# Chew v. Gates

> Court of Appeals for the Ninth Circuit · June 27, 1994 · 27 F.3d 1432

URL: https://www.frixlaw.com/law-library/cases/6931247

## Case

- **Full name:** Thane Carl CHEW v. Daryl GATES, individually and as Chief of the Los Angeles Police Department City of Los Angeles, a Municipal Corporation and Public Entity of the State of California and Daniel Bunch Donald Yarnall Mark Mooring Patrick McKinley and Does 1 through 10, 14, 16 through 20, inclusive, each individually and as a Los Angeles Police Officer
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 27, 1994
- **Citations:** 27 F.3d 1432; 94 Daily Journal DAR 9043; 94 Cal. Daily Op. Serv. 4853; 1994 U.S. App. LEXIS 16020; 1994 WL 280292
- **Precedential status:** Published
- **Opinion:** Concurrence by Trott
- **Judges:** Norris, Reinhardt, Trott
- **Cited by:** 368 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6931247

## How later opinions describe it (automated extraction)

- holding that, under Graham, the fact that the defendant officer used "severe force" to arrest a suspect who did not pose an immediate threat to the safety of police officers was sufficient to preclude summary judgment for the officer, notwithstanding the fact that the suspect …
- holding that "individual policy makers may not be held liable.... [T]he law with respect to use of police dogs to seize and bite concealed suspects was not sufficiently established that a reasonable officer would have known that Los Angeles Police Department's policy was uncon…
- concluding that the force used was severe both because of the nature of injuries sustained and because the dog was trained to repeatedly bite a suspect if he or she resisted and because of the undisputed testimony that the dog’s bites “caydd be fatal” (emphasis added)
- holding, in part, that officers implementing a long-established policy are entitled to qualified immunity where no then-existing case law demonstrated that the particular policy was unconstitutional and the only appellate case on point had upheld a similar policy
- stating that, even though the case must go to the jury to determine if the use of a dog was reasonable, “[n]o decision of which we are aware intimated that a policy of using dogs to apprehend concealed suspects, even by biting and seizing them, was unlawful”

## Opinion text

TROTT, Circuit Judge,
Concurring and Dissenting:
My respected colleagues have come to some unsupportable conclusions about this case that are irreconcilable with the real world of police work and its hazards. In so doing, I believe they have inappropriately hobbled the police in this circuit with respect to the use of a valuable tactic in connection with the difficult and perilous task of pursuing and arresting felons who seek to evade arrest by secreting themselves in menacing environments. Thus, I am unable to join in the part of Judge Reinhardt’s opinion holding that the initial release of Volker by Officer Bunch constituted a use of unreasonable force. 1
I
At this moment in history, criminals are succeeding in doing what no foreign power has ever been able to accomplish: they have invaded our streets, parks, beaches, and backyards and made many feel like prisoners in their own homes. More and more, criminals are carrying and using firearms. This appalling condition is a matter of common knowledge and concern. As I write this dissent, Mayor Sharon Pratt Kelly of Washington, D.C., our nation’s capítol no less, has asked the President of the United States to call out the National Guard to combat crime in her city. The President himself says that violence is “tearing the heart out of America.” Jonathan Alter, one of our nation’s keenest observers, describes our condition this way:
The paradox of the American gun culture is that it is undermining the very values it was meant to protect. Remember Franklin Roosevelt’s famous Four Freedoms? These were what we ostensibly fought World War II over. One of them was “freedom from fear.” That battle has been lost. As crime grows arithmetically, fear grows geometrically. Even outside major cities, ours is now a land of real freedom only during daylight and in certain neighborhoods. We’ve reached a point in recent years where otherwise optimistic, spontaneous people believe they must constantly peer over their shoulders as if they were being pursued by the secret police in some old communist regime.
*1463 This routinized fear is now so much a part of American life that we’ve begun to take it for granted. We instinctively avoid large sections of cities, using mental maps in our heads that are unavailable to tourists. In my case, it was a stay in Japan that jolted me into recognizing how much freedom I’d lost at home. Japan is crowded and culturally stifling, but it’s possible to walk in a park in Tokyo at midnight without the slightest trepidation, just as it was here as recently as the 1950s. This freedom felt strange to me, as if a state of fear about physical safety is normal. And it is. Barricading oneself at home all night is now natural; wandering around freely and alone — once the quintessential American experience — is foolhardy. Roads like Route 66 once symbolized freedom; they now symbolize danger. Even a time-honored cultural tradition like flipping the bird to some idiot driver is now in jeopardy. Instead of just screaming back, he might blow your head off.
Jonathan Alter, There’s a War On at Home, Newsweek, Sept. 27, 1993, at 42. Given this climate, the job of a police officer has never been more difficult, or more dangerous.
Judge Reinhardt finds fault with my interest in relating our decision in this case to the world around us. I do so because I am not comfortable entombed in the purity of abstractions as we decide in Constitutional terms whether a tactic used by the police to apprehend hiding felons is reasonable. I believe that before judges tucked away behind magnetometers and deputy marshals in the safety of courtrooms tell police officers and hiding felony suspects which seizures are reasonable and which are not, we must integrate into our decision making process a thorough understanding of the context of the issue and all the practical ramifications of our holding, one of which may be the elimination of the use of police dogs in this circuit to find hiding felony suspects. Because of fear of lawsuits and liability, this decision may be fatal to canine units, and by their demise, the ability of police to combat criminals will be seriously hampered. See Harlow v. Fitzgerald, 457 U.S. 800, 814 , 102 S.Ct. 2727, 2736 , 73 L.Ed.2d 396 (1992) (“Finally, there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in their unflinching discharge of their duties.’ ”) (citation omitted). Thus, it seems to me that the task of interpreting the principles in our Constitution and applying them to various conditions and circumstances requires an understanding of human existence that is informed by more than law books.
