On August 31, 2015, DeKalb County police, in Atlanta, Georgia, responded to a 911 call about a suspicious person and a possible burglary in process. The caller did not give an address and only described the house. Three police officers went to a house that matched the description and proceeded to the back door. The officers entered through the back of the home and encountered the homeowner and his dog. Without asking questions, they began shooting immediately, killing the dog and wounding the homeowner. The officers had responded to the wrong house. A peaceful evening at home was interrupted by police invasion, killing of the family dog, and shooting the homeowner – all because the police officers responded to the wrong residence and opened fire immediately. “Police: Friendly fire likely wounded officer in wrong-house encounter,” Sept. 1, 2015, CNN, available at http://www.cnn.com/2015/09/01/us/georgia-wrong-house-shooting/.
This incident is just one example of “puppycide” – a term that is being used more and more to describe the egregious and often avoidable situations in which police officers shoot domestic pets. Citing police officer safety, these shootings have become more commonplace and a cursory internet search will provide countless examples of police shooting dogs without provocation. Recently, the first attempts to track statistics on these shootings nationwide was started by an advocacy group, PuppycideDB. The group collects and organizes data related to these shootings on their website at www.puppycidedb.com.
Despite the circumstances present in the case above, the legal system may offer little help as pets are mere property in the eyes of the law. While the law regarding animals continues to evolve, one thing remains the same – animals are essentially treated as property. Contrary to their treatment under the law, a 2012 survey indicated that 63.2% of American see their companion animal as part of the family. U.S. Pet Ownership & Demographics Sourcebook, American Veterinary Medical Association (2012). The fact that animals are not afforded the same protections under the law that humans are given correlates to the manner in which pet owners may bring about legal claims. Most lawsuits that involve domestic pets flow through the American judiciary system under the auspices of property law. In fact, animals are still considered to be property under the law of all fifty states.
Courts have struggled with this concept of animals as personal property and some have started to view animals as their own unique classification of property – quasi property. As stated in Morgan v. Kroupa, 702 A.2d 630, 633 (Vt. 1997), “modern courts have recognized that pets generally do not fit neatly within traditional property principles…[i]nstead courts must fashion and apply rules that recognize their unique status …” More recently, courts have stated, “[t]he emotional attachment to a family’s dog is not comparable to a possessory interest in furniture.” San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005).
While the fact that pets are property under state law limits recovery in lawsuits to market value in most jurisdictions, there are implications when a state actor injures or kills a pet. In fact, pets, as property, are protected under the Fourth Amendment unreasonable searches and seizures. The shooting of a dog by police or other law enforcement can then result in federal claims against police.
This paper will begin by outlining how legal claims for the wrongful shooting of dogs are brought in court under 42 U.S.C. §1983, which allows individuals to sue for deprivation of civil rights by those acting under color of law. Associated defenses of qualified and municipal immunity will also be discussed. The paper then examines briefly how state claims may factor into this type of litigation. The next section focuses on how litigation involving the shooting of pets has evolved in the past ten years. It then concludes with an examination of how states and police departments are attempting to reduce such incidents and what, if anything, legislatures are implementing to address legal claims.
II. Federal Claims
Pets are deemed personal property and will be protected under the Fourth Amendment of the U.S. Constitution. Just as law enforcement cannot unreasonably seize other property, they also cannot unreasonably seize an owner's dog. Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994). Courts have also held that the shooting of a dog constitutes a seizure under the Fourth Amendment. Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003). Because pets are considered personal property in all fifty states, pet owners can bring constitutional claims that allege law enforcement officials wrongfully interfered with their property rights. Under federal law, the pet owner can potentially bring claims against the individual officer(s) and against the municipality itself. These claims are brought under 42 U.S.C. § 1983 (discussed infra in Section III). The two most common federal claims that are brought by pet owners are under the Fourth and Fifth Amendments, respectively.
A. Fourth Amendment
The most common approach pet owners take in bringing a claim for the wrongful killing of their companion animal is through the Fourth Amendment, which 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.
