This article reviews state and federal causes of action that can be brought when a pet has been shot unlawfully and the different claims that are available depending on whether the shooter is a government employee, such as a police officer or animal control official, or an ordinary citizen. The articles also explores the various defenses that defendants may assert, including qualified immunity for government employees.
Introduction
How to assist a client in bringing a lawsuit for the shooting of his pet will depend on whether the shooter is a government employee, such as a police officer or animal control official, or an ordinary citizen. In the former situation, both state and federal causes of action may be brought, while in the latter, only state claims can be pursued. Also, only government employees can claim qualified immunity. It will also be important to review the amount of damages that can be sought with your client, because often attorney’s fees will outweigh any potential gain.
I. Ordinary Citizen as Shooter
When a person shoots a pet, there are both common law state claims, which will ordinarily be the same regardless of the state, and statutory state claims which can vary greatly.
A. Common Law State Claims
Intentional Infliction of Emotional Distress
The Restatement of Torts establishes that the elements of intentional infliction of emotional distress claims are that the offending party, through extreme or outrageous conduct, must intentionally or recklessly cause severe emotional distress or bodily harm to another. At least one court has held that a showing of the impact on the owners is not required where the conduct is outrageous or egregious, which is helpful, because it can be difficult to prove emotional distress without psychiatric evaluation. See Carroll v. Rock, 469 S.E.2d 391 (Ga. App., 1996 ) ; Moses v. Prudential Ins. Co. & c., 187 Ga.App. 222 (1988) .
Although very few courts entertain intentional infliction of emotional distress claims, one advantage of pleading the claim is that if it is successful, damages are not limited to the fair market value of the pet. ( Refer to the Sandle v. Davis (2003) pleading for an example of an intentional infliction of emotional distress claim involving a neighbor who shot plaintiff’s dog as the dog stood in the street, three feet from the neighbor’s property line, and twenty feet from the plaintiff, who was pruning a tree outside. Plaintiff also pled claims for conversion and violation of CA CIVIL § 3340 , relating to damages to animals).
Conversion
Conversion is the intentional interference with a person’s property, which deprives the legal owner of his rights to use the property. To succeed on a claim, you must show that your client had ownership or right to possession of tangible, personal property, someone prevented him or her from accessing the property for a significant period of time, he or she did not give permission, and suffered harm as a result. Because most states recognize pets as personal property, the killing of a pet can usually support a claim for conversion. However, damages for conversion are usually the fair market value of the pet, which may not be significant. ( Refer to the Seagrave v. Atzet (2004) pleading for an example of how to craft a claim for conversion. The Seagrave case involved a neighbor who intentionally shot a golden retriever secured in an enclosed backyard by positioning a high-powered pellet rifle through the fence. Plaintiff also pled claims for intentional infliction of emotional distress and violation of CA CIVIL § 3340 , related to damages to animals).
Negligence
Negligence is the failure to exercise the care that a reasonable or prudent person would do in the circumstances. Negligence involves accidental as opposed to intentional actions or omissions. The plaintiff must prove that the defendant had a duty to act or refrain from acting, that the action or omission was not what a reasonable person would have done and proximately caused the damages. Gross negligence involves the same elements, except the action must show reckless or willful disregard for the safety of others. ( Refer to the Harrington v. Hovanec (2005) pleading in which the plaintiff charged defendant with gross negligence, because “defendant had a duty to the community and to plaintiff to respect plaintiff’s property and the value of Penny’s life,” and he “breached this duty when he shot Penny 13 times.” )
Trespass to Chattel
Trespass to chattels is a tort where the infringing party has intentionally interfered with another person's lawful possession of chattel , or personal property. The interference can be any dispossession of the chattel (whether by taking it, destroying it, or barring the owner's access to it), deprivation of the use of the chattel for a long period of time, or impairment of the condition, quality, usefulness of the chattel. Actual damage is not a required element.
Because pets are generally considered personal property under state law, by unlawfully shooting a pet, a person has interfered with the owner’s use of his chattel, and a trespass to chattel claim is created.
(Refer to the Harrington v. Hovanec (2005) pleading for an example of a trespass to chattel claim. The plaintiff also pled claims for conversion, intentional infliction of emotional distress, and violation of CA CIVIL § 3340 , related to damages to animals, when a neighbor shot his dog thirteen times).
