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A warning with some teeth

Statement aired over police radio gives suspects the chance to avoid a dog bite and protects agencies from lawsuits

By Laura McVicker
Published: August 8, 2010, 12:00am
4 Photos
Battle Ground Police Officer Brian Archer and his tracking dog, Halo, exit a Clark County Sheriff's boat during a recent training session at Marine Park.
Battle Ground Police Officer Brian Archer and his tracking dog, Halo, exit a Clark County Sheriff's boat during a recent training session at Marine Park. Police dogs undergo routine training, and taking a boat ride acquaints them with the water should they have to respond to an incident by boat. Photo Gallery

The police radio crackles often. Most of the time, it’s matter-of-fact information being relayed from a dispatcher to an officer.

“We have a wanted subject: 5 feet, 7 inches, 170 pounds, wearing blue jeans and a white jacket.”

But every so often you hear something that sounds almost lyrical —as long as you’re not on the receiving end.

“You have five seconds to make your presence known, or a police dog will be sent in to find you,” the officer shouts. “When he finds you, he’ll bite you.”

Bite warnings are standard among other law enforcement agencies in Washington and Oregon. But announcing the warnings over the police radio is not.

John Munson, president of the Washington State Canine Police Association, said most agencies throughout the state give the warning, though he couldn't say whether they announce it over the police radio. In Pierce County, where he works as a sheriff's deputy, officers don't.

Neither do officers in Oregon, said Beaverton police officer Mark Hevland, a member of the Oregon Police Canine Association.

"A warning shall be given, if feasible, that a suspect needs to stop or come out, or a police dog will be used and they may get bit," he said by e-mail. "We don't do it over the radio, but we do use our car PA system at times."

However, in Los Angeles, for instance, police give the warning in English and Spanish as well as from a helicopter loudspeaker.

-- Laura McVicker

Where did that come from?

Well, according to officials, the warning protects law enforcement agencies from civil liability as much as it shields fleeing suspects from bites. Officers use the warnings as they pursue a person fleeing from a burglary, robbery or a domestic violence dispute. The perp may be hiding in a bush or behind a parked car, and the warning is a potent tool to force them out.

“Anytime you use force, you have to give a warning. We have to give them a chance to peacefully surrender,” said Clark County Sheriff’s Deputy Brian Ellithorpe. “It’s whether or not they choose to give up” that determines whether they get bitten.

Most of the time — 95 percent of the time, one deputy says — a suspect complies. Sometimes, though, someone doesn’t heed the warning and has to answer to an exuberant dog with a firm bite.

“They usually just get punctures or scrapes,” sheriff’s Deputy Rick Osborne said. “But if they fight with the dog, it’s more.”

And those are the cases that wind up in court. But thanks to public broadcast of the warning, civil action rarely goes anywhere, police and the county’s risk manager say.

How it started

While the warning hasn’t always been broadcast over police radios, it’s been around for three decades, or since police dogs have been in Clark County, said Ellithorpe, the county’s master canine trainer. They’ve always known they must give the suspect the chance of a peaceful ending.

All of the 10 police dogs here, including four at the sheriff’s office, four at the Vancouver Police Department and two at the Battle Ground Police Department, assist officers in patrol searches. They’re also cross-trained to detect narcotics.

While the four-legged partners boost arrest rates, officers still have certain ground rules for when they bring the dogs in.

First, if the offense is minor, such as a shoplifting or vandalism, police won’t use a tracking dog because they must abide by a three-prong approach in using force that includes the rule that the crime must be a felony. The other prongs relate to whether to person is actively fleeing and poses a risk to an officer.

On the other hand, if the suspect is involved in a violent crime and is armed, officers will use the dog but not call out the warning.

That’s because the risk of violence is imminent, Ellithorpe explained. “If a guy is pointing a gun at you, you’re not going to warn him before you pull out your gun,” he said. It’s the same with police dogs.

Bite warnings are standard among other law enforcement agencies in Washington and Oregon. But announcing the warnings over the police radio is not.

John Munson, president of the Washington State Canine Police Association, said most agencies throughout the state give the warning, though he couldn’t say whether they announce it over the police radio. In Pierce County, where he works as a sheriff’s deputy, officers don’t.

