Lopez v. Hammack
| Decision Date | 06 May 2020 |
| Docket Number | Case No. 1:19-cv-00126-RAH-JTA |
| Parties | TONY LOPEZ, Plaintiff, v. CHAD HAMMACK, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
Honored with the sobriquet of "man's [and woman's] best friend" since the days of Frederick the Great, a dog can be docile or aggressive, affectionate or distant, a dangerous tool or a jolly companion, prone to the same diversity of personalities as their human compatriots. A homophone of the word "canine," itself a shortened version of this domesticate species' Latin classification, the terms "K-9" and "K9" technically comprehend any kind of dog but are more commonly used to refer to those canines trained and utilized by many of this world's police forces. Over the centuries, law enforcement has shown a distinct preference for German Shepherds, Retrievers, Belgian Malinois and bloodhounds.
This "unfortunate case," (Doc. 35 at 1), arose when one such canine, its breed, size, and even name still unknown, latched onto the arm of an innocent bystander who, in the midst of an active police search along Dothan's Hedstrom Drive, decided to approach, stop and stand within a few dozen of feet of the prostrate form of a previously fleeing criminal suspect. The frenzied peregrinations of at least two suspects preceded this unlucky paroxysm, as did the equally frantic hunt by deputies from the Houston County Sheriff's Department. On the basis of this event, Tony Lopez (Lopez or Plaintiff), the bitten "innocent bystander," (Doc. 30 ¶ 30), launched the instant suit with a Complaint filed on February 15, 2019 (Original Complaint), (Doc. 1), subsequently superseded by the First Amended Complaint (Amended Complaint), filed on January 6, 2020, (Doc. 30). Having culled his defendant list with his Amended Complaint, Lopez now solely names as a defendant, Chad Hammack (Hammack or Defendant), the deputy in charge of the dog who bit him. Hammock has targeted the Amended Complaint with his Motion for Partial Dismissal of Plaintiff's First Amended Complaint (Motion), (Doc. 34), pursuant to Rule 12 of the Federal Rules of Civil Procedure.1
Bound to employ the plausibility standard of review established by Rule 12, for the reasons more fully explained below, this Court grants Hammack's Motion. Thus, Count I is dismissed in full and Count II is dismissed, in part, to the extent it is based on Hammack's original decision to release his canine companion. Whether Hammack's later actions ran afoul of the Fourth and Fourteenth Amendments will remain the sole issue for further adjudication.
Based on the record, Hammack and Lopez had never met before March 2, 2018, dawned. A resident of Houston County, Alabama, Hammack was then employed by the Houston County Sheriff's Department as "a law enforcement officer and as a canine handler." (Doc. 30 ¶ 3; see also Doc. 1 ¶¶ 3-5, 13; Doc. 18 ¶ 3.) He was thus responsible for a dog whose every detail remains obscure more than one year after Lopez filed the Original Complaint. (See Doc. 30 ¶ 25 (); see also id. ¶¶ 27-29.) Approximately fifty-years old, Lopez resided on Hedstrom Drive, Dothan, Alabama, and managed several Newk's restaurants. (Id. ¶¶ 37-38.)
On March 2, 2018, sirens' unnatural screech pierced the air in Dothan, Alabama, as deputies and officers from two or more law enforcement agencies initiated a high-speed chase of one or more apparent criminal suspects' fleeing car.3 (Doc. 30 ¶¶ 7-8; see also Doc. 1 ¶¶ 9-11; Doc. 18 ¶ 1.) This coterie of pursuing officers included Hammack, a police-canine handler, joined by his usual four-legged companion. (Doc. 30 ¶ 10; see also Doc. 18 ¶ 3.) While the pursuit began outside of Dothan's city limits, it quickly wound its way within its border. (Doc. 30 ¶ 8; see also Doc. 1 ¶¶ 9-11; Doc. 18 ¶ 1.) This race of hurtling metal only ended when the suspects' vehicle collided with an unsuspecting driver's own somewhere along Hedstrom Drive. (Doc. 30 ¶ 8; see also Doc. 1 ¶¶ 9-11; Doc. 18 ¶ 1.) Somehow, one or more suspects jumped from the wreckage and bolted by foot into the darkness. (Doc. 30 ¶ 8; see also Doc. 1 ¶ 12; Doc. 18 ¶ 2.)
What happened after Hammack parked his vehicle at the scene of the collision prompted this lawsuit. (Doc. 30 ¶ 8; see also Doc. 1 ¶ 12; Doc. 18 ¶ 4.) Upon exiting his vehicle, Hammack apparently "permitted" his dog "to roam free around the residential area without restraint." (Doc. 18 ¶ 5; see also Doc. 30 ¶¶ 12-13.) As Lopez contends, "[t]he dog was out of sight of the handler." (Doc. 30 ¶ 13; see also Doc. 1 ¶¶ 15-16.) By implication, then, "[t]he K-9 was intentionally released to attack and seize" even though "[t]he dog could not identify the correct suspect." (Doc. 30 ¶ 13; see also Doc. 1 ¶¶ 15-16.)