Courts have held that for Fourth Amendment purposes, dogs qualify as property. Therefore, the police as agents for the government cannot unreasonably seize (kill) a companion animal. This issue of seizure always turns on whether or not the court finds that the officer’s killing of the dog was reasonable. When a dog is found roaming at large, the courts have found a stronger presumption of reasonableness when it comes to the destruction of companion animals, erring on the side of caution due to public safety concerns. Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001). Whether the dog is roaming at large or in the home, the determination as to whether a police officer acted reasonably is based on an objective test and does not turn on the subjective intent of the officer involved in the incident. Viilo v. City of Milwaukee, 552 F.Supp.2d 826 (E.D. Wis. 2008), aff'd in part, Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008). This objective test must be based on the surrounding circumstances of the incident, making eyewitness accounts particularly important to bringing a viable claim.
B. Fifth Amendment
The Fifth Amendment states in relevant Part, “No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” There are two relevant portions to the Fifth Amendment that must be considered when evaluating whether a pet owner can bring such a claim against the police officer and municipality: (1) due process and (2) takings clause.
The Fifth Amendment has been incorporated against the states by the Fourteenth Amendment and as such applies to cases in which pet owners bring action in state court. It is well established that the government may not take personal property from citizens without just compensation for that property. Many states have enacted statutes that require the person who claims their property has been unjustly taken by the government to first request the compensation they believe to belong to them before bringing such a claim in court. If a state requires such action on the part of the citizen, and such a request has not been made in accordance with statute, the court will undoubtedly dismiss the claim as unripe.
Fifth Amendment claims can also be difficult for pet owners because courts, such as in the case of Garcia v. The Village of Tijeras, 108 N.M. 116 (1988), have held that “property and property rights are held subject to the proper exercise of the police power.” Courts have reasoned that this policy is one that is in effect for the benefit of the public health, convenience, and safety and general welfare of the public as a whole. Therefore, in order to fight a Fifth Amendment claim in litigation, a municipality need only claim that the taking of the animal in question was within their well-established police power.
However, the decision as to whether or not a taking, specifically the shooting of a domestic pet, is a legitimate exercise of police power is fact-specific. In most dog shooting cases, the facts are debated amongst the eyewitnesses. Specifically, in Warboys v. Proulx, there was great contradiction in the testimony given by the dog’s owner and witnesses compared to the police officer who shot and killed the dog. The family dog, a pit bull mix, weighing about 90-100 pounds, came out the back door while the officer was chasing an unrelated suspect through the family’s yard. One of the officers yelled, “Pit bull!” Immediately, the dog moved towards the officers, who also had a canine with them. The dog’s owner yelled to the officers that the dog would not hurt them. One of the officers then pulled out his service pistol and fired one shot into the dog’s head, killing him instantly. In this case, the court was asked to rule on a motion for summary judgment and accepted the testimony of the dog’s owner as true, that the dog was not barking or growling, was in a friendly mood with his tail wagging, and that he was a gentle, loving pet that had never attacked an animal or a person. However, even in light of these circumstances, the court still ruled that the police officer acted reasonably and was legitimately using his police power. Warboys v. Proulx, 303 F.Supp.2d 111 (D. Conn. 2004).
III. Bringing Federal Claims Under Section 1983
These constitutional violations will typically be brought under 42 U.S.C. § 1983. Section 1983 is a federal statute that allows citizens to file lawsuits based upon a deprivation of a constitutional right that stems from an official state action. This federal statute states:
Every person who, under color of any statute, ordinance, regulation custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that it in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purpose of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983. In the context of police shooting pets, there are three prongs which must be satisfied in order for a pet owner to bring a Section 1983 claim: (1) law enforcement acted in an official state capacity; (2) the act constituted a seizure; and (3) the seizure was objectively unreasonable. Adam P. Karp, Causes of Action Under 42 U.S.C.A. § 1983 for Death of or Injury to Animal, 48 Causes of Action 2d 527 (2011).
Most incidents that involve police shooting dogs involve officers while on duty, responding to calls or patrolling neighborhoods. Because these officers are state actors acting in their official capacity, the first prong is easily satisfied. As previously discussed, the killing of a domestic pet is a seizure within the meaning of the Fourth Amendment, thus the second prong is equally satisfied.
