Wednesday, November 27, 2013

The family of Rosie the dog awarded $50,000

Attorney for family of Rosie the dog on historic judgment

Originally aired: Friday, February 22, 2013

The family of Rosie the dog awarded $50,000 after she was shot needlessly by trigger-happy Des Moines cops who were supposed to help her.

Follow the link to listen to the Radio Interview with Attorney Adam Karp.

Arvada, CO police getting dog behavior training to prevent dog shootings.

ARVADA, Colo. - Most of the headlines with police and pets lately have been negative, with officer investigations in Adams County and Commerce City, where dogs were killed.

However, one local police force is being preemptive in preventing dog shootings.

Arvada police officer Jason Ammons was finishing a day on bike patrol when the unexpected happened.

"I saw a pit bull that was racing toward me on the street," he said. "It started going after my left leg."

Ammons was able to use his Taser to subdue the pit bull, instead of pulling his service revolver, and that's what Arvada is teaching its officers.

All Arvada police officers are getting dog behavior training by some of the city's most knowledgeable: their K-9 unit's animal and management officers.

"We can be a good resource for them and offer a different perspective," said Jennie Whittle.

The goal is to do everything you can to not kill someone's pet.

"Even our patrol officers are, I don't want to say scared, but intimated at times when we go around our own canine police dogs," Ammons said.

And the more comfortable the officers can be around dogs, the better chance at avoiding a dog death like those that have hit Commerce City and Adams County lately.

"Fido just came out here and he isn't necessarily trying to attack me and if I just give that dog some space then we don't have any further issue with that dog," said Ron Avila.

State Senator David Balmer is set to introduce a bill that would make mandatory dog training for all police officers.

Family wins $225,000 settlement against Minneapolis police

Article by: MATT MCKINNEY , Star Tribune | Updated: June 1, 2013 - 9:41 PM

A family that sued a Minneapolis police over a 2011 raid of their home, one that led to the shooting of two dogs and a list of ugly allegations against officers, has won a $225,000 settlement, a city spokesman confirmed this week.

The allegations laid out in James and Aisha Keten’s lawsuit against 15 members of the department portray the officers as cavalier and reckless, firing weapons at targets near children, screaming profanities and racial slurs, and taking cash from the family while searching for a rifle.

The search warrant’s focus was Lamont Keten, a suspect in an April 3, 2011, shooting. He was in custody by the time the police SWAT team arrived at his brother James Keten’s duplex. The warrant authorized the police to search for a .223 rifle that had been used in the shooting, according to court documents.

Two days before the search, James Keten had spoken to police about the shooting when he agreed to meet the officer assigned to the case, according to the lawsuit. Two days later, as Keten and his wife and two daughters ate breakfast and prepared for their day, the SWAT team entered the ground-floor duplex.

A dog in the front living room was shot immediately, as was a second dog in the kitchen, according to the lawsuit and the city’s response. The Ketens said that their daughters, ages 1 and 3, were eating breakfast at the kitchen table at the time, and that some of the dog’s blood splattered on the 3-year-old girl. The city disputed some of these allegations but agreed that the 3-year-old was at the kitchen table when a dog in the kitchen was shot and killed.

The Ketens’ account of the search warrant included several more allegations, all of which the city disputed: that officers beat James Keten in the head, neck and face during the search, ordering him to “shut up” while using profanity and racial slurs, that his wife’s purse was searched and that officers took $9,400 from it, and that officers broke furniture and tore down curtains.

The City Council approved a $225,000 settlement on March 29.

In a prepared statement, Police Chief JaneƩ Harteau said: "This incident occurred two years ago, and I do not have all the details about the case. However, as the new chief, I can reassure everyone that police misconduct will not be tolerated by the department. I fully support our officers in the work they do to keep our city safe each day but will also hold them accountable for their actions to ensure they are consistent with our core values."

Matt McKinney • 612-217-1747

$25K Settlement with Tallahassee Police Over Dog Shooting

City Settles Out of Court in Dog Shooting Case

Posted: Apr 05, 2013 | Reporter: Andy Alcock Email

A man who sued Tallahassee Police after an officer shot and killed his dog has settled his case.

It all started at about four in the morning in July, 2009.

Tallahassee Police Officers Joseph Azevedo and Mark Adrick arrived at a home in the 1400 block of Charlotte Avenue.

The officers were there because Kyle Marshall's live in girlfriend for two years claimed he was going to harm her black lab Dutch and wouldn't return it.

Marshall says it's not true and fallout from a fight.

The officers claim Marshall ordered his dog Smitty to attack them.

Officer Azevedo fatally shot Smitty.

"The officers maintain that the dog attacked them and they were justified in using the force they used," said Cassandra Jackson, a spokeswoman for the Tallahassee City Attorney.

"In no way was Smitty aggressive," said Marshall. "In no way did he look aggressive," he said. "This was basically the officers not manning up to a mistake they made and covering themselves to keep their jobs," Marshall said.

While Marshall admits he was rude to the officers and told them to leave his property multiple times, he says he feared for his own life after Officer Azevedo shot Smitty.

He says he tried to close the door and get away, but the officers entered his home and Acevedo shot Marshall twice with a taser.