B. Statutory Claims
Many states have enacted statutes that allow recovery for the wrongful killing of a pet. This allows dog owners to plead a state statutory claim in addition to common law claims. For example, Sandle v. Davis , Seagrave v. Atzet , and Harrington v. Hovanec all involved CA CIVIL § 3340 claims, which is derived from the California statutory code and provides that “for wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.” In Maine, “unless the killing is justified to protect persons or property, a person who steals, confines or secretes, willfully or negligently injures or willfully or negligently kills a dog is liable in damages to the dog's owner in a civil action.” ME ST T. 7 § 3953 . In Rhode Island, a statute imposes a fine of between $10 and $100 or imprisonment of up to thirty days, and provides that the wrongdoer “shall by liable to the dog’s owner for damages in a civil action” when he wrongfully removes the collar from a licensed dog or steals, maims, detains or exposes a poisonous substance to a licensed dog. RI ST § 4-13-13 . Other states, like Michigan, have simply enacted statutes preserving all common law claims rather than adding additional statutory claims. M.C.L. § 287.288 (“Nothing in this act shall be construed to prevent the owner of a licensed dog from recovery, by action at law, from any police officer or other person, the value of any dog illegally killed by such police officer or other person.”). Finally, Wisconsin has an interesting statute that prohibits “the killing or aiding in killing or wounding by use of deadly weapon of any animal that is tied, staked out, caged or otherwise intentionally confined in a man-made enclosure, regardless of size.” WI ST § 951.09 . This would make it unlawful to shoot any dog that is on leash or in a yard.
Statutory claims can be raised in addition to the common law state claims discussed earlier.
C. Defenses
One of the most well-known common law defenses is self-defense. However, to justify shooting a dog, the defendant would have to show he had reason to fear serious bodily harm. A much easier threshold for defendants to meet would be to show that the situation in which they shot the dog was covered by a state statute authorizing the action.
Dogs Threatening People
Generally, people will not be liable for a dog shooting when there is a reasonable possibility they were in danger of being attacked. In Alaska , "any person may lawfully kill any vicious or mad dog running at large." AK ST § 03.55.010 . A vicious dog is defined to be “any dog which when unprovoked has ever bitten or attacked a human being.” AK ST § 03.55.020 . In Maine, “any person may lawfully kill a dog if necessary to protect that person, another person or a domesticated animal during the course of a sudden, unprovoked assault.” 7 M.R.S.A. § 3951 . I n Vermont , a person may kill a domestic pet “that suddenly assaults him or her or when necessary to discontinue an attack upon the person or another person” as long as the attack does not occur while the pet is restrained, within an enclosure, or on the premises of the owner. 20 V.S.A. § 3545 . The fact that dogs cannot be killed if in an enclosure or restrained suggests that there must be a realistic opportunity for the animal to injure someone, which is common to many statutes providing a defense to shooting pets. At least one court has interpreted the Texas vicious dog statute, which allows for the killing of a dog that was running loose and endangering persons or property, to only apply to situations in which the threat was imminent and the killing was a real or apparent necessity. City of Garland v. White, 368 S.W.2d 12 (Tex.Civ.App. 1963) .
Dogs who are Chasing Livestock or Wildlife
Many states have laws allowing the shooting of dogs to protect farm animals and agricultural interests. In Puckett v. Miller, 381 N.E.2d 1087 (Ind.App.,1978) , the Court of Appeals found that a farmer who had shot the plaintiff’s coon dogs as they were trying to get into defendant's chicken enclosure had a valid defense under an Indiana statute providing that any dog known to have worried livestock or fowl or found roaming unattended may be lawfully killed. In Vermont, domestic pets “found wounding, killing or worrying another domestic pet or wolf-hybrid, a domestic animal or fowl may be killed" when reasonably necessary to prevent injury to the animal.” 20 V.S.A. § 3545(b) . Ohio provides that “a dog that is chasing or approaching in a menacing fashion” or that “attempts to bite or otherwise endanger, or that kills or injures” a person, livestock, poultry, domestic animal, or other animal, that is the property of another person, except a cat or another dog, can be killed at the time of that chasing, approaching, attempt, killing, or injury. OH ST § 955.28 . If the requirement of imminent threat is not explicitly stated in the statute, as it is in Ohio, courts often will often incorporate it through interpretation. In Propes v. Griffith , 25 S.W.3d 544 (Mo.App. W.D., 2000) , for example, the court held that "it would be logical to conclude that the legislature did not intend for MO ST § 273.030 to allow a sheep owner to have an unlimited time frame in which to kill a dog found on his property.” Rather, the landowner could only kill the dog immediately while in the act of chasing to protect his sheep. Thus, defendants were liable for taking the dogs to two different veterinarians over a three hour time span to have them euthanized. In fact, the court even found the award of punitive damages was justified, given that this type of conduct had to be deterred.
