Court OKs Trial Over LAPD Use of Police Dogs

A Santa Clarita Valley man who was mauled by a Los Angeles police dog is entitled to a trial on whether the LAPD’s policy governing the use of canines to seize fleeing or hiding suspects is unconstitutional, a federal appeals court in San Francisco ruled Monday.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals reversed the order of a Los Angeles trial judge who ruled that the LAPD’s policy governing use of dogs was constitutional and that there was no need for a jury trial on the issue.

This means that nearly six years after Thane Carl Chew was captured by an LAPD dog named Volker, he will get a jury trial on whether police use of the dog constituted excessive force under the 4th Amendment to the Constitution.

The judges were sharply divided on the potential impact that the decision might have on police departments and their ability to use dogs. The divisions are emblematic of the debate over the severity of crime in the nation and what measures must be used to combat it.

“Because of fear of lawsuits and liability, this decision may be fatal to canine units, and by their demise, the ability of police to combat criminals will be seriously hampered,” according to a dissent by Judge Stephen S. Trott.

Trott, a former Los Angeles prosecutor, accused the majority of sending police officers “to the jaws of danger,” by restricting the ways in which police dogs can be used.

But Judge William A. Norris, one of two in the majority, criticized Trott for “inflammatory rhetoric” and his “doomsday prediction” that the decision “will prevent the use of all police dogs in all instances.” His colleague, Judge Stephen Reinhardt, agreed.

“Judge Trott grossly mischaracterizes today’s holdings with respect to the use of excessive force,” wrote Reinhardt, former president of the Los Angeles Police Commission. “We do not send police dogs to the sidelines. We reverse a summary judgment order, so that there may be a full and fair factual trial before a jury of ‘the People’ regarding the practices followed” by the LAPD.

All the judges agreed that the case posed fundamental questions about the 4th Amendment of the U.S. Constitution, which prohibits illegal searches and seizures.

The case arose out of a 1988 incident when an LAPD officer stopped Chew, now 31, for a traffic violation.

Chew, who had three outstanding felony warrants, fled on foot and hid in a nearby Pacoima scrap yard. A police perimeter was set up around the scrap yard, and helicopter and canine units were called in.

LAPD Officer Daniel Bunch unleashed a police dog who found Chew crouching between two dumpsters. Chew then attempted to surrender and yelled to the officer to call off the dog, according to the majority opinion.

But the officer did not immediately intercede and the dog bit Chew several times, resulting in severe cuts to his left side and forearm.

Chew asserted that he did not offer resistance at any time after he spotted the dog and repeatedly begged the officer to restrain his dog, but that Bunch instead ordered Volker to attack. Bunch denied that he ordered an attack and maintained that when he first saw Chew, the suspect was hitting the dog with a pipe.

Bunch admitted kicking at Chew in an attempt to disarm him and to protect the dog. Bunch also acknowledged that he may have kicked Chew in the head, face or body.

After Chew was arrested, he pleaded guilty to receiving stolen property and served two years in jail, according to attorney George Denny III.

Subsequently, Chew sued Officer Bunch, other LAPD personnel, including then-Chief Daryl F. Gates, and the city of Los Angeles.

Chew claimed that Bunch violated his right not to be subject to excessive force by unreasonably unleashing the dog, which was trained to search and bite. He also asserted that Bunch’s action was caused by a city policy.

Moreover, Chew claimed that regardless of whether Bunch acted reasonably in unleashing the dog, the city’s policy of training police dogs such as Volker, a German shepherd, to apprehend unarmed and non-resistant suspects by biting, mauling and seizing them was itself unreasonable and unconstitutional.

U.S. District Judge Richard Gadbois granted summary judgment in favor of the individual defendants other than Bunch on the groundsthat as public officials they had immunity. He also granted summary judgment for the city on the grounds that Chew failed to demonstrate that a city policy unlawfully caused his injuries.

*

A federal jury awarded Chew $13,000 against Bunch, but did not specify the reasons for its decision.

Chew appealed Gadbois’ decision to grant a summary judgment to the other defendants, leading to Monday’s decision. A summary judgment means that a judge has decided that there is no issue worthy of a jury’s attention.

Judges Reinhardt and Norris disagreed with Gadbois, saying there is plenty for a jury to consider, including the basic question of whether excessive force was used and whether the city’s dog policy violated the Constitution.

Volker bit Chew three times before achieving “an effective hold” on him and dragged him between four and 10 feet, the majority opinion noted.

“Bunch had good reason to expect that Chew might sustain exactly this type of mauling when he released Volker” because of the type of training the dog had received, Reinhardt wrote.

Reinhardt also stressed that the city conceded at trial “the truth of Chew’s contention that departmental policy authorized seizure of all concealed suspects--resistant or non-resistant, armed or unarmed, violent or nonviolent--by dogs trained to bite hard and hold.”

Assistant City Atty. Mary House said she could not comment because she had not received the decision yet.

San Francisco attorney Ralph Leardo, who argued for the plaintiff on appeal, said Monday’s decision is quite significant. “This case will have broad application because the use of dogs is so prevalent in police work,” he said.

“Police departments have not sufficiently taken into account the severity of the injuries that are likely to result when these dogs are used,” Leardo said.