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Use of r-erce by Police Service Dogs is a Critically Important Teel for Law Enforcement When Used
Though#fuIly and AppropiriateIV by Properly Trained PSD Tearns
July 12, 2020)
On Juiy S, 2020, San Diego police had arrested a suspect and transpo ted him to the sally port of
the coup y jaii1, As they prepared to remove him from the police SUV, one officer realized that the
suspect had slipped his handcuffs, broken through a plexiglass harrier and was in possession of the
oxiginaE officer's back up weapon from the officer's gear fag_ The suspect did not obey ally orders liven
by later enforcement at anytime during this encounter_ Instead, the suspect fired a round out the back
window of the law enforcement SUV. Two officers fired on the SUV_ The suspect was able to reach out
of the back side window to Iet himself out of the SUV. ire appeared to be bleeding; no information was
re lease d ii n t he media as of J u ly 10 a s t o t he mecha nism of t hat i n jury. The s us pect ex ited th e SUV vwi t h
the handgun in his waistband. As the suspect reached back into the SUV, additional shots were fired. A
Police Services Dog (PSD) is tailed #or and arrived on scene, barking. Warnings were given that the PSD
will be released and suspect will be birten unless he complied +rith commands, Suspect started moving
toward officers; the PSD is released and bites the suspect on the arras that is on the side closest to the
gun in suspect's waistband_ The hand gun is then secured and suspect given first aid. San Diego Police
has launched an officer involved shootjng investigation and has notified the US Attorneys Office and the
F DI who w ill be reviewi ng t he i nvestigation. (I nfo rmati on take n from vide o a rid art -role i n t he Times of
an Diego, "Video Showers SD Police Warning, Shooting Mon with Gun of Down towry Storion", dated JuIV
g, 2020.)
It is clear from this video that the intervention of a PSD was the determining factor rn all parties
Wing able to survive this frightening and rapidly evolying situ atIon alive, The officers were hampered ire
firing on the suspect as the sally port was a concrete parking area with many vehicles; the risk of cross
fire and ricochet arras great, However, releasing the PSD to qu ckly apprehend the suspect and prevent
suspect from using the guru he had in his possession endangered no one's life in this situation Indeed, al.l
officer and the suspect are alive because of the appropriate release of the PSI).
The use of force by p o I ice has been dominating the news recently.r the most notable case is, of
course, George Floyd's death while in the custody of Minneapolis police officers. The videos that
surfaced quickly after M f. Floyd's death are extremeIy disturbing and the public outrage in response has
swept the nation_ Politicians have also mowed sw1ftly, calling for wholesaIe change in Poll iCirig, Whiie the
need for change is warranted for at least Minneapolis bother responsible law enforcement agencies
should always be reviewing policies and behavior to continually improve), it is critical that any legislative
or poll icy changes are carefully thought out prior to implementation, so as to address the legitimate
concerns raised in recent days, but do not further endanger Iives, both civiIian end police.
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Elmobeth Norton LegQ1 Cor+5Oont
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s Attorney General Xavier 8ocerra recently rat out a press release which stated he i
me nds to p rem ulgate n evw reco m m e nded po licde!s fo r poll icing. 0 ne of the a real h e i me nds to add ress is the
deployment of police serv1ce dogs (PS Ds)_ it i, imperative that we, as an industry a as 1nd1v1duaI ha
rid Iers and trainers, get out in front of th-i move m8nt and demonstrate that each and ever+ PSD
deployment is thoughtful and appropriate to the situation at hand and are lawful under the law that exists
and applies. T
he U n ite d States S u p re m e Co u rt a d d ressed th a excessive u sc! of fo rce f i rst i n Tennessee v, o-
mer (1985) 471 US, 1. In Gorner, the Supreme Court said, "To determine the constitutionality of a seizure '[
ire] must balance the nature and quality of the intrusion on the individual's Pourth Amendment
interests against the importance of the governmental interests alleged to justify the intrusion.'
United States v. Ploce J1983j 452 V-S. 696, 703; see Delowore v, f rouse (1979) 440 U.S. 648, 6S4i
United States v- Martin ez-Fuerte (1970) 428 U,S. 543, 555_ The Court thus Feld the foIlow 1ng w h 1 c h forms th
a ba si s fo r the stand a rd today; 'Thus, if the su spect th re ate n s the off i cer remit h a wea po n o r there i
s pro ba hale c.a use to bed ieve that h e h a s comm itted a crime i nwalvi n,g the inflict i on o r t hreate ne d infliction of
serious physical harm, deadly force Maybe used 'if Aecessa ry to prevent escape, and if, wh a
re foas i ble, so me wa rni ng has bee n give n _" 6arner, s upr-o, at 12 _ hrloving to
the concept of PSD deployment as a use Of force, no case has yet held that use of a P 5D
is ua of dea d ly force. See Rob rietre v. Burnes (1988 } 85 4 F,2 n d 909, 912, whe re co u rt held that t he u
5e of a p ro p e rly trai nod poll i ce dog to a ppreh a rid a felo ny su spect does net ca rry with it a substantial risk of
causing death or serious bodily harm;` and Cruz u. City of Escandido [lei Or. 1997} 139 F.3d
659, 6 63, whe re the co u rt cork lude d t hat t he use of po lice d og5 tra i n ed in the "bite and ha I d" tech n ique
genera I ly do es nut co n stit ute d ead ly fo reel a bse nt so me demo nst rat is n by th a pla i ntiff "that properly trained police
Clogs are reasonably capable of cawsi rig death_" (Overruled on other grounds in Smith v. Helmet (
9th C1r,2005) 394 F.3d .686}. Howeve r, t
he courts h ave re se rued th at posy i bi I ity. " Wh i I e we h ave not i n any of c u r p riot Ca sles fo u n
d t hat the use of po I i ce dogs ce nst i tute d de a d ly fo rce, we have neve r stated that the use of such d ogs ea
n net cc nstitute s uch f orce.." Smith v. Hem et (9th Cir1005) 394 F.3 d 68 5, 707. -[Wje I ea ve o pe n th a que
stio n o f wh et her the use of a pal i ce dog co u Id coast itute dea d ly fo roe i n of her c ircu rn sta nces,'O Thomson v. Salt
t-oke County (loth Cir. 2005) 584 F.3d 1304, 1315, But see Robinette V, Barnes (1988) 854 F.2nd
909, 912, where court Feld that frthe use of a properly trained police d g to apprehend a feJony suspect does
not carry with it a "stjbstantial risk of causing death or Serious bodNy harm-' " and Cr uz v.
