Man bitten by police dog trained in "bite and hold" method may have fourth amendment claim

Law Reporter, Oct 2003

Kuha v. City of Minnetonka, 328 F.3d 427 (8th Cir. 2003).

The Eighth Circuit Court of Appeals held that a man who was severely bitten by a police dog stated a Fourth Amendment claim when he argued that police should have warned him and given him the opportunity to surrender before using die dog, who was trained in the "bite and hold" method.

Here, Kuha fled from his car when police pulled him over for a traffic violation. Police pursued with a police dog who had been trained to bite the suspect and to hold on until officers command the dog to release the suspect. The dog bit Kulia's upper leg, cutting through his femoral artery.

Kuha sued the city and the officers who pursued him, alleging excessive force in violation of his Fourth Amendment rights and the Civil Rights Act of 1964, 42 U.S.C. [sec] 1983. Specifically, plaintiff argued that the officers should have warned him and given him the opportunity to surrender peacefully before ordering the dog to "bite and hold" him. The trial court granted summary judgment, holding that plaintiff had not stated a constitutional violation. The trial court also held that under the doctrine of sovereign immunity, the officers were immune from plaintiffs suit.

Reversing in part, the Eight Circuit noted that excessive force claims are evaluated under an "objective reasonableness" standard-the force used must have been warranted from the perspective of a reasonable officer on the scene. Citing case law holding officers' failure to warn suspects before releasing police dogs unreasonable, the court held a jury could find that, under these circumstances, releasing the dog without warning plaintiff was objectively unreasonable. Doing so would not necessarily put the officers at increased risk, the court said. Accordingly, the court reversed the grant of summary judgment.

The court affirmed the trial court's finding that the officers were shielded by sovereign immunity, and thus remanded the suit against the city only.

Plaintiff's Counsel

Kay Nord Hunt, Minneapolis, Minn.

* Phillip A. Cole, Minneapolis, Minn.

* Markus C. Yira, Hutchison, Minn.

Comment. A Court Document Set by Topic on dog attacks is available in the back of this issue.