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K-9 bite lawsuit moving on to state appeals court

JACOB JONES | THE DAILY WORLD Hoquiam medical crews load a 31-year-old Aberdeen man into an ambulance after he was arrested following a 90-minute stand-off with police at a Hoquiam RV park Wednesday afternoon. The man was wanted for alleged kidnapping and assault. Grays Harbor Sheriff's deputies to the right celebrate the safe end of the stand-off with a quick fist-bump.Buy Photo
JACOB JONES | THE DAILY WORLD Hoquiam medical crews load a 31-year-old Aberdeen man into an ambulance after he was arrested following a 90-minute stand-off with police at a Hoquiam RV park Wednesday afternoon. The man was wanted for alleged kidnapping and assault. Grays Harbor Sheriff's deputies to the right celebrate the safe end of the stand-off with a quick fist-bump.

The Grays Harbor County Sheriff’s Office and its K-9 division should not be held liable for the bites on a man, who was hiding inside an RV in Hoquiam back in 2009 following a standoff, a jury ruled earlier this summer in Thurston County Superior Court.

The court records, recently reviewed by The Vidette, show that the jury found that K-9 dog Gizmo, an 85-pound German Shepherd, bit Aberdeen resident Harold Rath, wanted for alleged kidnapping, assault and eluding a pursuing police officer, but that Rath was not “lawfully on the premises when he was bit” by Gizmo. The jury decided to only award $200 in attorney’s fees to the county, even though defense fees likely added up to thousands of dollars more for the county’s insurance company. The jury heard arguments back in June.

Rath, through his attorneys, are now appealing the decision. For that matter, John Justice, the attorney working for the insurance company representing Grays Harbor County, is also appealing the decision since the judge denied his original motion for summary judgment. Court briefs in the case are now being taken by the appeals court.

In 2009, law enforcement surrounded the Hoquiam RV Park under suspicion that Rath was hiding inside an RV. From outside the trailer, officers consistently called his name and even fired pepper spray into an open window, but he never answered multiple calls for his surrender.

A deposition from Rath noted that he had been trying to avoid police officers “never staying in one place for too long.” Weeks prior to his arrest, he had been stopped in a stolen vehicle with a stolen sawed off shotgun and had even jumped into the Hoquiam River to avoid a police officer at one point. He had been hiding for about six weeks “out in the woods, out in the middle of nowhere,” he said, before the encounter with police officers in the RV. Rath told Justice in a deposition that he was living in the woods and was trying to avoid law enforcement in hopes of meeting with his daughter one last time before going to jail.

“At some point, did you become aware that there was law enforcement present outside the trailer?” Justice asked him.

“No,” Rath replied.

“You never knew that there was the law enforcement outside the trailer?” Justice asked.

“No,” he replied again.

After 90 minutes, a SWAT team entered the RV with the assistance of K-9 Gizmo and his handler Deputy Rob Crawford. They had a ballistic bullet-proof shield for protection.

A Hoquiam Police report shows that the dog found Rath under a bed, or, more precisely, a storage area that you would lift the bed to get into. Rath didn’t move from the location even after being found.

“He was found unresponsive to commands and would not show his hands,” the police report states. “At that time, the police dog made contact and a struggle ensued. Rath was eventually taken into custody and an aid car called to treat multiple dog bite wounds. He was transported to Community Hospital for treatment and later transported to the county jail.”

Rath told Justice he was asleep at the time and had been asleep for a couple of hours, even when police came in. Rath said the compartment was six and a half feet long and the lid was closed when he was sleeping in it. He said there was no mattress in the compartment.

“I was woke up by some yelling inside the trailer and when I looked, I started coming to, I looked up,” Rath said. “There was guns pointed at me. And I heard more yelling. I rolled on my side, put my hand out — up, and the dog made contact.”

Rath said he was told to put his hands up, “I rolled over to put my hands up and that’s when the dog got me.”

He said the dog had him by the wrist and another officer got him by his other wrist “they started pulling me, pulling me out.”

“I tried to shield my face with my arm, but it was too late,” Rath said. “He’d already — by that time, he was up on my shoulder, tearing at my shoulder. And I went like this to cover my face, and my arm got grabbed. I don’t know if it was by an officer or what, but it got grabbed and the dog went right to my head.”

The dog kept biting him for 10 to 15 minutes, Rath said. He was taken to Grays Harbor Community Hospital and then transferred to Harborview Medical Center in Seattle, where they “sewed my ear back together and irrigated my wounds.”

“They couldn’t stitch them up,” he said in the deposition. “They were too bad.”

He says he’s still in pain and has tendons and muscles separated on his left arm.

“You can feel it,” he said. “I mean, you can see it. It’s physically seeable. If I took this shirt off, you’d be able to see it. .. Sometimes, it’ll pop and start burning like it broke, but it’s not — I can still move it. Do you know what I mean? But it burns like it broke when it pops and then the burn will go away and it’ll just throb.”

In June of 2010, Rath submitted a hand-written claim for damages seeking $3.5 million from the county.

A police report by Crawford states that Gizmo only went after Rath because Rath refused to show officers his hands and officers gave Rath many chances to give himself up and surrender. Rath was warned the K-9 was present and would apprehend him several times, the report states.

“Based on the fact that Rath was likely still armed, I deployed Gizmo to apprehend Rath,” Crawford wrote at the time, adding that Rath fought and struck at Gizmo several times. Attorney Mark Harris, representing Rath, wrote in his trial brief that police were told Rath was not armed at the time by one of the owner’s of the RV, “Deputy Crawford lifted up the bed to reveal the storage area. Mr. Rath was lying on his stomach, was not making any movements.”

Harris said that deputies had Tasers and “there was no reason the Taser was not used instead of Gizmo.”

“The plaintiff claims he was ‘sleeping’ under the bed at the time,” Justice wrote in his trial briefing. “The plaintiff claims he was awoken and told to ‘put his hands up.’ He then claims Gizmo attacked him. In truth, the plaintiff ignored repeated commands to show his hands so as to demonstrate he was unarmed and so Gizmo was deployed to apprehend the plaintiff.”

Justice notes that Rath “struck out at Gizmo” and “was bitten by Gizmo in the process of being subdued and ultimately arrested.”

Rath and his attorneys had argued that the county should be liable for damages under animal trespassing state laws that states “the owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog shall be liable for such damages as may be suffered by the person bitten….”

Justice tried to get the case dismissed on summary judgment, arguing that Rath was never “lawfully” in the trailer at the time. But Superior Court Judge Gary Tabor rejected the county’s summary judgment motion and left it open for trial interpretation. The judge also ruled that Rath did not provoke the dog to bite him. Ultimately, the jury found that Rath was not lawfully inside the trailer. That’s the key question under appeal. The county successfully argued that even though Rath had lawfully entered the RV as an invited guest of two friends, he was unlawfully still in it when police demanded he exit and he slept through those demands.

In January of 2010, as part of a plea deal, Rath pleaded guilty to possession of a stolen vehicle, unlawful possession of a firearm and second-degree theft, which carried a sentence of upwards of five years. Rath is no longer in prison, according to corrections records.

Gizmo died back in June of 2012 from an unrelated medical condition.

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