89-Year-Old Man Dies from Wounds Inflicted by Police Dog with History of Attacking Bystanders

A police dog bite case that ultimately resulted in the death of an 89-year-old man who was attacked in his own back yard is a lesson in what can go wrong when a dog is let loose beyond control of its handler.  The liability of the police handler is not particularly surprising, but the liability of other officers present is a cautionary tale about how mistakes of a handler can lead to liability for officers who are supporting the handler, or perhaps just do not stop him when they should realize that his actions are putting citizens at risk. It is also a warning to supervisors above police dog units who incorrectly assume that the officers in a unit can be left to train and work as they wish.   Finally, cities and other authorities that have doubts about their police dog programs should study this case from a federal district court in the Ninth Circuit, which shows that the liability for a poorly managed canine program can be substantial, and may ultimately have to be passed on to taxpayers if insurance coverage is inadequate or withdrawn after an incident.  

Robbery of Domino's Pizza

Officer Loring Cox of the Hayward Police Department and his police dog Nicky responded to an armed robbery of a Domino’s Pizza the night of May 29, 2011.  The victim informed police that the robber was armed with a handgun and headed north after leaving the restaurant.  Officer Cox and Nicky arrived first, followed by Officers Robert Purnell and Michael Miller, and the three officers began to following the dog, which was supposedly trailing a scent from the pizza shop.  A casting process may have been used for the dog to find the scent, since no articles are mentioned as being available for this purpose, but this aspect of the canine team’s work was not described in any detail. 

Nicky took a right turn off West Winton Avenue and “sprinted down a commercial driveway,” where he stopped at an 8-foot-high concrete wall at the rear of a business complex.  The wall separated the complex from a mobile home park.  Nicky pawed at the wall. 

Officer Cox stood on a wooden pallet to look over the wall and saw the back yards of several mobile homes.  He decided to lower Nicky into the yard on the other side of the wall.  According to the court, Cox “chose to send the dog over the wall before cover officers scaled the wall in order to protect the officers’ safety and preserve the integrity of the scent…. Cox did not announce his presence or the deployment of Nicky because the suspect had fled the scene and was thought to possess a handgun.” 

There were inconsistent statements from the officers with regard to what happened next.  Officer Cox said that he lowered Nicky to the ground by his leash, which was 33 feet long, a common length for a tracking lead. Purnell held one end of Nicky’s leash while Cox lowered the dog.  Cox said that Nicky remained lying on the ground until Cox jumped down into the back yard.  This would have been protocol, but Officer Purnell’s testimony was very different:

“Officer Purnell testified that Nicky was searching Mr. Porter's yard unsupervised, and that Cox was still standing on the wooden pallet, on the side of the wall closest to the business complex, when Cox announced that it sounded like Nicky had apprehended the suspect…. Purnell states that Cox did not go over the wall and enter Mr. Porter's backyard until after Cox announced the bite.”

Cox announcing that “it sounded like Nicky had apprehended the suspect” means that the dog had been allowed to roam freely in the back yard without being in the clear line of sight of any officer.  This would presumably be a violation of protocol. 

Jesse Porter, 89 years old, was in the back yard into which Nicky had been lowered.  Nicky was trained to bite and hold a suspect, and Nicky bit Porter’s leg, leaving a gaping hole in the calf muscle, exposing tendons and muscle.  Despite the severity of the injury, Officer Cox said that Porter did not make any noise or move in response to Nicky’s bite.  None of the officers at the scene recounted how long Nicky’s bite of Porter continued.  The court stated that it appeared that if Porter did not struggle, he was not likely bitten multiple times but that the amount of force in a single bite had to be “significant” as it “was sufficient to sever most of Mr. Porter’s calf muscle from his leg….”

The Hayward Fire Department and American Medical Response arrived to provide medical care to Porter and transported him to Eden Medical Center. Pictures of the wound from the Medical Center showed most of the calf muscle missing from Porter’s leg.  The leg became gangrenous and had to be amputated above the knee on June 10, 2011.  Porter went into a residential care facility, where he died on July 27, 2011. 

