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.