Canine Legal Update and Opinions
for Supervisors and Administrators

VICARIOUS LIABILITY

“The imposition of liability on one person
for the actionable conduct of another,
based solely on a relationship between the two
persons. Indirect or imputed legal responsibility
for acts of another; for example,
the liability of an employer for the acts of
an employee…”

Although there are no “vicarious liability” claims in Federal Court, the eight areas of vicarious liability are referred to, but using other terms. As an example, “negligent training” would be the same as “failure to train.”

The eight areas of vicarious liability will be discussed, followed by federal cases that show the correlation.

A clear understanding of vicarious liability and review of these federal cases will ensure that you and your agency are not negligent in these areas.

NEGLIGENT APPOINTMENT:

Handler:

1) Standards:
A) Pre-entry test:
Mentally and physically stable.
B) Background (history) of handler.

2) Training:
A) Consistent with the industry (Peace Officers Standards and Training).
B) Documented.

3) Testing:
A) Testing or evaluation or certification to the standards.

CANINE:

1) Standards:
A) Pre-entry test:
Mentally and physically stable.
B) Background (history) of canine.
2) Training:
A) Consistent with the industry (Peace Officers Standards and Training).
B) Documented.
C) Applies to both vendor provided or in-house training.

3) Testing:
A) Testing or evaluation or certification to the standards.

NEGLIGENT RETENTION:

Handler and canine:

1) Review of all use of force incidents.

2) Review of physical and mental stability.

3) Re-certification to the standards.

NEGLIGENT ENTRUSTMENT:

Canine to handler:

1) Entrustment of a dog (a potential use of force) to an officer who is not physically or mentally fit.

NEGLIGENT ASSIGNMENT:

Use of canine out-of-scope:

1) “Graham” objective reasonableness standard.

2) Exceeding the dog’s capability:
A) Turning a S.W.A.T./E.R.T. call into a canine call.
B) Using a Police Service Dog in a S.W.A.T. application, where the dog has not received training in this application.
C) Using a Narcotic Detector Dog for Police Service Dog person/evidence searches.

Unavailability / availability of canine:

1) The tool (canine) must be both available and utilized.

NEGLIGENT DIRECTION:

1) On-scene supervision or knowledge of canine deployment.

2) Written standards / policy.

NEGLIGENT TRAINING:

Standards:

1) State (Peace Officers Standards and Training) standards.

2) Written agency standards:
A) Must parallel and meet Peace Officers Standards and Training standards, minimally.
B) If no Peace Officers Standards and Training standards, agency standards must parallel and meet industry standards, i.e. U.S.P.C.A., etc.

3) There has been recent talk about establishing a national “best practice standard” for all working canines. The Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG) was recently formed to address this task.

The Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG) is a forum aimed at addressing the broadly expressed need to improve the performance, reliability, and courtroom defensibility of detector dog teams. It is also charged with recommending best approaches to the use of detector dogs in conjunction with electronic detection devices, or so-called orthogonal detectors. Modeled after the successful precedent of a variety of other scientific working groups, SWGDOG aims to develop internationally recognized consensus-based best practice guidelines developed by a membership of respected scientists, practitioners, and policy makers representing diverse backgrounds within the detection community. SWGDOG guidelines will be made available to the public via the SWGDOG website at www.swgdog.org. SWGDOG is funded by the National Institute of Justice, Federal Bureau of Investigation, and the Transportation Security Administration.

SWGDOG Subcommittees

• Unification of terminology
• Protocols and documentation for minimum training, certification, and maintenance standards (Substances, scent)
• Selection of serviceable dogs and replacement systems
• Kenneling, keeping, and health care
• Selection and training of handlers and instructors
• Procedures on presenting evidence in court
• Research and technology
• Substance detector dogs (Agriculture, Arson, Chem. / Bio., Drugs, Explosives, Human Remains, other / misc.
• Scent dogs (Scent Identification, Search and Rescue, Trailing Dogs, Tracking Dogs)

The initial phase of SWGDOG will last two years, beginning mid-year 2005. Draft best practices guidelines emanating from each of the subcommittees will be available for public comment on the SWGDOG website by and large during 2006 at various points, with final, publicly-vetted guidelines from the initial phase posted by no later than mid-2007, and perhaps earlier.

Training:

1) Training to the standards.

2) Documentation, applies to both vendor provided or in-house training.

Certification:

The industry standard is yearly certification. This is recommended by the United States Police Canine Association (USPCA), the North American Police Work Dog Association (NAPWDA), the National Police Canine Association (NPCA) and the National Narcotic Detector Dog Association (NNDDA).

In order to avoid any perceived conflict of interest between the evaluator and the K-9 team, the evaluator:
A) Cannot have a monetary interest in training of the K-9 team being evaluated
    (vendor);
B) Cannot be the dog’s handler;
C) Cannot be the trainer for the dog or the handler.
In addition, the evaluator must have training in the area of certification. I recommend a minimum of five (5) years of experience.

Legally, your agency gets to choose either of these two different types of yearly certifications:

1. In-house:
The K-9 team is evaluated by someone, without the perceived conflicts of interests as stated above, and certifies the K-9 team in-house. An analogy would be your firearms certification, other in-house training certifications, etc.

2. Out-of-house:
The K-9 team is evaluated by a third party outside your agency. Examples would be another agency, a K-9 association, etc. That third party cannot have any of the perceived conflicts of interest as stated above.

Evaluators:

1) Standards:
A) State (Peace Officers Standards and Training) standards.
B) Written agency standards must parallel and meet Peace Officers Standards and Training standards.

2) Training to the standards.

On-going documentation:

1) Training:
A) Weekly or bi-weekly.
B) Problems documented and resolved.

2) Certification/evaluation:
A) To the standards.
B) Non-interested evaluator.
C) Annually.

3) Deployment:
A) Every deployment.
B) Bite ratio.
C) Use of force review.

NEGLIGENT SUPERVISION:

1) Applies to all supervisors; trainer up to the departmental head.

2) Supervision of:
A) Standards.
B) Initial training to the standards, applies to both vendor provided or in-house training.
C) Testing to the standards.
D) Appointment of both handler and canine.
E) Retention of both handler and canine.
F) Entrustment of dog to handler.
G) Evaluator’s standards and training to the standards.
H) Maintenance training.
I) Deployment review.
J) Re-certifications or evaluations.
K) Documentation of all these areas.

NEGLIGENT DISCIPLINE:

Failing to properly track on, or impose discipline on employee’s improper conduct.

Reprimand elements:
1) Preparing to reprimand:
A) Do your homework.
B) Reprimand as soon as possible.
C) Don’t attack personality.
D) Don’t threaten.
E) Don’t reprimand in public.
F) Realize when it’s over, it’s over.

Reprimanding:
1) Tell the person what he/she did.
2) Share your feelings.
3) Pause.
4) Affirm past performance, recreate a picture of desired behavior.