After totaling the number of dog shooting news stories from across the country, activists from Puppycide: The Documentary, claim that statistically a dog is shot by law enforcement every 98 minutes. This figure is a projection because there are no state databases that keep track of these incidents. Further, dog shootings by law enforcement are not a category on municipal crime reports. “Neither the FBI nor the Bureau of Justice Statistics collect data on dog shootings.” This lack of data makes it hard to get an accurate understanding of how often this occurs.
Despite the lack of data collected, people are becoming aware of this problem because some dog shootings have become national news. In 2008, a police SWAT team raided the home of the mayor in the Prince George's County town of Berwyn Heights. During the execution of the raid, they shot and killed his two dogs (one while attempting to running away), after he had allegedly brought in a 32-pound package of marijuana that had been delivered to his doorstep. In 2010, the Columbia, Missouri SWAT team raided Mr. Jonathan Withworth’s home for marijuana and shot two of his dogs, killing one in the process. In 2013, Leon Rosby’s Rottweiler was shot four times after officers detained Mr. Rosby in the street. That same year, Buffalo police officers raided the wrong house and killed Adam Arroyo, an Iraq War veteran’s, two-year-old dog. In Buffalo alone, police officers have opened fire at ninety-two dogs since 2011, killing the majority of them. In October 2014, Mr. and Mrs. Henderson lost their pit bull when it escaped from the yard and was fatally shot by a Clerburne, Texas officer during their retrieval. A month later, a Wisconsin police officer shot and killed a three-year-old cattle dog during a raid on a suspect’s house. Unfortunately, these are just a few of the many incidents that occur throughout the country.
Undoubtedly, the most commonly asked question is why do tragedies like this occur. Some reasons offered are: that the officer perceived that animal as a threat; that some animals are bred and trained by their owners to be used as a weapon; that there are instances of miscommunication; that an owner’s companion animal may be barking and acting protectively; and poor internal planning with regards to the execution of search warrants.
The question why is usually followed by an inquiry into what remedies or recourses are available to a pet owner in the wake of these tragedies. When a pet is shot, several issues come into play that affect whether a pet owner has viable course of action. These issues include, state law, constitutional law, and qualified immunity. Because these issues vary from state to state, the circumstance behind each shooting must be evaluated on a case-by-case basis.
For the most part, property laws govern an owner’s rights related to ownership of their pets, control of their pets, and redress for violations. “Some state statutes are clear and concise and only directly address the classification of dogs as personal property. Other state statutes are more detailed and include descriptions relating to all types of personal property in general including items such as criminal ramifications of interference with the property and subjection of the property to personal property taxes.” State statutes may also address the facts surrounding the shooting of a pet. Some statutes address dangerous animals, loose animals, unlicensed animals, and holding periods for loose animals that have been captured. “These statutes relating to these different topics can come into play when determining whether an official who shoots an animal was acting reasonably or properly at the time of the shooting.”
As seen in the cases portrayed by the media, many times the shooting of pets occurs during the execution of a search warrant on a pet owner’s home, which has Fourth Amendment implications. The question now becomes whether the injury or killing of a pet can be classified as an unlawful seizure, violating rights under the Fourth Amendment. The text of the Fourth Amendment states “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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Pets are considered personal property and the Supreme Court has held that personal property is considered an effect for purposes of being consider a seizure under the Fourth Amendment. See United States v. Place, 469 U.S. 696, 701 (1983). Additionally, the Supreme Court held that a seizure of personal property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113(1984). Meaningful interference includes the destruction of property. “The destruction of property that is not necessary to a law official’s duties is considered an unreasonable seizure of property under the Fourth Amendment.” A determination of unreasonableness by the court is done based on the facts of the particular case, and unreasonableness and immunity are linked together.
Police officers and their departments can be sued but are initially immune from liability unless that immunity can be pierced. A police department or the officer’s municipality’s immunity can only be defeated “if there is a direct casual link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). This deprivation must amount to a deliberate indifference to the rights of persons with whom the police come into contact. Id.
An officer’s individual immunity is also a factor. “When an officer conducts a search of acts “under color of law” in his official capacity as a police officer, he is generally not subject to liability under 42 U.S.C. §1983. However, this immunity can be defeated if one can show that the officer’s actions violated a clearly established constitutional right, and that under the circumstances, a reasonable official would have known that their conduct violated the right. See Anderson v. Creighton, 483 U.S. 635 (1987). Showing that a pet owner’s constitutional rights were violated is the easier part of the two criteria to show. The shooting and killing of a pet is akin to the destruction of property, and Jacobsen established that destruction of property does qualify as a meaningful interference of a person’s possessory interests in their property, which constitutes an unreasonable seizure under the Fourth Amendment.
The second criteria, showing that a reasonable official would have known that their conduct violated the pet owner’s constitutional rights, is more difficult to demonstrate because it involves more than just showing that the shooting of a pet occurred. The court will consider the totality of the circumstances surrounding the shooting situation. Courts will consider the aforementioned factors such as perceived threat, actual threat, being on the loose, breed, and also look to applicable state statutes. If these factors lend themselves to a finding that a reasonable officer would have acted differently, immunity can be defeated.
“A final important thing to remember with respect to an individual officer’s immunity is that if an officer’s actions are unlawful (i.e. reckless, wanton, or unnecessary), the fact that he is acting under a valid warrant or valid government interest will be moot. A legal purpose does not overcome improper or unreasonable actions with respect to constitutional violations.”
There have been several cases going back as far as 1963 that held that killing someone’s pet was an unreasonable Fourth Amendment seizure. For many of these cases the verdict came down to issues of immunity and state law. In City of Garland v. White, 368 S.W.2d 12 (Tex.Civ.App. 1963), the court looked to Texas’ loose dog and vicious dog statutes to determine that the officers were personally liable for their trespass and wrongful actions in the death of the plaintiff’s dog. Similar holdings were issued in Lesher v. Reed, 12 F.3d 148 (8th Cir.1994), Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994), and Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001).
In Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985), the court held that there was no violation, but stated that “while the entry onto the land was not unreasonable, it felt that the district attorney had given the deputies somewhat sketchy legal advice when he told them to destroy the dogs, and that the officers’ conduct in doing so was offensive to the court. The court noted that the law clearly intended the officers to make an honest attempt to retain, control, and capture the dogs before shooting them and that shooting the dogs should have been a last resort.
Since pet ownership is statistically high in the United States, practitioners may unfortunately have to advise a client dealing with these issues. Staying abreast of these issues, which are adjacent to criminal law areas such as Fourth Amendment violations, can provide redress and hopefully, some closure to a tragic situation on a micro level. On a larger scale, some believe that tackling this problem will require training in non-lethal measures to control dogs in the line of duty.
Stephane L. Plantin
Staffer, Criminal Law Practitioner
Photo by Pharaoh Hound via Wikimedia Commons