More than six years after a law enforcement scheme to capture a fugitive at the Homer Airport went horribly awry, the family of a toddler shot in the head in the incident is still trying to hold the Homer police accountable.
On Monday, lawyers for the Homer Police Department and for the boy's family squared off before a three-judge panel of the 9th U.S. Circuit Court of Appeals.
The issue before the appeals court in the Homer airport shootout: Are the police immune from liability?
Questions and comments from two of the appellate judges indicated that in this case, they didn't think so. The third judge didn't speak up. If the judges rule for the family, the case returns to U.S. District Court in Anchorage to determine whether the police behaved recklessly and owe damages.
The boy's mother, Cherry Dietzmann, sued the U.S. Marshal's Service in 2009 over its officers' role in the chaos and later added the city of Homer, the police department and several officers to the federal suit. U.S. District Judge Robert Bryan, a visiting judge based in Tacoma, was assigned the case.
Last year, the Marshal's Service settled for almost $3.5 million, Phil Weidner, an Anchorage lawyer representing the family, said after the hearing.
Jason Karlo Anderson was a violent drug dealer from Minnesota on the U.S. Marshal's Service most-wanted list. Back in 2006, he was hiding out in Alaska with Dietzmann, his girlfriend, and their two small children. Dietzmann testified earlier in the case that he beat her, burned her and broke bones, and it was hard to escape him. She fled after he shoved his pistol in her mouth but she couldn't get out with the children, a boy then 2 years old and a baby girl. He always kept them by his side and told Dietzmann he would kill them and as many cops as he could if anyone tried to arrest him.
On March 1, 2006, two marshals came up with plan: Lure him to the Homer airport to switch out his rental car, and when he was at the service desk, subdue him with a Taser. Homer police would be backup. Alaska State Troopers were asked to participate but refused unless he could be isolated from the children, his pit bull, and his gun.
The plan fell apart when Anderson refused to go into Homer's small airport terminal, which was unexpectedly crowded with more than 100 people who had come to see off a group of community choir and high chorus singers headed to Italy.
The law enforcement officers then decided to box Anderson in, with a deputy marshal pulling up in front of him and police behind him. A gun battle ensued. Anderson shot and killed himself, a trooper investigation found. The boy was shot in the head, though who shot him is in dispute.
While the child lived, he was severely brain damaged and requires a ventilator to breathe. He's now 8 and living in a special needs foster home in Minnesota, according to Weidner.
That day at the airport, deputy marshals and police had just moments to concoct their new plan in a hallway near the rental car counter, Anchorage lawyer Frank Koziol, who is representing the Homer police, told the appeals court judges Monday. They decided that Anderson was so dangerous, they couldn't let him get away.
Anderson was importing methamphetamine and cocaine to Alaska. He was using so much meth that he thought bugs were crawling up his skin, according to court filings. He ripped out his own flesh to dig away the evil. He was wanted on a federal warrant for drug dealing and a state warrant for assault and was facing 10 years to life.
Police wanted to figure out a way to capture him without getting themselves killed, and no matter what they did, there would be risks, Koziol said.
Judge William Fletcher was skeptical.
"Your clients knew that going in in this fashion was endangering the children," he said. They did have time to regroup "unless you think they can't think faster than a snail." The officers always had the option to walk away and attempt to arrest Anderson another day, Fletcher said.
Courts are much more sympathetic to immunity claims, the judge said, if a suspect pulls out what appears to be a gun and officers must react fast.
But in this case, authorities had been zeroing in on Anderson for days if not weeks, and knew he was dangerous, Seattle attorney Timothy Ford, who argued the case for the family, told the judges. Authorities were told he went snowboarding for two days and left the children with someone else, Ford said. In a strategy meeting before the attempted takedown, a deputy marshal told the Homer police that if Anderson refused to come into the terminal, he would need their help outside. They jotted down Plan B -- boxing him in -- on a white board, Ford said.
"It was the craziest, most dangerous thing they could do," he said.
Koziol argued that other plans were dangerous too. If officers tried to sneak up on the Homer cabin where some suspected he was holed up, his pit bull likely would have given him enough warning to arm himself.
Judge Milan Smith Jr. said there were surely options beyond closing in on him at the airport or conducting a midnight raid at the cabin.
"There seems to be a failure of the imagination," Smith said.
Who shot the little boy remains in dispute. A state investigation concluded his father shot him. But emergency room doctors believed he had been shot from behind, and since he was sitting in the back seat in a forward-facing car seat, his father couldn't have done it, according to court filings. The family is trying to get a bullet fragment tested for the child's DNA but police are fighting the effort.
Dietzmann, who lives in Minnesota near where her son is being cared for, came to Alaska for the arguments. She sat in the front row of the crowded federal courtroom. The San Francisco-based judges were hearing a number of cases.
Her little boy recognizes her and loves her, Weidner said. The lawyer huddled with her for a few minutes then let her make a brief statement to a newspaper reporter.
"They said they would bring my kids back safe," Dietzmann said. "And they didn't."
Reach Lisa Demer at firstname.lastname@example.org or 257-4390.