Police K-9 Magazine

Not every confrontation you face as a K-9 handler will occur on the streets. Some of you will have the distinct misfortune of being named as a defendant in a civil lawsuit. The personal safety tactics that served you on the street will not apply in the mahogany offices of attorneys or in marble courtrooms filled with judges and juries. You will be entering an arena where you are no longer in charge and someone else will be calling the shots. How can you best survive that experience and come out on top? An in-depth discussion of the components that influence the outcome of a civil lawsuit is beyond the scope of this article, but I will highlight the most important factors for a successful defense.

Recognition and Assessment

Just as you are trained to recognize and evaluate threats on the street, you need to have an accurate assessment of the threat facing you when you are a defendant in a civil lawsuit. Too many officers shrug off a lawsuit as their department’s problem. Their collective bargaining agreement requires the department to pay for their defense, as well as any settlement or judgment. So why spend time worrying about the process or the outcome? That is the first mistake.

To begin with, it’s possible that your defense will depend on a finding of some wrongdoing by your department or your supervisors. A conflict may exist between your defense and the defense of those who support you. An example would be when the plaintiff is alleging that he was injured by your department’s failure to properly train you. Furthermore, lawsuits are public proceedings. Your life history, your job performance, and your reputation will be explored in depth. Do not be surprised to find that information appear in the local or national media or even on the Internet. The lawsuit will impose stress, become invasive, and disrupt your daily routine. It is an attack upon you and how you perform your job. Take your position as a defendant seriously.

Engage in the Process

Your municipality or its insurer will assign an attorney to defend you. Chances are the attorney will have had little or no experience with K-9 operations. I strongly suggest that you begin by educating your attorney about what it is you do. That includes bringing him or her to your training sessions and otherwise familiarizing your attorney with the unique aspects of K-9 operations.

You also should be open to your attorney’s suggestions and direction. However, that does not mean you have no say in the process. Remember that the attorney is working for you even if someone else is paying them. If you are truly unable to work with your attorney or you believe that they are not taking your case seriously, request that another attorney be assigned. Consider your attorney as much your partner as your partner on the street. Good communication and coordination are essential to a positive result.

Your Training

If you have not trained well, it will be too late to start once the lawsuit is in process. In my experience, very few departments train their K-9 units to optimum levels. Even fewer handlers spend their own time trying to compensate for the lack of training provided by their department. The reasons given are always economic. The department explains that it lacks adequate funding. Handlers argue that they should not have to devote unpaid personal time to improving their or their K-9’s performance. That approach is short-sighted for its impact both on and off the street.

Of course, the greatest danger of a failure to train is the safety and effectiveness of the team on the street, but when a jury awards a seven-figure verdict based on inadequate training, the department and handler will both learn a painful and embarrassing lesson about cutting corners. In my opinion, a department that is unable or unwilling to fully commit to K-9 training is better off without a K-9 unit. Inadequate training will lead to incidents that ultimately will lead to adverse verdicts.

Your Records

There simply is no substitute for accurate records of training and deployments. Lawsuits are determined based on evidence that frequently comes in the form of records and documents. Increasingly, records are in electronic form. Even when a live witness testifies, records can be used to either support or destroy the witness’s credibility.

Records are critical to the defense of a K-9 lawsuit. If the records do not exist, jurors are left to speculate about the competency of you and your dog. You are rolling the dice. Most states and federal circuits have rules of evidence that allow a jury to consider the failure to produce regularly kept records as evidence against the party who was responsible for producing them.

Also, strict rules exist about the spoliation of evidence. Spoliation means doing away with the evidence before the other party to the lawsuit can examine it. The disposal of records does not have to be deliberate to trigger sanctions by the court. Sanctions can include precluding you from raising certain defenses or, in extreme cases, entering a default judgment against you. Do not attempt to create records after the lawsuit has been served. Records created after the fact are inherently unreliable and suspect no matter how innocent the attempt may have been.

If you have fudged your records, that can and will catch up with you. The fact that you have a certification will not prevent the plaintiff’s attorney from looking behind the certification to the training records on which it was based. Good plaintiff’s lawyers will retain qualified K-9 experts to advise them how to attack your training and your records. Training records containing straight As for handlers and their K-9s are a red flag to any experienced K-9 expert. In some cases, plaintiff’s counsel will test your records by arranging a videotaped scenario to see how your dog actually performs.

