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Police Dog Bite Cases and Expert Witnesses, Cook, 2010

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POLICE DOG BITE CASES AND EXPERT WITNESSES
by Donald W. Cook
I. WHY YOU NEED A POLICE DOG EXPERT IN POLICE DOG BITE CASES.
Victims of police dog attacks are usually unsympathetic. Generally, they are persons of
color, guilty of some offense, and suffer from disabilities including illiteracy, mental illness or drug
or alcohol dependency. Most police dog bite victims are suspects in property crimes such as auto
theft or burglary who try to hide or escape from the police, so the police perceive the victims as
having defied official authority by attempting to avoid police contact. Furthermore, juries (and
judges) are easy prey for the police-inspired myth that letting a police dog attack reduces the
probability of injury to the officer or innocent persons while supposedly enabling the police to
capture suspects who might have escaped but for the dog attack. The police are also very careful to
obscure the reality of dog attacks bysuch euphemistic and misleading terms as the dog “apprehended
the suspect” or “placed a bite-hold.” Thus, given our long history of vigilante justice, juries are
susceptible to the claim that the victim “got what he deserved.” Jerome H. Skolnick, James J. Fyfe,
Above the Law, Police and the Excessive Use of Force 24-29 (1993).
Overcoming these obstacles is not easy. Through a good expert, you can demonstrate the
violence of a dog attack, expose the fallacy that police dog attacks promote officer safety, educate
uninformed lay people on the reality of police work and the ease with which the police, when they
do not use dogs to attack, arrest suspects without significant risk of injury to officers or others.
While a police practices expert competent in police use of force principles and tactics may
suffice in some cases, usually it is best if your expert is a former police dog handler and/or trainer.
II. WHAT YOUR EXPERT SHOULD COVER.
Your expert should address the following:
A. Police standards on the use of force and their application to police dogs. A clear
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understanding of these rules will assist you in convincing the court to let you cover Issues
II(B) through (D) while demonstrating that the defendant and his department fail to abide by
the most basic rules applicable to all police officers. Reference materials that your expert
can safely rely upon for accepted standards for police use of force are:
(1) Kevin Parsons, Ph.D, Decision to Use Force: The Confrontational Continuum 1;
(2) Joseph Callanan, Use of Force After The Rodney King Incident2;
(Dr. Parsons and Mr. Callanan are well-known defense experts)
(3) California's Commission on Peace Officer Standards and Training (“POST”),
Unit Guide No. 26, Legal Aspects of Force, Handout #5, pp. 1, 5, 7.3
B. The selection and training of police dogs to bite and how the dogs attack and bite. The
dogs are large dogs, selected for their aggressiveness and willingness to attack and bite. The
objective is an aggressive dog that will attack and bite with a full mouth bite, to rebite should
the person free him- or herself from the bite, and to attack and bite as hard and as long as the
dog can bite, anywhere on the body, including vital areas.
(1) Police videotapes that depict police dog training and bite work should be used.
Police officers are taught to and rely upon sanitized and grossly misleading terms to
describe attacks by their dogs. A videotape is, in the words of one defense expert,
worth a million words. A good tape to use is Police Dogs, Canine Aggression &
Basics of Bite Work by Canine Training Systems (Action Video Editing, Inc., P.O.
Box 12125, Seattle, Washington 98102, 206-720-6160). Watching the dogs attack
1

Reprinted in 8 CIVIL RIGHTS LITIGATION AND ATTORNEY FEES ANNUAL HANDBOOK 115-29
(1992). See Appendix A.
2

THE TACTICAL EDGE 17 (Fall 1992). See Appendix B.

