Necessary Weapons, or Excessive Force?

Suppose the police chase a suspect, corner him and whack him with a nightstick to subdue him.

That is a proper and legal arrest. However, if they keep pounding him needlessly once he has been subdued, his constitutional rights are violated, the federal courts have said. A jury in Los Angeles applied that well-settled rule in convicting two Los Angeles Police Department officers in the videotaped beating of Rodney G. King.

But suppose the officers sic a German shepherd on the suspect. And suppose the dog finds its quarry and repeatedly bites him, leaving him bloody and battered, with the flesh of his arm torn to the bone and part of his nose torn off.

Federal judges have refused to declare such brutal force unconstitutional.

Southern California leads the nation in police dog-bite lawsuits, yet all this litigation has succeeded only in revealing a loophole in the law. While dogs are a weapon used by the police, judges have been reluctant to rule that injuries inflicted by police dogs should be deemed an excessive use of force.

And the reason was aptly summed up by former Los Angeles Police Chief Daryl F. Gates.

“It was the animal that imposed the injury, not the human being,” Gates said in defending his officers in a deposition filed in one case.

That legal rule has been upheld four times in the past year in dog-bite cases that began in Southern California and reached the U.S. Supreme Court. In each case, judges said that since there was “no clearly established law” governing dog bites, departments were immune from suits by suspects who said they were mauled during an arrest.

One case came from a Santa Ana man who nearly had his arm chewed off after an arrest for drunken driving. Another came from a community college instructor from Santa Monica who had his leg badly bitten--without even leaving his home.

“This is a Southern California phenomenon,” said Temple University professor James A. Fyfe. “I know of no other place in the country where they are using dogs to chew people up.” A former New York City policeman, he now testifies against police departments in cases of alleged brutality.

Lawyers who represent the police say dogs are an effective weapon against fleeing suspects who are a danger both to the officers and to bystanders. And the suspects who are injured have only themselves to blame, they say.

“Put yourself in the position of the officer at the scene. Do you want a guy to come out and shoot, or do you want the dog to surprise the guy and bite him?” asked Los Angeles County attorney Roger Granbo. “The dogs are trained to latch onto the bite and to hold. And yes, if you struggle, you’re going to get hurt.”

Police dogs came into wide use in the early 1980s because of their extraordinary ability to find hidden suspects. When a fleeing felon runs into a junkyard or the woods, officers can call a canine unit. Usually, within minutes, a trained dog can flush out the suspect.

No one disputes the use of dogs as hunters. The controversy comes when the dogs bite suspects during an arrest.

In the 1980s, most police agencies across the country followed what was referred to as a “find and hold” policy. Dogs were trained to bite the suspect and hold firm with their teeth. This was said to have the advantage of immobilizing someone until an officer could handcuff him.

But lawsuits and bad publicity over dog attacks in Philadelphia, Miami and other cities prompted a gradual shift in policy. Increasingly, departments have adopted “find and bark” policies, whereby the dogs are trained to find the suspect and bark out his location. In most instances, the animals are not allowed to bite unless the suspect attacks them or an officer.

Until 1992, the Los Angeles Police Department had allowed its dogs to bite fleeing suspects. Upon arriving from Philadelphia, Police Chief Willie L. Williams announced the department was changing to “find and bark.”

Last year, the Los Angeles City Council agreed to pay $3.6 million to settle a class-action claim brought by 55 bite victims, most petty criminals. The incidents occurred before the policy change.

Lawyers for the American Civil Liberties Union amassed data on the hundreds of people--most Latino or black--who were bitten by LAPD dogs between 1990 and 1992. They charged that Los Angeles police had trained dogs “to attack and maul” suspects. The dogs were “routinely sent out in nonviolent situations,” said attorney Barry Litt.

Before 1992, “the 15 LAPD dog handlers put more persons in the hospital each year than the rest of the 8,450-member LAPD combined,” the suit said.

Since the change, even critics say the LAPD’s dogs have had a good record. In the agreement that settled the suit, the department said it would allow dogs to attack and bite only when the suspect posed “an imminent danger to officers and the community.” That policy brought the annual bite total, which had peaked at more than 300, down to fewer than 30.

“I think the number should be zero,” said Los Angeles attorney Donald W. Cook, who has filed numerous lawsuits on behalf of dog-bite victims. “This goes back to a barbaric era, the government turning wild animals loose on human beings. . . . It’s what you expect out of Nazis or Southern sheriffs.”

Cook has filed a class-action suit against Los Angeles County, citing a series of dog attacks. In one case, a suspect who had stolen $300 worth of tennis shoes and led police on a freeway chase had part of his nose torn off when a dog found him hiding in a yard. The suit is tied up in a procedural thicket because a state judge has questioned whether the various dog-bite claims can be heard as a class action. That issue is being appealed.

Fyfe and other critics say most police departments in Southern California follow a “bite and hold” policy.

Cook singles out Santa Ana, against whose officers he filed suit unsuccessfully on behalf of Tom Shannon, a 27-year-old plumber’s assistant from Costa Mesa. One night in June 1991, Shannon, who had been drinking at a party, argued with a woman who had come with him, according to the court record. The two left together, with Shannon driving her car. He sped through a red light, then drove onto a restaurant’s lawn.

Shannon says he intended to walk home. When he heard someone call out “stop,” he ran, climbed a fence, fled through an industrial area and hid under some bushes.

Officers, having learned that Shannon had once been arrested for armed robbery, called in the Santa Ana police canine unit. A German shepherd was brought in and officers broadcast a warning on a bullhorn.

Within seconds, the dog found Shannon. As he struggled to get up, the dog bit him, exposing his jugular vein and muscle and bone on his arm.

It was over within 45 seconds, according to court records, but Shannon spent 19 days in the hospital. Surgeons operated three times to graft skin onto his arm.

