September 9, 2024 • 40 mins
In this episode, Jeff is joined by Mike Kmiecik from Sheepdog Guardian to discuss a recent case from the Seventh Circuit Court of Appeals, Davis v. Allen et al. The case delves into the complexities of K-9 deployments and the legal ramifications that follow.
Mike provides a detailed analysis of the case, highlighting the importance of adhering to agency policies and proper training protocols. The conversation also touches on the significance of verbal releases and the potential dangers of improper training practices.
The episode serves as a crucial reminder for K-9 handlers to stay updated on legal standards and to continually refine their training techniques. Don’t miss this insightful discussion that aims to equip every K-9 team with the knowledge to perform their duties effectively and legally.
To contact Jeff Meyer email him at: JeffMeyer1@outlook.com
To see more about Jeff and the classes that are offered go to: www.Policek9Training.net
Thanks to this shows sponsors:
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KATS K9 Record Keeping www.katsplatinum.com
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Ray Allen K9 https://www.rayallen.com/
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For information about the Colorado K9 Conference https://coloradok9conference.com/
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Hey everybody, this is Jeff Meyer. Before we get to the show,
let's thank a couple of sponsors for the show.
Acecanine.com is out there saving dogs every day. So if you have a dog,
you need to have a heat alarm in your car.
And the heat alarm that I recommend is Ace Canine. So check out Acecanine.com.
They have a lot of features to it. The cell phone feature is unique to Ace Canine
(00:22):
where it'll call the phone.
It's an excellent system, very well designed. and the company is a big supporter
of ours, not just because they're in the business of supporting us,
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So check out acecanine.com for heat alarms. They do door poppers.
Very good company, acecanine.com.
(00:43):
And also, Kevin Sheldahl. I've been talking about him for a while.
I did a show with him. He's down in New Mexico. He runs a company called Canine Services.
His website is k-9services.com. his phone number is 505-250-4576.
If you want to go down to New Mexico, you can go to one of Kevin's academies.
You can buy a dog from him. He does absolutely everything related to what we do.
(01:07):
So all different types of dogs, all different types of training.
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So check out canineservices.com. See if there's some services that you want
to work with, with Kevin on wealth and knowledge and outstanding partner in our business.
So check it out today. And with that, let's go to the show. Listen to our legal update show.
(01:30):
Music.
This is the police canine training podcast with Jeff Meyer.
Join us for each episode to get real world advice from canine professionals
who have experience on the street.
Each episode will We'll focus on up-to-date information that you can use on the street.
(01:52):
Spend about 30 minutes with us each week as part of your training day.
Our goal at Police K-9 Training is to make every K-9 team be the best they can be.
Music.
Welcome to the Police K9 Training Podcast. I'm your host, Jeff Meyer.
(02:13):
Today I have Mike Kamisik back from Sheepdog Guardian.
He's been doing a lot of regular shows with me, which I appreciate,
doing updates and talking about new cases.
So I've been talking to him recently about a couple of different topics,
and he's got a case today that was a newer case that we wanted to get on and
kind of talk about some of the issues surrounding that.
So if you aren't sure who who mike is go
(02:36):
to sheepdog guardian and join for sure
it's worth the money he's got a wealth of knowledge and
a bunch of great information on his site so with
that mike how are you doing today i'm doing great job
thanks for having me back on i much appreciate
it i want to make sure i got it right it's sheepdog guardian.com right that's
(02:56):
correct yep sheepdog guardian.com and you can sign up for the newsletter there
and get regular newsletters and sign up for the the whole service So check out
sheepdogguardian.com and Mike has a lot of stuff on there.
So what's new going on with you? I know you got a lot of cases and you're traveling a lot.
Well, since I retired from law enforcement, as you know, Jeff,
(03:19):
man, just things are in full swing.
Very, very busy traveling around, teaching our seminars as they relate to use
of force, the dogs and detection as well.
I'm just keeping handlers up to date on what the cases are, some search and
seizure issues and some issues that, you know, I've seen as an expert witness
(03:42):
defending, you know, the officers and their agencies.
So we're starting to, I mean, we were busy, but now it's getting pretty busy.
I think we're almost booked up through mid 2025 or so. Yeah.
Yeah, it's good. Yeah, the calendar's on your website too. So it's a two-day class still, isn't it?
Yeah, we do. The main class that we do, the most popular, is a two-day.
(04:04):
We cover patrol and detection.
And industry standards related to training certification and our use of force,
terminology, that kind of stuff.
And what we're starting to see now is a big pickup in our supervisor class, which is a one-day.
So what we're seeing is really a three-day. So we have a two-day patrol detection,
(04:26):
and then we do the supervisor one kind of with that.
So, yeah, it's good. Yeah, it's good. It's a good class.
If you haven't ever been to one, you really need to go to one.
And if you haven't been to one for a while, the information changes all the time.
So it's worth it. So you can check the website.
And Mike's all over the country. So he'll be somewhere close to you,
if not in your city, or call him and book a class yourself. It's a pretty easy process.
(04:50):
So what's the case? We were talking about it. So let's jump into that one and
the case that's on your mind right now.
Yeah. So this was one that's going to be up on our newsletter coming out this month.
It's going to be one of our case of interest. Out of the Seventh Circuit Court
of Appeals, it's a case called Davis v.
Allen et al., and it originated out of Wisconsin.
(05:13):
So let's talk about kind of what kind of led up to this case.
So we got some sheriff's deputies who get an anonymous information that Davis
is over at a particular house in Wisconsin. I should say property.
It's the Heseltine property.
So they know that Davis has outstanding warrants, violent felony warrants,
(05:38):
arm robbery, strangulation, suffocation, bail jumping, that kind of stuff. Nice guy.
Yeah, exactly. And so they sent some deputies over with a police dog to go and arrest him.
And so when they're kind of arriving at the property, it's dark outside,
Davis, the offender in this case, who's got the outstanding warrants,
(05:58):
is sitting in his car in the driveway and he sees the headlights.
And as soon as he sees the headlights, he flees. He runs about 30 feet into
Hasseline's mobile home trailer.
And it's pretty dark outside. So the officers saw somebody run,
and they didn't see exactly where he went.
But they suspected that it was Davis and that he had entered the trailer that's on the property here.
(06:22):
And now Hasseline, the owner of the property, he's on probation for drug convictions.
So one of the sergeants gets there. He starts speaking to Hasseline. line.
And Hatheline basically tells the sergeant that he didn't know Davis or where he might have gone.
But after a few minutes, he kind of recants and he says, well,
Davis was here earlier because he was fixing my car, but he left and he must have run away.
(06:48):
So the officers informed him, hey, you're on probation under Wisconsin statute.
We have the authority to search your residence.
And, you know, of course, believing that Davis is hidden in there.
And, you know, based on the The offenses that he's wanted for,
they think he might be armed.
So they bring the dog up and they make their canine warning announcements,
several of them, and Davis doesn't announce himself.
(07:12):
So he sends the dog in and the dog kind of goes down this hallway and locates
Davis, who ultimately was lying face down in the trailer's back bedroom.
His head was kind of pointed towards the bedroom's door.
But this is like one of those trailers we've all been in as law enforcement officers.
It's very cramped, cluttered. It's messy. There's not a lot of room.
(07:36):
Of course, the dog locates him and he bites him on his upper left arm,
kind of just below the shoulder there.
And he starts screaming for help almost immediately.
And so the deputies enter the trailer and they start yelling at him,
the the dog handler specifically, saying, show me your hands. Don't fight my dog.
Show me your hands. Don't fight the dog. Come out. Come out to me.
(07:57):
Davis, shrieking in pain, kind of yells back that he can't come out.
He's yelling, please help. I can't. Please help.
And he just keeps repeating this over and over. And of course,
it's all on the officer's body cams.