3

See Appendix C. The full unit guide is available free of charge from the Commission.
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the agitators and decoys reveals the violence behind the police dog that “grabbed
ahold” of your client.
C. Injuries police dogs inflict. As Parsons and Callanan explain, force options are justified
and classified based upon the probable injuries one can expect. Police dogs inflict far more
serious injuries than comparable dogs. With the exception of the firearm, police dogs are
more likely to cause serious injury than any other police weapon. Your expert should
describe the injuries to be expected (deep puncture wounds, lacerations, missing flesh and
muscle tissue, disfiguring scars, mutilations, etc.). The expert should also be prepared with
the relevant statistics reflecting the severity of injuries inflicted by police dogs.
(1) Hospitalization rates. Conventional dogs cause in-patient hospitalization in 2%
or less of all persons bitten. 4 Police dogs result in persons being hospitalized at rates
of 15 to 50% of all persons bitten.5
(a) If you can obtain the bite reports of the handler or department you client
has sued, your expert may be able to determine the hospitalization rate for
your particular dog handler or department.
(2) Comparative injuries sustained by persons injured by police dogs versus baton
strikes. Police agencies and their apologists justify police dogs attacks by claiming
that a police dog is less likely to cause injury, including serious injury, than police
baton strikes. There is no support for this proposition and all evidence is to the

4

See K. Snyder & M. Pentecost, Clinical and Angiographic Findings in Extremity Arterial
Injuries Secondary to Dog Bites, ANNALS EMERGENCY MED., Sept. 1990, at 983. See Appendix D.
5

The hospitalization rates for dog handlers is based upon deposition testimony of various police
dog handlers and trainers, including Inglewood Sgt. John Bell, the expert most frequently used by
police agencies.
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contrary.
(a) Persons struck by police baton strikes require hospitalization in no more
than 5.8% of all persons struck. G. Meyer, Nonlethal Weapons versus
Conventional Police Tactics:

The Los Angeles Police Department

Experience (March 1991)6 ;
(b) Persons struck by batons rarely sustain permanent injuries -- there is no
scarring, disfigurement or mutilation from baton strikes;
(c) Officers are trained to deliver baton strikes so as to minimize the risk of
injury by avoiding vital areas (head, neck, across the spine, groin, etc.) and
directing blows to distal portions of extremities, thereby reducingprobability
of fractures or significant tissue damage.
(3) Police officers consider a dog a deadly weapon if used to attack an officer. As
Sheriff Block recently testified:
Q: . . . If someone ordered a dog, a large dog, a dog
that's trained to bite hard, to attack you as you were
engaged in your lawful duties, would you believe that
you had probable cause to arrest that person for
assault with a deadly weapon on a police officer?
. . .
The witness: If a person ordered a dog to attack, I
would -- I would say yes. If -- you know -- unless you

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Lieutenant Meyer conducted the study using LAPD data in support of his Masters thesis.
Copies of the study are available at some college bookstores and from Greg Meyer, P.O. Box 8110,
Bellflower, California 90706 (800-453-5518).
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had a chihuahua or something.
(8/6/93 Deposition of Sherman Block, 71:21-25, 72:810)
D. Officer safety and police dogs. Contrary to what juries and judges want to believe, letting
a dog attack a suspect does NOT enhance officer safety; instead, such a tactic increases the
probability that an officer or civilian will be needlessly injured.
(1) Dogs are not human nor are they Rin-Tin-Tin. Dogs cannot recognize weapons
nor do they know how or when to take cover. Dogs are easy victims for any person
with a knife or a gun.
(2) If a person is armed, letting the dog attack the person increases the likelihood that
the person will use the weapon if only to defend himself from the dog. This places
the dog handler, who is usually a few feet away and without cover, in a “shoot/don't
shoot” situation -- exactly the opposite of what good police tactics teaches. If the
person is unarmed (as is almost always the case), the attack serves only to injure,
disfigure and mutilate the victim without serving any legitimate police objective.
(3)

When the dogs attack people, most persons try to defend themselves.

