Lawyers for Homer police and for the boy's family squared off Monday before a three-judge panel of the 9th U.S. Circuit Court of Appeals, according to the Anchorage Daily News (http://is.gd/pLgULw).
The boy's mother, Cherry Dietzmann, sued the U.S. Marshal's Service in 2009 and later added the city of Homer, the police department and several officers to the federal suit.
Last year, the marshals settled the case for almost $3.5 million, said Phil Weidner, an Anchorage lawyer representing the family. The shooting left the child severely brain damaged and requiring a ventilator to breathe.
He's now 8 and living in a special needs foster home in Minnesota, Weidner said.
Dietzmann was the girlfriend of Jason Anderson, a violent drug dealer from Minnesota. He killed himself when marshals attempted to capture him.
The child was shot, though the shooter remains in dispute. A state investigation concluded it was the father. But emergency room doctors believe the child was shot from behind, which means the father could not have done it.
In 2006, Anderson was hiding out in Alaska with Dietzmann and their two small children. She testified that he beat her, burned her and broke bones. She said she fled after he shoved his pistol in her mouth, but she couldn't leave with the children, a 2-year-old boy and a baby girl.
On March 1, 2006, two marshals came up with a plan to lure Anderson to the Homer airport to switch out his rental car, and when he was at the service desk, subdue him with a Taser gun.
The plan fell apart, however, when it turned out that the Homer airport terminal was especially crowded that day and he refused to go in.
Officer then decided to box in Anderson, with a deputy marshal in front of him and police behind him. A gun battle ensued and Anderson shot and killed himself, according to a state trooper's report. The toddler was shot in the head.
Anchorage lawyer Frank Koziol, who is representing Homer police, told the appeals court judges that law enforcement gathered at the airport determined that Anderson was too dangerous to allow to get away. He was wanted on a federal warrant for drug dealing and a state warrant for assault.
Seattle attorney Timothy Ford, who argued the case for the family, said what officers decided to do was "the craziest, most dangerous thing they could do."
Judge William Fletcher appeared skeptical of Koziol's claim that no matter what police decided upon, there was going to be risks. The officers could have walked away, the judge said.
"Your clients knew that going in in this fashion was endangering the children," he said.
Judge Milan Smith Jr. said there were surely options.
"There seems to be a failure of the imagination," Smith said.