So the sergeant who followed the dog handler kind of inside said he could partially
see Davis in the back bedroom, but he said he could only see Davis's head.
(08:20):
And the deputies and the officers didn't go any further into this.
They just continued to call Davis out.
So about 40 seconds after sending the dog in, the officers finally began to
start moving back towards the back bedroom where they had heard Davis screaming from.
And as the officers approached, the dog handler being in front,
(08:42):
the sergeant being in back, the sergeant now kind of tells the dog handler,
hey man, and I can see his hands.
And, you know, I don't see any weapons in his hands of any kind.
Now there's a dispute as to what happens next.
And this is going to become important in this case because we have a fact dispute at issue.
So the dog handler stated that he was coming down the hallway.
(09:04):
He was able to only see Davis's face, one of his hands, and at times his face and one of his hands.
And he continued to, you know, kind of command Davis out.
You kind of bring the dog to me type of a thing yeah but the
officers maintained that there was no clear visibility from the
entry of the trailer through the hallway to the bedroom where davis
(09:26):
was located now davis on the other hand
he claims that the dog handler could see him when he kind of entered you know
kind of almost from that front door that you know there would have been some
visual on him from that front door and he contended that he kept his hands visible
uh visibly extended above his head,
(09:47):
except, of course, when the dog was actively biting him and,
you know, jerking his arm, you know, all over the place.
And then the officer said, you know, once they reached that threshold of the
bedroom, they could not immediately enter because there was an immovable,
like, box spring that was kind of blocking the doorway there, reducing their path.
So the officers actually said they needed to remove their vests,
(10:09):
their Kevlar vests, in order to actually get in there to get control of the
dog and get the dog off the bite.
Once the handler grabbed the dog by the collar and gives that out command, the dog obeys.
And so there's not an issue here. What is an issue is this bite time,
two minutes, that's the time that they entered.
(10:32):
So the Seventh Circuit, now the officers moved.
Of course, let me just back up. So this is where Davis then files a lawsuit
against them under Title 42 of the United States Code, Subsection 1983,
which is our deprivation of rights under color of law.
It's the civil side of things when officers get sued generally for excessive
(10:52):
force or Fourth Amendment violations.
And the district court found that the officers were entitled to qualified immunity.
Community. In other words, that.
The first they said that the officers, they don't believe, committed a Fourth
(11:13):
Amendment violation, that the use of the dog was reasonable.
But then they said, you know, even if it was a Fourth Amendment violation,
there was nothing clearly established that would have put the officers on notice
that what they were doing was wrong.
Therefore, they kind of get this pass, qualified immunity.
And so this goes to the Seventh Circuit. Let's jump in real quick right there,
(11:34):
though, just because I think some people are a little unclear on the qualified immunity.
So at that point, the officers are off the hook, but the department and the
city are not when they have qualified immunity. Is that correct?
Well, it potentially. If it stands, I guess. Yeah, if it stands. Right. Yeah.
Potentially the city, you know, an officer can get qualified immunity and the
(11:56):
city or the municipality could still be liable, even though.
So I just wanted to jump in. So the case isn't over just because they said you're
going to get qualified immunity as an officer.
And just for the point of clarification, that would usually be because you followed
the city's standards and their policies and everything, and you're not outside
(12:17):
of policy, unless you're in a state like Colorado, which sucks.
But that's a whole other subject.
Right, that's a different topic for a different day. We could spend an entire day on that.
Yeah, right. That's exactly correct. Correct. And interestingly enough,
just on a side note, which you just said there, even if the officers acted reasonably,
(12:41):
the city nevertheless could still be found liable for...
Policy violations or Murnell violations, which comes from a case called Murnell
versus New York Social Services, if the plaintiff could prove that the agency
itself was the moving force behind the violation.
(13:03):
And that's a really good example of that, which we could talk about on a different day.
There's a case called Chu versus Gates. It's out of the Ninth Circuit where
the Ninth Circuit kind of concluded that.
But nonetheless, the district court in this case in Wisconsin found that the
officers should be dismissed from this case.
Now, the Seventh Circuit Court of Appeals reversed the district court and said
(13:29):
that this factual dispute precluded or prevented the officers from getting qualified
immunity at this particular stage.
In other words, What the Seventh Circuit said is this has to go before a fact
finder, a trier of fact, that being a judge or a jury,
(13:50):
to kind of resolve these disputed facts between the plaintiff, in this case Davis,
and the officers who are being sued.
Now, what's interesting about this is this, what I find interesting is this
whole issue of bring the dog to me, bring the dog to me.
(14:12):
And you've done a lot of expert cases.
Jeff, and one of the arguments that the plaintiff's experts are going to bring up is,
would it be reasonable for a person being bitten by a police dog to get up and
(14:34):
bring this dog out to the officers?
Yeah. especially when these officers testified that they themselves couldn't
even get through this tight space because of this box spring that was kind of
covering the door that they had to remove their Kevlar.
So the question, you know...
To me is we have to be careful when we are doing these dog deployments you know about requiring,
(15:04):
or having some idea that a actual person being bitten by a police dog could
actually walk this dog that's biting them back to the officer and whether or
not that would be a reasonable request And I'm going to be honest,
I just don't think that a reasonable jury,
a rational jury sitting there would believe that that would be a reasonable
(15:28):
request from a police officer,
you know, given the context.
And we see this all the time. Now, we do this in training, right?
Bring the dog back to me. Well, these are most of the time we're using,
you know, decoys, people in bite suits that have done this before.
They're either trained on it or they're experienced in it.
(15:49):
And they're in a bite suit, right?
So they can kind of walk the dog, you know, around or do certain things to get
the dog to react in a certain way or bring the dog, you know,
completely back to the handler.
And I just think that this brings up the discussion that, you know,
handlers should be having that, is this a reasonable request?
(16:11):
And I just don't think that juries are going to find that reasonable.
And we all know that how our dogs are trained, that if the person starts to
move around or resists or the dog thinks that the person is going to escape from them.
I mean, after all, this is why we have these dogs, right?
They're going to fight back. They're going to hold on harder,
(16:32):
they're going to start pulling, likely they're going to go into a prey drive
mode, do anything they can do to keep that person there.
And yet we're asking these people to then walk the damn dog back towards us.
And I just think that it's worth the discussion that we should have, not just in training.
But in our training groups about whether or not this is a reasonable request,
(16:55):
and I just don't think that a jury would find that reasonable,
and the amount of damage and the time that this is going to take is potentially
going to cause problems in those jurors' minds. Yeah.
I first heard about that training at least more than 20 years ago.
And I remember when I first heard about it, and I know kind of where a lot of
(17:16):
that training was coming from. them.
I respected the people that were putting out the training, but I just thought
it was a, if the very, very first time I heard, I had, I didn't have that much experience.
It struck me as not a very good idea. And now, you know, having a lot more experience
and traveling all over the country and doing scenarios,
I'll usually give people the opportunity if they've been trained that way in
(17:38):
a scenario to, to try to explain why it would work or whatever.
And And I've talked to people now for, you know, many, many,
many years and, you know, talked over thousands of deployments.
I have not ever had a handler now who can explain who was trained that way and
still believe, you know, a
lot of them still believe the whole bringing the dog to me is a good idea.
(17:58):
I've never yet had anybody who told me a story of, oh yeah, the guy was upstairs
in the bedroom and came out of the bedroom and walked down the stairs and delivered the dog to me.
So I couldn't agree more with you.
I think it's terrible training. I think the training itself is bad. It's not realistic.
And then, of course, the optics on body camera, which is the world we live in, is very problematic.
(18:23):
I agree with you. And I have spoken to many, many handlers like you.
