The Racialized Violence of Police Canine Force

• Author: Madalyn K. Wasilczuk
• Position: Assistant Professor of Law, University of South Carolina School of Law
• Pages: 1125-1210

The Racialized Violence of Police Canine Force

MADALYN K. WASILCZUK*

* Assistant Professor of Law, University of South Carolina School of Law. https://orcid.org/0000-

0002-3445-0478. © 2023, Madalyn K. Wasilczuk. To the Black, teenage boys of Baton Rouge who have

been victims of police dogs and their families, especially L.A. and his mother, T.W., who fought to

make sure that other boys wouldn’t go through what he did. And to Jack Harrison and Lakita Leonard,

who stand up for kids in Baton Rouge every day, first drew my attention to this topic, and always inspire

me. Many thanks to the University of Baltimore Law Review Symposium for inviting me to present an

earlier iteration of this project and to the University of South Carolina School of Law Faculty Workshop,

especially Seth Stoughton, Wadie Said, Claire Raj, Laura Lane-Steele, Kevin Brown, and Josephine

Brown. To Brandon Garrett and Duke Law’s Wilson Center, the NYU Clinical Writer’s Workshop,

especially Vida B. Johnson, Norrinda Brown Hayat, Vincent Southerland, Michael Pinard, and Megan

Richardson; and to Cynthia Godsoe, Jonathan Witmer-Rich, Eric Miller, Dan McConkie, Gregory

Parks, Jenny Carroll, and Brandon Hasbrouck for your early encouragement. Thank you to Nikesh

Amin, Reilly Lerner, Lauren Hoyns, and Christel Lopez Purvis for your diligent research assistance, and

to Vanessa McQuinn for administrative and submission support that goes above and beyond. My

enduring gratitude and love to Tad, who believes in me every step of the way. Earlier iterations of this

Article are cited as The Racialized Violence of Police Canine Units.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126

I. THE RACIAL HISTORY OF POLICE CANINE FORCE . . . . . . . . . .. . . . . . . . . . 1132

A. SETTLEMENT AND SLAVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132

B. FROM SLAVE DOGS TO K-9S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138

C. DOGS OF WAR, AT HOME AND ABROAD . . . . . . . . . . . . . . . . . . . . . . . 1146

D. CANINE BIOPOWER AS RACIAL INFRASTRUCTURE . . . . . . . . . . . . . . . 1154

II. THE CONSTITUTIONAL LAW OF POLICE CANINE FORCE . . . . . . . . . . . . . . . 1161

A. FOURTH AMENDMENT SEIZURES BY POLICE CANINES . . . . . . . . . . . . 1164

B. FOURTEENTH AMENDMENT REGULATION OF CANINE VIOLENCE . . . . 1173

III. THE DEFICIENCIES OF POLICE CANINE FORCE LAW . . . . . . . . . . . . . . . . . . 1176

A. DOGS AS DEADLY FORCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1177

B. THE INADEQUATE JUSTIFICATION OF CANINE VIOLENCE . . . . . . . . . . 1185

C. UNINTENDED TARGETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190

IV. LEASHING THE DOGS OF FORCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194

A. APPREHENSION DOGS AS UNEQUAL PROTECTION . . . . . . . . . . . . . . . . 1195

1125

B. APPREHENSION DOGS AS BADGES AND INCIDENTS OF SLAVERY . . . . 1198

C. APPREHENSION DOG ABOLITION THROUGH MOVEMENT AND

POLITICS............................................... 1201

1. Police Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202

2. Reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210

INTRODUCTION

Two white men stand over a screaming Black teenager. A dog bites into the boy’s

arm, thrashing its head back and forth, as the men egg the dog on, “Get ‘im, boy. Get

‘im.” The teenager heaves deep sobs, begging them to release him from the dog’s

jaws. It is 2019, and I am sitting in my office watching discovery for a clinic case on

which I am the supervising attorney. In the body camera video, the men are arresting

a boy who had been the passenger in a car reported stolen. The boy had no weapons,

and the police had no concrete reason to suspect he did. Yet the police demanded that

he lie completely still with his hands behind his back before they would remove the

dog’s gnashing teeth from the boy’s body.