"They shot my dog right on my front porch and then came into my house," said Marshall. "What rights do you have if you can't stay in your own house," he said.

"It was determined their actions were completely justified because they were in fear for their own safety," said Jackson.

Marshall was arrested and charged with two counts of aggravated assault on a law enforcement officer, resisting an officer without violence and petit theft of the dog.

He faced up to 30 years in prison.

However, the state attorney dropped all the charges, noting "the dog in this case does not meet the definition of a deadly weapon".

Marshall then sued.

Instead of going to trial, the city settled out of court with Marshall for $25,000.

"There was some concern perhaps the sympathy factor because of the dog," said Jackson explaining the decision to settle.

While Marshall has received the $25,000 settlement, he says his legal bills were more than $40,000.

And he said he sat in jail for two weeks.

He says he was offered a plea deal for three years in prison he's glad he didn't take.

"It's real serious," said Marshall. "It would've changed my entire life," he said. "I'd still be in jail right now," Marshall said.

Instead Marshall left Tallahassee to get a fresh start in California.

As for Officers Azevedo and Adrick, a Tallahassee Police Department internal affairs investigation cleared them both of any wrongdoing.

MPD has acknowledged the need for canine encounter related training, and the need to revise current policies regarding canine encounters.

Good news for Milwaukee PD residents! MPD has acknowledged the need for canine encounter related training, and the need to revise current policies regarding canine encounters.

Per the 2012 Milwaukee, WI PD Firearms Discharge Annual Report p.17-20

2012 Milwaukee PD Dog Related Encounter Incident Stats:
- 32 dog-related encounter incidents
- 37 dogs were police targets
- 28 dogs sustained fatal injuries
- 1 dog sustained major injuries
- 8 dogs were unharmed (all shots missed)
- 118 total rounds were fired averaging 3.2 rounds per dog
- 3 of the 52 officers were involved in 2 separate dog encounter incidents (3 officers shot at a dog on more than one occasion)
- SWAT: The Tactical Enforcement Unit (TEU) was involved with 2 of the dog-related incidents

2011 Milwaukee PD Dog Related Encounters Stats:
- 36 dog-related encounter incidents
- 37 dogs were police targets
- 20 dogs sustained fatal injuries
- 11 dogs were injured
- 6 dogs were unharmed (all shots missed)
- 105 total rounds were fired averaging 2.8 rounds per dog


1. The MPD should develop a departmental strategy for the proper handling of dog-related incidents. This strategy should closely align with the model protocols identified in the August 2011 U.S. Department of Justice Office of Community Oriented Policing Services publication, "The Problem of Dog-Related Incidents and Encounters." The goal of this strategy should be to significantly reduce the use of deadly force in dog-related encounters.

2. The MPD should intensify training on dog behavior and appropriate use of de-escalation techniques and other non-lethal tactical response strategies for dog-related encounters.

3. The MPD should closely review every dog-related encounter that involves the discharge of a firearm to determine if the use of deadly force was appropriate and whether proper non-lethal tactical responses were considered and utilized by officers.

4. The MPD should consider revising the use of force policy to include specific dog-related protocols consistent with a revised training regimen.

Pet Owner Reacts to Sentence of the Man who Killed his Dog


By: Litsa Pappas | Jan 09, 2013

HARRISONBURG, Va. -- In a retrial, a judge found former Harrisonburg Police Officer Russell Metcalf guilty once again of animal cruelty, but he did drop one charge that Metcalf was convicted of in his first trial.

The judge said on Wednesday that Metcalf is not guilty of recklessly using a gun when he shot and killed a dog last spring. The judge did say that it wasn't necessary for Metcalf to shoot the dog and that's why Metcalf is still guilty of animal cruelty.

Bryan Ware, the dog's owner, said he was upset when he found Sadie, his dog, shot to death outside his home last April.

"It's very upsetting for someone to take something away from you like that. That's uncalled for,” said Ware.

Ware described what Sadie was like.

"Sadie was a lovable, black and white Border Collie, about eight months old. She was very playful. She was just like any other Border Collie. When you would speak to her, she would kind of just crouch down like they normally do. She was very obedient."

Former Harrisonburg Police Officer Russell Metcalf shot Sadie as he was riding his bike past Ware's house. Metcalf said he did it because he was afraid the dog would bite him.

Ware said he was disappointed when the judge dropped the reckless use of a gun charge against Metcalf.

"Anytime you discharge a firearm like that in a neighborhood with homes and human life, that's reckless. That's being reckless."

Ware said he was glad the judge still holds Metcalf accountable for killing Sadie by finding him guilty of animal cruelty.

"Hopefully this will be a message for him and some others that you can't just up and do what you want to do like that. Take other people's feelings and personal properties into consideration."

The judge said the defense showed Metcalf's extensive experience in gun use and that was why the judge said his shooting the dog wasn't reckless because he knew what he was doing.

Metcalf's lawyer said he was pleased the judge dropped that charge, but he was still disappointed that Metcalf was found guilty of animal cruelty.

Metcalf now has to pay an $800 fine for his sentence.

