Time on a Bite

by Bill Lewis II

There are two issues causing legitimate concern within the police K9 community regarding the reasonable amount of time a police dog is justified to be on a bite prior to its release and the amount of time the dog remains on the bite after the handler has given the dog its first command to release.  It is often said “time is on your side” but in the case of a dog bite, that is not necessarily the case.

I could condense this article into one short sentence; A handler should remove his/her police dog from a bite on a suspect as quickly as possible once it is safe to do so.  However, some of you might want a little more explanation and your administration might request further justification in support of this recommendation.

A case that is generating much concern is “Hartsell v. County of San Diego” based on a recent decision by the U.S. Court of Appeals for the Ninth Circuit, filed on April 21, 2020.  Basically, in this case, the deployment of the police dog was found to be reasonable, but the time the dog was on the bite was determined to be unreasonable.

One of the dangers often encountered when we read case decisions is lack of clarity or consensus as to the actual lessons to be learned and their applicability to your K9 program.  Your interpretation may certainly differ from mine.  It is essential that your team (and agency) reach consensus and apply the lessons learned equally.

It’s important to mention, regarding the Hartsell case, that I have not interviewed any participants, read any reports, nor viewed any photographs or video depicting where the suspect was located or how the suspect was dressed.  I am reading the court documents to assist me in offering some observations and recommendations for addressing a similar situation.  “Similar situation” means that the Hartsell circumstances will not specifically apply to your situation because every situation is different. 

Here is an excerpt from the Hartsell case; “…we conclude that, viewing the evidence in the light most favorable to [Plaintiff] Hartsell, a reasonable factfinder could conclude that [K9 handler] Stroh’s continued use of force became objectively unreasonable when Hartsell complied with instructions to show his hands, emerged from the brush with the canine attached to his arm, and was within the deputies’ control, if not sooner.”

“Complied with instructions to show his hands” does not mean the suspect was not armed nor had access to a weapon.  “Emerged from the brush” sounds no different than an unsearched suspect emerging from a structure or vehicle.  “Within the deputies’ control” is not clearly articulated as secured and/or handcuffed.  “Control” should be defined within a policy or a training lesson plan if the term is being used at your agency.  I believe a suspect can be controlled under some circumstances prior to being handcuffed but I do not believe a suspect is “secured” until they are handcuffed.  

In the Hartsell case, the suspect was described by a witness as heavyset, wearing a tank top and underwear.  The handler could see a man matching the suspect’s description laying on his stomach in the brush but, after a K9 warning was given and the dog was biting the suspect, the handler could not confirm the presence of any weapons or access to weapons. 

The density of the brush described more thoroughly with perhaps a photograph or video might assist in reviewing the incident for our purposes.  The case reads as if photographs of the scene were taken but perhaps not immediately after the incident and the timing of the photographs was perhaps disputed.

It is important to memorialize the scene immediately after an apprehension involving a bite or other injury (or as soon as reasonably possible to protect the integrity of the scene) when deemed necessary by photograph and/or video to include any area where a suspect was concealed or hiding.  A photograph of the suspect after an apprehension should be taken to show the clothing worn but do not photograph any wounds or injuries to the suspect until after the suspect has been medically-treated and the wounds cleaned and avoid taking photos of bloody clothing if possible.

There was a K9 policy several years ago that basically read “If the handler sees the suspect’s hands are empty, the police dog shall be removed from the bite.”  Absurd.  “Empty hands” does not mean that a suspect is not armed nor has access to a weapon – it’s a bad assumption that could get an officer killed.  Absent other conditions, if a dog is removed from a bite simply because of empty hands, the suspect remains a threat and has been given the opportunity to access a weapon.  Direct observation of the suspect by the handler and/or cover officers, and those observations may include the clothing worn or the environment capable of concealing a weapon, in addition to seeing empty hands, are factors the handler will consider prior to the removing the dog.

I’ll compare a felony vehicle stop to a police dog biting (and holding) an unsearched suspect.  When the driver of the vehicle exits on command, and holds his/her hands high in the air, do the officers or deputies put their guns away?  They usually do not put away their duty weapons because a weapon could still be concealed on and accessible to the suspect.  Officers usually do not put away their weapons until it is safe to do so when the suspect is under their control, handcuffed, and secured.

If a suspect verbally calls out “I give up” and hands are empty, do deputies automatically lower their guard and holster their weapons?  Have you ever located a concealed weapon on a suspect with empty hands who was in the process of surrendering or being taken into custody? 

