Posted on 12/22/2016 7:59:39 PM PST by Elderberry
When is it constitutional for a police officer to shoot a dog during a raid? Any time it moves or barks, according to a federal appeals court.
In a ruling released Monday, the Sixth Circuit Court of Appeals found Battle Creek, Mich. police officers were justified in shooting two pit bulls while executing a search warrant for drugs on the home of Mark and Cheryl Brown in 2013. The Brown's sued the police department in 2015, arguing the killing of their dogs violated their constitutional rights.
The ruling creates a similar legal standard in the Sixth Circuit—which includes Michigan, Ohio, Kentucky, and Tennessee—that several other federal appeals courts have established, but it also appears to expand when it is acceptable for an officer to shoot a dog.
After breaking through the Brown's door, one Battle Creek officer testified that the first dog "had only moved a few inches" toward him before he shot it. The second dog ran into the basement.
"The second dog was not moving towards the officers when they discovered her in the basement, but rather she was 'just standing there,' barking and was turned sideways to the officers," the court narrative continues. "Klein then fired the first two rounds at the second dog."
Police departments around the country have been hit with expensive lawsuits for shooting family pets in recent years, following a 2005 Ninth Circuit Court of Appeals ruling that the unreasonable killing of a dog by a police officer is an unconstitutional "seizure" of property under the Fourth Amendment of the Constitution. In September, a federal jury ordered the city of Hartford, Connecticut, to pay a whopping $200,000 to a family whose St. Bernard was shot by city police in 2006. Commerce City, Colorado, settled a dog shooting case in January for $262,500.
The Sixth Circuit readily agreed with its sister court's constitutional standard, but it found the Battle Creek officers' actions were reasonable because they had no knowledge of the dogs until they arrived at the house, and because there was no witness testimony rebutting the officers' narrative of what happened inside.
"The standard we set out today is that a police officer's use of deadly force against a dog while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer's safety," the court wrote.
As I reported in my November investigation of several ongoing lawsuits against the Detroit Police department for shooting family dogs, owners' accounts often differed wildly from the official police narrative of events. The officers almost always described dogs as "lunging" and "vicious" to justify their status as an imminent threat.
Yet, this is the totality of the Sixth Circuit's reasoning for the reasonableness of the shooting of the second dog:
"Officer Klein testified that the dog, a 53-pound unleashed pit bull, was standing in the middle of the basement, barking, when he fired the first two rounds," the court wrote. "The officers testified that they were unable to safely clear the basement with both dogs there. Therefore, we find that it was reasonable for Officer Klein to shoot the second dog."
The Sixth Circuit's definition of "reasonableness" here is so broad that it would it appear to classify any dog that is not standing still and silent as an imminent threat.
Detroit attorney Chris Olson, who is representing several dog owners suing the Detroit Police Department, says that while the ruling in many ways hews to the established Ninth Circuit standard, it departs significantly enough that it could be considered a circuit split—often a favorable factor in the Supreme Court's decisions on whether to review cases.
"To the extent that the case suggests that you can shoot a dog just because it's not moving and you have to clear a room, I just don't buy it," Olson says. "And I don't think the Ninth Circuit case supports that kind of activity."
Michael Oz is the director of a documentary examining police shootings of dogs, Of Dogs and Men, that was released this summer. He says the case would set an objectively unreasonable standard for dogs who end up in the line of fire.
"The greatest dog trainer in the world will not be able to keep a dog still and silent in the case of a dynamic entry like that," Oz says. "That's just not in their nature. If the standard that needs to be met to shoot is either moving or barking, then we can just assume that standard fits every dog [police] will ever encounter. It's the same as no standard."
Battle Creek Police Chief Jim Blocker told the Battle Creek Enquirer he was pleased with the ruling:
"It was a good ruling," Police Chief Jim Blocker said. "It pointed out some things we have to improve upon, but supported our operating concept that officers must act within reason."
Blocker said "officers have milliseconds to make a decision and it is a judgment call and based on too many variables. Ensuring officer safety and preventing the destruction of evidence must be protected."
Police dogs however, have more legal protection than “civilian” humans. Kick one of their dogs that’s attacking you and you’ve assaulted a police officer...
I don’t want to see open season on police dogs. I don’t want it open season on private citizens dogs either.
Both dogs should be respected.
If a big vicious dog is a threat, then an officer should have the right to protect himself.
On the other hand, if it’s a smaller dog, the officer should not have the right to destroy it.
As for a police dog being seen as “an officer”, that’s too much. There should be special statutes set up to protect the dogs, but if those dogs are causing real damage, a person should have the right to defend themselves also.
I have some mixed views on the use of police dogs.
I’m not convinced that animals clamping down on you with their teeth is a justifiable use of force.
I’m not in favor of police shooting anyone’s dog, unless that officer is being directly threatened by the dog. I view police interactions with people the same way.
Neither being a big scary dog, nor carrying a gun, should be a capital offense.
I agree with your first thought there. Interpretation gets real sticky there though. The other day an incident was on the forum where an officer shot a dog for growling even though the dog was not looking at him. I thought that was a very poor example of reasoning.
In dog language that was more likely to mean, I am standing my ground, but I am not challenging you. Leave me alone, and we’re good. If the dog had been looking the officer in the eyes, that would have been more problematic. That would have been a direct challenge.
The side view is generally an acceptance of inferior status, unless pushed into a defensive position, where the dog could be expected to lash out in defense.
