K9 Warnings May (or May Not) Be a Good Idea

Jarvela v. Houk, 2022 WL 2901128 (6th Cir. 2022)

Cory Jarvela drank a half-dozen mixed drinks at his home, then drove his truck to a gas station to buy cigarettes. The store clerk called the police to report “a drunk guy” had just left, driving a black Silverado pickup. A nearby officer saw Jarvela speeding and drifting across the lane divider line. The officer activated his emergency lights and pursued the truck. Jarvela led the officer on an extended pursuit.

The pavement gave way to gravel, and Jarvela crashed into a tree, then bailed out and fled on foot into a dark wooded area. Rather than follow Jarvela into the dark woods in chest-high grass and brush, the officer called for backup. A deputy and police service dog (Argo) arrived and began searching; the dog was on a 15-foot lead, drawn up to five to 10 feet. Within five minutes, Argo found clothing. Shortly thereafter Jarvela could be seen in the weeds, fighting Argo, who was biting Jarvela’s arm. Jarvela tried to roll his body onto Argo in an apparent effort to injure the dog. The deputy struck Jarvela’s back seven times, yelling “Let go of the f—ing dog.” The officer fired a TASER device at Jarvela, who then rolled onto his back.

Jarvela sued, alleging excessive force and claiming the deputy had a constitutional duty to shout a warning to Jarvela before searching for him with the dog. The trial court disagreed and granted the deputy summary judgment based on qualified immunity. Jarvela appealed.

The court noted the “vast difference” between providing a warning before releasing a dog to search off-lead and not giving a warning while searching with a leashed dog.

The appellate court analyzed the encounter with Jarvela in two phases: a tracking phase, which ended when Argo found Jarvela and first seized him with a bite; and a contact phase, which ended when Jarvela was handcuffed. The court began by characterizing the bite as non-deadly force: “Among the various forms of force available to law enforcement, that is a comparatively measured application of force, which ‘does not carry with it a substantial risk of causing death or serious bodily harm.’” The court then noted the significant threat faced by the officer and deputy in searching for Jarvela in the darkened woods and Jarvela’s unexplained flight from the officer. The court stated Jarvela’s pre-arrest behavior “provided cause for the officers to believe” he had potentially been involved in more serious criminal activity.

The court then considered the lack of a verbal warning before searching for Jarvela with a police service dog. Jarvela claimed the requirement of a warning was clearly established law. The court rejected his claim and stated that, to the contrary, its prior decisions “do not support the proposition that an officer must always shout a verbal warning before tracking a suspect with a dog that the officer keeps on a leash.” The court noted the “vast difference” between providing a warning before releasing a dog to search off-lead and not giving a warning while searching with a leashed dog: “Each has its pros and cons, depending on the circumstances…The warn-then-unleash approach can elevate risk for officer and suspect alike: for the officer, because the shouted warning reveals the officer’s location; and for the suspect, because the dog be beyond the officer’s control when the dog finds him. Both approaches, however, fall within accepted police practice ; and we would seriously overstep our judicial role if we were to hold that officers in every instance must adopt one approach or the other.”

The deputy was also entitled to qualified immunity for the tracking phase and use of his dog to locate Jarvela: “If Jarvela had wanted to surrender, he should not have fled on foot.”

The court held the deputy was also entitled to qualified immunity for his actions during the contact phase. The deputy ceased to use any force once Jarvela complied with his commands to roll onto his stomach.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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