TAKING THE BITE OUT OF K9 LITIGATION CRITICAL INFORMATION FOR REDUCING RISK A Q&A with Lexipol s Bruce Praet

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1 TAKING THE BITE OUT OF K9 LITIGATION CRITICAL INFORMATION FOR REDUCING RISK A Q&A with Lexipol s Bruce Praet

INTRODUCTION The use of police K9s remains one of the most litigated areas in law enforcement so much so that some agencies have chosen to disband K9 programs out of fear of lawsuits and personnel

2 INTRODUCTION The use of police K9s remains one of the most litigated areas in law enforcement so much so that some agencies have chosen to disband K9 programs out of fear of lawsuits and personnel costs. But a well-run K9 program is an invaluable asset, enhancing the agency s ability to track and find lost or endangered atrisk persons; locate illegal drugs, explosives or other contraband; maximize efficiency of resources; and apprehend suspects. All of this keeps officers and the community safer. Although agencies operating K9 programs will face legal challenges, much of the litigation risk can be minimized through proper training, policy and community outreach. In this Q&A with Lexipol co-founder and attorney Bruce Praet, we explore the following topics: Certifications & Training Post-Contact Interviews & Reporting Handler Compensation Public Perception & Support Policy Considerations ABOUT THE AUTHOR Bruce Praet is a co-founder of Lexipol and a partner with Ferguson, Praet & Sherman, a law firm that specializes in defending police in civil matters such as shootings, dog bites and pursuits, while representing management in personnel matters. Bruce started his law enforcement career as an officer in Orange County, Calif., in 1973 and held a variety of positions, including K9 handler. After finishing law school, he served an Assistant General Counsel to the Los Angeles Police Protective League and an Assistant City Attorney for the City of Orange, exclusively handling police litigation.

3 CERTIFICATIONS & TRAINING How should K9s be certified? Is there benefit to achieving more than one certification? Do national or state certifications carry more weight than those issued by private vendors? If your state has established K9 standards such as those in California, Oregon and Utah it s best to certify annually through the state or your state s peace officer standards and training division or equivalent. If your state does not have standards, I recommend pursuing certification through a national organization such as the National Police Canine Association or the United States Police Canine Association. Certification by a private vendor is not negative, but it leaves you open to the charge of bias by plaintiff s attorneys, who may be quick to point out the vendor has a monetary interest in the dog. Choosing a nationally recognized organization will provide better credibility. However, anything is better than nothing. Even working with neighboring agencies to test each other s dogs annually would provide some level of independent evaluation. If you have available funds, pursuing more than one certification certainly bolsters the dog s resume, which can prove valuable in court. Another option is to participate in competitions to demonstrate your dog s abilities in special disciplines. Juries are always impressed by Top Dog awards.

4 What should be included in the K9 training documentation to help reduce liability? Following several years of surveying in California, I ve concluded that 16 hours of documented training per month is the minimum for maintaining a single-discipline dog. If your dog is cross-trained, you ll need an extra 8 hours per month for each additional discipline. If you can afford more, that s great, but you do have to balance it against the value you re getting from the program. K9 handlers frequently ask for more training, but at some point we need to get them on the street to do their jobs. Whatever you re able to achieve, the bottom line is that your dog s training will likely only be at issue (1) in detection work if your alert is called into question or (2) if your dog bites the wrong person (something you should settle quickly and cheaply). A good bite (i.e., of a bad guy) rarely raises issues of training. Note that training documentation should be limited to Pass/Fail and not scored scoring is for competitions. Obviously, any dog not passing standards should be kept out of the field until they pass. Do you recommend using vendors or in-house training? Whether to use in-house trainers or an outside vendor depends on your budget and availability of qualified trainers. If you have in-house trainers who are qualified, using them is undoubtedly cheaper and likely more convenient. While an outside vendor may provide more objectivity, they still have a monetary interest in the training that can affect their evaluation. Either way, the key is to train on and certify to your state s peace officer standards and training division standards, or other state or national guidelines.

