ATLANTA—Dog bites man. Man sues dog. Dog wins.
The
dog was Draco, a prized member of the Gwinnett County Police Department’s K-9
unit. But on July 6, 2013, Draco bit the arm of burglary suspect Randall Kevin
Jones, who later claimed the dog clamped down for what “seemed like a
lifetime.”
Jones
was taken to a nearby suburban Atlanta hospital and given stitches for the dog
bite before being jailed and charged with burglary and obstruction. Two years
later, he filed a highly unusual lawsuit, in that he not only sued the officers
involved but also “Officer K-9 Draco of the Gwinnett County Police Department
in his individual capacity.”
The
lawsuit, alleging excessive use of force, said Draco “viciously mauled” Jones,
“tearing his flesh and permanently injuring and disfiguring him, while ...
officers stood by and failed to intervene.”
When
a federal judge rejected Gwinnett’s initial attempt to dismiss the lawsuit, the
county appealed. On Friday, the 11th U.S. Circuit Court of Appeals in Atlanta
threw out the case against Draco.
“We
hold that a dog may not be sued individually for negligence since a dog is not
a ‘person,’ ” Judge Robin Rosenbaum wrote for a unanimous three-judge panel.
Georgia law, she noted, does not allow such claims to be litigated against
dogs.
The
mere notion of allowing a lawsuit against a dog raises abundant practical
issues, Rosenbaum added. How would you formally serve the lawsuit on a dog?
What about the dog’s retention of legal representation? How can a dog be
expected to pay damages?
Draco,
a Belgian Malinois, retired from the K-9 unit in mid-2014 after seven years on
the force, helping officers track down suspects and find stashes of illegal
drugs.
In her opinion, Rosenbaum wrote that the dog’s name
has long been associated with notorious characters. This includes Draco, the
legislator of ancient Greece whose harsh legal code inspired the word
“draconian.” Then there’s Draco Malfoy, Harry Potter’s malevolent rival in the
popular literary series, the judge noted. Because of what happened to Jones
during his arrest, Rosenbaum wrote, “And to the list of infamous Dracos, add
defendant-appellant Draco.”
He’s not so infamous, say Draco’s fellow officers.
“He’s an amazing animal,” Gwinnett police
spokesperson Michelle Pihera said. “His K-9 handler thought the world of him.”
The 11th Circuit decision also dismissed Jones’
claims against three police officers at the scene. The court did not address
one remaining claim—that the county failed to properly train its police force,
which played a role in Jones’ injuries.
Gwinnett’s police department does not comment on
ongoing litigation, Pihera said.
Jones, 43, of Flowery Branch, Georgia, was charged
with breaking into his ex-girlfriend’s apartment in Buford and taking her TV,
Playstation 3, camera and iPod Touch. The woman said she called police after arriving
home and seeing Jones walk off with her TV near the apartments’ pool. An
officer who arrived at the scene said he saw Jones jump a fence and head down a
ravine near a retention pond, a police report said.
When he didn’t surrender, Jones was warned that
Draco would be released, the report said. When Draco eventually found Jones, he
bit him on the upper left arm. Police found an iPod Touch, a Wi-Fi adapter and
a TV remote in Jones’s pockets and soon located the other missing items, the
report said.
In August 2014, Jones pleaded guilty to burglary and
obstruction and was sentenced to 10 years on probation and one year in
confinement, according to court records.
Attorney Debra Kay Jefferson, who represented Jones
when he filed suit, acknowledged she was trying to be creative when she named
Draco as a defendant.
“We tried to fashion an opportunity where we could
stretch the interpretation of the law and represent our client as zealously as
possible,” said Jefferson, who has since withdrawn from the case. “He was
seriously injured.”
Gwinnett County’s attorneys called the claims
against Draco frivolous and noted that “Georgia law routinely treats a dog as
the personal property of its owner.”
The 11th Circuit’s ruling dismissed Jones’s
excessive-use-of-force claims against three officers at the scene, including
Draco’s longtime handler, Scott Fransen. The officers are immune from liability
on a number of grounds, one being that Jones failed to allege facts that showed
the officers acted with malice toward him, wrote Rosenbaum, an appointee of
president Barack Obama. Source: thestar.com