Furthermore, I do not believe that grounding a holding on this issue in the realities of our times is either “succumbing to hysteria” or “joining the pack.” The “pack,” as Judge Reinhardt pejoratively chooses to call them, appear to me to include decent people genuinely worried about the world in which they and their children live; and the “hysteria” sounds to me like appropriate concern about their safety threatened by rampaging criminals. I doubt that we serve the People well by dismissing them as an hysterical pack or by telling them that their elected leaders speaking out on this subject are hypocrites.
Ample precedent exists to support my approach to deciding whether something is unreasonable under the Fourth Amendment. Part of the genius of that amendment is its use of principles that are flexible enough to respond to evolving challenges and conditions. Three examples should suffice to make this point.
When the Supreme Court decided in New Jersey v. TLO, 469 U.S. 325 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985) that searches of schoolchildren by teachers and administrators shall depend not on probable cause, but “on the reasonableness, under all the circumstances, of the search,” id. at 339 , 105 S.Ct. at 741 , the Court relied greatly on information about contemporary conditions in schools. The Court said, “Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems.” Id. at 339 , 105 S.Ct. at 741 .
The Court used the same approach in Michigan State Police v. Sitz, 496 U.S. 444 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990) when it decided that sobriety checkpoints to combat drunk driving did not entail unreasonable *1464 seizures of motorists. In rejecting arguments that such seizures were unreasonable under the Fourth Amendment, Chief Justice Rehnquist said,
No one can seriously dispute the magnitude of the drunken driving problem or the State’s interest in eradicating it. Media reports of alcohol related death and mutilations on the nation’s roads are legion. The anecdotal is confirmed by the statistical. “Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.”
Id. at 451 , 110 S.Ct. at 2485-86 (citations omitted). In a concurring opinion, Justice Blackmun observed that “for the period from 1900 through 1969 motor vehicle deaths in the United States exceeded the death toll of all our wars,” adding that he was “pleased ... that the Court is now stressing this tragic aspect of American life.” Id. at 456 , 110 S.Ct. at 2488 .
Finally, the Supreme Court ended segregation by race in public schools based on a look at the reality of segregated education, not merely by resorting to theorization. The Court said, “In approaching this problem, we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” Brown v. Board of Education of Topeka, 347 U.S. 483, 492-93 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 (1954).
Thus, just as contemporary reality has been used to justify school searches, drug testing, sobriety check points, and magnetometers in airports, I believe contemporary reality has a place in deciding this case. No one “likes” these invasive techniques, but they have become indispensable in our attempt to preserve our liberties from criminals.
II
Chew was a fugitive. He was one of the class of people Mayor Kelly, President Clinton, and Jonathan Alter are concerned about. When braced by the police, he ran and hid in a scrapyard, a place filled with iron and steel implements easily used as weapons. He wedged himself between large steel dumpsters and covered his hiding place with cardboard to avoid being seen by a police helicopter hovering overhead. His own attorney has described this scrapyard as “massive.” Three felony warrants were outstanding for Chew’s arrest. The police knew about these warrants. No one could misunderstand Chew’s motivation in fleeing. Yet, the majority claims this set of facts and circumstances would support a finding that Chew posed no immediate safety threat to anyone. Not only is this bizarre claim monumentally mistaken, but it translates into a holding that will make more perilous the work of police officers patrolling our streets.
Every police officer alive today in the United States of America understands that a suspected felon wanted by the law is one of the most dangerous criminals at large in our communities. The walls of law enforcement memorials across our nation are inscribed with the names of unsuspecting officers slain in routine traffic stops by persons like Chew. To claim that Chew engaged in no threatening behavior while hiding in a massive scrapyard badly misunderstands the threat he posed to those sworn to apprehend him. Such an hallucination is impeached many times over by the record. Police officers engaged in searches for hiding felony suspects know that their own lives are at risk. I respectfully believe the majority opinion does precisely what Justice Oliver Wendell Holmes cautioned against when he wisely said, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” Oliver W. Holmes, Law in Science and Science in Law, in Collected Legal Papers 210, 238 (1920).
This case involves more than just stopping a fleeing suspected felon in flight. Yes, Chew was in a state of flight, but he had temporarily hidden in a dangerous environ *1465 ment, demonstrating an unwillingness to surrender. He was using concealment as a tactic to remain at large. Now, the duty of the police was to go into that environment, physically arrest him, and bring him out. This challenge is much different from chasing a running suspect, and it goes into dimensions that are distinguishable from and more demanding than those reviewed by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). See Robinette v. Barnes, 854 F.2d 909, 913-14 (6th Cir.1988) (commenting on the difference between a fleeing and a hiding felony suspect). Indeed, Tennessee v. Gamer permits the use of significant force to apprehend a fleeing felon “[w]here the officer has probable cause to believe that the suspect poses a threat of serious harm to the officer or to others....” Id. 471 U.S. at 11 , 105 S.Ct. at 1701. This is precisely the situation faced by the officers in this case, and I believe the force used to seize Chew was patently reasonable.