And I agree. I have not yet found anybody who, as you said, subscribes to the
training and subscribes to that philosophy, told me that there was a successful on the street,
you know, bringing the dog to me.
(18:45):
And I think the premise behind it was good intention for officer safety purposes.
But, you know, we all know that the road to hell is paved with good intentions, right?
And so while the intentions are good, but it also,
I think, has created some laziness within our canine training because we start
(19:12):
sacrificing teaching tactics for this particular reason because it's not realistic.
We're not going to do it. But, well, now we cause or potentially could create
a delay in the officer in, okay, well, now I've got to figure out this person's
not responding. He's not going to bring the dog to me.
(19:32):
Now, how am I going to get in there safely? Yeah. And...
You know, go ahead and make the physical arrest and get control of my dog and all of that stuff.
There's another case that just happened actually kind of on this note.
It's out of the Fourth Circuit.
It's a case called Lopez versus Hamilton et al.
They didn't necessarily order the guy back, but the handler walks into the room
(19:56):
while the dog, it's kind of in this garage, it's very dark, or at least the
handler testifies that it's very dark.
And as soon as the dog bites, he enters is like 15 seconds or so after the dog
is on the bite and walks in and shoots this person.
And, you know, so it kind of, I kind of bring that back to that same point.
(20:18):
Well, let's go back to the training, right?
You know, does this officer even get training,
as to when the dog's on a bite in an area where I can't see him,
you know, did he receive training on how to properly do a room entry,
you know, secure the dog, secure the room, all
of that stuff and i think that it has become and i want to say
laziness because i don't know that that's the best word but i think you know
(20:40):
where i'm going with that is yeah in canine training we're just not doing it
and that's part of being a dog handler and i've said this repeatedly and i know
you have too you know we're the police first we are dog handlers second and we can't sacrifice.
Tactics good sound law enforcement tactics just because we have a police dog exactly,
(21:02):
And I think these two cases actually kind of bring those points home,
which is just what I wanted to kind of bring that discussion out on.
So is that case resolved now, that Seventh Circuit case?
No, that has been sent back to the district court to resolve the fact dispute.
And the good thing is, with the Seventh Circuit side is, just because we're
(21:25):
sending it back doesn't mean that we're denying qualified immunity.
We're just saying at this particular stage in the lawsuit.
We don't think qualified immunity is appropriate. It may later come out that
shows that the officers actually acted objectively reasonable.
It may come out that even if the officers were in violation of a constitutional
(21:48):
right later on after we resolve these factual disputes,
that qualified immunity would be appropriate because there would have been nothing
directly at that point that would have notified these officers that they were,
in fact, doing something wrong.
So they just remanded it back to the district court to kind of resolve that
fact dispute before they could proceed any further.
(22:10):
But it's a great reminder for the officers, handlers, and make sure you know
your agency's policies and stay in those guidelines because that's what saves
you a lot of times as long as you don't go out of policy.
And I think, you know, besides in the canine world, you know,
like guys will push the issue on whether they should deploy or not.
(22:31):
Once you push that issue, you know, it's kind of like the same,
you know, most places have very restrictive chase policies.
And guys, you know, I'm only following the guy.
I'm following the guy at 110 miles an hour without my siren on,
but I'm not actually chasing, you know.
So then you end up losing your qualified immunity and guys who,
you know, they have pretty restrictive policies on when they can deploy their
(22:54):
patrol dog and then that they want to,
they push the issue a little bit and then you're in court and all of a sudden
you're not in policy and that's where you can start losing qualified immunity.
Well, it's even bigger than that, Jeff, and you're bringing up a very important point.
Follow your agency's policy, right? Stay within the scope of your policy.
(23:17):
Also, I'd add one thing to that. Stay within the scope of your training.
Stay within the scope of your training. But when you don't follow your policy,
not just can there be civil issues,
but they could use, they being the prosecutors actually, can use a violation
(23:38):
of your department policy.
To show that you acted in a willful and wanton manner with evil motive.
And it could be used to actually criminally prosecute you.
Which is on the rise all over the country. Oh, it 100% is.
And so, as a good reminder that you just said, we've got to stay within the
(24:00):
scope of the policy, stay within the scope of our training, stay within the
scope of our certification, because
those are all things that are going to help us down the road. Yeah.
And then one other point on the whole, uh, bring the dog to me,
which even if the person did that, then they're showing that they are complying
and yet the use of force is still continuing.
(24:23):
And I think that goes back. So not just to bring the dog to me,
this whole duration of the bite and you know, everything else,
I think a lot of it goes to, and I guess the word, I agree with the word isn't lazy.
I think complacency in training, or I just read a great post on one of the forums
about verbal releases, which I'm an advocate of, that some people just aren't proficient in it.
(24:49):
So then over the years, it's been watered down into trying to be a tactical
situation because some trainers didn't know how to train a strong verbal out.
So it goes back to you know whether it's bring
the dog to me or if you can just see the suspect
and the suspect's hands are shown that use of force has to stop and it's we're
seeing it so many places where it doesn't and you know it's gonna it's it's
(25:13):
gonna come back and bite the whole industry well i agree 100 because that's
the number one issue is this duration of bite and you see it and I see it,
the industry should be seeing it.
Yeah. And I agree. I am with you.
I'm a big proponent of verbal releases.
(25:34):
And I agree that the reason that we don't is partly out of complacency,
but also because we do have trainers that don't know how to teach that,
as you said, that strong verbal release.
I'll throw in a quick little history thing that
that's kind of anecdotal but it's funny at least 25
years ago or so i remember through our chain of command we got an email or it
(25:59):
probably wasn't even email back then but it was a question and the long story
short was they wanted to know why there was a department around that the trainer
had quote trained the dogs not to bite white suspects.
Well, what had happened was the trainer had dogs that kept failing and would not engage the suspect.
So when he got called on the carpet about it.
(26:22):
He explained that he was such an awesome trainer that he had actually taught
his dogs just to circle around and run around and slow the people up so then
they could run up and tackle them if they're running or whatever.
So it was a complete failure of the dog, but the guy was a car salesman and went to his chief.
Well, then the chiefs, who know nothing about canine, all got together.
(26:42):
And at some, you know, chief's breakfast or whatever, this chief starts bragging
about how his canine unit is so far superior because they don't have to,
they never get any bites because of the hand.
So then the question came back to us, why can't we train that way?
And why are our dogs biting people?
You know, so those are how weird things start happening.
(27:04):
And I suspect that, you know, somebody who didn't know how to train a verbal
out started saying, well, it's more tactical not to do a verbal out.
And it seems to be, you know, something that's more common than the people who
are against verbal outs are more common than the people who like you or I that,
that agree that you should have a verbal out and use it on the street.
(27:24):
Yeah, no, 100%. And, and here, and, and, but there's a side issue to that because
it's, I think it's not just the verbal out because once you get that,
the nuts, there's another phase or another step to that.
And that is preventing rebites. Yeah. Yep.
But that's all part of that. And those trainers who do train in the verbal outs,
(27:47):
I have found, sometimes miss the next step, which is to prevent the rebite on
that, right? And it's just an obedience thing.
This is what I think a lot of trainers, when we start talking about obedience,
obedience is the foundation to just about everything that the dog does.
(28:10):
And, and that's all that a verbal out is. That's all, that's all that a verbal
out is. And that's all that a, of preventing that rebite.
It's all just about control and obedience over there with the guys.
Again, different topic for a different day. Yeah. But I think it's,
it's, it's all kind of comes together.
I think some of these things get watered down because we're,
(28:30):
you know, our industry is more of a, a craft where, you know,
you learn it from somebody and whatever their flaws are, they just pass them on.
And over the years, those flaws start becoming the norm,
you know, just so definitely, you know, definitely another topic,
but still on the same thing about talking about duration of bite and how did we get to this point?