5 POST-CONTACT INTERVIEWS & REPORTING What are some questions we should ask a suspect following a K9 contact? Should these interviews be conducted by the K9 supervisor? The best interviews are recorded and ask a lot of questions, including: Did you hear the announcements? Why didn t you comply? Did you really think you could outrun/beat a police dog? Basically, ask as much as you can and marry the responses on video or at least audio recording to the suspect s story. Questioning of this type can quickly reveal when the subject is lying or fabricating details, which can be useful for later impeachment. Having the K9 supervisor, when available, conduct the post-contact interview is best because (1) it removes any adversity or taint from the handler whose dog just bit the suspect, and (2) hopefully, the K9 supervisor is familiar with K9 issues.

What are some considerations for post-contact reporting? The most important consideration is to ensure your report is labeled a K9 Use Report rather than a Bite Report.

6 What are some considerations for post-contact reporting? The most important consideration is to ensure your report is labeled a K9 Use Report rather than a Bite Report. In reality, the purpose of your form is likely to justify the program to your governing body how many personnel hours you saved, how much contraband you seized, how many arrests you made with the help of the K9s. Separating K9 bites in reporting makes it very easy for attorneys to put in a request for all bite reports and use the data to skew a jury s perception of the program. So, keep use reports and include only the information you need. If you re borrowing another agency s form, ensure that it doesn t have extraneous fields that you don t really need. Most important, don t critique or second-guess your handler on any of these forms.

7 HANDLER COMPENSATION Does an agency have to pay a K9 handler off-duty pay for grooming/feeding on the days the handler is working? Does giving the handler time off with pay qualify? You must compensate K9 handlers for the off-duty time spent caring for the dog. You don t have to pay the handler s usual wage; you can negotiate a lower rate. Generally, compensating a handler for 30 minutes a day, every day, is a safe bet. Anything less than that and you re in danger of violating the Fair Labor Standards Act (FLSA). This is a key area to protect your agency from liability. Disgruntled former handlers can come after your agency for monetary damages plus attorney s fees. And that could spell the end of your program. As far as how you compensate handlers, there are different approaches, including: Require handlers to work 37.5 hours per week, which leaves 30 minutes per day allocated for K9 care Compensate the handler for 43.5 hours per week, which covers their 40-hour week with extra time allocated for K9 care As long as you meet the 40-hour work week, it doesn t matter how you get there. The key is clearly documenting the parameters in policy or in a Memorandum of Understanding so personnel grievances are minimized and your agency is protected against FLSA-related litigation. Budgets are tight, but FLSA lawsuits are way more expensive and so easily avoided.

Does FLSA require the department to pay for travel time to and from work? If the officer starts the shift from their residence, they re on the clock and therefore the payroll.

8 Does FLSA require the department to pay for travel time to and from work? If the officer starts the shift from their residence, they re on the clock and therefore the payroll. However, if they re simply commuting in a K9 unit, no FLSA compensation is required. Is training included in FLSA time and if so, can we require handlers to document the amount used? Yes, training is included under FLSA. Of course, the dilemma here is that we encourage more and more training, but the more training we require, the more we ll be paying for it. It s best to set a specific amount of required training (e.g., 16 hours documented per month) and then not require any more. Activities handlers do on their own e.g., personal competitions are fine, but make clear these are for personal satisfaction and NOT required, and therefore not compensated.

9 PUBLIC PERCEPTION & SUPPORT What are some ways to positively affect how the public views K9s? I strongly recommend every K9 unit do public demonstrations, for Kiwanis, your local Rotary group, schools, etc. Many public demonstrations focus on the dog s ability to apprehend a suspect. This means the bite is often the climax of the presentation so everyone in the audience will leave with the image of a set of teeth with four legs attached (not a bad thing if you re speaking to an audience of crooks!). And where is your jury going to come from when your K9 deployment is challenged? To combat this, after the apprehension, have your agitator/suspect socialize with the dog. Show the audience this is a highly trained animal who can turn aggression on and off. Contrary to popular belief, it s also a good strategy to bring the dog into court when possible it shows the jury this is not some snarling, vicious beast. If you can t bring the dog in, pictures are another good strategy to endear the dog to the jury. So it s a good idea to have some friendly photos on file possibly from a public demonstration showing kids interacting with the dog (to alleviate any privacy concerns, either blur their faces or take the photo at an angle where members of the public can t be identified). Finally, consider the dog s name. Many dogs are named by breeders, but you may need to rename the dog for your purposes. Stay away from aggressive names or even nicknames. One agency named its K9 Chewbacca, which naturally got shortened to Chewie not good. If you re bringing on a new K9, consider holding a public naming contest to select the name it can get the public excited about your new acquisition and build a positive image.

