No Remedy for Man Attacked by Police K-9

 The Colorado Supreme Court has ruled that a man detained in a vehicle during a traffic stop had no remedy for personal injuries he sustained when he was attacked by a police dog. Plaintiff was a passenger in the back seat of the vehicle and complied with police orders to place his hands in the air. However, two children fled from the vehicle which prompted the deputy to order the police K-9 to chase the two boys. When the boys escaped over a fence, the K-9 stopped chasing them, returned to the vehicle, and attacked plaintiff.

Plaintiff filed suit against the county, the sheriff’s office, and the deputy to recover for his personal injuries. However, his state law claims of negligence and outrageous conduct were barred by the Colorado Governmental Immunity Act,  Colo. Rev. Stat. §§ 24-10-101 to -120  (2015).

Plaintiff also brought an action under 42 U.S.C.S. § 1983, alleging that his Fourth Amendment rights were violated. The trial court entered a default judgment when he failed to respond to defendants’ motion to dismiss. The Colorado Court of Appeals upheld the decision, reasoning that plaintiff failed to state a claim because he was not within the "space" of the dog's release.

The Colorado Supreme Court held that plaintiff was not entitled to relief from the default judgment under Colo. R. Civ. P. 60(b)(1), because he did not allege a meritorious claim. The court rejected the “space” analysis and held that plaintiff did not develop facts showing an intentional seizure for purposes of the Fourth Amendment. Specifically, there were no facts showing the deputy’s intentions,  the K-9's training, or the behavior of K-9s in general.

Lexis subscribers can access the opinion at:  Sebastian v. Douglas Cnty., 2016 CO 13 (Colo. 2016)
Lexis Advance subscribers can find the opinion at: Sebastian v. Douglas Cnty., 2016 CO 13, 2016 Colo. LEXIS 192, 366 P.3d 601 (Colo. 2016)

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