McClellan v. Nanos (Arizona Court of Appeals, Div. 2, Jan. 7, 2025)
Fact: Yes, this is me cited in this case
On March 2, 2020, deputies went to McClellan’s apartment to return a set of keys. One deputy (Maldonado) was handling a K-9, and another was in plainclothes, knocking on the door.
McClellan opened her door. Her own dog ran out, attacking or pursuing the police dog by trying to bite it. A dogfight ensued.
Maldonado fell to the ground while trying to push the attacking dog away from his dog, K9 Jake.
McClellan then ran out of the apartment, leaned or lunged over or between the deputy/handler and the two dogs, inserting her torso into the dogfight.
McClellan was subsequently bitten on the arm by Jake.
Maldonado then removed Jake from the bite.
McClellan sustained injuries from the bite.
Legal Issues & Arguments
Provocation Defense under § 11-1027: Under Arizona law (A.R.S. § 11-1027), a governmental agency using a police dog is immune from liability if the injury is caused when the dog is defending itself from a provoking act. The statute provides that a dog bite, defended against provocation, is a valid defense, even if the dog is engaged in police activity.
Whether the provocation defense is available when the dog is performing law enforcement duties: McClellan argued that the defense should not apply to a police dog actively involved in law enforcement (i.e., the dog was acting as an agent when it bit her). She contended that the defense should be limited to non-police dogs.
Whether there was sufficient evidence of provocation by McClellan: McClellan asserted that there was no evidence she provoked the attack—i.e., she was merely attempting to retrieve her dog and did not act in a way that would reasonably provoke the police dog. She challenged the notion that leaning or intervening should qualify as provocation.
Holding & Reasoning
The Court of Appeals affirmed the denial of a directed verdict and held that the provocation defense was properly submitted to the jury.
The court reasoned:
Under § 11-1027, the provocation defense is available even when a police dog is used for law enforcement tasks. The statute does not exclude police dogs or require that the dog be actively apprehending a suspect.
The court observed that provocation under the statute does not require it to be intentional. Instead, the test is whether a reasonable person would expect the conduct or circumstances to provoke the dog.
Because there was conflicting evidence about how events unfolded (e.g., McClellan’s leaning, intervening amid a dogfight), the question of provocation was for the jury, not to be resolved as a matter of law.
Thus, the court found that judgment as a matter of law was inappropriate; reasonable persons could disagree about whether McClellan’s actions provoked the dog.
Significance & Takeaways
Scope of provocation defense in police dog cases: The decision confirms that in Arizona, the provocation defense can apply even when the dog is acting in law enforcement capacity (I.e., defending itself in a K-9 deployment).
Intent not required: The court’s reading emphasizes that provocation need not be intentional. What matters is whether the conduct is of a kind that a reasonable person would foresee could provoke a dog.
Factual issues for the jury: The case underscores that in dog-bite cases involving police dogs, factual disputes about positioning, intervening acts by bystanders/owners, and whether the behavior was provocative will often preclude summary or directed judgment in favor of the government.
Because this is an unpublished decision, it is not binding precedent in Arizona, but it may carry persuasive value in similar K-9/police dog-bite litigation.
