Too Often, Use Of K-9 Units Is Cruel And Unusual Punishment

Patrick Buelna

A recent story on NPR highlighted how police body cameras may be changing the long-held perception that K-9 units are impartial.[1]

The report discusses a recently filed lawsuit in the U.S. District Court for the Western District of Texas, Schott v. Babb, alleging that police officers conducted an unreasonable search and seizure of the plaintiff's vehicle, under the justification that their drug-sniffing dog had alerted them to the presence of drugs.

Body cam footage reportedly reveals that the officers signaled to the dog before it alerted — that is, "the handler's right hand made a gesture toward the attentive dog, which then jumped up on the pickup's door."

No drugs were found in the plaintiff's vehicle.

But what if the K-9 unit didn't stop at just alerting law enforcement? What if officers use these dogs to inflict violence? As other lawsuits show, the outcome could have been much worse.

On Feb. 22, Thomas v. Johnson[2] was filed in the U.S. District Court for the Southern District of Texas against three constable officers in Harris County, Texas, charging them with violating the plaintiff's constitutional rights.

According to the complaint, the officers subjected Kerry Lee Thomas to a prolonged police dog attack while he was unarmed, lying on the ground with arms outstretched, and being placed in handcuffs by the officers.

Thomas claimed that the attack constituted excessive and unreasonable force. The officers were responding to a report of men making noise outside a residence, yet they allowed their dog to continue biting the plaintiff for almost 43 seconds.

As a direct consequence he says he suffered severe physical injuries, "including lacerations, puncture wounds, permanent scarring, persistent muscle damage, and other impairments."

K-9 units have been a fixture of law enforcement for decades. Viral videos show rescue dogs finding victims in collapsed buildings, dogs helping narcotics agents capture drug smugglers and dogs rescuing children from the bottoms of wells.

But what the videos fail to show are dogs biting off people's fingers; dogs mauling legs, arms and faces; and dogs killing unarmed suspects. These incidents also happen on a fairly regular basis.[3]

The use of police dogs as weapons should never be the norm. In too many instances, the use of K-9 units constitutes cruel and unusual punishment in violation of the U.S. Constitution.

In its award-winning exposé on the subject, The Marshall Project[4] found that unarmed, nonviolent suspects are frequently targeted and severely injured by K-9 units, with a higher proportion of Black suspects suffering life-altering injuries.

As discussed below, an unarmed individual has virtually no chance against a dog's bite, officers are generally incapable of controlling or stopping their dogs midbite, and too many suspects whose alleged crimes are minor or nonviolent are severely and permanently injured.

The law, however, has generally turned a blind eye to such canine attacks.

For example, in Robinette v. Barnes,[5] decided in 1988, the U.S. Court of Appeals for the Sixth Circuit held that police were not liable for the death of a burglary suspect who was hiding in a darkened building when their dog grabbed him by the neck. Though the victim died, the court said that "the use of a properly trained police dog to seize a felony suspect does not constitute deadly force."

In reaching its decision, the court looked at the U.S. Supreme Court's 1985 holding in Tennessee v. Garner[6] that apprehension of a criminal suspect "by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment."

In that case, a police officer had shot a felony suspect in the back of the head as he fled from the scene of a burglary.

The Supreme Court ruled that it was unreasonable for an officer to use deadly force to stop a fleeing suspect unless the officer had probable cause to believe the suspect posed a "'significant threat of death or serious physical injury to the officers or others.'"

While expounding on the factors relevant for assessing the reasonableness of a seizure, the court failed to define what actually constitutes deadly force.

In the subsequent case of Graham v. Connor,[7] the Supreme Court in 1989 used a police dog incident to establish that a claim of excessive force by law enforcement was subject to the objective reasonableness test of the Fourth Amendment, not the substantive due process standard of the 14th Amendment.

The objective facts and circumstances related to the use of force would drive the analysis, the court said, rather than any improper, subjective intent or motivation by the officer who used force.

A typical police dog has a biting force of 800 to 1200 pounds per square inch — comparable to a car running over a body part. Belgian Malinois and German shepherds, both favorites of police departments, are trained to use bites strong enough to crush bones and pierce sheet metal.[8]

Unlike a Taser, which can be turned on and off, dogs generally cannot be controlled, even by their handlers. When an officer sets a dog on a person who immediately surrenders, the dog bite usually continues — sometimes for several more minutes — until the dog can be pulled off. In contrast, an officer using a baton must stop the beating as soon as the person surrenders.

But this hasn't stopped law enforcement from using dogs as potentially dangerous weapons.

