A sergeant who used to work for me asked if I could come to the HCSO Academy and give a class on K-9 legal issues. I prepared for search and seizure issues but when I got out there, I saw the class was titled “K-9 Civil Liabilities.” I had recently defended a case where a K-9 handler was sued over an off-duty incident with their assigned dog so I was familiar with the issue.
Officer’s are worried about ending up as a defendant in civil court. I was sued a few times over the years and actually stood trial in Federal Court in 1995. (Take nothing for plaintiff in Judge Gilmore’s court). I explained to them what to expect if sued, how they are defended, and allayed many concerns by addressing a plaintiff’s election of remedies under the Civ. Prac. & Rem. Code:
Sec. 101.106. ELECTION OF REMEDIES.
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 11.05, eff. Sept. 1, 2003.
That would have been nice to have in effect when I was sued….
One of the problems officers have in interpreting case law is they are not familiar with the differences between mandatory and persuasive cases. They will tell you about “case law” and it turns out to be something from the 9th Circuit in California, or a District Court in Boston. One of things they found most helpful was when I explained what courts control in Harris and surrounding counties. The chart behind me is a rough graph that I put up to illustrate.
I downloaded about a dozen of the most recent Texas cases involving K9 and put them in a dropbox folder for them to request a link if they want to review. When discussing cases, the dog handlers did not like USSC opinion in FLORIDA v. JARDINES which prohibits taking a drug dog on a person’s property to develop probable cause for a warrant.