Articles

Detailed Discussion of Police Shooting Pets

  • Pamela L. Roudebush
  • Animal Legal and Historical Center
  • Publish Date: 2002
  • Place of Publication: Michigan State University College of Law

I. INTRODUCTION

     When a case involving the shooting of a pet presents itself, several issues including applicable state laws, constitutional issues, and qualified immunity will come into play.  When determining if pet owners have a cause of action for the shooting of their pet, each of these areas must be addressed and considered.  Because the specific facts of each shooting will be different, each case must be considered on the individual circumstances involved.  It is important that the laws pertaining to these cases not be viewed as one size fits all.  The circumstances behind a shooting in one state may give rise to a cause of action; however, the very same circumstances in another state may not.

     The following analysis will highlight and discuss the issues that will need to be addressed before deciding if a cause of action exists.  This will then be followed by a discussion of current case law and the courts’ application and interpretation of the areas of law pertaining to the topic of police shooting pets.  Every case discussed or referenced in this analysis is linked in its entirety to assist in further reading and/or review.

II. STATE LAW

     Most lawsuits involving animals continue to progress through our judicial system under the theories of property law.  It is under property theories that pet owners receive their rights to the ownership and control of their pets and it is under the same theories that pet owners can be deprived of those rights and seek redress.

     Pets, most commonly dogs, are defined as personal property under state law so it is important to research the applicable local laws.  State statutes will be the governing law in this area as federal statutes are silent as to the definition of pets as personal property. 

     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 for interference with the property and subjection of the property to personal property taxes.  The Oklahoma and Oregon statutes are just two examples of the former clear and concise type statute.  Oklahoma’s statute states:  “[a]ll animals of the dog kind, whether male or female, shall be considered the personal property of the owner thereof, for all purposes.”  OK ST T. 21 § 1717.  Oregon’s statute is even simpler and reads that “[d]ogs are hereby declared to be personal property.”  OR ST § 609.020.  The Delaware and Indiana statutes are two examples of the more detailed type state statute.  The Delaware statute describes dogs as personal property subject to theft and reads in part “[a]ll dogs shall be deemed personal property and may be the subject of theft . . . .” DE ST TI 7 § 1708.  Indiana defines dogs as personal property for tax purposes similar to other objects of personal property and reads in part “[a]ll dogs now within the state . . . brought into the state . . . kept, owned or harbored in the state . . . are hereby declared to be personal property and shall be subject to taxation at the full cash value thereof the same as other personal property.”  IN ST 15-5-10-1.

     While many state statutes classifying “pet” animals as personal property refer specifically to dogs, some states have expanded their personal property classification to include cats and other animals.  For example, Nevada’s statute defining personal property includes “dogs and all domestic animals and birds.”  NV ST 193.021.  New Mexico also includes other animals, specifically “dogs, cats and domesticated fowls and birds,” in its statute and applies “all remedies for the recovery of personal property and of damages for injuries” to those animals as it would to other types of personal property in the state.  NM ST § 77-1-1.

     In addition to statutes that classify pets as personal property, other state statutes should be researched to determine their applicability to the particular facts.  Statutes to consider when addressing the facts surrounding the shooting of a pet can include, inter alia, statutes pertaining to dangerous animals, loose animals, unlicensed animals, and holding periods for captured loose animals.  As will be discussed later, 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.  This can mean the difference between a pet owner having a cause of action against the officials involved in the shooting or having no opportunity for redress for the injury or loss of their pet.

     It should also be noted that some states may have statutes that could provide causes of actions based on the facts surrounding the shooting of the pet.  While this analysis will focus primarily on federal causes of actions based on constitutional Fourth Amendment violations, it is important for litigators to also determine whether state law claims exist for two reasons.  First, if there is a Fourth Amendment violation, a pet owner might also have state law claims that should be raised in the federal courts to avoid being precluded from later filing the state law claim.  Second, if there is no Fourth Amendment violation, there may still be redress for the pet owner under state law in the state courts.  Any state law claims will vary from state to state depending on the applicable state statutes and should not be disregarded.

III. FOURTH AMENDMENT SEIZURES/TAKINGS

     The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures, shall not be violated . . .

U.S. CONST. Amend. 4

     All too often incidents involving shooting of pets occur when police are executing search warrants, which bring them directly onto the property or into the homes of the pet owners.  Direct confrontations with pets can occur and the pets are usually the losers when they are injured or killed by the officers.  This brings us to the question of whether the injury or destruction of a pet can be classified as an unlawful seizure in violation of the pet owners’ rights to be free from unreasonable seizures of their property under the Fourth Amendment.

     Pets are classified as personal property under state statutes; however, a reading of the U.S. Constitution’s Fourth Amendment does not include the term "personal property."  Does this mean that seizures of personal property are not covered?  Luckily for the pet owner, the answer is no.  The Supreme Court has held that personal property is considered an “effect” for purposes of being considered a seizure under the Fourth Amendment.  The Supreme Court has stated:

     . . . [I]n the context of personal property . . . our cases reveal some general principles regarding seizures.  In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.

United States v. Place, 469 U.S. 696, 701 (1983).  Further, the Supreme Court has stated unequivocally 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).  The destruction of property is considered “meaningful interference” constituting a seizure under the Fourth Amendment because the destruction of property by state officials poses as much a threat, if not more, to people’s right to be “secure . . . in their effects” as does the physical taking of them.  Id. at 124-5.

     Another question to be asked – does the Fourth Amendment only cover seizures of personal property that occur during a criminal search?  Again, the Supreme Court has clarified this issue and stated that the reason why an officer might enter onto a person’s property or into a person’s home does not vitiate the question of whether a seizure has occurred and whether the Fourth Amendment applies.  The reason can be for searches and seizures relating to both criminal and civil issues.  “In our view, the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the Amendment applies.  What matters is the intrusion on the people’s security from governmental interference.”  Sobal v. Cook County, 506 U.S. 56, 69 (1992)(emphasis added).

     Generally speaking, destruction of property that is not necessary to a law official’s duties is considered an unreasonable seizure of property under the Fourth Amendment.  The courts, based on the individual facts of the case, will determine whether the destruction of the property was reasonable.  Although the courts will decide the reasonableness of a seizure on a case by case basis, the person considering filing a lawsuit for a pet’s death must have a general idea of whether the officer’s conduct in their particular case was unreasonable.  Addressing the issues relating to immunity can accomplish this.

IV. IMMUNITY

     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 the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983.

A. Municipal Immunity

     Common practice when filing a lawsuit against a police officer is to also name as co-defendants the police departments and the municipality employing the officer.  Although these entities are not immune from having suits filed against them, they are initially immune from liability unless that immunity can be defeated -- defeating that immunity is an extremely tough hurdle to clear.  Only “if there is a direct casual link between a municipal policy or custom and the alleged constitutional deprivation” can municipality immunity be defeated.  City of Canton v. Harris, 489 U.S. 378, 385 (1989).   

     The primary case regarding municipality immunity is Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978) which disallowed suits filed against a municipality on a respondent superior theory but allowed suits where the government has established a policy or permitted a custom which deprives individuals of their rights.  The Supreme Court has clarified in later cases that this does not mean that a municipality cannot be sued under 42 U.S.C. § 1983 only that the municipality would not be liable unless a policy or custom caused the constitutional injury. A jury must be able to conclude that the actions arose from at least an informal governmental custom.

     Unfortunately, there are currently no cases relating to the shooting of pets where municipality immunity has been successfully defeated.  Although the issue of improper training has been raised in several cases involving pet shootings, under Canton only when “failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact” can immunity be defeated.  Canton, 489 U.S. at 388.  Deliberate indifference means that the municipality must make a deliberate or conscious choice to ignore people’s constitutional rights.  Errors or intentional behaviors on the part of an officer do not elevate to the deliberate indifference threshold for the municipality to have its immunity defeated.

     It should be noted that while a municipality will probably have immunity for liability in the case of a pet shooting, it does not automatically follow that the individual officer(s) involved in the shooting will also have immunity.

B. Individual Officer(s) Immunity

     When an officer conducts a search or 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 qualified immunity is not absolute and can be defeated.  The officer would be subject to liability if the following two-prong test is satisfied:  1) the officer’s actions violated a clearly established constitutional right; and 2) under the circumstances, a reasonable official would have known that his or her conduct violated the right.  Newsome v. Erwin, 137 F. Supp.2d 934, 944 (S.D. Ohio 2000)See also, Anderson v. Creighton, 483 U.S. 635 (1987)(officer absolved from liability if he can show that a reasonable officer with the information he possessed at the time could have believe that his conduct was lawful in light of established law) and Harlow v. Fitzgerald, 457 U.S. 800 (1982)(officials shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known).

     The first prong of the test to waive an official’s qualified immunity can easily be established in cases involving the shooting of pets.  It is clearly established that an individual’s right to be free from the unreasonable seizure of property is one of the most fundamental and clearly established of all constitutional rights.  As discussed in Jacobsen above, destruction of property can qualify as a meaningful interference with a person’s possessory interest in their property and a meaningful interference can constitute a seizure under the Fourth Amendment.  This has been valid law since 1984.

     The second prong of the test can also be established with respect to shooting pets, but is not necessarily as clear.  If the pet is considered personal property under the state law, again using the reasoning stated in Jacobsen, a reasonable officer would know that it is a violation of the Fourth Amendment prohibition against unreasonable seizures to unreasonably shoot that pet.  It cannot be disputed that a pet is property and injuring or killing that pet would be “destruction” of that property. 

     Qualified immunity is not automatically waived or defeated simply because a pet is shot.  This is where the second prong of the test can become hazy.  The basis for weighing the officer’s conduct is whether a reasonable officer would know his conduct violated the pet owner’s right.  This goes beyond just that of establishing that an action, the shooting, occurred.  Unreasonableness does not mean that the action must have previously been held by statute to be unlawful.  The officer must understand that his actions violate a right. The unreasonableness of the situation has to be viewed by the court on a totality of the circumstances presented.  The courts will also address the applicable state statutes relating to animals.

     Suppose an animal is running loose and posing a public danger, an officer might be justified in shooting that animal and his or her actions could be considered reasonable by a court of law.  By acting to protect the public from danger, an officer might reasonably believe his actions in shooting the animal were justified and outweighed the owner’s right.  Another scenario that can arise is a state statute allowing an officer to immediately kill animals that are running loose or unlicensed (untagged/uncollared) rather than impounding them for a holding period.  Again, an officer in this situation could be reasonably justified in believe his actions were proper and not a violation of the owner’s rights.

     Another issue that commonly makes its way into defense arguments in cases involving pet shootings is the issue of the animal's behavior at the time of the shooting.  Many cases involving animal shootings will involve an officer who claims to have reasonably believed that the animal was a danger or a threat.  If the circumstances do show that the animal was a threat or that under reasonable circumstances could have been perceived as a threat, the courts will genially allow the immunity to stand.  Constitutional actions are not automatically rendered as unconstitutional simply because force has been used by the officers involved.  See e.g. Brandon v. Village of Maywood, 157 F. Supp.2d 917 (N.D. Ill. 2001)(immunity upheld since an officers’ split-second decision emanated from their desire to avoid being injured by a dog with an unknown propensity for violence) and U.S. v. Gregory, 933 F.2d 1016 (9th Cir. 1991)(shooting, though regrettable was done excusably by an officer who reacted quickly to a perceived attack by an animal reasonably believed to be an attack dog). 

     Where an animal is found running loose or posing a danger, the state would have an interest in protecting the person and property of others and may be justified in killing the animal.  However, an officer cannot simply kill a pet that poses no immediate danger.  [See, Viilo v. Eyre, ---F.3d.---, 2008 WL 4694917 (C.A.7 Wis.)), where the court held that it is a violation of the Fourth Amendment for a police officer to shoot a companion animal that poses no imminent danger while the dog's owner is present and trying to assert custody over her pet. Eds.] To determine reasonableness when a seizure occurs without a warrant, the government must “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”  Place, 469 at 703.  An insignificant or minor governmental interest will not outweigh an extreme intrusion on an individual's possessory interests in their property.

     Qualified immunity is an affirmative defense that must be raised by the official being sued for the shooting of a pet.  In order to state a claim of constitutional violation, the pet owner does not “need to plead facts showing the absence of such a defense.”  Black v. Coughlin, 76 F.3d 72, 75 (2nd Cir. 1996).  In other words, qualified immunity must be either clear as a matter of law or proven by the official claiming immunity – it is NOT automatic.  The Black court stated, “in order to show entitlement to qualified immunity a defendant must establish that he had an objectively reasonable belief that his act violated no clearly established rights.”  Black, 76 F.3d at 75 (citation omitted).  The courts addressing qualified immunity questions must weigh the pet owner’s Fourth Amendment rights to their pet against the reasonableness of the officer’s actions in promotion of a legitimate government interest.

     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.

V. CASES

     The cases to be briefly addressed below do not all hold that the killing of someone’s pet was an unreasonable Fourth Amendment seizure.  Several of the cases have been added and discussed to show the importance of researching the state statutes and how these statutes come into play in a court’s analysis of whether a Fourth Amendment claim or immunity exist.  Most of these cases relied heavily upon the reasoning and principles previously discussed above to determine whether seizures had occurred and whether qualified immunity was defeated. 

A.  City of Garland v. White, 368 S.W.2d 12 (Tex.Civ.App. 1963)

     This case centered on police officers intentional killing of a pet dog that was sitting on a backdoor step in its owner’s garage.

     Plaintiff’s dog was running loose and being pursued by police officers.  However, the dog had already returned home and was calmly sitting in a parked car when the pursuing officers arrived at plaintiff’s home.  The officers entered on the plaintiff’s property with the expressed intent of killing the dog.  When the officers approached, the dog exited the car and attempted to escape by going to the backdoor step at the end of the home’s garage.  The police officers entered the garage and shot the dog with a shotgun.

     The court addressed the Texas statutes applicable to the shooting.  First, it noted that dogs were considered personal property in Texas and that the general rule was that owners could recover for wrongful injury or killing of their dog.  One statute existed pertaining to dogs running loose, however, the court pointed out that the statute did not provide for the immediate killing of loose dogs; the ordinance instead provided that loose dogs should be impounded, held for a period of three days, and killed if unclaimed during the holding period.  Another statute the court discussed was a vicious dog statute that allowed for the killing of a dog that was running loose and endangering persons or property.  The court noted that this statute was only applicable in situations where the threat was imminent and the killing was a real or apparent necessity.  In addition, the court stated that under Texas law, a police officer would be civilly liable for his acts when he acted in a wrongful manner and was guilty of a trespass regardless of whether he was performing an official duty.

     The court opined that 1) the dog was not an immediate threat to public safety under the confines of the viscous dog statute as it was sitting quietly by the door when it was shot; 2) the dog was not running loose at the time of the shooting and, even if it had been, the loose dog statute required impoundment not killing; and 3) the officers did not have permission to go onto plaintiff’s property and were therefore guilty of a trespass.  Based on these determinations, the court upheld the lower court’s jury determination that the officers involved were personally liable for their trespass and wrongful actions in the death of plaintiff’s dog. 

     While damages are not being discussed in this analysis, it should be noted that the jury's award of monetary damages for the mental pain and suffering of the plaintiff were also affirmed.

     This case was decided solely based on applicable Texas state law.  The issues of whether there were any constitutional violations or qualified immunity for the officers did not come into play since the court determined that the officers had violated a state statute providing for liability.  This case was also decided before any of the court decisions that make up the current common law for cases involving pet shooting.

B.  Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985)

     The portion of this case to be discussed centered on the killing of three dogs by sheriffs deputies on plaintiff’s property.

     Members of the local sheriff department shot plaintiff’s three dogs while they were on the plaintiff’s property.  Plaintiff contended that the officers had entered onto his property without a search warrant in violation of Wisconsin law and shot his dogs out of malice and in conspiracy with other persons.  One of the dogs was shot four times as it attempted to flee its doghouse.  The plaintiff contended that this was a violation of his Fourth Amendment rights.  Sheriffs deputies contended that the dogs had been seen on several occasions running at large and had threatened and acted aggressively towards one of the deputies while they were running loose in a local park.

     Before the court determined if there was a Fourth Amendment violation, it looked at Wisconsin statutes to determine whether the officers had properly entered on plaintiff’s property and shot the dogs.  At the time of the shooting, Wisconsin had a statute that contained a rebuttable presumption that dogs without licenses attached to their collars were unlicensed.  The statute allowed this presumption to be rebutted by an owner who showed that the dog was licensed or that its collar or license had been removed without his authority.  The statute further gave various law enforcement officials the right to enter onto a person's property for the purposes of seizing an unlicensed dog or a dog that had been running loose.  Before entering onto the plaintiff’s property, the deputy sheriffs contacted the local district attorney for advice concerning the dogs.  They were told that if the dogs were vicious and could not be apprehended that they should be destroyed.

     The evidence presented showed that the dogs were unlicensed (and plaintiff did not adequately introduce evidence to the contrary) and the dogs were previously running loose.  Therefore, under the state statute, the court opined that the officers were allowed to enter onto plaintiff’s property and it was not unreasonable for them to do so.  As a result, the court ruled that there was no violation of plaintiff’s Fourth Amendment rights.

     Although there was no violation, the court did state in a lengthy section of dicta 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.  Different methods that could have been employed to capture the dogs along with common sense issues relating to capturing dogs and dog behaviors were also discussed by the court.  The court did note, however, that even though it found the officers’ conduct to be offensive, it did not rise to the level of a 42 U.S.C. § 1983 claim because it did not rise to the level of being a constitutional violation.

     In addition, the court was careful to clarify that its statements concerning disapproval of the handling of the situation were not to be interpreted to mean that law enforcement officers could not protect themselves against what they rationally perceived to be a threat of serious bodily harm by a vicious animal they were trying to catch.

C. Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994)

     The portion of this case to be discussed centered on the seizure of a dog from the control and custody of a K-9 police officer’s home.

     The Little Rock Police Department decided to kill plaintiff’s K-9 partner after the dog bit a small child.  Officers from the police department went to plaintiff’s home to remove and kill the dog.  Plaintiff had originally donated the dog to the police department with an agreement that he could reclaim the animal if he was unsuitable for police work.  The plaintiff notified the officers that he intended to reclaim the dog.  He was told that if he did not relinquish custody of the dog he would be terminated from his employment.  Plaintiff relinquished the dog to the officers and filed suit alleging that the dog had been seized in violation of his Fourth Amendment rights.  The police department countered that it was the owner of the dog and that no seizure had occurred since plaintiff voluntarily relinquished the dog.  The police department also contended that since there was no search there could be no seizure.

     Although the court noted that there was a discrepancy as to the ownership of the dog, there had been a seizure when the officers removed the dog from plaintiff’s home.  The court noted that case law does not require a search to have occurred in order for a person’s constitutional rights to have been violated – any seizure is subject to being scrutinized for a violation of Fourth Amendment rights regardless of the reasons for the seizure.  In response to the police department’s argument that the dog was their property and the plaintiff was an employee, the court noted that although employee’s rights are somewhat diminished in the workplace, employee’s rights are the same as a public citizen with respect to their homes.  Seizure of property from government employees is still subject to Fourth Amendment scrutiny.  As to the argument that plaintiff relinquished the dog, the court noted that case law was clear that public employees could not be forced to relinquish their constitutional rights under the threat of losing their jobs.  Plaintiff did not waive his right to be free from unreasonable seizure when he relinquished the dog to save his job.

     The court opined that if plaintiff had not been a police officer the taking of the dog would unquestionably have been a seizure.  The court reiterated case law that any search or seizure of property without a warrant is per se unreasonable.  Public employees are entitled to constitutional protections just as private citizens -- especially in their homes.

D. Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994)

     The portion of this case to be discussed centered on the shooting of plaintiff’s dog when officers were investigating a matter near the plaintiff’s home.

     As the police officers were passing plaintiff’s yard, his dog stood up from where he had been lying.  The dog neither growled nor moved toward the officers.  Plaintiff overheard one of the officers tell the other to kill the dog.  Plaintiff pleaded, to no avail, with the officers that he could control his dog and for them to not shoot him.  One officer shot the dog in the shoulder and was told by another officer to finish off the dog.  The dog was then shot in the head in front of plaintiff.  Plaintiff contended that his Fourth Amendment rights were violated when the officers unreasonably killed his dog. 

     The court noted that a seizure is subject to Fourth Amendment scrutiny even if no search has taken place.  The court discussed case law relating to what constitutes a seizure including meaningful interference, effects, and possessory interests.  The court determined that there had been a meaningful interference with plaintiff’s possessory interest in his dog resulting in a Fourth Amendment cause of action.

     This particular case has had an interesting and rocky history.  Plaintiff had alleged a constitutional violation for the killing of his dog and for a seizure of his person, along with excessive force used by the officers on him after he became angry over the killing.  The lower court granted summary judgment for the officers for plaintiff’s failure to state a claim.  The appellate court reversed the portion of the case involving the shooting of the dog but concluded there was no violation of plaintiff’s individual rights relating to his person and remanded the case.  The U.S. Supreme Court refused certiorari.  On remand, the lower court again entered summary judgment for the officers.  The lower court granted the officers immunity because it determined that the law was not clearly established that the killing of a dog was a seizure.  The appellate court, in an unpublished opinion, noted that the destruction of an animal had clearly been established law since 1984 and as such the officers were not entitled to qualified immunity for the unreasonable seizure of the dog.  The U.S. Supreme Court again refused certiorari. 

     The portion of the case relating to plaintiff’s individual assertion of a seizure against him and excessive force was later overruled in another decision when the appellate court clarified what it felt could be a misconstruction of its boundaries relating to seizures of a person.  The overruling court did not make any mention nor did it discuss any portion of this case relating to the violation of plaintiff’s Fourth Amendment rights for the seizure of his dog.

     Although this case has had such a turbulent history, the most important point in this case is that in two instances the U.S. Supreme Court refused certiorari.  The first instance was when the appellate court determined that an unreasonable seizure did occur when plaintiff’s pet was shot.  The second instance was when the appellate court determined that the officers were not entitled to qualified immunity because the law was clearly established that destruction of property is a meaningful interference with property and constitutes a seizure. 

E. Newsome v. Erwin, 137 F. Supp.2d 934 (S.D. Ohio 2000)

     The portion of this case to be discussed centered on the shooting at direct range of a tranquilized pet lioness located several feet away from the barn from which she escaped.

     Plaintiff’s pet lioness had escaped from a fenced in enclosure and had been shot by plaintiff with a tranquilizer.  Before the tranquilizer began working, the lioness jumped back over the fence into the enclosure.  Against the plaintiff’s contentions that the lioness was declawed and safe, the supervising officer ordered the lioness killed.  After the tranquilizer had disabled the lioness, a sheriff walked up to the downed lioness and shot her point-blank in the head.  Plaintiff contended, inter alia, that the shooting of his pet lioness violated his Fourth Amendment rights. 

     In determining whether plaintiff had a cause of action, the court discussed case law as to what constituted a seizure, whether a pet was considered an “effect”, and whether the shooting of the lioness had been unreasonable.  The court determined that a pet was property subject to seizure, the shooting had been unreasonable and unnecessary under the circumstances, and plaintiff’s Fourth Amendment rights were violated. 

     The court then addressed whether the supervisor who ordered the shooting had qualified immunity.  To determine whether the supervisor’s immunity could be defeated, the court address the two prong test of whether a clearly established constitutional right had been violated and whether a reasonable officer would know that his actions would violate that right.  In this case, the owner’s Fourth Amendment right was violated and the law has clearly established that the unreasonable shooting of a person’s pet would violate that right. The court determined that no reasonable officer could claim that he did not know that shooting a tranquilized pet lioness point-blank several feet away from its barn in front of the owner would be a violation of the owner’s rights.   The court determined that the plaintiff could state a cause of action for deprivation of his Fourth Amendment rights and could also defeat the supervisor’s qualified immunity defense. 

     The court was careful to point out that its ruling did not mean that any shooting of an animal would be a violation of a person’s Fourth Amendment right.  It was noted that the court could have reached a completely different decision in a case where the lioness was wandering the neighborhoods or posing a danger to others.  The killing of the animal under those circumstances could be reasonable and/or justified.  In this case, the animal was no longer running loose, was several feet away from her enclosure, and was tranquilized.  There was no reasonable justification for her shooting.

F. Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001)

     The portions of this case to be discussed centered on the shooting of a loose dog by a police officer in front of the dog’s owner.

     Plaintiff’s dog had gotten loose from her yard and was walking around the neighborhood.  A passing police officer spotted the dog and approached her.  Although the dog was not behaving in a violent manner and the owner was nearby screaming “that’s my dog, don’t shoot”, the officer fired five shots killing the dog.  For a more detailed description of facts surrounding the shooting, see Factual Scenario of Immi's Shooting.  Plaintiff contended that the individual officer, together with several municipality officials and the municipality, had violated her Fourth Amendment rights for the seizure of her dog.

     To determine if a seizure had occurred, the court first reviewed case law on what constituted a seizure and determined that case law clearly established that the meaningful destruction of property was a seizure.  The court then reviewed state statutes and determined that dogs are considered personal property in Pennsylvania.  Plaintiff was determined to have a possessory interest in her dog and any interference or destruction of that dog was a seizure under the Fourth Amendment. 

     After determining that destruction of the dog was a seizure, the court addressed the issue of whether it was unreasonable.  Balancing the state’s interest in public safety against the plaintiff’s possessory interest, the court determined the killing of the dog was unreasonable because the dog posed no immediate danger and the owner was present to take custody of the dog.  The court also noted that there were no state statutes pertaining to loose dogs or allowing an officer to kill a loose dog.  The court then turned to the question of the officer’s qualified immunity. 

     The court reiterated the common law principles that destruction of property is a meaningful interference with that property and absent a compelling government interest is unreasonable.  Applying the test for qualified immunity, the court opined that under these clearly established principles no reasonable officer could conclude that his shooting of the dog was lawful and therefore immunity was defeated. 

     The plaintiff also contended that the municipality and its supervisors were liable for her Fourth Amendment violations.  Because the plaintiff was unable to establish a direct causal link between the municipality and its supervisors and was unable to establish a custom or official policy supporting the shooting, the court determined the immunity of the municipality and its supervisors was not defeated. 

     While this paper has not discussed the awarding of damages, it is important to also note that this court upheld a claim filed by plaintiff against the officer for intentional infliction of emotional distress.  The court noted that where malicious behavior is directed at a pet it is readily apparent that a serious emotional injury can potentially occur to the owner.  The court noted that while cases involving this issue have been rare, cases in Vermont, Alaska, Florida, California, Idaho, and Texas have upheld a view consistent with its decision that the tort claim could be filed.

VI. CONCLUSION

     While the issues involved in the decision to bring a cause of action for the shooting of a pet may seem complex, they are not by any means insurmountable.  There are two general steps to follow to make the determination of whether or not a cause of action exists:

     1)   Review the state statutes to determine if the pet is considered property subject to seizure.  In addition, review any other state statutes relating to animals that may be applicable; and

     2)   Determine whether immunity can be defeated by addressing the policies of the municipality and the actions of the officer(s) involved. 

If the pet is personal property subject to a seizure, no other state statutes defeat or authorize that seizure, and an entity or the officer involved can be held liable by defeating their immunity, a cause of action can be stated and potentially maintained successfully on behalf of the pet owner.

     Although the U.S. Supreme Court has never actually decided a case based on a dog shooting, current common law follows several important Supreme Court cases with respect to the classification of property, seizures, and qualified immunity.  In addition, the U.S. Supreme Court has twice refused certiorari in one case – first when the appellate court determined that the shooting of a dog was classified as a seizure and second when the appellate court later determined that the officers’ qualified immunity was defeated.  While the Supreme Court may not have actually spoken on these two issues in dog shooting cases, its refusal to review the appellate court’s determinations in such a case is significant.

     With a little research and diligence on the part of the litigator, a case can be made for the owners of pets who have been shot by police officers.  The shooting of someone’s pet by a police officer is not an automatically acceptable practice in our courts of law.

 

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