For Lopez, all K-9 dogs pose a latent menace. As the Amended Complaint waxes, especially in such situations, "K-9 law enforcement dogs pose a real danger to innocent bystanders and others when ordered to apprehend a suspect" due to their "inherently dangerous nature" and lack of "the necessary mental and cognitive abilities" to distinguish "a suspect from an innocent bystander." (Doc. 30 ¶ 24.) After all, such dogs, "[t]he vast majority of . . . [whom] are German Shepherds and Belgian Malinoises," are "derived from lineages bred for protection and heightened aggressive reactivity." (Id. ¶ 25.)
On March 2, 2018, Hammack thus did the opposite of what good sense compelled: "The dog should have never been off his leash . . . and the leash should have been held by the handler and the dog should have only been used when a positive identity had been made on the suspects and without excessive force." (Id. ¶ 24.) For all this disquisition, however, Lopez does not ever allege that the specific dog that actually bit him, the precise canine for which Hammack was responsible, fit his criteria for, in his dark account, a typical and thus inherently dangerous K-9 dog: "German Shepherd" or "Belgian Malinoises," "bred for protection and heightened aggressive reactivity," purposely selected for his or her "faulty temperament[] and unsuitable for use in law enforcement," trained in accordance with the "Schutzhund" method, and cursed with a "high bite rate[]" and "an eagerness to attack anyone it can find (such as an innocent bystander) as a result of the dog having a short latency to attack and a low threshold for biting." (Id. ¶¶ 25, 27-29.) He speaks only in generalities, i.e., "Dogs like this pose an extreme danger to public safety." (Id. ¶ 28.)
Unaware of the dog's release, at least one person—Lopez himself—focused his eyes upon the melee engulfing Hedstrom Drive. In his words, privy to the resultant "loud commotion" from his driveway, (Doc. 1 ¶ 17; see also Doc. 18 ¶ 6; Doc. 30 ¶ 14), Lopez nonetheless "decided to see what was going on," (Doc. 30 ¶ 15; see also Doc. 1 ¶ 18; Doc. 18 ¶ 6). As he did so, Lopez directly witnessed the crash and noticed the resulting police pursuit. (Doc. 30 ¶ 15; see also Doc. 18 ¶ 7.) He soon thereafter observed "an individual lying on the ground in front of one of his neighbors' homes." (Doc. 30 ¶ 16; see also Doc. 1 ¶¶ 19-20; Doc. 18 ¶ 8.) As he approached so as "to render any necessary medical assistance or otherwise help the individual," Lopez "heard an officer speak in his general direction." (Doc. 30 ¶¶ 17-18; see also Doc. 1 ¶¶ 19-21; Doc. 18 ¶¶ 8-9.) At that point, approximately forty to sixty feet away from the prone body, Lopez "realized that the individual on the ground must be a criminal suspect." (Doc. 30 ¶ 18; see also Doc. 1 ¶ 21; Doc. 18 ¶ 9.) At that very moment, Lopez "stopped immediately" and "raised his hands." (Doc. 30 ¶ 18; see also Doc. 1 ¶ 21; Doc. 18 ¶ 9.)
It was then that dog and man met. Suddenly, though Lopez had not fled, the roaming canine "charged from the rear of one of the homes and latched onto Lopez's arm." (Doc. 30 ¶¶ 19-20; see also Doc. 1 ¶¶ 22-23; Doc. 18 ¶¶ 10-11.) For at least some indeterminate amount of time, Lopez claims, Hammack "did not promptly recall the dog and stop the attack." (Doc. 30 ¶ 21.) As such, the canine continued to "maul" Lopez "for several minutes." (Id.) According to Lopez, Hammack "thought . . . Lopez was the suspect," as indicated by the fact that "he had to be told by the other officers that he was not the suspect." (Id. ¶ 23.) Even when he realized "that it was a case of mistaken identity," however, Hammack "did not stop the attack"; "other officers had to step in and stop it." (Id. ¶¶ 22-23.) Tellingly, at least according to the original Complaint, however, Hammack did command his canine to release Lopez, but to no avail. (Doc. 1 ¶ 24; Doc. 18 ¶ 12.) For some reason, Lopez's story changed with the filing of his Amended Complaint.4
Though the canine eventually let go, Lopez apparently has suffered a slew of injuries due to this "horrible attack." (Doc. 30 ¶¶ 47-48.) He claims two surgeries and over sixty stitches, endures nightmares on a regular basis, and a nerve that will not heal. (Id.) He "now wears a compression glove to help the pain when the two (2) medications that he has to take three (3) times a day wears off." (Id.) Without any greater specificity, he maintains that his "life and ability to function at his job and home have been severely affected." (Id. ¶ 48.)
Lopez first filed suit against Hammack and the Houston County Sheriff's Department. (Doc. 1.) Those named defendants responded with a motion to dismiss and a supporting memorandum. (Docs. 17-18.) After much back-and-forth, this Court permitted Lopez to swap his defective first pleading with the Amended Complaint. (Docs. 22-23, 26-27, 29.) Hammack retorted with an answer, (Doc. 33), and the Motion to Dismiss, both filed on January 21, 2020, (Docs....
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