Porter’s children and estate sued the City of Hayward and the three officers involved, alleging violations of Porter’s constitutional rights and various state law claims.  The defendants moved for summary judgment. The following issues were before the court:

• Whether Cox’s conduct was unreasonable under the circumstances (if not grossly negligent).
• Whether the officers were entitled to immunity, and if so, as to which claims.
• Whether the City of Hayward was liable for the allegedly unconstitutional and tortious conduct of its employees.

Testimony of K-9 Unit Supervisors

The defendant officers and City argued that the deposition testimony of Sergeant Raymond Sisson, Hayward’s K-9 Unit Supervisor, was inadmissible because it lacked foundation and personal knowledge and was irrelevant.  Sisson testified about whether he reviewed Nicky’s training records with Cox and had discussed best practices for using a police dog in a residential area.  He stated that he held weekly meetings with the officers of his unit to discuss training, incidents that have occurred, and how the unit could improve.  The court held that Sisson could appropriately testify about what the best practices of a K-9 unit should be, and that he had personal knowledge of his reviews of Nicky’s records.  Sisson also testified that common practice in a residential area is to have officers tell nearby residents to remain in their homes and bring their pets inside.  Holding this testimony to be relevant, the court overruled defendants’ objections to this witness. 

Lieutenant Brian Matthews, the K-9 unit supervisor, said in a deposition that in a residential area, K-9 handlers should keep their dogs in close proximity and in view at all times.  The court also held this testimony admissible.  It must be wondered if the officers were convinced that the robber had fled into or even lived in one of the mobile homes, meaning that an announcement to the residents would assure that the criminal would remain hidden while they searched the area. 

Testimony on Surveillance Footage

The defendants also objected to the testimony of Officer Craig Fovel, who had reviewed surveillance footage showing the direction in which the robbery suspects fled.  The defendants argued that Cox and Nicky tracked in the direction they did because they had seen the footage, perhaps a way of arguing that Nicky had not focused on any scent.  If so, then the argument may have been that Nicky attacked Porter because he was not tracking at all and acted as he would if deployed to bite and hold a suspect.  The court held that testimony regarding when the surveillance footage was played to be relevant. 

Nicky’s Records

According to the complaint filed in the case, “Nicky is a full grown male Shephard [sic], imported by the Hayward Police Department from the Netherlands at a cost of over $10,000, and trained in hard bitework.” 

The defendants produced records of all deployments of Hayward police dogs in the field up to the incident date, K-9 unit training records, and documents related to Cox’s personnel file, but they also sought additional records regarding complaints that had been made against Hayward’s K-9 officers which the court ordered to be produced.  Nevertheless, the plaintiffs alleged some records had not been produced but the court declined to compel additional discovery. 

Use of Excessive Force by Handler

The court then reviewed a number of Fourth Amendment cases, noting that the gravity of a particular intrusion requires an analysis of the type and amount of force inflicted, but also requires considering the severity of the crime, whether the suspect posed an immediate threat to the safety of the officers and others, and whether the suspect was actively resisting arrest or attempting to evade arrest.  See Miller v. Clark County, 340 F.3d 959 (9^th Cir. 2003).  (For an extensive discussion of Miller and other cases, see Police and Military Dogs, Chapter 20: Suspect Apprehension and Bite Issues.)

The court noted that although Nicky was trained in the bite and hold method of suspect apprehension, Officer Cox said he had only commanded Nicky to track, which meant that the dog was “to continue the trail and alert when [he] locates a suspect.”  The dog here, of course, did more than alert.  Cox also stated that Nicky was not trained to bite a person who surrenders and is passive.  He was trained to rebite if he detected a person escaping or attacking.  Sergeant Sisson testified that Hayward K-9s were trained to apprehend on their own, that an officer did not need to give a separate command to bite.  Directly contradicting Cox, he also stated that “whether the individual is passive or aggressive,” the dog would bite and hold a suspect. 

