I have always favored mid-size to large dogs, finding small dogs too frequently to be obsessive barkers and growlers that drag their owners around and have never learned a command. Where I live in Arizona part of the year, I walk my labradoodle several times a day and at least once a week have to hear some idiot say, “Are you walking the dog or is the dog walking you? Hah! Hah!” This joke of a question comes despite the fact that my dog does not tug at the leash and stays at heel. I used to respond with something like, “No, my dog is trained, unlike yours.” At some point I gave up. Most people in my neighborhood are old and have small dogs that they have never attempted to train and which pull so strongly that the “masters” have to lean back as if water skiing in the wake created by the dog’s engine. At some level I knew that the frequently bad behavior of small dogs is not due to their size but rather to their owners.
I had never considered that a study might be designed to confirm that poor obedience and excitability in small dogs results from the behavior of the owners, but a group of mostly Viennese scientists looked at precisely this issue in an article just posted by Applied Animal Behaviour Science (the English spelling of behavior is correct). In fact this is not the first study to consider the behavioral differences between smaller and larger dogs, as one learns from the many papers cited in the article. Previous studies have found that small dogs are more often disobedient and excitable, more impulsive and more likely to bite. Of course the consequences of aggression are generally less dangerous with small dogs, and I have seen people refuse to reproach owners of small dogs, perhaps feeling that complaining about the bite of a dog that is smaller than a cat should not be made into an issue. It has been suggested that the tolerance of aggressive behavior in smaller dogs may have led to spreading predispositions for aggressive behavior in the gene pool of smaller breeds. (Guy, N.C., Luescher, U.A., Dohoo, S.E., Spangler, E., Miller, J.B., Dohoo, I.R., Bate, L.A., 2001. A case series of biting dogs: characteristics of the dogs, their behaviour and their victims. Applied Animal Behaviour Science 74, 43–57.)
Owners of small dogs train them less, at least in my experience. In Phoenix there are a great many small dogs, but the vast majority of dogs at the Phoenix Field and Obedience Club classes on Monday nights in Encanto Park are mid-size to large. It is easier to ignore the bad behavior of smaller dogs, but it may also have something to do with the fact that older owners are less inclined to drive ten to twenty miles for an hour of work with a professional trainer. Older owners may also be less consistent in setting boundaries that the dog is not allowed to cross, and less consistent in the kind of punishment that is used. Inconsistency in use of rewards and punishments has been shown to result in more behavioral problems in dogs.
There are other differences in the behavior of owners of smaller and larger dogs. Smaller dogs are more likely to be allowed on furniture. However, large dogs are more likely to be played with, and to be taken on walks.
The Viennese study involved sending a questionnaire to about 5,000 dog owners in the city. There are over 50,000 dogs registered in the city, and others that are not registered for one reason or another. About 1400 questionnaires were returned but some were rejected for various reasons and 1276 were analyzed. Three quarters of the respondents were women. Any time I have been in an obedience class, the majority of the handlers were women so this does not surprise me.
Dogs were divided between those that were larger than 20 kilograms (about 44 pounds) and those that were smaller. I believe the results would have been more dramatic had the comparison been made between dogs under 10 kilograms (22 pounds) and dogs over, say, 25 kilograms. Smaller dogs were seen by their owners in the study as significantly less obedient than larger dogs. Smaller dogs were reported to act slightly more often in an aggressive or excited way. Smaller dogs were rated significantly more anxious and fearful. As is consistent with my experience, owners of smaller dogs were significantly older than owners of larger dogs. Owners of smaller dogs were somewhat less likely to use punishment. As to consistency of enforcement, 15% of owners of smaller dogs did not adhere to fixed rules, whereas only 7% of owners of larger dogs admitted this about themselves. Owners of smaller dogs more often thought rules were unimportant (43%) compared to owners of larger dogs (29%). Only 41% of owners of smaller dogs sought obedience training, compared to 55% of owners of larger dogs, and owners of smaller dogs engaged in training activities less often even if they tried sometimes.
The authors note that small dog owners, and in particular, toy dog owners may perceive their dogs more as babies and have a less objective view of their behavior. This in turn may lead to more unfavorable owner behaviors. I see it every day. Arnhant, C., Bubna-Littitz, H., Bartels, A., Futschik, A., and Troxler, J. 2010. Behavior of Smaller and Larger Dogs: Effects of Training Methods, Inconsistency of Owner Behavior and Level of Engagement in Activities with the Dog. Applied Animal Behaviour Science 123.
Addendum. My dear friend, Fran Breitkopf, takes issue with this posting, noting that I say that "at some level I knew that the frequently bad behavior of small dogs is not due to their size but to their owners." She points out that "it is at all levels that bad behavior of dogs is due to their owners." This is correct and I apologize for the inference that somehow small dogs have worse behavior than large dogs. I wrote this piece while still in Phoenix (where I spend winters and parts of springs) and it shows. Fran's other comments deserve being produced in full, as follows:
"In the 12 years of formal training and involvement on a more "academic" level, I have not seen a difference in expectations of small dogs, from their owners. They are dogs, with the same needs. They have the same responses to other dogs and people. I have not experienced any difference and have had many assorted sized dogs at the same time. While it is true that the smaller they get the easier it is to physically handle them and the more inclined some owners are baby them, but those owners do the same with their big dogs. I know, we did. The bottom line is that most dog owners or guardians expect their dog to be as well trained and socialized as any larger dog ... just as most parents expect and work with their children so they will be well behaved and properly socialized. Bad or lackadaisical parents have poorly behaved and not socialized children ... and dogs.
