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Merced K9 Officer is Cleared of Departmental Charges

Posted on Thursday, February 01, 2007 at 12:00PM
Posted by Gary M. Messing

Police Officer Jeff Horn, a distinguished officer with the Merced Police Department, was a part of the department’s K9 program for three years. During that time he worked with a narcotics detection K9 (“sniffer”), Riley, who was his partner and companion.

Tragically, Riley died in Officer Horn’s vehicle as a result of a mechanical malfunction of the patrol vehicle. While Horn was grieving for his partner, the newspapers found out about the accident and made a public issue of it. The department removed Horn from the K9 program and proposed a 16-working day suspension.

The accident occurred in August 2006, when Riley was left in a marked patrol vehicle outside of police headquarters. The temperature was 102°. As was Horn’s practice, the air conditioner was left blowing on high. It was known that Horn would leave his vehicle for up to three hours at a time, relying upon the air conditioner in the summer or the heater in the winter to maintain a proper climate for Riley. Horn did not have to make frequent return trips to his vehicle, as his dog needed only infrequent breaks to take care of his bodily functions. Horn’s vehicle had never malfunctioned in three years time.

On August 10, when Horn returned to his car to make sure that there was sufficient gas to keep the air conditioner running, he discovered that Riley was dead in the backseat. Horn was charged with destruction of city property and violations of other city personnel rules, department personnel rules and general orders, including allegations of willful and negligent misconduct.

Horn was unable to bring Riley into the station because he was interviewing witnesses and needed access to his computer. Riley would have either been with him in the office, causing a distraction to the witnesses, or Riley would have been in a separate room, where he would have been exposed to other officers, with potential detrimental affects to his training.

It should be noted that all of the other dog handlers in the department stated that they would leave their K9s from anywhere to one-half hour to 1 ½ hours or longer under similar circumstances. The sergeant in the unit indicated that he would leave his dog up to one-half hour under these circumstances. There were no rules or regulations, nor any training provided the officers regarding how to handle these situations. However, everyone agreed that the dogs were routinely left unattended in patrol vehicles and it was at the officer’s discretion whether to bring them into the station, or leave them at home. If the dogs were left at home, they would not be available for certain law enforcement actions that could arise during the course of the shift. Marv Gangloff, who trains many police K9s, stated that it would be common sense for dogs to be checked periodically. However, nobody could define exactly what “periodically” means.

At the Skelly hearing, I raised to Police Chief Russ Thomas the new amendments to Section 597.7 of the Penal Code, which prohibits leaving an animal in an unattended motor vehicle in conditions that endanger its health or well-being due to heat, cold or lack of ventilation, food, water, or other circumstances that could reasonably be expected to cause suffering or death to the animal.

While the department was familiar with this section, and no doubt thought that this added justification to their action against Horn, the reason for citing the statute was that the section contained legislative findings that even a vehicle’s windows left slightly open, outside temperatures of 85° can cause a temperature of 102° within a vehicle within 10 minutes, and up to120° within one-half of an hour. The section says that a healthy dog whose normal body temperature ranges from 101° to 102.5° can withstand a body temperature of only 107° to 108° for a short period of time before suffering brain damage or death.

The point of citing this section was to demonstrate that the practice of each and every Merced K9 officer, including a sergeant, could have led to the death of their K9s within the time frames that they used for checking on animals’ well being. They were all dependent upon the vehicle continuing to run and provided the animal with air conditioning. If any one of them had the misfortune of leaving their vehicle and the air conditioning fail shortly thereafter, they would have returned to a dead animal.

Based on the previous scenario and the fact that the department had no training and no written procedures regarding care of the K9s under these circumstances, it became apparent that the action against Officer Horn was without merit.

Moreover, at the Skelly hearing I pointed out that Horn had complained to the department that he had been required to leave his dog for three hours at a time, relying only on the air conditioner of his car. Additionally, Horn had, for several years, requested that the “bail out and hot dog” package be purchased and installed by the department.

The bail out and hot dog package is now becoming standard in departments. The equipment ensures that if the patrol vehicle becomes dangerously hot, the windows automatically roll down, a fan begins to blow in the car and the officer is automatically paged that his/her K9 is in trouble. The door of the vehicle can be remotely popped open to allow the K9 to escape the patrol car.

The bail out and hot dog package, which costs less than $1,000 a vehicle, was not purchased by the city. The equipment seems like an obvious solution to protect the valuable lives of the animals that are so well trained. However, it turns out that the department had purchased fans for its vehicles, but the City Corporation’s Yard failed to install them, asserting that they would create too much of a drain on the electrical system of the patrol cars. There was no way to explain, however, how numerous other departments with standard patrol vehicles were able to withstand the entire bail out and hot dog package in addition to their light bars, computers and other equipment.

I pointed out to Chief Thomas that in the absence of training and procedures, and given the practices of the other officers in the department, it would be grossly unfair to hold Horn accountable for the loss of his K9. Moreover, if there was any negligence, it was on the part of the city in failing to install the basic equipment that is now becoming standard to protect K9s.

Chief Thomas was extremely troubled by the loss of the K9, but, to his credit, he revoked the punitive action in its entirety. Horn expresses his gratitude to Chief Thomas for keeping an open mind and being fair despite the emotions surrounding this incident. He also thanks LDF for standing behind him, and his fellow officers who also supported him through this ordeal.

About the author: Gary Messing is a partner in the Sacramento office of Carroll, Burdick & McDonough. He has been representing law enforcement officers for over 30 years.

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