(28:52):
Because the duration of the bite now, to my knowledge, and my question to you
is, are there any cases right now that specifically, I know it's coming up,
but right now, as far as I know, there's no cases that actually address it yet.
I mean, in black and white, like this is too long or this isn't too long.
(29:12):
No, they're kind of all over the board. And the reason that they are is because
use of force and the analysis of use of force is very fact-specific and fact-intensive.
So if we just think about
the analysis of a use of force
(29:34):
it comes down to a standard of objective reasonableness so under the circumstances
a longer bite may be objectively reasonable but in other circumstances that
same bite time may be objectively unreasonable and it also depends
on the circuit court of appeals that the officers are deploying.
(29:59):
As an example, there's a case that just came out of the Fifth Circuit.
I think it was November of last year, it's Sly versus City of Conroe, Texas, et al.,
where this was a 64-total-second bite, but the handler ordered the release at the eight-second mark.
So dog's biting, eight seconds, handler orders the release, dog doesn't actually
(30:24):
come off the bite for a total of 64 seconds, right?
So if my math is correct, that's 56
seconds that the dog stayed on the bite after the
first relief command now most
circuits are not going to come to this conclusion but the fifth
circuit said that the fourth amendment only applied to the eight first eight
(30:49):
seconds because that was the intentional part of the seizure and then after
the eight seconds the seizure was no longer intended so it became a accidental bite and And therefore,
there was really not a Fourth Amendment issue, which is shocking to me, to be quite honest.
And I'm not confident that any other circuit is going to see it that way.
(31:09):
Maybe the slick circuit. Yeah.
I love Texas for a reason. I mean, there's...
Exactly, right? So, I mean, these are the issues that we have to be considering.
And it's got to be regularly and routinely part of our training. Yep. Not just...
Not just the physical part of our training where we're outing the dog verbally
(31:30):
or physically or whatever, but it also has to be part of the discussion about,
listen, was this reasonable?
Why didn't you give the out command earlier?
And if that out command didn't work, why didn't you take steps immediately to intervene in that?
These are the discussions that we should be having in training. Yeah.
And I agree, you know, that the time factor is going to change on every single deployment.
(31:56):
But I think the notion, and I mean, I see these cases and it's getting brought
up and, you know, these cases usually wind their way through,
you know, to where you end up with a Graham versus Connor where they really say,
all right, here's some real solid rules because you didn't listen to the other 30 cases.
So here's, we're going to really lay it out for you. I would believe that if
we, not if, when we get to that point on this bite duration,
(32:20):
I would think that whether it's the Supreme Court or whatever,
however it comes out, I think it's going to in general say that when the person
submits to arrest and shows that they're, you know, ceasing their,
you know, whatever type of resistance they have and they're,
you know, signaling compliance.
That that use of force is going to have to stop.
(32:40):
And the whole, you know, slowly walk up to the guy and surround him and,
you know, ready on the right, ready on the left.
As the person has his hands out and is rolling around in the middle of the yard, I give up, I give up.
And then, you know, a minute later when we're ready, we go over there and then
we start putting cuffs on him and, you know, slowly get him cuffed up.
(33:01):
And then the second minute we lift the dog off, I just don't think that's going to fly.
Not in the climate we're in anymore. Well, and this is what I – it's so important
what you just said because if you look at any other instrumentality of force that we use, taser.
Bean bag. Bean bags, any of that, the courts have already said that.
(33:24):
The courts have repeatedly said as the threat changes, so too should the degree of force.
I'll give you an example. I just know off the top of my head it's not a dog case.
It's a taser case. it's cyrus versus tana mcwanico also a
seventh circuit case where they said as the threat changes
so too should the degree of force and they have applied that in the at least
in the seventh circuit and i know other circuits to dog bites yeah and so we're
(33:49):
getting to that point what we don't want and here's what i fear jeff on what
you said is before we get to that bright line rule.
That the courts say that because of the duration of this bite we've pushed us
into serious physical harm or serious bodily injury or great bodily harm whatever
(34:11):
your state terms it and therefore,
we have moved into the deadly force category yep and i i feared that that would
happen before a bright line rule and therefore we would lose this very very very valuable tool
that we have and we know just from statistics we
(34:32):
know from the data that the dog is one of if not arguably the most powerful
de-escalation tool that we have in our arsenal you know people would rather
you shoot them than get bit by your damn dog yeah yeah so we would in that scenario.
It would be i think it would be just it would devastate devastate our our industry
(34:55):
it would Because the times you could use a dog are going to be so limited that,
you know, the juice isn't worth the squeeze for an agency to even have a canine unit at that point.
100%. Yeah, 100% agree. I mean, if we're at a deadly force, you know,
you know the adage, right?
We don't bring a knife to a gunfight, but we don't bring a dog to a gunfight
either. We bring gunfights. Exactly. Or, you know, guns to gunfights.
(35:17):
Yeah. So, and I don't always mean to sound like the sky has fallen,
but I mean, you and I both are paying a whole lot of attention to the industry
and the, you know, the people that are attacking this industry and they're gaining
traction. It's unfortunate.
Our whole profession is under attack, but man, that'd be a big feather in the
cap of a lot of these politicians who hate cops to be able to get rid of police dogs.
(35:39):
So we need to be careful. And I think 100%, Jeff, and I think what our industry
has is a messaging problem.
That's what we have. We have a messaging problem. I mean, if we really just
put out the data and the statistics and said,
look at all these people who were apprehended by the use of a dog that did not have.
(36:06):
A dog bite attached to it and we just kept pushing
that out and pushing that out and that should be the narrative
but we don't unfortunately
yeah and maybe those are you know i know a lot of times agencies will release
body camera videos of of critical incidents which would include dog bites maybe
you know the pios should start thinking about releasing the body camera videos
(36:27):
of the non-dog bites and show what a great job that they do because you know
then when you look on their,
youtube channel or whatever there's gonna be a whole lot more of those a few
bites but i never thought about that before but might be something to think about,
no i i i'm with you for sure so just
to wrap this up you know i mean the case is interesting but
(36:48):
obviously you know the big points here are stay within
your policy and you know do do the training that that you know is is is industry
standard which i'd say overall most people do but go Go outside and get some
other trainers and train with some other groups once in a while just to see
what other people are doing.
(37:08):
Maybe you can learn some stuff and take it back to your training group.
Yeah, I think that was a great sum up of that for sure.
And we'll be back for some more episodes here real soon. We've got some detector dog stuff coming up.
So I'm looking forward to the upcoming episodes.
And I know you're out on the road a lot. So again,
(37:30):
people check out Mike's website at sheepdogguardian.com and check out where
he's going to be and go to one of the classes or talk to him about bringing
the class to your city too. It's not too hard to set up.
Thanks, Mike. Yeah, I appreciate it. Yeah, I appreciate you coming on today,
and we'll be back soon with a detector dog case. Sounds good.
(37:52):
Thanks, John. All right.
All right. That's going to wrap it up for today's show. I want to end,
as always, thanking a couple more sponsors.
So I've been talking about Bob Eden all year, catsplatinum.com.
He does record-keeping software over at the Cats Canine Activity Tracking System.
So check out catsplatinum.com.
It's Bob Eden's software. It's the original online software for canine record-keeping.
(38:16):
So highly flexible, great company. If you call there, you'll be talking to probably
Bob himself because he runs the company and does all the ins and outs of making
things work on it. So check out kathsplatinum.com.
He'll set you up for a free trial run and see if it's for you and see how customizable it is.
So for record keeping, I think Kath's Platinum is an outstanding choice.
