Samuel Campbell and Lisa Parker had a date one night in October 2007. After dinner they went to the Springboro Eagles Club for drinks. At about 12:30 Parker decided to walk home because she lived nearby and was intoxicated, but Campbell stayed until after 1 a.m. He realized he had Parker’s car keys and decided to go to her apartment to give them back. He saw her lying on the couch through the window in the front door, pounded loudly for five to ten minutes, but could not rouse her. He went to the back door and pounded there, but again with no result. Another tenant, hearing the pounding, called the Springboro police department, which dispatched Officers Clark and Anderkin, who arrived at Parker’s residence at 2:26 a.m.
Campbell began to head home through Parker’s back yard when he heard the approaching sirens. He lay down on the ground near an outbuilding of an adjoining property in an attempt to avoid a confrontation with the police. The police also saw Parker sleeping in her front room but were also unable to wake her. There was some damage on the doors and a third officer, Larry Bush, called the landlord to request a key to Parker’s residence because the officers believed a potential intruder might still be in the area. Clark and Anderkin decided to use a police dog, Spike, to track the intruder, believing that they were dealing with an attempted burglary.
Spike was a Belgian Malinois trained in narcotics detection and patrol work, and Clark was his handler. Clark deployed Spike near the side of the house. Spike pulled Clark towards the back porch and then led Clark through Parker’s back yard. Anderkin followed to provide cover. Spike led the officers to an adjoining yard where there was a fence leading up to the outbuilding near which Campbell was lying on the ground.
Spike tried twice to go over the fence, and Campbell testified that he was trying to determine how to get over the fence when Spike found Campbell lying on the ground and bit him. Campbell, to the contrary, testified that he had made eye contact with Clark some moments before and that Clark was leading the dog directly to him before the bite. Both parties agree that Officer Clark issued no warning and said nothing to Campbell before the dog bit him. Spike bit Campbell on the left leg and continued to bite him for 30 to 45 seconds, a long enough time to indicate either noncompliance on the part of Campbell or an inability on the part of Clark to control the dog.
Clark testified that he shouted at Campbell multiple times to put his hands up but Campbell did not comply and that Campbell kicked the dog in the head repeatedly. Only after Campbell raised both hands did he call off the dog. Once Campbell stood up he was handcuffed. He was taken by ambulance to a local hospital where his wounds were cleaned and stitched. The wounds later became infected and it took five or six months for him to heal completely.
That was one incident described in a civil rights suit against the city of Springboro, Ohio. There was another.
One evening in October 2008, a year after the first incident, Chelsie Gemperline, an 18 year old, was arrested for underage drinking. Gemperline and a friend, Sara Osborne, had invited people to a party at the home of neighbors who were out of town for whom Osborne was house-sitting. At about 1:30 a.m., Clark was dispatched to a loud party. While trying to assess what was going on, some of the partygoers left the house. Clark determined he was dealing with underage drinkers and called for backup. Several units responded.
Clark was uncomfortable with deploying Spike to find someone who may have fled because he feared the dog might bite the individual. Gemperline was found hiding in a closet on the second floor. She was questioned about her brother, who had left, but refused to help the officers locate him. Gemperline was handcuffed and became belligerent. She admitted, when being deposed, that she had said “fuck you, bitches” to them during the scuffle.
Once placed in a police car, Gemperline slid her right hand out of the handcuffs, lowered the window of the car, climbed out and ran down the street. She hid in a plastic playhouse in the back yard of a house six or seven houses away from where the party had been. Sergeant Aaron Zimmaro told Clark to get Spike and look for Gemperline. Zimmaro was primarily concerned with Gemperline’s safety. Clark put Spike on a 20-foot lead and began looking for Gemperline. Clark regarded the situation as a search for a fugitive, not a missing person, as indicated by the following description of his deposition:
“According to Officer Clark, there are two different types of tracks, a 'missing persons' track, which is done to locate a non-criminal missing person, and a 'tactical' or 'fugitive' track, which is done to locate a person who has committed a criminal offense…. Spike was not trained to respond differently based on the type of track…. However, Officer Clark used different equipment for a missing persons track than he did for a fugitive track. When doing a fugitive track, Spike wore a harness and a twenty-foot lead…. During a missing persons track, Spike wore a much shorter four-foot leash, which gave Officer Clark more control over Spike's movement and decreased the likelihood of Spike biting the subject of the search….”