1

From 2017 to 2019, the Baton Rouge

police would use dogs to bite teenagers, on average, once every three weeks.

2

Bryn Stole & Grace Toohey, The City Where Police Unleash Dogs on Black Teens, MARSHALL

PROJECT (Feb. 12, 2021, 6:00 AM), https://www.themarshallproject.org/2021/02/12/the-city-where-

police-unleash-dogs-on-black-teens [https://perma.cc/JA6T-REY3].

Many

of those children became my clients in delinquency proceedings.

1. This story is based on my viewing of police body camera video from a police dog apprehension by the

Baton Rouge Police Department in Baton Rouge, Louisiana. I chose to share this scene because police reports

often mask the brutality of police dog “apprehensions.” In court documents, the child was described as having

“minor dog bites.” In addition, court opinions are complicit in their sanitized renderings of police dog attacks.

See, e.g., Jarvela v. Washtenaw County, 40 F.4th 761, 764 (6th Cir. 2022) (“Among the various forms of force

available to law enforcement, [canine force] is a comparatively measured application of force . . . .”); Miller v.

Clark County, 340 F.3d 959, 964 (9th Cir. 2003) (describing the dog as “trained to bite and hold a suspect’s

arm or leg, not to maul a suspect”); Lowry v. City of San Diego, 858 F.3d 1248, 1254, 1257 (9th Cir. 2017) (en

banc) (categorizing canine force as “moderate” and referring to dog biting through woman’s lip as “initial

contact”); Dastinot v. Watkins, No. 18-cv-00166, 2023 WL 121221, at *3 (D. Me. Jan. 6, 2023) (referring to

dog’s continued bite as “continu[ing] to hold Plaintiff by the knee”); Rainey v. Patton, 534 F. App’x 391, 394

n.2 (6th Cir. 2013) (“Officer Patton explained that his dog is not trained to ‘attack’ suspects, but was instead

trained to bite and hold a suspect when: (1) the dog is sent to track and apprehend the suspect or (2) the suspect

moves defensively.”). Some common terms, including the term “canine force” which appears in the title of this

Article, can work to sanitize “officers’ attempts to exercise control over community members through the

application, or threatened application, of physical power, pain, injury, or death.” Seth W. Stoughton,

Accountability and Enhancement: The Dual Objectives of Use-of-Force Review, in RETHINKING AND

REFORMING AMERICAN POLICING: LEADERSHIP CHALLENGES AND FUTURE OPPORTUNITIES 227, 230 (Joseph

A. Schafer & Richard W. Myers eds., 2022) (quoting Seth W. Stoughton, The Regulation of Police Violence,

in CRITICAL ISSUES IN POLICING: CONTEMPORARY READINGS 321, 322 (Roger G. Dunham et al. eds., 2021)).

For a complicating view on the line between witness and spectator and reasons not to repeat scenes of Black

suffering, see SAIDIYA V. HARTMAN, SCENES OF SUBJECTION: TERROR, SLAVERY, AND SELF-MAKING IN

NINETEENTH-CENTURY AMERICA 3–4 (1997).

2.

1126 THE GEORGETOWN LAW JOURNAL [Vol. 111:1125

Police commonly use dogs as enslavers did: to catch people running

away.

3

As of 2007, “[29%] of local police departments, employing 77% of

all officers, used dogs for law enforcement.”

4

BRIAN A. REAVES, BUREAU OF JUST. STAT., U.S. DOJ, NCJ 231174, LOCAL POLICE

DEPARTMENTS, 2007, at 20 (2011), https://bjs.ojp.gov/content/pub/pdf/lpd07.pdf [https://perma.

cc/UJ4Q-Z5ZF].

