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Adam v. City of Fremont12/3/1998
k was not wounded, to determine his location and the location of the gun Patrick had previously fired in the house; and (3) to disarm Patrick.
Sergeant Osawa sent Officer Moran to find out from the family what guns Patrick had access to and what Patrick's attitudes were toward the police. Sergeant Osawa received the information that Patrick had access to a Beretta 9-millimeter handgun and a 12-gauge shotgun, that he did not particularly like the police, and that he was unlikely to "take [the police officers] on."
Sergeant Osawa testified that he was concerned about the possibility that Patrick would react aggressively or fire on the officers in an attempt to commit "suicide by cop." He took measures to ensure that there were a sufficient number of officers with "superior firepower" at the scene to respond to such possibilities. Sergeant Osawa searched the house with the assistance of three other armed officers. The officers were heavily armed and their weapons were drawn. Sergeant Osawa periodically called out to Patrick, identifying himself as a member of the Fremont Police Department and asking Patrick to come out. Patrick did not respond. The officers found an expended 9- millimeter shell in the master bedroom closet and a live round on the bathroom vanity.
Upon entering the backyard, Osawa again identified himself and called for Patrick to come out with his hands up. Patrick did not respond. Osawa repeated this admonition. There was still no response from Patrick. Finally, Officer Moran found Patrick in the backyard, partially concealed by a large bush. The officers turned a picnic table on its side and kneeled behind it for cover. Sergeant Osawa and Officer Pipp spoke to Patrick for approximately five minutes. Officer Pipp was not a trained specialist in negotiations. The officers called Patrick's name, asked him if he was "okay," and asked him to come out with his hands out and visible. Patrick did not respond.
Sergeant Osawa testified that this lack of response led him to believe Patrick might be wounded. He decided to use a police dog named "Gus" to get a reaction or response from Patrick so the police would know whether Patrick was alive. He testified that he did not send Officer Tajima-Shadle to accomplish this task because he was concerned that Patrick was armed and might attempt to "engage" her. Gus's handler was Officer Mazzone. As he ran to his car to get Gus, Officer Mazzone saw Officer Tajima-Shadle gathering background information from the family. Officer Tajima-Shadle asked whether she was needed in the backyard, and Officer Mazzone replied "no" or "not yet." After receiving the proper authorization, Sergeant Holm, the canine coordinator, and Officer Mazzone brought Gus onto the scene.
Sergeant Osawa and Officer Mazzone called out several warnings to Patrick, advising him that they were going to send in a dog if Patrick did not come out. When Patrick remained mute, Mazzone gave Gus a search command. Gus went into the bushes followed by Officers Mazzone and Moran, who had their weapons drawn. As they approached the bushes, the officers observed Patrick sitting on the ground, cradling a gun with both hands, pointed at his own chest. Patrick appeared to be wearing only underpants. Officer Mazzone crouched, brought his gun up and told Patrick to "Freeze" and "Drop the gun." Gus became excited and started barking and wagging his tail. Officer Mazzone gave Gus the command to stop and Gus obeyed.
Patrick told the officers to "Get the fucking dog away from me," and asked "What are you going to do, fucking shoot me?" His speech was slurred. The officers returned to their location behind the picnic table.
The Adams' y
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