(38:40):
And then finally, of course, we're going to thank Ray Allen. Ray
Allen's here in Colorado where I'm at out of Colorado
Springs they make everything that we need for
canine our partners outstanding company
and what they're always known for is quality if you buy something from Ray Allen
it's going to be a good quality product they don't sell stuff until it's been
vetted and tested by a lot of people in the industry they make sure that it'll
(39:04):
stand up to what we do with it and then if for some reason you were to have
a problem with their product give them a call,
send it back to them, and they'll stand behind everything they sell. I know that for a fact.
So Ray Allen Canine down in Colorado Springs, so rayallencanine.com,
excellent company for all your canine needs.
Music.
Hey everybody, this is Jeff Meyer. Before we get to the show,
let's thank a couple of sponsors for the show.
Acecanine.com is out there saving dogs every day. So if you have a dog,
you need to have a heat alarm in your car.
And the heat alarm that I recommend is Ace Canine. So check out Acecanine.com.
They have a lot of features to it. The cell phone feature is unique to Ace Canine
(00:22):
where it'll call the phone.
It's an excellent system, very well designed. and the company is a big supporter
of ours, not just because they're in the business of supporting us,
they genuinely care about the dogs that they're protecting.
So check out acecanine.com for heat alarms. They do door poppers.
Very good company, acecanine.com.
(00:43):
And also, Kevin Sheldahl. I've been talking about him for a while.
I did a show with him. He's down in New Mexico. He runs a company called Canine Services.
His website is k-9services.com. his phone number is 505-250-4576.
If you want to go down to New Mexico, you can go to one of Kevin's academies.
You can buy a dog from him. He does absolutely everything related to what we do.
(01:07):
So all different types of dogs, all different types of training.
And then he also does seminars so he can come to you.
So check out canineservices.com. See if there's some services that you want
to work with, with Kevin on wealth and knowledge and outstanding partner in our business.
So check it out today. And with that, let's go to the show. Listen to our legal update show.
(01:30):
Music.
This is the police canine training podcast with Jeff Meyer.
Join us for each episode to get real world advice from canine professionals
who have experience on the street.
Each episode will We'll focus on up-to-date information that you can use on the street.
(01:52):
Spend about 30 minutes with us each week as part of your training day.
Our goal at Police K-9 Training is to make every K-9 team be the best they can be.
Music.
Welcome to the Police K9 Training Podcast. I'm your host, Jeff Meyer.
(02:13):
Today I have Mike Kamisik back from Sheepdog Guardian.
He's been doing a lot of regular shows with me, which I appreciate,
doing updates and talking about new cases.
So I've been talking to him recently about a couple of different topics,
and he's got a case today that was a newer case that we wanted to get on and
kind of talk about some of the issues surrounding that.
So if you aren't sure who who mike is go
(02:36):
to sheepdog guardian and join for sure
it's worth the money he's got a wealth of knowledge and
a bunch of great information on his site so with
that mike how are you doing today i'm doing great job
thanks for having me back on i much appreciate
it i want to make sure i got it right it's sheepdog guardian.com right that's
(02:56):
correct yep sheepdog guardian.com and you can sign up for the newsletter there
and get regular newsletters and sign up for the the whole service So check out
sheepdogguardian.com and Mike has a lot of stuff on there.
So what's new going on with you? I know you got a lot of cases and you're traveling a lot.
Well, since I retired from law enforcement, as you know, Jeff,
(03:19):
man, just things are in full swing.
Very, very busy traveling around, teaching our seminars as they relate to use
of force, the dogs and detection as well.
I'm just keeping handlers up to date on what the cases are, some search and
seizure issues and some issues that, you know, I've seen as an expert witness
(03:42):
defending, you know, the officers and their agencies.
So we're starting to, I mean, we were busy, but now it's getting pretty busy.
I think we're almost booked up through mid 2025 or so. Yeah.
Yeah, it's good. Yeah, the calendar's on your website too. So it's a two-day class still, isn't it?
Yeah, we do. The main class that we do, the most popular, is a two-day.
(04:04):
We cover patrol and detection.
And industry standards related to training certification and our use of force,
terminology, that kind of stuff.
And what we're starting to see now is a big pickup in our supervisor class, which is a one-day.
So what we're seeing is really a three-day. So we have a two-day patrol detection,
(04:26):
and then we do the supervisor one kind of with that.
So, yeah, it's good. Yeah, it's good. It's a good class.
If you haven't ever been to one, you really need to go to one.
And if you haven't been to one for a while, the information changes all the time.
So it's worth it. So you can check the website.
And Mike's all over the country. So he'll be somewhere close to you,
if not in your city, or call him and book a class yourself. It's a pretty easy process.
(04:50):
So what's the case? We were talking about it. So let's jump into that one and
the case that's on your mind right now.
Yeah. So this was one that's going to be up on our newsletter coming out this month.
It's going to be one of our case of interest. Out of the Seventh Circuit Court
of Appeals, it's a case called Davis v.
Allen et al., and it originated out of Wisconsin.
(05:13):
So let's talk about kind of what kind of led up to this case.
So we got some sheriff's deputies who get an anonymous information that Davis
is over at a particular house in Wisconsin. I should say property.
It's the Heseltine property.
So they know that Davis has outstanding warrants, violent felony warrants,
(05:38):
arm robbery, strangulation, suffocation, bail jumping, that kind of stuff. Nice guy.
Yeah, exactly. And so they sent some deputies over with a police dog to go and arrest him.
And so when they're kind of arriving at the property, it's dark outside,
Davis, the offender in this case, who's got the outstanding warrants,
(05:58):
is sitting in his car in the driveway and he sees the headlights.
And as soon as he sees the headlights, he flees. He runs about 30 feet into
Hasseline's mobile home trailer.
And it's pretty dark outside. So the officers saw somebody run,
and they didn't see exactly where he went.
But they suspected that it was Davis and that he had entered the trailer that's on the property here.
(06:22):
And now Hasseline, the owner of the property, he's on probation for drug convictions.
So one of the sergeants gets there. He starts speaking to Hasseline. line.
And Hatheline basically tells the sergeant that he didn't know Davis or where he might have gone.
But after a few minutes, he kind of recants and he says, well,
Davis was here earlier because he was fixing my car, but he left and he must have run away.
(06:48):
So the officers informed him, hey, you're on probation under Wisconsin statute.
We have the authority to search your residence.
And, you know, of course, believing that Davis is hidden in there.
And, you know, based on the The offenses that he's wanted for,
they think he might be armed.
So they bring the dog up and they make their canine warning announcements,
several of them, and Davis doesn't announce himself.
(07:12):
So he sends the dog in and the dog kind of goes down this hallway and locates
Davis, who ultimately was lying face down in the trailer's back bedroom.
His head was kind of pointed towards the bedroom's door.
But this is like one of those trailers we've all been in as law enforcement officers.
It's very cramped, cluttered. It's messy. There's not a lot of room.
(07:36):
Of course, the dog locates him and he bites him on his upper left arm,
kind of just below the shoulder there.
And he starts screaming for help almost immediately.
And so the deputies enter the trailer and they start yelling at him,
the the dog handler specifically, saying, show me your hands. Don't fight my dog.
Show me your hands. Don't fight the dog. Come out. Come out to me.
(07:57):
Davis, shrieking in pain, kind of yells back that he can't come out.
He's yelling, please help. I can't. Please help.
And he just keeps repeating this over and over. And of course,
it's all on the officer's body cams.
So the sergeant who followed the dog handler kind of inside said he could partially
see Davis in the back bedroom, but he said he could only see Davis's head.
(08:20):
And the deputies and the officers didn't go any further into this.
They just continued to call Davis out.
So about 40 seconds after sending the dog in, the officers finally began to
start moving back towards the back bedroom where they had heard Davis screaming from.
And as the officers approached, the dog handler being in front,
(08:42):
the sergeant being in back, the sergeant now kind of tells the dog handler,
hey man, and I can see his hands.
