This was emailed to me today! The cirus in is session..........
Doug

Here is the latest on the 9th circuit court decision (Smith v Hemet) that changed the definition of deadly force. But the City of Hemet needs need your help. Would you please pass this information on to other Swat, handlers and attorneys in your area so the city of Hemet can get the information they need (see below).



Hemet is appealing the 9th circuit decision directly to the US Supreme court. They decided not to appeal to all the judges in the 9th circuit because of the en banc hearing. They figured the majority of the 9th circuit judges had already spoken so why waste their time with the 9th again, they would take it directly to the US Supreme court.



The 9th circuit en banc panel (11 judge panel instead of the normal 3) which handed down their decision on January 10, 2005 voted 8-3 to change the definition of deadly force. The old definition of deadly force was, under the Vera Cruz case was that force which "was reasonably likely to cause death".



The new definition under the Smith v Hemet defines deadly force as: "that force which has a substantial likelihood of causing death or serious injury." They added serious injury to the definition.



Hemet has 90 days, from January 10, 2005, to file their appeal to the US Supreme court. Now remember there is a chance the US Supreme court might not hear the case.



One of the areas that Hemet is going to bring up to the Supremes is what the main issue of the lawsuit was that Cook and Mann brought to the 9th circuit. That issue was could Smith sue under a 1983 action after pleading guilty to a 148 PC (resisting / delaying and obstructing a police officer) arrest. There is new case law (Heck v Humphrey 512 US 477 –1994) that says Smith can NOT sue because he plead guilty to 148 PC.



Reinhardt took it upon himself (without being asked by Cook) to change the definition of deadly force by adding the words “serious bodily injury” to the definition.



But the attorneys need your help to go after another issue that Reinhardt brought up in his decision. Part of Reinhardt justification in changing the definition of deadly force was every other circuit in the United States has “serious bodily injury” or “great bodily injury” in their definition of deadly force.



Since they do not know what other circuits have for their definition of deadly force they would like to know so they can show the US Supreme court that Reinhardt was lying in his decision. They would like to add what the definition of deadly force is outside the 9th circuit or what other states definition is of deadly force.



Now there might be a difference in the definition of deadly force between criminals and civil actions. If you know both definitions they would like to know but what they are looking for is the civil definition of deadly force standard that Law Enforcement is held to, not necessarily what the criminal definition standard the public is held to.



So we don’t try up and inundate this chat room can you please email me directly with your states or current circuit case law definition of deadly force and I will forward your answers to Hemet. Please include in your email what state you are from, what circuit you are in and if you know what the case decision was that gave you your areas definition of deadly force. Please forward your answers to Topdogwck1@aol.com



In case you do not know what circuit you are in:

1st Circuit: Maine, Massachusetts, New Hampshire and Rhode Island.

2nd Circuit: Connecticut, New York and Vermont.

3rd Circuit: Delaware, New Jersey and Pennsylvania.

4th Circuit: Maryland, North Carolina, South Carolina, Virginia and West Virginia.

5th Circuit: Louisiana, Mississippi, Texas

6th Circuit: Kentucky, Ohio, Michigan and Tennessee.

7th Circuit: Illinois, Indiana and Wisconsin.

8th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North & South Dakota.

11th Circuit: Alabama, Florida and Georgia



Thanks in advance for all your help.



Brad Smith

West Covina Police Department

N.T.O.A.’s National Canine Chairman

Is it just me or does anyone else find it interesting that Donald Cook rears his head to answer a post on a chat board on the internet?

Obviously, the use of force issue has two sides. Way easier on us guys int he trenches if it follows the definition under the Vera Cruz v Escondido case and not the case involving the City of Hemitt. Many many of us feel that the definition that includes serious bodily injury is just too broad and leads to a very subjective interpretation of the word serious. That which is likely to kill is much less subjective.

Obviously there is dissagreement among the Courts as to which definition to apply. Cook and his partner would suggest that police dogs dogs are deadly and for years have propagated this notion in many ways. Mostly they have fared poorly in these cases.

Why would a chat board be a place to air those legal issues when they have been and will be dealing with them in the Judicial system??
I hope it is insecurity about where they stand on the issue. I hope that the Courts will see clear to trash the MPC definition and get to something a lot more .....shall we say user friendly.