Indeed, in its 1998 Watkins v. City of Oakland decision,[9] the U.S. Court of Appeals for the Ninth Circuit examined Oakland's "bite and hold" canine policy, under which "[p]olice dogs were trained and tested to bite solidly, bite hard, and hold on."

The court held that "excessive duration of the bite and improper encouragement of a continuation of the attack by officers could constitute excessive force that would be a constitutional violation."

Notably, Oakland's police dogs were trained to rebite and to bite whatever part of the body was nearest to them; handlers were given leave to release dogs to bite suspects they had no reason to believe were armed.

The Watkins formula makes it clear that the force used by law enforcement against a suspect should be equal to or just one level greater than the force demonstrated by the suspect.

For example, if the suspect pushes back, under the Watkins formula the officer should be able to hit him. If the suspect keeps walking or is otherwise noncompliant or passively resistant, the officer should be able to grab him and perhaps even tackle him. If the suspect hides from police, Watkins says that he or she deserves to be warned before facing the bared teeth of a police dog.

An unarmed person suspected of stealing should not face death or dismemberment.

In its 2020 publication, "Guidance on Policies and Practices for Patrol Canines,"[10] the Police Executive Research Forum included this note about the proper level of response:

Any police use of force, including the deployment of canines, must meet the test of proportionality. Proportionality considers whether a particular use of force is proportional to the threat faced by the officers and is appropriate given the circumstances. Proportionality requires officers to consider if they are using only the level of force necessary to mitigate the threat, and whether there is another, less injurious option available that will safely and effectively achieve the same objective.

The dynamics of working with aggressive dogs can, however, change the calculus considerably. Their instinctive prey drive[11] often leads dogs to snap the necks of their prey — hence the shaking back and forth of toys and sticks. Horrific injuries are thus commonplace when dogs are used as weapons.

Signs of fear lure dogs, so police may resist calling off an attacking dog that may otherwise redirect its aggressiveness toward a partner or handler. While waiting for backup, officers have no incentive to put themselves at risk by intervening to pull off a biting dog.

According to the Watkins court, "it was clearly established that excessive duration of [a K-9] bite ... could constitute excessive force," suggesting that the intensity and duration of the bite could, by themselves, render such officers' actions unconstitutional.

The court spelled the issue out clearly, citing circuit precedent:

[N]o particularized case law is necessary for a deputy to know that excessive force has been used when a deputy sics a canine on a handcuffed arrestee who has fully surrendered and is completely under control.[12]

The same court, in its 1994 Chew v. Gates decision,[13] identified two potential types of excessive force claims involving K-9 units, holding that:

The use of "police dogs trained to 'bite and seize' suspects to locate and hold concealed individuals who are not reasonably believed to be dangerous may violate the Fourth Amendment"; and

"It is also possible ... that siccing dogs trained in such a manner on any suspects would be found to violate [the Fourth] Amendment, if the method of training is found to be unreasonable in light of available alternatives."

Increasingly, courts have looked to these decisions to hold law enforcement accountable for injuries caused by police dogs. They have done so despite legal precedent favoring qualified immunity,[14] a decades-old creation of the U.S. Supreme Court meant to protect government employees from frivolous litigation.

Such immunity had effectively shielded police from thousands of lawsuits seeking to hold them accountable for the use of excessive force.

In the U.S. District Court for the Southern District of California's 2018 Koistra v. County of San Diego decision, qualified immunity was thus denied to an officer in San Diego who allowed a canine to continue biting his victim for more than 30 seconds after she had clearly surrendered with her arms up in the air and announced to officers that she was unarmed.[15]

The court held that "a reasonable officer would have known that the continued seizure by a police canine after [the plaintiff] surrendered for an additional 30 seconds was unlawful."

Police dogs biting and injuring suspects may soon be a thing of the past, at least in California. Legislators in that state have introduced a bill that would ban the use of police dogs as weapons.

California's A.B. 742[16] would prohibit use of dogs in situations where they would ordinarily be used to bite people, such as during apprehensions, arrests and crowd control. Such dogs would still be available to use for rescue, narcotics detection and other nonpredatory purposes.

But even without such laws, the use of police dogs as weapons should be off the table. There can be no justification for this type of cruel and unusual punishment.

Patrick Buelna is a partner at Pointer & Buelna LLP — Lawyers for the People.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1]

[2] Thomas v. Johnson, 4:23-cv-00662, Texas Southern District Court https://www.houstonpublicmedia.org/articles/news/criminal-justice/2023/02/24/444634/harris-county-constable-officers-used-excessive-force-in-police-k-9-attack-federal-lawsuit-says/.

[3] https://www.themarshallproject.org/2020/10/15/mauled-when-police-dogs-are-weapons.

[4] Id.

[5] Robinette v. Barnes