"Most people that I know with large dogs allow them to be on their furniture and handle their dogs as members of their families, rather than distancing themselves from them. The general feeling, among the people I know, is that whether their dog is small or large they are thought of, trained and expected to be socially responsible animals.
"Most dogs are blank pages when we get them or, if rescued, they have had bad experiences. Their permanent owners have taken on the responsibility of their guardians/parents/trainers....whatever you want to call it. Some owners succeed and some fail, just as some parents do. Parenting is parenting. The dog is a projection of them and the quality of the job they have done raising the dog.
"We have finally begun to understand that canine behavior is interwoven with our behavior, expectations, and ability to communicate. We finally understand that there rarely is a bad dog or breed. We finally understand that the environment that the dog is raised in is key to its behavior. I think that the study you found leans more to old fashioned, out of date thinking. Much the way the old fashioned trainers are still dragging their dogs around and lifting their dogs off the ground, trying to train them."
Tuesday, March 30, 2010
Friday, March 5, 2010
Types of Detection Dogs--How Many Can You Name?
When I began working on Service and Therapy Dogs in American Society, I was soon struck by the proliferation of service dog types, including the fairly recent category of hypoglycemia alert dogs and the still anecdotal migraine-alert dog category. This is nothing compared to the list of scenting dogs that were assembled by a group of chemists in 2004. They came up with 30 scent detection dog categories. Some of these categories probably only represent a few dozen dogs, but many of them are essential to law enforcement and are found throughout the world. The categories are:
1. Abalone (endangered mollusk poaching) detector dog
2. Agricultural product (importation) detector dog
3. Arson (accelerant) detector dog
4. Brown tree snake (pest species) detector dog
5. Airport/runway detector dog
6. Cadaver (human remains) detector dog
7. Chemical weapon detector dog
8. Citrus canker detector dog
9. Concealed person detector dog
10. Currency detector dog
11. Drug (narcotic) detector dog
12. Explosives (bomb) detector dog
13. Gas leak detector dog
14. Gold ore detector dog
15. Gun/ammunition detector dog
16. GYPSY moth larvae detector dog
17. Land mine trip wire detector dog
18. Melanoma detector dog
19. Missing person detector dog
20. Rotten power pole detector dog
21. Scent line-up detector dog
22. Screw worm detector dog
23. Seal detector dog
24. Search and rescue (warm blood) detector dog
25. Syringe needle (dried blood) detector dog
26. Termite detector dog
27. Tracking (fleeing suspect) detector dog
28. Truffles detector dog
29. Water search detector dog
30. Wildlife detector dog
The list was compiled for an article in the Journal of Analytical and Bioanalytical Chemistry. Lorenzo, N., Wan, T.L., Harper, R.J., Hsu, Y.L., Chow, M., Rose, S., and Furton, K.G. (2004). Laboratory and Field Experiments Used to Identify Canis lupus var. familiaris Active Odor Signature Chemicals from Drugs, Explosives, and Humans. Analytical and Bioanalytical Chemistry, 376: 1212-1224.
For more on the use of detection dogs in conservation projects, see Brown, C., Stafford, K., and Fordham, R. (2006). The Use of Scent-Detection Dogs. Irish Veterinary Journal, 59(2), 97-104. dogs have been used to find dead bats at wind farms. Arnett, E.B. (2006). A Preliminary Evaluation on the Use of Dogs to Recover Bat Fatalities at Wind Energy Facilities. Wildlife Society Bulletin, 34(5), 1440-1445. They have also been trained to detect microbial growth in buildings, which can cause respiratory and other symptoms in occupants. Kauhanen, E., Harri, M., Nevalainen, A., and Nevalainen, T. (2002). Validity of Detection of Microbial Growth in Buildings by Trained Dogs. Environmental International, 28, 153-7. A master's thesis filed with South Dakota State University studied dogs trained to find ferrets. The thesis was adapted into an article Reindl, S.A. et al. (2006). Efficacy of Scent Dogs in Detecting Black-Footed Ferrets at a Reintroduction Site in South Dakota. USDA National Wildlife Research Center Staff Publications; Kerley, L.L. and Salkina, G.P. (2006). Using Scent-Matching Dogs to Identify Individual Amur Tigers from Scats. Journal of Wildlife Management, 71(4), 1349-1356 (a unique study in that the dogs were not trained just to recognize tigers, but also to identify individual tigers).
In the Federal Register of October 2, 2013, the Fish and Wildlife Service reported that dogs had been used in an attempt to identify and locate potential natural roosts of the bonneted bat in Florida. 78 Fed. Reg. 61004 (October 2, 2013), at 61007 and 61018. The dogs were obtained from Auburn University's EcoDogs.
