Vera Cruz v. City of Escondido

concurring:

I concur in the judgment.

We hold that deadly force under Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985), means force reasonably likely to kill.

I

1992 did not start well for Robert Vera Cruz. After drinking more than two six-packs of beer on New Year’s Day, he headed over to the local Del Taco restaurant. The Del Taco employees were cleaning up after closing and refused to serve Vera Cruz, who then challenged them to a fight. When the challenge was declined, Vera Cruz angrily hit the restaurant window and went home.

Just after returning home, Vera Cruz’s thirst also returned and so he set out for the liquor store, which happened to be next door to the Del Taco. Before leaving, Vera Cruz strapped a knife to his hip-to protect himself from the Del Taco employees, he explained.

Responding to a call from the said employees, Escondido Police Officer Eric Distel and his K-9 companion were the first to arrive at the scene. Distel spotted Vera Cruz in a doorway at the rear of the Del Taco throwing objects out of the building. When the officer identified himself, Vera Cruz began walking away. Distel then warned Vera Cruz to stop or he would release the dog; Vera Cruz started running.…