The police receive a call that a boy is lost, drunk, and wearing very little on a cold night. An officer arrives with a dog trained in tracking and suspect apprehension. The dog apprehends with a bite and hold. The department has a tracking dog that is used in search and rescue, but it is not available because of a recent injury. Should the police use the bite-and-hold dog? The issue recently faced a canine officer in Maryland. I'll refrain from editorializing while the matter remains in active litigation.
Judge J. Harvie Wilkinson of the Fourth Circuit Court of Appeals tells the story better than I could:
Around 7:00 p.m. on the night of March 17, 2006, Oscar Melgar, then thirteen years old, learned about a birthday party from his friend, Brian Bentacur. Oscar received permission from his mother to go to the party with Brian, and Brian's mother agreed to take the boys. The party was in Gaithersburg, Maryland, approximately thirty minutes from Oscar's home in Rockville, Maryland.
Brian's mother picked up Oscar around 8:15 p.m., and the boys arrived at the party around 8:45 p.m. Approximately thirty minutes after the boys arrived, an older youth, who was about seventeen years old, started pouring mixed alcoholic beverages of rum and cola. The beverages were served in eight-ounce cups. Oscar knew he was being served alcohol, although he had never had a drink before. Within ten minutes of his first drink, Oscar consumed two additional eight-ounce rum and colas. He began to feel the effects of the alcohol in the middle of his third drink but still finished it.
Brian also was drinking, and one of the girls at the party complained that he was becoming “too touchy.” Oscar was told to take Brian outside to “walk it off.”
The outside temperature was in the upper thirties or lower forties, and even Oscar later admitted that it was cold. Oscar was wearing jeans and had a green warm-up jacket over his shirt. Brian wore jeans but only had on a long sleeved shirt.
The boys started walking, intending to circle the block, but they were not familiar with the neighborhood and got lost. As they walked, Oscar could feel the effects of the alcohol growing stronger, and Oscar testified that Brian also appeared to be growing increasingly intoxicated.
The two boys eventually sat down on a lawn. Oscar had a phone but wanted to sober up before calling Brian's mother to pick them up. After sitting on the lawn for a few minutes, Oscar saw a man walking a dog approaching. Oscar, who admits he was drunk and not thinking straight by this point, got up and walked away. He crossed the street, headed down a sidewalk, and eventually crossed a lawn toward a home, where he passed out under a holly bush. He stated that he went under the bush “so nobody could see me drunk.” His last recollection was “getting cold, and trying to get warm.”
Around 10:40 p.m., Jessica and Michael Sommerville were walking together when they discovered Brian Betancur lying on the ground. Ms. Sommerville testified that she saw another boy stumble away from Brian as they approached. Ms. Sommerville did not recognize Brian, and she began to question him. She testified that Brian did not appear to be aware of the cold weather, even though he was only wearing a tee shirt. In addition, his speech slurred at times during their conversation, although at other times it was clear. Because the situation appeared unusual, Mr. Sommerville called 911 and reported finding a boy lying on the ground.
Both paramedics and the Montgomery County Police Department responded to the call. Officer Todd Uvary, the first officer to respond, saw that Brian Betancur “was extremely intoxicated” and had vomited and urinated on himself. He was told by paramedics that Brian was suffering from hypothermia and a possible alcohol overdoes. Both Sommervilles told the police about the other boy they had seen, and Ms. Sommerville described his clothes. She also told the police that he stumbled away and sounded like he was vomiting, although Oscar later denied being sick. Officer Uvary communicated this information to the next two officers to arrive, Officers Holland and Camp. Concerned about the possibility that another intoxicated, lightly clothed boy could be outside, the three officers circled the neighborhood for approximately twenty minutes, using spotlights mounted on their cars to look in yards. At least one officer also got out of his car with a flashlight and looked in back yards.
As the officers were unsuccessful in the initial search, Officer Camp called a sergeant for advice and was told that it would be acceptable to bring a canine unit to the scene. Officer Camp called one of the appellants, John Greene, who was dispatched at 11:27 p.m. When Greene arrived, the other officers told him that Oscar was last seen approximately an hour earlier and that they had already made an unsuccessful search on foot and by car. Greene also was told that Brian had been taken by ambulance to the hospital for possible alcohol poisoning and hypothermia.
Greene decided to use his patrol dog, Carter, an animal trained to find individuals and to bite them when he came in contact, to make a quick search for the missing boy. While Greene normally would have used a bloodhound to perform such a search, his bloodhound was out of service with a knee injury. Because the police department's other bloodhound was off duty, Greene estimated it would have taken approximately another hour for it to respond. Additionally, because no scent item was available, a bloodhound search would have been difficult even if one had been available.