Saturday, February 20, 2010
Shooting Strays in Iowa, Not a Last Resort for One Police Chief
West Branch, Iowa, was the birthplace of Herbert Hoover. There would have been a time when an affiliation with Herbert Hoover might not have been touted very much. West Branch had another problem in 2002, a police chief who shot a dog. On February 28 of that year, the city administrator got a call about a large black dog running loose and bothering other dogs. The police chief, Dan Knight, drove around the neighborhood in his squad car and saw the dog several times. The Eighth Circuit describes what happened next:
“Finally, Knight parked his car in the driveway of 417 North Maple Street, the Andrewses' home, because he had seen a large black dog in the backyard at that address. He walked toward the fenced backyard with a dog leash in his pocket and fired two shots at the dog; immediately, he realized he had shot the wrong dog. Jana Andrews, the owner of the dog, was standing on her back patio just a few feet away from her dog, Riker, when he was shot. She had just let Riker out to go to the bathroom inside the Andrewses' enclosed, fenced-in backyard. Riker had been badly wounded by Knight's first two shots, so Knight decided to shoot Riker a third time to end Riker's suffering. Riker had not been wearing his collar and tags at the time he was shot, but he was current on his distemper and rabies boosters.”
The district court granted summary judgment to West Branch and Knight, but the circuit court took its own look at the law. A city ordinance provided: “Officers should utilize all available methods to obtain capture of animals running at large. The discharging of a firearm at an animal should be considered as a last resort and then only when conditions are safe to do so."
The Eighth Circuit concluded:
“The relevant state statute and local regulations mandate that all means of capturing an at-large dog be exhausted before resorting to killing the animal. http://www.blogger.com/img/blank.gifKnight testified that as he approached the enclosed fence in which Riker was standing, he held a leash in one hand and a gun on his hip. He had not attempted to communicate with anyone in the Andrews home, he had not requested back-up or the tranquilizer dart gun, and the dog was not exhibiting any aggression at the time Knight pulled into the Andrewses' driveway. Taking the facts in this light, we hold that Officer Knight knew at the time he shot Riker that he was violating the Andrewses' clearly established right to be free from unreasonable seizures of property.”
The circuit court remanded for a jury trial. Knight was briefly demoted and soon resigned. Andrews v. The City of West Branch, 454 F.3d 914 (8th Cir. 2006).
“Finally, Knight parked his car in the driveway of 417 North Maple Street, the Andrewses' home, because he had seen a large black dog in the backyard at that address. He walked toward the fenced backyard with a dog leash in his pocket and fired two shots at the dog; immediately, he realized he had shot the wrong dog. Jana Andrews, the owner of the dog, was standing on her back patio just a few feet away from her dog, Riker, when he was shot. She had just let Riker out to go to the bathroom inside the Andrewses' enclosed, fenced-in backyard. Riker had been badly wounded by Knight's first two shots, so Knight decided to shoot Riker a third time to end Riker's suffering. Riker had not been wearing his collar and tags at the time he was shot, but he was current on his distemper and rabies boosters.”
The district court granted summary judgment to West Branch and Knight, but the circuit court took its own look at the law. A city ordinance provided: “Officers should utilize all available methods to obtain capture of animals running at large. The discharging of a firearm at an animal should be considered as a last resort and then only when conditions are safe to do so."
The Eighth Circuit concluded:
“The relevant state statute and local regulations mandate that all means of capturing an at-large dog be exhausted before resorting to killing the animal. http://www.blogger.com/img/blank.gifKnight testified that as he approached the enclosed fence in which Riker was standing, he held a leash in one hand and a gun on his hip. He had not attempted to communicate with anyone in the Andrews home, he had not requested back-up or the tranquilizer dart gun, and the dog was not exhibiting any aggression at the time Knight pulled into the Andrewses' driveway. Taking the facts in this light, we hold that Officer Knight knew at the time he shot Riker that he was violating the Andrewses' clearly established right to be free from unreasonable seizures of property.”
The circuit court remanded for a jury trial. Knight was briefly demoted and soon resigned. Andrews v. The City of West Branch, 454 F.3d 914 (8th Cir. 2006).
Wednesday, February 10, 2010
Border Patrol Trains More Canine Teams, but Will Remain Undermanned, Underdogged at Least Till 2014
The Government Accountability Office, in a recent report looking at issues facing the Border Patrol, cited officials of the agency as saying that it does not have enough canine teams at borders, particularly in the southwest. Agency officials note that with the increasing sophistication of smugglers of drugs and illegal aliens, the dogs are necessary to detect the contents of concealed compartments. The Border Patrol expected to add 180 canine teams in 2009, and between 250 and 300 teams in 2010, but many of these teams will be replacing dogs that are retiring. By 2014, the Border Patrol expects to have 1,300 canine teams deployed at checkpoints and other assignments. The GAO report explains that there are basically two types of canine facilities at permanent checkpoints. The canine kennel building at the I-35 checkpoint near Laredo (shown here) is approximately 3,200 square feet and includes an office, storage room, bathing room for the dogs, bathroom, mechanical room, and a quarantine area. The planned kennel at the I-19 checkpoint, on the other hand, is only 290 square feet, apparently being almost exclusively used as a rest area for the dogs. GAO, Border Patrol: Checkpoints Contribute to Border Patrol’s Mission, but More Consistent Data Collection and Performance Measurement Could Improve Effectiveness, GAO-09-824 (August 2009).
