Nevertheless, we will assume that a properly trained police dog could kill a suspect under highly unusual circumstances. The prospect of such an aberration doesn't convert otherwise nondeadly force into deadly force.
Robinette—the only reported case where a police dog actually killed a suspect-illustrates our point. In
Robinette, the suspect bled to death after a police dog bit him on the neck. Apparently, the dog was trained to bite whatever part of the anatomy was nearest if an arm was unavailable and the suspect had hidden under a car so that only his neck was exposed.
854 F.2d at 912. The
Robinette court held that the use of the dog did not amount to deadly force because the outcome was “an extreme aberration[.]”
Id. In judging whether force is deadly, we do not consider the result in a particular case-be it that the suspect was killed or injured-but whether the force used had a reasonable probability of causing death. Were the rule otherwise, all uses of force would be subject to
Garner 's deadly force requirements because almost any use of force could cause death under peculiar enough circumstances. To be entitled to a deadly force instruction, a plaintiff must present evidence that the force used, in the circumstances under which it was used, posed more than a remote possibility of death.
Because Vera Cruz presented no such evidence, the district court did not err in refusing to give a deadly force instruction.