Hush, Puppies

A widely misrepresented federal court ruling deemed that the shooting of two dogs during the execution of a search warrant was justified, but it did not give police sweeping authority to shoot and kill dogs.

Claim: The federal government passed a law permitting police officers to shoot dogs if they bark or move.

MIXTURE

WHAT'S TRUE: A federal court ruled that the shooting of two dogs was justified.

WHAT'S FALSE: While the court's decision may be cited as precedent in similar cases, no portion of it could reasonably be construed as broad license for police officers to shoot any or all dogs encountered on the job; multiple mitigating factors cited in the ruling was not in social media retellings.

Example: [Collected via e-mail, December 2016]

I was hoping you could look into the rumor that the federal government has passed a law allowing police officers to shoot a persons dog for barking or moving while entering a persons home. This was something i have been seeing all over facebook on wgn tv news Facebook page.

Origin:A 26 December 2016 article published by the Dogington Post reported that a federal court ruling then-recently allowed for police across the United States to shoot dogs if they "move" or "bark" when an officer enters a home:

A ruling by the 6th Circuit Federal Court in Michigan last week gave police nationwide the authority to shoot a dog if it moves or barks when officers enter a home.

The item embedded a full copy of the ruling (Brown v. Battle Creek Police Department) but many were exposed only to the initial paragraphs, as well as a headline that said police have the authority to shoot a dog "if it barks or moves." A 28 December 2016 report (widely repeated across local news affiliates) began in a similar way:

A police officer can shoot a dog if it barks or moves when the officer enters a home, under a new federal court ruling issued this month.

Although that item concluded with a more accurate assessment of the ruling, the headline suggested that a court had ruled all police officers can shoot all dogs for infractions as minimal as moving or barking (expected activities when strangers approach or enter homes):

Judge Eric Clay stated “a police officer’s use of deadly force against a dog while executing a search warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when... the dog poses an imminent threat to the officer’s safety.”

As the concluding paragraph noted, the ruling does not grant police authority to shoot dogs on sight. However, given the affection pet owners have for their companion animals, the claim began sweeping social networks alongside widespread concerns that dogs were no longer safe in the presence of police officers. 

The 19 December 2016 ruling centered on the execution of a search warrant relating to an investigation of drug-related activity in 2013. Two pit bulls were shot during the raid, an outcome their owners said violated their Fourth Amendment rights against unreasonable search and seizure.

The basic facts were reported in the article quoted above, and largely written from the ruling:

The dogs’ owners, Mark and Cheryl Brown, filed a lawsuit against the Battle Creek Police Department and the city, claiming that killing the dogs amounted to the unlawful seizure of property in violation of the Fourth Amendment ... [a] district court sided with the police officers and the Browns filed an appeal with United States Court of Appeals for the Sixth Circuit.

According to the lawsuit, Officer Christof Klein testified that when he entered the house, a large, brown pit bull jumped off the couch, aggressively barked at the officers and lunged at him ... Klein stated that the first pit bull “had only moved a few inches” between the time when he entered the residence and when he shot her, but he considered the movement to be a “lunge.” ... Klein fired two rounds at the second dog ... a second officer shot her because she was “moving” out of the corner and in his direction, the lawsuit states.

The wounded pit bull ran behind the furnace in the back corner of the basement. A third officer noted that “[there] was blood coming out of numerous holes in the dog, and . . . [he] didn’t want to see it suffer” so he shot her again, to “put her out of her misery.”

Much of the decision [PDF] outlined precedents from which the court's conclusions were ultimately drawn, citing cases in which such losses were deemed unreasonable as well as citing circumstances under which the collateral death of a pet or pets was found to be objectively reasonable:

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. “A ‘seizure’ of 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). As the Ninth Circuit reasoned, “[t]he emotional attachment to a family’s dog is not comparable to a possessory interest in furniture.” San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005) (“Hells Angels”).

A large number of this Court’s sister circuits have already concluded that, “‘the use of deadly force against a household pet is reasonable only if the pet poses an [imminent] danger and the use of force is unavoidable.’” Robinson v. Pezzat, 818 F.3d 1, 7 (D.C. Cir. 2016) (quoting Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (holding that the unreasonable killing of a companion dog constitutes a seizure under the Fourth Amendment). See also Mayfield v. Bethards, 826 F.3d 1252, 1256 (10th Cir. 2016) (holding that killing a dog constitutes a violation of the dog owner’s Fourth Amendment rights absent a warrant or some exception to the warrant requirement); Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (holding that the unreasonable killing of a companion animal constitutes an unconstitutional seizure of personal property under the Fourth Amendment); Hells Angels, 402 F.3d at 975−78 (holding that the killing of guard dogs was unreasonable under the Fourth Amendment where “the officers were not presented with exigent circumstances that necessitated killing the dogs”); Brown v. Muhlenberg Twp., 269 F.3d 205, 211 (3d Cir. 2001) (same); cf. Altman v. City of High Point, 330 F.3d 194, 204−05 (4th Cir. 2003) (holding that privately owned dogs were effects subject to the protections of the Fourth Amendment but officers’ actions of shooting and killing the dog were objectively reasonable).

