Page 36 - TPA Journal November-December 2018
P. 36
himself. Escobar assaulted his wife in a restaurant Bullet and took Escobar away; he eventually
parking lot, and then left her alone in a nearby pleaded guilty of third-degree family assault.
retail lot. After noticing police vehicles at his
house, he fled into the night. He ran through Escobar sued Montee under § 1983, alleging that
several neighbors’ yards, finally hiding in the Montee violated his Fourth Amendment right to
backyard of a house a few blocks from his own. be free from excessive force by (1) having Bullet
He remained there, crouched under an awning initially bite him without warning and (2)
near the backdoor, for about twenty minutes while permitting Bullet to continue biting after he
the police searched for him, both on foot and in a surrendered and was not resisting.
helicopter. They eventually located Escobar, and
the helicopter circled the house while the police Escobar alleges his Fourth Amendment right was
decided on a course of action. violated because he was subject to excessive force
when arrested. Such excessive force claims “in the
While the helicopter monitored Escobar, the context of arrests” are analyzed under the Fourth
police were informed that he had a knife. Amendment’s “objective reasonableness
Furthermore, they were told that Escobar’s mother standard.” Because “police officers are often
had called and said the police would have to kill forced to make split-second judgments . . . in
Escobar to catch him; he would not go without a circumstances that are tense, uncertain, and
fight. Based on those facts, Montee—the K-9 rapidly evolving,” we must not use “the 20/20
officer in charge of the police dog “Bullet”— vision of hindsight.” Graham, 490 U.S. at 396–97.
decided not to give his usual warning to the Instead, we look at the case from the perspective
suspect that he would deploy the canine. Instead, of a reasonable officer on the scene, paying
he threw Bullet over the fence surrounding the “careful attention to the facts and circumstances of
backyard and only then scaled the fence himself. each particular case.” Id. at 396. When viewing
Montee followed Bullet alongside the house into “the totality of the circumstances,” we pay
the backyard, where he claims he saw Escobar particular attention to the Graham factors, i.e. “the
standing with the knife. Escobar disagrees; severity of the crime at issue, whether the suspect
according to him, once he heard the dog and poses an immediate threat to the safety of the
officers approaching, he dropped his knife and lay officers or others, and whether he is actively
flat on the ground “like a parachute man.” Either resisting arrest or attempting to evade arrest by
way, Escobar was then bitten by Bullet and wound flight.”
up lying flat on the ground. Montee agrees that
Escobar then dropped the knife but maintains that Because we construe any disputed facts in
the knife remained within Escobar’s reach—a fact Escobar’s favor, we begin by laying out the facts
Escobar never disputes. as properly viewed: Escobar had dropped the
knife and lay flat on the ground “like a parachute
Escobar claims he remained on the ground in an man” just before being bitten; Escobar did not
attempt to convey his surrender. But Montee, struggle and begged for the dog to be removed;
believing Escobar still posed a threat because of and the bites lasted for about one minute. But the
the knife and warnings by Escobar’s mother, following facts are undisputed: The knife
allowed Bullet to continue biting Escobar until remained within Escobar’s reach; Montee knew
Escobar was fully subdued and in handcuffs. All about the knife and saw that it was within
in all, Escobar was bitten for approximately one Escobar’s reach; Escobar’s mother had called and
minute. Once he was cuffed, the officers removed told the police that Escobar would have to be
Nov./Dec. 2018 www.texaspoliceassociation.com • 866-997-8282 31
