How to Defend Yourself Against Police Dog Misuse Claims

Criminal suspects who believe their constitutional rights were violated during their arrest may file federal lawsuits hold police officers liable for any injuries they incur. When police officers use police dogs, these excessive force lawsuits may allege police dog misuse. Your strongest option to defend yourself against police dog misuse claims is to assert qualified immunity, which generally shields police officers from lawsuits while they are acting under color of law. Even if a court rules qualified immunity does not apply, you still can defend yourself by arguing that your actions were reasonable under the circumstances.^{[1]XResearch source}^{[2]XResearch source}

Part 1

Part 1 of 3:

Answering the Complaint

1
Receive a complaint and summons. If someone sues you for employing excessive force in your use of a police dog to apprehend a suspect, they must file a complaint in federal court. The complaint lists the allegations, while the summons tells you when and where to respond to the lawsuit.
- These documents should be served on you using an official method prescribed by the federal rules of civil procedure. Typically this means they will be hand-delivered to you by a U.S. Marshal.
- If you are a police officer who is being sued in your individual capacity, you should be named in the lawsuit as a defendant. Keep in mind there may be other defendants.
- You also should pay attention to the date of the alleged incident giving rise to the claim. There is a statute of limitations that governs the amount of time plaintiffs have to file a lawsuit after the incident occurs – if it happened long ago, this is something to bring to your attorney's attention.
2
Consult an attorney. In an excessive force case based on a claim of police dog misuse, it's likely the plaintiff has an attorney. Hiring an attorney to represent you and assist in your defense is critical to maintaining your reputation as a law enforcement officer.^{[3]XResearch source}
- Before you hire a private attorney yourself, speak with someone at your police department or police union about obtaining counsel. Law enforcement departments and unions typically have attorneys and other legal resources available at no cost to officers who are sued for incidents that took place while they were on the job.
- However, keep in mind that depending on the incidents alleged in the complaint, your job could be on the line and you may want to hire private counsel to represent you as well.
- Even though attorneys hired by the department or union may be representing you, they are paid by and often also consider the best interests of the department and city administration.
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3
Gather information. Before he or she responds to the lawsuit, your attorney likely will need to know some basic information regarding the incident that gave rise to the lawsuit, as well as information about you and your training as an officer and police dog handler.^{[4]XResearch source}
- Be prepared to work with your police precinct to pull police reports and dispatch recordings of the incident that led to the police dog misuse claim.
- Your attorney also likely will want information on the training provided to police dogs and their handlers, as well as basic information about you and your police dog and how long you've been working together.
4
File a response. Depending on the contents of the complaint and the information you've provided to your attorney regarding the plaintiff's allegations, your attorney may file a motion to dismiss, an answer to the complaint, or both.^{[5]XResearch source}
- Generally, which responses your attorney decides to file and when is a matter of litigation strategy. #*A standard motion to dismiss in police dog misuse cases asserts that you cannot be sued because you have qualified immunity from suit. However, there may be other reasons to have the suit dismissed.
- Since some of the reasons to dismiss a lawsuit may not preclude the plaintiff filing another lawsuit correcting the error, your attorney may waive those issues rather than attempting to litigate them.
- For example, the complaint may have named the wrong officers, or may not have named the officers involved. Since you cannot be held liable unless you were personally involved in the plaintiff's arrest, you can have a lawsuit dismissed for failure to specifically name the appropriate officers.
- However, such a dismissal would not prevent the plaintiff from determining which officers to name and filing the lawsuit again with the correct defendants.
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Part 2

Part 2 of 3:

