Back in the old days of revolvers, handwritten reports, looking up streets on a real map, and portable radios as big as large bricks I was sitting in my academy classroom eagerly learning Constitutional Law from two veteran FBI agents out of the Phoenix office. It was the mid-Seventies and crime was bad just as today; and these two were a class favorite with their war stories, humor, and ability to translate legalese into plain English and explain what we could do practically under the Constitution and Supreme Court precedent. In the middle of explaining a legal principle, the senior agent suddenly stopped and looked intently at the class, exclaiming that this principle and others would stand until the Ninth Circuit stopped us in Arizona, and then we would have to pray for the Supreme Court to fix their faulty logic.
It was the first of thousands of complaints I would hear and express throughout my career about the outlier rulings of the which the Supreme Court has reversed 79.2 percent of the time since 2007 when reviewed, which is why I was so relieved to see the Amicus Brief filed by the National Police Association on behalf of my old agency in a case that once again shows the importance of the Supreme Court in stopping activist and unrealistic ruling from becoming, essentially, law for those of us under its reign.
Which brings me to this present concern which, I sincerely hope, will be another issue corrected by the wiser minds at the Supreme Court. The Arizona Department of Public Safety (DPS) has a specialized gang enforcement unit that deals with some of today’s toughest criminals, one such fellow being Carlos Castro with a long and violent criminal history. Mr. Castro’s convictions run a gambit of violent crimes including aggravated assault on a police officer and on the night involved in this case was wanted on several warrants including assault with a deadly weapon. In preparing to deal with just this type of individual the State of Arizona had added a very potent and fearless member to the team of crime fighters, a canine officer named “Storm.”
Anyone who has ever worked with K-9’s knows the courageous manner in which these dogs protect the public. Trained constantly to keep their sharp edge and obedient nature these officers serve nationwide in tracking, searching, detecting, and restraining duties. Many have been injured and killed over the years and many a human partner can share times their life was saved by the sharp senses, fearless nature, and power of their furry companions. Storm is just such an officer and on the night of his arrest Carlos Castro flees the SWAT officers attempting to detain him and hides in a nearby shed. Storm leads his partner, Detective Martin, to our suspect who then climbs to the roof of shed where he is hit with Tasers and falls to the ground, but he’s not through fighting. In the struggle to restrain the felon several officers struggle to gain control including Storm who grabs onto Castro’s leg. Finally, handcuffed, the suspect lies still and 12 to 26 seconds later the dog releases his grip.
It is these 12 to 26 seconds, uncertain since the K-9 is not visible on camera, that the Ninth Circuit ruled could be unreasonable force and the officer denied qualified immunity, the protection granted to public servants such as judges, prosecutors and police officers as long as they stay within the law. Using novel takes on precedent, and taking the entire arrest out of its true context, that of an extremely violent, possibly drugged and armed criminal, the court created a whole new standard of judging use of force that would add an impossible standard for real world policing.
Anyone who have ever worked with K-9’s knows it takes several seconds to get a release by the dog even if the subject the dog is holding lies still. Mr. Castro had just been violently resisting in a chaotic fight which would take hours for a human to calm down from, not to mention that Storm certainly sensed the stress, fear, and tension of everyone involved. Detective Martin had deployed his charge while the fight was on and gave no further encouragement after the fight ended, he just released his dog. Twelve to twenty-six seconds in the midst of a high-risk violent arrest is actually a pretty quick response time but in the quiet chambers of a courtroom it would seem like a long time for someone who has never feared for their life while protecting their community and struggling with a violent felon in the dead of the night.
The Ninth Circuit believes Detective Martin has lost his right to immunity because he violated clearly established statutory or constitutional rights which he, reasonably, should have known based on case law they then proceeded to list. Since I am not a lawyer, or even pretend to be one on TV, I must refer you to the plain English, yet marvelously footnoted, Amicus Brief (“friend of the court”) submitted on Detective Martin’s behalf by the National Police Association, a non-profit, apolitical association dedicated to countering today’s anti-police efforts, educating the public about law enforcement, and providing legal support as in the brief we are talking about today. If a case like this, without any true precedent, which takes use of force by an officer out of the context of the real-world continuum of action, chaos, anxiety and threat is allowed, then literally every use of force could be a possible civil action by suspects combating the police!
What the brief points out so succinctly is that the Supreme Court demands a court look at an officer’s use of force in the same way the officer had to deal with it in real life; not with the benefit of hindsight or slow motion. In this case the violent history of Mr. Castro: aggravated assaults, weapons, drugs, resisting arrest, gang affiliation, and the actual act of fighting in the here and now as Det. Martin and Storm engage Castro in the actual fight the bite occurred. The standard of conduct is whether Detective Martin acted reasonably for someone with his knowledge, experience, and training, not a law clerk sitting in an office drinking a macchiato reading an iPad.
What every law enforcement officer should vehemently hope is the Supreme Court reverses the Ninth Circuit once again and takes down this latest ruling that adds an undo and illogical standard of conduct on officers in the midst of a physical confrontation. The fact that this ruling is actually without precedent, as pointed out by the NPA, and only adds to the physical and mental liability faced by those under it’s jurisdiction by increasing the likelihood an officer might waver when action is required and creating a fear of litigation never before seen by officers in an already deadly situation!
What I sincerely hope is, the Court reverses the Castro Case, reestablishing not only the qualified immunity of Detective Martin, but also the recognition of the heroic nature of not only his actions that night but also his courageous partner Storm. Again, thanks to the National Police Association for stepping up and providing guidance in a time it is most required!
