Thursday, October 13, 2011
Laura L. Scarry
Imagine the following scenario: You and several officers are serving a warrant to a resident on the second floor apartment of a two-flat. Upon arrival, you knock on the door. Immediately after the door opens, you’re unexpectedly confronted by a large dog that’s growling with its teeth exposed and charging toward you at full speed. You only have perhaps a second or two to react. In an instant, the dog is dead due to a fatal shot from your firearm.
Sound familiar? It should come as no surprise that law enforcement officers find themselves faced with animals, both friendly and violent, during the course of their day-to-day activities. And sometimes, officers resort to the use of deadly force against animals. Believe it or not, that use of deadly force can result in a federal civil rights lawsuit.
Can officers really be liable for shooting a suspect’s family pet? It depends.
A Constitutional Violation
Recently, a family was awarded $333,000 by a federal jury after a Chicago police officer shot and killed the family’s nine-year-old Labrador retriever.1 To add insult to injury, the jury awarded $2,000 in punitive damages against the officer who shot the dog, and $1,000 in punitive damages against the supervisor who made the decision to arrest one of the plaintiffs.2 Since when did it become a constitutional violation to shoot at an animal?
It’s one thing that police officers can be liable for the shooting of animals under various state laws. It’s entirely another thing when officers are liable under the U.S. Constitution. Has it always been this way?
It’s only been within the last 15 years or so that federal appellate courts have found that plaintiffs can state a constitutional claim for the shooting of dogs by police officers. The earliest case that I could locate came from the Eighth Circuit in 1994.3 Since then, several other federal circuit courts, but not all, have followed suit. As of this writing, the following circuits have found that plaintiffs are permitted to state a constitutional violation for the shooting of family pets by law enforcement: the First, Third, Fourth, Seventh, Eighth and Ninth.4–9
Typically, a plaintiff’s claim for the shooting of a family pet by an officer falls under the Fourth Amendment to the U.S. Constitution. No doubt, the Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”10 According to the recent case law, dogs and other family animals are considered “effects” for purposes of the Fourth Amendment.
A “seizure” of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.”11 Accordingly, the killing of a pet (i.e., the destruction of property) can constitute a Fourth Amendment seizure. However, more is required for a successful claim under the Fourth Amendment: Surely, to state a claim, and succeed on that claim, plaintiffs must also prove that the “seizure” by an officer was “unreasonable.”
Just like when courts analyze the shooting of a human being, courts must look to the “totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer’s duties.”12 Moreover, the “nature and quality of the intrusion on the individual’s Fourth Amendment interests” must be balanced “against the countervailing government interests at stake.”13 Additionally, courts must judge the reasonableness of an officer’s conduct “objectively” and “from the perspective of a reasonable police officer on the scene, rather than with the 20/20 vision of hindsight.”14 Finally, courts “must account for the difficult and often split-second decisions that police officers must make in carrying out their duties.”15 Thus, unnecessarily killing a pet can sometimes offend the Fourth Amendment.
Shoot, But Don’t Kill
There may also be a constitutional violation under the Fourth Amendment where an officer shoots a family pet, but doesn’t kill it. Several courts have found that the non-fatal shooting of a family dog could violate the Fourth Amendment.16
Yet, while “the bond between a dog owner and his pet can be strong and enduring,” the government’s interest may be heightened where the pet is at large, roaming unsupervised and dangerous, “for at that point the [pet] ceases to become simply a personal effect and takes on the nature of a public nuisance.”17 Courts have held that “the state’s interest in protecting life and property may be implicated when there is reason to believe the pet poses an imminent danger. In [that] case, the state’s interest may even justify the extreme intrusion occasioned by the destruction of the pet in the owner’s presence.”18 Example: One court found that the killing of dogs was reasonable where an officer was charged by a pack of five dogs that had already attacked people in the neighborhood and another officer.19
The Bottom Line
Depending on their jurisdictions, officers must be aware that the shooting of a suspect’s family pet can constitute a constitutional violation under the Fourth Amendment. To minimize that potential, officers should be careful to note all of the circumstances of the shooting of the animal, just as they would in any officer-involved shooting.
References
1. Thomas Russell III et al. v. City of Chicago, Case No. 10 C 525 (N.D.Ill.,
August 18, 2011).
2. Id.
3. Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994).
4. See Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).
5. See Brown v. Muhlenberg Twp., 269 F.3d 205 (3rd Cir. 2001).
6. See Altman v. City of High Point, North Carolina, 330 F.3d 194 (4th Cir. 2003).
7. See Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008).
8. Lesher, supra.
9. Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994).
10. U.S. Const., amend. IV (emphasis added).
11. United States v. Jacobsen, 466 U.S. 109, 113 (1984).
12. San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose,
402 F.3d 962, 975 (9th Cir. 2005).
13. Graham v. Connor, 490 U.S. 386, 396 (1989).
14. Id. at 397.
15. Id.
16. See Taylor v. City of Chicago, No. 09 C 7911, 2010 WL 487797
(N.D.Ill. November 23, 2010).
17. See Altman, 330 F.3d at 205-06.
18. See Brown, 269 F.3d at 210-211.
19. Altman, 330 F.3d at 206.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
How to Minimize Your Risk of Violating the Constitution During a Potential Pet Shooting
- At a minimum, officers should document the basis for having contact with the animal. Was the officer called as part of a “dog running at large” report? Did the encounter occur during law enforcement operations—i.e., the execution of a search warrant?
- Officers should also report any known history of the dog. Did the complainant report that the dog had bitten people in the area before? Is the officer aware of previous dog bites or aggressive behavior?
- Officers should describe the dog’s actions before they made the decision to use deadly force. Was the dog growling? Exposing its teeth? “Bearing” down on all four paws? Did the officer observe the dog’s hair on its back stand up? Bark? Break away from a restraint?
- Finally, officers should document the type of dog and its weight, as well as the surroundings. A thorough recitation of the events in a police report will no doubt assist in the defense of these expanding claims.