Both Sergeant Zimmaro and Clark testified that they did not intend for Spike to bite Gemperline, but this might be negated as to Clark by a statement he made on the scene:
“Officer Clark also made the following comments, captured in part by his vehicle recording device: ‘Jeez Louise ... [unintelligible] this bitch, ... I've had it,’ and ‘... she's gonna get a nice rude awakening here in one second or two, ... it's not gonna feel very good.’ … Officer Clark denied making the first statement, but admitted to the second statement.”
Clark believed Spike was smelling something on the deck of a house down the street, but when they didn’t find anything he thought the dog might be “goofing off.” On heading back to his car, the dog went head-first at the window of the child’s playhouse where Gemperline was hiding. Spike reached his head far enough through the window that he nipped Gemperline’s chin and bit her right thigh. She tried to pry him off her leg but he kept biting. She continued to struggle until she either passed out or went into shock. Rather than giving a verbal release command, Clark choked off the dog, forcing it to release its bite. He believed it would be more difficult to give a verbal release command if Gemperline was hitting or actively resisting Spike.
A dog should be able to be recalled even if the dog is still struggling and it seems likely that Clark would have been taught this initially. The website of Lynnwoods Kennels, where Clark received some of his initial training with Spike, and which sold Spike to Springboro, contains the following statement (scroll down to 6) :
“Some schools of thought believe that the dog should release when commanded even if the suspect is not submitting and is fighting with the dog. This is a judgment call, but I agree. We must teach the dog that when I say it is over it is just that, over! There are times that the suspect is in so much fear of the dog that he or she is in survival while the dog is on them and they will not or can not stop fighting. If the suspect seems to be in this state we have to get the dog off him, and I sure do not want to stand in the middle of this action to do it. If the suspect does not settle down after the dog gets off we can always allow the dog to re-engage.”
Gemperline did not recall hearing Clark say anything to her. Clark testified that he did not shout any warnings when he entered the back yard but later said that he had told her to stay still and put her hands up as he performed the choke-off. After Clark pulled Spike off Gemperline, another officer flipped over the play house, putting Gemperline on her stomach, when he handcuffed her. The cuffs were removed when the extent of Gemperline’s injuries were seen. The deputy carried Gemperline to the street and called for an ambulance.
Gemperline spent a few days at a hospital and then a week and a half at a medical center receiving additional treatment. She was unable to walk for a time and was given crutches that she relied upon for six months. She has a permanent deformity in her right thigh.
The day after the Gemperline incident, the Springboro police department suspended its canine program, and Spike was retired. Officer Clark was terminated in 2009.
Before looking at the legal issues in the suit, it is necessary to describe the background of Spike and Clark.
Springboro is “a somewhat affluent city with a rather low crime rate,” according to the federal district court for the Southern District of Ohio. A canine unit was established in 2005, consisting of Officer Clark and Spike. Clark and Spike completed a 300-hour canine handling course in May 2005. The state of Ohio requires that police canine units be certified by the Ohio Peace Officer Training Commission. Clark and Spike received two certificates from the Commission, one for criminal apprehension, canine control, and canine searches, and the second for tracking, article search, and the detection of marijuana, cocaine, heroin, methamphetamines, and their derivatives. Both certificates were good for two years. On the same day they received their initial state certification, Clark and Spike also received accreditation from the North American Police Work Dog Association (NAPWDA) for narcotics detection and other skills, referred to as “Utility Phases,” including obedience, article search, area search, tracking, building search, and aggression control.
Clark believed that he and Spike were supposed to complete eight hours of maintenance training every other week. Clark and Spike attended three training programs in 2006 and 2007. One was a 5-day NAPWDA convention, while another was a 40-hour training program provided by the Miami Valley Police Canine Association. Also, there was a 40-hour training workshop at Lynnwoods Kennels, the facility from which Spike was originally obtained. They did not receive maintenance training on a regular basis. Clark testified that his supervisors did not allot sufficient time for Spike’s training. Clark complained about this, but how much was not clear. Spike’s certifications lapsed in the summer of 2007, but he was recertified in September 2007 by the Ohio Training Commission. The team also received a third certificate of accreditation from NAPWDA that month.
