that the potential for finding deadly force in the use of a
canine remains open: “While we have not in any of our prior
cases found that the use of police dogs constituted deadly
force, [fn9] we have never stated that the use
of such dogs cannot constitute such force.
Cf. Robinette v. Barnes, 854 F.2d 909, 913
(6th Cir. 1988), although failing to find that
the police dog in that case constituted deadly
force, the court stated that ‘an officer’s intent
in using a police dog, or the use of an
improperly trained dog, could transform the
use of the dog into deadly force.’ ”
A federal district court in Oregon
subsequently upheld a plaintiff’s right to
pursue his claim of deadly force against a
K- 9 officer who deployed his dog to seize the suspect,
despite the federal magistrate’s recommendation that the
claim be dismissed [Cruz-Manjarrez v. City of Portland, 04-
CV-1811-AS (USDC Oregon 2007)]. More recently, the
U.S. Court of Appeals for the 10th Circuit also held open
the possibility of a finding of deadly force involving a K- 9
bite. In Thomson v. Salt Lake County, 584 F 3d 1304, 1315
(10th Cir 2009), the court stated: “We leave open the
question of whether the use of a police dog could constitute
deadly force in other circumstances.”
Summing Up
It is a common and dangerous belief that
K- 9 use can never be considered deadly
force. In reality, each case will be deter-
mined based on its own facts, and the
possibility of a finding of deadly force can-
not be ruled out. The best way to avoid or
defeat a deadly force claim in the deploy-
ment of a K- 9 is to (1) have a solid K- 9 use
policy that addresses the conditions of
deployments and the need for warnings,
(2) test to make sure that all handlers and
administrators are thoroughly familiar with the policy,
( 3) use as many scenarios in training as you encounter on
the street, ( 4) test on your training, and ( 5) keep accurate
records of your training and deployments. ■
Contrary to
popular belief,
Robinette did not
shut the door on
canine use as
deadly force.
John M. Peters has been a trial attorney in Michigan for 29 years,
representing police officers and law-enforcement agencies. He also
founded K9 At Work, a consulting business for the K- 9 community.
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