Asserting Qualified Immunity

1
File a motion for summary judgment. Under Rule 12(b)(6) of the federal rules of civil procedure, you can file a motion to dismiss, or motion for summary judgment, if there is no genuine issue of material fact for the jury to decide. In excessive force cases, you can file a motion for summary judgment because you have qualified immunity from suit.^{[6]XResearch source}
- In a motion for summary judgment, all facts alleged by the plaintiff are taken to be true for the purposes of arguing the motion.
- If the plaintiff has no legal entitlement to damages even if he or she proves every fact alleged, the lawsuit will be dismissed.
- Because qualified immunity is a legal theory that prevents you from being sued, it is an appropriate theory on which a summary judgment motion can be based, in addition to being a defense to the claim at trial.
2
Prove your conduct did not violate the plaintiff's constitutional rights. The core of an excessive force claim is that the force you used to arrest or detain the plaintiff violated his or her Fourth Amendment rights. If you acted in accordance with established rules and procedures, you generally will be immune from suit.^{[7]XResearch source}^{[8]XResearch source}
- The standard includes an evaluation of whether you violated rights you knew or reasonably should have known about. Standard police rules and procedures are one way you would know about a suspect's constitutional rights.
- Each police department has standard procedures used when apprehending a suspect that take the suspect's constitutional rights into account. Your attorney likely will use those procedures – assuming you followed them – to argue that your actions did not violate the suspect's constitutional rights.
- This argument becomes harder if you deviated from standard police procedures to apprehend the suspect – for example, by calling on your dog to give chase and take down the suspect when that wouldn't have been recommended under standard protocol.
- However, you still may be entitled to qualified immunity if there were circumstances that warranted a break with standard protocol, and you can demonstrate that you still took care to avoid the use of excessive force.
3
Demonstrate that your conduct was reasonable under the circumstances. Even if there were no established rules or procedures upon which your conduct was based, you can still claim qualified immunity if your use of the police dog was objectively reasonable.^{[9]XResearch source}^{[10]XResearch source}^{[11]XResearch source}
- This inquiry is different from the defensive argument of reasonableness, because it relates to your choice to use the police dog in the first place and whether that choice was reasonable – not whether the subsequent force was reasonable.
- The law makes a distinction between your choice to use the dog, and how you used the dog after you'd made that choice.
- In applying qualified immunity, your choice to use the dog for whatever reason must have been reasonable under all of the facts and circumstances available to you at the time you made the decision.
- Courts generally recognize that police officers often have to make split-second decisions with very little information at hand.
- However, information that you only knew after the fact cannot be used to justify your conduct at the time of the incident. By the same token, information that later proved to be inaccurate still may justify your decisions in the moment if you had no reason to doubt its accuracy.
- For example, suppose you were in pursuit of a suspect who had fled when you pulled over his car. You sent a police dog to track him through the woods where he fled and hold him, because at the time you had reason to believe the man was wanted for a violent robbery and considered to be armed and dangerous.
- When that man sues for the injuries he sustained when the police dog bit his leg, your choice to use the dog typically will be considered reasonable under the circumstances – even if you later found out the man was unarmed and not involved in the crime.
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Part 3

Part 3 of 3:

Arguing Your Actions Were Reasonable

1
Evaluate the circumstances surrounding the incident. If the judge has ruled you do not have qualified immunity from suit, you can nevertheless escape liability if you can prove that your application of force or use of the police dog was reasonable under all of the circumstances surrounding the incident.^{[12]XResearch source}
- In other words, even though you may have been mistaken to use the police dog to assist in apprehending or detaining the suspect, you can still defend yourself by arguing that once employed, the police dog was used appropriately.
- Your choice to use the dog is evaluated under the context of qualified immunity. Your actual use of the dog, however, is reviewed separately using a similar reasonableness standard.
- To defeat a police dog misuse claim, your use must have been reasonable under all the facts and circumstances surrounding the incident, including any information known to you before the incident took place. #*Other factors such as the time of day, the location, and the number of people around also can be considered in determining whether the police dog use was reasonable.
2
Talk to any witnesses. Anyone who was present at the scene when the incident took place may be able to provide an account of what happened and whether your use of the police dog seemed reasonable in light of what they saw.^{[13]XResearch source}
- Eyewitnesses often can offer compelling testimony regarding whether they felt your actions were reasonable or justified under the circumstances. This is especially true if it was a tense, public situation with frightened onlookers.
- You may want to talk not just to eyewitnesses but to other police officers who can speak to your usual training and handling of the dog, as well as your reputation and performance on the force.
3
Request evidence of the plaintiff's injuries. Understanding the true extent of the plaintiff's injuries can go a long way toward demonstrating the reasonableness of your police dog use – especially if the plaintiff sustained relatively minor injuries as a result of the incident.^{[14]XResearch source}^{[15]XResearch source}
- Keep in mind that plaintiffs may attempt to exaggerate their injuries, or include damages that occurred not directly because of the dog bite, but because of the length of time the injury was left untreated.
- The plaintiff also may attempt to include psychological damages, such as for emotional distress or post-traumatic stress. These types of injuries can result in significant awards, but also can be difficult for plaintiffs to prove because they're not easy to quantify.
4
Use expert witnesses. Other police dog handlers or trainers may be able to provide some insight into whether your handling of the police dog was objectively reasonable under the circumstances of the incident.^{[16]XResearch source}
- Expert witnesses don't know you personally, and weren't present for the incident that gave rise to the plaintiff's police dog misuse claim, but can speak to situations in which using a police dog is warranted.
- Experts also establish the training police dogs and their handlers undergo, and how this training takes a suspect's constitutional rights into consideration.
- Given the objectively reasonable standard for evaluating your actions, an expert can help establish what is considered objectively reasonable and how the constitutional rights of suspects are respected in standard police procedures.
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