Miller v. Clark County

Incident Summary & Facts

On the night of January 21, 2001, a Clark County deputy tried to stop a Pontiac Fiero bearing a license plate registered to a different vehicle. The driver, James Tracey Miller, refused to stop. A passenger got out at the entrance to a long driveway, and Miller drove up the driveway. Deputy Edward Bylsma arrived with his police dog, Kimon, and found the Fiero empty in front of a house. He learned that Miller lived there, that Miller was wanted for felony eluding (fleeing police with “a wanton or willful disregard for the lives … of others”), that the residents were not “law enforcement friendly,” that a mentally ill person lived there, and that Miller had been seen running from the house minutes earlier. Bylsma saw a seven- or eight-inch knife on the Fiero’s seat.

Bylsma, another deputy, and the dog tracked Miller through underbrush, over electric fences, and across a field to dense, dark woods. Bylsma shouted that Miller had five seconds to make himself known or a police dog would be sent. There was no response. Bylsma released the dog with a command to find Miller and “bite and hold.” About one minute later Miller screamed. Because of the darkness and unfamiliar terrain, it took Bylsma 45 to 60 seconds to reach a spot where he could see Miller. He saw that Miller was unarmed and ordered the dog off, and the dog complied. The dog normally bites for about four seconds. Miller’s arm was torn to the bone, and he needed surgery.

The district court granted partial summary judgment that the dog bite was not “deadly force.” After a bench trial, it found the force was not excessive. Miller appealed.

Core Legal Issue

Was ordering a trained police dog to bite and hold a hiding felony suspect for up to a minute “deadly force,” and was it an unreasonable seizure under the Fourth Amendment?

The Holding

The Ninth Circuit affirmed. The prolonged dog bite was not deadly force because it posed no more than a “remote possibility” of death. Under Graham, the use of the dog was reasonably necessary and did not violate the Fourth Amendment.

The Court’s Analysis:

• Deadly force defined. Deadly force is force “reasonably likely to kill.” Evidence that the dog could possibly bite a head or neck, or sever an artery, amounted to mere “possibilities” and “capabilities,” not a “reasonable probability” of death. Courts judge the force used, not the result in the particular case.
• Serious intrusion. The force was “considerable” and was “exacerbated by the duration of the bite,” so the intrusion was “a serious one.”
• All three Graham factors favored the government. On severity, Miller was a felony suspect. On threat, the most important factor, Miller had defied orders and was wanted for a crime showing willingness to endanger others. He had possessed a large knife, might be mentally ill, and could ambush deputies from dark, treacherous woods that he knew and they did not. On flight, he was still evading arrest even while hiding.
• Reasonable necessity and alternatives. Lights and siren, a vehicle pursuit, a foot pursuit, and a verbal warning had all failed. The alternatives Miller proposed were “utterly unsuited.” Entering the woods with the dog on a leash risked an ambush. Calling the dog off before officers arrived could let Miller hide, flee, “recover a weapon,” or prepare an ambush.
• Good police work noted. Bylsma arrived promptly and released the dog as soon as he determined Miller was unarmed. The court called this “good police work.”