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. 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 ( 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).