The city of Charleston will settle a lawsuit brought by a homeless man who suffered leg wounds when police officers deployed a K9 with titanium-reinforced teeth because he refused to leave a vacant house in 2019.
The Charleston City Council on Monday approved a $45,000 settlement in the case of Johny L. Barker vs. The City of Charleston, et al.
The lawsuit was filed May 22, 2020 in the U.S. District Court for the Southern District of West Virginia. It lists as defendants Officers Anthony Gaylor, Troy Vanhorn, Shaun McClure and the city of Charleston.
According to an order written by Senior U.S. District Judge John Copenhaver, the incident happened the morning of May 22, 2019, when Charleston police officers responded to a trespassing complaint reported by the owner of 1520 Huron Terrace, a dilapidated house.
Barker, a Harrison County resident who was experiencing homelessness in Charleston at the time, and three others were occupying the house without permission.
Cpl. Shaun McClure and Patrolman Christian Harshbarger were the first to arrive at the house, at 8 a.m.
According to the judge’s order, after kicking in the door with permission from the property owner, Harshbarger and McClure gave “several repeated commands” for those inside to announce themselves, surrender and come downstairs, but none of them responded.
Barker and another occupant instead hid by crawling from the second floor into a cramped crawlspace above the front porch of the house.
According to the order, Vanhorn arrived on scene at 8:09 a.m. and Gaylor arrived with Berkley — a police dog with titanium dental crowns — at 8:17 a.m.
Police gave several warnings to Barker and the other occupants that they intended to send in Berkley, the judge wrote.
The judge noted that body cam footage of the incident shows Gaylor shouting “Charleston Police canine! Come down or I’ll send the dog in and you’re going to get bit,” “I’m going to send the dog up there! You better get the f—k down here now.”
McClure added, “She has titanium teeth. Crunch. Crunch.”
According to the lawsuit, the city had titanium steel crowns placed on the dog’s canine teeth on Nov. 2, 2018.
City attorney Kevin Baker on Monday said a veterinarian had recommended the titanium crowns.
“It’s my understanding that, at some point before I was here, the canine went to a veterinarian who suggested that the natural teeth were causing damage to people in a way that titanium replacements would not,” Baker said.
A female occupant of the house came down and was arrested by officers.
Believing that at least one other person was inside, police discussed using the dog but ultimately decided to attempt to clear the house themselves without the dog.
Gaylor located Barker in the crawlspace. When he saw Barker’s leg sticking out from behind a cabinet, Gaylor demanded he come out. Barker did not move or respond to the commands.
Gaylor then announced that he was going to get his police dog.
While Gaylor was getting the dog, other officers warned Barker and commanded him to come out. At one point, McClure told the man, “I promise you, you are not going to like getting bit by the dog. You best come out now.”
Gaylor eventually crawled into the crawlspace with the dog and shouted to Barker, “this is your last warning.”
Barker’s response “I’m coming out,” came too late as Gaylor released the dog’s leash, the judge’s order says.
Immediately, Barker screamed in pain as the dog bit his right leg. The dog did not follow Gaylor’s command to release and the officer had to crawl farther into the crawlspace and use his flashlight to pry the dog’s jaws off the man’s leg within one to two minutes, the order says.
Barker was treated for a baseball-sized wound on his leg for 20 days at Charleston Area Medical Center. The treating physician described “extensive deep tissue lacerations to [plaintiff’s] right ankle,” “complex open wounds” and “significant soft tissue injury.” Barker says his medical care and treatment cost more than $275,000.
Barker was charged with trespassing and obstructing an officer. Those charges were dropped, according to the order.
In his lawsuit, Barker alleged excessive use of force by Gaylor, bystander liability for excessive use of force by Officers Vanhorn and McClure, and supervisor use of excessive force by Vanhorn.
Barker also alleged the city of Charleston had liability as the policy maker for Charleston Police Department, that Officer Gaylor committed assault and battery against Barker and that Officers Gaylor, McClure and Vanhorn intentionally inflected emotional distress on Barker.
In his order, filed Aug. 2, 2021, Copenhaver dismissed the city, Vanhorn and McClure from the lawsuit and said the case shall proceed only as to the assault and battery allegation against Gaylor. The judge denied the defendants’ motion for a summary judgment on the charge against Gaylor.
Baker noted that, in settling the lawsuit, the city is not admitting guilt. He said he does not think officers did anything wrong and that the city would win if the case went to trial.
However, the cost of going to trial likely would exceed $45,000, Baker said. If a jury were to find that the city was wrong, it could be hit with a hefty award for damages, Baker said.
Baker also addressed questions from council members about the incident Monday.
A person answering the phone in the office of Charleston Police Chief Tyke Hunt said he was not available for comment Tuesday. An attorney representing Barker declined to comment.