Once again, President Biden’s two-year-old German Shepherd Commander has reportedly bitten someone, this time a Secret Service Uniformed Division police officer who was working at the White House. This week’s biting incident marks Commander’s 11th just this year.
U.S. law holds dog owners liable for biting, and a few states, including California, sometimes force euthanasia on canine repeat offenders. Could Commander’s owner, the President of the United States, be sued? Could Commander—should Commander—be euthanized?
I’m not ashamed to admit that I’ve actually handled a couple dog bite cases, though dog bite law is usually associated with ambulance chasing (dog bite cases can be pretty profitable). So here’s my take on Commander:
If Joe and Jill Biden were regular citizens and their dog bit someone and the victim sued, their homeowners’ policy would normally assign an adjuster, hire a lawyer for them, defend the case, and in all likelihood, settle it before trial.
But Joe and Jill Biden are not regular citizens. They are the President and the First Lady. The former is the head of the executive branch of the federal government. And when someone sues a federal employee for something that happens on the job, the employee is usually completely immune from personal liability under a federal law called the “Westfall Act.” Now, in order to claim this immunity, the employee must first prove that he is a government official covered by the Westfall Act and then prove that the lawsuit is based on conduct within the scope of his employment.
As for the first prong, the federal courts recently concluded that a president is a federal employee under the Westfall Act—specifically, when Donald Trump sought to invoke the Act against E. Jean Carroll‘s lawsuit against him for defamation. The second prong of the test is tougher. If owning a dog is within the “outer perimeter of the president’s official responsibility,” then he is absolutely immune from lawsuits.
For other federal employees, owning a dog likely has nothing to do with their job duties. But a president might be different. According to the White House, historically, presidential dogs have “humaniz[ed] the president’s political image.” Sometimes a dog is a piece of international diplomacy. Soviet Premier Nikita Khrushchev gave First Lady Jacqueline Kennedy a dog named Pushinka. At times, the presidential dog has even performed official functions. President Warren Harding’s dog Laddie “greeted official delegations and hosted the 1923 White House Easter Egg Roll when the Hardings were away.”
So the question of whether Biden can be sued for Commander’s biting depends on what Commander’s “job” is—on whether owning Commander is within the President’s official responsibility.
If dog ownership is within the outer boundaries of official presidential business, then the Westfall Act would substitute the United States for the employee—President Biden—as the sole defendant, and the case would be governed by the Federal Tort Claims Act (FTCA). The FTCA waives the government’s sovereign immunity, and allows lawsuits against the United States. But it also places a lot of obstacles in the way of those who would sue.
Believe it or not, there is precedent here: People have sued the United States for being bitten by government dogs before. There was an incident in 2020 at a Secret Service security checkpoint at President Trump’s Trump Tower. While sniffing a truck to detect explosives, a military dog named Rosso bit a tourist riding a rental bike past the checkpoint. The tourist sued. She lost, because the FTCA barred her case.
What a difference the FTCA makes. Dog bite cases are usually easy to win, especially in jurisdictions that hold the owner automatically liable, like the District of Columbia, for example. But dog bite cases against the United States are hard to win because of the FTCA.
In one D.C. case, a parent sued the TSA for negligently training a dog that allegedly bit her child. The court held that training a dog was a “discretionary function,” and therefore the TSA was immune under the FTCA.
In D.C., when a civilian dog bites a person, the owner is liable even if the dog had never bitten anyone before. But Commander, who is reportedly on his 11th bite, apparently is free to keep hunting D.C. residents. President Biden and the United States are likely immune from civil liability.
Still, there may be justice to be had for Commander’s victims, albeit a very “eye for an eye” version. In D.C., the Mayor is responsible for investigating and ultimately determining whether a dog is dangerous. D.C. law expressly authorizes the Mayor to “humanely destroy a dog if… the dog [will] be a threat to public safety if it is returned to the owner.”
When it comes to Commander, Mayor Muriel Bowser could be his judge, jury, and executioner. Will Commander’s alleged 11 bites warrant opening an investigation? Will Bowser deem Commander guilty of threatening public safety and sentence him to “Capitol” punishment? And if so, will that lead to a standoff between D.C. Police and Commander’s Secret Service detail?
It’s a constitutional crisis waiting to happen.
Danny Cevallos is an NBC News and MSNBC Legal Analyst and a criminal defense attorney.
The views expressed in this article are the writer’s own.