As a canine unit policy, the Springboro police department used, apparently rather informally, the Law Enforcement Canine Model Policy of the International Association of Chiefs of Police (IACP). Clark had obtained the policy from the website of an expert witness on police canine matters, but Clark had no contact with the IACP. No one was specifically assigned the responsibility of supervising the canine unit to ensure that Spike was suitable for duty. Every time Spike was deployed, Clark had to complete a canine deployment form, but it appeared to the court that Clark “was essentially supervising himself” as to his canine responsibilities. None of Clark’s supervisors showed virtually any familiarity with training and certification requirements or understood what IACP policies might have required.
The district court found that Spike had been trained to use the bark-and-hold approach, rather than the bite-and-hold approach to suspect apprehension, but despite this Spike bit 13 people during his police career. His biting during tracking assignments seemed to increase over time. In 2005, he went on ten tracks in which he bit no one. In 2006, he completed 28 tracks, apprehending 14 suspects, five of whom he bit. In 2007, he apprehended six individuals and bit five of them.
The suit was based on claims under 42 U.S.C. 1983, alleging excessive force, failure to train and supervise the canine unit, as well as Ohio law claims for assault and battery and malicious prosecution (the latter only as to Campbell). The court then analyzed whether qualified immunity applied, which required that it determine whether the force used to subdue the plaintiffs “was reasonable from the perspective of a prudent officer on the scene.” This determination is to be made on the facts and circumstances of the situations involved. The court found that several factors in the incidents involving Campbell and Gemperline indicated that the force used was excessive and objectively unreasonable under the circumstances. As to Campbell, the court noted:
“Officer Clark did testify that he was concerned that Campbell may still be in the area because the officers knew that he had only recently left. But there is no evidence that he believed Campbell was lying in wait to possibly ambush them. Instead, the fact that the officers did not express any concern for their own safety while they were investigating the exterior of Parker's house suggests the opposite.” Three factors were deemed of particular significance: (1) Spike was not undergoing proper maintenance training and may not have been performing as expected in the field, (2) no warnings or orders were given to Campbell, which may have been a violation of proper procedures, and (3) the extended period of time during which Spike continued to bite Campbell (up to 45 seconds) was extreme.
As to Gemperline, the lack of a consistent training regimen was also deemed significant, as was the failure to shout out a warning and the length of time that Spike was able to bite Gemperline. One witness for the plaintiffs provided an affidavit saying that the real reason that Clark used the choke-off may have been that Spike did not always respond to Clark’s verbal commands as he should have, which makes this part of the training issue. The court summarized:
“Essentially, when the facts are viewed in a light most favorable to Gemperline, the evidence in this case demonstrates the following: Defendant Clark deployed a police dog known for biting subjects during tracks to locate a 110 pound intoxicated eighteen year old who had evaded arrest for underage consumption of alcohol, despite knowing that the dog had not regularly undergone required maintenance training and was not always responding properly to verbal commands. Furthermore, when the dog began air scenting, Officer Clark failed to issue any verbal warning to give Gemperline an opportunity to surrender, although he either knew or should have known that she was nearby and possibly hiding in a playhouse in the area near where the dog air scented. Finally, when the dog engaged Gemperline, Officer Clark chose to physically pull Spike off of Gemperline rather than issuing a verbal command, thereby unnecessarily extending the duration and increasing the force of the bite. Under that scenario, a reasonable jury could find that the amount of force used in apprehending Gemperline was excessive.”
The court summarized the excessive force case law as follows:
“Sixth Circuit decisions demonstrate that there is a continuum of permissible versus impermissible use when it comes to police dogs. On the permissible end of that spectrum are cases wherein officers deploy properly trained police dogs to locate individuals who were believed to be involved in nefarious criminal activity, who may have been armed and dangerous, and who failed to surrender or respond in any manner after officers gave several warnings…. On the other end of that spectrum lies a case in which a canine officer allowed a little-trained police dog to get close enough to a subject of a track to bite the subject despite the fact that the subject had already been subdued and placed in handcuffs.”
