West Virginia Police K-9 Association

Doug Adams, President

P.O. Box 2114

Huntington , WV   25702

304-526-8442(0) OR 304-360-544-1241 (C)

“  TO UNITE AND ASSIST POLICE SERVICE DOGS AND HANDLERS”

*****BE SURE AND READ THE NEWS ARTICLES*****

Keep an eye on this decision. 

Subject: New K-9 case law 

January 10, 2005

Please review the below memo put out by Attorney Bruce Praet on the NEW 
case decision out of the 9th circuit of Smith v. Hemet, 2005 U.S. App. 
LEXIS 336 (Jan. 10, 2005) which over rules the Vera Cruz v. Escondido, 
139 F3d 659 (9th Cir. 1997). 

As we all know Vera Cruz v. Escondido defined "deadly force" as only 
that which "was reasonably likely to cause death".

Now according to the Smith v. Hemet case (and no thanks to the 9th 
circuit and Judge Reinhardt) deadly force is now defined as "that force 
which has a substantial likelihood of causing death or serious injury".

I just got off the phone with Attorney Gene Ramirez regarding the below 
case decision of Smith v. Hemet. As most of you know Attorney Gene 
Ramirez is an attorney in southern California and handles a lot of K-9 
and Swat cases. He is one of the premier K-9 attorneys in the nation. 

Next week Gene is going to contact Hemet Police Department and see if 
Hemet will let his law firm appeal this awful case decision to the US 
Supreme Court. It was Genes case and his law firm which got us the 
favorable K-9 case Vera Cruz v. Escondido. 

Gene says this case is now technically law but since there are so many 
cases that support canines are NOT deadly force and someone WILL appeal 
this ridiculous 9th circuit decision he also agrees with Bruce Praet and 
he is also recommending not changing how you deploy canines or policies, 
for now. 

Please forward this information to other K-9 handlers in your area. 

As soon as I here something new I will let you guys know. 

Take care and be safe.

Brad Smith
West Covina Police Department 
N.T.O.A.’s National Canine Chairman 
http://www.skidds.com/

FERGUSON, PRAET & SHERMAN
A Professional Corporation
1631 E. 18th Street
Santa Ana, CA 92705-7101
Telephone (714) 953-5300 Facsimile (714) 953-1143 
Law4cops@aol.com 


CLIENT ALERT
January 14, 2005

TO: All Police Chiefs and Sheriffs

FROM: Bruce D. Praet, Attorney at Law

1.. URGENT!! The Ninth Circuit Has Dramatically Altered the Rules on 
Deadly Force - Especially for Police K-9's.

Not that we haven't grown accustomed to adverse rulings from the Ninth 
Circuit, but this time they have issued a devastating and potentially 
industry changing ruling, with particularly negative impact on police 
dogs. Although the decision of Smith v. Hemet, 2005 U.S. App. LEXIS 336 
(Jan. 10, 2005) was issued en banc (i.e. 11 judges instead of the usual 
3 judge panel), it was authored by the notoriously liberal Judge 
Reinhardt. As such, we are strongly urging Hemet to appeal this matter 
to the Supreme Court which fortunately has almost always reversed the 
opinions of Judge Reinhardt. In addition to our own offer to file an 
Amicus brief, we urge you all to rally support for the appeal of this 
outrageous decision.

Most of you will recall our May, 2004, Client Alert which announced the 
good news that the Ninth Circuit [in the now reversed Smith v. Hemet, 
356 F3d 1138 (9th Cir. 2004)] had determined that a guilty plea to a PC 
148 allegation served as a bar to any liability for excessive force. In 
the first part of the 2005 Smith decision, the Court has now determined 
that a guilty plea to 148 allegations does not necessarily bar an 
excessive force claim since it is impossible to determine whether or not 
the guilty plea encompassed the entire period during which force was 
used or whether it was only limited to conduct after which the excessive 
force continued. Ironically, and somewhat surprisingly, the Court did 
agree that a guilty verdict (vs. a plea) would in fact bar any 
subsequent excessive force allegation.

