Police dog ordered to attack fleeing suspect, bit and apprehended wrong man
By Kris Olson
BridgeTower Media Newswires
BOSTON - When pipefitter Richard Dudley dropped off a co-worker at the West Bridgewater Park & Ride on May 6, 2011, little did he know that he would soon have the jaws of a State Police canine clamped down on his stomach - or that he would eventually be on the winning side of an Appeals Court case.
Those events were set in motion when William P. Monopoli crashed his truck while exiting the highway, prompting him to get out of the vehicle, hop a fence, and flee into the commuter lot.
State Trooper Edward T. Blackwell yelled for Monopoli to stop or face the wrath of the passenger in his cruiser, a trained 82-pound German shepherd named Jager. When the suspect continued running, Blackwell released Jager and commanded him to apprehend Monopoli.
Then, two things went awry, according to the complaint Dudley would eventually file in Bristol Superior Court: Not only would Jager lose sight of the suspect, but Blackwell would lose sight of Jager.
Dudley and his co-worker's efforts to alert Blackwell to the suspect's whereabouts caused them to come into Jager's crosshairs. First, Jager bit Dudley in the stomach. Then, as Dudley tried to obey Blackwell's instruction to hide inside his truck, Jager "clenched onto Dudley's leg and dragged him out of the vehicle," according to the Appeals Court opinion. Only then did Blackwell give the "release" command.
Dudley was taken to the hospital by ambulance, where he was treated and released the same day.
While Superior Court Judge William F. Sullivan decided Dudley's subsequent negligence claim was barred by the immunity provisions of the Massachusetts Tort Claims Act, G.L.c. 258, §§10(b) and (j), the Appeals Court disagreed.
The panel found that the State Police could survive the first step of the immunity test. Handlers do have discretion when dispatching their canines and are not merely following a prescribed course of action, Judge Diana Maldonado wrote on the panel's behalf.
However, rather than being the "planning or policy-making" type of discretionary activity that is immunized under §10(b), Blackwell was merely carrying out or implementing the State Police's general policy for canine use in the field, the panel concluded. Such actions "should be governed by the established standards of tort liability applicable to private individuals or entities," Maldonado wrote.
The panel distinguished the situation from the one in the 2005 case Audette v. Commonwealth, which involved an off-leash State Police canine searching for contraband when he attacked the victim. The key difference, according to the Appeals Court, was that the handler had not ordered an attack in Audette.
The panel also resisted giving the State Police the benefit of the so-called "one-bite rule." Such a rule made little sense, argued Dudley's attorney, Jason R. Markle of Keches Law Group in Taunton, because the canines are trained essentially to be just another weapon in the trooper's arsenal. The Appeals Court agreed.
"It is immaterial that Jager had never attacked anyone without a command from his handler because, here, Jager was commanded to attack," Maldonado wrote. "He was ordered to apprehend, and that order contemplated Jager's hunting down, biting, and holding an individual, which is precisely what Jager did to Dudley."
A contrary finding "never made sense," Markle says, as it would have treated the canine differently under the law than the trooper's use of his gun, a taser or physical force.
In his brief to the Appeals Court, Markle referenced the tragic incident involving Victoria Snelgrove, who died when she was struck by a pepper-spray pellet shot by a Boston police officer during the celebration of the Red Sox American League Championship Series win in 2004.
"The only material difference between this case and the Snelgrove case is the weapon used by police," he argued.
The other immunity provision, §10(j), does not preclude a suit if the government is an "original cause" of the harmful condition that caused the injury, the Appeals Court added.
"Trooper Blackwell, while trying to capture a fleeing suspect, ordered and released Jager, in a moderate to heavily occupied parking lot, to attack a suspect and, in doing so, the Trooper created the harmful condition that resulted in Dudley's injury," Maldonado wrote.
While Dudley's wounds, which "looked nasty at the time," have healed, he still bears mental scars, according to Markle, who reports that his client has been in counseling for years and is terrified of his neighbor's dog, a German shepherd.
Given what he has learned about the impressive training State Police dogs and their handlers undergo, Markle believes he has a strong case for a jury. He notes that while the canines look for drugs using their sense of smell, they apprehend by sight, making the fact that Blackwell lost track of Jager and then did not immediately call him back textbook negligence. Now, a jury may get to decide if that is the case.
At least as of now, the State Police are not ready to concede the issue of negligence and plan to present a "vigorous defense" in court, according to spokesman David Procopio.
"We're continuing to review and make determinations, but at this point, we make no admission of negligence," he says.
Published: Mon, Jun 19, 2017