The court then clearly states its opinion of the law as applied to the facts before it:
“Based on the precedent discussed above, Officer Clark had reason to know that the conduct he engaged in while apprehending and arresting Plaintiffs was unlawful. Officer Clark deployed Spike with knowledge that Spike had not undergone necessary maintenance training on a regular basis and had a high propensity for biting subjects during tracks. Further, in both cases, Officer Clark never issued any verbal warnings or commands though there is evidence showing that he knew or should have known that the plaintiffs were hiding close by and in fact knew or should have known the precise location in which each was hiding. Finally, in both cases, there are questions of fact as to whether Officer Clark allowed Spike to bite Plaintiffs for an unreasonable and unnecessary amount of time, particularly where neither Plaintiff showed signs of active resistance other than attempting to prevent Spike from further biting them. Under the circumstances, Officer Clark should have known that his conduct violated the clearly established rights of the Plaintiffs to be free from the unreasonable and improper deployment of a police dog in the course of their apprehensions and arrests.”
If I were defense counsel and read these statements in an order on pre-trial motions, I might well say to myself: If I can’t get a jury to think different, I’m screwed. Time to send out settlement feelers.
The court denied Officer Clark’s motion for summary judgment as to the excessive force claims. As to the city’s liability, the court noted that a “systematic failure to train or supervise police officers adequately can amount to deliberate indifference on behalf of a city towards its inhabitants.” On this issue the court extended its disapproval beyond Clark:
“Chief Kruithoff never assigned anyone with specific knowledge or training regarding the operation of the SPD's canine unit to supervise the unit. Instead, when it came to his duties as a canine handler, Officer Clark was essentially left to monitor himself. He was under the general supervision of Lieutenants Wheeler and Parker and a number of rotating sergeants. However, none of those supervisors received adequate training in the operation of a canine unit such that they would be capable of effectively supervising the unit. Accordingly, although they allegedly were in charge of monitoring the canine unit's certification and training, they expressed a lack of knowledge as to what type of certification and training was required. Perhaps as a result of their lack of knowledge, Officer Clark's supervisors allowed him and Spike to continue working for several months after their state certification had lapsed and failed to take any formal action to address Officer Clark's repeated complaints that he was unable to find time to perform necessary maintenance training with Spike.”
With such an across-the-board failure, the court could not “at this point conclude as a matter of law that the City of Springboro could not be held liable for violations of Plaintiffs’ constitutional rights.”
“[T]here is evidence in this case that in establishing the SPD's canine unit, Chief Kruithoff took few if any steps to ensure that the unit functioned in accordance with the law. He chose to essentially abdicate any duty he may have had to set policies governing the operation of the unit and to provide training for the officers who were supposedly charged with supervising the unit. Plaintiffs set forth sufficient evidence from which a jury could conclude that the supervision and training in this case were so lacking that the resultant violations of Plaintiffs' Fourth Amendment rights was almost a foregone conclusion.”
The nail goes in deeper:
“[T]he Court finds that a reasonable jury could conclude that Officer Clark acted with a malicious purpose, or in a wanton or reckless manner.”
The case is a warning to law enforcement canine handlers to keep up their training regimens, and renew certifications in a timely manner. Clark may have had to take the fall, but there is plenty of blame to go around. A handler must have the support of supervisors, and that support should not be blind. The case is also a warning to police chiefs, who must realize that implementing a canine unit requires accepting responsibility for the operation of the unit, including the willingness and ability to devote the necessary funds, time, equipment, training, management, and the adoption of appropriate policies and protocols. The community has a right to expect that the police department will be accountable to the community for the safe operation of such a unit.
Courts have not easily found excessive force or stripped away qualified immunity, and the benefit of the doubt has often been given to handlers, particularly when they can show good faith in deploying trained and certified police dogs, even when the deployment has led to serious injury and sometimes death. Nevertheless, there is a line, and Springboro, Ohio, and members of its police department appear to have crossed it here.
