CANINE LIABILITY

Law Enforcement Liability Basics “Those who do not learn from history are bound to repeat it.” Civil Litigation When a person begins a civil lawsuit or a court case or a civil charge against someone, the person enters into a process called civil litigation. Two main theories for a civil law suit Damage caused accidentally (negligence) Damages caused by an intentional act Criminal Charges Assault/battery

Civil v Criminal CivilCriminal ______ Brought by individualBrought by state PlaintiffProsecutor Law SuitIndictment No Bill of RightsBill of Rights Purpose = $/injunctionpunishment, rehabilitation, incapacitation, restitution

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Negligence Negligence required the showing of a duty, a breach of duty, proximate (or actual) cause and damages. The most common negligence lawsuit against officers and their agencies is for automobile crashes. K-9’s – unintentional bites/ damage to property. Wrong person – may be too close to suspect, in the way, let off leash inappropriately, etc.

Intentional Bites Sometimes bite was ordered, but not justified (wrong person or doesn’t meet test) Sometimes it is allowed to continue too long No warning or opportunity to surrender peacefully (whenever possible)

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When is it OK for the K-9 to Bite? The severity of the crime at issue; Whether the suspect poses an immediate threat to the safety of law enforcement officers or others; And whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Robinette V Barnes (1988) The only case that went to the US supreme court where the suspect died. Held that the lawful use of a properly trained police service dog does not constitute deadly force. Officer Barnes gave numerous K9 announcements. Officer Barnes “outed” the dog immediately when he realized that the dog had a bite and hold on the neck.

What happens when K-9’s Wrongly Bits? Department must have policy in place However, everyone will be sued Remember - Negligence is care that falls below the minimum standard allowed and resulting in injury. Intentional torts are deliberate acts or omissions resulting in injury.

Who gets Sued and for What? Every year, police are sued over 30,000 times and in the almost 2000 of those lawsuits they lose and they pay out an average of about $2,000,000 each. Law Enforcement Agency gets sued (deep Pockets) under several theories Failure to train (incident and medical follow-up) Failure to supervise Negligent Retention Officer Intentional acts negligence

KERR V WEST PALM BEACH (1989) Class action law suite (3 plaintiffs) Unconstitutional Seizers/Unreasonable use of force No supervision-No procedures in place to investigate complaints against handlers. Deployed on reasonable suspicion and “serious misdemeanors” Quality/Quantity of training (training records) First case to set a BITE RATIO.

KERR V WPB continued The jury found in favor of the plaintiffs. The court found that the department was aware of the units deficiencies and did not take corrective actions. Therefore the chief and supervisors in charge of the canine unit did not receive immunity. At the time of the allegations, WPBPD’s canine unit had a bite ratio of 50%. The “expert” testified that a K9 team with a ratio of over 25% should be looked at and a bite ratio of 33% or over needs to be corrected Precedents set forth 1-K9 teams must have a minimum of 16hrs of training a month. 2-The training must be documented (including usages) 3-Each use of force is to be reviewed by a supervisor trained in police k9 use of force 4- Bite Ratio must be under 33%

Types of Damages Nominal – little or no money – usually paid for by department Compensatory – pays out of pocket or real expenses (includes pain and suffering) – usually paid for by department Punitive – to teach the police not to do this again – usually paid for by whoever court says was at fault

What about Immunity? Immunity means that someone (or something is protected from suit. For our purposes, there are two types of immunity: absolute and qualified. Absolute immunity means that someone cannot be sued for anything they do in their official capacity, irrespective of their intentions. Applies to judges, legislators, and prosecutors while doing their jobs. Qualified immunity gives less protection. To sue someone with qualified immunity you must show that they violated clearly established rights which a reasonable person would have known about. Generally police officers have qualified immunity.

42 USC 1983 Every state has own civil statutes Most common federal action is under §1983 Elements Acting under “color of law” Violated Constitutional Rights