A second case, Robinette v. Barnes, involving a canine bite and hold which led to a death is also instructive.i The court outlined the facts of the case as follows:
“Shortly after midnight on July 10, 1984, the ‘K-9’ team of Barnes and Casey was summoned to the Superb Motors car dealership in Nashville, Tennessee. A burglar alarm inside the building had been activated. According to the district court, by the time Barnes arrived at the dealership, ‘officers already on the scene had located a point of entry, a broken glass door, and had seen a suspect inside the building looking out at them.’ Barnes and another officer stated in depositions that while they were outside the building, they saw a white male inside of it.
Barnes and Casey entered the building and stood in a small entry room. Barnes shouted a warning that he had a police dog and that anyone inside the building should come out or he would turn the dog loose. Approximately thirty seconds later, Barnes repeated the warning. After another thirty seconds passed, Barnes released Casey. The dog ran to a closed door at one end of the room. Barnes opened the door for the dog. According to his deposition, ‘the dog took a few steps out there and I shouted again, You’d better come out. Then the dog turned around and came back to me. . . .’
As soon as Casey returned, Barnes gave the command, ‘Find him.’ Barnes and the dog then began to search the building. The dog ran ahead of Barnes while the officer checked some closed doors that Casey bypassed. Eventually, Barnes followed Casey into a darkened bay area of the car dealership. His flashlight revealed that Casey had the suspect’s neck in his mouth. The man was lying face down on the floor with half of his body underneath a car. He did not move. A substantial amount of blood had collected around him and more was oozing from his neck.
Barnes ordered Casey to come to him, leashed the dog and then called for an ambulance. The suspect, Daniel Briggs, was pronounced dead on arrival.”ii An action was brought against the officers alleging that the use of the canine was deadly force and should be judged against deadly force standards.
In its review of the case the court outlined how a particular use of force that results in death should be analyzed. The court asserted:
“Thus, whether deadly force has been used to seize a criminal suspect must be determined in the context of each case. The Model Penal Code drafted by the American Law Institute acknowledges this fact by proposing the following definition: ‘deadly force’ means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force. Model Penal Code § 3.11(2) (Proposed Official Draft 1962). We find this definition a useful statement of the two factors most relevant to the determination of whether the use of a particular law enforcement tool constitutes deadly force: the intent of the officer to inflict death or serious bodily harm, and the probability, known to the officer but regardless of the officer’s intent, that the law enforcement tool, when employed to facilitate an arrest, creates a ‘substantial risk of causing death or serious bodily harm.’”iii
While numerous court decisions make reference to the model penal code for defining deadly force it must be noted that the Model Penal Code provides a definition to be used in criminal cases that includes the officer’s intent in using the particular force. The standard adopted for Fourth Amendment purposes, while having its foundation in the Model Penal Code, does not include the subject intent portion of the definition. This was pointed out by the United States Court of Appeals for the 9th Circuit in Smith v. City of Hemet,iv in adopting the “universal” definition of deadly force for Fourth Amendment purposes asserted:
“However, the definition of deadly force used in the other circuits in § 1983 cases, while frequently labeled the Model Penal Code definition, is designed for use in implementing the Fourth Amendment and necessarily differs in one minor respect from the Model Penal Code’s definition. For Fourth Amendment purposes, the objective part of the test must be employed. See Graham, 490 U.S. at 397. In short, courts do not use the subjective alternative when they apply the “deadly force” test in § 1983 cases. We simply look to the objective part of the test: whether the force employed ‘creates a substantial risk of causing death or serious bodily injury.’ That the definition courts describe varies to this extent from the full Model Penal Code version is no reason for us not to employ a test that is now universally accepted throughout the country.”v
A similar conclusion was reached recently in Thomson v. Salt Lake County.vi The United States Court of Appeals outlined the facts of the case as follows:
“At approximately 2:00 a.m. on April 19, 2004, while out for an evening of drinking, Chad Thomson, called his wife, Amy Thomson. She was at a friend’s apartment. During the course of this telephone call, Mr. Thomson became angry and threatened to act violently. He told Ms. Thomson to meet him at their residence. Ms. Thomson telephoned her mother, who was at that residence, and told her about this conversation. Ms. Thomson’s mother then called 911. When Ms. Thomson arrived at the residence with her friend, she went to check on the firearms that the couple kept in their basement. She unexpectedly saw Mr. Thomson there; he pointed a gun at her. Ms. Thomson fled upstairs, and her friend made another call to 911, during which her friend told the 911 dispatcher about the gun-pointing incident and also told the dispatcher that Mr. Thomson had been talking about suicide. Mr. Thomson left the home sometime thereafter.
Salt Lake County Sheriff’s deputies John Shire, Walter Jarvis, and Alan Morrical arrived at the Thomsons’ home in response to the second 911 call. They learned that Mr. Thomson had threatened Ms. Thomson with a weapon, was likely armed and potentially suicidal, and had left his truck parked on a nearby street. Believing Mr. Thomson to be nearby, the officers–aided by Chaos, Deputy Morrical’s police dog–searched the Thomson residence and yard, but they did not find Mr. Thomson. They did, however, confirm that a firearm was missing from the Thomson residence.
The officers then began a yard-by-yard search. While the officers were searching the darkened neighborhood, Ms. Thomson’s friend, who had previously spoken to Mr. Thomson, was able to reach Mr. Thomson on her cellular telephone from her car parked outside the Thomson residence. She handed the telephone to Lieutenant Michael Wardle of the Salt Lake County Sheriff’s Office, who identified himself and began to speak to Mr. Thomson. After Lieutenant Wardle told Mr. Thomson that he did not want to see anyone get hurt, Mr. Thomson told Lieutenant Wardle that if he did not want his officers to get hurt, he should have them leave the area. Lieutenant Wardle could hear a dog barking in the background of the call, so he radioed the officers to tell them that they must be close to Mr. Thomson’s location, told them that Mr. Thomson wanted them to back off, and warned them to be careful.
Having received this information from Lieutenant Wardle, Deputy Morrical released Chaos into the third yard they searched in an attempt to locate Mr. Thomson. Chaos did not return when Deputy Morrical called for him, but the officers could hear noises coming from the yard. The officers, however, could not initially determine the source of the noise, possibly because it was raining heavily that night. The officers later determined that the source of the noise was Mr. Thomson.
As the three officers approached, they could hear Mr. Thomson yelling for them to call off the dog and threatening to shoot, although it was unclear if Mr. Thomson was threatening them or Chaos. The officers advanced and fanned out into the yard; Deputies Shire and Morrical could see Mr. Thomson holding a rifle and standing behind an object in the yard, but Deputy Jarvis could not see Mr. Thomson from where he was positioned. The officers ordered Mr. Thomson to put the gun down and come out with his hands up, stating they would then call off the dog. When Mr. Thomson did not follow the officers’ instructions, they repeated their warning.
The exact sequence of events that transpired next is unclear. Deputy Morrical has stated that he saw Mr. Thomson place the barrel of his gun into his own mouth briefly, then take it out and move the barrel quickly toward Deputy Morrical. Deputy Shire, however, did not see Mr. Thomson put the barrel into his mouth but did see the gun first being pointed at Chaos–who was biting Mr. Thomson–and then the barrel being raised in Deputy Shire’s direction. Deputy Shire thus prepared to fire his own weapon by depressing the trigger of his gun slightly. It is undisputed that Mr. Thomson was moving the gun very quickly and although the officers repeatedly ordered Mr. Thomson to drop his weapon, he refused to do so. The facts taken in the light most favorable to Plaintiffs indicate that at one point, Mr. Thomson had the gun in his mouth, and that immediately before he was shot, the gun was pointed upwards, near and toward Mr. Thomson’s head.
CITATIONS: (PAGE 8)
i Robinette v.Barnes, 854 F.2d 909 (6th Cir. 1988).
ivSmith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc).
vi Thomson v. Salt Lake County, 2009 U.S. App. LEXIS 23677 (10th Cir. 2009) decided October 27, 2009.
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