Saturday, February 6, 2010
Plaintiff's Expert Cannot Testify, but Juror Tells Other Jurors About Police Dogs in Excessive Force Case
A 2005 case against an officer and the City of Albuquerque for use of excessive force in an arrest shows a number of odd, if not disturbing, elements. The suit was brought by the passenger in a car involved in a high speed chase. The passenger was bitten by a police dog after the car hit a wall.
The officer’s reason for attempting to pull over a car with two women in it was that the car was similar to one on which a bulletin had been issued regarding a burglary. The car with the women had a broken license plate lamp and was not the car involved in the burglary. What happened after the car hit the wall is described by the Tenth Circuit:
“The first officer at the scene was Defendant Lehocky. Lehocky testified that Marquez exited the car from the passenger side door, ignored Lehocky's command to stop and attempted to flee the scene. Lehocky ordered his police service dog, Bart, to apprehend the suspect. Bart complied and latched firmly onto Plaintiff Marquez. Meanwhile, Perkins [the driver], who had briefly exited the car, was now back in the car attempting to drive off. Lehocky then ordered Marquez, with Bart still firmly attached to her, away from the rear of the car. By this time, Officer Heshley had arrived and ordered Perkins out of the vehicle. Perkins complied and was taken into custody by Officer Heshley. Simultaneously, Defendant Lehocky removed Bart from Plaintiff Marquez and took her in custody.”
Marquez sued under 42 U.S.C. 1983 for excessive force, and a jury verdict went for the defendants. The district court concluded that the high speed chase indicated that the occupants of the car were a danger to the public and willing to evade arrest.
Marquez attempted to introduce an expert on police dogs at trial. The circuit court describes the expert.
Marquez sought to have her expert, Dr. George Kirkham, testify at trial that the use of a police dog is objectively reasonable only where there is evidence of an "articulable threat to" the safety of either the officer or a bystander….Kirkham's testimony was based upon his theory that a police officer should always use the minimum amount of force and, therefore, that any use of force beyond the minimum is, ipso facto, unreasonable….Kirkham was also to testify that Lehocky's actions in this case "violated well established law enforcement standards." … In sum, Kirkham's testimony comprised two parts: that the only reasonable use of force is the minimum use of force and what constituted well established law enforcement standards.”
Dr. George L. Kirham maintains a website (www.krimedr.com) which describes him as a police/private security consultant and expert witness based in Palm Beach Gardens, Florida. He has an impressive resume.
The district court excluded Kirkham’s testimony on a defense motion that the testimony was irrelevant and would be confusing. The circuit court agreed, noting that the Fourth Amendment does not require the least intrusive means of detention, only a reasonable one. The circuit court held that the district court did not abuse its discretion in excluding the testimony.
Another twist in the case occurred when a juror sent a note to the judge, saying that another juror was holding herself out as an expert in police dog training. This unnamed juror apparently made three assertions during deliberations:
1. Police dogs do not bite unless the suspect is fleeing.
2. The injuries suffered by Marquez from the bite were not serious.
3. Police dogs do not bite the first part of the body they come across.
The district court denied a motion for an evidentiary hearing. The circuit court said that a juror’s personal experience does not constitute extraneous prejudicial information, which would have required the district court to take action. The circuit court summarized the juror’s voir dire:
“During voir dire, the "expert" juror stated, without being asked, that her family in the late 1970s through the early 1980s trained police dogs and that her family "trained dogs and worked with dogs through [her] entire life." … Marquez's attorney then asked what the juror's role in the training was…. She responded that her own participation was "not much" and that the training was performed by her sister and father…. Notably, Marquez's attorney asked the juror only about her participation in dog training and never about her knowledge of dog training. Id. Therefore, the juror did not fail to honestly answer any question posed to her during voir dire when she did not disclose her knowledge of dog training techniques. The reason that the juror's specialized knowledge did not come to light, therefore, was a failure by Marquez's attorney to fully examine the juror during voir dire, rather then any misrepresentation by the juror.”
The circuit court determined again that the district court did not abuse its discretion in denying an evidentiary hearing here. Nevertheless, it seems arguable that the juror was, inside the jury room, stepping well beyond what her voir dire had suggested she knew about.
The verdict for the defendants was affirmed. Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005). This is not the only case involving this officer and his dog and an excessive force claim. See Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir. 2005).