The court decided that "as a matter of first impression there is a constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized," language that conflicted with insinuations that the ruling disregarded pets' lives: 

Every circuit that has considered this issue has concluded that the unreasonable killing of a dog constitutes an unconstitutional “seizure” of personal property under the Fourth Amendment. Likewise, the United States District Court of the Eastern District of Michigan, in an unreported opinion, stated that “the federal courts ‘have consistently recognized that a law enforcement officer’s killing of a pet dog constitutes a destruction of property and therefore a seizure under the Fourth Amendment.’”

Earlier testimony from the officers indicated that the dogs were not just moving and barking, but lunging:

As the officers approached the front door, Officer Klein testified that he could see the two pit bulls both barking aggressively, “digging and pawing,” and “jumping” at the window. (Klein Dep. at 79.) At his deposition, Officer Klein was asked what were the “aggressive behaviors displayed by the dogs, specifically, that indicated to you that yourself or other members of your ERT group were in immediate danger of harm, serious injury, or death?” (Klein Dep. at 97.) Officer Klein answered that:

[it was the] [d]eep aggressive barking, consistent barking, not just one or two barks, but steady, aggressive. Lunging towards the windows as we made our approach. The dog moving from the couch directly to the front door after it was breached. The fact that the same dog even after it was shot stood at the bottom of the stairs and turned towards me, continuing to bark aggressively in the same manner, and then the second dog, even after that happened, after firing three rounds at the first dog, the second dog turning, pausing as it was moving across the basement, it stopped and turned and was barking.

The officers here described a scenario during which the dogs' behavior posed what they perceived as an imminent threat to their safety. A second officer testified that the decision to shoot the dogs was made almost immediately.

The court ruled that the plaintiffs continually failed to demonstrate that the dogs did not behave in an aggressive and alarming manner as the raid began. The decision further held that in the absence of mitigating factors, a jury would conclude the specific action was reasonable (but not saying that this assessment applied to all dogs in all situations):

We agree with [an earlier ruling] and conclude that a thorough review of the record demonstrates that Plaintiffs failed to rebut material facts. The disputes as to the timing of the first shots and the barking of the dogs are immaterial to the issue of whether the officers’ use of force was reasonable because the testimony that the dogs threatened the officers’ safety was unrebutted.

At the hearing, the district court held that, even if it did take the facts in the light most favorable to Plaintiffs, the unrebutted fact that Officer Klein said the large brown pit bull lunged at him before he shot her would still establish that his actions were reasonable. (R. 72 at 24, 45.) A jury could reasonably conclude that a 97-pound pit bull, barking and lunging at the officers as they breached the entryway, posed a threat to the officers’ safety and it was necessary to shoot the dog in order for them to safely sweep the residence and insure that there were no other gang members in the residence and that evidence was not being destroyed.

The court also looked over the circumstances under which the second dog was shot, concluding that its behavior and presence presented a "reasonable cause for alarm" as officers looked through the basement:

Officer Klein reasonably fired two fatal rounds at the pit bull. The officers testified that the basement was filled with various objects and it was difficult to determine if there was anybody in the basement hiding behind one of the large objects. The officers had to sweep the basement, and the wounded animal was preventing them from entering the basement and safely sweeping it. Therefore, the seizure of the first dog was reasonable.

With regard to the second pit bull, the question before the district court was whether Plaintiffs presented a genuine issue of material fact as to whether it posed an imminent threat to the officers’ safety. The dog was not present in the entryway and was not standing at the bottom of the basement stairs as the officers descended. The second pit bull was in the basement when they descended the stairs and was barking as the officers were attempting to enter and clear the basement. 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 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 ruling concluded:

Viewing the facts and all reasonable inferences in the light most favorable to Plaintiffs, we find that a jury would conclude that Officer Klein, Officer Young, and Officer Case acted reasonably in shooting and killing Plaintiffs’ dogs. Summary judgment was therefore appropriate.

No portion of the ruling could be construed as sweeping permission for all officers to shoot dogs for barking or moving. While the court sided with the defendants, members of the court established that a particular set of circumstances justified shooting the dogs, and repeatedly affirmed that in normal circumstances such an action does constitute a violation of the Fourth Amendment.

Originally published: 28 December 2016

sources:

Arnold, Brandy.   "Federal Court Ruling: Police Can Shoot A Dog If It Moves Or Barks When Officers Enter A Home."
    Dogington Post.   26 December 2016.

WREG.   "Federal Court Rules Police Can Shoot A Dog If It Moves Or Barks When Officers Enter A Home."
    28 December 2016.

United States Court Of Appeals For The Sixth Circuit.   "Brown V. Battle Creek Police Department."
    19 December 2016.



Kim LaCapria is a New York-based content manager and longtime snopes.com message board participant. Although she was investigated and found to be "probably false" by snopes.com in early 2002, Kim later began writing for the site due to an executive order unilaterally passed by President Obama during a secret, late-night session (without the approval of Congress). Click like and share if you think this is an egregious example of legislative overreach.


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