By Scott Sandlin
Albuquerque Journal
ALBUQUERQUE, N.M. — In November 2006, Albuquerque police officer George Gabaldon and a fellow officer pulled over a truck on Candelaria that had careered around a corner in the wrong lane, nearly hitting Gabaldon’s police cruiser head-on.
The truck was riding on its rims, and it turned out to be stolen.
Although Gabaldon called for backup to make the arrest of the two men he had seen inside the truck, he told a judge Wednesday that he didn’t expect an APD canine unit to show up.
And Gabaldon certainly didn’t expect that he would be the one that “Doc” sank his teeth into, sending him to the hospital with a severe bite wound and keeping him off the job for weeks.
Now, Gabaldon is in court with his attorneys looking for two forms of relief that face significant legal hurdles.
He wants District Judge Alan Malott to say that the state Workers Compensation Act isn’t binding in his case, because the city knowingly created the hazard of a dog trained to find and bite.
And he wants the judge to order the city to change its policy so that dogs are deployed wearing muzzles and trained to bark at suspects instead of gripping them with their teeth.
Malott heard testimony from Gabaldon and a police dog expert hired by his attorneys Wednesday during the first day of a hearing. Testimony is expected to conclude today.
Malott is not expected to rule on the issue for several weeks.
The city argues that the workers comp act is the exclusive remedy for workers injured in the course and scope of their employment -- limiting the employer’s liability.
The state Supreme Court carved out an exception in 2004 for injured workers who can show intentional or deliberate acts their employer knew would almost certainly result in serious injury or death.
The city argues that was not the case in the acts leading up to Gabaldon’s injuries, which led him to be treated at a hospital emergency room, spend weeks virtually immobilized, then devote months to physical therapy for deep tears in his calf muscle.
The city also says the Supreme Court’s 2004 opinion recognized that workers such as firefighters and police may incur injuries because they do work that “require being in situations which may be dangerous and unpredictable.”
The deployment of the dog was done with “just cause,” Deputy City Attorney Kathryn Levy said in written briefs.
Gabaldon’s lawyers, Brad Hall and Sam Bregman, counter that “A police dog bite is not an ‘accident.’ Defendants have deliberately created this risk. ... Law enforcement does not need biting dogs ... and the practice should stop.”
Vanness Bogardus, a former Los Angeles County Sheriff’s Department sheriff’s deputy and canine handler, testified that both the Los Angeles Police Department and the sheriff’s office improved safety and dramatically reduced litigation when they changed their policies and eliminated the “find-and-bite” method of deployment.
Bite night
APD’s use of police dogs has come under scrutiny before.
In 2002, the city lost a federal civil rights lawsuit after a police dog attacked a 16-year-old. The teen was unarmed and hiding from police at a Northeast Heights schoolyard in 1999 when the police officer unleashed the 80-pound Belgian malinois to find her. The dog clamped down on the teen’s right leg, causing injuries that resulted in three surgeries.
In the Gabaldon case, “Doc” was unleashed to find a suspect hiding in the vehicle but failed to obey commands and bit Gabaldon.
That should come as no surprise, Gabaldon said, since the intent is for the dog to bite after being unleashed, without a muzzle, and given an order to “find.”
The 1999 West Mesa High School graduate who served with attack forces of the 101st Airborne division in the first days of the Iraq war in 2003, squirmed uncomfortably as he relived the police dog incident in court.
Here is his version of the events:
After the two suspects had been taken into custody, Gabaldon had his gun drawn and attention focused on the passenger side door of the suspect vehicle to make sure no one else was inside.
A canine officer arrived, and Gabaldon heard the dog barking and running. It never went to the truck, however, but instead went to Gabaldon’s police car, nibbled once at his lower leg, then bit hard into his right calf.
When the handler arrived and gave an order, the dog brief ly loosened its grip before taking a second bite that felt as though “it went all the way up into my arm.”
He briefly considered shooting the dog -- and now wishes he had -- but it would have created “a huge officer safety issue.” Besides the puncture wounds, Gabaldon had gashes from where the dog tried to pull him down.
After the handler finally got the dog off him, Gabaldon said he lay on the pavement, bleeding.
In the aftermath, Gabaldon said he spent about seven weeks on disability, unable to walk for a while -- and then only with crutches. He couldn’t get the city to pay for his torn pants, and his 7-months'-pregnant wife got dropped from his insurance, he said.
Cramping and numbness in his leg continued long after he’d been ordered back to work, Gabaldon testified.
Copyright 2010 Albuquerque Journal