The officer’s reason for attempting to pull over a car with two women in it was that the car was similar to one on which a bulletin had been issued regarding a burglary. The car with the women had a broken license plate lamp and was not the car involved in the burglary. What happened after the car hit the wall is described by the Tenth Circuit:
“The first officer at the scene was Defendant Lehocky. Lehocky testified that Marquez exited the car from the passenger side door, ignored Lehocky's command to stop and attempted to flee the scene. Lehocky ordered his police service dog, Bart, to apprehend the suspect. Bart complied and latched firmly onto Plaintiff Marquez. Meanwhile, Perkins [the driver], who had briefly exited the car, was now back in the car attempting to drive off. Lehocky then ordered Marquez, with Bart still firmly attached to her, away from the rear of the car. By this time, Officer Heshley had arrived and ordered Perkins out of the vehicle. Perkins complied and was taken into custody by Officer Heshley. Simultaneously, Defendant Lehocky removed Bart from Plaintiff Marquez and took her in custody.”
Marquez sued under 42 U.S.C. 1983 for excessive force, and a jury verdict went for the defendants. The district court concluded that the high speed chase indicated that the occupants of the car were a danger to the public and willing to evade arrest.
Marquez attempted to introduce an expert on police dogs at trial. The circuit court describes the expert.
Marquez sought to have her expert, Dr. George Kirkham, testify at trial that the use of a police dog is objectively reasonable only where there is evidence of an "articulable threat to" the safety of either the officer or a bystander….Kirkham's testimony was based upon his theory that a police officer should always use the minimum amount of force and, therefore, that any use of force beyond the minimum is, ipso facto, unreasonable….Kirkham was also to testify that Lehocky's actions in this case "violated well established law enforcement standards." … In sum, Kirkham's testimony comprised two parts: that the only reasonable use of force is the minimum use of force and what constituted well established law enforcement standards.”
Dr. George L. Kirham maintains a website (www.krimedr.com) which describes him as a police/private security consultant and expert witness based in Palm Beach Gardens, Florida. He has an impressive resume.
The district court excluded Kirkham’s testimony on a defense motion that the testimony was irrelevant and would be confusing. The circuit court agreed, noting that the Fourth Amendment does not require the least intrusive means of detention, only a reasonable one. The circuit court held that the district court did not abuse its discretion in excluding the testimony.
Another twist in the case occurred when a juror sent a note to the judge, saying that another juror was holding herself out as an expert in police dog training. This unnamed juror apparently made three assertions during deliberations:
1. Police dogs do not bite unless the suspect is fleeing.
2. The injuries suffered by Marquez from the bite were not serious.
3. Police dogs do not bite the first part of the body they come across.
The district court denied a motion for an evidentiary hearing. The circuit court said that a juror’s personal experience does not constitute extraneous prejudicial information, which would have required the district court to take action. The circuit court summarized the juror’s voir dire:
“During voir dire, the "expert" juror stated, without being asked, that her family in the late 1970s through the early 1980s trained police dogs and that her family "trained dogs and worked with dogs through [her] entire life." … Marquez's attorney then asked what the juror's role in the training was…. She responded that her own participation was "not much" and that the training was performed by her sister and father…. Notably, Marquez's attorney asked the juror only about her participation in dog training and never about her knowledge of dog training. Id. Therefore, the juror did not fail to honestly answer any question posed to her during voir dire when she did not disclose her knowledge of dog training techniques. The reason that the juror's specialized knowledge did not come to light, therefore, was a failure by Marquez's attorney to fully examine the juror during voir dire, rather then any misrepresentation by the juror.”
The circuit court determined again that the district court did not abuse its discretion in denying an evidentiary hearing here. Nevertheless, it seems arguable that the juror was, inside the jury room, stepping well beyond what her voir dire had suggested she knew about.
The verdict for the defendants was affirmed. Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005). This is not the only case involving this officer and his dog and an excessive force claim. See Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir. 2005).
Wednesday, February 3, 2010
Working Off-Leash with Police Dog Does Not Produce Liability for Officer
A case that reached the Eighth Circuit in 2003 shows how complicated police responsibilities can sometimes be. Police officers in Duluth received a complaint about a party two blocks from Lake Superior. They began to breath test some of the people at the party, and directed a UM honors student and football player named Dennen to get in the testing queue. Instead, Dennen, who was visibly drunk, went upstairs and tried to hide under a futon. When an officer found him under the futon, he was again told to step outside for a breath test.
Dennen went outside the building and walked away. A little less than an hour later, an officer saw him walking on a street, perhaps carrying a plastic bag. The officer, Steven Peterson, determined to investigate and turned his car around. By the time he got to where he thought Dennen would be Dennen was gone. He took out his police dog, Citus, and began looking in the backyards nearby. Let's switch to the court's description:
"After a few moments, Citus stopped and indicated that he had picked up a human scent from an unexpected direction — away from the houses and toward a wooded area. Citus and Peterson changed course to follow this scent. As they were running, Citus ran some distance ahead of Peterson — approximately fifteen-to-thirty feet. However, as soon as Citus entered the wooded area, Peterson commanded him to return. Citus slowed his pace, and then returned to Peterson. Upon Citus's return, Peterson leashed him."