Mr. Cook, I care what your motivations may be; Monetary, Ego (since you have lost so many of these cases in the past), or establishing yourself in Legal History. Defining deadly force is clearly unambiguous. Considering that a police dogs primary function is the use of its nose, most documented training involves something other than biting, and in most cases any biting done by the dog is minor or enhanced by the escalation of the suspects resistance, then the Court may find in favor of the police dog.

It must be nice to be able to sit in a comfortable office, with a library and paralegals at the ready, to discuss and find fault with law enforcments actions. Actions that often need split second decisions, in the "heat of battle" so to speak. Something that would help all of us in law enforcement: a group of concerned lawyers, available to demonstrate how to make arrests of violent subjects without perceptions of excesses force. Perhaps if they were able to demonstrate the techniques that they use, actual situations of course, we could all be kinder and gentler. I'm as certain as most law enforcement, that the only motive would be the benefit of the accused.

DFrost

Alan Carlson’s post is interesting for he touches upon an important issue – what is the risk of death/serious injury from a police dog attack? Regarding death, the answer is clear. Deaths from police dog attacks are and will remain rare. About on par as death from poisonous snake bites in the United States (just under 1 in 1,000). So except in circumstances where the police dog is biting a particularly vulnerable part of the body (underside of upper arm, neck, etc.), or in circumstances where there is no human intervention (e.g., like a tragic incident where an officer’s police dog killed the officer’s child when no adult was home), I would say that the ordinary police dog is not likely to kill its human target.

But what about the likelihood of serious injury? Carlson states “in most cases any biting done by the dog is minor or enhanced by the escalation of the suspects resistance.” I would be interested in knowing the factual basis for his proposition. How many police dog attacks has he witnessed? What is his expertise to opine on the seriousness of injuries inflicted? Has he examined or analyzed the medical care bite victims received? Is he relying on what others have told him? On something he read? I say that because there are medical studies on the frequency of serious injuries from police dog attacks, including a comprehensive and representative study of nearly 1000 police dog attacks. These studies have found that (a) a trained police dog is far more likely to cause serious injury or death than a comparable dog (in terms of breed and size) but lacking the police dog training; and (b) except for the firearm, no police instrumentality of force is as likely to cause serious injury as the police dog that bites.

I can't answer for Alan but I'll say, as having personally witnessed over a hundred dog bites as they occurred that in the overwhelming number of cases, it IS the action of the person being bitten that escalates the severity of the injuries that result. At first contact the dogs bit and held on. The injuries were limited to a couple of puncture wounds, some bruising and in some cases some crushing of tissue underlying the bite. The tears of the skin that I've seen were caused by the fighting by the suspect. No one here needs to be an expert to "opine on the seriousness of injuries inflicted" as all persons in custody are seen by medical experts who describe the injuries in great detail. I'm quite sure that the police K-9 handlers who are responding have seen more dog bites first hand than you have. You've probably seen more of the results of those bites than most of us, but you have only the word of your clients as to what happened when they were bitten. And most of your clients in these cases have been criminals who by their behavior, put themselves into the position to be bitten by police dogs.

I have "examined or analyzed the medical care bite victims received" as have most handlers as we're present at the hospital when the medical treatment is given. In my case, the medical reports filed at the emergency rooms are part of the report that we submitted. Usually those injuries are also documented with photographs.

I've read the study that you've mentioned that documents "nearly 1,000 police dog" bites and it's highly flawed; as most of your juries have let you know.

In answer to your question, "Who cares about my motivations?" I'd say that just about all of us here care. I happen to know that you're only in it for the money. Nothing wrong with that, but people should know.

I've watched a few of your trials. I've never been impressed either by your logic or your rhetoric. Neither have most of your juries. In the most recent one that I monitored I spoke to several of the of the jurors who had taken less than one hour to unanimously decide against you. NOT ONE of them was swayed by your arguments. Here's what I wrote at that time.

"The real bottom line for them was extremely simple. They thought that the police officer had no other means to ensure his safety than to use his K-9. They certainly didn't want him to get shot because he wandered into an occupied location where there was a known law violator. They really didn't care that (name withheld) had been bitten because he attacked the dog, tried to flee or because the dog didn't properly respond to his training. THEY JUST DIDN'T CARE!!!"

"They didn't care in the slightest whether (your client) was a trespasser (a misdemeanor) or a burglar (a felony). They thought he brought the injury on himself by not coming out when given the opportunity."

"As I expected, the jurors paid not the slightest attention to the medical experts brought to court. Common sense told them that some dog bites result in "not a bruise" and "death" can be a result. They didn't need experts to tell them that."