While Ohio precludes attacks on cats and dogs as defenses to dog shooting, other statutes simply require that the animal being attacked is domesticated as opposed to wild. In Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. 1994) , a court interpreted a Texas law that allows people to kill dogs which are attacking domestic animals as not applicable to wild animals, such as deer. In contrast, states like Alaska, which declare that any dog who “habitually annoys any wild deer, reindeer, sheep, cattle, horse, or other animal or bird either domestic or wild” may be lawfully killed, extend protection to all species. AK ST § 03.55.030 . However, Alaska also includes the caveat that the owner, “if known or reasonably identifiable, shall be notified and given reasonable opportunity to restrain the dog before it is lawful to kill it,” and that the dog must be “at large.” AK ST § 03.55.030 .
The extreme approach of Wyoming provides that any person owning a dog, which to “his knowledge has killed sheep or other livestock, shall exterminate and destroy the dog.” WY ST § 11-31-106 . Thus, Wyoming does not require an imminent threat to justify the killing, although it is not clear whether people other than the owner can lawfully kill the dog.
Finally, at least one California court has held that whether homeowners raise domesticated animals, such as pigeons, for consumption or other purposes such as breeding or enjoyment, they “may properly claim the privilege accorded an owner of ‘poultry’ or livestock pursuant to Food and Agricultural Code section 31103.” Thus, dog shooters may have a defense even if the animals they were protecting were pets and not agricultural commodities. Harrington v. Hovanec Decision on Motion in Limine California Superior Court, Placer County (April 2006) .
To rebut the defendant’s assertion that the dog was threatening livestock, consider whether the facts would support a reasonable person’s conclusion the dog was a danger to the animals, whether the statute covers the type of animal the dog was attacking, whether the threat was imminent, and whether there was a statutory caveat that the owner should be notified and given a chance to restrain his pet.
Dogs without a Rabies Vaccination Tag
Iowa wins the prize for the harshest dog shooting statute by making it “lawful for any person… to kill any dog for which a rabies vaccination tag is required, when the dog is not wearing a collar with rabies vaccination tag attached.” IA ST § 351.26 . It is important to be aware that many states accord much less protection to unlicensed property.
Dogs Running Loose
Generally the fact that dogs are running loose is not a justification to shooting them if they are not threatening people or property. While most defense attorneys would argue that the dogs appeared dangerous, in order for this defense to succeed, the facts would have to show that it was reasonable for the shooter to perceive the dog as a threat. Many courts have affirmed that there is no justification for shooting dogs which are not exhibiting aggressive behavior. See City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. 1963) (Texas statute did not allow immediate killing of loose dogs. Rather, loose dogs should be impounded, held for a period of three days, and then killed if unclaimed during the holding period); Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001) .
Trespass
Many statutes providing a defense for killing dogs exclude situations in which the threatened individual or animal was trespassing on the dog owner’s property. Similarly, when the dog is the one trespassing, some state statutes authorize property owners to shoot it even if the dog is not threatening livestock. In Ohio, statutory provisions which forbid the killing or injuring of pets without the owners’ permission do not apply to someone who is “endeavoring to prevent [the pet] from trespassing upon his enclosure, or while it is so trespassing, or while driving it away from his premises” as long as within fifteen days thereafter, payment is made to the pet’s owner for the value of the pet less the amount of damage the pet incurred. OH ST § 959.04 . Thus, as long as the property owner provides compensation, he may lawfully shoot a trespassing dog. Similarly, i n Alabama, defendants may try to prove in mitigation or justification that at the time of the killing, the dog was trespassing and had within six months previously trespassed upon a growing crop enclosed by a lawful fence, or the dog had been running at large in violation of law. In either scenario, the final decision is left to the jury. However, defendants are exonerated and do not have to face trial if they have provided full compensation to the owner before the start of the prosecution. AL ST § 3-1-11 . In California, at least one court has interpreted CA FOOD & AG § 3110 , which allows a property owner to kill a dog that enters an enclosed or unenclosed livestock confinement area, to apply to a livestock rancher who had shot plaintiff's sheepdogs after they escaped and trespassed on his property. Because defendants owed no duty to plaintiff, the court denied the claim for negligent infliction of emotional distress as a result of negligence in supervising the ranchhand who killed the dogs. Moreover, the court found that the dumping of the dead dogs in a ditch and the denial of knowing the fate of the dogs did not rise to the "extreme and outrageous conduct" necessary to support an intentional infliction of emotional distress claim. Katsaris v. Cook , 225 Cal.Rptr. 531 (Cal.App. 1 Dist., 1986).
