I’m often asked by agency supervisors and administrators about their liability exposure when they supervise or administrate a K-9 unit.
Upon review of both Federal and State law suits where a K-9 handler and his agency is sued, typically for excessive K-9 force, there is definitive liability upon agency supervisors and administrators.
Agency liability is based upon two legal doctrines:
1. Respondeat Superior:
An employer is responsible for the actions of employees performed within the course of their employment. Employer/employee relationships are the most common area wherein respondeat superior is applied, but often the doctrine is used in the agency relationship. In this, the principle becomes liable for the actions of the agent, even if the principal did not directly commit the act.
There are three considerations generally:
A. Was the act committed within the time and space limits of the agency?
B. Was the offense incidental to, or of the same general nature as the responsibilities the agent is authorized to perform?
C. Was the agent motivated to any degree to benefit the principal by committing the act?
2. Vicarious Liability:
The legal dictionary definition: “The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee.”
There are generally eight liability areas that are addressed within these two legal doctrines:
1. NEGLIGENT APPOINTMENT or FAILURE TO APPOINT:
There are two components of a K-9 team, the handler and the dog.
A. First, there must be a written agency K-9 policy;
B. Second, there must be a selection process standard. As an example, this is from the State of California K-9 Standard:
The following guidelines are recommended for consideration in the selection of a K-9 handler.
Strong character traits such as:
C. Lastly, there should an oral board
for the selection of the best qualified applicant.
A. This is probably the most important decision an agency will make in their K-9 program.
B. The dog must be genetically predisposed to be able to handle
stress. In order to insure the dog’s stability under stress, some things to consider are:
First, the trainer, who needs to be well based in animal behavior and the handler, as he will be actually working that dog;
2. NEGLIGENT RETENTION
or FAILURE TO RETAIN:
Monthly review of the K-9 Team:
3. NEGLIGENT ENTRUSTMENT or FAILURE to ENTRUST:
The entrustment of the K-9 to the handler:
4. NEGLIGENT ASSIGNMENT or FAILURE TO ASSIGN:
The use of K-9 out-of-scope:
- Turning a S.W.A.T. /E.R.T. call into a K-9 call.
- Using a K-9 in any application, where the dog has not received training in that application.
- Using a Narcotic Detector Dog for Police Service Dog person searches (using a dog out-of-scope).
- The tool (K-9) should be both available and utilized.
5. NEGLIGENT DIRECTION or FAILURE TO DIRECT:
On-scene supervision or
Supervision knowledge of a K-9 deployment;
6. NEGLIGENT TRAINING or FAILURE TO TRAIN:
There are three issues:
Standards, Training and Certification.
- Use another State’s K-9 Standard;
- Use a “nationally recognized” K-9 standard, such as a K-9 association standard.
The Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG) is a forum aimed at addressing the broadly expressed need to improve the performance, reliability, and courtroom defensibility of detector dog teams. It is also charged with recommending best approaches to the use of detector dogs in conjunction with electronic detection devices, or so-called orthogonal detectors. Modeled after the successful precedent of a variety of other scientific working groups, SWGDOG aims to develop internationally recognized consensus-based best practice guidelines developed by a membership of respected scientists, practitioners, and
policy makers representing diverse backgrounds within the detection community. SWGDOG guidelines will be made available to the public via the SWGDOG website at www.swgdog.org. SWGDOG is funded by the National Institute of Justice, Federal Bureau of Investigation, and the Transportation Security Administration.
- The United States canine industry standard for K-9 maintenance training is a minimum of sixteen hours per month (four hours per week, on average) per K-9 team. This standard was developed and is currently endorsed by the three largest United States police canine associations:
USPCA (United States Police Canine Association),
NAPWDA (North American Police Work Dog Association) and
NPCA (National Police Canine Association).
- Liability for failure to train and failure to supervise;
- Liability for being “deliberately indifferent” to the training needs of a specialized law enforcement unit, K-9. I have personally polled about 21,000 police dog handlers, supervisors and administrators throughout the U.S. since 1995. Almost 100% (99% +) of our police K-9 industry is in compliance with the minimum U.S. standard for police K-9 maintenance training. That is significant, since it not only corroborates the standard, but also shows our industry follows it and
Certification to the standard.
A) Cannot have a monetary interest in training of the K-9 team being valuated (vendor);
B) Cannot be the dog’s handler;
C) Cannot be the trainer for the dog or the handler. In addition, the evaluator must have training in the area of certification. I recommend a minimum of five (5) years of experience in the area of certification. Legally, your agency gets to choose either of these two different types of yearly certifications:
The K-9 team is evaluated by someone, without the perceived conflicts of interests as stated above, and certifies the K-9 team in-house. An analogy would be your firearms certification, other in-house training certifications, etc.
The K-9 team is evaluated by a third party outside your agency. Examples would be another agency, a K-9 association, K-9 evaluator, etc. That third party cannot have any of the
perceived conflicts of interest as stated above.
7. NEGLIGENT SUPERVISION or FAILURE TO SUPERVISE:
Applies to all supervisors, from the trainer and all the way up to the agency head. Supervision of:
Documentation and On-going documentation:
Keeping and format of documentation:
8. NEGLIGENT DISCIPLINE or FAILURE TO DISCIPLINE:
Management must track all training, certification and deployments to insure, as the Federal Courts have stated, that you do not have a “misbehaving dog” or “misbehaving handler”. As one Federal Court case stated: “The court concluded that supervisors failed to adequately supervise the performance of members of the canine unit to ensure that both misbehaving dogs
and officers exhibiting bad judgment in the use of canine force received corrective training.” This requires progressive discipline of a misbehaving handler or dog, up to and including removing the dog or handler, or both,
from the K-9 program.
This is 2008. Tactics have changed, technology has changed and legalities have changed. K-9, as any specialty unit, is subject to litigation. I personally believe that K-9 has the highest liability
exposure as an agency unit, as they are being deployed daily. K-9 is the most powerful tool that we have in the prevention of crime and the prevention of acts of terrorism. That is extremely significant and definitively worth the liability exposure, if managed correctly. Management must understand their involvement in supervision and administration of these K-9 units. That is the agency’s responsibility.
For further updated information visit http://www.k9fleck.org/