As to the final statements in your post, once again, as so often in the past, you're quite wrong. You wrote, "(b) except for the firearm, no police instrumentality of force is as likely to cause serious injury as the police dog that bites." A police CAR used as an "instrumentality of force" is much more likely to cause "serious injury" than a police dog that bites. Your narrow view of the world isn't impressing this group either.

Almost universally juries have realized that the level of force that is used on criminals is determined by them. They could surrender when told that a police dog is coming but thy choose not to. They could surrender when closely confronted by police officer with guns and dogs but they choose not to.

You're just an Internet troll here Mr. Cook. Someone who comes not to learn and not to teach; but just to stir up trouble.

Mr. Cook, in typical attorney fashion you have side-stepped the question; what motivates you to take these cases??? I will answer your questions directly, “the factual basis for his proposition” and “what is his expertise to opine on the seriousness of injuries inflicted?” it is 32 years of police service and 16 years as a supervisor, trainer, and handler of police service dogs.

Now I’m sure that everyone on this bulletin board is anxious to hear what really motivates you to continue this attack on police service dogs. And if you could elucidate your views on the primary function of a police dog, its training and deployment.

Maybe there is something to be learned here, otherwise, what more can I say that Lou hasn’t.

A few comments about Castle’s post can be made.

On the risk of serious injury from a police dog attack, not only do I not object but I want the trier of fact to hear both sides’ evidence and decide, based on the evidence, if the police dog is likely to cause serious injury. If, as Castle says (or at least strongly implies), evidence such as that mentioned by Castle will prove that a police dog attack is NOT likely to cause serious injury, then rulings like that in Smith v. City of Hemet mean nothing. Force which is NOT likely to cause serious injury cannot be “deadly.” But judging by the reaction of persons like Brad Smith and Bruce Praet to the Smith v. Hemet decision, it appears that at least some police dog handlers and their lawyers do not share Castle’s confidence in what the objective evidence will show.

Regarding the study of nearly 1,000 police dog bite victims which Castle states is “highly flawed,” in what way is it flawed? Of all the objections I have heard from my opponents in these police dog bite cases, no one has ever criticized its methodology. Rather, the objections are that (a) its irrelevant and/or (b) its unfairly prejudicial. For those not familiar with the study, it consisted of reviewing all LAPD canine deployment reports for a 3 year period, and identifying every instance in which the dogs bit persons (about 957 total). From the reports, the doctor then retrieved the bite victims’ medical records. The doctor then reviewed the medical records and determined, among other things, (a) the frequency of in-patient hospitalization (about 41%), (b) multiple bites (defined as to two or more different parts of the body) (76% of police dog bite victims had multiple bites), and (c) fatalities (1 probable fatal dog bite to a 24 year old male). The doctor then reviewed medical records of all victims of ordinary dog attacks treated over a several year period at a major LA hospital (about 1100 bite victims in all), performing the same analysis as with the police dog bite records. The result? For those bitten by ordinary dogs, 6% require in-patient hospitalization, 22% sustain multiple bites, and there was 1 fatality (small child bitten by several dogs). Moreover, unlike the police dog bite victims (almost all adult males at or near their physical prime), those seriously injured by ordinary dogs were the very young or very old. That is, persons less able to defend themselves from dog attacks. These findings are also consistent with published studies on dog bite injuries, both police and ordinary dogs.

Regarding the attitude of some jurors towards my clients, Castle has a point. As any litigator will tell you, the most important factor in a trial are the biases all jurors bring into the courtroom, and the jurors’ ability to manage and control them. It is also true that for many people what is most important in these cases is that the police bite victim was/is a “criminal” and therefore got what he deserved. If you don’t like getting mutilated and having your arm ripped open, then don’t trespass, commit a burglary, run from the cops, not come out when ordered, etc. Hence, it matters not whether the dog attack was necessary in order to find the person, whether the dog attack really made it safer for the officers, and so on. The guy was a crook; let ‘er rip.

And by the way, when I wrote that except for the gun no police weapon is as likely to cause serious injury I thought to myself, should I add something like “except, of course, when someone uses an unorthodox weapon like a police car to run someone down.” I said nah, the reader will properly assume that I am talking about police instrumentalities designed for & traditionally used as a force instrumentality, such as baton or other impact weapon, OC spray, hogtying, tasers, control holds, etc. Well, for at least one reader I was wrong.