The court concluded with regard to the claim for a Fourth Amendment violation by Officer Cox:

“The testimony of Sisson and Matthews calls into question the reasonableness of Cox's decision to deploy Nicky, on a thirty-three-foot leash, into the backyard of a private residence, without giving any warning to those residents. This, coupled with the disputed fact of whether Cox remained on the far side of the wall while Nicky searched through Mr. Porter's backyard, eventually biting and severely injuring Porter, leaves a sizeable task for the jury in determining whether Cox's use of Nicky was reasonable under the circumstances. Accordingly, the Court DENIES the motion for summary judgment on plaintiffs' [42 U.S.C.] § 1983 claim against Cox for the use of excessive force.”

Liability of Other Officers Present

The federal district court discussed cases that had held that officers have a duty to intercede with fellow officers who are violating the constitutional rights of suspects or citizens.  Both Officers Purnell and Miller were present when Cox lowered Nicky into the back yard, and Purnell actually helped with the lowering of the dog by holding the end of the leash.  Thus, the court declined to dismiss the § 1983 claims against these two officers or against the City.    

Qualified Immunity Applies to Some Claims

The court cited Watkins v. City of Oakland, 145 F.3d 1087 (9^th Cir. 1998) for the proposition that using a police dog trained to bite and hold to effectuate a seizure is not a per se use of excessive force.  (See Police and Military Dogs, p. 268, for detailed discussion of Watkins.)  However, no Ninth Circuit case has held explicitly that a failure to warn before a seizure by a police dog is a violation of the Fourth Amendment, though the Fourth and Eighth Circuits have so held.  Cases in three other circuits have “concluded that a prior warning is not dispositive of the reasonableness of seizing an individual with a police dog, and thus there is no clearly established right to be warned.” 

Because the law on the matter is not clear in the Ninth Circuit, the court held that the “individual officers “are therefore entitled to qualified immunity from plaintiffs’ excessive force claim under § 1983, and the Court GRANTS the individual officers' motion for summary judgment.”

Liability of City of Hayward

The court noted that Cox in his deposition had stated that prior to biting Porter, Nicky had bitten three other people who were not the intended targets of a search.  He had bitten a non-suspect while attempting to apprehend a suspect in an armed robbery.  According to the court’s summary:

“The suspect was just outside the open doorway to a business…. When he would not surrender to the police, Cox ordered Nicky to apprehend the suspect….  Instead Nicky ran past the suspect, into the business, and bit another man unrelated to the robbery…. Cox chased after Nicky and found him biting the victim's leg.”

Sergeant Sisson, according to his deposition, had never discussed how frequently Nicky failed at searching for people in either deployment or training. This was stated despite the fact that Cox and Nicky had responded to 3,100 calls for service in Nicky’s time with the Hayward Police Department.  This indicates why good recordkeeping is important.  Although this number seems large, it could mean little more than that the handler and dog were on duty when thousands of events of significance to the police department occurred.    

The court concluded that “it remains for the jury to decide whether Nicky’s training was sufficient for the work the City had him doing and whether the City’s continued deployment of Cox and Nicky was a practice that resulted in the violation of Mr. Porter’s Fourth Amendment rights.” 

As to failures in the training of Cox and Nicky, the court concluded:

“Considering them in the light most favorable to plaintiffs, the facts plaintiffs have put forth to show the City has a policy of using improperly trained dogs are equally supportive of their theory that the City's failure to train their K–9 unit resulted in a violation of Mr. Porter's constitutional rights. From these facts, a reasonable jury could conclude that the City disregarded the obvious consequence that Nicky would bite a person other than the intended target of his search by continuing to deploy Nicky and Officer Cox.”