The third prong of the Section 1983 claim is often the most difficult to satisfy. Although the reasonableness of the officer’s actions are evaluated under an objective standard, there is always inherent subjectivity in this process. Courts must balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386 (1989) (quoting Tennessee v. Garner, 471 U.S. 1 (1985)). Reasonableness often hinges upon how law enforcement carried out the seizure. Courts consider a variety of factors when evaluating this third prong in the context of police shooting pets, including “(1) whether the owner was present, (2) whether the officer responded to a call regarding the dog, (3) whether the officer knew of the dog’s violent history, (4) whether the officer followed police protocol in the course of the incident, and (5) whether the officer provoked the dog.” Kaylan E. Kaatz, Those Doggone Police: Insufficient Training, Canine Companion Seizures, and Colorado’s Solution, 51 San Diego L. Rev. 823 (2014). A key factor that courts often place great emphasis upon is whether the pet poses an immediate danger and the use of force is unavoidable. See Criscuolo v. Grant County, 540 F. Appx 562 (9th Cir. 2013); Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001).
IV. Qualified Immunity
While Section 1983 provides an avenue for pet owners to seek damages for the shooting of a pet, satisfaction of the three-pronged test is not a guarantee to recovery. Many pet owners’ claims are thwarted by claims of qualified immunity, both on the part of the individual police officers and the municipality itself. Defeating this immunity is a difficult undertaking that depends on both the existence of a constitutional right and the officer’s actions during the event.
A. Qualified Immunity of Police Officer
Courts have long held that a government official – the individual police officer – will be shielded from the burdens of defending a lawsuit that involves his actions while working in an official capacity if he can show that a “reasonable officer with the information he possessed at the time could have believed that his conduct was lawful.” Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001). Additionally, for the qualified immunity right to be clearly established, the official would have to sufficiently understand that what he is doing violates the right of a citizen. Qualified immunity protects police officers from civil damages so long as their conduct does not violate clearly established statutory or constitutional rights.
A police officer does not have automatic qualified immunity. Instead, there is a two prong test to determine whether or not the immunity applies. The court will ask: (1) Do the officer’s actions violate a clearly established constitutional right? (2) Under the circumstances, would a reasonable official have known that his or her conduct violated that right? Newsome v. Erwin, 137 F.Supp.2d 934 (S.D. Ohio 2000).
The burden lies with the pet owner to show that a constitutional right was violated and also show that a reasonable police officer, under an objective standard, would have known that he or she was violating this right. Again, this analysis will be fact-specific and having eyewitnesses other than police officers will be vital to the court’s assessment of these issues.
In recent years, courts have continued to follow this same analysis in evaluating whether an individual police officer is entitled to the protections of qualified immunity. In cases such as Andrews v. City of West Branch, Iowa, 454 F.3d 914 (8th Cir. 2006), the court considered whether a “reasonable officer with the information he possessed at the time of the shooting could have believed that his conduct was lawful in light of the law that was clearly established on the date of the incident.” (case discussed infra in Section VI) Courts have continued to approach questions of qualified immunity with a two prong approach – whether a constitutional right was violated and whether the right at issue was clearly established at the time and under the circumstances presented. Flint v. City of Milwaukee, 91 F.Supp.3d 1032, (E.D. Wis. 2015), reconsideration denied in part, No. 14-CV-333-JPS, 2015 WL 1523891 (E.D. Wis. Apr. 2, 2015). Analysis of qualified immunity in the context of police shooting pets is well-established and followed in state and federal courts.
B. Municipal Immunity
Converse to non-automatic immunity for police officers, police departments and municipalities are initially immune from a lawsuit unless their immunity can be defeated. In order for the immunity of a municipality to be defeated, there must be a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). The causal link can be shown in one of two ways:
- The municipality can be sued directly if it is alleged to have caused a constitutional tort through a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
- Alternatively, even if such a custom has not received formal approval through the body’s official decision making channels, a custom or usage, of a state for §1983 purposes must have the force of law by virtue of the persistent practices of state officials.
Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001).
This threshold can be difficult to overcome for pet owners. However, courts have cited lack of training for police officers can create an erosion of the municipality’s qualified immunity defense. Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001) (citing City of Canton, 489 U.S. at 388). Unfortunately, this scope of failure to train is narrowly construed by the courts. Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001) (holding that a reasonable trier of fact could not conclude that the need for further guidance was so obvious as to indicate deliberate indifference when the police officers received no formal training regarding handling of dogs and were only given guidance from their policy manual). The Supreme Court has refused certiorari in cases where there has been an unreasonable seizure of a pet being shot by a police officer and the officer was not entitled to qualified immunity. This issue is left to the lower courts to create and establish common law for which pet owners can recover against a police officer and the municipality itself.
