PHOENIX 鈥 An appellate court has upheld a jury鈥檚 conclusion that a Pima County sheriff鈥檚 deputy was negligent in releasing his service dog, which bit and permanently disfigured a Tucson man after a traffic stop.
In a divided ruling Wednesday by the Arizona Court of Appeals, the majority judges acknowledged that Brian McDonald nearly drove his vehicle into a sheriff鈥檚 patrol car, had led deputies on a chase, and even continued to drive away despite three of his tires being punctured. They also said he did not appear to respond to commands.
McDonald died in August in Virginia, said his attorney, Amy Hernandez. It鈥檚 unclear if his injuries played a role in his death, as Hernandez has not yet received a death certificate and isn鈥檛 aware of an autopsy having occurred.
But appellate Judge Peter Eckerstrom said there was enough evidence to allow a jury to conclude that Deputy Joseph Klein, who arrived on the scene later, was negligent in releasing his dog, who bit McDonald鈥檚 leg and dragged him around the ground. The record shows the dog held on for 38 seconds, causing serious injuries and permanent disfigurement.
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鈥淭here were no bulges in (McDonald鈥檚) clothing to suggest that he might have had a gun,鈥 Eckerstrom wrote. And he said while it was later determined McDonald had a gun in an ankle holster, he never reached for it at any point.
Eckerstrom also noted that a subsequent investigation after the 2013 incident revealed that McDonald had Type 1 diabetes and at the time of the incident his blood sugar level had been 鈥渄angerously low.鈥
But appellate Judge Philip Espinosa, in his dissent, said Arizona law clearly allows the use of force to subdue someone who is committing or had committed a crime. He said the evidence is clear that McDonald鈥檚 actions constituted felony flight from law enforcement.
Nor was Espinosa swayed by what he called the 鈥渁fter-the-fact evidence鈥 that McDonald鈥檚 diabetic impairment may have affected his judgment and intent.
鈥淪uch evidence is irrelevant to what had already transpired at the time Deputy Klein utilized the police dog to subdue him,鈥漷he judge wrote.
Wednesday鈥檚 ruling, unless overturned, upholds not just the jury鈥檚 conclusion that Klein was negligent but also a $650,000 verdict for damages. McDonald actually was awarded less than that after jurors concluded he was 5 percent responsible for his own injuries.
There was no immediate comment from the Sheriff鈥檚 Department, which had appealed the trial court鈥檚 verdict.
