New pictures have emerged of Commander biting another White House staffer. This follows a recent new biting episode involving a Secret Service agent.
The Bidens previously suggested that an agent was lying about a bite by Major, the other Biden dog, that required him to seek medical treatment. President Biden effectively called an agent a liar in allegations of being attacked in the White House. Major was eventually sent to the farm and the media, again, did not press the White House on the lack of transparency over the long pattern of dog attacks.
Now the White House is blaming the fact that the president’s security detail have “unfriendly expressions.” That would not wash legally.
Under the common law, the Bidens could claim that Major and Commander were entitled to “one free bite.” They are well beyond that threshold.
The “one free bite rule” is a commonly misunderstood torts doctrine — suggesting that you are not subject to strict liability until after the first time your dog bites someone. In fact, you are subject to strict liability whenever you know or have reason to know of the vicious propensity of your animal. That can be satisfied by conduct such as frequent snapping or aggressive behavior.
However, even with Major, the Bidens failed to protect agents and others. Now they have shown the same failure with Commander.
Indeed, a family with this history of dog attacks (with successive pets) would face a highly skeptical, if not hostile, court in a tort action.
The Biden case is more analogous to the infamous case from San Francisco involving lawyers and dog owners Marjorie Knoller and Robert Noel. They were found both criminally and civilly liable after their two Presa Canario dogs killed apartment neighbor Diane Whipple. Various neighbors had complained about the dogs. The dogs had not bitten anyone but were known to be aggressive. That was sufficient.
In one account involving Commander, an agent had to defend himself from the dog with a chair. That was after prior biting incidents. As many as ten people were either bitten or threatened by the dog.
The latest victim was Dale Haney, 71, who is not part of Biden’s security team and presumably not showing an unfriendly face.
Since the White House is a government facility, the taxpayers could be liable under the Federal Tort Claims Act. Lutz v. United States, 685 F.2d 1178 (9th Cir. 1982). In Lutz, the failure of an airman to control his pets was deemed a violation of the law because the maintenance of the dog was subject to military regulation.
Working dogs are subject to such tort actions when they bite third parties. However, Commander is not a working dog for a federal agency. The D.C. Circuit has held in Nelson v. United States, 838 F.2d 1280 (D.C. Cir. 1988), that pets on federal property “do not run to the benefit of the employer and are linked only incidentally with the employment relationship, they cannot be said to be discharged within the scope of employment.”
Moreover, courts have barred strict liability claims against the U.S. government: “the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of ‘misfeasance or nonfeasance.'” Laird v. Nelms, 406 U.S. 797, 798-99 (1972).
Yet, there could be negligence in this case as federal employees continue to order Secret Service members and staffers to work around a legally vicious dog. The failure to take reasonable precautions can be used for liability. You cannot just continue to feed federal employees to a president’s dog like they are landing at Normandy as a matter of attrition.
Suing a federal employee under state law has long been difficult. In Westfall v. Erwin, 484 U.S. 292 (1988), the Court held that federal officials enjoy absolute immunity from state tort lawsuits for money damages when their conduct was both within the scope of employment and discretionary in nature.
Congress responded to the ruling with the Westfall Act to eliminate the “discretionary” requirement so that there is immunity from state tort lawsuits for money damages if employees are acting within the scope of employment during the alleged incident.
Under the Act, an Attorney General or designee can certify that a federal employee was acting within the scope of employment at the time of the alleged incident and the lawsuit is then removed to federal court and proceeds as an action against the United States under the Federal Tort Claims Act. 28 U.S.C. § 2679(d)(2).
As a result, the taxpayers could find themselves in prolonged litigation over these dog bites. At the same time, they are liable for the medical and other damages for federal employees injured on the job.
As for the Bidens, they are subject to strict liability. However, it is difficult for Secret Service agents to sue a protected family and the Bidens know it. They are the ultimate captive audience. That is not the case for civilians in the White House compound.
They are not required to assume the role of chew toys for presidential pets. The Bidens are well beyond their one free bite. They are now clearly in possession of a vicious animal under the common law and can be held strictly liable as a result.