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| POLICE CANINE LIABILITY The use of force by a peace officer presents a variety of issues within the scope of the related criminal, administrative and civil investigations. Below is a partial list of some of the more frequent authorities and guidelines applicable to many of the most common issues which might arise. Please note that this is intended only as a quick reference and should not serve as a substitute for the actual authority or the advice of competent legal counsel. (Note: Any change in department policy should first comply with the meet and confer process even though it may otherwise be consistent with the law). Bruce D. Praet, Attorney Ferguson, Praet & Sherman 1631 East 18th Street Santa Ana, California 92705-7101 (714) 953-5300 Federal Cases 1. Look to situation leading to use of dog. Alexander v. San Francisco (9th Cir. 1994) 29 F3d 1355 (Creation of risk of use of deadly force). But see: 2. Duran v. Maywood (9th Cir. 2000) 221 F3d 1127 - two uniformed officers approaching shots fired call with guns out did not create likelihood of deadly confrontation. 3. Graham v. Connor (1989) ___ U.S. ___, 109 S.Ct. 1865 - Excessive force no longer under substantive due process analysis, but now under Fourth Amendment test of reasonable objective standard of similarly situated officer. 4. Robinette v. Barnes (6th Cir. 1988) 854 F2d 909 - Despite suspect's death, appropriate use of a properly trained police dog to apprehend a felony burglary suspect is not deadly force nor is it constitutionally unreasonable. 5. Chew v. Gates (9th Cir. 1994) 27 F3d 1432 - Note: 3 way split opinion. Canine law is not clearly established and supports "good faith"; K-9 as "deadly force" is jury question under Garner. 6. Mendoza v. County of L.A. (9th Cir. 1994) 27 F3d 1357 - Note: Better opinion! K-9 falls within objective reasonableness test based on seriousness of crime, risk to officers and flight of suspect. 7. Fikes v. Cleghorn (9th Cir. 1995) 47 F.3d 1011 - Test is reasonableness based on totality, not just three factors. Controlled K-9 is not deadly force unless applied as such. 8. Quintanilla v. Downey (9th Cir. 1996) 84 F.3d 353 - Use of canine is tested under reasonableness standard of Graham, not deadly force standard of Garner. 9. Vera Cruz v. Escondido (9th Cir. 1997) 139 F3d 659 - Burden on Plaintiff to show that use of K-9 under totality of circs. presented reasonable probability of death. (Use on fleeing susp. with knife reasonable under Graham not Garner) police dog, Trainer is not liable for training dog to bite resisting suspect. O.K. to use dog for "protective sweep" for felony suspect. 11. Andrade v. Burlingame (N.D. 1994) 847 F.Supp. 760 - When K-9 escapes from unit and bites suspect, no 4th Amendment seizure occurs since instrumentality (K-9) was not intended method of seizure. [Affirmed: (9th Cir. 1996) 79 F3d] |
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