Dog bite rule of torts does not apply to police dogs, at least under § 1983

Police dog bites are not per se unreasonable, even when they are trained to attack and the handler has knowledge of the dog’s propensity. The plaintiff here did not respond to commands to surrender and had hidden under a car. He finally showed his hands from under the car and the dog bit him when his hands came out to surrender. The dog bite was not unreasonable force. Gonzales v. Phoenix Police Dep’t, 2007 U.S. Dist. LEXIS 47949 (D. Ariz. June 28, 2007):

The use of a police dog can constitute excessive force. See Smith v. City of Helmet, 394 F.3d 689, 704 n. 7 (9th Cir.), cert. denied, 545 U.S. 1128 (2005); see also Mendoza v. Block, 27 F.3d 1357, 1361-62 (9th Cir. 1994). However, no evidence in this case supports that the force exerted by Jake and his handler was excessive. The undisputed evidence establishes the following facts. Plaintiff evaded the police, and Defendants did not know whether Plaintiff was armed. Norton and Jake walked through the carport with the intent of accessing the backyard. Norton was unaware of Plaintiff’s presence under the car in the carport. Before entering the carport, Norton announced their approach and that he had a dog who might bite if Plaintiff failed to make himself known. And while walking through the carport, Norton held Jake close by his lead. Plaintiff, thus alerted to Jake’s presence, decided to surrender and stuck his arms out from under the car. Regardless of whether Plaintiff first announced his presence, the undisputed evidence proves that Jake was startled when Plaintiff thrust his hands out from under the car and Jake reacted by unexpectedly and suddenly biting Plaintiff. Norton immediately pulled Jake off Plaintiff and stepped away to control Jake.

The summary judgment evidence proves that a reasonable jury could not conclude that Norton used excessive force. Norton exercised control over Jake during the search but Jake bit Plaintiff after he was startled by Plaintiff. Norton never ordered Jake to attack Plaintiff and pulled Jake away from Plaintiff to prevent further bites. There is simply no evidence that Norton failed to act reasonably in handling Jake under the circumstances. Norton will be granted summary judgment as to Plaintiff’s claim that Norton used excessive force by not preventing Jake from biting Plaintiff.

Hiibel finally applied: The defendant was convicted of five counts of assault. When he was stopped by the officer, he refused to identify himself. At trial, a DVD of the stop and defendant’s refusal to identify himself was admitted into evidence, and this was not a constitutional error. State v. Stratton, 161 P.3d 448 (Wash. App. 2007):

Although Mr. Stratton argues he was prejudiced because his refusal to identify himself raised an inference that he had something to hide, given the Hiibel holding, any error is non-constitutional. Defense counsel also argued the evidence was cumulative, but the trial court acted within its discretion to admit the DVD. See State v. French, 157 Wn.2d 593, 605, 141 P.3d 54 (2006). The 40-minute DVD covered about four minutes of three intermittent and unclear refusals. Moreover, the related factual issue was not whether Mr. Stratton was with the shooters at the party, but whether he carried and fired one of the guns. Because the jury found he was an accomplice but not armed, Mr. Stratton cannot show prejudice. In sum, Mr. Stratton fails to show either constitutional or non-constitutional error.