Am. K-9 Detection Servs., LLC v. Freeman, 15–0932

• Citation: 556 S.W.3d 246
• Decision Date: 29 June 2018
• Docket Number: No. 15–0932,15–0932
• Parties: AMERICAN K–9 DETECTION SERVICES, LLC and Hill Country Dog Center, LLC, Petitioners, v. LaTasha FREEMAN, Respondent
• Court: Texas Supreme Court

556 S.W.3d 246

AMERICAN K–9 DETECTION SERVICES, LLC and Hill Country Dog Center, LLC, Petitioners,

v.LaTasha FREEMAN, Respondent

No. 15–0932

Supreme Court of Texas.

Argued December 7, 2017

Opinion delivered: June 29, 2018

Rehearing Denied October 19, 2018

Javier Herrera, Beth E. Watkins, Bryan D. Pope, Shannon K. Dunn, Amos Louis Barton, Mary Alice McLarty, Charles ‘Chad’ R. Flores, David M. Gunn, Frank Herrera Jr., for LaTasha Freeman.

Amy Warr, Wallace B. Jefferson, Rachel A. Ekery, James M. Parker Jr., for American K–9 Detection Services, L.L.C.

Albert D. Pattillo, Deborah Smith McClure, Wayne Calloway Huffaker Jr., for Hill Country Dog Center, L.L.C.

Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Johnson, Justice Lehrmann, Justice Boyd, Justice Brown, and Justice Blacklock joined.

To protect the separation of powers essential to the structure and function of American governments, the political question doctrine teaches that the Judicial Branch will abstain from matters committed by constitution and law to the Executive and Legislative Branches.¹ "The complex[,] subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches."² Among United States military troops stationed in war zones are dogs who protect soldiers and others by sniffing out enemy improvised explosive devices ("IEDs"). The claim in this case is that because of negligent training and handling by private military contractors, one such dog bit the plaintiff on a U.S. Army base in Afghanistan. The defense is that the incident was caused by the Army's use and prescribed manner of quartering the dog. We conclude that the dispute cannot be resolved without inquiry into military judgments that the political question doctrine precludes. We hold that the claim is nonjusticiable and, therefore, the district court correctly dismissed it. We reverse the judgment of the court of appeals³ and render judgment accordingly.

I

In 2011, respondent LaTasha Freeman, a civilian employed as an administrative clerk by a private military contractor, was stationed at Camp Mike Spann, a U.S. Army base near Mazar-i-Sharif in northern Afghanistan. The base was a secured military position supporting tactical combat operations in the heart of the war zone. Named for the first American combat casualty in Afghanistan after the fall of the Taliban in 2001, the base opened in 2006 and once held some 2,000 coalition troops. The United States turned it over to the Afghans in April 2014.

Stationed among the troops at Camp Mike Spann were explosive-detection dogs provided to the Army to sniff for IEDs. IEDs have been called "the No. 1 killer of civilians and troops in Afghanistan."⁴ The Pentagon has reportedly concluded that "the best weapon against IEDs [is] still a handler and his dog."⁵ Another report states that "[o]n average, these four-footed soldiers are 98 percent accurate in their detection abilities ... and depending on the task and climate, can work up to 12 hours a day."⁶

One such dog, Kallie, was owned by petitioner American K-9 Detection Services, LLC ("AMK9"), a Florida company, which contracts with the Department of Defense to provide teams of "contract working dog[s]" and handlers to the Armed Services. The dog–handler teams are trained in the United States, then deployed to Afghanistan. As Freeman concedes, "AMK9 provides these services which protect our national security.... The job that they do as far as training and having their dogs go out and sniff for bombs to protect our soldiers out in the field is absolutely critical to protecting our soldiers, protecting our civilians". Kallie was trained by AMK9 and a Texas company, petitioner Hill Country Dog Center, LLC.