Once hidden, a fleeing suspected felon has an unmistakable advantage against an approaching officer. The potential for ambush under these circumstances is enormous. Ferreting out hiding criminals is a precarious task. As Sgt. Yarnell, who started the Los Angeles Police Department K-9 Unit, testified in his deposition, “To me, it’s a very unsafe situation to go into a location where a suspect has concealed himself, especially in today’s day. There are so many armed people out there, it’s very, very dangerous.” Any police officer who would walk unprotected into such an environment would only be doing so on the set of a television show. When a real police officer is assaulted, real injury can occur. This is precisely why the police used trained dogs. The dogs can quickly find hiding criminals, and thankfully, they can do so without endangering the lives of the police officers for whom the dogs work. As Sgt. Yarnell testified, “Dogs [can] search much more efficiently, much faster, and with greater safety than a human being.”
As noted by the district court, “Chew fled before he could be checked for weapons.” Chew v. Gates, 744 F.Supp. 952, 956 (C.D.Cal.1990). The officers may not have known for certain whether Chew had a weapon, but after he fled, it would have been more than foolish for them to assume he did not; and it would be singularly inappropriate for us to essentially force the police to make such a dangerous assumption.
Sgt. Yarnell testified that an officer must assume for the sake of his own safety that each suspect he is searching for is armed:
Q. [By Chew’s counsel.] Let’s assume that the handler has been given no reason to believe that he is armed.
A. Ah, but sir, this is the mistake. You cannot assume that the man is not armed. You will die. I mean, it is a realistic world out there, and I’m sorry, but that is the truth. And you must assume that each suspect that you are searching for is armed, for your own safety.
Q. Okay.
A. Okay? So unless you are told otherwise, for a fact, that he is not armed, you must assume that he is.
Q. All right.
A. But even — yes. I’m sorry. Go ahead.
Q. So that is part of the training that the officers receive?
A. That’s part of the training from the day they are in the academy, and it’s part of the training I give them, absolutely, yes.
Q. I thought that was so.
A. Well, it must be. Otherwise, you’re going to die.
(emphasis added).
It is also correct that the officers may not have known the nature of the three felonies for which Chew was wanted, and that some felonies are nonviolent. But by fleeing, by jumping over at least four fences, and by hiding in a precarious environment, Chew became presumptively dangerous. Surely the officers who saw Chew on the fence of the scrapyard knew they did not have a benign check bouncer on their hands. Moreover, Chew was more than just a fleeing suspect. He had been formally charged by a court for felonies arising out of three separate episodes, thus demonstrating a pattern of lawless behavior. Yes, the precise nature of the three felonies might not have been immediately known to the officers, but they *1466 had ample probable cause based on Chew’s flight and behavior (i.ethe totality of the circumstances), to believe the felonies were of a nature that made him dangerous. To hold otherwise is to be guilty of nothing short of nit-picking. Certainly Chew could have been searched for weapons the moment he was finally apprehended. No one could seriously argue otherwise. Bunch testified that when he found Chew, Chew was beating Yolker with a metal pipe. Better Volker than Bunch.
The majority opinion unpersuasively attempts to water down the reality of these events, describing the search and pursuit as two “uneventful” hours. “Uneventful?” A helicopter in the air? One hundred and ten degree air temperature? Sixteen police officers surrounding an uncooperative suspected fleeing felon now cornered and hiding in a scrapyard? Incidently, there were at least three police dogs, including Yolker, and three handlers combing the scrapyard looking for Chew. Why three and three? Because the officers believed the dogs could not last long in the extreme heat. Maybe this scenario would be uneventful to a judge, but not to any police officer at the scene. Time was of the essence. Among other things, all police officers know that if a fleeing felon escapes, the next time he is stopped, unsuspecting fellow officers will have an unmarked, silent rattlesnake on their hands. They must get him now, in the scrapyard and in the daylight, not permit him to escape to menace them or the public in the future. How the majority can claim, indeed even “emphasize”, that “this was not an occasion on which the police were forced to make ‘split second judgments’” completely escapes me.
Even Chew could not describe what happened as “uneventful.” Here excerpted from his deposition is how he recounts this episode.
Q. [By the deputy city attorney.] Now, at the time that you were arrested on this matter, there were some felony warrants out for your arrest; is that correct?
A. From my understanding, yes.
Q. How many felony warrants were there?
A. You mean when I got arrested?
Q. At that time, yes,
A. One.
Q. Okay. And what was that for?
A. Burglary.
Q. Was it a residential burglary, if you recall?
A. Yes.
Q. What about the burglary conviction of October of ’88 in Lancaster; was that also a residential burglary?
A. Yes.
Q. Okay. And then what happened next?
A. [The officer who stopped me] proceeded back to his car.
Q. What happened next?
A. I lit a cigarette up.
Q. Okay. And then what happened?
A. I remember I was getting scared?
Q. Why were you getting scared?
A. Because I was unaware [sic] of me having a warrant.
Q. And what was the warrant for?
A. My understanding was burglary.
Q. Was it a bench warrant or an arrest warrant, if you know?
A. That, I’m not sure of.
Q. Did you fail to appear for court?
A. Yes.
Q. Okay. So you’re aware of one warrant out for your arrest that apprised you of a burglary; is that correct?
A. Yes.
MR. DENNY: [Counsel for Chew.] And his failure to appear for that burglary charge.
Q. And the officer went back to his car during that couple seconds?
A. Yes.
Q. What happened next?
A. I panicked.
*1467 Q. Okay. Because of the warrant?