Campbell v. The City of Springboro, Ohio, 2011 WL 1575525 (April 26, 2011).
This blog was written by John Ensminger and L.E. Papet. For a broad discussion of excessive force suits regarding police dogs, see Police and Military Dogs, Chapter 20: Suspect Apprehension and Bite Issues (forthcoming Taylor & Francis/CRC Press).
Campbell began to head home through Parker’s back yard when he heard the approaching sirens. He lay down on the ground near an outbuilding of an adjoining property in an attempt to avoid a confrontation with the police. The police also saw Parker sleeping in her front room but were also unable to wake her. There was some damage on the doors and a third officer, Larry Bush, called the landlord to request a key to Parker’s residence because the officers believed a potential intruder might still be in the area. Clark and Anderkin decided to use a police dog, Spike, to track the intruder, believing that they were dealing with an attempted burglary.
Spike was a Belgian Malinois trained in narcotics detection and patrol work, and Clark was his handler. Clark deployed Spike near the side of the house. Spike pulled Clark towards the back porch and then led Clark through Parker’s back yard. Anderkin followed to provide cover. Spike led the officers to an adjoining yard where there was a fence leading up to the outbuilding near which Campbell was lying on the ground.
Spike tried twice to go over the fence, and Campbell testified that he was trying to determine how to get over the fence when Spike found Campbell lying on the ground and bit him. Campbell, to the contrary, testified that he had made eye contact with Clark some moments before and that Clark was leading the dog directly to him before the bite. Both parties agree that Officer Clark issued no warning and said nothing to Campbell before the dog bit him. Spike bit Campbell on the left leg and continued to bite him for 30 to 45 seconds, a long enough time to indicate either noncompliance on the part of Campbell or an inability on the part of Clark to control the dog.
Clark testified that he shouted at Campbell multiple times to put his hands up but Campbell did not comply and that Campbell kicked the dog in the head repeatedly. Only after Campbell raised both hands did he call off the dog. Once Campbell stood up he was handcuffed. He was taken by ambulance to a local hospital where his wounds were cleaned and stitched. The wounds later became infected and it took five or six months for him to heal completely.
That was one incident described in a civil rights suit against the city of Springboro, Ohio. There was another.
One evening in October 2008, a year after the first incident, Chelsie Gemperline, an 18 year old, was arrested for underage drinking. Gemperline and a friend, Sara Osborne, had invited people to a party at the home of neighbors who were out of town for whom Osborne was house-sitting. At about 1:30 a.m., Clark was dispatched to a loud party. While trying to assess what was going on, some of the partygoers left the house. Clark determined he was dealing with underage drinkers and called for backup. Several units responded.
Clark was uncomfortable with deploying Spike to find someone who may have fled because he feared the dog might bite the individual. Gemperline was found hiding in a closet on the second floor. She was questioned about her brother, who had left, but refused to help the officers locate him. Gemperline was handcuffed and became belligerent. She admitted, when being deposed, that she had said “fuck you, bitches” to them during the scuffle.
Once placed in a police car, Gemperline slid her right hand out of the handcuffs, lowered the window of the car, climbed out and ran down the street. She hid in a plastic playhouse in the back yard of a house six or seven houses away from where the party had been. Sergeant Aaron Zimmaro told Clark to get Spike and look for Gemperline. Zimmaro was primarily concerned with Gemperline’s safety. Clark put Spike on a 20-foot lead and began looking for Gemperline. Clark regarded the situation as a search for a fugitive, not a missing person, as indicated by the following description of his deposition:
“According to Officer Clark, there are two different types of tracks, a 'missing persons' track, which is done to locate a non-criminal missing person, and a 'tactical' or 'fugitive' track, which is done to locate a person who has committed a criminal offense…. Spike was not trained to respond differently based on the type of track…. However, Officer Clark used different equipment for a missing persons track than he did for a fugitive track. When doing a fugitive track, Spike wore a harness and a twenty-foot lead…. During a missing persons track, Spike wore a much shorter four-foot leash, which gave Officer Clark more control over Spike's movement and decreased the likelihood of Spike biting the subject of the search….”
