The lawsuit, filed by Richard Upson in Maricopa County Superior Court last September, accuses the involved officers of excessive force, gross negligence, and assault and battery. It blames Phoenix Police Chief Jeri Williams for negligent hiring, training, and supervision, and accuses her and the city of Phoenix of establishing unconstitutional policy and practice when it comes to police K9s.
Through his lawyer, Upson declined to comment on the case. Sergeant Mercedes Fortune, a Phoenix police spokesperson, also declined to comment, citing "pending litigation."
The incident began on July 4, 2019, when police spotted Upson in a residential neighborhood near Seventh Street and Cave Creek Road and tried to arrest him for numerous outstanding felony warrants, including "several armed robberies," a police report states. Upson has a lengthy criminal record, including multiple convictions for theft. His most recent cases, which include charges for armed robbery, are ongoing.
The police report notes that "information was given" that Upson had a "violent criminal history" and it was "not known" if he was armed. With a helicopter buzzing overhead, Upson had taken off running. K9 Officer Michael Burns deployed his dog, "Fred," in pursuit.
Police soon found Upson hiding under a nearby parked car. According to the police report, when Burns gave a "canine announcement," Fred began barking, but Upson refused to respond or come out. The complaint states again that Burns "directed" Upson to "come out and got no response."
Burns then unleashed Fred. His rationale was Upson's "criminal history," the report said, as well as the search team's "limited cover" and the fact that Upson could have a weapon. The complaint alleges that Upson "did not hear any warning a dog would be released upon him."
The dog immediately bit Upson on his head, while the officers "rushed" forward and grabbed him by his legs to pull him out from under the car.
According to the lawsuit, neither Burns nor another officer on the scene, Sergeant Terrence Fay, ordered the dog to release its bite on Upson's head, even though K9s are "trained" to not bite the head, upper shoulder, and neck area because of the risk of death or serious injury. A bite to those areas "constitutes deadly force," the filing states, citing a 2003 case involving a K9 out of Clark County, Washington.
Fred then shifted his bite to Upson's shoulder near his neck, the complaint states. Burns' police report confirms this — at least that Fred bit Upson's "shoulder" — though he noted that the dog's change in bite positioning occurred during a "struggle." Only after Upson had been pulled away from the car so that his hands could be grabbed by the involved officers did Burns' call off the dog, the complaint and his police report both state.
Upson's attorney, Keith Knowlton, told New Times that his client had incurred over $20,000 in medical bills stemming from the dog bites.
The lawsuit takes issue with the "location of the bite," claiming that the force used by the officers was "not reasonable or justified under the circumstances" and that a "reasonable officer under the same circumstances would not have used that force" to detain Upson.
The lawsuit claims that the policy of the Phoenix Police Department prohibits K9s from biting suspects on the head, neck, and shoulder area, and that the officers involved in Upson's arrest violated that policy. It goes on to allege that Chief Williams did not reprimand the officers for violating that policy, and that both Williams and the City of Phoenix failed to properly train the involved officers.
"Williams ratified the conduct of the Police Officer Defendants by taking no disciplinary action against them, [creating] a practice and procedure that police officers using k-9s do not have to follow policy and can take unauthorized actions with impunity," the complaint states.
The charges stemming from Upson's July 4 arrest — which he is now suing the city over — were connected to a summer crime spree targeting local Circle Ks in which Upson would allegedly tell store clerks he had a gun, which he never showed, according to a July 8 Fox 10 News (KSAZ-TV) report.
A detective working the case had named the suspect the "Marching Band Robber" because he thought the suspect reminded him of someone he once knew, Fox 10 reported. Detectives were eventually able to get a DNA match by using a Polar Pop cup Upson left at the scene of a robbery.