Let's stop the court's account for a moment to note that Peterson was not with his dog for some brief time, during which the dog may have encountered Dennen and conceivably could have bitten the student. Let's return to the court's words:
"At this point, Peterson and Citus were standing about fifteen-to-twenty feet from the edge of the wooded area. Peterson then heard movement from that area. He identified himself, announced Citus's presence, and ordered whomever was hiding in the woods to come out. Shortly after Peterson's announcement, Peterson heard the sounds of breaking brush and a loud crash. Peterson and Citus entered the woods. After doing so, Peterson and Citus came to the edge of a deep, muddy, and steep ravine. They descended about fifteen feet and then saw Dennen lying face-down in a creek bed, which was an additional thirty-five feet below them.
"At 02:38:06 a.m. Peterson radioed the dispatcher and requested medical assistance. Tanksi and Officer M. Peterson, the two officers who were at the party, left the house and headed toward the river. After descending into the ravine, they found Dennen seriously injured. The officers attempted to resuscitate Dennen. Dennen was rushed to the hospital for treatment. Unfortunately, Dennen had suffered a severe head injury and remained in a coma for several weeks."
Let's stop again. As any police officer reading this would know, Peterson was now at risk for a lawsuit. His function had shifted from investigation to saving an injured person, an injury he might be accused of causing. The court now summarizes the subsequent events:
"Toxicology reports later revealed the presence of barbiturates, amphetamines, and an alcohol level of .227 in Dennen's blood. Medical records reflected that Dennen had multiple small lacerations on his upper right arm, small abrasions and scratches on his elbows and forearms, and abrasions and punctures on both elbows and his left wrist. Dennen has no recollection of the events of September 26, 1998.
Dennen spent over a year in rehabilitation, and, although he has regained many of his physical and mental abilities, he still suffers from some of the effects of the brain injury."
Dennen sued for excessive use of force in violation of the Fourth Amendment, creating liability under 42 U.S.C. 1983. A particular focus of Dennen's complaint was that Citus had been off-leash when Peterson began searching for him. The court, fortunately, was not willing to impose a leash requirement, stating:
"[I]t would not be practical to require a police officer to always have his canine on a leash. There are a variety of instances when it would not be appropriate to do so. For example, there is no need to have a canine on a leash if an officer is talking to children in a school, or when the dog is sniffing for contraband. Particularly, a leash would not be required in circumstances where officer safety is concerned."
Dennen did have his own expert, who testified on the use of police dogs without leashes:
"To establish unreasonableness, Dennen relies upon the opinion of his expert in the area of police canine training, VanNess H. Bogardus, III. In his report, Bogardus states: [I]t is generally agreed among law enforcement agencies that when, in the course of a criminal investigation or arrest, an officer releases a dog[, it is] with the knowledge that the dog will probably bite anyone that it finds.... This is part due to the fact that with dogs that are trained to bite and hold, the 'attack' command is contained within the 'send' command as a part of the dog's training."
Dennen himself had no memory of the events and could not explain his injuries or describe any encounter with Citus. The Eighth Circuit accepted that Peterson could have had valid reasons for letting Citus work off-leash, but did note there was evidence that Citus had bitten others. This was not enough, however, as the question was not whether Citus had bitten Dennen, which he may have, but whether it was an excessive use of force to take Citus off-leash. After all, Peterson did not know what Dennen was up to, did not know if he was armed, but did know he was "in a part of town known for some rowdiness and criminal activity."
The Eighth Circuit affirmed the district court’s denial of the 1983 claim, and held that the officer was entitled to official immunity on the state law claims of negligence and negligent infliction of emotional distress. Dennen v. City of Duluth, 350 F.3d 786 (8th Cir. 2003).
Dennen went outside the building and walked away. A little less than an hour later, an officer saw him walking on a street, perhaps carrying a plastic bag. The officer, Steven Peterson, determined to investigate and turned his car around. By the time he got to where he thought Dennen would be Dennen was gone. He took out his police dog, Citus, and began looking in the backyards nearby. Let's switch to the court's description:
"After a few moments, Citus stopped and indicated that he had picked up a human scent from an unexpected direction — away from the houses and toward a wooded area. Citus and Peterson changed course to follow this scent. As they were running, Citus ran some distance ahead of Peterson — approximately fifteen-to-thirty feet. However, as soon as Citus entered the wooded area, Peterson commanded him to return. Citus slowed his pace, and then returned to Peterson. Upon Citus's return, Peterson leashed him."
Let's stop the court's account for a moment to note that Peterson was not with his dog for some brief time, during which the dog may have encountered Dennen and conceivably could have bitten the student. Let's return to the court's words:
"At this point, Peterson and Citus were standing about fifteen-to-twenty feet from the edge of the wooded area. Peterson then heard movement from that area. He identified himself, announced Citus's presence, and ordered whomever was hiding in the woods to come out. Shortly after Peterson's announcement, Peterson heard the sounds of breaking brush and a loud crash. Peterson and Citus entered the woods. After doing so, Peterson and Citus came to the edge of a deep, muddy, and steep ravine. They descended about fifteen feet and then saw Dennen lying face-down in a creek bed, which was an additional thirty-five feet below them.