Both Sergeant Zimmaro and Clark testified that they did not intend for Spike to bite Gemperline, but this might be negated as to Clark by a statement he made on the scene:
“Officer Clark also made the following comments, captured in part by his vehicle recording device: ‘Jeez Louise ... [unintelligible] this bitch, ... I've had it,’ and ‘... she's gonna get a nice rude awakening here in one second or two, ... it's not gonna feel very good.’ … Officer Clark denied making the first statement, but admitted to the second statement.”
Clark believed Spike was smelling something on the deck of a house down the street, but when they didn’t find anything he thought the dog might be “goofing off.” On heading back to his car, the dog went head-first at the window of the child’s playhouse where Gemperline was hiding. Spike reached his head far enough through the window that he nipped Gemperline’s chin and bit her right thigh. She tried to pry him off her leg but he kept biting. She continued to struggle until she either passed out or went into shock. Rather than giving a verbal release command, Clark choked off the dog, forcing it to release its bite. He believed it would be more difficult to give a verbal release command if Gemperline was hitting or actively resisting Spike.
A dog should be able to be recalled even if the dog is still struggling and it seems likely that Clark would have been taught this initially. The website of Lynnwoods Kennels, where Clark received some of his initial training with Spike, and which sold Spike to Springboro, contains the following statement (scroll down to 6) :
“Some schools of thought believe that the dog should release when commanded even if the suspect is not submitting and is fighting with the dog. This is a judgment call, but I agree. We must teach the dog that when I say it is over it is just that, over! There are times that the suspect is in so much fear of the dog that he or she is in survival while the dog is on them and they will not or can not stop fighting. If the suspect seems to be in this state we have to get the dog off him, and I sure do not want to stand in the middle of this action to do it. If the suspect does not settle down after the dog gets off we can always allow the dog to re-engage.”
Gemperline did not recall hearing Clark say anything to her. Clark testified that he did not shout any warnings when he entered the back yard but later said that he had told her to stay still and put her hands up as he performed the choke-off. After Clark pulled Spike off Gemperline, another officer flipped over the play house, putting Gemperline on her stomach, when he handcuffed her. The cuffs were removed when the extent of Gemperline’s injuries were seen. The deputy carried Gemperline to the street and called for an ambulance.
Gemperline spent a few days at a hospital and then a week and a half at a medical center receiving additional treatment. She was unable to walk for a time and was given crutches that she relied upon for six months. She has a permanent deformity in her right thigh.
The day after the Gemperline incident, the Springboro police department suspended its canine program, and Spike was retired. Officer Clark was terminated in 2009.
Before looking at the legal issues in the suit, it is necessary to describe the background of Spike and Clark.
Springboro is “a somewhat affluent city with a rather low crime rate,” according to the federal district court for the Southern District of Ohio. A canine unit was established in 2005, consisting of Officer Clark and Spike. Clark and Spike completed a 300-hour canine handling course in May 2005. The state of Ohio requires that police canine units be certified by the Ohio Peace Officer Training Commission. Clark and Spike received two certificates from the Commission, one for criminal apprehension, canine control, and canine searches, and the second for tracking, article search, and the detection of marijuana, cocaine, heroin, methamphetamines, and their derivatives. Both certificates were good for two years. On the same day they received their initial state certification, Clark and Spike also received accreditation from the North American Police Work Dog Association (NAPWDA) for narcotics detection and other skills, referred to as “Utility Phases,” including obedience, article search, area search, tracking, building search, and aggression control.
Clark believed that he and Spike were supposed to complete eight hours of maintenance training every other week. Clark and Spike attended three training programs in 2006 and 2007. One was a 5-day NAPWDA convention, while another was a 40-hour training program provided by the Miami Valley Police Canine Association. Also, there was a 40-hour training workshop at Lynnwoods Kennels, the facility from which Spike was originally obtained. They did not receive maintenance training on a regular basis. Clark testified that his supervisors did not allot sufficient time for Spike’s training. Clark complained about this, but how much was not clear. Spike’s certifications lapsed in the summer of 2007, but he was recertified in September 2007 by the Ohio Training Commission. The team also received a third certificate of accreditation from NAPWDA that month.
