No Carte Blanche to Kill Unlicensed Dogs, Says Sixth Circuit
Shooting dogs during a lawful search constituted an unconstitutional seizure, the Sixth Circuit recently held, allowing a plaintiff’s §1983 claim against officers to proceed.
On January 11, 2016, officers acting on a narcotics hotline tip conducted a controlled buy of marijuana through an informant at a house in Detroit, Michigan. Afterward, the informant told officers he “thought he heard a small dog” in the house. The officers subsequently obtained and executed a search warrant on the house.
Six officers gathered on the house’s front porch, knocked, and announced themselves. Before breaching the door with a battering ram, the officers heard dogs barking. According to the plaintiff, when the dogs started barking she called out to the officers that she was going to secure the dogs. She said she put her two Pit Bulls, “Debo” and “Mama,” in the basement and – because the basement did not have a door – pushed a stove against the doorway in front of the stairs leading down to the basement. Plaintiff’s Rottweiler, “Smoke,” was already in a bathroom behind a closed door.
The plaintiff then walked into the living room where the officers were standing with their guns drawn, at which time Debo appeared. The plaintiff said Debo had pushed passed the stove and an officer shot Debo, standing at her feet. The officers presented a differing account, that Debo was “vicious,” “immediately charging, trying to come out and attack.” One officer testified he fired one shotgun shot at Debo’s legs, and after the plaintiff failed to secure the dog, he “came charging back” to the living room, where a second officer shot Debo seven times.
The officers then began to clear the home. After hearing barking from the bathroom, one officer cracked the door open and saw Smoke, alone inside. Officers testified that Smoke as “vicious,” and “growing and exhibiting a posture or other indicators that a[n] imminent attack is going to occur.” At the same time, after opening the bathroom door, officers testified that Smoke became trapped between the door and the bathroom vanity. Officers said they then shot Smoke through the door before he could break free.
From the top of the basement stairs, officers saw Mama “started to charge up.” Because Mama had charged up the stairs and showed her teeth, one officer testified, he shot her four or five times with his shotgun.
All three dogs died and the plaintiff was charged with a misdemeanor violation of Detroit’s marijuana law. The charge was later dismissed when officers failed to appear in court to testify.
The plaintiff and the dogs’ other owners subsequently filed a §1983 action against the officers for illegal seizure of the dogs in violation of the Fourth Amendment, Monell claims against the City of Detroit, and state-law tort claims. The District Court for the Eastern District of Michigan granted summary judgment in favor of the defendants, finding the plaintiffs did not have a legitimate possessory interest in their dogs because they were unlicensed. The plaintiffs then appealed to the U.S. Court of Appeals for the Sixth Circuit which, in 2017, observed in a decision, “[t]here is not a lot of law about the Fourth Amendment and dogs.”
On appeal, the defendants conceded that material issues of fact remained as to whether exigent circumstances justified their actions, and that a person has a Fourth Amendment right to not have his or her lawfully possessed dog unreasonably seized. The only question before the Sixth Circuit was whether the officers’ seizures were nevertheless reasonable because the plaintiffs’ dogs were “contraband” under the Michigan Dog Law of 1919 and Detroit City Code, and therefore unprotected by the Fourth Amendment.
The dissenting opinion noted that no circuit court had “answered the question of whether a person retains a legitimate possessory interest in an unlicensed or untagged dog where state law makes the ownership or possession of such a dog a criminal offense.”
In its first-of-its-kind decision reversing the district court, the Sixth Circuit held that, while both laws require that most dogs be licensed, the Michigan Dog Law and the Detroit City code entitle dog owners to process prior to seizure. “Just as the police cannot destroy every unlicensed car or gun on the spot,” the court held, “they cannot kill every unlicensed dog on the spot.”
Even if the plaintiffs’ dogs were contraband, the court wrote that its decision would be the same because, under Supreme Court precedent, a warrantless seizure of contraband is not reasonable if it was not “immediately apparent” to an officer that the item was contraband. That requirement was not met when officers shot the plaintiffs’ dogs. “This case does not involve a five-year-old holding an open beer can; the officers here could not look at the dogs and know whether they were licensed,” the court wrote. For example, “[d]ogs can be licensed but not wearing a license tag.”
The Sixth Circuit thus reversed the district court’s dismissal of the plaintiff’s case and remanded the case for further proceedings.
The Sixth Circuit’s full opinion and the dissenting opinion can be read here.
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Posted in Case Law Update