Neither do officers in Oregon, said Beaverton police officer Mark Hevland, a member of the Oregon Police Canine Association.

“A warning shall be given, if feasible, that a suspect needs to stop or come out, or a police dog will be used and they may get bit,” he said by e-mail. “We don’t do it over the radio, but we do use our car PA system at times.”

However, in Los Angeles, for instance, police give the warning in English and Spanish as well as from a helicopter loudspeaker.

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— Laura McVicker

This happened in 2004, when deputies responded to a report of a man, Gregory Scott Grant, who rammed a police car and was spotted exiting his car. He had his hands in his pockets.

He had a history of stealing cars and leaving police suicide notes, so authorities knew he could be violent. So, without a warning, they unleashed a German shepherd, Eiko, who bit the man’s arm, holding on to him. Once he was handcuffed, deputies found a gun in the man’s waistband.

In May, officers pursued a man, Adam West, suspected of robbing a Vancouver Arby’s fast-food restaurant at gunpoint. Because West was believed to be armed, a Battle Ground police dog, Haulf, chased him down without any warning. Haulf sniffed him out in a wooded area near the Heathman Lodge and officers quickly apprehended him.

How about the times when there is a warning and suspects still don’t cooperate?

“Most people (who don’t surrender do it) because they’re scared. They’re not thinking rationally,” Osborne said. “That’s rare.”

The suspects are full of excuses, he said. “They either say I didn’t hear the warning, or I didn’t really think you’d use the dog.”

The weirdest excuse?

“I was just sleeping,” Osborne recalled.

One notable bite case and suspect’s excuse happened in 2008, when police responded to a report of a stolen car. As they responded to an impound lot, they saw a suspect climbing out of the car and running from the parking lot. After taking a shot from a Taser, he continued to flee. They warned him about the police dog, but he continued to run. He was chased down and bitten by a police dog and eventually apprehended. Afterward, he told officers he never heard the warning, Ellithorpe said.

Civil suits

The “I-never-heard-the-warning” defense is among the reasons police started broadcasting it over the airwaves.

They started the public practice a decade ago after hearing about lawsuits in other parts of the country involving suspects saying they were never warned, Ellithorpe said. They wanted to make sure they’d have an airtight case should a person sue.

Ellithorpe said the practice gathered steam quickly. “Once we started, we just never stopped,” he said.

It paid off in 2003, when Clark County was hit with a $2.2 million lawsuit by a Vancouver man claiming that he was never told he would get bitten by a sheriff’s deputy’s dog. James Tracey Miller also alleged officers used excessive force because the dog held on to his arm for up to a minute.

Miller had been driving a Pontiac Fiero suspected of being stolen when deputies responded, signaling for him to pull over in rural Clark County. After ditching the car in front of a home, Miller ran into a wooded area. Deputy Ed Bylsma’s dog, Kimon, ran in to find him, biting him in the upper arm. He suffered serious wounds, with skin, tissue and muscle being shredded all the way to the bone, according to Dogbitelaw.com.

During a trial before a federal judge, Clark County prosecutors were able to play a 911 tape, showing how deputies did, in fact, give Miller a warning. As a result, Clark County won the case, and it was later upheld by the 9th Circuit Court of Appeals.

“They were able to use that and show that we weren’t out of line,” Ellithorpe said. “A judge said, ‘No, he did have ample opportunity to give up.’”

Mark Wilsdon, the county’s risk manager, says the Miller case is rare. While he estimates the county receives one police dog bite claim a year, the claims usually never relate to a person saying he didn’t hear the warning, he said. Rather, they deal with suspects who surrender after it’s too late or say the bite was excessive.

“Sometimes it’s a guy saying he threw his arms up at the last minute and still got bit,” Wilsdon said.

These claims rarely rise to lawsuits and are usually struck down, Wilsdon said, because of the clear evidence of the warnings on 911 tapes.

The claims simply serve as a reminder that “if he finds you, he really will bite you.”

Laura McVicker: 360-735-4516 or laura.mcvicker@columbian.com.

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