In contrast, some states do not explicitly allow the shooting of trespassing dogs which are not threatening livestock or people. In Maine, an owner of an animal is responsible for the expense of removing his or her pet if he or she has failed to do so him or herself “after having been notified by an animal control officer… that the animal was trespassing.” Moreover, an animal owner commits a civil violation if his pet trespasses and the owner “fails to remove the animal within 12 hours after having been personally notified by an animal control officer…” ME ST T. 7 § 4041 . However, nowhere does the Maine statutory code authorize the shooting of a trespassing dog.
Local ordinances may contain similar provisions. I n Grand Forks, North Dakota, animals which trespass “within any enclosure… surrounded by good and sufficient fence shall be liable to be taken up and restrained by the owner or occupant of such enclosure… and to be driven to the pound.” Grand Forks - Secs. 11-0210 . The Grand Forks code also provides that it is “unlawful for any person to willfully or maliciously inflict unnecessary or needless cruelty, torture, [or] abuse” to any animal “except that reasonable force may be employed to drive away vicious or trespassing animals” (italics added). Grand Forks - Secs. 11-0214. Cruelty to animals . Thus, while the Grand Forks code allows property owners to take trespassing dogs to the pound or to restrain them, they are not allowed to inflict unnecessary injuries and can only use “reasonable force.”
II. Government Official as Shooter
As egregious as it is when a neighbor unjustifiably shoots a client’s dog, it is often even more shocking when government officials, such as police officers, abuse their power while acting under the color of legal authority. The good news is that in these cases, the plaintiff can bring all the state claims that can be raised for ordinary citizens as well as certain federal claims. United States Code Section 1983 (42 U.S.C. 1983) provides a cause of action to sue government employees who have violated a person’s constitutional rights, a valuable opportunity for recovery not available at the state level. It is important to note that if the lawsuit is brought in federal court, all state claims must also be raised at that time or the pet owner may lose the right to raise them at a later time.
A. Federal Claims
Fourth Amendment Constitutional Claim/ 1983 Federal Statutory Claim
In all states, pets are defined as personal property under state law (federal law does not provide for any classification of pets). Thus, the injury or killing of pets can be a federal violation of the pet owner’s constitutional Fourth Amendment right to be free from unreasonable seizures of their property. The U.S. Supreme Court has declared that an unreasonable meaningful interference with or destruction of personal property is a violation of the Fourth Amendment even when an officer is acting pursuant to a warrant, Soldal v. Cook County, 506 U.S. 56 (1992) , and even when there has been no search (“ Seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place.” Newsome v. Erwin 137 F.Supp.2d 934 (S.D. Ohio 2000) , citing Soldal v. Cook County , 506 U.S. 56, 65 (1992) ).
Normally, only government entities can be sued for constitutional violations. However, a federal statute, 42 U.S.C. § 1983 , provides plaintiffs with a means of suing individual officials when they have acted under government authority to deprive people “of any rights, privileges, or immunities secured by the Constitution and the laws.” However, all government officials enjoy qualified immunity, which plaintiffs must defeat to prevail.
B. Defenses
Government agencies and officials generally have immunity from liability for all actions when acting in their official capacity. However, this immunity is not absolute.