Recent case law further illustrates the difficulties pet owners have in bringing claims against the municipality itself. In Viilo v. City of Milwaukee, 552 F.Supp.2d 826 (E.D. Wis. 2008), aff'd in part, Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008), police officers were given approximately one hour of training on non-lethal animal handling during a five month police training course. The Viilo court held that no reasonable trier of fact could find that this amount of training could amount to deliberate indifference on the part of the municipality. Further, in Criscuolo v. Grant County, 540 Fed.Appx. 562 (9th Cir. 2013), the court upheld the dismissal of the municipality from the lawsuit based upon the fact that although the office policy stated that “vicious and/or attacking” animals may be killed, the language did “not authorize unconstitutional conduct or give officers unbridled discretion to shoot any animal they encounter, even if it is not threatening.” The court held that because of this policy, no reasonable jury could find that the officer’s actions reflected the implementation of a generally applicable rule or custom on the part of the municipality. Municipal immunity in these cases is well-established and remains difficult to overcome for pet owners.
V. A Note on State Claims
Although most claims stemming from police shooting of pets will be brought under Section 1983 and be constitutional in nature, there are also potential state claims that may be brought. Many states, cities, and local municipalities have various statutes pertaining to dangerous animals, loose animals, unlicensed animals, and holding periods for captured loose animals. These various statutes can be relevant when determining whether a police officer who shot an animal was acting reasonably at the time of the shooting. See generally, La. Rev. State. Ann. 3:2771, Conn. Gen. Stat. Ann. § 22-358, Iowa Code Ann. § 351.26.
Additionally, it is important to note that if a pet owner’s state or municipality provides redress for the shooting of a pet, the pet owner should bring this claim at the same time any constitutional claim is brought. If a pet owner fails to list a state or municipal cause of action, the pet owner may be later precluded from pursuing this action under the legal doctrine of issue preclusion.
State claims may vary, depending on the applicable state statutes and facts and circumstances surrounding the shooting. When evaluating state and local statutes, pet owners must keep in mind that pets are considered personal property. Therefore, relevant statutes will not only refer to animals specifically, but may also simply refer to property issues.
Intentional Infliction of Emotional Distress (“IIED”) is a claim that more and more pet owners are bringing in their lawsuits. In general, claims of IIED involve intentional or reckless extreme outrageous conduct that causes extreme emotional distress. Restatement (Second) of Torts § 36 (1965). These cases can be difficult to prove, however, a small number of courts have begun to recognize the special bond between pet owners and their companion animals and have cited such in their decisions as early as 1964, “the affection of a master for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal because of its special training, such as a Seeing Eye dog or sheep dog.” LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla. 1964).
As previously stated, many Americans see their pets as family members. Therefore, it follows that many would expect to be compensated in a manner befitting that familial relationship. Some legal scholars have proposed that pet owners should be able to recover damages for the loss of their companion animal in similar fashion to those who lose their child. See Steven M. Wise, Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal, 4 Animal L. 33 (1998). However, the law currently does not support such a leap in the compensation for pet owners who have lost their pet.
VI. Evolution of Case Law
The cases below address many of the issues discussed above with regard to bringing federal and state claims against individual police officers, police departments, and municipalities. These cases were selected as indicative of some of the recent shifts in the courts’ approach to evaluating these issues in the context of reasonableness and damages available to pet owners.
A. Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003).
This case centers around multiple pet owners’ Fourth Amendment claims after their dogs were shot and killed by an animal control officer while running at large in the city. The plaintiffs (pet owners) brought suit under 42 U.S.C.A. § 1983, alleging that the officers’ actions violated their Fourth Amendment rights. There were two issues before the court: (1) Do privately owned dogs fall within one of the classes of property protected by the Fourth Amendment against unreasonable search and seizure? (2) If so, was the officers’ seizure reasonable?
In this case, there were several High Point ordinances governing dogs. Specifically, High Point Ordinance § 12-2-1(a) makes it unlawful for the owner of a dog to allow the animal to “run at large” in the city. The ordinance defines “at large” to mean “a dog that is not in an enclosure or otherwise confined, or is not under the control of the owner or other person by means of a leash, cord or chain.” High Point Ordinance § 12-2-1(b). Animal control officers were tasked with impounding animals found “at large.” Additionally, High Point Ordinance § 12-2-16(b) stated, “[i]t shall b lawful for the animal control specialist or police officers of the city to tranquilize or kill any dog at large within the city which cannot safely be taken up and impounded.”