Thousands have been caught

on the sharp end of this form of police violence. A 2019 study culled 32,951

“legal intervention” dog bites documented by the National Electronic

Injury Surveillance System (NEISS) database from 2005 to 2013.

5

Despite

widespread use, police canine violence is absent from most conversations

about police reform.

6

See, e.g., id. at 9 (“There is a paucity of literature on K-9 dog bites.”); Christy E. Lopez, Opinion,

Don’t Overlook One of the Most Brutal and Unnecessary Parts of Policing: Police Dogs, WASH. POST

(July 6, 2020, 2:02 PM), https://www.washingtonpost.com/opinions/2020/07/06/police-dogs-are-

problem-that-needs-fixing/ (advocating for a conversation about abolishing police apprehension dogs).

Scholarly discussion of this use of force is also uncommon. Ian T. Adams, Scott M. Mourtgos, Kyle D.

McLean & Geoffrey P. Alpert, De-Fanged, J. EXPERIMENTAL CRIMINOLOGY, Jan. 2023 (“Despite

prolonged use, the scholarship on K9s is scant . . . .”).

Some police forces make frequent use of police dogs as weapons. For example,

the Sacramento Police Department (SPD) reported 228 incidents of canine force

from 2014 to 2019, second only to its use of Tasers.

7

Sacramento, CA 2021: Use of Force, CTR. POLICING EQUITY: JUST. NAVIGATOR, https://

justicenavigator.org/report/sacramento-city-ca-2021/uof [https://perma.cc/ERB5-FQCH] (last visited

March 31, 2023).

Though people rarely die

from police dog bites, police canines used to “apprehend” people are perhaps

the most dangerous use of force aside from guns.

8

In legal terms, police dog bites

and the unleashed dogs themselves should be understood as “deadly force,” meaning

3. See infra Sections I.A–I.B.

4.

5. See Randall T. Loder & Cory Meixner, The Demographics of Dog Bites Due to K-9 (Legal

Intervention) in the United States, 65 J. FORENSIC & LEGAL MED. 9, 9–14 (2019). There are some

limitations caused by the use of the NEISS database in this study, acknowledged by the authors. Id. at

10. For instance, the study only includes canine bites that resulted in emergency room treatment and not

those where treatment was refused or occurred outside of emergency rooms. Id. For example, according

to the authors, “[i]n Montgomery County, Maryland, only 57 of 166 (34.3%) K-9 bite victims received

treatment in an [emergency department].” Id. (footnote omitted). They note that if that statistic were

accurate for the locations of the hospitals covered by NEISS, the estimated total number of K-9 bites

during the time period of the study would be 93,443, or about 10,400 per year. Id.

6.

7.

8. See Peter C. Meade, Police and Domestic Dog Bite Injuries: What Are the Differences? What Are

the Implications About Police Dog Use?, 37 INJ. EXTRA 395, 400 (2006); Gilbert V. Pineda, H. Range

Hutson, Deirdre Anglin, Christopher J. Flynn & Marie A. Russell, Managing Law Enforcement (K-9)

Dog Bites in the Emergency Department, 3 ACAD. EMERGENCY MED. 352, 353 (1996); see also infra

Section III.A (discussing medical studies). Courts and police typically consider guns deadly force

regardless of the specific facts or outcomes of an incident. See, e.g., Seidner v. de Vries, 39 F.4th 591,

596 (9th Cir. 2022) (“Some uses of force can be quantified categorically. The best example is shooting a

firearm, which by definition is ‘deadly force’: force that ‘creates a substantial risk of causing death or

serious bodily injury.’” (quoting Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc)));

Rivero v. State, 871 So. 2d 953, 954 (Fla. Dist. Ct. App. 2004) (“[F]iring a firearm in the vicinity of

human beings constitutes the use of deadly force as a matter of law.”). The Model Penal Code explicitly

contemplates that guns are deadly force whenever they are fired in the direction of a person but excludes

them when wielded as a threat that will not be realized absent further escalation. MODEL PENAL CODE

§ 3.11(2) (AM. L. INST. 2021).

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