Officers responded to a residential
burglary call and the suspect fled on
foot. A police dog was used to track
and locate the suspect in a residential
area. The dog alerted to a backyard
area. The handler removed part of a
6-foot fence so that the dog could
enter the yard he was alerting to. The
court stated that no verbal warning
was given to afford the suspect an
opportunity for surrender. The dog
located and bit an innocent third party
— Trammell — in his neck, an accidental/unintentional K- 9 bite.
Trammell was visiting a friend and
was standing in his friend’s backyard
using a cell phone. While he was
looking up a number on his phone,
Trammell was suddenly knocked to the
ground and bitten on his throat by a
police dog. Prior to being bitten,
Trammell did not hear or see any sign
of police activity that would have
alerted him to the presence of the dog.
He could hear the neighbors on either
side of the backyard making noise, but
he did not hear any police warnings,
nor did he hear a police helicopter. As
he struggled to remove the dog, the
dog repositioned himself and bit Trammell multiple times on the throat. The
man was rushed to the hospital in an
ambulance. He required an 18-day
stay, four operations, and incurred
$147,514.82 in medical expenses for
his severe injuries.
At some point, officers and the
handler arrived on the scene with
flashlights. They stood close enough to
intervene, but they made no move to
remove the dog until the resident,
alerted by the noise, came running out
of the house and screamed that he was
going to kill the dog.
The court’s rulings, findings, and comments:
The court concluded that given those
facts, a reasonable jury could conclude
that the use of the canine in the man-
ner described constituted unreasonable
and excessive use of force in violation
of plaintiff’s constitutional rights under
the Fourth Amendment. Trammell
testified that while he was in the small
residential backyard he heard no warn-
ing, and that under the circumstances
he would have heard one if it had been
given. The court concluded that a jury
could find that none was given. Even if
a constitutional violation occurred
when K- 9 seized the victim, the police
officer was entitled to qualified immun-
ity under § 1983 for allegedly releasing
his dog without a warning, because it
was not clearly established at that time
(July 2003) that a canine warning was
required before the release of a police
dog.
Terry Fleck is a retired deputy sheriff II/
canine handler. An expert in the field of
canine legal issues, Terry teaches classes
throughout North America. Contact him at
k9fleck@aol.com.