In this case, there were several incidents when animal control officers shot and killed dogs that were roaming the public streets of the city. The encounters vary in each of the cases, from dogs who were wearing collars and tags, some were reported acting aggressively, and others were retreating from the officer when they were shot.
The court responded to the first issue presented affirmatively, stating that “dogs merit protection under the Fourth Amendment.” However, as to the second issue presented, the court found that the officers’ actions were reasonable in the killing of the plaintiffs’ dogs. Specifically, the court stated that in the context of animals running at large, “dog owners forfeit many [possessory interests] when they allow their dogs to run at large, unleashed, uncontrolled, and unsupervised, for at that point the dog ceases to become simply a personal effect and takes on the nature of a public nuisance.”
B. San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005).
In this case, the Ninth Circuit was confronted with the plaintiffs’ claims under the Fourth Amendment and the police officers’ qualified immunity defenses. The police executed a lawful warrant to search for evidence at multiple residences associated with the Hells Angels. Prior to execution of the warrants, the police were aware of dogs kept at the homes and saw signs posted on a gate stating the presence of a guard dog. Upon execution of the warrants, the police officers encountered the dogs, claimed they acted aggressively, shot, and killed the dogs. Two dogs were left unharmed the raids – one because he hid and the other because he was chained in the backyard.
The trial court denied the police officers their claims of qualified immunity and the appeals court affirmed the holding. In coming to this conclusion, the court relied heavily on the fact that the police teams had a week to plan to the execution of the entry and had advance knowledge that dogs were present. The police made no specific plan for isolating the dogs – “the officers developed no realistic plan other than shooting the dogs while serving the search warrants.” Although the court recognized a significant interest in maintaining officer safety, the justification provided by the police officers in this instance was unpersuasive as the officers were not surprised by the presence of the dogs at the scene. The police officers were not entitled to qualified immunity in this case as they should have known to create a plan to subdue the dogs by non-lethal means.
C. Andrews v. City of West Branch, Iowa, 454 F.3d 914 (8th Cir. 2006).
A year after the Ninth Circuit’s decision in Hells Angels, the Eighth Circuit dealt with similar legal issues – claims under the Fourth and Fourteenth Amendments as well as various theories of recovery under state tort law. The police department received a call reporting a loose dog, to which a police officer responded. The officer saw the dog several times throughout his pursuit. He parked his car in the plaintiffs’ driveway because he had seen a large black dog in the backyard of that address. He walked toward the fenced backyard with a dog leash in his pocket and fired two shots at a dog that was enclosed in the fenced backyard. Immediately, the officer realized he shot the wrong dog. The dog’s owner, and one of the plaintiffs, was standing just feet away from her dog, Riker, when he was shot and wounded. The officer fired a third shot, killing the dog, to end his misery. The plaintiff had just let her dog out in the backyard a few moments before to relieve himself. Prior to the shooting, the officer gave the plaintiff no warning and made no effort to inquire if Riker had been running loose prior to the shooting or if the backyard was completely enclosed (which it was).
The court took note of The West Branch Police Animal Patrol Policy, which stated “[o]fficers should utilize all available methods to obtain capture of animals running at large. The discharging of a firearm at an animal should be considered as a last resort and then only when conditions are safe to do so.” The court found that a reasonable jury could conclude that it was premature for the officer to resort to shooting what he believed to be the at-large dog.
Additionally, the court considered the officer’s claim of qualified immunity. The relevant state statute and local regulations mandated that all means of capturing an at-large dog be exhausted before resorting to killing the animal. Because the officer did not attempt to communicate with anyone in the home, did not request back-up or the tranquilizer dart gun, and the dog was not exhibiting any aggression, the court held that the officer knew at the time he shot Riker that he was violating the plaintiff’s clearly established right to be free from unreasonable seizures of property.