As a canine unit policy, the Springboro police department used, apparently rather informally, the Law Enforcement Canine Model Policy of the International Association of Chiefs of Police (IACP). Clark had obtained the policy from the website of an expert witness on police canine matters, but Clark had no contact with the IACP. No one was specifically assigned the responsibility of supervising the canine unit to ensure that Spike was suitable for duty. Every time Spike was deployed, Clark had to complete a canine deployment form, but it appeared to the court that Clark “was essentially supervising himself” as to his canine responsibilities. None of Clark’s supervisors showed virtually any familiarity with training and certification requirements or understood what IACP policies might have required.
The district court found that Spike had been trained to use the bark-and-hold approach, rather than the bite-and-hold approach to suspect apprehension, but despite this Spike bit 13 people during his police career. His biting during tracking assignments seemed to increase over time. In 2005, he went on ten tracks in which he bit no one. In 2006, he completed 28 tracks, apprehending 14 suspects, five of whom he bit. In 2007, he apprehended six individuals and bit five of them.
The suit was based on claims under 42 U.S.C. 1983, alleging excessive force, failure to train and supervise the canine unit, as well as Ohio law claims for assault and battery and malicious prosecution (the latter only as to Campbell). The court then analyzed whether qualified immunity applied, which required that it determine whether the force used to subdue the plaintiffs “was reasonable from the perspective of a prudent officer on the scene.” This determination is to be made on the facts and circumstances of the situations involved. The court found that several factors in the incidents involving Campbell and Gemperline indicated that the force used was excessive and objectively unreasonable under the circumstances. As to Campbell, the court noted:
“Officer Clark did testify that he was concerned that Campbell may still be in the area because the officers knew that he had only recently left. But there is no evidence that he believed Campbell was lying in wait to possibly ambush them. Instead, the fact that the officers did not express any concern for their own safety while they were investigating the exterior of Parker's house suggests the opposite.” Three factors were deemed of particular significance: (1) Spike was not undergoing proper maintenance training and may not have been performing as expected in the field, (2) no warnings or orders were given to Campbell, which may have been a violation of proper procedures, and (3) the extended period of time during which Spike continued to bite Campbell (up to 45 seconds) was extreme.
As to Gemperline, the lack of a consistent training regimen was also deemed significant, as was the failure to shout out a warning and the length of time that Spike was able to bite Gemperline. One witness for the plaintiffs provided an affidavit saying that the real reason that Clark used the choke-off may have been that Spike did not always respond to Clark’s verbal commands as he should have, which makes this part of the training issue. The court summarized:
“Essentially, when the facts are viewed in a light most favorable to Gemperline, the evidence in this case demonstrates the following: Defendant Clark deployed a police dog known for biting subjects during tracks to locate a 110 pound intoxicated eighteen year old who had evaded arrest for underage consumption of alcohol, despite knowing that the dog had not regularly undergone required maintenance training and was not always responding properly to verbal commands. Furthermore, when the dog began air scenting, Officer Clark failed to issue any verbal warning to give Gemperline an opportunity to surrender, although he either knew or should have known that she was nearby and possibly hiding in a playhouse in the area near where the dog air scented. Finally, when the dog engaged Gemperline, Officer Clark chose to physically pull Spike off of Gemperline rather than issuing a verbal command, thereby unnecessarily extending the duration and increasing the force of the bite. Under that scenario, a reasonable jury could find that the amount of force used in apprehending Gemperline was excessive.”
The court summarized the excessive force case law as follows:
“Sixth Circuit decisions demonstrate that there is a continuum of permissible versus impermissible use when it comes to police dogs. On the permissible end of that spectrum are cases wherein officers deploy properly trained police dogs to locate individuals who were believed to be involved in nefarious criminal activity, who may have been armed and dangerous, and who failed to surrender or respond in any manner after officers gave several warnings…. On the other end of that spectrum lies a case in which a canine officer allowed a little-trained police dog to get close enough to a subject of a track to bite the subject despite the fact that the subject had already been subdued and placed in handcuffs.”