10 In addition to marking K9 patrol vehicles with warnings, should handlers wear specific uniforms? While most handlers wear some sort of identifying collar pin or patch, identifying handlers from other cops is usually easy because they re often attached to a dog. However, the most important aspect of distinguishing the handler is to make sure non-k9 officers (especially from other agencies) have no doubt as to who is in charge of the dog application. My department has detection dogs but is reluctant to use K9s for patrol. How can I help the administration understand the value patrol K9s provide? I d take a two-fold approach. First, start keeping detailed statistics that show the effectiveness of your detection dogs and how that value can be extrapolated to a patrol setting. If neighboring agencies use patrol K9s, ask whether you can get statistics from them, such as the number of personnel hours saved on searches and other activities and arrests attributable to K9s. Although administrators worry about increased liability, a review of litigation should reveal very few adverse verdicts for good bites. It doesn t have to be all data, either. An anecdote describing how a criminal suspect reacted to a K9 deployment can go a long way to convince administrators and governing bodies of the value. I recall our burglary rate going down for weeks after my dog bit a crook who subsequently spread the word in jail to stay out of our city. Second, see the strategies on the previous page for building public support for K9s. Administrators listen to public demands and opinions. Conduct public demonstrations for the influential folks and encourage supporters of your program to make their opinions known to your administrators.

POLICY CONSIDERATIONS What is a common mistake you see in agency K9 policies? The most common mistake is making your policy unnecessarily restrictive.

11 POLICY CONSIDERATIONS What is a common mistake you see in agency K9 policies? The most common mistake is making your policy unnecessarily restrictive. Your policy shouldn t limit the use of the K9 to felony suspects. For example, you may not want to use a dog on a felony check suspect, but you might want to send them for a misdemeanor brandishing or resisting arrest. It s the nature of the suspected offense and not the legislative classification that matters. Also, don t dictate a specific age the suspect must be to deploy the dog. Age should obviously be a consideration in whether to send a dog on an off-lead search. But don t limit yourself; I ve seen plenty of 17-year-olds who were quite dangerous. Should policy dictate when handlers go on lead and circumstances when the dog goes off lead? In Lexipol policy, we rarely mandate conditions, but we do recommend on-lead searches in non-apprehension situations such as searching for lost children or elderly patients. Naturally, the handler should know their dog and whether a situation would be best done on lead.

12 Why can a supervisor order the dog not to be deployed, but the decision to deploy is ultimately up to the handler? With all due respect, I ve seen too many supervisors who try to order K9s into suicide missions or who have some ignorance or bias with respect to the dogs. Thus, while I firmly believe that a supervisor should be able to order a handler NOT to send the dog, only the handler knows if his/her dog is suited for an application. Is there anything specific that should be added to K9 policies if an agency uses body-worn cameras (BWCs)? Footage captured by BWCs during a K9 apprehension is rarely pretty just like footage captured from TASER cams and BWCs during officer-involved shootings or other uses of force. However, video of the K9 warnings and announcements, as well as the suspect s actions precipitating the application of the dog, can prove invaluable in court. The key, however, is a solid and timely release of the bite to avoid any impression that you allowed the suspect to serve as a chew toy for your dog. If your policies are well-written, your BWC policy generally will not need elements specific to use of canines, and your canine policy won t need elements specific to use of BWCs. However, a state could impose specific restrictions on use of canines and BWCs, which would need to be incorporated into your policy. Lexipol s Legal and Content Development teams monitor for such changes and issue state-specific policy updates to our customers when needed.

13 ABOUT LEXIPOL Lexipol provides comprehensive, continuously updated policies and related training for more than 3,200 law enforcement agencies, fire departments and corrections facilities in 35 states. With more than 2,075 years of combined public safety experience, our staff creates policy solutions that help public safety leaders reduce risk and keep their personnel safe by improving policy access, understanding and compliance. CONTACT US TODAY FOR A FREE DEMO info@lexipol.com

318.1 PURPOSE AND SCOPE

Policy 318 Anaheim Police Department 318.1 PURPOSE AND SCOPE The was established to augment police services to the community. Highly skilled and trained teams of handlers and canines have evolved from