Quite candidly, while we would have preferred that the earlier Smith 
decision had stood, this part of the case is not overly problematic 
since we have always advocated that officers "marry" a suspect to all 
force having been used "during the arrest" by obtaining a highly 
advisable, recorded statement from all arrestees involved in a forcible 
arrest. [See: May, 2004 Client Alert and Chaves v. Martinez 123 S.Ct. 
1994 (2003)]. In light of this latest decision, we might add that 
agencies track all PC 148 allegations in order to either obtain a guilty 
verdict or at least some sort of stipulation as a part of any plea (or 
recorded statement) admitting that all force was used during the arrest.

If the Ninth Circuit had simply ended their decision there, this Client 
Alert would be little more than a routine clarification of law. 
Unfortunately, the Court took it upon themselves to go beyond the issue 
presented in order to address the definition of "deadly force" in the 
context of police dogs. As many of you know, Attorney Donald Cook (a 
nemesis of K-9's and the attorney in Smith) has always sought to have 
the Ninth Circuit lump police dogs into the definition of deadly force. 
If successful, police dogs would seemingly be limited to only those 
situations in which deadly force was justified and they would 
potentially be barred from use on fleeing felons under the longstanding 
rule of Tennessee v. Garner. Guess what? It would appear that Cook has 
finally gotten his wish!

Although I could go on about the unsupported and irrational "logic" used 
by Judge Reinhardt to reach his conclusion, you may recall that a series 
of good Ninth Circuit cases beginning in 1995 with Fikes v. Cleghorn 
through Vera Cruz v. Escondido, 139 F3d 659 (9th Cir. 1997) had 
appropriately defined "deadly force" as only that which "was reasonably 
likely to cause death". Because police dogs did not fit this definition, 
they have never been considered deadly force and all K-9 cases have been 
properly analyzed under the Supreme Court's 1989 "reasonableness" 
standard set forth in Graham v. Connor. Not any more!

Expressly overruling Vera Cruz, Judge Reinhardt has bastardized the 
criminal standard for deadly force set forth in the Model Penal Code 
(i.e. ADW) to now define deadly force as "that force which has a 
substantial likelihood of causing death or serious injury". As you can 
see, because police dogs now fit within the definition since "serious 
injury" is a likely potential, the Court has conveniently lumped police 
dogs (and potentially batons and other force likely to cause serious 
injury) into the "deadly force" definition. Although the Court 
conveniently tried to insulate itself by declaring that it wasn't 
expressly defining police dogs as "deadly force", it has effectively 
achieved that result.

IF this decision is permitted to stand, the use of police dogs to 
apprehend (i.e. bite) suspects will effectively be limited to those 
circumstances in which an officer would otherwise be justified in using 
deadly force. For example, unless an officer could articulate a 
reasonable belief that a concealed burglar presented an immediate threat 
to officers, a "find and bite" search of a building could be excessive. 
Obviously, the scope of examples of future restrictions on the use of 
dogs (batons, etc.) is endless and correspondingly illustrates the 
critical need to get this matter to the Supreme Court.

As a quick aside, it was also unfortunate that Hemet PD had yet to avail 
itself of our LEXIPOL policy manual at the time of this incident. As 
such, the Court took another opportunity to shove the ill-advised 
"continuum of force" right down Hemet's throat by noting that Hemet's 
own policy included the police dog as a high level of force. One more 
reason to get rid of the "continuum" and subscribe to a state of the art 
policy manual such as the one we currently provide.

In the hope that the Supreme Court will potentially stay and ultimately 
reverse this terrible decision, we are not currently amending K-9 or 
other policies. On the other hand, it is essential that the impact of 
this case be thoroughly reviewed with all affected personnel and 
carefully considered in all future applications of force. We'll 
certainly keep you posted

Police Dog Searches Do Not Invade Privacy, U.S. Supreme 
Court Rules

By David G. Savage, The Los Angeles Times 

WASHINGTON — The use of police dogs to sniff a car for 
drugs does not violate the privacy rights of a stopped 
motorist, the Supreme Court ruled Monday, even if the 
officers had no reason to suspect the car and its driver 
were carrying drugs.

The high court's decision gives police broad, but not 
unlimited, authority to use canines to search for drugs 
or bombs — whether on the highways or in schools, at 
airports and office buildings. 