Shannon pleaded guilty to drunken driving.

Ten months earlier, in Santa Monica, Gregory Du Vall suffered approximately 20 bite wounds on his leg after a dog was sent into his home.

A 49-year-old instructor at Los Angeles City College, he was distraught and angry on Aug. 13, 1990, according to his deposition. He had argued on the phone with his sister and mother about money.

They called Santa Monica police and described him as suicidal. An officer called Du Vall, who said he only had a pellet gun. He also told officers they should get a warrant if they wanted to enter his house. Then he shut off the lights and went to sleep.

At 2:30 a.m., police broke down the door of his mobile home and sent in a dog to subdue him. While the dog was biting Du Vall’s leg, officers dragged the man outside. He was charged with resisting arrest. He filed a lawsuit charging the police with an unlawful search and the use of excessive force during an arrest.

“These are just the kinds of cases where they use the dogs,” said Cook, who represented both men. “These guys defied the police, and they sent in the dogs to teach them a lesson.”

In both instances, the police said they thought they were dealing with a possibly dangerous suspect and used a dog as the best means of catching him safely.

Police officials in Santa Ana were adamant that Shannon got what he deserved.

“The responsibility falls on the suspect. Mr. Shannon fled, and he was given ample opportunity to surrender,” said Lt. Robert Helton, the police chief’s assistant for communications. “We felt the actions in that case were appropriate, so there was no reason to change” the policy on using dogs, he said.

Sgt. Raul Luna, who at the time supervised the canine unit, said Shannon was badly injured because he fought with the dog.

“Most of your injuries come when the suspect resists and tries to remove the dog from the bite hold,” Luna said. “This individual was actively resisting. He stood up and tried to get the dog off him. Something has to give, and it is the soft tissue” of the suspect’s arm.

“This was right by the book,” Luna said.

U.S. District Judge Linda H. McLaughlin in Santa Ana dismissed Shannon’s lawsuit and ruled for the police prior to a trial. When suits are dismissed at this pretrial stage, judges are supposed to assume the facts alleged in the complaint are true. Nonetheless, the judge can conclude that no constitutional right has been violated.

The U.S. 9th Circuit Court of Appeals upheld the ruling. A three-judge panel said Shannon’s claim did not show a constitutional violation.

“Shannon has not alleged the type of circumstances or conduct that would violate clearly established law,” said 9th Circuit Judge Diarmuid O’Scannlain of Portland, Ore. The suspect “was actively resisting arrest when he hid in the bushes and did not come out after the canine announcement.”

Cook filed a second unsuccessful suit against Santa Ana officers, this time involving a drunk driver who had wrecked a stolen car. After the accident, Craig Brooks was taken to an emergency room by Irvine police and wheeled into the X-ray unit.

When attendants were not watching, he walked away dressed in swim trunks. He passed out in the bushes nearby.

The Santa Ana canine unit was called, and an officer sent a dog to find, bite and hold the suspect. Brooks screamed and fought to get loose. The dog bit him severely on his thigh, buttocks and arms.

His lawsuit was also dismissed because, the federal appeals court said, no constitutional right had been violated.

Du Vall’s suit against Santa Monica police met the same fate. He contended that breaking down his door without a warrant and sending in a dog to seize him violated the 4th Amendment’s ban on “unreasonable searches and seizures.”

U.S. District Judge Terry J. Hatter Jr. in Los Angeles ruled in favor of police officials prior to the trial, and the 9th Circuit Court upheld that judgment.

“We hold that . . . the use of a dog in this instance, by officers who wished to prevent harm to themselves and to the victim--a man locked in a darkened trailer with a gun, who refused to come out and give up his weapon, and who relatives attested to be suicidal and possibly homicidal, was objectively reasonable,” O’Scannlain wrote.

The Supreme Court has never ruled squarely on a dog-bite case. Eleven years ago, however, the justices restricted the police use of “deadly force” to stop a fleeing suspect.

That ruling grew out of a Memphis, Tenn., case in which an officer was checking on a possible prowler. In a backyard, he flashed a light on 15-year-old Edward Garner. When the youth turned and tried to climb a fence, the officer shot him in the back of the head and killed him.

In Tennessee vs. Garner, the high court ruled it was unconstitutional to use “deadly force” against a fleeing suspect who “poses no immediate threat to the officer and no threat to others.”

Judges are divided over whether an attack by a police dog can be considered “deadly force.” In 1994, the 9th Circuit Court, in a 2-1 opinion written by Judge Stephen Reinhardt of Los Angeles, ruled that a jury could decide whether a policy of using dogs to attack suspects was unconstitutional as deadly force.

But that opinion has not been followed consistently by other judges of the 9th Circuit. And the Supreme Court has passed up chances to clarify the matter.

In the past year, Cook has appealed four cases, urging the justices to apply the “deadly force” rule to police dogs. He also maintained that a policy of training dogs to bite during an arrest should be deemed an excessive use of force.

Without comment in June, the justices dismissed his appeal in Du Vall vs. Santa Monica.

In October, the justices also dismissed appeals filed on behalf of Shannon and Brooks (Shannon and Brooks vs. Santa Ana). The fourth case came from Riverside County. It, too, was dismissed without comment (Sebulsky vs. Richardson).

Du Vall and Shannon remain angry. They say their encounters with police dogs cost them thousands of dollars in medical bills and left them with permanent injuries.

“This was the worst incident of my life,” Du Vall said. “I had a perfectly clean record. I did nothing wrong. And I couldn’t even get a day in court.”

Shannon added: “I got nowhere [in court]. Just a ‘no comment’ ruling. It was as if they didn’t even look at the facts.”

Next: Different philosophies on police dogs in L.A. County’s two biggest law enforcement agencies.