A. Yes.
Q. And what happened next?
A. I took off running.
Q. Did the officer ever frisk you at any time before he took off running?
A. Not that I remember.
Q. And where did you run to?
A. I think I was running eastbound if my recollection is — that’s what I recall the direction.
Q. Did you cross San Fernando Road as you were running?
A. Yes.
Q. No particular place, but eastbound.
Q. How far did you run?
A. Until when?
Q. Until the first time you stopped.
A. Stopped or stopped running?
Q. Till the first time you stopped running.
A. Approximately 2,300 yards.
Q. Okay. And where were you when you stopped running?
A. In the scrap yard.
Q. Were you able to see the officer the first time you stopped?
A. Which officer?
Q. The one who had — you gave your license — who you gave your license to the first officer you saw?
A. I’m not sure.
Q. Did you look to see if he was chasing you?
A. Yes.
Q. And did you see him?
A. I couldn’t tell you. I couldn’t see him visually, but I saw his police car.
Q. When you first started running, what happened?
A. I started to run.
Q. And what happened next?
A. I came to a fence, proceeded to climb it.
Q. Okay. What happened next?
A. I then took off running towards the, I guess it would be, southeast direction to the corner of the area that I was in.
Q. What happened next?
A. I was then going to proceed to jump another fence to get into a wash that was nearby.
Q. “What happened next?
A. I looked to my right, I guess that would be south, and saw a policé car.
Q. What happened next?
A. I then took off running again heading north if my directions are correct.
Q. What happened next?
A. I jumped another fence and proceeded running.
Q. What happened next?
A. I then jumped another fence and proceeded to run.
Q. What happened next?
A. I looked north of the scrap yard I was in at that particular time.
Q. And what did you see?
A. I saw between where the entrance gates come up and I saw what appeared to be a black and white police car driving northbound on Branford Street.
Q. Okay. What happened next?
A. I then proceeded to run to the entrance gate.
Q. And where was that located?
A. Right there in front of Branford Street.
Q. What happened next?
A. I then approached — came up to the fence and proceeded to climb the fence.
Q. This is a fence on Branford?
A. Yes.
Q. Were you climbing — were you exiting the junk yard or entering the junk yard?
A. I was going to try to exit the junk yard.
Q. Okay. What happened next?
A. As I came to the top of the fence that I was climbing, I saw, if I remember right, two officers looking in the yard that was— *1468 that I just came from, which was right next door.
Q. Okay. What happened next?
A. They both looked up at me or I should say I know of one for sure that looked up at me and saw me.
Q. Okay. After you saw the two officers, which you indicated you believe that one of the officers saw you, what happened?
A. I then jumped back into the scrap yard, not junk yard but scrap yard as I know it, and proceeded to run back to where the direction that I saw the officer — the car drive by on Branford Street.
Q. And what happened after you got to the top of the fence?
A. That’s when I saw, if I remember right, officers.
Q. Okay. And what did you do then?
A. I jumped down off the fence back into the scrap yard because I saw one officer. Both of them might have looked. I’m not sure. I know one looked up at and so I then jumped back down there.
Q. Okay. What happened after you got to the approximate point of Point F [referring to a diagram]?
A. I then looked — no. That was when I heard what appeared to be a helicopter.
Q. Okay. And then what happened?
A. I then looked around.
Q. Okay. And you saw nothing but scrap metal; correct?
A. Yes. You might call it that, yes.
Q. And then what happened?
A. I then proceeded to hide myself.
Q. Okay. How did you hide yourself?
A. I squeezed myself self in between what appeared to be — if I remember right, four dumpsters; one stacked on top of each other as one pile and the other eight which was one stacked on top of the other one were fairly closed to one another.
Q. Hiding. You were hiding between the dumpster for about two hours?
A. Yes, around there, yes.
Q. During those two hours, did you see or hear anything?
A. Yes.
Q. What?
A. A helicopter.
Q. Okay. Anything else? What else?
A. Commotion.
Q. Okay. Could you describe this commotion a little bit more, please, that you heard?
A. Well, it appeared to me it sounded like I heard — it sounded like not a regular voice but a voice over either a P.A. system, radio or — I don’t know because I couldn’t see.
Q. Okay. Okay. You hid yourself at point I and you waited there about two hours; correct—
A. Correct.
Q. —until you were found; is that correct?
A. Correct.
(emphasis added).
Chew was actively albeit silently resisting arrest. This entire episode was rife with life-threatening “split-second judgments” as the police searched for him. Bunch and Volker were in the yard for half an hour before Volker found him. Yet the majority opinion tries to characterize Chew’s behavior as not menacing because he did not do “anything other than hide quietly.” With all respect to my good friends, this is a false characterization that makes the event sound like a children’s game of hide-and-go-seek. The majority’s claim that a hiding quietly Chew posed “no immediate safety threat to anyone” adds new meaning to the word “absurd.” Common sense tells us we must look at the circumstances from the perspective of the police, not the hiding suspect.
*1469 But perhaps the most upside-down argument in the majority’s opinion is the following “syllogism”:
1) A police dog is more likely to bite a hidden suspect than one out in the open;
2) Chew managed to conceal himself from the officers;
3) Therefore, Chew deserved to be protected from the dog.
This twisted logic inappropriately removes the responsibility for the increased risk from the suspect and places it in on the officers, effectively rewarding concealment, resistance, and a refusal to surrender. Chew was responsible for this risk. Are we to call off searches when a suspect conceals himself because the risk of dog bites — or for that matter shootings — is thereby increased?