What happens when a handler is alone with the suspect while the police dog is on the bite?  Does the handler wait for backup without a time consideration or does the handler attempt to handcuff the suspect because further delay might be unreasonable?  When is it safe to do so?  “Safe” depends on the circumstances and what is reasonable.  Can a handler holster their firearm to handcuff or can they handcuff safely with their firearm still drawn?  Do you train your handlers to take someone into custody on their own without backup with or without the dog on the bite?  Has your dog been trained to release a bite and lay a short distance away while you handcuff the suspect?

If deemed appropriate, a handler without backup could remove the dog with a verbal out before searching or handcuffing but what precautions to reduce risk can be taken if the suspect then attempts to access a hidden weapon?  I recommend “cover.”  I have seen in the real world and in many training scenarios handlers who fail to take advantage of nearby cover during situations like I’ve described and they opt to stand in the open and are not prepared to react to a threat.  It’s not safe to do so. 

I believe there are some primary failures attributed to leaving the police dog on a bite for a time period beyond what some people might consider reasonable that include; 

1) Failure of the handler to properly evaluate the scene and articulate in writing the circumstances related to the apprehension phase and the bite – not specifically the same as the crime and circumstances for which the dog was initially deployed.

2) Failure of the handler and backup officers to seek cover in lieu of automatically moving directly out in the open to a suspect being bitten by the police dog.

3)  Failure to immediately take control of a suspect with proper arrest-and-control techniques to secure and handcuff the suspect within a reasonable time frame. 

4) Failure to use proper verbal communications with a suspect during the bite.

5) Failure to properly interpret suspect actions as attempts to cause criminal injury to the dog or officers or merely defensive reaction to stop the biting.

6)  Failure of the handler to control the dog to release the bite in a timely manner when appropriate to do so.

EVALUATE AND ARTICULATE – I believe the vast majority of handlers are doing the right things but many are not properly evaluating and articulating the circumstances they encounter after the initial deployment during the bite and their thoughts.  This evaluation often becomes one-dimensional and it is difficult sometimes to separate the crime for which the dog has been deployed and the apprehension event.  The original crime and suspect history must remain a primary consideration, but that information may no longer be relevant to the conditions being present during the bite and should be prioritized accordingly.  I’m certain many handlers will disagree with me but I think handlers must start accessing their response in two stages in consideration of the length of reasonable time the dog is on a bite.   

COVER – Based on training and perhaps bad habits developed in real world situations, handlers tend to move immediately and directly to the suspect without consideration of utilizing or creating available cover.  This dilemma often relates to the mindset that a handler is obligated to remove the dog quickly based on a “liability” concern without first consideration to safety.  The “priority of life” scale could be related to these situations whereas the safety and well-being of an officer ranks higher than a suspect. 

Instead of first moving to the suspect, handlers should take a split second or so to scan the area for cover where they might be safe and not exposed to the suspect if that suspect is armed while the suspect struggles with the police dog.  For example, using shields if available or a police car as mobile cover to move toward a suspect should be considered.  However, do not allow time to tick onward unreasonably as a determination is being made, and if cover is not available, respond accordingly.  Good training scenarios can prepare handlers to read and react appropriately.

TAKE CONTROL – Handlers and backup officers need to work effectively as a team and be more timely and efficient when they physically encounter the suspect to control, handcuff, and secure. I realize the difficulty in trying to secure a struggling suspect who refuses to cooperate while a police dog is biting, but there are effective techniques taught in arrest-and-control training across the country to assist and expedite these types of situations that often get forgotten during stressful encounters. Officers cannot expect nor wait for the dog to bring an encounter to a successful conclusion on its own.

“Officers cannot expect nor wait for the dog to bring an encounter to a successful conclusion on its own.”

How do your officers train to take combative suspects into custody with or without a police dog present?  How do your officers take control of a suspect who may be considered armed or who has not been searched and could possibly be in possession of a weapon?  How do your officers take control of an unsearched suspect if the dog is verbally outed from a distance?  Is an unsearched suspect actually “under control” from a distance?