While the case before the court was argued as a test of 
police power in the war on drugs, dogs also play an 
important role in the war on terrorism. In recent years, 
trained dogs have been used increasingly at airports and 
at the borders to sniff for explosives, and the justices 
made clear they would not stand in the way of such 
searches.

But the case decided today tested a common situation on 
the highways. An Illinois state trooper stopped a 
motorist on an interstate highway for driving 71 m.p.h. 
where the speed limit was 65. While the motorist, Ray 
Caballes, waited for the officer to write him a speeding 
ticket, a second trooper headed for the scene with a 
drug-sniffing dog.

The dog walked around the car and "alerted" to the 
trunk. Based on that evidence, the officers searched the 
trunk, found marijuana and Caballes was sentenced to 12 
years in prison.

The Illinois Supreme Court would have voided the 
conviction on the grounds that the police did not have 
the authority to turn a traffic stop into a drug search.

But in a 6-2 decision in Illinois vs. Caballes, the U.S. 
Supreme Court ruled the police may use drug-sniffing 
dogs so long as the officers have a reasonable basis for 
stopping a motorist or a pedestrian in the first place. 

"In our view, conducting a dog sniff would not change 
the character of a traffic stop that is lawful at its 
inception and otherwise executed in a reasonable 
manner," said Justice John Paul Stevens for the court.

It would be a different matter, he said, if the first 
police officer had held the motorist for some time while 
he awaited the arrival of the second officer and his 
dog.

"A seizure (of the motorist) can become unlawful if it 
is prolonged beyond the time reasonably required to 
complete that mission" of writing a ticket, he said. 

The two dissenters said the court's ruling would lead to 
a much wider use of drug-sniffing dogs.

"Today's decision clears the way for suspicion-less, 
dog-accompanied drug sweeps on parked cars along 
sidewalks and in parking lots," said Justices Ruth Bader 
Ginsburg and David H. Souter. 

November 13, 2004 News Article


For you guys who know John and Axel and what type of officer they are and 
how 
they train. We preach safety and proficiency for this reason. Thank God 
we're not reading about a friend loosing his life today.

Stay Safe
Jake Corey 

Roanoke police shoot man


Police said that when a police dog grabbed a man fleeing the 
officers, the man pulled a pistol and was shot by officers multiple 
times.


By Shawna Morrison
981-3349
The Roanoke Times 



Two Roanoke police officers shot a man they say pulled a gun in Southeast 
Roanoke on Friday night. 
The shooting happened about 8:25 p.m. near Ninth Street and Highland 
Avenue Southeast, next to CVS Pharmacy. 
Roanoke police Capt. Rusty Ross said the department's vice units had been 
investigating a man suspected of selling narcotics. Several units were in 
the area when they spotted the man walking down the sidewalk near CVS. 
Officer John Hoover of the department's K-9 unit got out of a police 
vehicle and identified himself to the man as a police officer, Ross said. 
Hoover, in full police uniform, told the man that police needed to speak 
with him. 
The man began to run, Ross said. After warning the man that he would do 
so, Hoover released his police dog, a Rottweiler named Axl. As Axl grabbed 

the man and began to pull on him, the man pulled a pistol from his 
waistband, Ross said. 
Hoover and Officer Allen Bower fired several rounds at the man, striking 
him multiple times, Ross said. He was taken to Carilion Roanoke Memorial 
Hospital, where he was in stable condition late Friday, Ross said. 
The man's name and age were not released because his family had not been 
told of the incident Friday night, Ross said. 
No officers were injured, Ross said. He said Hoover and Bower will be on 
administrative leave until an investigation into the incident is 
completed. 
Police did not say exactly how many times the man was shot, but several 
neighbors said they heard four shots. 
Tammy Fink, 42, who lives at the corner of Highland Avenue and Ninth 
Street, said she and her daughter were making floral wreaths when they 
heard the commotion. 
"It was like four big booms," Fink said. "We came out and didn't see 
nothing. About that time we saw all the lights" from police and rescue 
vehicles. Then they noticed a man lying in the street near CVS. 
"The one man was screaming, 'It hurts, it hurts,'" Fink's 23-year-old 
daughter Catina Caldwell added. 
The intersections with Ninth Street at Highland Avenue, Elm Avenue and 
Bullitt Avenue were cordoned off with police tape for several hours Friday 
night while detectives investigated the scene.