(CN) – A Texas policeman’s decision not to call off his K-9 as it bit into a surrendering suspect’s calf was not excessive force because the man had a knife within reach, the Fifth Circuit ruled.
Israel Escobar had an argument with his wife and slapped her in a restaurant parking lot the night of Feb. 22, 2014, as recounted in the case record.
He dropped her off in a nearby Walmart parking lot and drove to their home in the Dallas suburb of Grand Prairie. After a few minutes at home, he decided to go pick up his wife, but ran out the back door when he saw a police car out front.
As a police helicopter circled the area searching for Escobar, he ran to the backyard of a nearby home and lay near the porch. The helicopter crew notified police in pursuit on foot that Escobar was lying in a fetal position on the ground.
Escobar’s mother had called the police and told them that they would have to kill him to catch him, and they knew he had a pocket knife, according to Wednesday’s Fifth Circuit ruling.
According to Escobar, he heard a dog round the corner off the house, dropped his knife and lay flat on the ground with his arms out.
Grand Prairie K-9 patrol officer Lance Montee claims in court filings and testimony that he decided not to yell out a warning to Escobar, as he customarily did for other holed-up suspects, that he was releasing his K-9 Bullet and threw the dog over the fence before climbing over into the yard.
Montee claims that he saw Escobar standing with the knife. Escobar maintains he was lying flat on the ground.
Bullet bit into Escobar’s lower calf for about 30 seconds, let go for an instant and chomped into his upper calf for another 30 seconds, ripping off chunks of flesh as Escobar screamed for police to get the dog off him.
Bullet was then called off. With Escobar’s calf gushing blood, police wrapped a tourniquet around it and called an ambulance.
Escobar sued Montee in Dallas federal court in June 2015, asserting Fourth Amendment claims that Montee had used excessive force by having Bullet attack him without warning, and not calling the dog off after he had surrendered.
U.S. District Judge Sidney Fitzwater dismissed Escobar’s lack-of-warning claim, but refused to dismiss his claim that Montee had improperly delayed pulling Bullet off after it was clear Escobar had given up his weapon and was not resisting arrest.
Montee appealed to the Fifth Circuit, arguing that qualified immunity shields him from liability. Police can use that defense when judges decide their actions did not blatantly violate a suspect’s constitutional rights.
Emphasizing the fact that Escobar’s mother had warned police that he would not go down without a fight, and that they would “have to kill him,” a unanimous three-judge panel of the New Orleans-based appellate court sided with Montee on Wednesday, reversed Fitzwater’s order and remanded the case.
U.S. Circuit Judge Jerry E. Smith, a Ronald Reagan appointee, wrote that even accepting Escobar’s claim that he had surrendered and tossed the knife before Bullet pounced on him, Montee’s actions were not unreasonable.
Smith wrote that although Escobar was screaming for the officers to get Bullet off him, the knife was still within his reach and Montee could have justifiably believed that Escobar would still attack police with the knife.
“The chase was at night; Escobar had hidden from the police for twenty minutes in a neighbor’s backyard; the chase, along with the warnings from Escobar’s mother, would lead a reasonable officer to believe that, as he had apparently promised, Escobar would not go without a fight; and the knife remained within Escobar’s reach, ready to be used,” Smith wrote in a 12-page order.
“In the face of such facts, a reasonable officer could believe that Escobar’s ‘surrender’ was a ploy and that he was ready to snatch the knife again once the dog was removed,” Smith added.
According to Escobar’s lawsuit, hospital staff documented that Bullet bit a 4-inch chunk of flesh from his left calf through which bones, tendons and muscles were visible and he could not move the toes on his left foot.
After a brief stay in the hospital, Grand Prairie police took him to the city jail for three days before moving him to a county jail.
A nurse gave him a physical for his booking into county jail and, seeing that his wound was infected, immediately called a doctor.
“Plaintiff underwent three operations just for cleaning out his wound. Plaintiff underwent a fourth operation for collagen injections and a skin graft. Plaintiff’s second hospital stay was more than ten days,” Escobar’s lawsuit states.
Escobar pleaded guilty to assaulting a family member and was sentenced to prison.
His attorney Geoff Henley, with the Dallas firm Henley & Henley, said he is considering appealing to the U.S. Supreme Court because “there appears to be a split in the circuit.” He said the case illustrates the “tremendous deference” courts give to law enforcement in excessive force cases.
Montee’s attorney, Jim Jeffrey, whose office is in Arlington, praised the panel’s approach to the question of qualified immunity.
“In my experience, in a case involving the qualified immunity defense, the courts often do not focus on the difficult issue of whether the constitutional standards were met, but instead the courts focus on the less difficult issue of whether the constitutional rights in question were clearly established. Here the Fifth Circuit Court’s ruling focused on the more difficult issue of the controlling Fourth Amendment standards, and correctly recognized that Officer Montee’s use of the K-9 to seize and hold Escobar was reasonable under Fourth Amendment standards,” he said.