Oftentimes, this draws the handler into a confrontation with the suspect who is
beating on or kicking the dog that is attacking him.
(4) There are no studies to support the claim that police dogs, when allowed to attack
and bite, reduce the probability of injury to officers or others. Available statistics
suggest just the opposite:
(a) When dogs are not used, it is rare for suspects to injure police officers.
For example, in 1991, LAPD officers, while making 8,665 burglary arrests,

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were assaulted seven times, once with a firearm.7 Even the 8,681 arrests for
robbery -- a "crime of violence" -- resulted in only 18 assaults, 9 with
firearms.8
(b) When dogs are used, the frequency of injuries to officers goes up. John
Bell, the most frequently used defense expert in police dog bite cases, was
injured at a rate at least twelve times more frequent (because his dog attacked
and bit him instead of the suspect) than LAPD officers who made felony
arrests without the assistance of any dog.
(5) It is not uncommon for dogs to “miss their mark,” i.e., miss the suspect and
attack some civilian or police officer. West Covina police officer Gary Christensen
and Santa Ana police officer Dianna Lee are two classic examples. Officer
Christensen had his patrol career ended by a police dog attack whereas Officer Lee
was on off duty on injured status for over two years because of a police dog attack.
(6) Although they promote the myth before judges and juries that dogs are effective
against armed suspects, police dog handlers universally subscribe to the rule that you
do NOT send a dog in to bite an armed suspect because “if we let the dog go in to
make the apprehension [of an armed suspect], the likelihood of a dog getting hurt is
very great; the likelihood of an officer getting hurt is also very great . . .” (Lt. Gary
Nessin, supervisor, Riverside P.D. canine unit, 6/30/92 Deposition).

7

As

LAPD Statistical Digest 2.18 (1991) (LAPD Law Enforcement Officers Killed or Assaulted).

8

See note 7 supra. Only a small number of assaults result in actual injury to an officer. For
example, of the 150 assaults on LAPD officers with firearms in 1991, 6 resulted in personal injuries.
LAPD Statistical Digest at 2.18 (1991). Of the 1056 total assaults, 148 resulted in injuries to
officers. Id. In other words, out of 232,256 arrests by LAPD officers in 1991, at least 99.94% of the
arrests are accomplished without any injury to officers.
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acknowledged by one local police dog handler: “I had no intentions on just turning
my dog loose to search and locate Mr. D, since he was armed. That would have been
a waste of the dog.” (3/2/92 Deposition of Santa Monica dog handler Jeff Baker).
E. Nearly all suspects surrender when given the chance. Police dog handlers justify the
attack as if the suspect would not have surrendered had the dog not been used. Any police
officer with decent street experience knows that in nearly all instances, suspects surrender
when they know they police have found them and escape is no longer feasible. The expert
should rely upon the statistical fact that 99% of all suspects surrender when given the chance
without requiring any significant use of physical force. REPORT
COMMISSION

ON THE

OF THE INDEPENDENT

LOS ANGELES POLICE DEPARTMENT, at 36 (1991) ("Christopher

Commission Report").9
III. CASE LAW BOTH YOU AND YOUR EXPERT SHOULD BE FAMILIAR WITH:
Tennessee v. Garner, 471 U.S. 1, 85 L.Ed. 2d 1, 105 S.Ct. 1694 (1985): The Supreme Court
enunciatedthe constitutional rule for police use of deadly force: Only where the officer has probable
cause that the suspect poses an immediate threat of death or serious bodily injury may an officer
resort to deadly force. Moreover, warnings, if feasible, should be given before resorting to deadly
force.

Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991): In reversing the district court's granting of summary

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These statistics are directly admissible. Rule 803(8), Federal Rules of Evidence; Montiel v. City
of Los Angeles, 2 F.3d 335, 341-42 (9th Cir. 1993) (Ninth Circuit holds that the Christopher
Commission Report is presumptively trustworthy under F.R.E. Rule 803(8)); see Cal. Evid. Code
§ 1280, the state law counterpart to Rule 803(8). The statistics should also be admissible as a basis
for the expert's opinion that most suspects surrender when given the opportunity. Rule 703, Federal
Rules of Evidence; Cal. Evid. Code §§ 801(b), 802.
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judgment in favor of the dog handler, the Fourth Circuit observed that a “jury could find it
objectivelyunreasonable to require someone to put his hands up and calmly surrender while a police
dog bites his scrotum.” (Id., at 268.)

