CA3: Ptf’s stabbing a police dog, which he threatened to do if they had it attack him, didn’t justify deadly force in shooting him seven times

Police were in a stand off with plaintiff who had a knife, and they had guns and a dog. Frustrated that he wouldn’t comply, officers threatened to unleash the dog on him if he didn’t put down the knife. Plaintiff said he’d use the knife on the dog. They did, and he did, and they shot him seven times. “While none of the parties demeans the life of the police dog, neither does anyone argue that the dog has the same status as, or should be treated as if it were, a human police officer for purposes of assessing the propriety of deploying deadly force.” [n.6] He states a claim under the Fourth Amendment. Kelley v. O’Malley, 2019 U.S. App. LEXIS 28829 (3d Cir. Sept. 24, 2019):

Critically here, there are fact questions about why the officers did not attempt to use alternative, less lethal means of force before gun fire erupted. As alleged in the complaint, when the K-9 Unit officers arrived, a sizable force of Port Authority officers had effectively surrounded Kelley, Jr. in front of a house. He prolonged the standoff and, no doubt, frustrated the police by refusing to put down his knife. Sergeant O’Malley, however, without attempting to deescalate the situation, heightened tensions by threatening to have the German Shepherd attack Kelley, Jr. The response was Kelley, Jr.’s promise to stab the dog if it attacked him. Sergeant O’Malley unleashed the dog anyway. When events unfolded exactly as Kelley, Jr. said, Sergeant O’Malley and Officer Rivotti shot him seven times, without hesitation, twice in the back.

That course of conduct is one that a rational jury could conclude was beyond the bounds of reason. A jury could properly say, on these facts, that it was not at all reasonable for officers to shoot someone who they have cornered and set an attack dog on, when that person poses little threat to anyone, is vastly outnumbered by armed officers, and is only defensively wielding a knife. In sum, the Kelleys have alleged sufficient facts for a reasonable jury to conclude that Sergeant O’Malley’s and Officer Rivotti’s actions were objectively unreasonable. Cf. Glenn v. Washington County, 673 F.3d 864, 870-79 (9th Cir. 2011) (concluding that factual disputes precluded the entry of summary judgment on qualified immunity grounds, where police officers shot a man who refused to put down his knife and “stood in the driveway several feet from the officers[,]” had not committed a severe, if any, crime, did not attack officers or anyone else, and alternative, less intrusive means of force might have been used).