City{ of E sco ndidc (9' C Ir. 1997) 139 F , 3 d. 65 9, 663, where the N i nth C i rc u It co nil ude d t hat t he use of pod
ice dogs trained in the "Mite and hold" technique generally does not constitute deadly forcer absent some demonstration
by the plaintiff "that properly+ trained police dogs are reasonably capable of causing death.'I
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sure through adequate and consistent training thaat the PSD +rill quickly and efficientily release the
suspect upon command (as well as being trained in physically " outi ne the PSD if necessary). For
example, Meyer's K9 Training teaches that a PSD should be recalled as soon as the subjcnct complies, is
subdued or actually surrenders. If that situation changes (subject stops complying or is no longer
subdued), the PSD may be deployed again if the sit uabon again meets the Graham criteria set forth
above.
The discussion of the use of PSDs in apprehension work also debates the policy of bite and hold
PSDs v. bark a n b #gold (or circle and bark) policy- Most PSDs working now have been trained under the
bite a nd h old pol icy, -In wh ich the PSD locates a n d bites the suspect u nti I the PSD is released by h is
ha nd le r_ Th a ba rk and hold pol i cy ha s bee n desc ribed as locat i ng t he s as gect, then ba rki ng a nd/o r
circling to hold the suspect in place and only biting when the suspect makes a more to attack or flea_
Th is tech n iq ue ha s be e n wide by c ri ticized by t ra i ners a n d ha n d Tors a s ereat i n g a situ ati on where t he PS D
is in greater danger of the suspect to attack the PSD. It is also criticized as basIca Ily substituting the PSDs di-
scretao n for th e h a ndile r's d iscretio n; tha t is, th a PSD o n I y b ites if th e P SD cor rectly i riter q rets the be
ha vio r of t he s u 5 pect to be a behavi or of fl ee i ng o r atta cking. This is a goa I that is a MOW ng to rge t- i t req
u i res th at the su spect behave in a specifi c fa shio n fo r t he PSD to rea ct a p p ropriately. La wr e
nfe rce rnent wi l I argue that every contact w ith a v iolent s us pest is ova rn plete by d i fferent a n d co m plete ly unpredictable
from any that have come before or follow, Neither the bite and hold polio, or the bark and
hold polio, has been found to be unconstitutional as a matter of lave. In fact, in Robinette v. Bames 6t'
Cir. 1988) 854 F_2d 909, the appeIlate court upheld the lover court's ru11ng that ,'the use of a p
ro pe rly trai n ed pol i ce dog to a ppreh e n d a felo ny 5uspe ct d o es n of carry with it a `su bstant i al ri sk of causing
death or serious bodily harm."" Robinette, .5upre, at 912_ This was a case in which the PSD bit the neck
of the h id i ng fe Io n ca us i ng death. P
rope r i mplementation of PSDs in t he fie I d can be d o n e and Is d a n e e n a da i ly ba s15 across the U
nited States and other nafion5, It.5hould be acknowledged that P5Ds are the one less-thyan-lethal tool possessed
by t h a police that can be 1) recalled once deployed and 2) cannot be used against its handler sho
u I d t he s u s peet obta in contra I of th a PSD, I n a dditien, just the prese nce of a PSD a n d10 r the sou rid of a
PSD ha rk i ng a re ofte n the fa cto r th at pe rs ua d es the su s pest to surre nder or a t I ea st fa l low, Instructio n s by
law enforcement, deescelating the siWation without any use of pi yOcal force, In fact, many handlers indicate
that just the presence of a PSD such that a suspect is aware of its presence has a de-escalation effect
o n up to 95 pe rcent of th e i r cases, Wh it a as a p ro secu for I sawn fe e r cases i nvo I vi ng PSDs ( not every
case -an officer is involved in i s se nt to the prosecutor's office), I personally never had one that involved
a bite, but ha d seve ra M where the barking presence of a PSD changed t h a suspect" s behavio r fro
threatening and defiant to immediately cooperative. This is obviously the goal of good police work; obtaining
corn pIiance by volLrntary action on the part of the suspect, rather than having to use force of any
kind. P50s are invaIuable tools that should no# be taken from law enforeernent., instead, efforts Meyer'
s Police -9 Ti-diningP.
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0 Meyer's PoFce K9 Training
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should be made to train handler_5 about the rules governing deployment so that a handler Cary make an
appropriate choice in the field that will save lives, net take them.
The author of this paper is A4, Elizabeth Nartan, a recently retired Supervising Deputy District
Attorney with over 26 gears of experience. This paper contains the opinio 5 of M, Ef imbeth Norton and is
no t in tended as legal odvrce. f d-O n at Wresen t ar)y police agency and do n at in tern d far airs paper to be
legal advice_ Paine agencies must oiways confer with their retained or oppoinred counsel for legal
advice-)
Meyer's PoIlQe -9 Training
P.O. Box 6277
Chico, CA 95927