Kerr v. City of West Palm Beach – A Look Back and Ahead

by Bill Lewis II

“Ultimately, [the Kerr case] was the best thing that could have happened to our K9 profession.” -Lt. Robert Anderson (Retired), Palm Beach County (FL) Sheriff’s Office

There are several landmark cases related to K9 programs we are expected to know as handlers, supervisors and trainers – some more significant than others.  Some of the cases are directly related to actual “police dog incidents” – deployments and bites – and others, like Graham v. Connor and Canton v. Harris, are cases related respectively to the use of force and failure to train stemming from incidents not involving police dogs.

I believe one of the most significant cases directly involving a K9 program is Kerr v. City of West Palm Beach  875 F2d 1546 (US Court of Appeals, 11th Circuit, 1989).  Over the years, I’ve heard various accounts of the case and implied “directives” that should be applied and practiced based on the decision from different instructors – attorneys and other handlers – and I’ve read the court case itself many times.  I use this case in my classes to best emphasize certain aspects of the lessons learned that I believe are critical in limiting the liability of those persons associated with a K9 program.

We can all read the same information, but what I have learned with Kerr – as well as a few other cases – is that our individual interpretation of the facts, our perspective and potential application of that information will be largely based on our own collective experience and training as well as outside influences and direction.  We may base our interpretations on other information available to us but that same information may not be known to or shared with others.   Not surprisingly, these interpretations will also vary from one expert to another, one attorney to another, one handler to another, and so on.

Can we learn something new while reviewing an old case?  Can we study the past to validate the present?   If we look back, will we be able to evaluate our current operation without bias to improve ourselves and limit our liability as we look ahead?  The Kerr case is over 20 years old – but it is as applicable today as it was in 1989 – if not more so. 

In researching this case for a new perspective, I was able to contact two sources familiar with the case – a retired lieutenant (Robert Anderson) who previously supervised a neighboring agency’s K9 unit, testified at the Kerr trial as an expert witness and continues training handlers and police dogs today, and a former West Palm Beach police officer (Mark Alexander) who became the third K9 handler with WPBPD in 1986 – after the case began to unfold and prior to the trial in 1987 – and he continues to work today as a handler with another agency in Florida.

West Palm Beach Police Department in Florida established their K9 unit in 1981.  They selected two handlers – recently described as “top policemen and excellent handlers” – and sent them to a 480-hour basic handler’s course. Unfortunately, upon return to West Palm Beach after the handler’s course, there was no direct supervision of the handlers and no training plan.  They were inexperienced handlers left to train themselves and learn the job as they proceeded in time unguided and essentially unsupervised.

According to Mark Alexander; “There was virtually no mandates from the FDLE (Florida Department of Law Enforcement) or any recognized organization dictating methodology of training, deployment or record keeping that could be helpful in a case such as this.”

The written deployment guidelines were good and basically authorized the use of the police dogs for felony situations.  However, things began to change when an oral policy allowed the handlers to use their dogs to apprehend fleeing and concealed individuals suspected of a “serious misdemeanor” – but they did not define what constituted a serious misdemeanor.  Later, at the trial, it was determined 85 percent of the bites involved individuals suspected of a non-violent felony or misdemeanor.

The department did not assign a “K9 supervisor” to directly supervise or monitor the handlers nor review their work product or their performance.  Each handler kept a private daily record of whether his dog was acting acceptably but the department did not monitor these records.  “Force reports” of K9 incidents and apprehensions were reviewed by shift commanders and the Chief and discarded after thirty days.  There were no mechanisms in place to review the performance of the K9 teams whose actions had resulted in an excessive number of complaints.

The case essentially began after three incidents involving bites occurred during 1982 and 1984 – two bites to non-suspects and one of those non-suspects was a man named Kerr.  Although the eventual outcome would later focus on training and supervision, “police dogs as deadly force” was a primary issue at trial as the Plaintiff’s attorney wanted police dog usage ruled by the court as deadly force – as many claimed before and have claimed unsuccessfully since.

Unlike today, the “police dog” lawsuits were relatively new and there were not many experienced attorneys adequately representing the Plaintiffs and defending the police.  They were not being educated or seeking guidance by those working in the K9 community.  In the Kerr case, “there was as much ignorance of K9 knowledge at the Plaintiff’s table as there was at the Defendant’s table” when it came to understanding the K9 programs, according to Alexander.

Regrettably, many of the problems encountered and mistakes made in the Kerr case still now exist in many agencies across the country today.  I am going to highlight a few points from Kerr as I believe they apply today;

Policy – Your department must have a good written policy that is legal and based on current case law and industry standards.  Any changes to the policy must also be made in writing and should be approved by legal counsel and those most familiar with the changes and intent.  All changes must be presented to and discussed with personnel and those presentations and discussions documented.

Supervision

The handlers at West Palm Beach did not have a designated K9 supervisor – someone being assigned direct responsibility for and subsequently learning what’s necessary to properly supervise a K9 unit.   I know a few agencies today that do not have a designated K9 supervisor or designate one in title only without mandating the proper training and introduction for the position.  I also know many agencies that assign immediate supervision of a K9 handler to a patrol supervisor unfamiliar with K9 operations, training and liability.  These “situations” might be called “negligent supervision.”

Control

The court said The severity of an apprehended suspect’s injuries can be reduced if the handler has complete control over the actions of his dog. With such control, the handler can recall or restrain the dog before a bite even occurs. Alternately, the handler can quickly remove the dog from the apprehended suspect, minimizing the possibility that the suspect will be further injured in an ensuing struggle.”