One morning, Freeman had walked with a coworker to a security checkpoint to escort arriving vehicles to their parking places. She was standing a few yards from the animal shelter in which Kallie was housed. The AMK9 incident report states that Kallie's handler was nearby, as well as another dog handler who was searching a vehicle, but Freeman says she did not see them. According to Freeman, Kallie ran through the shelter's open door towards her and jumped at the back of her left shoulder. Kallie bit Freeman's shoulder and "shook [Freeman's] left arm violently back and forth." Kallie then bit Freeman's right buttock and pulled down on her pants pocket. The incident report states that Kallie's handler quickly regained control of her. Freeman says a bystander pulled Kallie off her. Kallie's bites did not break Freeman's skin. The incident report states: "Injured Person(s) ... NONE", "Nature of injury ... NONE", "Details of First Aid/Medical Attention/Hospitalization/Evacuation/Leave ... NONE", and "Nature of Damage/Loss ... Small puncture mark on left sleeve of jacket."

Kallie's kennel in the shelter had 2 adjacent holding pens separated by a vertical divider and open at the top. The door to Kallie's side of the kennel was shut, but the door to the adjoining pen was not. According to the incident report, Kallie managed to jump over the divider between the 2 pens and escape out that pen's and the shelter's open doors. She was running over to her handler when she saw Freeman. "In her playful yet rough manner", the report continues, Kallie "jumped up against" Freeman "to play and seek attention, but in doing so snapped her jaw and punctured the left front sleeve of [Freeman's] jacket."

A week later, AMK9's project manager emailed Freeman to apologize for the incident. "The Army guys", he said, "had built new kennels" without tops on them, and Kallie had jumped over a divider between pens in the kennel and run out the open door of the other pen. Following the incident, the manager said, "[t]ops [were] put on the kennels and the handler was reprimanded." He explained that Kallie was "a very playful dog", that "the soldiers play tug a war and the dogs will mouth them as well as jump[ ] around," and that Kallie "was just trying to play with" Freeman. Freeman had not been "attacked", he said; "when these dogs are given the command attack, there are serious injuries to follow". "These Dogs are here to help keep you, me, soldiers and everyone else at these [forward operating bases] as safe as possible," he said. "[T]he last thing we want is one of our own being injured by the dogs[;] we are all on the same team over here." The manager offered to replace Freeman's jacket.

In 2013, Freeman filed a claim against her employer and its carrier under the Defense Base Act,⁷ an extension of the Longshore and Harbor Workers' Compensation Act,⁸ which she later settled for $250,000. She also sued AMK9 and Hill Country, alleging that they were negligent in training Kallie and her handler and in failing to restrain her. She now claims to suffer from complex regional pain syndrome

and to be completely disabled. She seeks $1 million in damages.

According to AMK9, the Army designed and built Kallie's kennel with no top and required AMK9 to use it. Because the kennel design allowed Kallie to escape, AMK9 asserts that Freeman's injuries were caused by the Army. AMK9 filed a plea to the jurisdiction asserting that Freeman's claims are nonjusticiable under the political question doctrine because they require an assessment of the Army's involvement in causing her alleged injuries.⁹ AMK9 also moved to have the Army and the Department of Defense named responsible third parties under Chapter 33 of the Texas Practice and Remedies Code.¹⁰ The trial court granted that motion, granted AMK9's plea, and dismissed the case.

The court of appeals reversed and remanded the case for further proceedings.¹¹ The court acknowledged AMK9's assertion that the Army's actions were the proximate cause of the incident but rejected the application of the political question doctrine, concluding that AMK9 had "produced [no] evidence that the Army, in failing to design and build the kennel such that the pen dividers extended to the ceiling, could have reasonably foreseen that such failure would result in injuries to a person outside the kennel."¹² The court also faulted AMK9 for not having "presented any evidence establishing that the Army was actually negligent in designing the kennel."¹³

We granted AMK9's and Hill Country's petitions for review.¹⁴

II

A

In Marbury v. Madison , Chief Justice Marshall declared that "[i]t is emphatically the province and duty of the judicial department to say what the law is."¹⁵ To the courts alone belongs the power to authoritatively interpret the constitution.¹⁶ But the limits on judicial power are as important as its reach. "The province of the court", Chief Justice Marshall wrote,

is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.¹⁷

The Supreme Court expanded on this political question doctrine in Baker v. Carr , setting out 6 tests for identifying issues beyond the courts' power to decide.¹⁸ Important here are the first 2: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it".¹⁹ The 2 tests, the Supreme Court has explained, are related: "the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch."²⁰

Baker was careful to note that the doctrine "is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority."²¹ The issue in Ba...