Ill
The recurring flaw in the majority’s analysis is that it breaks the facts and circumstances of this case into disconnected pieces, gelds the pieces, and then argues that each deodorized piece does not demonstrate Chew was a safety risk. This approach is at war with the requirement that we measure the reasonableness based on the totality of the circumstances. The flaw is most apparent in the opinion’s treatment of (1) Chew’s behavior before he panicked (“[Njothing about Chew’s appearance or demeanor gave the officer reason to believe he should search [Chew before he fled].”); (2) Chew’s behavior in the scrapyard (“The defendants do not suggest that Chew engaged in any threatening behavior during this time, or that he did anything other than hide quietly.”); (3) Chew’s attempt to resist arrest by wedging himself between the dumpsters (“He did not, however, resist arrest to the point of offering any physical resistance to the arresting officers.”); (4) the significance of the outstanding warrants (“[Because] the record does not reveal the type of felony ..., the existence of the warrants is of limited significance.”); and (5) the length of the search (“Chew was trapped in the scrapyard for two uneventful hours.... ”). (emphasis added).
There are three errors of logic in this piecemeal approach. First, the opinion bases its ultimate conclusion on incomplete and mischaracterized premises. Second, the “no immediate safety threat to anyone” conclusion is tacitly assumed in each premise, ie., the question is begged by sneaking the rabbit into the hat. Third, the fallacy of composition is mischievously at work insofar as each emasculated and quarantined piece of the whole is used to compel an adulterated and invalid conclusion. If this were a proper way to reason, which it manifestly is not, one could easily make the case that World War II wasn’t really a significant threat to our national security, just as the majority opinion claims Chew’s behavior that afternoon did not pose an “immediate safety threat to anyone.” No rational jury could so find.
This same kind of analytical mischief is also at work in the manner in which the majority characterizes the LAPD’s K-9 policy. Just as the threat posed by Chew’s behavior is belittled, the threat posed by police dogs operating under the LAPD’s policy is vastly exaggerated. The majority makes it sound like the purpose of the policy was to “maul” all suspects. This is untrue, as is the idea that dogs were trained to attack and bite all suspects. The controlling Canine Manual makes it clear that care is taken to minimize the physical danger to suspects:
All protection, criminal apprehension and search training shall incorporate control training. Control training includes false starts, outs, 2 and out from attack, call outs, long outs, out while fighting, hold, hold and bark and transports. Great emphasis shall be placed on training as it will ensure optimum control and will decrease the chances of accidental or unnecessary bites.
Metropolitan Div., Los Angeles Police Dep’t., Canine Unit Manual 19-20. The training exercises in the Canine Manual demonstrate that the dogs are trained not to bite when *1470 biting is unnecessary, just as officers are trained not to shoot when it is not appropriate. 3
IV
“To determine the constitutionality of a seizure ‘[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion’.” Tennessee v. Garner, 471 U.S. at 8 , 105 S.Ct. at 1699 -1700 (quoting United States v. Place, 462 U.S. 696, 703 , 103 S.Ct. 2637, 2642 , 77 L.Ed.2d 110 (1983)). In this respect, “reasonableness depends on not only when a seizure is made, but also how it is carried out.” Id. (emphasis added). The question we must answer is “whether the totality of the circumstances justified a particular sort of ... seizure.” Id. 471 U.S. at 8-9 , 105 S.Ct. at 1699-1700 (emphasis added).
In my judgment, the totality of the circumstances I have outlined thus far are manifestly “exigent” as that concept has been used by the Supreme Court to justify certain exceptional police practices. See United States v. Santana, 427 U.S. 38, 42-43 , 96 S.Ct. 2406, 2409-10 , 49 L.Ed.2d 300 (1976) (allowing warrantless entry of a home while in “hot pursuit”). The circumstances most *1471 certainly create probable cause to believe Chew “posed a threat of serious harm to the officers or to others.... ” Tennessee v. Garner, 471 U.S. at 11 , 105 S.Ct. at 1701 . In addition to these integrated facts and circumstances that weigh heavily in this balancing process, I also note the following.
First, a biting dog is not a bullet from a firearm. A trained dog is much less dangerous than a shotgun. See Robinette, 854 F.2d at 912 (concluding the use of a properly trained police dog to apprehend a felony suspect does not constitute the use of deadly force). A police dog can inflict fatal wounds, but experience has shown that this is not a common event. Id. at 913 . By comparison, when police shoot, they must always be prepared to accept the possibility of a fatality. Tennessee v. Garner stands as a witness to this reality. Indeed, while we have expended over eighteen months deciding this case, I have heard oral argument in an appeal involving the shooting by police in San Francisco of a recluse engaged in resisting the service of an administrative inspection warrant. 4 The estate of the accused argued in that ease that the police should be liable under 42 U.S.C. § 1983 for violating the decedent’s rights because they entered the decedent’s house with firearms when they should have used a “less violent alternative,” i.e., police dogs. I quote from their brief:
If there eventually arose some compelling reason to seize Mr. Quade, police could have employed a canine unit. The San Francisco Police Department has police dogs that are specially trained to search for and discover persons hiding in buildings.
Police admit that a canine unit was available and could have been utilized. Appel-lees’ own police expert acknowledged that a dog unit was a viable option and would have involved less chance of injury to Mr. Quade.
No doubt had Chew been shot, his estate would be arguing in this case that dogs should have been used to apprehend him because, of course, dogs represent a “less violent alternative.”