"At 02:38:06 a.m. Peterson radioed the dispatcher and requested medical assistance. Tanksi and Officer M. Peterson, the two officers who were at the party, left the house and headed toward the river. After descending into the ravine, they found Dennen seriously injured. The officers attempted to resuscitate Dennen. Dennen was rushed to the hospital for treatment. Unfortunately, Dennen had suffered a severe head injury and remained in a coma for several weeks."
Let's stop again. As any police officer reading this would know, Peterson was now at risk for a lawsuit. His function had shifted from investigation to saving an injured person, an injury he might be accused of causing. The court now summarizes the subsequent events:
"Toxicology reports later revealed the presence of barbiturates, amphetamines, and an alcohol level of .227 in Dennen's blood. Medical records reflected that Dennen had multiple small lacerations on his upper right arm, small abrasions and scratches on his elbows and forearms, and abrasions and punctures on both elbows and his left wrist. Dennen has no recollection of the events of September 26, 1998.
Dennen spent over a year in rehabilitation, and, although he has regained many of his physical and mental abilities, he still suffers from some of the effects of the brain injury."
Dennen sued for excessive use of force in violation of the Fourth Amendment, creating liability under 42 U.S.C. 1983. A particular focus of Dennen's complaint was that Citus had been off-leash when Peterson began searching for him. The court, fortunately, was not willing to impose a leash requirement, stating:
"[I]t would not be practical to require a police officer to always have his canine on a leash. There are a variety of instances when it would not be appropriate to do so. For example, there is no need to have a canine on a leash if an officer is talking to children in a school, or when the dog is sniffing for contraband. Particularly, a leash would not be required in circumstances where officer safety is concerned."
Dennen did have his own expert, who testified on the use of police dogs without leashes:
"To establish unreasonableness, Dennen relies upon the opinion of his expert in the area of police canine training, VanNess H. Bogardus, III. In his report, Bogardus states: [I]t is generally agreed among law enforcement agencies that when, in the course of a criminal investigation or arrest, an officer releases a dog[, it is] with the knowledge that the dog will probably bite anyone that it finds.... This is part due to the fact that with dogs that are trained to bite and hold, the 'attack' command is contained within the 'send' command as a part of the dog's training."
Dennen himself had no memory of the events and could not explain his injuries or describe any encounter with Citus. The Eighth Circuit accepted that Peterson could have had valid reasons for letting Citus work off-leash, but did note there was evidence that Citus had bitten others. This was not enough, however, as the question was not whether Citus had bitten Dennen, which he may have, but whether it was an excessive use of force to take Citus off-leash. After all, Peterson did not know what Dennen was up to, did not know if he was armed, but did know he was "in a part of town known for some rowdiness and criminal activity."
The Eighth Circuit affirmed the district court’s denial of the 1983 claim, and held that the officer was entitled to official immunity on the state law claims of negligence and negligent infliction of emotional distress. Dennen v. City of Duluth, 350 F.3d 786 (8th Cir. 2003).
Saturday, January 16, 2010
Bloodhounds Were Not the First American Tracking Dogs
The history of American tracking dogs goes back to the shameful days of slavery and the hunting of escaped slaves. I did not know until I read an article from 1920 written by a West Virginia judge that bloodhounds were first imported not just for their tracking skills, but also for their strength in apprehending the slaves. The first trackers were fox hounds, but these dogs were not enough of a threat. Judge McWhorter's words, in "The Bloodhound as a Witness," are worth quoting at length:
"During the slavery days of America, the slave-holders of the south conceived the idea of employing dogs in tracking slaves who attempted to escape. There were then no bloodhounds in America, and none were imported. But the common fox hound was trained to trail the slaves, and for the purpose of keeping the slaves awed and intimidated, the reports were generally circulated that these dogs were bloodhounds, with great accent on the word 'blood,' and that they were infallible, and when put on the trail of a negro would never abandon it until the fugitive was run down and torn to shreds, and that there was no escape from such ferocious dogs. This naturally appealed to the imaginative slave, and helped to give credence and circulation to these reports.
"But by and by the slaves began to learn that these hounds were harmless, and that all the reports concerning their viciousness were false, and the 'bloodhound' began to lose his terror. To offset this trouble, the common hound was then crossed with the Great Dane, or the Cuban Mastiff, both savage and vicious breeds of dogs, and a new strain produced called the 'Cuban Bloodhound,' and later and more appropriately called the “N---r Hound.” These dogs were vicious, and the former reports of the viciousness of the so-called 'bloodhounds' were renewed and fully credited, not only by the negroes but by the whites of both North and South as well. The vivid stories about these dogs in `Uncle Tom's Cabin' had their counterparts in every slave-holding section of the country. These dogs could, with ease, track barefooted negroes through the swamps and low damp grounds of the South, and it was utterly immaterial whether the dog left an older trail for a fresher trail of another negro. Just so the dog 'treed a n---r,' the moral effect was the same. The slaves were kept intimidated, and these dogs were doing their work effectively, regardless of their accuracy.
