PHOENIX — An appellate court has upheld a jury’s conclusion that a Pima County sheriff’s 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’s 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’s unclear if his injuries played a role in his death, as Hernandez has not yet received a death certificate and isn’t 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’s leg and dragged him around the ground. The record shows the dog held on for 38 seconds, causing serious injuries and permanent disfigurement.
“There were no bulges in (McDonald’s) clothing to suggest that he might have had a gun,” 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 “dangerously low.”
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’s actions constituted felony flight from law enforcement.
Nor was Espinosa swayed by what he called the “after-the-fact evidence” that McDonald’s diabetic impairment may have affected his judgment and intent.
“Such evidence is irrelevant to what had already transpired at the time Deputy Klein utilized the police dog to subdue him,”the judge wrote.
Wednesday’s ruling, unless overturned, upholds not just the jury’s 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’s Department, which had appealed the trial court’s verdict.