Police Chiefs and Cities May Be Liable for Bites by Inadequately Trained Police Dogs

Over a year ago we discussed a lawsuit concerning two biting incidents involving a dog, Spike, obtained by the Springboro, Ohio, Police Department for tracking and suspect apprehension. The canine officer, his supervisor, and the municipality itself were sued by two individuals bitten by the dog in unrelated incidents.

In the first incident, in 2007, there was no crime involved as Samuel Campbell had been knocking at doors of his date’s house, trying to wake her up because she had his car keys which he needed to drive home. His pounding caused a neighbor to call the police. Wishing to avoid an interaction, Campbell lay down in a field nearby where Spike and his handler, Officer Nick Clark, found him. Spike bit Campbell for 30 to 45 seconds before Clark got control of the dog.

The second incident, in 2008, involved a search for Chelsea Gemperline, who escaped from a squad car after being detained by police who had been called to a party where there were underage drinkers. When found by the dog, Gemperline was hiding in a child’s playhouse. The injuries caused by the dog were serious and left permanent damage.

These incidents and the ruling of the federal district court denying summary judgment to Officer Clark, the Police Chief, Jeffrey Kruithoff, and the City of Springboro, were described in detail in the prior blog. Now the Sixth Circuit, in an opinion written by Circuit Judge Bernice Donald, has affirmed the district court. A major concern of both the district and circuit courts was that Officer Clark had not maintained the desired training regimen with Spike. As Judge Donald states:

“Prior to both bite incidents at issue in this case, Officer Clark notified his supervisors that he had been unable to keep up with the maintenance training and repeatedly requested that they allow him time to attend training sessions, but his requests were denied.”

Sixth Circuit (USCourts.com)

This failure was deemed not merely that of the canine officer, but also a failure on the part of the Chief of Police and of the employer of both officers, the City of Springboro. Police supervisors and governmental authorities in the Sixth Circuit are now on notice that failure to maintain adequate training regimens may lead to liability when a police dog’s aggressiveness involves excessive force.

Was Spike Trained in Both Bark-and-Hold and Bite-and-Hold?

It is not clear that Clark was effectively training the dog even when he engaged in training programs. The initial trainer, Brian Woods of Lynwood Kennels, from whom Spike was obtained by the Springboro Police Department, testified that he had trained spike in the bark-and-hold method. Clark, however, testified that in a tracking situation, he expected that “even where the subject was compliant and not attempting to resist or flee, Spike was expected to bite the subject unless Clark saw the subject and restrained Spike verbally or physically.”

Clark may have believed that bark-and-hold would apply to off-leash situations, but where the dog was on a leash, bite-and-hold would apply. In any case, it appears that Clark may have countered the initial training that Spike had received by introducing the bite-and-hold method. It should come as no surprise that the dog bit the individuals involved in the two incidents giving rise to the litigation, and even if Clark had kept up an adequate training regimen, a dog taught to use the bite-and-hold method should never have been allowed to approach someone who was not known or reasonably believed to be dangerous.

Qualified Immunity in Dog Bite Cases

The Sixth Circuit has considered dog bites a number of times.

In Robinette v. Barnes, 854 F.2d 909 (6^th Cir. 1988), a burglary suspect was killed by a police dog. The Sixth Circuit concluded that the canine handler “had probable cause to believe that Briggs, a suspected felon hidden inside a darkened building in the middle of the night, threatened his safety and the safety of the other officers present.” Consequently, the police were “justified in using whatever force was necessary, even deadly force,” to protect themselves.

In Matthews v. Jones, 35 F.3d 1046 (6^th Cir. 1994), the canine handler warned the suspect that he was going to release a dog to apprehend him, and when the dog found the suspect hiding in the weeds, the officer told the suspect not to move, “advising that if Matthews remained still, Roscoe would be recalled. Matthews chose to move, and Roscoe enforced the order.” The court also found that the dog was properly trained.

On the other hand, in White v. Harmon, 65 F.3d 169 (table), 1995 WL 51886 (6^th Cir. 1995), an officer allowed a minimally trained dog to bite a handcuffed suspect. Here, summary judgment was denied to the officer. This case was seen by Circuit Judge Donald as analogous to the arrests of Campbell and Gemperline, neither of whom were actively fleeing or showed any ability to evade police custody. Clark failed to provide warnings in either situation and believed that Gemperline might still be handcuffed, yet used a dog which he had taught to bite and hold.