D. Brooks v. Jenkins, 220 Md.App. 444 (2014).
One of the most recent cases concerning the shooting of a dog by police that created a stir was Brooks v. Jenkins. Unlike the previous cases discussed, the plaintiffs in this case made both constitutional and common law state claims for wounding their dog while police officers executed a warrant against their son. Police officers came to the plaintiffs’ (Mr. and Mrs. Jenkins) door, warrant in hand, to arrest their son. Upon answering the door, Mr. Jenkins told police he was not sure if their son was home and said he would move their two barking dogs to an outdoor kennel. Mr. Jenkins headed to the backdoor with the dogs and one dog, Brandi, was in front of him. When turning the corner outside, he called Brandi to come, but before he could reach her, he heard a gunshot. The police officer had shot Brandi. Mr. and Mrs. Jenkins then rushed Brandi to the veterinarian, where she underwent surgery and fortunately survived.
The court expressly noted that the case revolved around “Mr. and Mrs. Jenkinses’ rights and the injuries they suffered…and the Deputies’ mental states at the time they acted.” In evaluating this case, brought in Maryland state court, the court noted that the Maryland Tort Claims Act did away with the principle of sovereign immunity in certain circumstances, “such that the State assumes liability for intentional torts and constitutional torts as long as they were committed within the scope of state employment and without malic or gross negligence.” If the employee did act with malice or gross negligence, the State does not assume liability for the conduct. The police officer and plaintiffs differed greatly in their interpretation of what took place and whether Brandi was acting aggressively. In upholding the trial court’s decision there was sufficient evidence for the jury to find the police officer acted with “utter indifference,” the court placed great emphasis on the dashboard video taken from the police officer’s cruiser.
Another significant issue in this case was the amount of damages awarded to the plaintiffs. A Maryland statute caps compensatory damages for the death or injury of a pet to a total of $7,500 in lost economic (not emotional) value and veterinary bills. Md. Code Cts. & Jud. Proc. § 11-110. This case dealt with a new issue before the Maryland appellate courts – How far does this cap reach? The court held that the trial court was correct to reduce the plaintiffs’ recovery for Brandi’s veterinary bills from the original $20,000 jury award to the statutory limit of $7,500. However, the court pointed out that nothing about the statute limited the plaintiffs’ ability to collect damages for “whatever non-pet damages they could prove, including their non-economic damages, for the [officer’s] grossly negligent violation of their constitutional rights.” The jury awarded the plaintiffs $200,000 based on emotional damages sustained. In holding this verdict was not excessive, again, the court relied heavily on the videotape evidence, which showed the plaintiffs as visibly upset. Additionally, the plaintiffs testified to how their lives had been greatly affected after Brandi’s shooting.
E. Analysis of Recent Decisions
The claims brought by pet owners and the courts’ legal analysis of such cases has not changed in the past several years. As previously stated, constitutional claims are brought under Section 1983 and if applicable, state tort claims are brought as well. Various state and federal courts have not shifted their analysis of these claims a great deal. The most common claim – unconstitutional seizure of property – still hinges upon whether the police officer was acting in an objectively reasonable manner.
Although the claims and legal analysis have not changed, various state and federal courts have seen a slight shift in the approach to applying facts and circumstances of a particular incident against this objectively reasonable standard. In general, most courts still tend to give the benefit of the doubt to police officers when it comes to evaluating an officer’s split second decision, citing the well-established police power doctrine. Police officers have dangerous jobs that often require quick decisions in order to prevent injury to themselves and the public. Over the past several years, courts have continued to recognize this reality which is often factored into the court’s analysis of objective reasonableness. See, e.g., Warboys v. Proulx, 303 F.Supp.2d 111 (D. Conn. 2004); Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003); King v. Arlington County, 195 Va. 1084, 81 S.E.2d 587 (1954).
In almost all cases of police shooting pets, the courts also take into consideration where the dog was located when it was shot. In one of the more recent cases, Andrews v. City of West Branch, Iowa, the court placed great emphasis on the fact that the dog was in a fenced-in backyard, likely posing no danger to the public at large (nor the officer, since he was on the other side of the fence). Conversely, in cases similar to Altman v. City of High Point, N.C., where dogs are running at large on public streets, courts are much more likely to find a police officer’s actions objectively reasonable. Citizens enjoy a great deal more privacy in their own homes and on their own property as opposed to on a public street – a reality the courts tend to embrace in recent cases.
