On May 8, 2003 the United States Court of Appeal for the 8th Circuit joined a number of other sister circuits in deciding that a warning prior to the use of a police canine is an essential component of the reasonableness inquiry on use of force. Kuha v. City of Minnetonka, No. 02-1081 (8th Cir. 2003).

On September 22, 1999, Kuha went out drinking with some friends. On his way home he ran into a curb causing a flat tire. He walked to a friend’s house for help and returned with his friend to change the tire. Kuha continued his trip home at approximately 5:30 a.m. when he passed a police car traveling in the opposite direction. When Kuha failed to dim his headlights for the oncoming patrol car, the officer did a u-turn and pulled Kuha over. As the officer approached Kuha’s vehicle, Kuha bailed out and ran into a swampy area with dense brush, high grass and foliage. The officer waited for the arrival of backup before beginning a search for Kuha.

Officer Anderson responded to the scene along with his canine partner, “Arco.” While searching for Kuha, Officer Anderson had Arco on a leash. After nearly 30 minutes, Arco alerted and bounded into some three foot tall grass. Arco was trained to “bite and hold” until receiving a command to release. When Officer Anderson observed that Kuha was holding Arco’s head, he ordered Kuha several times to release the dog’s head and further instructed that he would not call the dog off until Kuha followed this command. Once Kuha released the dog, Officer Anderson ordered the dog to release. The entire apprehension lasted approximately ten to fifteen seconds. As a result of the bite, Mr. Kuha’s femoral artery was severed and he suffered severe blood loss. He recovered from these injuries and brought a lawsuit alleging excessive force by the officers as well as agency liability with respect to policy and training on the use of canines.

Claims Against Individual Officers

In its review of the claims against the officers, the court began with a straightforward review of use of force as interpreted by the United States Supreme Court in Graham v. Connor and Tennessee v. Garner. In doing so the court rejected Kuha’s argument that the use of a canine amounted to deadly force. The court cited numerous cases, including cases that ended in the death of a suspect at the mouth of a canine, where sister circuits rejected the idea that canines trained to “bite and hold” were instruments of deadly force.

Moving beyond deadly force the court reached several conclusions regarding the proper use of a canine. Most importantly, the court concluded that “a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender.”

The court suggested that while no other circuit has directly addressed this issue, numerous other decisions had considered the warning as part of the reasonableness inquiry. The court also cited a model IACP policy on use of canines that mandated the issuance of a warning before a canine was used. It should be noted that the trial court had concluded that the officers may have been endangered by such a warning which would give away the officers’ position. The 8th Circuit agreed that officer safety was paramount, but rejected the idea that a warning to the suspect would place the officers in any greater risk.

Having concluded that the officer’s use of the canine without first giving a verbal warning amounted to a constitutional violation, the court then turned to the issue of qualified immunity. Since no case could be found standing for the proposition that a use of a canine without a warning was unconstitutional, the individual officers were entitled to qualified immunity.

Agency Liability

Unlike individual officers, agencies are not entitled to qualified immunity. In this case, the court reviewed the agency’s policies and training to determine if the policies and training would allow the use of a canine without first warning the suspect. The court noted that the City of Minnetonka’s directives on use of canines could be construed to require a warning before a canine was used. The court then turned to the deposition of the chief of police where the chief testified that the use of the canine in this case was consistent with department policy. The court concluded that the testimony of the chief undermined the City’s argument that the use of the canine without a warning violated city policy. The court then denied summary judgment for the City and remanded the case for trial after deciding that a jury could reasonably determine that a Fourth Amendment violation had occurred and the “City’s policy on police dogs-which authorizes the use of dogs trained only to bite and hold, and which did not mandate a verbal warning in this scenario-caused the constitutional violation.”

Action Step:

Agencies with Bite & Hold canines should review policy and training to determine if a warning is required prior to release.

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