Carrying a gun is fine, but when officers show up you need to adjust. It’s very dangerous to retain a gun in your hand once the officers are on scene. Holster it or follow directions.
Do not make threatening moves with it.
As they said in law school, hard cases make bad law.
And you’re right, threads like this one tend to devolve quickly. Pit bull owners are passionate people.
I once found a stray pit-bull “type” with no tags; did my best to figure out if someone was looking for him. He was a sweetie. I put him in the local shelter, then found out he would be put down, because they were illegal in Denver county.
So a friend adopted him (I paid), and we drove him to a no-kill shelter in a neighboring county. Wish I could remember her name; she was a law school friend.
But they can also be quite dangerous. I was pregnant at the time and would never have wanted him alone with my child.
I post this at my own peril. ;). Please don’t flame me! Dog threads are almost as bad as evolution/creation threads.
Oh Dear Lord, keep digging, Julie.... :(
Years ago I had a cop pounding on my door and shining his flashlight through the glass in the door. It was around 3 a.m. and I was awakened by this and my dogs going crazy. I did not know it was a cop at first. Seems a car had slid off the icy road and was in the ditch across from my house. The cop did not bother to run the tag to determine the address, he was pounding om my door with his flashlight and yelling to come to the door. I looked out of my bedroom and down the hallway and said I would be there in a second. i was in my underwear so I threw on a trench coat and had my Mossy 500 12 ga underneath with only one arm in the sleeve and one underneath. that cop was really nasty and was accusing me of leaving the car in the ditch. The dogs were both large and protective and were picking up on the harsh language and I had a hard time keeping them from getting through the cracked door.
That cop created the bad situation smacking my door with his flashlight and yelling at 3 a.m. then shining the flashlight through the glass on the door. He could have called in the plate and seen it was not registered to my address. If he had even reached toward his gun he would have gotten a face full of 00 buckshot. I expect my dogs to bark and be defensive in that kind of situation. This judicial ruling will endanger cops because citizens will assume they are going to kill their pets.
It is very irresponsible to leave any dog alone with a baby or small child. That’s very basic common sense stuff.
It is also not good to get a dog before learning all one can about that breed. For the owner’s sake as well as the dog’s well being.
We have been secondarily involved with rescues (as foster dogs) for years. Usually pittys or pit mixes, though not all.
With *any* dog, the key is a thorough knowledge of the canine species and the breed. Dog owners who follow that rule appear to be the exception. Pretty much typical of people.
Most here are so primed for conflict when dogs are part of the mix that they completely missed the point of this thread. Frustrating. The focus here is what limits if any should be placed on LEO in using deadly force on a living creature. And how do we arrive at those limits? The reality is that it is a very small step from shooting dogs to shooting people. We are already seeing plenty of that with tactical assault teams executing no knock invasions on non violent suspects.
This is the sort or chickenshit that gives BLM thugs credibility. Cops and courts are out of control ... they had better learn to police themselves, or the will BE policed ... and they won’t like it.
You are so right.
When my son was a toddler we had a black lab and a Chow Chow mix. The first one was named Claudius, the second, Merlin.
Claudius (Claudy) was great around our son. But Merlin (,Merly Moo), a Chow Chow mix, had been dominant and aggressive from day one. He was an 8 week old puppy and proceeded to attack our one-year lab when we brought him home. He later attacked a st. Bernard, at least five times his size.
We brought him to three different veterinarians who all told me to put him down.
I tried many things including doggy antidepressants.
Then one day Merlin snapped at my son who was about 18 months old, when he was playing with his tail.
Shortly after, my mother passed away and I had to fly to Chicago. I had to get their shots in order to board them. I gave Claudius his vaccinations.
And then it was like my mother was speaking to me and she said, don’t put your son in danger. And I realized I would never forgive myself if my son was disfigured or worse. So I gave him a different shot.
I held Merly Moo while he died.
He was just a very protective dog. But when we brought our son home, I guess he thought he had to protect us from him.
The whole time driving back from the veterinarian, I kept thinking life is a tapestry of Joy and Pain.
When my first child was born, I knew I needed to get a dog for him to grow up with. I chose a lab puppy. Later, I realized that one dog is not enough and added a Newfie/Lab mix to the family. Neither dog would hurt a fly. The neighbor’s cat would come over and eat out of their bowl. When the cat had a litter, she brought all the kittens into my yard to be safe. My son would climb up onto the Newfie and sleep on top of him.
+1
No criticism of you, but under those circumstances I wouldn’t have answered the door.
That is so sweet.
It is so wonderful for children to grow up with dogs. Thank you for the post, FRiend. Happy New Year!
But my dogs were at the door. And I am not one to back down from a “situation”. That is why I had a shotgun under my trench coat. Someone banging on my front door at 3 a.m. and shining a flashlight in and I am going in armed. That stupid and loud mouth cop does not realize how close he came to getting himself with head blownn off.
You may be right. Imho, though, it is always best to avoid a bad situation if possible.
Dumb comment. The case sets precedence and the dog was not attacking them. This is an idiotic decision which needs to be overturned, Dogs in our society are family members. This is not an Islamic country and cops are not Gestapo. And, apparently, the Sixth Circus has no Solon on it.
“:^)
***Well, in this case, they were pit bulls. I can understand the decision.***
Until it’s your dog you ignorant ass hat. The dog in the basement was not facing the officer, was not moving, only barking, how was that dog a threat?
You shouldn’t talk about things you know nothing about.
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