K9 Case's, 8th Circuit, Court Of Appeals

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CASE: METTLER v WHITLEDGE
165 F. 3d 1197 (Eighth Cir. 1999)

INITIAL SUSPECT VIOLATIONS:

1) Suspect Mettler discharges a firearm at an apartment.
2) The suspect flees into a row of garage stalls.

CANINE DEPLOYMENT DECISION / FACTORS:

1) Deputies searching the garage stalls see a person enter a stall with a long gun in his left hand.
2) Canine handler with his dog locates the garage door unlocked and open a few inches.
3) The garage door was opened and a canine announcement was given.
4) There was no response from the suspect and the canine was sent into the garage.
5) The dog located suspect Mettler and growled at him.
6) Mettler fired one round from his shotgun which hit and killed the police dog.
7) Mettler then pointed the shotgun at the canine handler who was 20’ away at the garage door.
8) Deputies shot Mettler and killed him.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Sheriff’s deputies did not “seize” the suspect either by trapping him in the garage or by sending a police dog to locate him.

2) Police officers are not forbidden from returning fire after being fired upon by the suspect.

3) Deputies fired at the suspect only after he had first shot and killed a police dog, the suspect pointed the gun at a deputy, the deputies were standing scarcely 20 feet from the shooter who had a high-powered weapon, the suspect was hiding in darkened garage, was concealed by a parked car and had exhibited willingness to resist exercise of police authority through use of deadly force.

It should be noted that deputies did not escalate to deadly force to protect the police dog. The deputies escalated to deadly force when the suspect pointed a gun at them.

CASE: DENNEN v CITY OF DULUTH
350 F. 3d 786 (Eighth Circuit 2003)

INITIAL SUSPECT VIOLATIONS:

1) Suspicious person walking down a street, holding a possible white plastic bag.
2) Suspect Dennen sees the police officer, who is a canine handler, and runs from them in the early morning hours.
3) Dennen actually is an under aged drinking suspect, unbeknownst to the canine handler.

CANINE DEPLOYMENT DECISION / FACTORS:

1) The canine officer pursued Dennen and took his dog with him for the officer’s protection. The dog was off leash.
2) No actual canine deployment was made. The dog was not given any commands. The dog was there only to protect the handler.
3) The dog indicated that he had picked up human scent.
4) Before the dog was allowed to leave visual control of the handler, the handler recalled the dog and put him on leash.
5) The officer heard the suspect ahead of him.
6) The suspect was discovered laying face down in a creek, at the bottom of a steep ravine. Dennen was severally injured with a head injury, as a result of the fall down into the ravine.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) There is no canine case that holds that it is an excessive use of force to use a canine without a leash.

2) It would not be practical to require a police officer to always have his canine on leash. There are a variety of instances when it would not be appropriate to do so. Particularly, a leash would not be required in circumstances where officer safety is concerned.

3) The police officer with the canine unit did not act unreasonably by pursuing an under aged drinking suspect with an unleashed dog. The officer took the dog with him to protect the officer. The dog was not given any command. The officer did not initially leash the dog because he wanted to have both hands free while chasing the suspect at night, as the officer had a legitimate concern for his own safety.

4) Even if the officer knew that the police dog had a predisposition to bite others without command to do so, the officer’s decision to bring the unleashed dog with him, was discretionary.

CASE: KUHA v CITY OF MINNETONKA
365 F. 3d 590 (Eighth Cir. 2004)

INITIAL SUSPECT VIOLATIONS:

1) Traffic violation.
2) Suspect Kuha flees the traffic stop on foot.
3) Kuha evades arrest by swimming through a swamp.

CANINE DEPLOYMENT DECISION / FACTORS:

1) Although Kuha was initially stopped for a traffic violation, his behavior following the stop led officers to believe that more might be at issue than a mere traffic infraction.
2) Officers find recent damage to Kuha’s vehicle.
3) Officers were confronted by unexplainable flight in the early morning hours. Kuha had chosen to swim through a swamp.
4) There were inhabited apartments nearby and residents would soon be leaving for work.
5) Kuha was not searched and officers were concerned for their safety.
6) A police dog was used to track Kuha.
7) The dog tracked to Kuha and bit him.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court used Graham v Connor in determining if the canine seizure was reasonable:
A) Severity of crime:
Based upon Kuha’s actions, officers believed that Kuha was wanted for more than just a traffic infraction.
B) Whether the suspect poses an immediate threat to the safety of officers or others:
Kuha was not searched. It was unknown if he had weapons. He fled into an inhabited area where apartment residents leaving for work could be confronted by Kuha.
C) Whether the suspect is actively resisting arrest or attempting to evade arrest by flight:
Kuha fled on foot and swam through a swamp to evade arrest.