Kerr v. City of West Palm Beach, 875 F.2d 1546 (11th Cir. 1989): The Eleventh Circuit reinstated
the jury's verdict finding that the City of West Palm Beach maintained an unconstitutional policy in
its use of police dogs to attack and bite. The court also observed that persons attacked by the dogs
often suffered serious injuries becauseof the “bite and hold” training and natural tendencyof persons
to defend themselves from dog attacks. (Id., at 1550, 1556-57.)

Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988): The Sixth Circuit held that under the facts of the
case before it, the police dog, even though it killed the burglary suspect it attacked and bit, did not
constitute deadlyforce. Police departments recklessly rely upon this case to support their use of dogs
to attack and bite. In fact, the case hurts them because (1) the court of appeal held that the probable
injuries to be expected from police dogs must be considered in deciding if the dog was deadly force
(the Sixth Circuit relied upon the absence of any such evidence in the record before it in holding that
the dog attack was not likely to cause serious injury or death), and (2) a police dog that creates a
substantial risk of causing death or serious injury will be considered deadly force. (Id., at 912-13.)

Marley v. City of Allentown, 774 F. Supp. 343 (E.D. Penn. 1991), aff'd without opn., 961 F.2d 1567
(3rd Cir. 1992): The jury found that the officer used excessive force in letting his dog attack the
plaintiff. In denying the officer's JNOV motion the district court upheld the application of the
Garner rule to a police dog. (774 F. Supp. at 346.)

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Chew v. Gates, 744 F. Supp. 952 (C.D. Cal. 1990), appeal pending, Ninth Circuit No. 91-55718.
Judge Gadbois of the Central District held the City of Los Angeles canine policy constitutional and
dismissed individual supervisor defendants on summary judgment. The opinion is wrong in more
ways than space permits addressing; however, the case relies principally upon Robinette, a case that
actually cuts in plaintiffs' favor. One of Judge Gadbois' most glaring failures was his omission of
anydiscussion of the probability of police dogs causing serious injury. Interestingly, the dog handler
in Chew was held liable for damages following a jury trial. Chew was argued in the Ninth Circuit
in August, 1992 (Judges Norris, Trott, and Reinhardt) and a decision is expected any day.

People v. Nealis, 232 Cal. App. 3d Supp. 1, 283 Cal. Rptr. 376 (1991): Appellate Department, Los
Angeles Superior Court, affirmed defendant's conviction for assault with a deadly weapon when she
ordered her doberman pincher to attack. “A dog may be a deadly weapon if the person uses the dog
to attack or threaten a human, and the dog is trained to respond to the person and is capable of
inflicting serious injury.” (232 Cal. App. 3d Supp. at 3, 283 Cal. Rptr. at 378.)

THE MEDICAL STUDY EVERY ONE SHOULD READ: K. Snyder & M. Pentecost, Clinical and
AngiographicFindings in Extremity Arterial Injuries Secondary to Dog Bites, ANNALS E MERGENCY
MED., Sept. 1990, at 983 (Appendix D). Beneath the technical title is the remarkable study
performed by physicians at Los Angeles County-USC Medical Center in Los Angeles. The authors,
prompted by a startling increase in admissions of persons seriously injured by dogs, discovered that
the increase was due entirely to police dog attacks. The doctors found (1) “Dog-bite injuries are
unique in that there are both penetrating and blunt components”; and (2) The frequency of arterial
injury to extremities inflicted by police dog bites is comparable to the frequency of arterial injury to

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extremities inflicted by gunshot or knife. The doctors concluded that police dogs were more likely
to cause serious injury than comparabledogs lacking police dog training and warned their colleagues
of the danger of the “significant arterial damage that may require surgical repair.” Snyder &
Pentecost, supra, at 985, 986. So much for the Sixth Circuit's conclusion (in Robinette) that a police
dog bite to the extremity does not create a substantial risk of serious injury.

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