Greene also evaluated several other factors in reaching his decision. He considered that there was no definitive evidence that anyone was actually missing or endangered. However, if anyone was in fact missing, the cold weather, the presumed intoxication, and the elapsed time were all of serious concern. Greene also realized that no criminal suspect attempting to evade capture was involved, making it likely that he would see anyone before a dog got close enough to bite.
After deciding to use Carter to search, Greene put the dog on a fifteen foot lead. He did not muzzle Carter, and there is a factual dispute as to whether a muzzle would have significantly limited Carter's tracking ability.
Greene took Carter to the last point where Oscar was reported seen and commanded Carter to “track.” Carter cast about looking for a scent and then began to track down the sidewalk. Greene began to call out to Oscar, saying he was there to help and to take him home. Oscar states he never heard anyone, but the district court gave no credence to his assertions because it recognized Oscar was inebriated and not in a condition to hear. After tracking a short distance down the sidewalk, Carter turned sharply across a yard and went into a holly bush where Greene could no longer see him. Greene did not interpret the turn as indicating that anyone was close. The lead went slack, and only then did Greene realize that Carter had found Oscar, who was asleep. By the time Greene realized what was happening, the dog had already bitten Oscar's lower right leg.
Greene testified that he did not verbally call Carter off because Oscar was struggling, and Greene was concerned that if the dog released he might re-bite Oscar's face. Instead, Greene walked up the leash and physically removed the dog. While this was happening, the dog pulled Oscar some five or six feet…. Oscar suffered two lacerations on his lower right leg just above the ankle, one approximately 4.25 inches and the other 1.5 inches long.The injuries to the boy’s leg resulted in a permanent disruption in sensation around the scars. He will have to wear a protective ankle brace for athletic activities indefinitely.
Oscar’s father, as Oscar’s guardian, sued Officer Greene and Montgomery County, both of which moved for summary judgment, which the district court denied. The defendants appealed the denial.
Judge Wilkinson first concluded that a seizure had occurred, noting that a seizure can take place “if police purposely detain a person but somehow use more force than intended.” Citing Supreme Court dicta in Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the Fourth Circuit said that as long as the instrumentality (here, a dog) was intended, a seizure occurred even if the degree of the instrumentality’s effectiveness was unanticipated.
Officer Greene chose to use a dog conditioned to bite its target when found and thus cannot claim that there was no seizure when the dog he set in motion behaved exactly as it was trained to do.
The court noted that the handler believed the boy was not eluding pursuit and would likely be out in the open and visible before a dog could bite him. The Montgomery County Police Department guidelines allowed the use of patrol dogs to search for missing persons.
Nevertheless, the court concluded that there were factual questions that made summary judgment on the excessive force claim inappropriate. Why was the dog not muzzled? Why was a long (15 ft) leash used? Should the officer have recognized from the dog’s behavior that it was close to the boy?
The officer argued that the dog would not smell inside of a muzzle. He argued that the dog could not cast properly without a long lead.
Prior cases have referred to different lengths of leads. In Trammell v. Thomason, 559 F.Supp.2d 1281 (M.D.Fla. 2008), the officer used a six-foot lead to pursue a criminal, while in Peterson v. City of Federal Way, 2007 WL 2110336 (W.D.Wash. 2007), the handler used a 30-foot lead to search for a hit and run suspect with an outstanding arrest warrant.
Finally, there is a dispute over when a reasonable officer should have realized that Carter was close to locating Oscar. Officer Greene testified that he did not realize that Oscar was near when his dog reversed course and cut across the yard right before entering the holly bush where Oscar was lying. Plaintiff's expert, however, stated that the shift in course was significant and that a reasonable officer should have realized what was occurring.
The court felt that cases where a dog was released from a leash in pursuit of a criminal were not analogous in that letting a dog run free, knowing that it would bite its target when found, was a sufficiently different situation as to provide no useful guidance.
The International Association of Chiefs of Police (IACP) has a policy explicitly allowing the use of police canines to track missing persons so long as the dogs “remain on a leash of sufficient length to provide a reasonable measure of safety to the subject of the search without compromising the canine’s tracking abilities.” In a concepts and issues paper from 1992 (revised 2001), Law Enforcement Canines, the IACP adds that “caution must be taken when using law enforcement canines to track children or other civilians who are simply lost.”
The court held that Officer Greene was entitled to qualified immunity. State law claims survived, however. Judge Michael dissented on the determination that qualified immunity applied, noting the dangers of using a dog taught in the bite-and-hold method.
Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010). On remand, the federal district court declined to accept jurisdiction on the state claims and the case has moved to the state court system.