One of the most significant shifts seen in state and federal courts in evaluating these cases is the role of objective eyewitness evidence. The courts have always been able to seek and hear eyewitness evidence from the police officer and bystanders, if available. In many of the cases, heard more than ten years ago, objective reasonableness hinged on a determination of believability between the police officer who sought qualified immunity and the plaintiff pet owners. Given the courts’ tendency to give the benefit of the doubt to police officers, it was previously difficult for pet owners to prevail on their claims if contradictory eyewitness testimony between them and the police officer was all the court or jury had to evaluate the claim. However, in recent years, the advent of dashboard and body cameras has started to change the landscape of evaluating objective reasonableness. Cases such as Brooks v. Jenkins likely would not have turned out in favor of the pet owners had the dashboard camera on the police cruiser recorded the entire interaction. Having an objective recordation of the interaction between police officer and dog is often integral to a successful pet owners’ claim.
While overcoming the individual police officer’s qualified immunity has become somewhat easier with the advent of technological objective evidence, there has not been much shift in the ease of overcoming municipal immunity. As previously stated, municipal immunity is automatic and a significant hurdle for pet owners to overcome in these cases. There does not appear to be a shift in any state or federal court’s approach to evaluating these cases – the heavy burden is on the plaintiff to demonstrate a policy or condoned custom on the part of the municipality that deprived citizens of the constitutional rights. Courts have continued to hold that even a small amount of training does not rise to the level of indifference needed to overcome municipal immunity. See, e.g., Brown v. Muhlenberg Tp., 269 F.3d 205 (3rd Cir. 2001); Viilo v. City of Milwaukee, 552 F.Supp.2d 826 (E.D. Wis. 2008), aff'd in part, Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008); Criscuolo v. Grant County, 540 Fed.Appx. 562 (9th Cir. 2013).
Additionally, Brooks v. Jenkins may represent a shift in the approach courts take to evaluating damages in these cases. While a statute limited the amount of recovery for veterinary expenses, the Maryland Court of Special Appeals (Maryland’s intermediary court) recognized the pet owners’ right to collect non-economic damages for their mental anguish in witnessing Brandi’s shooting and the ensuing emotional hardship. While this case undoubtedly sets precedent in Maryland, it is unclear at this time whether other state or any federal courts will follow this approach. Further, of note, this case was not appealed to the Maryland Court of Appeals, leaving open the possibility that Maryland’s highest court could either reverse or affirm this precedent. As more cases are brought in state and federal courts, it will be important to see whether other courts find Brooks v. Jenkins persuasive or see it as an outlier case.
VII. Police Training Trends
With millions of dogs living in harmony with Americans, police officers will necessarily encounter dogs in a multitude of scenarios – traffic stops, serving warrants, interviewing suspects and witnesses, and while in pursuit. Training of these officers is therefore vital to ensuring the safety of officers, the public, and animals. Officers typically receive such training in two ways – through the police academy and on the job training. Every municipality is different and handles this training in a variety of manners. If officers are given any training to specifically deal with dogs in a non-lethal manner, this training is often brief and a “common sense” approach is emphasized. Officers may be provided with a capture pole, pepper spray, or taser. “State lawmaker wants police trained to deal with pets,” Sept. 23, 2014, Livingston Daily, available at http://www.livingstondaily.com/story/news/local/michigan/2014/09/19/state-lawmaker-wants-police-trained-deal-pets/15928017/.
In recent years, as “puppycide” has garnered national attention, some states and municipalities are reevaluating their approach to training police officers and developing a more comprehensive training module. In 2011, Community Oriented Policing Services (“COPS”) released a publication to serve as a guide for law enforcement when diffusing canine situations that arise in the field. This guide provides a comprehensive compilation of tips for police officers to use in assessing dog behavior. COPS acknowledged that while “puppycide” can also be decreased through responsible pet ownership, lack of police training for officers is the main factor when dogs are unreasonably shot. Cynthia Bathurst, et al., U.S. Dep’t of Justice, The Problem of Dog-Related Incidents and Encounters (2011), available at http://ric-zai-inc.com/Publications/cops-p206-pub.pdf. COPS has also made training videos available for police officers at no additional cost to the department or municipality.
