Police Dog Attack Approved on Motionless Offender
In an unpublished opinion, the Tenth Circuit affirmed a jury verdict in favor of an Albuquerque Police K-9 handler who used his dog to remove a motionless man from a car he had broken into. Gutierrez v. Hackett, 04-2104 (May 3, 2005). The plaintiff had filed suit claiming that the use of the dog to rouse him while he was sleeping in the car constituted excessive force under the Fourth Amendment. Despite the fact that the man remained motionless, the Tenth Circuit approved the jury's finding of reasonableness because Mr. Gutierrez hid his hands.
The decision is doubly disappointing for this blogger as he was co-counsel for the plaintiff. Mr. Gutierrez was inebriated and lost on a cold morning. He saw a car that he thought he recognized and decided to sleep in the car. Albuquerque police were called to the scene. After a five minute investigation, the dog handler ordered the dog into the car and ordered the dog to attack. The two most bothersome facts were that the police came in close proximity to Mr. Gutierrez when an officer opened a car door and the dog was ordered to bite rather than to bark when it entered the car. Luckily, Mr. Gutierrez was not severely injured.
The Tenth Circuit simply sided with the jury on this one:
When viewed from the perspective of a reasonable officer on the scene, and in the light most favorable to Officer Hackett, the situation presented a man who had broken into an automobile in the middle of the night, who would not respond to any of the officers' repeated demands to emerge, and who kept his hands hidden in such a manner as to conceal a weapon. As soon as he revealed his hands to the officers, the police dog was called off. The jury determined that under these circumstances, Officer Hackett did not use constitutionally unreasonable force, and we determine that the record contains substantial evidence to support the verdict.
This was the second of two cases Brad Hall (Albuquerque) and I litigated against APD for dog attacks. The first case was successful in vindicating our client's rights and in changing APD policy. Smith v. City of Albuquerque, 01cv416 (United States District Court New Mexico) However, the Gutierrez result was and is a bitter pill.
There are no published Tenth Circuit decisions dealing with the use of police dogs to arrest persons. Perhaps, the decision to issue an unpublished opinion signals that the Tenth Circuit is not quite ready to weigh in on the issue. Thankfully, the opinion establishes no rule of law against plaintiffs. We were hopeful of achieving some rule of law that protected non-violent offenders from dog attacks.