Working Off-Leash with Police Dog Does Not Produce Liability for Officer

A case that reached the Eighth Circuit in 2003 shows how complicated police responsibilities can sometimes be. Police officers in Duluth received a complaint about a party two blocks from Lake Superior. They began to breath test some of the people at the party, and directed a UM honors student and football player named Dennen to get in the testing queue. Instead, Dennen, who was visibly drunk, went upstairs and tried to hide under a futon. When an officer found him under the futon, he was again told to step outside for a breath test.

Dennen went outside the building and walked away. A little less than an hour later, an officer saw him walking on a street, perhaps carrying a plastic bag. The officer, Steven Peterson, determined to investigate and turned his car around. By the time he got to where he thought Dennen would be Dennen was gone. He took out his police dog, Citus, and began looking in the backyards nearby. Let's switch to the court's description:

"After a few moments, Citus stopped and indicated that he had picked up a human scent from an unexpected direction — away from the houses and toward a wooded area. Citus and Peterson changed course to follow this scent. As they were running, Citus ran some distance ahead of Peterson — approximately fifteen-to-thirty feet. However, as soon as Citus entered the wooded area, Peterson commanded him to return. Citus slowed his pace, and then returned to Peterson. Upon Citus's return, Peterson leashed him."

Let's stop the court's account for a moment to note that Peterson was not with his dog for some brief time, during which the dog may have encountered Dennen and conceivably could have bitten the student. Let's return to the court's words:

"At this point, Peterson and Citus were standing about fifteen-to-twenty feet from the edge of the wooded area. Peterson then heard movement from that area. He identified himself, announced Citus's presence, and ordered whomever was hiding in the woods to come out. Shortly after Peterson's announcement, Peterson heard the sounds of breaking brush and a loud crash. Peterson and Citus entered the woods. After doing so, Peterson and Citus came to the edge of a deep, muddy, and steep ravine. They descended about fifteen feet and then saw Dennen lying face-down in a creek bed, which was an additional thirty-five feet below them.

"At 02:38:06 a.m. Peterson radioed the dispatcher and requested medical assistance. Tanksi and Officer M. Peterson, the two officers who were at the party, left the house and headed toward the river. After descending into the ravine, they found Dennen seriously injured. The officers attempted to resuscitate Dennen. Dennen was rushed to the hospital for treatment. Unfortunately, Dennen had suffered a severe head injury and remained in a coma for several weeks."

Let's stop again. As any police officer reading this would know, Peterson was now at risk for a lawsuit. His function had shifted from investigation to saving an injured person, an injury he might be accused of causing. The court now summarizes the subsequent events:

"Toxicology reports later revealed the presence of barbiturates, amphetamines, and an alcohol level of .227 in Dennen's blood. Medical records reflected that Dennen had multiple small lacerations on his upper right arm, small abrasions and scratches on his elbows and forearms, and abrasions and punctures on both elbows and his left wrist. Dennen has no recollection of the events of September 26, 1998.
Dennen spent over a year in rehabilitation, and, although he has regained many of his physical and mental abilities, he still suffers from some of the effects of the brain injury."

Dennen sued for excessive use of force in violation of the Fourth Amendment, creating liability under 42 U.S.C. 1983. A particular focus of Dennen's complaint was that Citus had been off-leash when Peterson began searching for him. The court, fortunately, was not willing to impose a leash requirement, stating:

"[I]t would not be practical to require a police officer to always have his canine on a leash. There are a variety of instances when it would not be appropriate to do so. For example, there is no need to have a canine on a leash if an officer is talking to children in a school, or when the dog is sniffing for contraband. Particularly, a leash would not be required in circumstances where officer safety is concerned."

Dennen did have his own expert, who testified on the use of police dogs without leashes:

"To establish unreasonableness, Dennen relies upon the opinion of his expert in the area of police canine training, VanNess H. Bogardus, III. In his report, Bogardus states: [I]t is generally agreed among law enforcement agencies that when, in the course of a criminal investigation or arrest, an officer releases a dog[, it is] with the knowledge that the dog will probably bite anyone that it finds.... This is part due to the fact that with dogs that are trained to bite and hold, the 'attack' command is contained within the 'send' command as a part of the dog's training."

Dennen himself had no memory of the events and could not explain his injuries or describe any encounter with Citus. The Eighth Circuit accepted that Peterson could have had valid reasons for letting Citus work off-leash, but did note there was evidence that Citus had bitten others. This was not enough, however, as the question was not whether Citus had bitten Dennen, which he may have, but whether it was an excessive use of force to take Citus off-leash. After all, Peterson did not know what Dennen was up to, did not know if he was armed, but did know he was "in a part of town known for some rowdiness and criminal activity."

The Eighth Circuit affirmed the district court’s denial of the 1983 claim, and held that the officer was entitled to official immunity on the state law claims of negligence and negligent infliction of emotional distress. Dennen v. City of Duluth, 350 F.3d 786 (8th Cir. 2003).