James J. Kilpatrick

In an entirely separate case, also from the 9th Circuit, counsel ask the high court to exonerate police in Kennewick, Wash. This case arises from an incident about 1 o'clock in the morning of July 14, 2003. Sgt. Richard Dopke observed a man riding a mini-moped without lights and without a helmet. He turned on his siren and gave chase, but the suspect slipped into a garage. Two women told the officer he had run out the back door.

Backup officers arrived, among them a K-9 team in charge of "Deke," a German shepherd trained to track suspects and then to bite and hold. From the petition:

"During the track, Deke became free of his lead and after jumping through a hole in a fence made contact with Mr. Ken Rogers, who had been sleeping in the back yard of a neighboring residence. He was visiting his daughter, son-in-law and grandchildren. Officers Kohn and Bonnalie and Deputy Quackenbush struck Mr. Rogers with fists, knees and a flashlight, while Deke continued to bite and hold Mr. Rogers until Mr. Rogers was subdued and handcuffed. Mr. Rogers was released after it was determined that he was not the driver of the moped."

Rogers sued. The officers claimed immunity, but a panel of the 9th Circuit ruled 2-1 against them.

In their petition to the Supreme Court, counsel for the officers argue that Deke "unexpectedly" jumped the fence. Contact with Rogers was "inadvertent"; his subsequent seizure was not an "intentional" seizure under the Fourth Amendment. Moreover, the 9th Circuit's ruling, if left in place, "will effectively result in holding every police dog handler constitutionally liable for any actions of a police dog while off leash."

How would you vote, you followers of the high court? Would you hear one or both appeals? Police clearly made mistakes. In the nature of law enforcement, mistakes will always be made. In these cases, are the plaintiffs entitled to damages? Judge Kilpatrick, meaning me, votes yes. But it's your call.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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