Cops Still on Hook for Deadly Dog Bite

SAN FRANCISCO (CN) - A wrongful death claim against the Hayward Police Department can proceed, a federal judge ruled, for survivors of an 89-year-old man whom a police dog bit in his own back yard, costing the man a leg, and then his life.

U.S. Magistrate Judge Nathanael Cousins' order allows civil right claims for excessive force against the City of Hayward; assault and battery, negligence, and wrongful death claims against the officers; vicarious liability claims against the city for the tortious acts of the officers; and California Civil Code § 3342 (dog bite) claims against the city.

The judge wrote: "Hayward Police Officers used a police dog to track an armed suspect who fled after robbing a Domino's Pizza at night. Nicky, a Dutch Shepherd trained to bite and hold, guided the officers to an eight-foot wall. Police Officer Loring Cox, without warning, lifted Nicky over the wall and lowered him on a thirty-three-foot leash into the backyard of a mobile home. Jesse Porter, an 89-year-old who resided in the mobile home and had no connection to the robbery, was alone in his backyard. Nicky bit Porter on the leg, leaving a gaping hole. The wound later became infected, and doctors amputated Porter's leg above the knee. Two months after the bite, Porter died. Porter's children and estate sued Hayward, Officer Cox, and the two other officers involved, alleging violations of his constitutional rights and various state law claims. Those defendants now move for summary judgment."

Cousins dismissed in part a Fourth Amendment claim: "Because the law does not clearly establish a right to be warned of an impending seizure by a police dog, Officers Cox, Purnell and Miller are entitled to qualified immunity. ... Whether the conduct of the officers was reasonable, however, is disputed. Construing the facts in favor of plaintiffs, a jury may infer that the City was deliberately indifferent in continuing to deploy Cox and Nicky in spite of Nicky's having bitten bystanders in the past. Accordingly, the Court denies summary judgment on plaintiffs' § 1983 excessive force claim against the city."

The police dog made mincemeat of the elderly man's leg, according to the judge's ruling: "Nicky's bite left a gaping hole in the calf muscle of Mr. Porter's left leg, exposing tendons and muscle. The image of the wound from Eden Medical Center shows that most of the calf muscle is missing from Mr. Porter's leg. None of the individual officers at the scene recounted for how long Nicky was biting Mr. Porter. Officer Cox declared that Mr. Porter did not make any noise or move in response to Nicky's bite. This suggests that Mr. Porter did not struggle and was likely not bitten multiple times by Nicky in an attempt to maintain his grasp. Inferring that just one bite from Nicky was sufficient to sever most of Mr. Porter's calf muscle from his leg, the Court can reasonably infer the amount of force used to detain Mr. Porter was significant." (Citations omitted.)

The judge added: "Because officers Cox, Purnell and Miller are not immune to plaintiffs' state law claims, neither is the city. Moreover, plaintiffs have established a dispute of material fact as to an essential element of the torts. Therefore, court denies defendants' motion for summary judgment on plaintiffs' state law claims."

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