And, you know, I don't see any weapons in his hands of any kind.
Now there's a dispute as to what happens next.
And this is going to become important in this case because we have a fact dispute at issue.
So the dog handler stated that he was coming down the hallway.
(09:04):
He was able to only see Davis's face, one of his hands, and at times his face and one of his hands.
And he continued to, you know, kind of command Davis out.
You kind of bring the dog to me type of a thing yeah but the
officers maintained that there was no clear visibility from the
entry of the trailer through the hallway to the bedroom where davis
(09:26):
was located now davis on the other hand
he claims that the dog handler could see him when he kind of entered you know
kind of almost from that front door that you know there would have been some
visual on him from that front door and he contended that he kept his hands visible
uh visibly extended above his head,
(09:47):
except, of course, when the dog was actively biting him and,
you know, jerking his arm, you know, all over the place.
And then the officer said, you know, once they reached that threshold of the
bedroom, they could not immediately enter because there was an immovable,
like, box spring that was kind of blocking the doorway there, reducing their path.
So the officers actually said they needed to remove their vests,
(10:09):
their Kevlar vests, in order to actually get in there to get control of the
dog and get the dog off the bite.
Once the handler grabbed the dog by the collar and gives that out command, the dog obeys.
And so there's not an issue here. What is an issue is this bite time,
two minutes, that's the time that they entered.
(10:32):
So the Seventh Circuit, now the officers moved.
Of course, let me just back up. So this is where Davis then files a lawsuit
against them under Title 42 of the United States Code, Subsection 1983,
which is our deprivation of rights under color of law.
It's the civil side of things when officers get sued generally for excessive
(10:52):
force or Fourth Amendment violations.
And the district court found that the officers were entitled to qualified immunity.
Community. In other words, that.
The first they said that the officers, they don't believe, committed a Fourth
(11:13):
Amendment violation, that the use of the dog was reasonable.
But then they said, you know, even if it was a Fourth Amendment violation,
there was nothing clearly established that would have put the officers on notice
that what they were doing was wrong.
Therefore, they kind of get this pass, qualified immunity.
And so this goes to the Seventh Circuit. Let's jump in real quick right there,
(11:34):
though, just because I think some people are a little unclear on the qualified immunity.
So at that point, the officers are off the hook, but the department and the
city are not when they have qualified immunity. Is that correct?
Well, it potentially. If it stands, I guess. Yeah, if it stands. Right. Yeah.
Potentially the city, you know, an officer can get qualified immunity and the
(11:56):
city or the municipality could still be liable, even though.
So I just wanted to jump in. So the case isn't over just because they said you're
going to get qualified immunity as an officer.
And just for the point of clarification, that would usually be because you followed
the city's standards and their policies and everything, and you're not outside
(12:17):
of policy, unless you're in a state like Colorado, which sucks.
But that's a whole other subject.
Right, that's a different topic for a different day. We could spend an entire day on that.
Yeah, right. That's exactly correct. Correct. And interestingly enough,
just on a side note, which you just said there, even if the officers acted reasonably,
(12:41):
the city nevertheless could still be found liable for...
Policy violations or Murnell violations, which comes from a case called Murnell
versus New York Social Services, if the plaintiff could prove that the agency
itself was the moving force behind the violation.
(13:03):
And that's a really good example of that, which we could talk about on a different day.
There's a case called Chu versus Gates. It's out of the Ninth Circuit where
the Ninth Circuit kind of concluded that.
But nonetheless, the district court in this case in Wisconsin found that the
officers should be dismissed from this case.
Now, the Seventh Circuit Court of Appeals reversed the district court and said
(13:29):
that this factual dispute precluded or prevented the officers from getting qualified
immunity at this particular stage.
In other words, What the Seventh Circuit said is this has to go before a fact
finder, a trier of fact, that being a judge or a jury,
(13:50):
to kind of resolve these disputed facts between the plaintiff, in this case Davis,
and the officers who are being sued.
Now, what's interesting about this is this, what I find interesting is this
whole issue of bring the dog to me, bring the dog to me.
(14:12):
And you've done a lot of expert cases.
Jeff, and one of the arguments that the plaintiff's experts are going to bring up is,
would it be reasonable for a person being bitten by a police dog to get up and
(14:34):
bring this dog out to the officers?
Yeah. especially when these officers testified that they themselves couldn't
even get through this tight space because of this box spring that was kind of
covering the door that they had to remove their Kevlar.
So the question, you know...
To me is we have to be careful when we are doing these dog deployments you know about requiring,
(15:04):
or having some idea that a actual person being bitten by a police dog could
actually walk this dog that's biting them back to the officer and whether or
not that would be a reasonable request And I'm going to be honest,
I just don't think that a reasonable jury,
a rational jury sitting there would believe that that would be a reasonable
(15:28):
request from a police officer,
you know, given the context.
And we see this all the time. Now, we do this in training, right?
Bring the dog back to me. Well, these are most of the time we're using,
you know, decoys, people in bite suits that have done this before.
They're either trained on it or they're experienced in it.
(15:49):
And they're in a bite suit, right?
So they can kind of walk the dog, you know, around or do certain things to get
the dog to react in a certain way or bring the dog, you know,
completely back to the handler.
And I just think that this brings up the discussion that, you know,
handlers should be having that, is this a reasonable request?
(16:11):
And I just don't think that juries are going to find that reasonable.
And we all know that how our dogs are trained, that if the person starts to
move around or resists or the dog thinks that the person is going to escape from them.
I mean, after all, this is why we have these dogs, right?
They're going to fight back. They're going to hold on harder,
(16:32):
they're going to start pulling, likely they're going to go into a prey drive
mode, do anything they can do to keep that person there.
And yet we're asking these people to then walk the damn dog back towards us.
And I just think that it's worth the discussion that we should have, not just in training.
But in our training groups about whether or not this is a reasonable request,
(16:55):
and I just don't think that a jury would find that reasonable,
and the amount of damage and the time that this is going to take is potentially
going to cause problems in those jurors' minds. Yeah.
I first heard about that training at least more than 20 years ago.
And I remember when I first heard about it, and I know kind of where a lot of
(17:16):
that training was coming from. them.
I respected the people that were putting out the training, but I just thought
it was a, if the very, very first time I heard, I had, I didn't have that much experience.
It struck me as not a very good idea. And now, you know, having a lot more experience
and traveling all over the country and doing scenarios,
I'll usually give people the opportunity if they've been trained that way in
(17:38):
a scenario to, to try to explain why it would work or whatever.
And And I've talked to people now for, you know, many, many,
many years and, you know, talked over thousands of deployments.
I have not ever had a handler now who can explain who was trained that way and
still believe, you know, a
lot of them still believe the whole bringing the dog to me is a good idea.
(17:58):
I've never yet had anybody who told me a story of, oh yeah, the guy was upstairs
in the bedroom and came out of the bedroom and walked down the stairs and delivered the dog to me.
So I couldn't agree more with you.
I think it's terrible training. I think the training itself is bad. It's not realistic.
And then, of course, the optics on body camera, which is the world we live in, is very problematic.
(18:23):
I agree with you. And I have spoken to many, many handlers like you.
And I agree. I have not yet found anybody who, as you said, subscribes to the
training and subscribes to that philosophy, told me that there was a successful on the street,
you know, bringing the dog to me.
(18:45):
And I think the premise behind it was good intention for officer safety purposes.
But, you know, we all know that the road to hell is paved with good intentions, right?
And so while the intentions are good, but it also,
I think, has created some laziness within our canine training because we start
(19:12):
sacrificing teaching tactics for this particular reason because it's not realistic.
