(Reprinted from Point of View with the permission of the Alameda County Attorney’s Office.)
A K9 unit is used for the purpose of searching and locating suspects or evidence such as drugs or explosives. But what are the boundaries in using a trained K9 for the use of apprehending a fleeing suspect? In following case of Cruz v. City of Escondido, the court ruled on the use of deadly force in reference to a police dog.
Issue
What constitutes “deadly force” as the term is used in federal civil rights actions against officers?
Facts
Employees of a Del Taco restaurant in Escondido called police and reported that a man in the restaurant was causing a disturbance. The first to arrive on the scene were K-9 Officer Eric Distel and his police dog. As Distel pulled up, he spotted Cruz in the rear doorway of the restaurant throwing objects out of the building. (22) When the officer identified himself, Cruz started walking away. Distel told him to stop “or he would release the dog”. Cruz started running. The officer repeated the warning but Cruz continued to run.
The officer then released the dog who caught up with Cruz, grabbed his right arm, and took him to the ground. Officer Distel then removed a knife that was strapped to Cruz’s hip and ordered the dog to release him. The dog complied immediately. As the result of the dog’s actions, Cruz sustained a large laceration and several puncture wounds on his upper right arm. The injuries required surgery, and Cruz was hospitalized for eight days.
Cruz sued the officer, the City of Escondido and others in a federal civil rights action in which he claimed, (1) the use of the police dog to apprehend a fleeing suspect constitutes “deadly force”, and (2) the use of deadly force under the circumstances was unreasonable and, therefore, unconstitutional. At the conclusion of the trial, the court refused Cruz’s request to instruct the jury that “deadly force” includes force that is known to create a “substantial risk” of causing death or serious bodily injury. The jury ruled in favor of the officer and the other defendants. Cruz appealed.
Discussion
In Tennesee v. Garner (23), the United States Supreme Court ruled that, as a matter of constitutional law, an officer may use deadly force to prevent the escape of a suspect only if the officer has probable cause to believe the suspect poses a threat of serious physical harm, either to the officer or others. The Court did not, however, define “deadly force”. Thus, the issue in Cruz was whether the release of a police dog to apprehend a fleeing suspect constitutes “deadly force.”
Cruz argued it was, claiming that “deadly force” should be defined as force that is known to create a substantial risk of causing death or serious bodily injury. The court disagreed, ruling that “deadly force” means force that is reasonably likely to cause death. Said the court, “In judging whether force is deadly, we do not consider the result in a particular case—be it that the suspect was killed or injured—but whether the force used had a reasonable probability of causing death.” The court went on to say that, assuming a properly trained police dog could kill a suspect under highly unusual circumstances, the “prospect of such an aberration doesn’t convert otherwise non-deadly force into deadly force.” Accordingly, the jury’s verdict against Cruz was affirmed.
(22) The court noted that Cruz was apparently drunk and that he had a knife strapped to his hip, but the court does not say whether the officer was aware of these facts at the time he told Cruz to stop.
(23) (1985) 471 US 1,11.
(9th Cir.1997) F.3d
(Reprinted from Point of View with the permission of the Alameda County Attorney’s Office.)
A K9 unit is used for the purpose of searching and locating suspects or evidence such as drugs or explosives. But what are the boundaries in using a trained K9 for the use of apprehending a fleeing suspect? In following case of Cruz v. City of Escondido, the court ruled on the use of deadly force in reference to a police dog.
Issue
What constitutes “deadly force” as the term is used in federal civil rights actions against officers?
Facts
Employees of a Del Taco restaurant in Escondido called police and reported that a man in the restaurant was causing a disturbance. The first to arrive on the scene were K-9 Officer Eric Distel and his police dog. As Distel pulled up, he spotted Cruz in the rear doorway of the restaurant throwing objects out of the building. (22) When the officer identified himself, Cruz started walking away. Distel told him to stop “or he would release the dog”. Cruz started running. The officer repeated the warning but Cruz continued to run.
The officer then released the dog who caught up with Cruz, grabbed his right arm, and took him to the ground. Officer Distel then removed a knife that was strapped to Cruz’s hip and ordered the dog to release him. The dog complied immediately. As the result of the dog’s actions, Cruz sustained a large laceration and several puncture wounds on his upper right arm. The injuries required surgery, and Cruz was hospitalized for eight days.
Cruz sued the officer, the City of Escondido and others in a federal civil rights action in which he claimed, (1) the use of the police dog to apprehend a fleeing suspect constitutes “deadly force”, and (2) the use of deadly force under the circumstances was unreasonable and, therefore, unconstitutional. At the conclusion of the trial, the court refused Cruz’s request to instruct the jury that “deadly force” includes force that is known to create a “substantial risk” of causing death or serious bodily injury. The jury ruled in favor of the officer and the other defendants. Cruz appealed.
Discussion
In Tennesee v. Garner (23), the United States Supreme Court ruled that, as a matter of constitutional law, an officer may use deadly force to prevent the escape of a suspect only if the officer has probable cause to believe the suspect poses a threat of serious physical harm, either to the officer or others. The Court did not, however, define “deadly force”. Thus, the issue in Cruz was whether the release of a police dog to apprehend a fleeing suspect constitutes “deadly force.”
Cruz argued it was, claiming that “deadly force” should be defined as force that is known to create a substantial risk of causing death or serious bodily injury. The court disagreed, ruling that “deadly force” means force that is reasonably likely to cause death. Said the court, “In judging whether force is deadly, we do not consider the result in a particular case—be it that the suspect was killed or injured—but whether the force used had a reasonable probability of causing death.” The court went on to say that, assuming a properly trained police dog could kill a suspect under highly unusual circumstances, the “prospect of such an aberration doesn’t convert otherwise non-deadly force into deadly force.” Accordingly, the jury’s verdict against Cruz was affirmed.
(22) The court noted that Cruz was apparently drunk and that he had a knife strapped to his hip, but the court does not say whether the officer was aware of these facts at the time he told Cruz to stop.
(23) (1985) 471 US 1,11.
(9th Cir.1997) F.3d