does not violate the Fourth Amendment if it was reasonable at the time, giving consideration to the fact that officers must make split-second judgments in tense, uncertain and rapidly evolving situations. This same standard applies when a police dog is used.
When looking at whether the seizure and/or force was reasonable on an arrestee, the courts analyze the severity of the crime allegedly committed, whether or not an adequate warning was provided to the suspect in order to give the suspect an opportunity for a peaceful surrender.
The courts have said that the presence or absence of a warning is one of the most critical facts in virtually every excessive force involving a police dog.
Although the law has been fairly clearly established regarding use of K-9s on suspects, there has been some recent guidance relative to “accidental bites” by K-9s on innocent bystanders.
In Collins v. Schmidt, No. 17-5369 (D. Minn. Aug. 9, 2018), a U.S. Federal District Court found that that an accidental canine bite was a seizure where a police officer had given his canine a command to track, knowing the canine was likely to bite the first person he encountered during the search for suspects, and thus the officer intended for the canine to seize the first person he encountered, and ensured the canine was able to do so by putting it on a 20-foot lead.
The primary question the court needed to answer was whether the k-9’s bite of Collins was a Fourth Amendment seizure. A seizure of a person by the police occurs when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied to that person. Thus, an unintended person may be the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act. In other words, a seizure occurs when a person is stopped by the very instrumentality set in motion or put in place in order to achieve that result.
The court then needed to determine:
- whether the means that terminates the freedom of movement is the very means that the government intended; and
- whether the person whose freedom of movement is terminated is the very person that the government intended.
Regarding the first inquiry, the officer argued Collins was not seized because he did not command his dog to bite. However, the officer admitted he gave his K-9 a command to track, knowing he would bite whoever he encountered—common knowledge the court found the officer’s initial warnings, “you will get bit,” made clear.
Regarding the second inquiry, the officer argued the bite was not intentionally applied to Collins because Collins was not the suspect and he did not know she was there. As such, the officer said that Collins’s injury is comparable to that of an innocent bystander struck by an errant bullet.
The officer pointed to Hansen v. City of St. Paul, No. 06-1286 (D. Minn. Nov. 27, 2007), where the question was not whether the officer intended to release the K-9 (the means of seizure), but whether he intended to seize the innocent bystander, Hansen, the eventual object of the seizure.
In Hansen, a police dog was chasing a suspect who ran onto a bystander’s porch, and the dog mistakenly bit the bystander when she grabbed the suspect to stop him from running into her home. As such, the court said Hansen was like those cases in which bystanders are struck by an errant bullet in a shootout. The suspect and the injured party were next to one another, and the force aimed at the former missed and was thereby mistakenly applied to the latter.
It’s important to note that bystanders are not seized for Fourth Amendment purposes when struck by an errant bullet in a shootout because they were not the intended object of the seizure, in contrast to a case of mistaken identity.
The court found the Hansen case did not apply in the Collins case because although Collins was bit by mistake, it was not because the canine missed. The court determined this case was better understood as one of mistaken identity, rather than an accidental bite.
Because the nature of a police dog is to bite the first person it encounters, the dog effectively perceives the first person it encounters to be the suspect. The officer knew his K-9 was likely to bite the first person he encountered during the search for the suspects; as such, the officer intended for his dog to seize the first person he encountered.
Moreover, the fact the officer put his K-9 on a 20-foot lead ensured he could do so with ease.
In contrast to the Collins case, the Hansen case involved a person who was suspected of carrying illegal narcotics, was driving dangerously and was possibly armed, which constituted probable cause the suspect posed a risk of serious harm to others. Fleeing from the officers in his vehicle and then evading them on foot was active resistance. As such, the deployment of the K-9 to apprehend him was reasonable.
When he attempted to run onto Hansen’s deck, she tried to stop him, but the officers warned her to get back. As the suspect tried to get into her house, she ignored the warnings and grabbed hold of him. It was at that time that she was bitten by the K-9 that was attempting to bite and apprehend the suspect.
The suspect freed himself from Hansen’s grip and ran away but was eventually caught. As a result, the court found that Hansen’s encounter with the K-9 was an unintended consequence of an otherwise lawful government action, and such a consequence does not form the basis of a Fourth Amendment claim.
What is interesting about the Hansen case as it relates to Collins is that the court in Collins added in a footnote that if the canine had been bounding down the alley in hot pursuit of the actual suspect, only to veer off and bite Collins, he may have found differently.
In other words, had the dog been similar to an errant bullet, he may have found the bite to be accidental rather than a case of mistaken identity.
As such, the take-away is if the law enforcement K9 is trained to bite the first person it comes across, that canine must be deployed by the officer so it is essentially aimed at the targeted suspect as the intended object of the seizure.
If an innocent victim is bit, the court will need to evaluate whether the deployment of the canine as to the victim was reasonable. There are several factors that go into this evaluation, including whether a K-9 warning was given, whether the officer had control over the dog and whether the bite was terminated in a reasonable amount of time.
But the overall concern in innocent victim bites is whether the bite was an unintended consequence similar to an errant bullet rather than a case of mistaken identity similar to shooting someone mistakenly thought to be the suspect.
Depending on the specific circumstances of a particular apprehension, a law enforcement canine handler may be entitled to the protection of qualified immunity for federal excessive force claims. Qualified immunity protects law enforcement from liability in situations where officers make reasonable but mistaken judgments.
The test is whether the officer’s actions violate a clearly established federal law or constitutional right. As was the case in Collins, the court determined that the officer’s judgment was not reasonable and not mistaken.
In plain terms, the court explained that although there was no evidence that the officer knowingly violated the law, there was no question he should have known better and thus was not entitled to qualified immunity.
State Law Claims
Along with potential federal claims, the law enforcement agency may face state law claims for assault, battery, negligence or for strict liability under the dog bite statute, Minnesota Statutes, Section 347.22.
In Hyatt v. Anoka Police Dept., 691 N.W.2d 824 (Minn. 2005), the Minnesota Supreme Court addressed the applicability of the dog bite statute to police dogs. In Hyatt, the plaintiff alleged liability against the city under the dog bite statute for injuries inflicted by a police dog during the lawful felony arrest of her husband.
The plaintiff argued she was simply an “innocent bystander” and the “accidental” bite entitled her to compensation under the dog bite statute. The court disagreed, holding the reasonable force statute generally applies to harm caused to an innocent bystander, provided the officer has used reasonable force directed toward an arrestee.
The bottom line is that the dog bite statute will not likely create liability under the state statute when a K-9 is properly used as a law enforcement tool.
When a K-9 is “off duty,” an accidental bite by the dog may give rise to a claim under the dog bite statute. The defenses of provocation and whether the individual is in a place where he or she may lawfully be (i.e., a nontrespasser) still apply.
Although the dog bite statute, like other state tort claims such as assault, battery and negligence, may provide a theory of liability for injuries received from a K-9, law enforcement is still entitled to the protection of official immunity.
Official immunity protects public employees from suit, where the alleged injury has resulted from the public employee using professional judgment. Official immunity has been applied to a number of state law claims involving law enforcement canines where the officer made a discretionary decision to utilize the dog.