VERBAL COMMUNICATIONS – When a handler encounters the police dog biting an uncooperative suspect, if appropriate to assist officers so they can take rapid control of the suspect, brief and concise commands can be given like “Stop moving so I can remove the dog” or “Stop moving so we can handcuff you and get the dog off” or “The quicker we get you handcuffed, the quicker I can get the dog off.”  These commands can be repeated and should be repeated with non-compliance, they should be clearly commanded so they can be understood, and these commands should be recorded by a body worn camera or other device if activated. “Do you understand?” is a question that can be asked if cooperation fails.  Handlers should routinely practice giving these commands in training scenarios developed specifically to address this issue.  You fight (and give verbal commands) like you train and practice.

“You fight (and give verbal commands) like you train and practice.”

SUSPECT ACTIONS – I’ve heard “the suspect always dictates the duration of the bite” but is struggling alone cause for the continued use of force?  The handler needs to evaluate the circumstances rather quickly and make a decision to remove the dog based on the threat if the suspect is under control but perhaps not yet handcuffed.

Is the suspect really “fighting your dog” or merely struggling to stop the police dog from biting?  It is important for a handler to rapidly assess this encounter to assist in deciding when it is safe and appropriate to remove the dog once the suspect is under control and secured.

A few K9 policies read: “Handlers will continue to factor into their call-off decision that the average person will struggle if being seized or confronted by a canine. This struggling, alone, will not be cause for not calling off the canine.”

I read the following:  “The natural reaction of a person being bitten by a canine is to struggle and attempt to fend off the attack. Unless the canine can be commanded to disengage in a timely manner, such struggle will normally prompt the canine to continue or even escalate the biting response and thus aggravate the potential injuries.”

RELEASE THE BITE – Once a handler has determined the use of force (the dog bite) is no longer necessary, and the handler gives the first verbal command to and/or physical action for the dog to release the bite, the “unreasonable clock” begins ticking and the time it takes to eventually stop the force (release the bite) is the time the handler will be held accountable and any continuing force (staying on the bite) may be deemed to be excessive.  Many of us have recently seen videos of handlers unable to remove their dogs from a bite in a timely manner.  You do not want to be that handler.

The excessive duration of a bite could constitute excessive force that would be a constitutional violation per Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Circuit, 1998).

It is not always necessary nor reasonable to leave the dog on a bite once backup officers have “physical control” of the suspect prior to handcuffing and/or the suspect is visually and physically compliant.  If control can be achieved before handcuffing, the handler should seek confirmation by asking something like “You got him?” before removing the dog and add “I’m going to remove the dog” once control has been acknowledged by the backup officer(s) before removing the dog.  

The IACP model policy dated 2015 reads: “The canine shall be commanded to disengage when reasonable and practical based on the cir­cumstances.”

The Lexipol policy from 2017 reads:  “If the canine has apprehended the suspect with a secure bite, and the handler believes that the suspect no longer poses a threat, the handler should promptly command the canine to release the suspect.”

You might notice that both of the above policies require a command shall or should be given but do not require physical removal by either verbal command and/or physical action.  I would modify the policy:   “If the canine has apprehended the suspect with a secure bite, and the handler believes that the suspect no longer poses a threat, the handler should promptly disengage the canine from the suspect.”

“Release the bite” (or whatever command is used to remove the dog from a bite) must be a command that is clearly understood by the dog and immediate compliance must follow that command whether or not it is accompanied by a physical action to remove the dog.  Remember, the clock is ticking.

There are some agencies that require an estimate of time the police dog is on a bite.  I’ve read a few policies that state:  “Without exception, a reference to the duration of the canine’s contact with a suspect shall be included in the handler’s supplemental report.”  I was not previously a fan of routinely putting these times in a report but since the times they are a-changin’ it seems like reasonably good advice.

If a handler has a means by which to best estimate or provide a rough calculation of the time a police dog is biting a suspect, this time can be included within a report – using a body worn camera footage or other methods to assist in determining this time.  However, I caution against guesses that would be given without the ability to confirm or better estimate as handlers should avoid guessing.  I would be careful of using “without exception” in your policy as it could be problematic should the inability to calculate the duration of a bite occur.

I recommend you read the Hartsell case in its entirety because I have only touched on the highlights I believe are currently relevant.  You can access the case at;

https://www.casemine.com/judgement/us/5c4aa277342cca506227cc53

In closing, I don’t believe the Hartsell case is cause for concern if you are doing things the right way – or maybe, you just need to improve on a few things.  I think the case emphasizes the necessity for thorough documentation and relevant evidence regarding the initial deployment and the description of the bite event.  Good report writing isn’t a suggestion, it is a requirement.

Bill Lewis II © July 2020

This article was first posted online at TacticalK9USA.com on July 14, 2020.