Oxnard K-9 Officer’s Removal for Accidental Bite Deemed Excessive

ANDREW M. DAWSON

Founding Partner
Dawson & Riley, LLP

The Oxnard Police Department, like most law enforcement agencies with K-9 units, has had the occasional misfortune of dealing with accidental dog bites. This is an unfortunate reality of operating a K-9 unit. However, these incidents are not egregious actions by the handler; rather, as the term denotes, they are accidents. Prior accidental bites at the Department proved that officers received anywhere from no formal discipline to at most a one-day suspension. However, that all changed when our client’s K-9 partner accidentally bit another officer in November 2013. The client had been a member of the K-9 Unit for approximately two years with no prior discipline or accidental bites. Despite this, the Department tried to justify his removal from the K-9 Unit because of the accidental bite. Dawson & Riley, LLP, successfully represented him during his appeal before an arbitrator, wherein it was determined that the officer should be restored to his prior K-9 position and that at most a written reprimand should be issued.

On November 11, 2013, the appellant officer and his K-9 partner responded to assist in conducting a yard-to-yard search for a robbery suspect. Prior to the start of the search, announcements were made regarding the presence of the K-9 and its possible deployment. The first residence was cleared with no signs of the suspect, and the team moved next door. The fence to the backyard was locked, so it was decided to have the appellant wait out front as officers searched the backyard to avoid taking the K-9 through the house in order to gain entry to the backyard. While officers searched the backyard, there was commotion when the suspect was located. The appellant, knowing that there was an unsearched fleeing felon at large, immediately reacted to the commotion, and attempted to break through the locked gate while maintaining a tight hold on his K-9 partner. Unfortunately, the gate’s support gave way and the gate fell apart, causing the appellant to fall forward onto his knees. When he fell, even though he was still holding on to his dog’s leash, his dog bit the person closest to him — another officer. Unbeknownst to the appellant when deciding to break through the fence, another officer was standing on the other side of the fence, where he was attempting to go “hands-on” with the unsearched suspect, who was standing in a garbage can. The Department alleged that the appellant’s rash actions were egregious and intentional and that it had no choice but to remove him from the K-9 Unit due to the significant liability that he posed to the Department.

The commander, a prior K-9 handler who himself had prior accidental bites, alleged that the appellant’s actions were “exceedingly reckless,” based on his decision to break through the fence and failing to give another announcement prior to entering the yard. The commander attempted through testimony to try to differentiate other accidental bites by claiming that the appellant’s actions were intentional and egregious. The chief concurred with the commander, imposed a written reprimand and ordered the officer’s removal from the K-9 Unit.

At the hearing, it became clear that the chief, whom the Department called to testify as to the decision-maker, was not familiar with the facts of the case or with the K-9 policy. In fact, the arbitrator stated, “Somewhat troublesome herein is the fact that the commander, not the chief, was the effective disciplinarian. Through her testimony, it is evident the chief … failed to independently evaluate or understand, the facts of wrongdoing, the K-9 protocol at play, and critical mitigating facts herein.” The Department also tried to argue that the harsh and unprecedented discipline was necessary because the appellant blamed other officers for the accidental bite. However, the arbitrator recognized that there was no evidence to support the baseless claim made by the Department, and the appellant never blamed other officers for what occurred. From the beginning, the appellant took full responsibility for the accidental bite.

A K-9 expert with approximately 22 years of K-9 handling experience was retained by the appellant’s counsel. He confirmed that if he was present in that same situation, he would have done exactly what the appellant did: shouldered open the gate to access the backyard and taken up a surveillance position to assess the situation once he was through the gate. Not only would he take the same action, but he went so far as to say that he would expect the appellant to take that action to ensure that the K-9 was put into play in this situation. He also confirmed that he would assume that other officers already in the backyard would be setting up an ideal arrest situation by slowing things down and creating distance between the suspect and officers until lethal and non-lethal coverage was available. It was not foreseeable to expect that officers would be going hands-on almost immediately with an unsearched fleeing felon hiding in a trash can, without the appropriate lethal and non-lethal coverage. Lastly, the expert confirmed that the appellant cannot be blamed for the unexpected event of the gate falling apart, as there were no obvious signs of faulty construction of the gate.

The arbitrator agreed that the appellant’s actions were not reckless or egregious, he did not intentionally endanger other officers and his continuance as a K-9 officer would not expose the City to enhanced liability. He did find that the appellant should have made an additional announcement prior to going through the fence but said that violation would at most warrant a written reprimand. There was no justification for the Department to depart from its historical disciplinary practice of little to no discipline for accidental bites, as this case was clearly an unfortunate accident due to the defective gate construction that caused the appellant to fall when he tried to shoulder the gate open and it fell apart. Nothing in the appellant’s employment record or his attitude after the bite justified anything greater than a written reprimand. As such, the arbitrator ordered that he be reinstated to his position as a K-9 officer. The appellant is grateful to the Legal Defense Fund and his attorneys at Dawson & Riley for their unwavering support and persistence in seeing this matter through to its proper conclusion.