COLUMBUS, Ohio (WMCH) – A backyard barbeque hosted by a Belmont County sheriff’s deputy in the summer of 2019 quickly took a turn, requiring medical intervention and even a weigh-in from the Ohio Supreme Court.
The state’s highest court on Wednesday heard oral arguments in a negligence lawsuit filed against K-9 officer Dustin Hilderbrand, whose police dog Xyrem – hours after being showcased for his narcotics-sniffing abilities – bit a woman’s chest during a cookout at Hilderbrand’s home in Jefferson County. The injured woman, Allison Harris, underwent breast surgery as a result and later took the K-9 officer, in his personal capacity, to court.
“He got drugs out of his police cruiser, hid them around the yard and had this dog go looking for them – basically turning his backyard during this barbeque into a crime scene,” Harris’ attorney James Bordas told the Court.
Hilderbrand, however, staked an immunity claim. As a government official required by the Belmont County Sheriff’s Office to board Xyrem in his home, Hilderbrand and his attorney said he’s not liable for the dog’s actions.
“Dogs, we know, bite people,” said Hilderbrand’s attorney Matthew Mullen. “We know they tear things up, defecate places they shouldn’t, and the officer is immune from those activities, unless he’s within an exception because he’s required to house the dog there.”
Under Ohio law, government employees like Hilderbrand are immune from civil lawsuits while on duty. Immunity doesn’t apply, however, if an employee was clearly acting “outside the scope” of the job.
An appeals court ruled in Hilderbrand’s favor, finding that his care for Xyrem was a required part of his employment as a K-9 officer, according to court filings. When looking after Xyrem, he argued he is always “on the clock” – and thus immune from the lawsuit.
Harris, however, argued that Hilderbrand’s immunity ended when he put the dog on high alert, issuing commands and hiding drugs in his backyard for Xyrem to find.
“If they were playing hot potato with a gun and it struck someone, should an officer be immune from that?” Justice Melody Stewart asked during oral arguments. “We’re public employees, so are we immune 24 hours a day, 7 days a week, regardless of what we do?”
Mullen said there’s no evidence that Hilderbrand’s actions during the backyard barbeque made Xyrem more likely to bite Harris. “You still have to have proximate cause,” he said.
Submitting arguments in favor of Hilderbrand include the Fraternal Order of Police of Ohio, the Buckeye Sheriff’s Association and the Ohio Association of Civil Trial Attorneys. Harris earned support from the Ohio Association for Justice.
The Court typically takes between four and six months to issue an opinion after oral argument.