The plaintiff and defendant are unlikely foes. A Durham police officer is suing a Durham sheriff's deputy. The officer's charge: The deputy's service dog attacked him.
Deputy William Carson's dog, Frisco, is a Belgian Malinois imported from Holland. The partners hold monthly training sessions to stay sharp.
But according to Durham Police Officer Joshua Walsh, the only thing sharp about Deputy Carson and Frisco were the canine's teeth. On Oct. 7, 2011, both lawmen and the dog responded to a call in North Durham, where Officer Walsh caught a fleeing suspect and handcuffed him on the ground. At that point, says Officer Walsh, Deputy Carson lost control of Frisco. Officer Walsh says the dog "viciously set upon" him and bit him in the leg and calf.
As a result of the alleged attack, Officer Walsh sought medical treatment for months and missed two months' of income he would have earned from his second job, he claims. He contends he suffers from loss of sensation in his leg, and from other physical and emotional harm. The complaint also lists as defendants Durham County, Sheriff Mike Andrews and his predecessor, Worth Hill. Officer Walsh is asking for monetary compensation in excess of $10,000. Last month the Durham Sheriff's Office filed a motion to dismiss the case.
Though impossible to quantify, police dog bites have become a major problem in North Carolina, according to Mike Bullock, a Greenville-based police dog trainer and certifier. "Cops do stupid things. Half the police dog trainers in this state suck," he said. Properly trained dogs should always know who their intended targets are, he says.
Unlike several other states, North Carolina does not require police dogs to be certified. But the Durham Sheriff's Office certifies its dogs through the International Police Working Dogs Association via the Cumberland County Sheriff's Office, according to a spokesman. Deputy Carson and Frisco are certified in patrol, tracking and narcotics. In addition, dogs and handlers for the sheriff's office must receive at least eight hours of training per month. Training is conducted in-house.
Since joining the Patrol Division's K-9 unit in 2007, Deputy Carson, with Frisco's help, has located missing and endangered kids and adults, apprehended armed suspects, assisted in locating two murder suspects, helped to locate discarded evidence and assisted in drug seizures.
It's not uncommon for people to sue over police dog bites, typically hinging on unjustifiable use of force. In these instances, a plaintiff alleges that a law enforcement officer illegally ordered a dog to attack, or permitted the attack to last too long. Several circuit courts have ruled that police dogs, like Taser guns or batons, can be deployed in certain situations, and conceded that bites sometimes occur. (Many police dogs are trained to bite, often with trainers wearing full body protection.)
In Kerr v. City of West Palm Beach, circuit court judges cited an expert opinion that on an average, less than 30 percent of apprehensions using a police dog should result in a bite, and that canine units with an average bite ratio of 20 percent or higher should be reviewed.
In fewer instances, such as the Durham case, lawsuits are based on negligence, wherein handlers are alleged to have lost control of their dogs. The key standard is "exercising due care," says Oakland-based civil rights attorney John Burris, who has handled several cases involving police dogs. "The dog should not hit the wrong person if he was properly directed," said Burris. Of the Durham case, he added, "Maybe the dog shouldn't have been released at all."
But some lawyers say that it is not always possible to win a negligence lawsuit, particularly in cases brought by law enforcement. "The officer has accepted a certain degree of danger during duty," said Gil Hoy, a Boston attorney and national expert in dog bites. "A police officer getting bitten is not like an ordinary citizen getting bitten."
Still, police dog-bite lawsuits can lead to hefty payouts and investigations. Within a year in Hayward, Calif., the city paid three dog-bite settlements, including a $1.5 million to the family of an 89-year-old man who died after being bitten. (Police dogs are not considered deadly force, though deaths sometimes occur.) During a recent five-year period, more than $1 million in damages were paid to 17 plaintiffs in western Washington State. Fear of litigation has prompted some departments to shift their dog-training philosophy from "bite and hold" to "bark and hold."
In their motion to dismiss, county lawyers say the Sheriff's Office is protected by qualified immunity, among other defenses. They also claim that Frisco assisted in the apprehension of the suspect.
Belgian Malinois are high-energy dogs, popular with the police and military. For years the German Shepherd was the foundation of police canine units, but Malinois were increasingly recruited after their frequent use during the wars in Iraq and Afghanistan. Malinois are naturally protective of their owners and can act nervously around strangers. Lighter than German Shepherds, but strong enough to break a person's bones, the Malinois arguably has the most intense bite of all dogs, able to drive its teeth into a limb and shake it to tear muscle from the bone—and they are more prone than German Shepherds to accidental bites.
Malinois are also intelligent and trainable, with a strong desire to work. "They think like three weeks ahead," said Russ Hess, a retired police chief and national executive director of the Springboro, Ohio-based U.S. Police Canine Association. "Handlers need to be able to respond quick."
Bullock, the Greenville dog trainer, says he sells Malinois to police agencies for between $12,000 and $20,000. Less than 10 percent of the breed, he says, are fit for police work.
The Durham Sheriff's Office policy manual on canine operations includes directives ranging from, "It is imperative that canine candidates have a love for dogs," to, "Canines used by this agency are not pets. Stay away from and do not attempt to pet."
Though he concedes that accidents happen, Hess says the dog should not bear the brunt of the blame for accidental bites. Dogs, he says, are easier to train than handlers, who are prone to shortcuts. "We have a saying in our work," he said. "There are no dog mistakes, only handler mistakes."
This article appeared in print with the headline "Ruff day in court ."