Excessive Use of Force
Subject appealed a conviction of Penal Code section 69, resisting LE with force and 600(b), interfering with PSD. Subject was acting strangely and appeared to have something in his hand. Handler and PSD arrived. Subject ignored requests, then demands to surrender. Two sponge rounds had no effect. Subject then started advancing on LE; PSD then deployed who bit subject’s arm. Subject punched PSD; PSD let go. PSD re-engaged on subject’s leg. Subject grabbed PSD by the neck, swung it around and tried to choke it and punched it again. Orders to stop fighting the dog were ignored. LE on scene applied baton strikes, taser strike with probes and by drive stun with no effect. Resistance continued until subject handcuffed and hobbled. Court applied Graham v. Connor factors. Court found LE was deliberate in applying escalation of force, using the model of “ask, tell, make.” Court held that subject’s behavior justified the use of sponge rounds. Once the subject charged LE, the additional measures employed were justified as well.