THE LEGAL BRIEFING
Legal Checklist for
Police K-9 Officers
This
is the first article for what is hoped to be a regular column
for the APCA webpage. It is designed to feature both legal
issues of common interest and practical matters stemming from
said legal standards for police K-9 officers. Legal information
for both the large and small size law enforcement agency that
has a police K-9 program will be included.
As an attorney
who has practiced for 31 years in both federal and state court,
focusing on criminal justice/law enforcement matters of all
kinds, I hope to give the reader tips and suggestions that can
help improve the actions of police K-9 officers and at the same
time assist them in ways that will help to reduce the risk of
exposure to civil liability, criminal prosecution, internal
departmental police disciplinary action, and other legal
controversies. Since I have aggressively represented or trained
both law enforcement management and rank and file officers over
the years, I hope that this regular feature will benefit all who
read it. What follows is a checklist of matters (based on my
years of study, teaching and lawyering) that every police K-9
officer (federal, state and local) should be concerned with,
regardless of who that officer is employed by.
1. Are there
department standard operating procedures (SOP’s) concerning the
activity of the K-9 officers and their dogs? If so, are these
SOP’s legally sound, appropriate, teachable, understandable and
from a practical standpoint actually useable?
2. Is there a
clear vision, possessed both by management and K-9 handlers
alike, regarding what the essential mission/role of the K-9
handler and dog is to be? Do other officers on the department
understand their clear vision?
3. While there
are no mandatory federal standards for police K-9 officers and
their dogs, have all of the state level (if any) certification
requirements been met as well as any continuing education
requirements?
4. Are the
requirements dealing with mandatory overtime of the Fair Labor
Standards Act (FLSA) under Federal law pursuant to 29 U.S.C.
Section 201 et seq. and the regulations of the U.S.
Department of Labor found at 29 CFR being complied with?
5. Are the first
responder training requirements (especially for search and
rescue K-9 handlers and their dogs) dealing with hazardous
material emergency response personnel under EPA and OSHA
regulations under 29 CFR 1910.120 being complied with?
6. Are the
training and equipment issuance requirements concerning blood
borne contagious diseases from OSHA pursuant to 29 CFR 1910.1030
being met?
7. If any special
state or local labor laws exist concerning police K-9 officers
and their dogs, are these being complied with?
8. If a
collective bargaining agreement exists for the employing agency,
if there are provisions controlling police K-9 officers and dog
action, are they being upheld?
9. Is there a
contract or written memo between the employing department and
the K-9 handler/dog that clearly states who owns the police K-9
in the event of retirement, death, or termination of the
K-9 handler?
10. Are
department records kept, for Brady purposes, of all
credibility issues regarding the police K-9 in terms of
training/testing, mistakes made, and success rate calculations
in terms of performance issues such as success rate for finding
injured/dead people or discovery of contraband both on suspects
in vehicles or residences?
11. For the
purpose of using police K-9 evidence is there a courtroom
strategy for introducing the evidence?
12. If the police
dog is allowed to be unleashed as an apprehension dog, is there
a department use of force policy dealing with this issue?
13. If the police
dog bites or otherwise injures a citizen (from a suspect
intentionally, to a police officer accidentally) is there a
standard injury protocol followed along with required
documentation?
14. Are nearby
police agencies put on notice and educated in terms of how to
act in the presence of the K-9 handler’s dog so that confusion
is eliminated and the risk of accidental bites to fellow
officers is kept down to a minimum?
15. Is there a
clear department understanding between management and the K- 9
handler in terms of who needs to approve all veterinary related
expenses so that the police K-9 gets the best possible health
related care possible?
16. How is police
dog performance determined so that a proper decision can be made
in terms of when the police dog should be retired?
Attention to all
these matters will certainly help to produce a higher quality
department police K-9 program.
Charles N. Braun
Attorney at Law
11935 Glen Cove Court
Indianapolis, IN 46236
(317) 823-0289
Email-b.atty@sbcglobal.net
Mr. Braun has
practiced law for 31 years in both federal and state court. He
has worked for the U.S. Department of Justice, he served as a
Deputy Attorney General for the State of Indiana, is a graduate
of the FBI National Academy for police legal adviser, and has
personally trained thousands of police officers during his
career.