We're not going to do it. But, well, now we cause or potentially could create
a delay in the officer in, okay, well, now I've got to figure out this person's
not responding. He's not going to bring the dog to me.
(19:32):
Now, how am I going to get in there safely? Yeah. And...
You know, go ahead and make the physical arrest and get control of my dog and all of that stuff.
There's another case that just happened actually kind of on this note.
It's out of the Fourth Circuit.
It's a case called Lopez versus Hamilton et al.
They didn't necessarily order the guy back, but the handler walks into the room
(19:56):
while the dog, it's kind of in this garage, it's very dark, or at least the
handler testifies that it's very dark.
And as soon as the dog bites, he enters is like 15 seconds or so after the dog
is on the bite and walks in and shoots this person.
And, you know, so it kind of, I kind of bring that back to that same point.
(20:18):
Well, let's go back to the training, right?
You know, does this officer even get training,
as to when the dog's on a bite in an area where I can't see him,
you know, did he receive training on how to properly do a room entry,
you know, secure the dog, secure the room, all
of that stuff and i think that it has become and i want to say
laziness because i don't know that that's the best word but i think you know
(20:40):
where i'm going with that is yeah in canine training we're just not doing it
and that's part of being a dog handler and i've said this repeatedly and i know
you have too you know we're the police first we are dog handlers second and we can't sacrifice.
Tactics good sound law enforcement tactics just because we have a police dog exactly,
(21:02):
And I think these two cases actually kind of bring those points home,
which is just what I wanted to kind of bring that discussion out on.
So is that case resolved now, that Seventh Circuit case?
No, that has been sent back to the district court to resolve the fact dispute.
And the good thing is, with the Seventh Circuit side is, just because we're
(21:25):
sending it back doesn't mean that we're denying qualified immunity.
We're just saying at this particular stage in the lawsuit.
We don't think qualified immunity is appropriate. It may later come out that
shows that the officers actually acted objectively reasonable.
It may come out that even if the officers were in violation of a constitutional
(21:48):
right later on after we resolve these factual disputes,
that qualified immunity would be appropriate because there would have been nothing
directly at that point that would have notified these officers that they were,
in fact, doing something wrong.
So they just remanded it back to the district court to kind of resolve that
fact dispute before they could proceed any further.
(22:10):
But it's a great reminder for the officers, handlers, and make sure you know
your agency's policies and stay in those guidelines because that's what saves
you a lot of times as long as you don't go out of policy.
And I think, you know, besides in the canine world, you know,
like guys will push the issue on whether they should deploy or not.
(22:31):
Once you push that issue, you know, it's kind of like the same,
you know, most places have very restrictive chase policies.
And guys, you know, I'm only following the guy.
I'm following the guy at 110 miles an hour without my siren on,
but I'm not actually chasing, you know.
So then you end up losing your qualified immunity and guys who,
you know, they have pretty restrictive policies on when they can deploy their
(22:54):
patrol dog and then that they want to,
they push the issue a little bit and then you're in court and all of a sudden
you're not in policy and that's where you can start losing qualified immunity.
Well, it's even bigger than that, Jeff, and you're bringing up a very important point.
Follow your agency's policy, right? Stay within the scope of your policy.
(23:17):
Also, I'd add one thing to that. Stay within the scope of your training.
Stay within the scope of your training. But when you don't follow your policy,
not just can there be civil issues,
but they could use, they being the prosecutors actually, can use a violation
(23:38):
of your department policy.
To show that you acted in a willful and wanton manner with evil motive.
And it could be used to actually criminally prosecute you.
Which is on the rise all over the country. Oh, it 100% is.
And so, as a good reminder that you just said, we've got to stay within the
(24:00):
scope of the policy, stay within the scope of our training, stay within the
scope of our certification, because
those are all things that are going to help us down the road. Yeah.
And then one other point on the whole, uh, bring the dog to me,
which even if the person did that, then they're showing that they are complying
and yet the use of force is still continuing.
(24:23):
And I think that goes back. So not just to bring the dog to me,
this whole duration of the bite and you know, everything else,
I think a lot of it goes to, and I guess the word, I agree with the word isn't lazy.
I think complacency in training, or I just read a great post on one of the forums
about verbal releases, which I'm an advocate of, that some people just aren't proficient in it.
(24:49):
So then over the years, it's been watered down into trying to be a tactical
situation because some trainers didn't know how to train a strong verbal out.
So it goes back to you know whether it's bring
the dog to me or if you can just see the suspect
and the suspect's hands are shown that use of force has to stop and it's we're
seeing it so many places where it doesn't and you know it's gonna it's it's
(25:13):
gonna come back and bite the whole industry well i agree 100 because that's
the number one issue is this duration of bite and you see it and I see it,
the industry should be seeing it.
Yeah. And I agree. I am with you.
I'm a big proponent of verbal releases.
(25:34):
And I agree that the reason that we don't is partly out of complacency,
but also because we do have trainers that don't know how to teach that,
as you said, that strong verbal release.
I'll throw in a quick little history thing that
that's kind of anecdotal but it's funny at least 25
years ago or so i remember through our chain of command we got an email or it
(25:59):
probably wasn't even email back then but it was a question and the long story
short was they wanted to know why there was a department around that the trainer
had quote trained the dogs not to bite white suspects.
Well, what had happened was the trainer had dogs that kept failing and would not engage the suspect.
So when he got called on the carpet about it.
(26:22):
He explained that he was such an awesome trainer that he had actually taught
his dogs just to circle around and run around and slow the people up so then
they could run up and tackle them if they're running or whatever.
So it was a complete failure of the dog, but the guy was a car salesman and went to his chief.
Well, then the chiefs, who know nothing about canine, all got together.
(26:42):
And at some, you know, chief's breakfast or whatever, this chief starts bragging
about how his canine unit is so far superior because they don't have to,
they never get any bites because of the hand.
So then the question came back to us, why can't we train that way?
And why are our dogs biting people?
You know, so those are how weird things start happening.
(27:04):
And I suspect that, you know, somebody who didn't know how to train a verbal
out started saying, well, it's more tactical not to do a verbal out.
And it seems to be, you know, something that's more common than the people who
are against verbal outs are more common than the people who like you or I that,
that agree that you should have a verbal out and use it on the street.
(27:24):
Yeah, no, 100%. And, and here, and, and, but there's a side issue to that because
it's, I think it's not just the verbal out because once you get that,
the nuts, there's another phase or another step to that.
And that is preventing rebites. Yeah. Yep.
But that's all part of that. And those trainers who do train in the verbal outs,
(27:47):
I have found, sometimes miss the next step, which is to prevent the rebite on
that, right? And it's just an obedience thing.
This is what I think a lot of trainers, when we start talking about obedience,
obedience is the foundation to just about everything that the dog does.
(28:10):
And, and that's all that a verbal out is. That's all, that's all that a verbal
out is. And that's all that a, of preventing that rebite.
It's all just about control and obedience over there with the guys.
Again, different topic for a different day. Yeah. But I think it's,
it's, it's all kind of comes together.
I think some of these things get watered down because we're,
(28:30):
you know, our industry is more of a, a craft where, you know,
you learn it from somebody and whatever their flaws are, they just pass them on.
And over the years, those flaws start becoming the norm,
you know, just so definitely, you know, definitely another topic,
but still on the same thing about talking about duration of bite and how did we get to this point?
(28:52):
Because the duration of the bite now, to my knowledge, and my question to you
is, are there any cases right now that specifically, I know it's coming up,
but right now, as far as I know, there's no cases that actually address it yet.
I mean, in black and white, like this is too long or this isn't too long.
(29:12):
No, they're kind of all over the board. And the reason that they are is because
use of force and the analysis of use of force is very fact-specific and fact-intensive.