The statement should probably have emphasized improper training of the officers more than the dog.  The dog’s action was only the culmination of a long train of human errors.  The court also held that the City of Hayward’s failure to investigate and discipline the officers may have amounted to a ratification of unconstitutional conduct:

“After Nicky bit Mr. Porter, Officer Cox called Sergeant Sisson to report the bite. Sisson encouraged him that he did nothing wrong, affirmed that he could not have done anything differently, and called the incident an unfortunate accident [per Sisson’s deposition]. Yet both Sisson and Matthews testified that Cox should have kept Nicky in close proximity and alerted the residents before continuing the search through their backyards. Furthermore, Sisson did not investigate the incident other than speaking to Cox and reviewing his report…. He did not read the other officers' reports or the dispatch report….  Nor did any of Sisson's supervisors ask whether the deployment was reasonable…. Sisson did, however, discuss the incident with the K–9 handlers at a meeting…. Drawing all inferences in favor of plaintiffs, the Court finds that plaintiffs have shown a dispute of material fact as to whether the City's failure to investigate and discipline the officers for use of force against Mr. Porter demonstrates that the City ratifies unconstitutional conduct.”

Assault and Battery Claim Survives

A claim for assault and Battery against the police officers was not dismissed under the qualified immunity ruling because that concept does not apply to a state law tort claim.  A civil battery claim may be satisfied by showing that a defendant acted with willful disregard for the plaintiff’s rights:

“Plaintiffs have shown that Cox deployed a dog trained to bite and hold on a thirty-three-foot leash over a wall and into a backyard without warning. This is sufficient to establish a dispute as to whether Cox's decision evinces a reckless or willful disregard for a plaintiff likely to be in that backyard, as Mr. Porter was.”

Consequently, this claim was allowed to proceed.  A negligence claim also survived as to the officers, though not as to the City of Hayward as there is no state statute imposing a duty of care on the City to train its K-9 unit.  However, California law imposes liability on municipalities for the actions of their employees under the doctrine of respondeat superior.  Since Officers Cox, Purnell, and Miller were not immune from plaintiffs’ state law claims, neither was the City. 

Finally, the court allowed that the jury could consider punitive damages against the City for on the § 1983 claim, as well as on a state law claim that the City acted with “willful and conscious disregard of the rights or safety of others,” under California Civil Code § 3294(c)(1). 

Conclusion

The federal district court summarizes its lengthy decision with a list of the claims that remain to be tried:

1. § 1983 claim for excessive force against the City of Hayward.
2. Assault and battery, negligence, and wrongful death against the officers.
3. Vicarious liability against the City for the tortious acts of the officers.
4. California Civil Code § 3342 claim against the City.

The decision is well-reasoned.  Not surprisingly, the case settled before trial for, according to news reports, $1.5 million. According to an article by Henry K. Lee of the San Francisco Chronicle, Hayward will pay $250,000, with the rest picked up by insurance.

The most disturbing aspect of the case is that the K-9 unit had supervisors who did very little supervising and seemed unaware of the risks that were coming from an officer whose dog had already attacked innocent bystanders.  Here, though supposedly a tracking situation, there is some question whether the dog was really following a scent.  To lower such a dog into a back yard ahead of its handler, even for a minute, would seem highly negligent. 

The case is also a lesson for fellow officers who, often in the interest of station camaraderie, overlook violations of protocol and apparent recklessness of a dog handler with whom they have been assigned to work.  A police department that does not make it possible for such officers to bring their doubts to the attention of superiors is not well managed. 

One also wonders if the insurance carrier for the City of Hayward will be willing to continue coverage of a police department with such policies and weaknesses in its canine unit. The city will have to decide if such a risk should be allowed to continue.  Canine units, or at least teams with suspect apprehension functions, are sometimes disbanded solely to avoid passing on legal costs and rapidly escalating insurance premiums to taxpayers.

McKay v. City of Hayward, 2013 WL 2605782 (N.D. Cal. 2013)

This blog was written by John Ensminger and L.E. Papet.