Essentially, I agree with the Sixth Circuit:
Indeed, instead of generally causing deadly force to be used to apprehend criminals, we believe that these dogs often can prevent officers from having to resort to, or be subjected to, such force. Any attempt to apprehend a criminal suspect presents the officer with [a] difficult and frightening situation, but certainly an attempt to arrest a suspect hidden inside an unfamiliar building during the nighttime presents a particularly confusing one. The use of dogs can make it more likely that the officers can apprehend suspects without the risks attendant to the use of firearms in the darkness, thus, frequently enhancing the safety of officers, bystanders and the suspect.
Robinette, 854 F.2d at 914 (emphasis added). Searches for hiding suspects are very tense occasions where fingers are appropriately, but dangerously, near triggers. Accidental shootings are not uncommon.
Second, I see a compelling interest in protecting police from death or serious bodily injury at the hands of holed up criminals. The use of properly trained dogs to seize persons like Chew fosters this interest.
Third, before Los Angeles Police Department K-9 Unit police dogs are released, hiding suspects are given this warning: “This is the police. We are going to use a police dog to find you. There is a possibility you will be bitten by the dog. If you surrender now, the dog will not be used. You have one minute.” This gives the suspect control over his own fate. See Tennessee v. Garner, 471 U.S. at 29 , 105 S.Ct. at 1710-11 (O’Connor, J., dissenting) (“[T]o avoid the use of deadly force ..., the suspect need merely obey the valid order....”).
Fourth, the massive deployment of police officers required to contain someone like Chew depletes their ranks elsewhere during the many hours that it takes to conduct a painstaking search of a scrapyard. Sgt. Yar-nell testified that in an era of limited resources and severe budgetary constraints, *1472 economic concerns were a factor motivating the K-9 program.
Taking these factors into consideration in their totality, and realizing that all Chew had to do to avoid this fate was surrender, the scales balance easily in favor of the use of police dogs to assist in these types of seizures. I do not believe that the deployment per se of police dogs to find hiding felony suspects is unreasonable. Thus, I agree with the district court that the release of a police dog to apprehend Chew was objectively reasonable as a matter of law. See Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865, 1871-72 , 104 L.Ed.2d 443 (1989). If wanted felony suspects normally surrendered and never attacked police officers, I suppose the result in this case might be different, but that is a fanciful world in which we do not live.
I am not persuaded by the majority’s attempt to discredit Robinette v. Barnes, which Judge Reinhardt suggests was wrongly decided. In Robinette the suspect was hidden in a dark building in the nighttime, but the principle active in Robinette is that a suspected felon hiding from the police may be flushed out by a biting police dog without offending the Fourth Amendment. As Sgt. Yarnell testified, “[Djaylight has nothing to do with it.” Darkness aggravates the problem, but daylight does not dispel it. I believe Chew and Robinette stand on equal footing in this context: it was objectively reasonable in both instances to use police dogs to apprehend them. The minimal factual differences between these cases are insufficient to require different results.
What should the police have done to make their conduct reasonable? After Tennessee v. Garner, Chew while running could not be stopped with a bullet. He must be allowed to run. This increases the possibility that he will find a place to hide. Then what? Chew obviously was not going to surrender on his own initiative. His own deposition makes this clear. Nightfall was approaching. It is naive to believe Chew was not buying time until darkness became his ally. Should the police have left their dogs in their kennels and conducted a massive dumpster by dumpster search for Chew before it got dark? Is that the reasonable way to conduct this operation? Were the police required to maintain their perimeter until they starved Chew out? Should the police have given up and gone home? The Fourth Amendment should not require that we send police into the jaws of danger or permit suspected felons to go on their way. Tennessee v. Garner was intended to protect fleeing nondangerous suspects from gunshots, not to allow them to escape or to endanger the suspect’s pursuers or the public.
In my view, the enforcement challenge presented by Chew and the challenge presented by Ronald Mendoza are constitutionally indistinguishable. See Mendoza v. Block, 27 F.3d 1357 (9th Cir.1994). We held in Mendoza that releasing a police dog to find a hiding felon was objectively reasonable, and we should do so here.
V
It is unfortunate police find it necessary to carry guns and use police dogs. My colleagues are correct: Police dogs can inflict considerable damage on human beings. Nothing I say should be taken for a moment to condone the unprofessional, careless, or inappropriate use of police dogs. A jury in this case returned a verdict for Chew because it believed Officer Bunch went over the line when Chew was finally found. So be it. Police dogs must be well trained, and they must be used appropriately. But in situations like this, the risk of dog bites to menaces like Chew is insignificant in my judgment when compared to the risk posed to police officers forced to go into deathtraps to search for suspected felons. On occasion, officers misuse guns. Sometimes they misuse batons. But I would not therefore render the use per se of guns or batons unreasonable under the Fourth Amendment, only their misuse.
Police dogs are capable of feats beyond the capacity of human beings, primarily because of their remarkable senses, including the sense of smell. In one well-known ease, a police dog named Pascha ended a one-man crime wave by a career criminal dubbed the “Balcony Burglar,” a burglar who had terror *1473 ized the Westside of Los Angeles County for many years. Pascha’s widely publicized contribution to the safety of the community was heralded in many newspaper articles during January, 1980. The following are excerpts from those articles showing the importance of well trained police dogs to law enforcement and the public.
Police this morning cornered and arrested a man they believe is the “Balcony Burglar” — suspected in three murders, 130 burglaries and numerous rapes — following a dramatic pre-dawn manhunt near Century City.
