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KAISER v. UNITED STATES

March 27, 1991

REBECCA M. KAISER and PAUL A. KAISER, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: HARRIS

 This is an action brought by plaintiffs for damages against the United States of America, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.A. ยงยง 1346(b), 2671-2680. A bench trial was held on July 5 and 6, 1990. After careful consideration of the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, the Court makes the following findings.

 Findings of Fact

 On November 13, 1985, plaintiffs walked their dogs eight blocks from their home on Maryland Avenue, N.E., to the Upper Senate Park near Delaware Avenue, N.E., in Washington, D.C. Plaintiff Rebecca McClellan Kaiser's dog, Kalamazoo (Kal), was a mixed breed Great Dane and Labrador Retriever, weighing approximately 80 pounds. *fn1" Plaintiff Paul Kaiser had a Doberman Pinscher named Huckleberry Finn. When they reached the Park at approximately 9:10 p.m., plaintiffs took off the dogs' leashes, as they normally did, and encouraged them to run around a grassy area that is bounded by shrubbery on three sides and a sidewalk on the fourth (hereinafter "grassy patch"). As indicated in plaintiff's exhibit 2, there are streetlights positioned along the sidewalk and at the end of the shrubbery-bordered area that is nearest to a large fountain.

 On the same evening, Officer David Miller, United States Capitol Police, K-9 Division, was patrolling the grounds with his K-9 dog Vulcan, on a 2:00 to 10:00 p.m. shift. *fn2" Miller had had Vulcan, a German Shepard, since he was a puppy, and had donated him to the Capitol Police. Miller was a patrolman in the K-9 Division from the Fall of 1979 through March 1987, when he became a supervisor. Prior to his employment with the Capitol Police, Miller had had five years of experience with K-9 dogs. In addition, he had had training in the handling of firearms both before and after joining the Capitol Police and was tested yearly in the use of firearms. He and Vulcan, competing as a team, had received certificates of excellence for their performance as a team.

 The primary duty of Capitol Police K-9's is detecting explosives at the Capitol. However, they also are responsible for patrolling the entire Capitol grounds. On November 13, 1985, Miller and Vulcan were on patrol duty on the Senate side of the Capitol. Shortly after 9:00 p.m., they were approaching the Upper Senate Park when they heard a dog bark. Miller looked toward the grassy patch and saw two dogs running loose. He did not see the plaintiffs or any other persons in the vicinity. In order to avoid a confrontation with the dogs, he changed direction and walked through a dark area, past a line of trees, and into the open area beyond the trees. *fn3"

 Miller's efforts to avoid a confrontation were to no avail, as Vulcan began to bark and strain on his leash. When Miller turned, he saw Kal rushing toward him. At the same time, McClellan began calling out to Kal who then stopped, reversed direction, and proceeded again to rush toward Miller and Vulcan. McClellan could not see Miller and Vulcan at that time. Likewise, Miller still did not see McClellan or Kaiser. He also did not hear McClellan call out to Kal, although he did hear some shouts that he was unable to distinguish. In an attempt to control Vulcan, who was throwing Miller off balance, Miller pulled the dog's front legs off the ground by drawing back on the leash. Because Capitol Police K-9's are worth between $ 5,000.00 and $ 10,000.00 and are used for the purpose of detecting explosives rather than for protecting officers, Miller was attempting to avoid a physical confrontation between the two dogs. He did not yell at Kal or kick at him. He was not carrying a blackjack or a nightstick and did not throw anything at the dog. *fn4" Fearing imminent danger to his own safety, Miller reached for his revolver and, with his outstretched arm at a 45-degree angle from the horizontal, fired one round, striking Kal in the back. *fn5" He had not been bitten by Kal. *fn6"

 McClellan then approached Miller and asked him if he had shot her dog, and he responded that he had. McClellan went to her dog, and Miller called for assistance, keeping Kal within view. Within moments, several other Capitol Police officers arrived at the scene. Kal was bleeding profusely from the mouth, and one officer showed McClellan where the bullet had entered his body. Another officer approached McClellan and told her to move away from the dog. Highly agitated, she asked why, and was told to "shut up." When she resisted and went back to Kal, she was told that she would be locked up if she did not stand back away from the dog and shut up. Sergeant James Proctor swore at McClellan several times. *fn7"

 The situation became quite confused. In total, some 20-30 officers arrived and began trying to determine what had happened. *fn8" McClellan became nearly hysterical as she went from one officer to the next demanding that they do something to help her dog. At one point, she even knelt down and begged a senior officer for assistance for her dog. The officers attempted to contact the Humane Society, plaintiff's veterinarian, and a friend of plaintiffs in an effort to obtain transportation for the dog. Capitol Police regulations prohibit transporting an animal in an official vehicle, including the K-9 vehicle, to protect against possible infection to the K-9 dogs or the officers themselves. As the officers were discussing the possibility of using a paddy wagon to transport the dog, McClellan ran out into the street and flagged down a passing motorist, Richard Pasco, who, with his companion, Laura Dowling, agreed to assist in transporting Kal to a veterinarian. Pasco drove the car to where Kal was lying, and put him into the back of the car. As McClellan prepared to leave with the dog, Sergeant Proctor told her that she could not leave until she provided information about the dog's ownership, her address, and other similar information. She objected, and the situation became quite tense until Kaiser stepped in and offered to stay at the scene and provide all necessary information. Before McClellan left, Detective Joseph DePalma issued to plaintiffs a citation for an unleashed dog.

 Pasco drove McClellan and Kal to the Friendship Animal Hospital in Northwest Washington. They were followed by an officer in a police car with its headlights turned off. When they arrived at the hospital at approximately 10:15 p.m., the veterinarian was waiting for them, leading McClellan to believe that the officers had called to alert the hospital. Kal was admitted to the hospital, and surgery was performed the following day. He died five days later. Plaintiffs incurred a veterinarian bill in the amount of $ 1,786.50.

 William David Brooks witnessed the shooting. He was standing near the fountain with his four-year-old son, waiting for his wife, who worked in the Senate cafeteria. From the time he first saw Miller and Vulcan, he kept his eye on them, because his son was afraid of dogs. After the incident, he stayed on the scene to offer his statement of what had happened. *fn9" He offered a statement which the officers wrote down, but he has not seen the statement since that time, despite having requested it.

 After the incident, plaintiffs cooperated with the Capitol Police in the investigation of the incident. Their main concern was to ensure that Miller not be permitted to carry a gun again. Plaintiffs filed an administrative complaint with the Capitol Police, but were not satisfied with the way in which it was handled. In McClellan's own words, the incident "haunted" her. She lost her energy and her self-esteem. She was so distraught that she could no longer work effectively. Moreover, she had been in the process of interviewing for a new job, but she found she no longer could focus on the interviews and would always talk about the incident. She was not offered employment as a result of any of those interviews. *fn10"

 In January 1986, McClellan awoke in the night and imagined that a person with a gun was in the house who would kill her and Kaiser. She awakened Kaiser and told him that they must leave the house immediately, which they did. However, police found no signs of a break-in or of an intruder. After that incident, McClellan sought professional help from Susan Drobis, a clinical social worker. She saw Drobis once a week from February 1986 through January 1987. After about eight months of counseling, McClellan was able to get back to normal functioning. She resumed exercising and found a new job.

 Drobis diagnosed McClellan as suffering from post-traumatic stress disorder. *fn11" She based her diagnosis on the fact that McClellan had been through a traumatic, unexpected event, and subsequently exhibited the following symptoms: recurrent distressing dreams, recurrent recollections of the incident, diminished interest in her activities, feelings of estrangement, hyperalertness, sleep disorders, guilt, difficulty concentrating, and intensification of symptoms by exposure to events that symbolize or resemble the traumatic event. *fn12" ...


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