Recently, the Ninth Circuit Court of Appeals affirmed a jury award in favor of a man bitten by a police dog in the state of Washington. Ken Rogers was originally awarded $1 million in compensatory and punitive damages after being bitten by a Kennewick (Wash.) Police Department canine, but that amount was increased by more than $500,000 to cover Rogers attorney fees and costs related to the litigation. The facts of this case are unique, and it behooves training and street officers, as well as canine officers, to learn from this case.
At approximately 1:00 a.m. on July 13, 2003, a sergeant from the Kennewick Police Department attempted to stop a moped operated by a male driving without headlights or a helmet. After driving a short distance, the male drove the moped into the garage of a residence, and a female (who presumably resided there) closed the garage door.
The sergeant's efforts to locate the male driver were thwarted by the female and two males present when they stated that the moped operator, Troy, ran through the house, out the back door into the yard and climbed over the back fence. The sergeant told the three individuals that he was merely interested in issuing a traffic ticket and then he would be on his way. Undeterred, the three individuals stuck to their story.
Determined to locate the driver, the sergeant called for a bite-and-hold canine. He directed the canine officer and two other officers on scene to search for and apprehend Troy. According to the court record, the canine could detect scent only by air sniffing, not sniffing an object, such as the miniature motor scooter or the floor of the house or the grass of the backyard. While searching for the suspect, the canine reacted to the backyard of a nearby residence and was unleashed.
Ken Rogers, who was visiting his stepson, was asleep in the yard. According to Rogers, he was awakened when the dog attacked. He told the court that the canine officer gave no warning before releasing the dog. He also asserted that the canine officer, along with other officers from the City of Kennewick and a Benton County deputy sheriff, beat him with knees, fists and flashlights while the dog continued to bite him.
It was later determined that Troy, the suspect the officers had attempted to locate, was one of the two male individuals in the residence.
The Lawsuit & Jury Verdict
Rogers filed a civil rights lawsuit against the City of Kennewick and Benton County. He asserted that his constitutional rights under the Fourth Amendment were violated and that he was a victim of battery, false arrest and false imprisonment under Washington state law. The matter proceeded to trial in April 2007. According to Rogers, the canine bit him several times on the hand, back, neck and face while three officers beat him. Rogers stated that he fought back because he wasn t wearing his glasses and he thought he was being attacked by prowlers. Rogers, who is left-handed, claimed he suffered permanent nerve damage to his left hand, hearing loss in his right ear and mental anguish and anxiety. He also claimed that the attack aggravated a pre-existing back injury.
After deliberating for approximately 11 hours, the jury returned a verdict in favor of Rogers and his wife. The jury found the officers had violated his rights under the Fourth Amendment, but that his rights under Washington state law had not been violated. The jury awarded Rogers $777,000 in compensatory damages and his wife $25,000 in compensatory damages (for loss of consortium). The sergeant was assessed $200,000 in punitive damages, and the canine officer was assessed $50,000 in punitive damages. The other officers were not assessed punitive damages.
Post Trial Motions
After the trial, the police defendants filed a motion for a new trial on the grounds that the verdict was contrary to the clear weight of the evidence (among other things). The trial court denied the motion, and the defendants filed an appeal to the Ninth Circuit Court of Appeals. One of the main arguments presented by the defendants on appeal was that because Rogers was not the actual suspect being pursued, the canine s apprehension of Rogers could not constitute a seizure under the Fourth Amendment. The appellate court disagreed, relying on Supreme Court precedence, which states, a seizure occurs even when an unintended person or thing is the object of the detention or [under]taking, but the detention or taking itself must be willful.  In this case, because the officers intended to use the canine to apprehend a suspect and knew the dog would bite the suspect in its efforts to apprehend a suspect, the Fourth Amendment was implicated. A Fourth Amendment seizure occurs whenever there is a governmental termination of freedom of movement through means intentionally applied.  Thus, the jury verdict stands.
In determining whether a police officer s use of force is excessive, courts and juries must determine whether the force used by police officers was reasonable. The relevant factors for such an inquiry include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight. An additional factor considered by courts in the Ninth Circuit is the availability of alternative methods of capturing or subduing a suspect. 
In this case, Troy was wanted for traffic infractions and a misdemeanor violation for failing to stop when signaled by the police arguably very minor violations. There was no evidence that the suspect was armed or dangerous (but there was no evidence that he was not armed or dangerous either). The kicker in this case, though, is that there was little evidence that the fleeing violator actually existed. Apparently, the sergeant did not believe that the suspect had left the house into which he originally fled. Under these facts, the chance that a jury would find in favor of the police officers would be difficult at best.
1. Ken Rogers v. City of Kennewick et al., No. 07-35645 (9th Cir. Dec. 23, 2008).
2. The facts are taken from the trial court s order denying the police defendants motion for a new trial. Rogers v. City of Kennewick, No. CV-04-5028-EFS 2007 WL 2055038 (E.D. Wash., July 13, 2007).
3. Id.at *1.
4. Brower v. County of Inyo, 489 U.S. 593, 596 (1989).
5. Id. at 597.
6. Graham v. Connor, 490 U.S. 386, 396 (1989).
7. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005).
8. Rogers v. City of Kennewick, No. 05-35300 2006 WL 3147414 (9th Cir. Oct. 31, 2006).