The suspect, identified as Harold Holman, 33, of Los Angeles was taken into custody after being sniffed out and attacked by a Santa Monica police dog.
Police said Holman was captured about 4:30 a.m., when he was found hiding under a triplex at 2103 Benecia Ave.
Following his capture, Holman was taken to Los Angeles New Hospital for treatment of bites on his arms suffered when the dog “chewed him up.” He was taken to the West Los Angeles Division police station for questioning following treatment.
Holman was booked at the station in connection with a burglary committed less than an hour before his capture.
The sequence of events leading up to this morning’s capture of Holman began when a prowler entered a second-story residence at 2343 Fox Hills Drive about 3:20 a.m. Neighbors summoned police after hearing the woman resident screaming for help.
Officers in one of the patrol cars dispatched spotted a man running across Olympic Boulevard near Benecia about three blocks north from the scene of the break-in. Officers then cordoned off an area bounded by Beverly Glen Boulevard, Fox Hills Drive, Olympic and Benecia and began searching for the suspect.
A police helicopter was called in and used its powerful flood lights to illuminate the neighborhood while 15 police officers on the ground combed the neighborhood.
As the search perimeter was sealed off, the West Los Angeles officers called for help from Santa Monica, where two dogs were being used as part of a special stakeout team looking for the burglar who this week had murdered two people and looted numerous apartments in Santa Monica in recent weeks.
At about 4:15 a.m., West Los Angeles officers received another call, this one from a woman in the search area reporting a prowler climbing her fence and knocking over trash cans.
The dogs were brought in, and it was Paseha, a German shepherd handled by officer Barney Melekian, who caught the scent and traced the suspect to a crawlspace under the triplex.
The animal held Holman at bay, growling and biting the suspect several times on the hands and arms before officers took the man into custody.
SMPD Dog Traps Man in WLA Chase, Santa Monica Outlook, Jan. 18, 1980, at A-1, A-8.
A grateful public also has been sending its own rewards to Paseha this week. At latest count, seven boxes of dog biscuits have arrived at Santa Monica police headquarters.
Melekian took all the congratulations in stride, stressing that it was actually the teamwork among the departments that led to the suspect’s capture.
If West L.A. (police) hadn’t quickly sealed off the neighborhood where the suspect was spotted, “we never would have found him,” said Melekian.
That comment brought this response from a West L.A. officer: “Without that dog, we probably never would have found him. If we had, it probably wouldn’t have been for several more hours and maybe only after a shooting.”
“So we go over there and the dog ‘keys’ right away. He follows a scent for about 300 yards, over fences, through yards and alleys. He lost it for awhile out on Beverly Glen, then he picked it up again and took us back through a yard (2103 Benecia *1474 Ave.) and to this erawlspace opening. Then he just went bananas.”
“I called for other officers to surround the house, then we yelled a warning under the house that we’re sending the dog in. We didn’t get an answer so we pushed in the screen and the dog went under and I went after him.”
Melekian said Pascha found the suspect about 20 feet from the opening. “The guy tried to kick at the dog, and a fight sorta ensued. He was trying to choke the dog, which may be why he got some sore fingers.”
Lt. Glen Ackerman of the West L.A. detective bureau said five or six officers nightly had been working stakeouts during their off-duty hours for about six weeks prior to the arrest.
That meant cruising streets from 1 a.m. to 6 a.m., after already putting in a full day of work.
‘We had a lot of tired detectives when this was over.” Ackerman said. “The morning of the capture was an event of great jubilation over the apparent end of this crime pattern.”
“This was a case where the dog really proved his worth.” Oswald added as he scratched the docile Pascha behind the ears.
Pascha “doesn’t know this guy was so important.” Melekian said, with Pascha lying at his feet like a 105-pound phppy. “He was just doing his job, like with the other 70 or 80 guys he’s gone after.”
Being a hero is nothing new for Pascha. He received the Police Department’s Merit of Valor in 1978 for his efforts to control a robbery suspect who had attacked an officer.
Mike Tipping, A Party for Pascha, Santa Monica Outlook, Jan. 26-27, 1980, at A-l, A-4.
It was a classic police operation in almost every respect. The LAPD helicopter kept the man pinned down while the patrol cars on the perimeter prevented his escape. All that remained was for Pasha [sic] to come in from Santa Monica to track the man down.
As it turned out, the suspect had run under my bedroom window to a building two houses down, pulled open the screen cover leading to a crawl space under the house, replaced the screen, and inched his way about 30 feet under the house.
It’s possible that if Pasha hadn’t picked up the scent, somebody might have found him but just about everybody involved said the odds were greater that they wouldn’t have found him. Even if they had, considering that he was armed with a .38 pistol, it most likely would have turned out to be a major SWAT operation.
Since he started his career as a police dog, Pasha has assisted in more than 300 felony arrests. He’s found about 50 crime suspects who were doing their best not to be found, and he’s only bitten 19 of them
That’s mainly because Melekian does his best to discourage him from chewing up criminals. Actually, there’s no malice in Pasha. Melekian explains. Biting people is sort of a game, like catching a Frisbee is for other dogs.
The rules of the game, basically are, that Pasha can’t bite anybody unless Melekian orders him to or they try to attack Meleki-an or another officer, or — and this is the key rule — they try to move after Pasha has sniffed them out.
If a burglar, for example, is discovered by Pasha hiding in a building, the dog most likely will simply bark and stand guard, perhaps placing his mouth ever so gently on the suspect’s arm. If the suspect stands perfectly still, there’s nothing to worry about.