In one case, the handler was charged with failing to “out” his dog. He argued that his dog always “outed” on command and produced training records to back up his claim. However, during a videotaped demonstration arranged by the plaintiff’s lawyer, the dog never “outed,” despite repeated attempts. The case was over right there. The video not only reinforced the plaintiff’s version of the incident, it also suggested that the handler’s records had been falsified, thereby irreparably damaging his credibility.

A good trial attorney might even arrange to videotape your actual training sessions. If you operate a K-9 unit, you must have a written use-of-force continuum that properly categorizes your K-9, or have a separate K-9 policy. Make sure that each handler is familiar with the policy before they are asked to testify about it. The failure to have such a written policy or to adequately familiarize handlers with it can result in a finding of 4th and 14th Amendment violations, opening the door to an award of punitive damages and attorney fees.

Your Image

At some point in the lawsuit you may be required to testify at a deposition or trial. Your deposition may be videotaped. How you appear is as important as what you will say. Like it or not, we live in a society whose opinions are shaped by visual perception. Attorneys understand that, and you must also.

If you are a patrol officer, wear your uniform, but make sure it is clean and pressed and that all of your pins and insignias are properly placed. Shower, shave, comb your hair, and brush your teeth. Sound obvious? I have taken depositions of officers who looked as if they had slept in their clothes and awakened just minutes before the tape started rolling. Advise your attorney of your shift so that he or she can arrange your deposition at a time that will allow you to get adequate sleep, eat a meal, and attend to your personal appearance. Assume that the jury will view the videotape. Better yet, assume that the jury is in the room while you are being deposed.

Some defense attorneys have their officers appear in suit and tie, minus any facial hair, and maybe even several pounds lighter. Do not try to present yourself as someone you are not. Jurors are very savvy. They will not buy what I call “the magic conversion.” Some jurors may even interpret your decision not to wear your uniform as evidence that you are not proud of what it represents.

How you respond to questioning also is critical. Look the plaintiff’s attorney or the jury in the eye when answering. I find that the transition from being the one questioning others to the one being questioned can be very difficult for some officers. Do not become defensive or argumentative. A plaintiff’s lawyer would like nothing more than to show the jury what a short fuse you have or that you lack self-control. Do not become over-anxious about telling your story. Answer only the question you have been asked and give the shortest possible answer. Do not run on in a rambling, narrative response. You may end up volunteering information the plaintiff’s lawyer had never considered asking you about.

Then there is your best friend. The best public-relations tool you have is your four-legged partner. People love dogs, especially dogs that work for a living to help other people. Take full advantage of that fact. If your dog is social enough, have your attorney consider bringing your dog right into the courtroom. Never bring a muzzled dog before a jury. Like yourself, make sure your K-9 is groomed for the occasion. Exercise and relieve him before he is brought in. Prepare your dog for his appearance by taking him into the empty courtroom several times to become acquainted with it in advance. If jurors like your dog, their goodwill will transfer to you, especially when they see how much your dog adores you. I know of a criminal case in which the prosecutor brought the K-9 into the courtroom. The dog walked over to the jury box, stood on his hind legs and proceeded to put his front paws on it. A couple of jurors reached forward and petted him with permission. Game. Set. Match.

Avoiding Litigation

Understand that a plaintiff’s lawyer typically has a contingent fee agreement with his client, in which he will be compensated by a percentage of the amount recovered by way of settlement or trial. Given that arrangement, the lawyer’s objective is to realize the largest recovery with the least amount of time invested in the case to maximize the value of his effort. A good plaintiff’s lawyer will not push a weak case to trial. If you have trained well and documented your performance, and you make a solid witness, a good lawyer will advise his client to settle quickly and modestly. In some instances, the lawyer will even recommend a voluntary dismissal of the case.

Your priority should be to avoid litigation altogether rather than practicing how to survive it. Do not wait until you have been sued to review your records. Review them regularly as a study tool to determine what you can do to optimize your performance and the performance of your dog. Seek advice from outside experts about your techniques and training. Too many departments think they have a monopoly on effective training and have nothing new to learn. That is a formula for defeat. Train for optimum performance and apply it on the street. Choose to spend your time becoming the best at what you do rather than defending your decision to ignore this advice once you are in a lawsuit.

John M. Peters has been a trial attorney in Michigan for 29 years, representing police officers and law-enforcement agencies. He also founded K9 At Work, a consulting business for the K-9 community. Contact John at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .