McDonald v. Napier, 776 Ariz. Adv. Rep. 7 (App. Div. II, October 18, 2017) (J. Eckerstrom)

NEGLIGENCE IN DECISION MAKING TO ULTIMATELY INTENTIONALLY RELEASE A POLICE DOG RESULTING IN INJURY TO PLAINTIFF DOES NOT REQUIRE THE CLAIM BE BROUGHT AS AN INTENTIONAL TORT OF BATTERY AND THE DEFENSE OF JUSTIFICATION ONLY APPLIES TO INTENTIONAL ACTS AND NOT A NEGLIGENCE CLAIM/DISCUSSION OF A SUPREME COURT HOLDING BY WITNESSES AT TRIAL APPROPRIATE WHERE HOLDING IS PART OF DEFENDANT'S TRAINING AND EDUCATES JURY AS TO WHAT TO EXPECT WHEN OFFICERS USE FORCE AND EXCEPTION TO DOG BITE STATUTE FOR POLICE DOGS DOES NOT APPLY TO NEGLIGENT USE OF EXCESSIVE FORCE CLAIM NOT BASED UPON THAT STATUTE

Plaintiff suffered Type I Diabetes. His blood sugar was dangerously low. He nearly ran into a Pima County Sheriff squad car while driving in the opposing lane  of traffic. The deputy began pursuit. Seven other squad cars joined. Nail carpet was used unsuccessfully. After a long chase with a stop and start plaintiff finally pulled over. He got out of car and walked towards several deputies. He was told not to walk any further or a police dog would be released to bite him. He continued to walk, around the back of his car and put his hands on the roof of his car when the police dog was released. It bit him, drug him and caused serious and permanent injury. Thereafter the police found glucose tabs in plaintiff's socks and an ankle holster with a handgun around plaintiff's ankle. The police did not know of the handgun before releasing the dog.

Defendant Pima County moved for summary judgment claiming the proper claim was battery not negligence, that the release of the dog was intentional, not negligent and that A.R.S. §11-1025 barred the action. The trial court denied the motion. Defendant also moved in limine to preclude testimony concerning the case of Graham v. Connor, 490 U.S. 386 (1989).  A jury returned a verdict of $650,000 apportioning 95% of fault against the defendant.  The Arizona Court of Appeals affirmed.

As to the claim the facts of the case only supported a battery claim and summary judgment should have been granted on the plaintiff's negligence claim the court found the plaintiff is always at liberty to choose his or her theory of liability based upon those facts plaintiff deems supportive of that claim. Here the plaintiff sued not for the intentional  release  of the dog but rather the negligent decisionmaking that led up to the decision to release the dog. This was an appropriate application of a negligent use of excessive force claim.

The defendant next argued that the court improperly put the burden of proof for the defense of justification on the defendant.  Under A.R.S.§§13-409 and 13-413 the use or threat of physical force is permitted where the actor is in the process of arresting or detaining someone where he or she reasonably believes the force is necessary to arrest or detain, makes known the purpose of the arrest and a reasonable person would conclude the arrest or detention lawful.  This defense, is only available to protect the intentional use of force and not as a defense to the decision making preceding the use of that force. Here the trial court erred by giving a justification defense at all regardless of who had the burden to prove or disprove it. However, since the instruction inured to the defendant's benefit the error was harmless.

Next, defendant argued that it was improper for plaintiff's expert to testify as to the United States Supreme Court holding in Graham on the basis it was irrelevant, and if relevant the prejudicial value outweighed the probative value.  The instant case being a state negligence case and not a federal section 1983 case, as in Graham, not only made it irrelevant but usurped the court's province of instructing the jury.  The court of appeals disagreed on the basis K-9 officers were trained based upon the holding in Graham, discussion of the holding served to educate the jury as to what is expected of police officers who use force and the jury was not instructed on the holding but rather received a state law negligence instruction.

Graham  holds analysis of the reasonableness of the force used
to effect a Fourth Amendment seizure is fact specific
and requires attention to (1) "the severity of the crime
at issue," (2) "whether the suspect poses an immediate
threat to the safety of the officers or others," and (3)
"whether he is actively resisting arrest or attempting
to evade arrest by flight."

Finally defendant argued that its motion for judgment as a matter of law should have been granted based upon A.R.S. §11-1025. This statute modified the common law in Arizona rendering the owner of a dog strictly liable should the owner's dog bite someone regardless of whether or not the owner knew of a propensity to bite.  However, this statute also expressly provides the strict liability statute does not apply to police dogs who bite in the line of duty. Since plaintiff did not bring his claim under this statute but instead alleged only a common law negligent use of force theory, the statute and its exception for police dogs was not applicable.