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No doubt, canines remain a valuable asset for law enforcement. They sniff out drugs, conduct building searches and capture dangerous suspects. However, their use in the latter category carries some controversy (as does any other law enforcement tool) because in subduing their target, canines have sometimes caused serious injuries, and even death. This article will discuss whether the use of canines constitutes deadly force under the Fourth Amendment and, in so doing, will address a recent federal case from the Ninth Circuit that dealt with the use of canines.
Smith v. Hemet
Last year in Smith v. Hemet, the Ninth Circuit Court of Appeals issued an opinion that changed the landscape of Fourth Amendment jurisprudence within that circuit when it adopted a standard used by several other federal circuit courts. But before I discuss the legal ramifications of the decision, here's a brief outline of the facts.
Sometime in the evening of Aug. 16, 1999, Thomas Smith's wife made an emergency call to the Hemet (Calif.) Police Department to report she had been the victim of a domestic dispute with her husband. During the telephone call, she reported that Smith did not have a gun, there were no weapons in the house and he was clad only in his pajamas.
Several officers responded to the residence. At first, Smith stood on his front porch with his hands in his pockets. Smith refused to show his hands and entered his home. Smith reappeared, this time taking his hands out of his pockets, but he refused the officers' commands to turn around and place his hands on his head.
An officer requested that a canine officer respond to the scene. After arriving, the canine officer also ordered Smith to turn around and place his hands on his head. Smith shouted expletives and again refused the order despite being informed that a canine would be sent to subdue him and might bite him. Shortly thereafter, Smith clenched his fists and made a furtive move toward the canine officer. The canine officer pepper-sprayed Smith and, with the assistance of the other officers, pushed Smith against a wall and took him down to the ground.
Smith continued to struggle and resist the officers' efforts to subdue him. He was warned that the canine would be released if he did not stop resisting them. The canine officer released the dog, which bit Smith on the right shoulder and neck area. Smith stopped resisting for a short time but then started fighting again. The dog was released again and bit Smith a second time, this time in the buttock.
Smith was eventually subdued and taken into custody. An officer rinsed out Smith's eyes with water from a nearby hose to lessen the effects of the pepper spray. Paramedics arrived shortly thereafter and attended to Smith's minor injuries.
The Civil-Rights Lawsuit
Smith pled guilty to obstruction and spousal battery. Nonetheless, he filed a civil rights lawsuit under 42 U.S.C. 1983 alleging the officers violated the Fourth Amendment when they used excessive force by spraying him with pepper spray and subduing him with a police canine. The police officers and the City of Hemet filed a motion for summary judgment on several grounds, one of which was that the challenged use of force the pepper spray and the police dog was reasonable under the circumstances. The district court granted the defendants' motion for summary judgment, and Smith filed an appeal.
Addressing the use of the canine on appeal, the Ninth Circuit reiterated the "reasonableness" standard used under the Fourth Amendment. That is, whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them. The reasonableness inquiry includes 1) the severity of the crime at issue; 2) whether the suspect poses an immediate threat to the safety of the officers or others; and 3) whether he is actively resisting arrest or attempting to evade arrest by flight. The Ninth Circuit also correctly noted that because the test of reasonableness under the Fourth Amendment cannot be precisely defined or mechanically applied, the reasonableness of a seizure must instead be assessed by carefully considering the objective facts and circumstances that confronted the arresting officers.
In this case, after applying the Graham v. Connor factors to the specific facts, the Ninth Circuit found that whether the officers used excessive force could not be resolved on a motion for summary judgment. Instead, it found the matter had to be resolved by a jury. Therefore, it reversed the district court's granting of summary judgment in favor of the defendant police officers and remanded the matter back to the district court.
But, the matter did not die there. Smith alleged the use of the canine not only constituted excessive force, but also deadly force. In addressing the issue of deadly force, the Ninth Circuit noted that the United States Supreme Court did not explicitly define in the seminal opinion of Tennessee v. Garner what constitutes deadly force, but instead held that police officers may not use deadly force "unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."
Significantly, the Ninth Circuit adopted the definition of deadly force used by several circuit courts and the police in all 50 states, the District of Columbia and Puerto Rico: Force that creates a substantial risk of causing death or serious bodily injury. However, the Ninth Circuit refused to determine whether the use of a police dog to subdue a suspect constitutes deadly force generally or the circumstances under which such use might constitute such force.
Because the court failed to address this important matter, the defendant police officers appealed the matter to the United States Supreme Court. However, this past summer, the Supreme Court decided not to review the case. Thus, the ruling in the Ninth Circuit stands.
As a result, we still do not have any clear opinion as to whether canines constitute deadly force. That said, the Sixth Circuit Court of Appeals has stated in an opinion involving a death of a criminal suspect after being subdued by a police canine that "an officer's intent in using a police dog, or the use of an improperly trained dog, could transform the use of the dog into deadly force," although the court failed to find that the police dog in that case constituted deadly force. On the other hand, the Eighth Circuit Court of Appeals has clearly stated, "The use of a properly trained police dog in the course of apprehending a suspect does not constitute deadly force."
The lack of a clear opinion on whether the use of canines constitutes deadly force is not surprising given the courts have also not rendered any opinion clearly stating other valuable law enforcement tools e.g., pepper spray, electrical devices and batons constitute deadly force per se. Thus, the same rule used for other law enforcement tools applies to the use of canines: train, train, train, and articulate, articulate, articulate. That is, officers can never receive too much training, and they must learn to carefully articulate the reason(s) they used canines when apprehending a suspect, whether it's to their supervisors, in a police report or while sitting in a witness chair in front of a jury. With proper training and practice articulating, officers can better defend their actions in a court of public scrutiny or in a court of law.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. Smith v. Hemet, 394 F.3d 689 (9th Cir. 2005).
2. Graham v. Connor, 490 U.S. 386, 396 (1989).
5. 471 U.S. 1 (1985).
6. Smith, 394 at 705-06.
7. Robinette v. Barnes, 854 F.2d 909, 913 (6th Cir. 1988).
8. Kuha v. City of Minnetonka, 365 F.3d 590, 598 n.3 (8th Cir. 2004).
What's Your Circuit?
To determine what circuit covers your police agency, view the map at www.uscourts.gov/courtlinks.