I have been in several debates and discussions over the years on the topics of “complete control” and “recall or restrain” as they relate to this case and my belief has not changed; a handler MUST be able to control his/her police dog which includes the ability to recall the dog before a bite occurs and verbal out the dog when it is on a bite.

I am often disappointed in the lack of control of some police dogs I see today in training environments, certifications and a few deployments.  It is a training issue, but it is also, unfortunately, an acceptance issue on behalf of a handler, trainer and supervisor who refuse or are unable to address and correct the behavior.  However, I am also pleased to report I see handlers who exhibit great control over their dogs and they take obvious pride in their ability to do so.

I was once informed in a letter “It was determined that most smaller agencies and their respective trainers did not know or were unable to properly train the canine to recall.”  I’ve never heard the courts specify that smaller agencies do not need to comply with the same case law or standards as a medium-sized or larger agency because of their size and that attempt to rationalize is truly unreasonable.  And, if a trainer doesn’t know how to train a police dog to recall or is unable to properly train a dog to recall, it’s time to find a new trainer.

Training

The court said “Because a dog’s responsiveness to its handler’s commands may erode over time, police dogs need continual training to assure that they will perform responsibly. To ensure that misbehaving dogs receive prompt corrective training, a strict performance monitoring system is necessary.”

If agencies make a commitment to have a K9 program, they must make an equal commitment to provide continual, job-related training.  Training is one of the most important aspects of a successful K9 program and critical in limiting liability.  There are K9 units today that are not receiving a minimum of 16 training hours per month.  There are currently new and inexperienced handlers left to train themselves most of the time because of dwindling budgets, lack of administrative support and inadequate supervision as well as “nothing bad will happen here” and “we’ll take our chances” attitudes.  There are handlers who currently attend a supervised training day once a month in large training groups with basic exercises, fewer repetitions and less personal attention to problems and then sent off to fend for themselves for the other 29 days.

Training is not merely a time commitment; it is a commitment to prepare for the multitude of tasks and mindset necessary to perform the job of a K9 team.  There are some training programs that simply go through the motions of training to meet minimum time requirements instead of preparing for the opposition.  We must challenge the handlers as well as their dogs.  We must continually train to prepare for the real world encounters and worst case scenarios.  We must not only train for the surrenders and apprehensions – but we must train to encounter both armed and physical resistance, search and track those in flight and safely find those who are concealed and inaccessible.

If an agency does not provide proper training for its K9 teams and the time and resources to properly train its K9 teams, it is a recipe for disaster – and the big payout for a Plaintiff is lingering around the corner.  It is incumbent for handlers to make proper notification of training and training time deficiencies to their supervisors without the fear of retribution – and they should expect support and cooperation.  It is incumbent for the agency to provide proper training to ensure its K9 teams are able to perform accordingly.

Bite-ratios

The court said “One indication of a misbehaving dog is a high ratio of bites to apprehensions (the bite-ratio). An expert testified concerning the bite-ratio that could be expected from a properly trained and supervised canine unit. That expert indicated that less than thirty percent of apprehensions should, on average, result in a bite.”

I understand the bite-ratio was another key issue against West Palm Beach in the Kerr case.  They estimated that the bite-ratio was 50 percent but also indicated “force reports” were destroyed so how could the circumstances related to a deployment and subsequent apprehension be confirmed or clarified?  Departments today calculate these ratios differently and some don’t even calculate.  Who determines the best ratio?  I’m not an advocate for keeping these statistics and I don’t see a direct correlation to a properly trained and supervised K9 program without more clarifying information made available.  Is a handler with five legitimate and justified bites in five deployments the product of a poorly trained and supervised K9 unit compared to a handler with a dog that bites one but would not or could not bite four other suspects in five deployments?

Standards and Documentation

Mark Alexander saidTo this day, there is still little in the way of K-9 standards that reach from one jurisdiction to another.  One department does their own training, while other departments rely on bigger departments with their programs for re-current training and certifications. Record keeping, both for training records and K-9 usage reporting, is still not uniform in any sense of the definition. Looking back to 1987, it was hard to think that was what was ultimately on trial and found in favor of the Plaintiff’s arguments.”

It should come as no surprise to you that training, case law compliance, deployment philosophies, certifications, documentation, and expectations within the K9 community are different around the country and maybe within your own jurisdiction or a neighboring county.  We should strive for consistency but I doubt we shall ever experience national uniformity and compliance.  As such, we should take steps to limit our own liability and make sure we are doing the right things.

I highly recommend you read the Kerr case on your own because there is much more that you can learn.  You can search online for the case itself as well as locate other interpretations and short articles related to the case.  You can then use the information and varied opinions to begin an open discussion of the case points at your next handlers’ meeting with your supervisor – and evaluate how your K9 unit compares to the situation once experienced in West Palm Beach.

Patrick G. Gallagher wrote “More change has resulted from judgments in liability cases than would have been achieved by pure appeals to police professionalism…”

We are not generally receptive in law enforcement to simple suggestions and pure appeals that offer ways to improve and prevent mistakes.  We also don’t like to lose liability-related cases – they can be costly, embarrassing and stressful.  But, when we lose a case, we must all collectively learn from our mistakes or the mistakes of others so that poor performance is not replicated.  I think the Kerr case is such a case and I agree with Lieutenant Anderson who said “Ultimately, it was the best thing that could have happened to our K9 profession.”

Bill Lewis II © July 2012