The court then clearly states its opinion of the law as applied to the facts before it:
“Based on the precedent discussed above, Officer Clark had reason to know that the conduct he engaged in while apprehending and arresting Plaintiffs was unlawful. Officer Clark deployed Spike with knowledge that Spike had not undergone necessary maintenance training on a regular basis and had a high propensity for biting subjects during tracks. Further, in both cases, Officer Clark never issued any verbal warnings or commands though there is evidence showing that he knew or should have known that the plaintiffs were hiding close by and in fact knew or should have known the precise location in which each was hiding. Finally, in both cases, there are questions of fact as to whether Officer Clark allowed Spike to bite Plaintiffs for an unreasonable and unnecessary amount of time, particularly where neither Plaintiff showed signs of active resistance other than attempting to prevent Spike from further biting them. Under the circumstances, Officer Clark should have known that his conduct violated the clearly established rights of the Plaintiffs to be free from the unreasonable and improper deployment of a police dog in the course of their apprehensions and arrests.”
If I were defense counsel and read these statements in an order on pre-trial motions, I might well say to myself: If I can’t get a jury to think different, I’m screwed. Time to send out settlement feelers.
The court denied Officer Clark’s motion for summary judgment as to the excessive force claims. As to the city’s liability, the court noted that a “systematic failure to train or supervise police officers adequately can amount to deliberate indifference on behalf of a city towards its inhabitants.” On this issue the court extended its disapproval beyond Clark:
“Chief Kruithoff never assigned anyone with specific knowledge or training regarding the operation of the SPD's canine unit to supervise the unit. Instead, when it came to his duties as a canine handler, Officer Clark was essentially left to monitor himself. He was under the general supervision of Lieutenants Wheeler and Parker and a number of rotating sergeants. However, none of those supervisors received adequate training in the operation of a canine unit such that they would be capable of effectively supervising the unit. Accordingly, although they allegedly were in charge of monitoring the canine unit's certification and training, they expressed a lack of knowledge as to what type of certification and training was required. Perhaps as a result of their lack of knowledge, Officer Clark's supervisors allowed him and Spike to continue working for several months after their state certification had lapsed and failed to take any formal action to address Officer Clark's repeated complaints that he was unable to find time to perform necessary maintenance training with Spike.”
With such an across-the-board failure, the court could not “at this point conclude as a matter of law that the City of Springboro could not be held liable for violations of Plaintiffs’ constitutional rights.”
“[T]here is evidence in this case that in establishing the SPD's canine unit, Chief Kruithoff took few if any steps to ensure that the unit functioned in accordance with the law. He chose to essentially abdicate any duty he may have had to set policies governing the operation of the unit and to provide training for the officers who were supposedly charged with supervising the unit. Plaintiffs set forth sufficient evidence from which a jury could conclude that the supervision and training in this case were so lacking that the resultant violations of Plaintiffs' Fourth Amendment rights was almost a foregone conclusion.”
The nail goes in deeper:
“[T]he Court finds that a reasonable jury could conclude that Officer Clark acted with a malicious purpose, or in a wanton or reckless manner.”
The case is a warning to law enforcement canine handlers to keep up their training regimens, and renew certifications in a timely manner. Clark may have had to take the fall, but there is plenty of blame to go around. A handler must have the support of supervisors, and that support should not be blind. The case is also a warning to police chiefs, who must realize that implementing a canine unit requires accepting responsibility for the operation of the unit, including the willingness and ability to devote the necessary funds, time, equipment, training, management, and the adoption of appropriate policies and protocols. The community has a right to expect that the police department will be accountable to the community for the safe operation of such a unit.
Courts have not easily found excessive force or stripped away qualified immunity, and the benefit of the doubt has often been given to handlers, particularly when they can show good faith in deploying trained and certified police dogs, even when the deployment has led to serious injury and sometimes death. Nevertheless, there is a line, and Springboro, Ohio, and members of its police department appear to have crossed it here.
Campbell v. The City of Springboro, Ohio, 2011 WL 1575525 (April 26, 2011).
This blog was written by John Ensminger and L.E. Papet. For a broad discussion of excessive force suits regarding police dogs, see Police and Military Dogs, Chapter 20: Suspect Apprehension and Bite Issues (forthcoming Taylor & Francis/CRC Press).