For government agencies, immunity can only be overcome if the plaintiff can prove that the agency has supported a policy or custom that is indifferent to individuals’ constitutional rights. Errors or individual actions taken contrary to agency policy would be insufficient to surmount this hurdle. However, not all government-affiliated organizations are considered government agencies which warrant immunity. Often, it can be argued that animal shelters are distinct non-profit entities ( See Snead v. Society for Prevention of Cruelty to Animals of Pennsylvania, 2007 WL 1990510 (Pa.Super.) , in which court found that the Pennsylvania SPCA was “ a private, not-for-profit corporation, not a ‘Commonwealth agency’” even though it has the power “to enforce… statutes pertaining to animals,” because “its officers and directors are not appointed by the C ommonwealth,” “the Commonwealth does not have control over its operations or assets,” it “ adopts its own by-laws and manages its own affairs," “ and is not funded by public monies.”).
For government officials, however, immunity can be overcome if (1) the plaintiff’s constitutional rights have been violated, and (2) if a reasonable officer would have known that his actions violated that right. This tends to mean that ambiguous situations will still be covered by the immunity, in recognition of the fact that officers frequently have to act quickly and under great pressure. See e.g. Brandon v. Village of Maywood, 157 F. Supp.2d 917 (N.D. Ill. 2001) (immunity upheld since the 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).
At the same time, federal law is clear that an officer who destroys personal property in an unreasonable or unjustified manner violates the owner’s constitutional rights. For example, where an officer killed plaintiff’s pet lioness even though it had already jumped back into its enclosure after having escaped and was tranquilized, the court found that there was no reasonable justification and the officer’s qualified immunity was defeated. Newsome v. Erwin, 137 F. Supp.2d 934 (S.D. Ohio 2000) .
Qualified immunity is not automatic. It is an affirmative defense and must be clear as a matter of law or proven by the official claiming it. As a result, 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) . Finally, if an officer’s actions are unreasonable, it is irrelevant that he or she is acting under a valid warrant.
State law and the facts of the case will determine whether an officer’s actions were justified and reasonable. For example, in Iowa, given that any person can shoot a dog without a rabies tag, an officer would be acting reasonably in doing so. Moreover, some states have enacted statutes authorizing officers to shoot pets in particular situations.
For example, in Wisconsin , police officers entered plaintiff’s property without a search warrant and shot plaintiff’s three dogs, because they had previously been running loose and acted aggressively towards the officers. One of the dogs was shot four times as it attempted to flee its doghouse. However, because state statutes g ave law enforcement officials the right to enter a person's home for the purpose of seizing an unlicensed dog that had been running loose, the court found it was reasonable for officers to enter plaintiff’s property. Moreover, the sheriffs had been told by the local district attorney that if the dogs were vicious and could not be apprehended that they should be destroyed. As a result, although the court disapproved of the officers’ extreme actions, it held that their conduct did not rise to the level of violating plaintiff’s Fourth Amendment rights. Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985 ) .
In contrast, in City of Garland v. White, 368 S.W.2d 12 (Tex.Civ.App. 1963) , the court found police officers personally liable for wrongfully shooting plaintiff’s dog, because 1) the dog was not an immediate threat to public safety under the Texas vicious dog statute, 2) the dog was not running loose at the time of the shooting (and the proper action if it had been running loose would be to impound it) and 3) the officers trespassed onto plaintiff’s property.
Similarly, in Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001 ) , the court determined the killing of the dog was unreasonable because the dog posed no immediate danger, the owner was present to take custody, and there were no state statutes pertaining to loose dogs or allowing an officer to kill a loose dog. As a result, no reasonable officer would have believed the shooting to be lawful, and therefore immunity was defeated.
Thus, different outcomes can result from similar fact patterns, because of the differences in state statutes.
Ultimately, in attempting to prevail on a federal claim, defeating immunity will be one of the major obstacles to overcome. It is important to target the individuals responsible as well as the agency, because it is significantly easier to surmount qualified immunity for individuals. Lawyers should g ather and emphasize facts which tend to show that the officer's behavior was unreasonable. For example, many complaints will emphasize how many times the animals were shot and in what manner. See Harrington v. Hovanec (2005) (dog was shot 13 times with two different guns). In addition, lawyers should consider whether the officer was really under extreme pressure to act, whether there was opportunity to contact the owner, and whether there were other methods the officer could have used to control the dog.
Conclusion
Although there are many hurdles in pleading and winning a dog shooting case, it is only through the diligence of attorneys and clients who pursue claims against all odds that courts will become more willing to vindicate the wrongs inflicted on owners and their pets in this evolving area of jurisprudence.