Chief Kruithoff’s Liability

A supervisor is not liable, under 42 U.S.C. 1983, for deprivation of a suspect’s rights under state law for failure to train unless that supervisor “either encouraged the specific incident of misconduct or in some other way directly participated in it.” Shehee v. Luttrell, 199 F.3d 295 (6^th Cir. 1999) Judge Donald concludes that this level of supervisory failure was involved in the case involving Springboro:

“Although Kruithoff was not actively involved in the incidents involving Spike, a causal connection between his acts and omissions and the alleged constitutional injuries is suggested by the record. Chief Kruithoff allowed Spike in the field even after his training had lapsed. He never required appropriate supervision of the canine unit and essentially allowed it to run itself. He failed to establish and publish an official K-9 unit policy, and he was seemingly oblivious to the increasing frequency of dog-bite incidents involving Spike. Furthermore, Chief Kruithoff ignored Clark’s many complaints regarding his need to keep Spike up to date on his training. Thus, Chief Kruithoff’s apparent indifference to maintaining a properly functioning K-9 unit could be reasonably expected to give rise to just the sort of injuries that occurred.”

Liability of the City of Springboro

The district court had found that the “systematic failure to train or supervise police officers adequately can amount to deliberate indifference on behalf of a city towards its inhabitants.” The municipality’s motion for summary judgment was, therefore, denied. The Sixth Circuit did not review the substance of this issue, however, because the municipality was not entitled to invoke the defense of qualified immunity and therefore had no grounds to seek an interlocutory appeal of the district court’s denial of its motion.

Further analysis at the appellate level of the city’s responsibility in the matter will have to await an appeal from a final decision of the district court, should that come about. In analyzing the district court’s decision, we suspected that the matter might be settled given the district court’s attitude towards the defendants. Such speculation might not be inapposite here, though we were obviously wrong in anticipating an early end to the litigation.

Separate Opinion of Third Member of Circuit Court Panel

Circuit Judge McKeague, concurring in part and dissenting in part, agreed that Officer Clark was not entitled to qualified immunity and not entitled to immunity on the state law claims for assault and battery. He did, however, think that Chief Kruithoff was entitled to qualified immunity on plaintiffs’ claim that he is individually liable for Clark’s use of excessive force on a theory of supervisory failure-to-train liability.

Conclusion

Police supervisors and government entities that employ them should take careful note of this case. A poorly trained dog, particularly one whose inadequacies are due to policies that do not allow a canine handler enough opportunities to train the dog, can carry liability for the dog's actions up the ladder of authority.

Although the focus of the decision concerns the lack of time that the handler was being given to train his dog on departmental time, it must also be questioned whether the dog was, even when it was being trained, actually getting good instruction. Why was the dog trained in the bark-and-hold method initially? Presumably, there was a desire to use the dog in a range of responsibilities where biting would not be appropriate. Then it must be asked why the dog was subsequently taught to use a bite-and-hold if its responsibilities remained unchanged. Was the change in apprehension method the result of Clark coming under the influence of a chapter of one of a training organization whose members had a strong preference for bite-and-hold work? Did the Springboro Police Department have any policy outlining when each training regimen would be used? Apparently not, but someone should have thought through this. A dog that is brought up to use the bark-and-hold method should not subsequently be taught to use the bite-and-hold method in any situation unless it is to be retrained entirely and its responsibilities appropriately limited.

The court emphasizes the fact that Clark frequently complained of the lack of opportunity he was being given to train Spike. This is a significant reason for the liability moving up the administrative ladder. Even without Clark’s complaints, however, Chief Kruithoff should have been reviewing Spike’s training records, and probably should have noticed that Clark was introducing the bite-and-hold method. Upon learning this, Kruithoff should have limited assignments where Clark could use Spike. This reason for liability would have existed even without any lapses in training.

Spike was certified by the Ohio Peace officer Training Commission and the Office of the Attorney General at the time of the incidents. As discussed in Police and Military Dogs, certification has been accepted by some courts as enough to allow a dog to work in narcotics detection and other disciplines, without any further analysis of training records required. It appears to be a curious anomaly that certification alone might satisfy a court that a dog could provide evidence of criminal activity even if its training has not been maintained, but the same dog could produce liability for excessive force if it bites someone during a police action.

For other cases where police dog bite liability has extended to supervising officers and municipalities, see Police and Military Dogs, pp. 271-2. The potentially deeper pockets of governments employing police dogs is sure to make this case of interest to the growing bar of dog bite lawyers. Public sector insurers may consider boiler plate to limit coverage for inadequately trained police dogs.

This blog was written by John Ensminger and L.E. Papet.

Campbell v. City of Springboro, 700 F.3d 779 (6^th Cir. 2012)