But one move and Pasha is free to bite. In training, that’s a reward and it works the same way in real situations, although Melekian says Pasha never bites any harder than the “level of resistance” he encounters.
“Of the 19 people he’s bitten, 12 had guns.” Melekian says, “We train the dogs to go for the arm. If somebody tries to *1475 kick him, he’ll take the leg. But it’s a myth that they go for the throat. The most serious injury he’s caused was a broken arm.”
William Overend, Pasha the Wonder Dog, Force’s Finest German Shepherd Gets His Man, L.A. Times, Jan. 31, 1980, § 4, at 1, 8-9.
As our streets and communities become more dangerous, and as the police come under increasing fire from criminals, it is a tragic mistake for this court to send police dogs to the sidelines in favor of sending in officers to flush out hiding felony suspects like Chew. I repeat Melekian’s words: “Of the 19 people [Pasha has] bitten, 12 had guns.” The irony in this case is the unstated assumption of the majority that a hiding suspect is in less danger from officers carrying firearms than from a police dog. This assumption may be far from accurate.
Without police dogs, the police might still be looking for the Balcony Burglar, Ronald Mendoza, or for that matter, Thane Carl Chew himself. Police dogs by themselves certainly won’t solve all our problems, but at least they will protect and help keep alive the officers we pay to catch those dangerous criminals who violate our laws. Such protection is hardly unreasonable. I doubt as Judge Reinhardt claims that using police dogs to flush out hiding felony suspects is the “beginning of the police state and the end of freedom.” The decision to establish a K-9 Unit to locate hiding suspected felons should be left to the governmental process. As a matter of policy, the executive and legislative branches of local government can arrive at an informed conclusion, just as they have with the use of guns, tasers, batons, and chokeholds. As in Los Angeles, a police chief, an elected mayor, a police commission, and an elected city council are best positioned to make these decisions and to determine the needs and overall interests of the community.
. I do concur, however, in the part of Judge Reinhardt’s opinion holding that defendants Gates, McKinley, Mooring, and Yamell are enti-tied to qualified immunity. Judge Reinhardt's introduction to his opinion correctly characterizes my views.
. An "out" is a command to a police dog to cease whatever the dog is doing and return to the handler.
.These are the control training exercises:
1. Criminal Apprehension (Running)
The dog shall be placed in a stay facing the decoy. The decoy shall be standing motionless 30 yards away from the dog. Upon direction of the evaluator, the decoy shall break and run away from the dog. The dog shall remain stationary. When the decoy has run 40 yards, the handler shall send his dog. The dog must apprehend the decoy by catching and biting him hard. The dog must bite and hold the decoy until commanded to "out," upon which the dog must immediately release the decoy and return to his handler’s heel.
2. Criminal Apprehension (Stationary)
The dog shall be placed in a stay facing the decoy. The decoy shall be standing stationary facing the dog 50 yards away. Upon command, the dog will apprehend the motionless decoy by biting him hard. The dog must bite and hold the decoy until commanded to "out,” upon which the dog shall immediately release the decoy and return to his handler’s heel.
3. False Start
The dog shall he placed in a stay facing the decoy. The decoy shall be facing the dog and standing motionless at a distance of 30 yards. Upon direction of the evaluator, the decoy shall break and run away from the dog for 30 yards. The dog shall remain stationary during this exercise.
4. Call Off (Stationary)
The dog shall be placed in a stay facing the decoy. The decoy shall be standing motionless facing the dog 50 yards away from the dog. Upon direction of the evaluator, the handler will send his dog to apprehend the decoy. When the dog is within 20 yards of the decoy, the handler shall command his dog to "out.” The dog must cease all aggression and return to his handler’s heel.
5. Call Off (Running)
The dog shall be placed in a stay facing the decoy. The decoy shall be standing motionless facing the dog at a distance of 30 yards. Upon direction of the evaluator, the decoy shall break and run away from the dog. The dog shall remain stationary. When the decoy has run 40 yards, the handler shall send his dog to apprehend the decoy. When the dog is within 20 yards of the decoy, the handler shall command his dog to "out." The dog must cease all aggression and return to his handler’s heel. The decoy must continue running until told to stop by the evaluator.
6. Suspect Hold (Stationary)
The dog shall be placed in a stay facing the decoy. The decoy shall be standing motionless facing the dog at a distance of 30 yards from the dog. Upon command, the dog shall run to the decoy and bark continuously at him. The decoy should remain as still as possible. At this time, the evaluator may direct the decoy to attack the dog, or direct the handler to call his dog to a heel. The handler must remain standing at his original position during the exercise. Any attack by the decoy shall dictate his apprehension by the dog without any influence from the handler. The dog shall bite the decoy hard and hold the bite until commanded to "out.” The dog shall then immediately release the decoy and return to his handler’s heel.
7. Hold (Running)
The dog shall be placed at a stay facing the decoy. The decoy shall face the dog standing motionless 30 yards from the dog. Upon direction from the evaluator, the decoy shall break and run away from the dog. When the decoy has run approximately 40 yards, the handler shall command his dog to apprehend the decoy. When the dog is within 50 yards, the decoy shall stop, face the dog, and remain motionless. When the decoy stops, the handler shall command his dog to hold the decoy. The dog must stop within six feet of the decoy and bark at him continuously. The evaluator may then order the decoy to run, attack the dog, or direct the handler to call his dog to a heel. The handler must remain standing at his original position during this exercise.
Id. at 25-26.
. Alexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir.1994).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6931247. Public record. Not legal advice.