"Thus this 'common knowledge' of the work of the 'bloodhounds' grew. These reports were exaggerated, and, without scruple, falsified and the sagacity, discriminating powers and deadly precision of these dogs magnified for the very purpose of keeping the slave terrified. In this there was eminent success. The following poem expresses this 'Common Knowledge:'
"'O’er all, the bloodhound boasts superior skill,
To scent, to view, to turn and boldly kill—
His fellows’ vain alarms rejects with scorn,
True to the master’s voices and learned horn;—
His nostrils oft, if ancient fame sings true,
Traced the sly felon thro’ the tainted dew;
Once snuff’d, he follows with unaltered aim,
Nor odours lure him from the chosen game;
Deep-mouthed, he thunders and inflamed he views,
Springs on relentless, and to death pursues.'
"But who would have dreamed at that time that these false and highly colored reports would become the basis for the promulgation of a doctrine by the courts of America that would put in deadly peril the lives and sacred liberties of American citizens? It will be observed that these dogs, from whose work this 'Common Knowledge' largely arose, or at least took its coloring, were not bloodhounds at all. They were, at best, only quarter bloods; and all these reports of the vicious character and deadly precision of the so-called 'bloodhounds' had their foundation in fact only to the extent that the blood of the Cuban Mastiff or the Great Dane had been infused into the strain. Such reports were not true of the English Bloodhound, and never were. If these facts had been thoroughly understood, I do not believe this insidiously dangerous 'bloodhound doctrine' would ever have been adopted by any of the American courts, and that when once fully understood, it will either be repudiated in toto, or so emasculated by precautionary restrictions as to render it harmless."
McWhorter's entire article is available online through GoogleBooks.
Additional Note. For a colored engraving showing a hound pursuing a slave, see Tamsin Pickeral, The Dog: 5000 Years of the Dog in Art, Merrell London 2010, at 240. The engraving is identified as being from a private collection.
"During the slavery days of America, the slave-holders of the south conceived the idea of employing dogs in tracking slaves who attempted to escape. There were then no bloodhounds in America, and none were imported. But the common fox hound was trained to trail the slaves, and for the purpose of keeping the slaves awed and intimidated, the reports were generally circulated that these dogs were bloodhounds, with great accent on the word 'blood,' and that they were infallible, and when put on the trail of a negro would never abandon it until the fugitive was run down and torn to shreds, and that there was no escape from such ferocious dogs. This naturally appealed to the imaginative slave, and helped to give credence and circulation to these reports.
"But by and by the slaves began to learn that these hounds were harmless, and that all the reports concerning their viciousness were false, and the 'bloodhound' began to lose his terror. To offset this trouble, the common hound was then crossed with the Great Dane, or the Cuban Mastiff, both savage and vicious breeds of dogs, and a new strain produced called the 'Cuban Bloodhound,' and later and more appropriately called the “N---r Hound.” These dogs were vicious, and the former reports of the viciousness of the so-called 'bloodhounds' were renewed and fully credited, not only by the negroes but by the whites of both North and South as well. The vivid stories about these dogs in `Uncle Tom's Cabin' had their counterparts in every slave-holding section of the country. These dogs could, with ease, track barefooted negroes through the swamps and low damp grounds of the South, and it was utterly immaterial whether the dog left an older trail for a fresher trail of another negro. Just so the dog 'treed a n---r,' the moral effect was the same. The slaves were kept intimidated, and these dogs were doing their work effectively, regardless of their accuracy.
"Thus this 'common knowledge' of the work of the 'bloodhounds' grew. These reports were exaggerated, and, without scruple, falsified and the sagacity, discriminating powers and deadly precision of these dogs magnified for the very purpose of keeping the slave terrified. In this there was eminent success. The following poem expresses this 'Common Knowledge:'
"'O’er all, the bloodhound boasts superior skill,
To scent, to view, to turn and boldly kill—
His fellows’ vain alarms rejects with scorn,
True to the master’s voices and learned horn;—
His nostrils oft, if ancient fame sings true,
Traced the sly felon thro’ the tainted dew;
Once snuff’d, he follows with unaltered aim,
Nor odours lure him from the chosen game;
Deep-mouthed, he thunders and inflamed he views,
Springs on relentless, and to death pursues.'
"But who would have dreamed at that time that these false and highly colored reports would become the basis for the promulgation of a doctrine by the courts of America that would put in deadly peril the lives and sacred liberties of American citizens? It will be observed that these dogs, from whose work this 'Common Knowledge' largely arose, or at least took its coloring, were not bloodhounds at all. They were, at best, only quarter bloods; and all these reports of the vicious character and deadly precision of the so-called 'bloodhounds' had their foundation in fact only to the extent that the blood of the Cuban Mastiff or the Great Dane had been infused into the strain. Such reports were not true of the English Bloodhound, and never were. If these facts had been thoroughly understood, I do not believe this insidiously dangerous 'bloodhound doctrine' would ever have been adopted by any of the American courts, and that when once fully understood, it will either be repudiated in toto, or so emasculated by precautionary restrictions as to render it harmless."
McWhorter's entire article is available online through GoogleBooks.
Additional Note. For a colored engraving showing a hound pursuing a slave, see Tamsin Pickeral, The Dog: 5000 Years of the Dog in Art, Merrell London 2010, at 240. The engraving is identified as being from a private collection.
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