Court To Cop: We Don't Need On-Point Precedent To Deny You Immunity For Killing A Dog That Couldn't Hurt You

from the Officer-Cure-of-Millhaven dept

Cops kill dogs. And they do it at a rate even the Justice Department is concerned about it. This comes from pro-cop site PoliceOne, so if there's any bias in this article, it's for cops rather than timcushinghatescops.com.

No one keeps records on how many privately owned dogs are shot and killed each year by American law enforcement officers so there are no hard figures. But a perusal of the Web and social media will tell you it's a lot. Laurel Matthews, a supervisory program specialist with the Department of Justice's Community Oriented Policing Services (DOJ COPS) office, says it's an awful lot. She calls fatal police vs. dogs encounters an "epidemic" and estimates that 25 to 30 pet dogs are killed each day by law enforcement officers.

If that estimate is even close to accurate, that's nearly 10,000 dogs killed by cops per year . While it's true a number of these dogs may be strays, there's no ignoring the fact that dogs make cops act like bunnies with handguns whenever they're anywhere nearby. If a dog acts like a dog around a cop (i.e., barking at someone it doesn't recognize, etc.), it has a good chance of ending up dead.

Six of eleven circuits have declared the unjustified killing of a family dog is a violation of Fourth Amendment rights. People are protected against "unreasonable seizures" of their property, and the ultimate "seizing" is the summary execution of pets they own.

But courts are inconsistent in the application of this principle, so cops continue to kill dogs at an alarming rate and are only stripped of their qualified immunity at an equally alarmingly low rate. In one case, a cop kept his immunity despite missing the non-threatening dog he was trying to kill and wounding a nearby child instead. In other cases, cops have killed dogs while entering houses without a warrant, raiding a house over an unpaid gas bill , and while responding to a burglar alarm accidentally tripped by a family member entering the house.

Here's a little bit of good news -- both for dogs and the Fourth Amendment -- from the Fourth Circuit Court of Appeals. (h/t Gabriel Malor)

A cop who killed a non-threatening dog has had his immunity stripped and will have to face a lawsuit over his unjustified actions. Here are the events that led up to the pet's killing, as recounted by the court [PDF].

On September 24, 2017, [Officer Michael] Roane drove to Ray’s property to assist with an arrest warrant that was being served on Ray for domestic abuse. When Roane arrived on Ray’s property, four other officers were already present and parked in the driveway. Ray’s dog—a 150-pound German Shepard named Jax—was secured by a zip-lead attached to two trees that allowed the animal limited movement within a “play area” of the yard. Rather than park in the driveway like the other officers, Roane parked his truck within the dog’s “play area...”

Reading this complaint in the light most favorable to common sense, Officer Roane placed himself in danger and then tried to use his self-inflicted peril to justify shooting the family's dog. Pretty tough to do when you're surrounded by actually "reasonable" officers.

… prompting the other officers on scene to shout and gesture toward Roane, indicating that he should “[w]ait” and “[l]et [Ray] get her dog.”

Roane did not do this. He did not wait. He did not allow anyone to secure the dog. Instead, he "exited his vehicle and started walking towards the house."

Things then happened that anyone -- including Officer Roane -- would have expected to happen. Roane advanced towards the house. The dog advanced to the end of its zip line. The dog was forced to de-escalate because it had run out of line and was being called back by its owner. Officer Roane had no such restraints and was unwilling to listen to the other officers' attempt to rein him in. But it does appear from the allegations made in the lawsuit Roane knew he was not in danger.

As Roane emerged from his vehicle, Jax began barking at and approaching Roane. Roane responded by backing away from the dog and drawing his firearm, while Ray ran to the zip-lead and began shouting Jax’s name. “In a short moment,” Jax reached the end of the zip-lead and “could not get any closer” to Roane. Roane observed that the dog could not reach him, and further observed that Ray was now holding onto Jax’s fully-extended lead and continuing to call Jax’s name. Roane therefore stopped backing up.

Roane's decision to end his retreat signalled he knew he was able to avoid any contact with the dog whose area he had entered and proceeded into over the protests of other law enforcement officers. That should have been the end of it.

Instead, this was the end of it.

Roane took a step forward, positioning himself over Jax, and fired his weapon into the dog’s head. The dog died from the wound.

Instead of being stripped of his "Human Race Participation Card," Officer Roane will only be stripped of his immunity for his apparent cold-blooded killing of an animal he recognized posed no threat to him as long as he remained outside of the zip-line's reach.

Unimaginably, the lower court said this was all fine and reasonable.

On September 20, 2018, the district court dismissed Ray’s federal claim for unlawful seizure of Jax and declined to exercise supplemental jurisdiction over the remaining two state-law claims. In so doing, the district court concluded Roane’s actions had been reasonable under the totality of the circumstances and he would be entitled to qualified immunity.

Oh absolutely not, says the Fourth Circuit. Taking the allegations in favor of the complainant, there's plenty that's not settled here and it's certainly fucking not settled when it comes to Roane's actions once he moved out of harm's way. Stepping back in to kill a dog that could not reach him isn't reasonable by any stretch of the imagination.

Officer Roane tried the old QI trick: state that no precedent exactly on point exists. In other words, no other cop killed a 150-lb German Shepard named "Jax" in this backyard, in this jurisdiction, at this time of day, etc. QI has become "Steamed Hams" and every apparently unjustified rights violation can't be a cop's fault because the rapidly-evolving situation is the Aurora Borealis localized entirely in this part of the country at this time of year etc.

The court declines to swing at this bad pitch. QI isn't just about point-by-point precedent. It's also about the reasonableness of the officer's actions. And it doesn't see anything reasonable about Officer Roane's decision to shoot a leashed dog in the head after ensuring he could safely do so.

Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.

Roane's wish to have his novel dog-killing recognized as novel by the Appeals Court fails. "Reasonable" still means "reasonable," even if this officer found a new way to kill someone's pet:

Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.

The court says that even if the cop found a cool new way to kill dogs, it's not going to hand out immunity without a fuller examination of the facts.

We acknowledge that there is no “directly on-point, binding authority” in this circuit that establishes the principle we adopt today. Booker, 855 F.3d at 543. Until now, we have never had the occasion to hold that it is unreasonable for a police officer to shoot a privately owned animal when it does not pose an immediate threat to the officer or others.

Gun down a defenseless dog and, well, have fun defending yourself in court, "on-point" precedent notwithstanding.

In Altman, we held that privately owned dogs are protected under the Fourth Amendment, and further established that the reasonableness of the seizure of a dog depends on whether the governmental interest in safety outweighs the private interest in a particular case. 330 F.3d at 203–05. Based on these broader principles alone, it would have been “manifestly apparent” to a reasonable officer in Roane’s position that shooting a privately owned dog, in the absence of any safety rationale at all, is unreasonable.

No immunity for Officer Roane. The case goes back to the trial court that failed so badly the first time around. If an officer can avoid interacting with a dog they perceive as threatening and still accomplish their objectives (i.e., arrest a suspect), then they should do so. Anything else is objectively (and subjectively) unreasonable. Roane placed himself in harm's way, ignored other officers' advice to not place himself in the dogs' play area, and killed a dog only after it had reached the end of its lead and no longer posed a threat to him. Fuck this guy. He deserves whatever the plaintiff can extract from him.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: dog, police, qualified immunity