sad dog

Animal Law Update

Michigan Appeals Court Dismisses Lawsuit in Fatal Shooting of Two Family Dogs by Police

On Dec. 19, 2016, the United States Court of Appeals, Sixth Circuit, upheld a lower court’s dismissal of a civil suit involving the fatal shooting of two family dogs by police officers who were executing a search warrant for drug-related activity in 2013. The dogs were owned by Mark and Cheryl Brown, who argued—in Fourth Amendment terms—that by unreasonably killing their dogs, the officers had unlawfully seized their property.

In March 2016, the district court granted defendants’ request for summary judgment and found in favor of the defendants, which included the Battle Creek Police Department (BCPD) and the three officers involved in the fatal shooting. On appeal, plaintiffs argued that the district court had erred, specifically contending that it was clearly established that a government official’s unreasonable killing of a dog is a seizure under the Fourth Amendment, and the seizure of the Browns’ dogs was unreasonable.

Setting Sixth Circuit precedent, the Court of Appeals held that “there is a constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized”—and that law enforcement officers unreasonably killing one’s dog is just such a constitutionally prohibited seizure. In doing so, the appellate court highlighted the emotional attachment between companion animals and their people, which makes such a killing a particularly severe intrusion on Fourth Amendment interests. As a result, the court held that in order to be legitimate, such a killing must be justified by a similarly important government interest, such as officer safety. Further, the court determined that this right for people to be free from having their dogs unreasonably killed was clearly established prior to the Browns’ two dogs being slain.

Operating from that position, the court looked at the actions taken by the Battle Creek Police Department officers during the search, asking whether “given all of the circumstances and viewed from the perspective of a reasonable officer at the scene, [the dogs] posed [an] imminent threat [to the officers]….” Unfortunately, in reviewing the statements of the officers involved (who were the only witnesses to the shootings), the court determined that a reasonable officer would have felt imminently threatened by the dogs. As a result, the court determined that the shootings in this case did not violate the constitutional right to not have one’s dog unreasonably killed by law enforcement officers. While the court’s opinion does not exhaustively list the factors giving rise to the officers’ feeling of imminent threat, it appears connected to the officers’ perception of the home potentially containing dangerous people, not just to the dogs themselves.

Although police officers have the need and the right to protect themselves in the line of duty, the degree to which the facts in this case were read as indicating the dogs posed a threat to the officers is troubling. In particular, the second dog shot was, according to the officers’ own testimony, avoiding them when they breached the front door by moving away from the officers and retreating to the basement. While the court points to the officers’ sense that the basement needed to be cleared in order to confirm there were no dangerous people hiding there, and suggests that the presence of the dog may have prevented that, the court does not explain how the third shot inflicted on that dog—at a point where the dog had retreated, wounded, to a corner of the basement—was responsive to a sense of imminent threat.

Plaintiffs had also alleged that the City of Battle Creek was municipally liable because the BCPD failed to provide training to address the known risk of constitutional violations arising from dog shootings. The court’s determination that the shooting had not resulted in any constitutional violation, however, proved fatal to this argument: the claim requires an actual constitutional violation to proceed. Nonetheless, the Court of Appeals quoted the district court’s observation that “there isn’t much of a policy, practice, not just in Battle Creek but throughout the country, on how” law enforcement officers should interact with dogs.

This lack of policy is something the Animal Legal Defense Fund has been working to address, through guidance for law enforcement provided by our Criminal Justice Program, recommendations on model laws and policies regarding mandatory training of non-lethal methods for dealing with dogs, and our partnership on the documentary film, Of Dogs and Men, which premiered in September 2016 and provides practical solutions for keeping both police officers and dogs safe during high-stress encounters such as this one.

These goals need not be mutually exclusive. Sadly, police shootings of dogs are not as uncommon as one might think, with more than 10,000 companion dogs losing their lives at the hands of police each year, according to Department of Justice statistics. This trend can be reversed through proper training for law enforcement officers in non-lethal approaches to canine encounters. Given the increasing number of households that include companion animals, these tragic incidents are likely to continue without intervention and education.

Although in this case the court found the actions of the officers reasonable, the sad outcome for these dogs, who committed no crime, likely could have been prevented. With proper training we can hope to see a shift in what is considered “reasonable” in situations where an innocent animal’s life is at risk for engaging in natural canine behaviors like barking, and being in the wrong place at the wrong time—which should never include the dog’s own home.

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