So if we just think about
the analysis of a use of force
(29:34):
it comes down to a standard of objective reasonableness so under the circumstances
a longer bite may be objectively reasonable but in other circumstances that
same bite time may be objectively unreasonable and it also depends
on the circuit court of appeals that the officers are deploying.
(29:59):
As an example, there's a case that just came out of the Fifth Circuit.
I think it was November of last year, it's Sly versus City of Conroe, Texas, et al.,
where this was a 64-total-second bite, but the handler ordered the release at the eight-second mark.
So dog's biting, eight seconds, handler orders the release, dog doesn't actually
(30:24):
come off the bite for a total of 64 seconds, right?
So if my math is correct, that's 56
seconds that the dog stayed on the bite after the
first relief command now most
circuits are not going to come to this conclusion but the fifth
circuit said that the fourth amendment only applied to the eight first eight
(30:49):
seconds because that was the intentional part of the seizure and then after
the eight seconds the seizure was no longer intended so it became a accidental bite and And therefore,
there was really not a Fourth Amendment issue, which is shocking to me, to be quite honest.
And I'm not confident that any other circuit is going to see it that way.
(31:09):
Maybe the slick circuit. Yeah.
I love Texas for a reason. I mean, there's...
Exactly, right? So, I mean, these are the issues that we have to be considering.
And it's got to be regularly and routinely part of our training. Yep. Not just...
Not just the physical part of our training where we're outing the dog verbally
(31:30):
or physically or whatever, but it also has to be part of the discussion about,
listen, was this reasonable?
Why didn't you give the out command earlier?
And if that out command didn't work, why didn't you take steps immediately to intervene in that?
These are the discussions that we should be having in training. Yeah.
And I agree, you know, that the time factor is going to change on every single deployment.
(31:56):
But I think the notion, and I mean, I see these cases and it's getting brought
up and, you know, these cases usually wind their way through,
you know, to where you end up with a Graham versus Connor where they really say,
all right, here's some real solid rules because you didn't listen to the other 30 cases.
So here's, we're going to really lay it out for you. I would believe that if
we, not if, when we get to that point on this bite duration,
(32:20):
I would think that whether it's the Supreme Court or whatever,
however it comes out, I think it's going to in general say that when the person
submits to arrest and shows that they're, you know, ceasing their,
you know, whatever type of resistance they have and they're,
you know, signaling compliance.
That that use of force is going to have to stop.
(32:40):
And the whole, you know, slowly walk up to the guy and surround him and,
you know, ready on the right, ready on the left.
As the person has his hands out and is rolling around in the middle of the yard, I give up, I give up.
And then, you know, a minute later when we're ready, we go over there and then
we start putting cuffs on him and, you know, slowly get him cuffed up.
(33:01):
And then the second minute we lift the dog off, I just don't think that's going to fly.
Not in the climate we're in anymore. Well, and this is what I – it's so important
what you just said because if you look at any other instrumentality of force that we use, taser.
Bean bag. Bean bags, any of that, the courts have already said that.
(33:24):
The courts have repeatedly said as the threat changes, so too should the degree of force.
I'll give you an example. I just know off the top of my head it's not a dog case.
It's a taser case. it's cyrus versus tana mcwanico also a
seventh circuit case where they said as the threat changes
so too should the degree of force and they have applied that in the at least
in the seventh circuit and i know other circuits to dog bites yeah and so we're
(33:49):
getting to that point what we don't want and here's what i fear jeff on what
you said is before we get to that bright line rule.
That the courts say that because of the duration of this bite we've pushed us
into serious physical harm or serious bodily injury or great bodily harm whatever
(34:11):
your state terms it and therefore,
we have moved into the deadly force category yep and i i feared that that would
happen before a bright line rule and therefore we would lose this very very very valuable tool
that we have and we know just from statistics we
(34:32):
know from the data that the dog is one of if not arguably the most powerful
de-escalation tool that we have in our arsenal you know people would rather
you shoot them than get bit by your damn dog yeah yeah so we would in that scenario.
It would be i think it would be just it would devastate devastate our our industry
(34:55):
it would Because the times you could use a dog are going to be so limited that,
you know, the juice isn't worth the squeeze for an agency to even have a canine unit at that point.
100%. Yeah, 100% agree. I mean, if we're at a deadly force, you know,
you know the adage, right?
We don't bring a knife to a gunfight, but we don't bring a dog to a gunfight
either. We bring gunfights. Exactly. Or, you know, guns to gunfights.
(35:17):
Yeah. So, and I don't always mean to sound like the sky has fallen,
but I mean, you and I both are paying a whole lot of attention to the industry
and the, you know, the people that are attacking this industry and they're gaining
traction. It's unfortunate.
Our whole profession is under attack, but man, that'd be a big feather in the
cap of a lot of these politicians who hate cops to be able to get rid of police dogs.
(35:39):
So we need to be careful. And I think 100%, Jeff, and I think what our industry
has is a messaging problem.
That's what we have. We have a messaging problem. I mean, if we really just
put out the data and the statistics and said,
look at all these people who were apprehended by the use of a dog that did not have.
(36:06):
A dog bite attached to it and we just kept pushing
that out and pushing that out and that should be the narrative
but we don't unfortunately
yeah and maybe those are you know i know a lot of times agencies will release
body camera videos of of critical incidents which would include dog bites maybe
you know the pios should start thinking about releasing the body camera videos
(36:27):
of the non-dog bites and show what a great job that they do because you know
then when you look on their,
youtube channel or whatever there's gonna be a whole lot more of those a few
bites but i never thought about that before but might be something to think about,
no i i i'm with you for sure so just
to wrap this up you know i mean the case is interesting but
(36:48):
obviously you know the big points here are stay within
your policy and you know do do the training that that you know is is is industry
standard which i'd say overall most people do but go Go outside and get some
other trainers and train with some other groups once in a while just to see
what other people are doing.
(37:08):
Maybe you can learn some stuff and take it back to your training group.
Yeah, I think that was a great sum up of that for sure.
And we'll be back for some more episodes here real soon. We've got some detector dog stuff coming up.
So I'm looking forward to the upcoming episodes.
And I know you're out on the road a lot. So again,
(37:30):
people check out Mike's website at sheepdogguardian.com and check out where
he's going to be and go to one of the classes or talk to him about bringing
the class to your city too. It's not too hard to set up.
Thanks, Mike. Yeah, I appreciate it. Yeah, I appreciate you coming on today,
and we'll be back soon with a detector dog case. Sounds good.
(37:52):
Thanks, John. All right.
All right. That's going to wrap it up for today's show. I want to end,
as always, thanking a couple more sponsors.
So I've been talking about Bob Eden all year, catsplatinum.com.
He does record-keeping software over at the Cats Canine Activity Tracking System.
So check out catsplatinum.com.
It's Bob Eden's software. It's the original online software for canine record-keeping.
(38:16):
So highly flexible, great company. If you call there, you'll be talking to probably
Bob himself because he runs the company and does all the ins and outs of making
things work on it. So check out kathsplatinum.com.
He'll set you up for a free trial run and see if it's for you and see how customizable it is.
So for record keeping, I think Kath's Platinum is an outstanding choice.
(38:40):
And then finally, of course, we're going to thank Ray Allen. Ray
Allen's here in Colorado where I'm at out of Colorado
Springs they make everything that we need for
canine our partners outstanding company
and what they're always known for is quality if you buy something from Ray Allen
it's going to be a good quality product they don't sell stuff until it's been
vetted and tested by a lot of people in the industry they make sure that it'll
(39:04):
stand up to what we do with it and then if for some reason you were to have
a problem with their product give them a call,
send it back to them, and they'll stand behind everything they sell. I know that for a fact.
So Ray Allen Canine down in Colorado Springs, so rayallencanine.com,
excellent company for all your canine needs.
Music.
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