In March 2013, a bill was introduced in the Colorado legislature with the goal of preventing police shootings of dogs. The bill incorporated many of the suggestions set forth in the COPS publication, such as non-lethal force, shooting as a last resort, training for officers on dog behavior, and a task force focused on community involvement. In April 2014, Colorado passed the first statute focused on canine-police encounters, the Dog Protection Act. Colo. Rev. Stat. § 29-5-112(4). This new legislation, inter alia, mandates police departments to provide additional training on dog behavior, alternative non-lethal methods to control dogs, and procedures for dog owners to remove a dog in certain situations. Additionally, The Dog Protection Act created a task force, whose job it is to develop this officer training curriculum. See Kaylan E. Kaatz, Those Doggone Police: Insufficient Training, Canine Companion Seizures, and Colorado’s Solution, 51 San Diego L. Rev. 823 (2014).
VIII. Looking to the Future
Technology continually changes the environment in which we live and law enforcement is no exception. The advent of body cameras, which can be worn by police officers while on the job, have already and will continue to change the way in which officers interact with their communities. As previously discussed, the constitutional hurdles that pet owners face in bringing their claims against the police officers and municipalities often lie in fact-specific scenarios. Without eyewitnesses to the encounter between the police officer and the animal, the court and fact-finder are left with no option other than to take the officer’s word as truth as to how the animal was behaving and whether that behavior justified his or her fear for safety. Additionally, even if the pet owner is present and relates what he saw, a court or jury is forced to then evaluate the believability of the police officer against the plaintiff pet owner.
If police officers are required to wear body cameras, the fact-finder would be able to rely on objective evidence as opposed to the subjective relation of facts by the officer and witnesses. Cases such as Brooks v. Jenkins, likely would likely not have turned out in favor of the pet owner, had a camera not been recording the officer’s interaction with the dog. The officer claimed the dog was aggressive, while the jury was able to see objective evidence that could lead a fact-finder to disbelieve the officer’s perception of danger.
In addition to body cameras, more and more police departments are starting to take a community based approach to canine-police encounters as advocated by COPS. For example, in Round Rock, Texas, the police department has teamed up with the Animal Control Unit on a community-based initiative called Be Aware of Residential K9’s (“BARK”). The program was designed to improve officer safety and alert emergency service personnel of household pets. Through BARK, the police department issues a sticker to display on main entry points of the home, such as doors, gates, and windows. In addition to BARK, Round Rock Police provides their officers with over 700 total training hours in dealing with aggressive animals. See also, International Fund for Animal Welfare, A Municipal Approach to a Self-Sustaining Community Animal Welfare & Enhanced License Compliance Program, available at http://www.njlbha.org/Links/A.%20%20Enhanced%20License%20Compliance.pdf. Improvement in police training methods coupled with body cameras are crucial areas of importance in the changing landscape of police-canine interaction.
The shooting of a family pet is a devastating and tragic experience for a pet owner. There are many factors that courts weigh in making a determination of liability against a police officer and/or municipality for the shooting of a pet. Careful and objective evaluation of the facts and circumstances of the shooting is vital. Pet owners most often bring constitutional claims under 42 U.S.C. § 1983. Additionally, a pet owner may have state and local tort claims that can and should be brought at the same time as the constitutional claims. In bringing these claims, a pet owner must undoubtedly overcome the qualified immunity of the individual police officer as well as municipal immunity. Critical to overcoming these immunities in many cases is the objective evidence that can be provided either through eyewitness testimony or through dashboard and body cameras.
The evolution of case law in the context of police shooting pets has slightly shifted over the past several years. Although the Supreme Court has never decided a case based on a dog shooting, current common law follows several Supreme Court cases with respect to the classification of animals as personal property, seizures of such property under the Fourth Amendment, and issues of qualified immunity. Courts often place great emphasis on where the dog was during the shooting – was it running at large or at home? Additionally, eyewitness evidence is key to making the determination as to whether a police officer acted in an objectively reasonable manner. Courts and juries are much more likely to find in favor of the pet owner if objective evidence exists from which they can draw their own conclusions.
Police departments and municipalities have started to shift their approach to police officer training and begun to take a community-oriented approach to canine-police interactions. Colorado is on the forefront of this trend, enacting legislation that specifically addresses these issues and mandating more stringent police training. As “puppycide” is garnering more media attention, greater emphasis is being placed on fostering positive community relationships and better educating police officers. So long as other states follow in Colorado’s footsteps and local municipalities recognize and continue to move towards a comprehensive approach to this problem, a safer future may lie ahead for pet owners and their beloved furry family members.