To read part I click link below.
The use of police canines in the United States was indirectly brought to the forefront by the Department of Justice. On August 9, 2014 Ferguson, Missouri Police Department Officer Darren Wilson shot and killed 18-year-old Michael Brown. Officer Wilson is white. Michael Brown, who died from injuries sustained in the shooting, was black (Chaney, 2015). The incident, and the immediate aftermath, sparked national outrage. It also caused the United States Department of Justice to investigate the Ferguson Police Department and municipal court system. The Department of Justice released its report on March 4, 2015.
The Department of Justice reported that the Ferguson Police Department had demonstrated a “pattern of unlawful conduct, which violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law” (DOJ, 2015, p. 1). Data was collected from the police department’s own records for a two year period from 2012 to 2014. During that time, African Americans made up 67% of Ferguson’s population. They were the drivers of 85% of vehicles stopped by FPD officers, received 90% of the tickets written by the FPD, made up 93% of the total arrests, and, according to the DOJ, were twice as likely to be searched by the police. Of all of the use of force cases in the police department from 2012-2014, African Americans were involved 90% of the time (DOJ, 2015).
The Department of Justice asserted that their investigation led to undeniable proof that the Ferguson Police Department and the Ferguson municipal court system engage in “…unlawful bias against and stereotypes about African Americans. “We have found substantial evidence of racial bias among police and court staff in Ferguson” (DOJ, 2015, p.5). The report continues by stating that such conduct is in violation of the Fourteenth Amendment. Because of such violations, the DOJ asserted that there is a strong distrust of the police department among Ferguson residents and that distrust is built upon “unnecessarily aggressive and, at times, unlawful policing…” (DOJ, 2015, p. 5).
At the time of the DOJ report the FPD had four canines. The agency utilized a canine and handler assigned to each patrol shift. During the two year period of DOJ review, 2012 to 2014, every use of force involving a police canine against a citizen involved a black citizen. The DOJ says that a permissive policy and lack of supervision allows officers to “…overstate the threat based on race, has resulted in avoidable canine bites to low-level offenders when other means of control were available” (DOJ, 2015, p.31). The report gave several examples of FPD canines biting African American suspects. These incidents led the Department of Justice to end this section of their report with these words, “…FPD’s use of canine bites only against African-American subjects is evidence of discriminatory policing in violation of the Fourteenth Amendment and other federal law” (DOJ, 2015, p. 33).
Spruill (2016) cited the canine section of the DOJ report in his attempt to connect slave patrols of the 18th and 19th centuries to modern day policing in America. Spruill (2016) used the Ferguson Missouri Police Department as his example of southern racialized policing in the modern United States. He wrote that the slave patrols were organized to control slaves and their activities. These slave patrols were the precursors of today’s modern police forces. The local police were borne out of the need to repress blacks and to insure white domination. Such responsibility was given to the “trinity of southern law enforcers: slave patrols, slave hunters and their non-human partners, ‘packs of negro dogs’ (Spruill, 2016, p.43). These slave patrols were sanctioned by law and were the order of the times. Spruill (2016) wrote that the order of slavery, segregation, and discrimination of those days established practices in policing that exist to this day.
The United States court system, including the Supreme Court, has repeatedly disagreed with Spruill’s (2016) idea of modern day “slave hunters and packs of negro dogs”. Mesloh (2006) wrote about the Kerr v. West Palm Beach (1989) case in a study on bark and hold versus bite and hold police service canines. As part of its opinion on that case, the United States Court of Appeals, Eleventh District, stated “…the handler must have complete control over the actions of the canine. With such control the handler can recall and restrain the canine before a bite occurs (a verbal recall). Alternately, the handler can quickly remove the canine from the apprehended suspect” (a verbal out). Fleck (n.a.) expounded, “The U.S. K-9 industry standard is a verbal recall and verbal out. This has been addressed by the nationally recognized K-9 associations and Federal case law. In addition, the courts have been emphasizing the “immediate release” of a suspect once the handler commands it” (Fleck, n.d.) With such standards, training time is of paramount importance for police canines and their handlers. Canine behavior consists of four components. Those components are genetics, chemistry, early experience, and adult learning. In most cases, law enforcement agencies acquire their service canines at an age of 18-24 months. Canines are considered adults by that age. They learn from repetition and re-enforcement. They must receive adequate training time in order to learn new tasks (Mackenzie, 2015). According to Fleck (n.d.), the minimum industry standard for police canine training time is 16 hours per month for each canine and its handler. The 16 hour standard is recognized and endorsed by the three largest police canine organizations in the country, the United States Police Canine Association, the North American Police Work Dog Association, and the National Police Canine Association, however, these organizations are certifying bodies only. They have no legal or disciplinary authority over police departments or police canine handlers. These certification standards regulate the physical performance of police canines and their handlers, but they do not include any testing of legal knowledge on the part of police canine handlers.
In the Kerr v. West Palm Beach (1989) case, the court also established the acceptable bite to apprehension ratio for police service canines is 30%. The court also stated that any ratio over 20% should be reviewed for possible incidents of excessive use of force, poorly trained canines, or poorly trained handlers. The United States Court of Appeals, Eighth District, which includes Missouri, has also made several rulings concerning police canines as a form of force. Those cases include Mettler v Whitledge (1999), Dennen v City of Duluth (2003), Mann v Yarnell (2007), and Szabla v City of Brooklyn Park, Minnesota (2007) (Fleck, n.a.). Each of those cases involved a police canine biting a person, whether a suspect or an innocent person. When officers acted negligently, the court reprimanded the officer and judicially corrected the improper action. Each of these cases were considered under the standard already set forth by the United States Supreme Court under Graham v Connor (1989).
This paper has reviewed the court case decisions which guide law enforcement officers in the use of force. The Supreme Court’s decision in Graham v. Connor (1989) established that any use of force by law enforcement must be objectively reasonable. It also established a three factor test for officers to consider when in a possible use of force situation. In their report, the Department of Justice wrote, “…FPD’s use of canine bites only against African-American subjects is evidence of discriminatory policing in violation of the Fourteenth Amendment and other federal law” (DOJ, 2015, p. 33). The only evidence cited to support this statement by the DOJ is the fact that during a two year period only African Americans were bit by FPD canines.
In each example given by the DOJ, the use of a canine by FPD officers fails to meet the standards set forth by the United States Supreme Court in its Graham v. Connor (1989) decision. However, the Department of Justice fails to prove that the Ferguson Police Department canine bit suspects based on race. The DOJ also attempts to determine the intent and motivation of the FPD Canine Unit whenever it used its police canines as a use of force tool. This is akin to the “shock your conscience” doctrine, which became obsolete with the Graham v. Connor (1989) ruling. The DOJ report cites statistical evidence gleaned from the municipal court records. It does not speak to statistical evidence of state court cases from Ferguson. Statistical evidence of the number of felony crimes for which an African American was the suspect may shed more light on their claim of racism by FPD officers and canine handlers. Other helpful information would be the number of convictions of African American suspects for felonious crimes. Without more evidence, the DOJ’s claims against FPD officers are baseless and only serve to further inflame an already volatile situation. The DOJ did not bring any criminal charges against the police. No charges were brought for the killing of Michael Brown or any other finding deemed unconstitutional by the DOJ during their investigation. This fact is due to the lack of real evidence of any wrong doing by the Ferguson Police Department.
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