2) Law enforcement officers initial decision to use a police dog trained in the bite and hold technique to find and apprehend Kuha who ran from his car into a swamp after what seemed to be a routine traffic stop was reasonable.

3) The use of a police dog trained in the bite and hold method to apprehend a fleeing suspect did not constitute deadly force.

4) Officers did not use excessive force in the moments following Kuha’s seizure by a police dog trained in the bite and hold method by allowing the dog to continue biting the suspect until Kuha raised his hands as the officer ordered him to do. Kuha was able to comply with the command, as the dog was biting him in the groin.

5) Kuha was not given an opportunity to surrender, prior to being bit by the dog.

The court concluded that it was objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender.

The court stated, “We agree that officer safety is paramount but disagree that requiring a verbal warning will put officers at increased risk. To the contrary, such a practice would likely diminish the risk of confrontation by increasing the likelihood that a suspect will surrender.

While there may be exceptional cases where a warning is not feasible, we see no reason why officers could not have placed themselves out of harms way, and given a loud verbal warning that a police dog was present and trained to seize by force.”

6) The court concluded, that the law with respect to the use of police dogs was not sufficiently established in September 1999, that a reasonable officer would have known that the failure to give a verbal warning could be deemed unconstitutional. Therefore, there was no liability in this case for either the K-9 handler or agency.

Although this is not a police canine case, the court addressed the issue of whether a dog is considered a piece of “property.”

Note: If your dog is subpoenaed into court, you might consider using this case to notify the judge that the dog is not a “person.” It is you, the handler, that should be subpoenaed, not the dog. The handler is the “expert” of the locating tool, the dog

CASE: SZABLA v CITY OF BROOKLYN PARK, MINNESOTA
429 F. 3d 1168
437 F. 3d 1289
486 F. 3d 385
(U.S. Court of Appeals Eighth Circuit 2007)

1) Officers respond to a single car vehicle accident.
2) Upon officer’s arrival, the driver had fled.
3) It appeared to officers that the car might have been used in a burglary.

1) A canine handler thought the driver could be drunk, ill or possibly was involved in a burglary.
2) The handler used his police dog to track the driver from the vehicle.
3) The dog locates and bites a person, who turns out not to be the driver of the car.

1) The court addressed the need for a canine warning announcement that would give a suspect the opportunity for peaceful surrender.

2) The court concluded that a jury could properly find it unreasonable to use a police dog trained in the bite and hold method to track and bite a suspect, without first giving the suspect a warning and opportunity for peaceful surrender.

3) The court further stated that at the time of this event (August 2000), the law was not clearly established that not giving a warning to a suspect was unreasonable under the Fourth Amendment. Therefore, the K-9 handler was entitled to a qualified immunity.

4) The court further stated that at the time of this event (August 2000), the law was not clearly established that not giving a warning to a suspect was unreasonable under the Fourth Amendment. Therefore, the court concluded that the City of Brooklyn Park was entitled to summary judgment on the claim of municipal liability.

1) Suspect Mann fires a shot at police officers.
2) Mann flees to his home.
3) Mann’s wife reports to police that Mann:

1) Police surround Mann’s home and use tear gas to get him outside.
2) Mann comes out of the house, clad in a towel around his waist.
3) Mann does not comply with officer’s orders to place himself in a prone position.

1) K-9 handler orders his dog to bite and hold Mann.
2) Mann continues to fight officers and the dog.
3) It takes several “brachial stuns” and the dog bite in order to get Mann handcuffed.

2) Information provided to arresting officers that arrestee was in paranoid, belligerent, drug-crazed state and intended to do violence to police if and when they should attempt to arrest him, along with knowledge that arrestee had previously fired a gun at pursuing officers to escape apprehension and had allegedly assaulted his wife, justified officers' use of police dog to bite and hold arrestee's leg when arrestee failed to lie flat on his stomach after being repeatedly ordered to do so.

3) Officers' use of “brachial stun” technique when arrestee evaded handcuffs was justified when dog was at all times on its leash and was employed under officer's direction. Arrestee was not handcuffed and continued to resist when he was struck by officers, and officers noticeably paused between delivery of blows, as required for correct application of stun technique.

UNITED STATES COURT OF APPEALS EIGHTH CIRCUIT DECISIONS AFFECTING:

UNITED STATES COURT OF APPEALS
EIGHTH CIRCUIT
DECISIONS AFFECTING: