Full Title Name:  No Shelter from the Storm: How the Execution of Pets by Law Enforcement at Beauregard Middle School in St. Bernard Parish in the Aftermath of Katrina Violated the Constitutional Rights of Pet Owners

I. Shelter from the Storm: Beauregard Middle School

            On August 29, 2005, Hurricane Katrina ushered in walls of water and remodeled St. Bernard Parish, Louisiana.   Many residents fled to the second floor of Beauregard Middle School at 1201 Bayou Road.   In the split second that divided the memory of normalcy and the rest of their lives, these residents held tight to their families.   Boat after boat of mothers, fathers, children, sisters, brothers and companion animals arrived at Beauregard Middle School.   Beauregard was a sanctuary for these warm-blooded survivors gripped in the cold reality of a devastating natural disaster.  

            Deputies with the St. Bernard Sheriff’s Office stood by to maintain order in the Middle School.   And when the time came for survivors to leave the storm-ravaged area, deputies announced that animals must be left behind. [1]   Evacuees allege that they had no choice but to obey these orders. [2]   Evacuees allege that deputies trained weapons on many and handcuffed those who resisted. [3]  

            Before leaving their pets behind at Beauregard, residents scrawled messages on the walls of the school: “Please save them!” and “Please do not shoot her.” [4]   Perhaps these evacuees had seen or heard things that foreshadowed the cruel fate that their beloved companion animals would suffer.   Or perhaps these messages reflect something that the law is slow to recognize; namely, that our companion animals are more than simply property; they are family .          

            Several weeks after human survivors escaped the devastation in St. Bernard Parish, the world learned the fate of the numerous companion animals that did not escape. [5]   Animal rescue volunteers discovered a grisly scene at Beauregard Middle School. [6]   The remains of a Black lab mix named Angel Girl lay beside the remains of her sister, Honey, a six-month-old Pit Bull mix. [7]   They had been shot.   Volunteers also found the remains of a Husky mix, a Miniature Pinscher, several Dachshunds, a Golden Retriever and a Boxer. [8]   An animal rescue organization, along with the state’s Attorney General, confiscated these remains and sent them to Louisiana State University’s Veterinary School for necropsy analysis. [9]   Examiners determined that many of   these animals had been shot. [10]   And the placement of their wounds did not indicate a merciful and swift demise, but rather a slow death from blood loss. [11]  

            In October 2006, parish residents who were forced to leave their pets in the custody of deputies filed suit in federal court against the St. Bernard sheriff’s department and against individual deputies for killing these beloved companion animals. [12]   This paper explores the constitutional injuries suffered by these aggrieved pet owners.  This paper also touches upon the qualified immunity that may shield St. Bernard deputies and St. Bernard Parish from liability for the injuries of the evacuees at Beauregard.  

II. A Dog is a Desk is a Door is a Dog:   Animals as Personal Property.

            All fifty states define animals as non-human property.   In 1897, the Supreme Court explored the property status of dogs, and concluded that states may recognize dogs as personal property. [13]   The court considered where a dog fits along the continuum between a wild animal, which isn’t property until “killed or subdued,” and a domestic animal kept for economic gain, such as livestock, “in which the right of property is perfect and complete.” [14]   The Court defined the property status of a dog as “imperfect or qualified” because dogs are not generally kept for economic gain.   In support of this definition, the Court noted “[t]he very fact that [dogs] are without protection of the criminal law shows that property in dogs is of an imperfect or qualified nature.” [15]   Thus, when a person injures or kills a canine companion, that person inflicts no appreciable economic injury upon the dog’s owner. [16]   And the protection of the criminal law to which the Supreme Court referred in 1897 was exclusively intended to protect humans from economic loss. [17]  

            But since 1897, there has been an awakening in America to the welfare of animals.   Today, for instance, the criminal law protects dogs in every state.   And anti-cruelty laws, unlike the criminal laws referred to by the Supreme Court in 1897, do not seek to deter economic injury to pet owners.   Rather, they seek to deter physical injury to the pet. [18]   Anti-cruelty laws for the benefit of companion animals, and not for the benefit of human beings, evince society’s empathy for companion animal suffering.  

            Although the law has begun to recognize that animals (at least some of them) are entitled to humane treatment, companion animals remain property in the eyes of the law.   As will be discussed in this paper, this classification of animals as property is essential to the Fourth Amendment tort claim of a   pet owner when cops shoot his or her companion animal.   Accordingly, this paper discusses the application of property law.  

            This paper also briefly touches upon a Fourteenth Amendment substantive due process claim, which, like a Fourth Amendment claim, is a constitutional tort claim.   Constitutional tort claims seek damages for something beyond simple property loss.   Society’s love for its companion animals exists somewhere within that “something beyond.”   Ironically, however, the success of Fourth Amendment tort claims against cops who shoot dogs may preclude the law from catching up with the modern experience of pet owners.   The section on substantive due process explores this contention.

III. St. Bernard Deputies Violated the Fourth Amendment Rights of Evacuees at Beauregard.

            When a law enforcement official shoots a companion animal, a constitutional deprivation may occur, namely, in the form of an unreasonable seizure of personal property. [19]   Injured parties turn to 42 U.S.C. § 1983 , which provides a remedy to an individual deprived by a person acting “under color of state law” of a right, privilege or immunity secured by the Constitution and laws of the United States. [20]  

            Incidents of cops shooting dogs usually arise in the context of the execution of a search warrant. [21]   This makes sense given the heightened chance of confrontation between law enforcement and companion animals in the home of an owner.   But a violation of a person’s constitutional right to be free of unreasonable seizure of property can occur in virtually any setting. [22]  

            The alleged executions of companion animals at Beauregard Middle School in the aftermath of Hurricane Katrina present factual circumstances that are unique from the fact patterns typical to the “cops shooting dogs” scenario. [23]   The uniqueness of the Beauregard incident involves several novel or unusual issues, including the impact of an emergency evacuation, forced abandonment by animal guardians, and a breakdown of social and civil infrastructure.   These issues will provide room for debate on both sides of the court room.   But ultimately, plaintiffs should prevail because of the alternatives available to deputies and because of society’s general recognition of the immeasurable value of our companion animals.   

            The Fourth Amendment protects against unreasonable seizures of property. [24]   The rights guaranteed by the Fourth Amendment are made applicable to the states by the Fourteenth Amendment. [25]   The Third, Fourth, Eighth and Ninth circuits have all clearly acknowledged that dogs are constitutionally protected personal property, or “effects” within the ambit of the Fourth Amendment. [26]   When evacuees at Beauregard were forced to surrender their pets to the care and custody of St. Bernard deputies before being evacuated, a “seizure” of their “effects” occurred. [27]   Additionally, it was unreasonable for the deputies to inhumanely destroy these animals, particularly in light of rescue options and less intrusive alternatives available to the deputies at the time of the alleged executions.   Therefore, evacuees at Beauregard are proper claimants of a Fourth Amendment unreasonable seizure of property.  

A. Dogs are “effects” within the ambit of the Fourth Amendment.

            Although the text of the Fourth Amendment does not explicitly describe “personal property,” the people’s “effects” include their personal property. [28]   The Supreme Court recognized this in U.S. v. Place , when it said that “seizure of personal property [is] per se unreasonable within the meaning of the Fourth Amendment,” absent a proper warrant authorizing the seizure. [29]   And because state statutes classify dogs as personal property, [30] “the killing of a person’s dog by a law enforcement officer constitutes a seizure under the Fourth Amendment.” [31]

            The scenario of law enforcement destroying a person’s dog is an instance where a dog’s classification as property is vital to justice for the guardian of that dog under current jurisprudence.   For instance, in 1985 the Seventh Circuit completely side-stepped the issue of a dog as property protected from unreasonable seizure by the Fourth Amendment. [32]   In Pfeil v. Rogers , the father of a murder victim instituted a Section 1983 action against local deputies who shot and killed the victim’s three dogs, and left these dogs to “decay in the heat of the summer sun.” [33] The court clearly expressed its disapproval of the actions of the deputies, stating that their conduct fell “far below the standards of the expected conduct enunciated by the Wisconsin Law Enforcement Board.” [34]  

            But the court failed entirely to discuss how destruction of the dogs may amount to a violation of the son’s Fourth Amendment rights, despite the fact that one year prior, the Supreme Court declared that luggage was a protected “effect.” [35]   The plaintiff failed to plead his Section 1983 claim in terms of Fourth Amendment seizure, limiting his claim to the question of an unreasonable search. [36]   Perhaps his pleadings limited the Seventh Circuit’s analysis.   Or perhaps the court was reluctant to broach the subject of dogs as personal property because of the unique characteristics of dogs as companion animals.   In any event, the Seventh Circuit side-stepped the issue.    

            In fact, this query would not be answered in full until 2003, when the Fourth Circuit elaborated on the question of dogs as property protected by the Fourth Amendment. [37]   Altman v. City of High Point was a case involving a Section 1983 challenge against animal control officers who shot and killed several owned dogs running at large. [38]     The court acknowledged that by 2003, the Third, Eighth and Ninth circuits had recognized dogs as property subject to Fourth Amendment protection. [39]   However, the Third Circuit set out to explain this classification particularly in light of “the complete absence of reason” employed by the other circuits who indeed declared dogs as “effects.” [40]  

            The court in Altman v City of High Point acknowledged the right of a dog owner to recover under an action of trover for conversion of a pet dog at common law. [41]   The court concluded that the common law action for the loss of a dog was strong evidence that the drafters of the Fourth Amendment indeed contemplated dogs as “effects” whose owners enjoyed a constitutional protection against their unreasonable seizure. [42]

            Despite the general acknowledgment of dogs as “effects,” a plaintiff’s success on a Section 1983 claim against law enforcement for the destruction of a companion animal faces considerable challenges.   As an initial matter, the court must determine whether the challenged actions of law enforcement constituted a seizure and whether that seizure was unreasonable.   The following sections explore these issues in greater detail.

B. St. Bernard deputies “seized” the dogs of evacuees at Beauregard.

            A “seizure” of property occurs where there has been some meaningful interference with an individual’s possessory interest in that property. [43]   Meaningful interference occurs when the government destroys a person’s property because that person suffers a permanent deprivation of that property. [44]  

            In 1994, the Ninth Circuit explicitly recognized that “[t]he killing of [a] dog is a destruction recognized as a seizure under the Fourth Amendment” and can constitute a cognizable claim under Section 1983. [45]    That same year, and nearly ten years after Pfeil v. Rogers , the Eighth Circuit acknowledged that dogs are property protected from unreasonable seizure by the Fourth Amendment. [46]   Lesher v. Reed did not involve a police shooting of a dog, but rather a forced relinquishment of a failed service dog.   An employee of the police department had custody of a dog that the department demanded be turned over for destruction. [47]   The employee filed a Section 1983 claim for the forced relinquishment of the dog. [48]   The Eighth Circuit held that the plaintiff’s Fourth Amendment rights had been violated and remanded the matter back to the district court for determination of the reasonableness of the department’s action in confiscating the dog for destruction. [49]  

            Although unreasonable seizures by the government tend to occur in the context of a criminal search, the Fourth Amendment may also be implicated by seizures in a civil context. [50]   It would make no sense to only afford those suspected of criminal conduct the protections of the Fourth Amendment. [51]   Additionally, these protections are premised upon a desire to protect the privacy of people from government intrusion. [52]   For example, a person’s Fourth Amendment rights may be implicated where “the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all.” [53]   Thus, the forced relinquishment of a companion animal at Beauregard in the context of a natural disaster evacuation effort clearly implicates the Fourth Amendment rights of evacuees who were forced to leave their dogs in the school.

            When deputies at Beauregard insisted that residents leave their companion animals at the school and board a vessel to evacuate the parish, a seizure of property protected by the Fourth Amendment occurred.   Particularly in light of the ultimate destruction of these dogs, owners who were forced to leave them behind suffered a permanent deprivation of their property.   This permanent deprivation is the ultimate interference in a person’s possessory interest in their property.   Clearly, deputies meaningfully interfered with evacuees’ possessory interest in their dogs; thus deputies seized these dogs in contravention of the Fourth Amendment. [54]

C. Destroying the dogs at Beauregard was an unreasonable seizure.

            Fourth Amendment violations occur only where the seizure is deemed unreasonable. [55]   Reasonableness is assessed by a balance of “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.” [56]   In determining whether a specific government act of seizure constitutes a violation of a person’s Fourth Amendment rights, courts consider the nature and extent of the intrusion on a person’s possessory interests occasioned by the seizure of one's personal effects. [57]   For instance, the intrusion is less where a person “relinquishe[s] control of the property to a third party” than where the property is removed from the “immediate custody and control of the owner.” [58]  

            The consideration of intrusion operates along a continuum and, as illustrated by Lesher v. Reed , duress leading to the relinquishment of property heightens this intrusion. [59]   In Lesher , the plaintiff was threatened with termination of his employment if he did not turn the dog over to his employer, the local sheriff’s department. [60]   Although the plaintiff was an employee of the sheriff’s department and there existed a contract governing the sheriff’s right to reclaim ownership of the dog from the plaintiff, the court still held that a seizure transpired. [61]

            When a seizure is more intrusive than necessary, that seizure is unlawful. [62]   In San Jose Charter of Hells Angels v. San Jose , the Ninth Circuit applied a totality of the circumstances test to “determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer’s duties.” [63]   In that case, officers shot and killed plaintiffs’ dogs in the course of executing a planned raid of plaintiffs’ home. [64]   The Ninth Circuit acknowledged the “Fourth Amendment allows officers to use a certain amount of force because they are ‘often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving…’” [65]   The officers in Hells Angels had one week to plan their raid and to consider how they would deal with the dogs. [66]   And the court concluded that the actions taken by these officers were unreasonable because “the state of the law at the time was clear enough to provide reasonable officers with sufficient notice that their conduct was unlawful.” [67]  

            The breeds of the slain dogs at Beauregard will inform this query of whether the seizure was more intrusive than necessary.   Any show of force by the deputies against unarmed and traumatized evacuees will also color this consideration.   Evacuees at Beauregard allege that deputies forced them into boats and ordered them at gun-point to leave their pets behind. [68]   Messages such as “Do not shoot her” [69] scrawled on the walls of the school corroborate these allegations. [70]  

            Deputies will likely claim that the destruction of these animals was necessary to the personal safety of the deputies.   But the breeds of the slain dogs at Beauregard included Dachshunds, a Miniature Pincer and a Pomeranian. [71]   Additionally, several of the larger breeds were tethered. [72]   These details provide strong support for the evacuees’ position that the seizure was unlawful because it was more intrusive than necessary.

            Another factor that will inform the reasonableness query is whether the deputies considered alternatives before shooting these dogs. [73] In the aftermath of Katrina, thousands of animal rescue volunteers converged upon the storm-ravaged area.   St. Bernard deputies were very likely on notice that these volunteers were present.   In any event, the deputies who forced the owners of these dogs onto boats knew that the dogs in Beauregard had owners.   The state of the law is and was such that “the killing of person’s dog constitutes an unconstitutional destruction of property absent a sufficiently compelling public interest.” [74]  

            Undoubtedly, there are circumstances which in which “the state’s interest may be sufficiently compelling to ‘justify the extreme intrusion occasioned by the destruction of [a] pet.’” [75]   Public health may have been a genuine concern of deputies in the wake of the storm.   Perhaps they feared dog bites or disease.   And in the chaos of Katrina, St. Bernard deputies did not have access to tranquilizers or catch poles.   But the dogs at Beauregard were contained inside classrooms. [76]   There were dog biscuits scattered throughout the classrooms. [77]   And these classrooms had doors.   An obvious alternative available to the deputies would have been to simply close these doors and report the location of the dogs as soon as a rescue option became available.  

IV. Do owners of slain companion animals have substantive due process rights?  

            In Altman v. City of High Point , the Fourth Circuit discusses the 1992 Supreme Court decision in Soldal v. Cook County , which clarified that “the Fourth Amendment’s protections extend to property in which there is no particular privacy or liberty interest.” [78]   The Fourth Circuit’s opinion in Altman suggests that the conclusion that dogs are protected property within the ambit of the Fourth Amendment was made possible by the Supreme Court’s holding in Soldal . [79]  

            Many pet owners feel that they have a privacy interest in a companion animal, particularly because companion animals occupy roles similar to that of children in the lives of many.   A privacy interest in a companion animal, however, may implicate the substantive due process provision of the Fourteenth Amendment.   Although a thorough discussion of substantive due process is beyond the scope of this paper, it is worth note that courts shy from substantive due process because it involves significant judicial latitude in determining what rights not enumerated in the Constitution should be protected by the Constitution.   In fact, the Supreme Court declared “[t]here are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights.” [80]  

            Thus, it is no surprise that in 2006 the Eighth Circuit passed upon an opportunity to discuss whether a police officer did violence to a plaintiff’s substantive due process rights when the officer fired shots into plaintiff’s fenced back yard and killed plaintiff’s Labrador-retriever. [81]   The court below, however, dismissed the claim of substantive due process injury because (1) plaintiff’s claim was already covered by the Fourth Amendment and (2) the actions of the police officer in question did not “shock the conscious.” [82]  

            The first of these grounds for dismissal will prove the most significant hurdle to recognition of a substantive due process violation when a cop shoots a companion animal.   This is so mainly because of the strength of the Fourth Amendment grounds for constitutional tort injury.   As the Supreme Court said in County of Sacramento v. Lewis , “[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process' must be the guide for analyzing these claims.” [83]             

V. The Shield and the Sword:   No Qualified Immunity for the Parish or the Deputies.

            Qualified immunity is a significant hurdle to any plaintiff claiming an injury by law enforcement.   Qualified immunity shields government from “liability for civil damages insofar as their conduct does not violate clearly established statutory rights of which a reasonable person would have known.” [84]  

A. The Municipality of St. Bernard Parish is liable if the parish failed adequately to train its officers and to discipline or control the misconduct of its officers.

           
            In 1993, the Supreme Court clarified that “municipalities do not enjoy immunity from suit – either absolute or qualified – under Section1983.” [85]   The Supreme Court had occasion to clarify this rule, which was established in 1978, because of a Section 1983 suit filed in the Fifth Circuit. [86]   That suit involved police officers shooting the plaintiff’s dog during the course of a drug raid. [87]   Although the Court’s holding was focused on a procedural issue, the Court made clear that “a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.” [88]  

            Plaintiffs’ case against the municipality of St. Bernard Parish is strong if plaintiffs can demonstrate that the parish had a municipal policy or custom of inhumane disposal of companion animals during hurricane evacuation operations. [89]     Because the parish municipal code speaks directly to the issue of humane treatment of companion animals, plaintiffs must look to evidence of cruel custom endorsed or tolerated by the parish. [90]   Also, plaintiffs should build a case that demonstrates that the basic training and disciplinary procedures for St. Bernard parish deputies were inadequate.   Although this type of evidence may be difficult to collect and verify, it will be vital to a recovery from the parish, which may be plaintiffs’ only real option for compensatory damages for the constitutional injuries they have suffered.  

B. The individual deputies are not shielded by qualified immunity and are liable if the shooting allegations are proven because these actions were unreasonable and violated evacuees’ Fourth Amendment rights.

            There is a two step analysis generally applied to determine whether a law enforcement official is shielded from civil liability: “(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.” [91]   The burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity. [92]   Additionally, the determination of an officer’s qualified immunity may depend upon whether a reasonable officer under the circumstances would have believed his conduct was lawful in light of the law that was clearly established at the moment of the incident. [93]

i. The Fourth Amendment right of a dog owner to be free of the unreasonable seizure and destruction of a pet is a clearly established constitutional right and the alleged actions of St. Bernard deputies violated this right.

            The Supreme Court has clearly held that the unreasonable seizure of a person’s property is a violation of that person’s Fourth Amendment rights. [94]   In Louisiana, the law is clear that “[d]ogs owned by citizens of this state and by citizens of other states and situated and located in this state are declared to be personal property of such citizens.” [95]   Thus, the destruction of the dogs at Beauregard can be deemed reasonable only where the importance of the governmental interest alleged to justify the intrusion on the individual’s Fourth Amendment rights outweighs the nature and quality of that intrusion. [96]

            But there was no important governmental interest that required the deputies at Beauregard to shoot the dogs.   Officer safety was not reasonable justification.   Most of the slain dogs were small breeds and gentle breeds. [97]   Angel Girl was a Black Lab belonging to John Bozes, the man whose name leads the class of plaintiffs who filed a civil suit with the U.S District Court for the Eastern District of Louisiana. [98]

  Bullet was a Husky mix that belonged to Carol Hamm, also a plaintiff in the civil suit. [99]   Both Angel Girl and Bullet were found noosed by mini blind cords.   These dogs were tethered.   But they were also shot.   Additionally, deputies allegedly shot several Dachshunds, a Boxer, a Miniature Pinscher, a Pomeranian and a Golden Retriever. [100]   There were also two Pit Bull mixes. [101]   Honey was a pit bull mix, all of six months old and probably weighing less than twenty five pounds.   But it is foreseeable that these deputies will champion her breed as justification for the massacre.  

            These deputies had clear, less intrusive alternative available to them.   These dogs were contained in classrooms with doors.   Animal rescue volunteers who discovered the grisly scene at Beauregard snapped photos of dog biscuits scattered across the floor.   The deputies could have secured the animals inside the building and reported their location to the first person available to rescue the animals.   Instead, the deputies reportedly shot dozens of dogs inside Beauregard.  

            Additionally, necropsies of the remains of these dogs reveal that they were not executed in a swift   and humane fashion. [102]   Several dogs were shot in the hind quarters. [103]   Most of these dogs had no gunshot wounds to the head, which would have been the obvious placement of a bullet if a mercy killing was afoot.

            The intrusion on the dog owners’ Fourth Amendment rights was severe.   These dog owners were absolutely deprived of all possessory interest in their companion animals.   These deputies were on notice of the incredibly strong interest the evacuees had in their dogs when deputy orders were met with resistance so significant that deputies, in order to get compliance, resorted to training their weapons on innocent members of their own community who were in the midst of the most tragic moment that community had ever known.   And anyone living in modern American in 2005 is on notice that dog owners have an incredibly strong interest in their companion animals.   As stated by the Ninth Circuit in Hells Angels , “[t]he emotional attachment to a family’s dog is not comparable to a possessory interest in furniture.” [104]  

ii. A reasonable deputy would have known that executing the companion animals of residents forced to leave these animals at Beauregard was a violation of the evacuees Fourth Amendment rights.

              The emotional value of a companion animal to a guardian is a common understanding of the modern experience.   One need only observe the burgeoning market for veterinarians, pet supply retailers, pet groomers and doggie daycare to realize that for a significant segment of the U.S. population, companion animals are family.   The intuitive repulsion many experience when told of the executions at Beauregard Middle acknowledges the right of pet owners to be free of the cruel and unreasonable destruction of their animals.   In Anderson v. Creighton , the Supreme Court explained that a right is clearly established if “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” [105]   And in Hope v. Pelzer , the high court noted that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” [106]    The bloodbath at Beauregard Middle School was a stage upon which that no reasonable official could stand, regardless of the circumstances.  

VI.        Conclusion.

            The Ninth Circuit explained in Ganwich v. Knapp , that though “judges should not expect police officers to read United States Reports in their spare time…we do expect officers to think twice before embarking on a course of conduct…that is unusual, unfair and unduly coercive.” [107] People were forcibly separated from their pets.   Dozens of helpless, harmless and captive dogs were summarily executed.   If it is proven that these were indeed the actions of deputies with the St. Bernard Sheriff’s Office, then there is no doubt that their actions were unusual, unfair and unduly coercive.   As such, the Fourth Amendment rights of these pet owners were clearly violated and the deputies have a lot of explaining to do.