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Lawsuit Against Use of Police Attack Dog in Routine Arrest Gets Court Approval to Proceed
May 29 2016
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While there are no statistics readily available, police K-9 apprehensions number in the tens of thousands each year. Excessive police force claims tend to focus on firearms or Tasers but the unlawful use of police dogs to attack suspects has become a significant problem in the “protect and serve” community. It is estimated thatas many as 40 percentof the K-9 apprehensions involve dog bites, some of themdisfiguring. The federal appeals courts are beginning to take notice and are permitting lawsuits againstpolice departments for excessive forceinvolving police dogs to proceed.
One such lawsuit is against Evansville, Indiana Police Department K-9 officer Zachary Elfreich filed by Jamie Becker.
Evansville Police Department Uses Attack Dog to Locate Nonthreatening Suspects
Officer Elfreich was one of four Evansville police officers who went to the residence of Brinda Becker, Jamie’s mother, on March 11, 2011 to execute an arrest warrant for Jamie. The arrest warrant stemmed from an incident several weeks earlier when Jamie reportedly held a knife to his brother-in-law’s throat and threatened to kill him.
Why Did Police Take Attack Dog to Routine Arrest
Officer Elfreich was accompanied by his police trained dog named Axel. Why the team of four arresting officers felt the need to take a K-9 unit with them to make what was a routine arrest was left unanswered by the May 12, 2016decisionby the Seventh Circuit Court of Appeals.
What the court did note was the alleged offense took place several weeks earlier and there was no evidence that the officers believed Becker was armed when they proceeded to arrest him.
Police Dog Trained to Bite and Hold Suspects
Axel was trained to “bite and hold” a suspect until commanded to release by his handler. Theappeals courtstopped short of saying the “bite and hold” technique is per se excessive (or deadly) force. The court said this issue should be decided on the following criteria:
- The severity of the offense for which an arrest is being made.
- Whether the suspect poses an immediate threat to the safety of the officers or others.
- Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
When the police arrived at the Becker residence, Officer Elfreich assumed a position at the rear of the residence with his German Shepard guarding the back door. He observed a male individual leaving the residence. That individual told Elfreich that Jamie was inside the residence along with his mother and her sister.
The other three officers in the meantime knocked at the door of the residence which was answered by the mother and sister. Upon being told that they had a warrant for the arrest of her son, Ms. Becker called upstairs to her son, telling him the police was there to arrest him. Jamie was sleeping. He got up and started getting dress, telling the officers he was coming downstairs.
At this point the officers in front called for Elfreich and Axel.
Within two minutes of hearing about the officers being there was arrest him, Jamie began descending the stairs. He had his hands on top of his head. He was followed by his girlfriend.
Police Used “Bite and Hold” Dog to Locate Suspect
Officer Elfreich and Axel were raring to go. Thirty seconds after arriving at the front door, and not seeing or hearing Jamie, he commanded Axel to “find him.” Axel was t trained to find the first person in the house and to “bite and hold” them until commanded to release. Officer Elfreich said he gave several warnings before turning Axel loose, but all the witnesses in the residence disputed this assertion. None of them heard any warnings.
Axel ran into the house and attacked Jamie coming down the stairs. The dog bit into Jamie’s left ankle. Jamie called out, “call the dog off – I’m coming down the stairs.”
Officer Elfreich responded by rushing to the stairs. Axel had hold of Becker. The officer did not command Axel to release. Instead, Elfreich ordered Becker to the floor.
Dog Savagely Attacks Non-Fleeing, Non-Threatening Suspect
With his girlfriend screaming and himself being attacked by Axel, Becker did not hear Elfreich’s order. The officer responded by pulling Becker down the stairs causing Axel to lose his bite. Once on the floor at the bottom of the stairs, Axel continued his attack, severely biting Becker while savagely shaking its head.
Officer Elfreich handcuffed Becker’s hands behind his back, all the while allowing Axel to bite the suspect.
Suspects Attack Torn Out, Medical Staff Says Worst Dog Bite in 20 Years
It was a vicious attack. Becker’s calf was completely torn out. He was transported to a hospital where he remained for the next several days receiving treatment. He suffered permanent nerve and muscle damage, causing him daily pain. Medical staff said it was the worst dog bite they had seen in more than two decades.
Victim Sues, Police Raise Qualified Immunity
In defense of the lawsuit, Officer Elfreich said he was entitled to qualified immunity on Becker’s excessive force claim. The Seventh Circuit disagreed.
The court noted that Officer Elfreich saw Becker had his hands over his head (even while being bitten by Axel) and that he was not exhibiting any kind of aggressive behavior toward the officer.
Passive Noncompliance Does Not Justify Excessive Force
In response to Elfreich’s argument that Becker did not comply with his orders to get on the ground, the court said that even if Becker did hear the orders, it was “passive noncompliance” that did not justify the kind of excessive force the officer allowed Axel to inflict on the suspect.
The Seventh Circuit added:
“Officer Elfreich also argues that Becker might have been armed and that until Becker had been handcuffed, he still presented a risk because he might have access to a weapon. However, in every arrest there is a possibility that the individual is armed and that does not justify allowing Axel to continue to bite Becker while officer Elfreich pulled Becker down the three steps and handcuffed him.”
The appeals court concluded that “force is reasonable only when exercised in proportion to the threat posed.”
Excessive Force
This is a classic example of police excessive force. Even if Officer Elfreich was justified by sending Axel into the house without giving Becker a prior warning, there was no excuse for allowing the dog to rip out the Becker’s calf while the officer held him on the floor handcuffing him.
This is one of those excessive force cases that will never reach a jury. The Evansville Police Department will settle out of court to prevent a full airing of the facts before the community and hide more details of their dirty work from the public eye. The taxpayers of the community will pick up the tab. The terms of the settlement will be kept confidential. The officer will not be disciplined and thecriminal caseagainst Becker will probably be dismissed.
Axel will be rewarded with some extra treats and a pat on the head. Good dog…
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