IA Police Chief Pleaded Guilty to Animal Abuse for Shooting 7 Dogs

09.14.05 - 7 DOGS - HAMBURG, IA

- The small claims suit was filed by Elizabeth Brock and her attorney Jon Johnson against Police Chief Nick Millsap Fremont County Court Case # 04361 AGCR006089

- The claim was filed on Dec. 6, 2005 in Fremont County Court and served to the City of Hamburg (Georgann Stephens) on Dec 9, 2005 and to Nick Millsap on Dec.12, 2005.

- Brock was awarded $3,500 in damages in a small claims lawsuit against Millsap and the city of Hamburg, IA.

- On August 1, 2007, Nick Millsap was sentenced to one year of unsupervised probation under a deferred entry of judgment.

- The 'FORMER' Hamburg police chief pleaded guilty to one count of animal abuse, an aggravated misdemeanor. The remaining counts were dismissed as part of a plea agreement.

- Millsap was initially charged with seven counts of animal abuse after it was alleged that he removed seven dogs and puppies from a Hamburg residence in September 2005, and killed each of them - six by gunshots and one by stomping on its head.

- No jail time was imposed

Don’t Shoot My Dog, published by Law Enforcement Today

As a K9 officer, my K9 partner and I encounter many dogs (stray and pet) in the course of our duties. Sometimes we have seconds to determine the demeanor of the dog and prepare for the proper course of action when confronted. I know that through my training in evaluating a dog’s body language, I am better prepared than the average uniformed patrol officer to determine the dog’s motivation. The average patrol officer also encounters dogs daily in the course of their duty. They have no extra training in this area, yet they have to make split second decisions if confronted by an aggressive dog.

In my agency, there is no “use of force continuum” which is defined as “an escalating series of actions an officer may take to resolve a situation” when dealing with dogs. I received no training in dealing with aggressive and/or defensive dogs during my cadet and rookie years. Many agencies have no extra time to do so. I was raised with dogs and have no instinctual fear of them. This coupled with my K9 training and experiences will always inspire me to try to use other means, if possible, to detour an advancing dog.

I think one would agree that a bite from a dog, be it stray or pet, could potentially be a career ending injury for an officer depending on where the bite or bites was received. Such a bite could have a long recovery time as well as a painful one. What about rabies? Is the dog vaccinated and what is the potential for capturing the dog to test for same? Was this dog intentionally sent to bite the officer or is this merely a defensive dog defending its territory?

All of these questions have merit in deciding how to deal with the dog’s advancement. It is easy to “Monday morning quarter back” an officer’s decision to shoot a dog in the course of duty. What you can’t replicate is that officer’s perspective, his/her experiences with dogs and his/her fear level at the time of the incident. All of these will dictate the officer’s course of action. I will not judge an officer’s decision to shoot. I will merely offer some alternate ideas when dealing with dogs.

As officers, we routinely approach houses in the day and night time hours. We walk tall and proud and have a command presence when approaching any given situation. We approach through back or side yards for officer safety. A 911 hang-up call, a disturbance call or any call we receive can be a life ending event and we better treat each call tactically. We are constantly alert for anything going on around us. We make upstanding, law abiding citizens nervous. So it could be said a dog could definitely detect their owner’s nervousness at our approach as well as have its own fear.

A dog is instinctively territorially and protective of their owners and houses, some more than others. Some dogs are nervous around strangers and some are very vocal, barking and running to greet people. Some advance on people as a means to detour their approach. Can you tell the difference between an aggressive dog and a dog reacting from fear? There are too many physical clues to go into to so I will merely pass on some observations I have learned.

I am routinely in people’s back yards with my K9 partner. Before I enter, I will check for dog yard signs. Is there a dog house in the backyard or a conspicuous track through the yard? Are there dog toys or balls lying scattered in the yard? Even if there are no clues to a dog’s presence in a yard, I will gently rattle the fence if circumstances allow and I always leave myself a quick out if the need may arise. If I am unsure of a dog’s presence, I will already have my ECD (Taser) drawn.

The easiest and best physical sign for a dog’s motivation is the tail. If the tail is tucked, body crouched and the ears are folded down, the dog is in fear or defense aggression. Most likely he will retreat at a sharp command from the officer unless the dog is cornered. Is the tail up and forward with raised hackles and direct eye contact? This dog is offensively aggressive and is a potential problem. The best bet, even if a dog is exhibiting some of the above signs, is a wagging tail.

Some things you must do when encountering a dog potentially aggressive is the following:
- Do NOT make direct eye contact with the dog
- Stay calm and do NOT scream, jump back or run
- Turn your body slightly to protect your vital parts
- Move very slowly away from the dog
- If you speak, it should be in a calm command voice
- Do NOT lean over the dog

LEO’s do not always have the time or luxury to do these simple things due to our very nature. We have to move quickly, dynamically, or stealthily. Sometimes another person’s safety depends on us reaching our destination quickly without hindrance. Some agencies carry an ECD (Taser) which is effective in halting a dog’s advancement if there is time to draw it. Sometimes just the noise alone will deter the dog. Oleoresin Capsicum (pepper spray) is also sometimes effective in deterring a dog. This, once again depends on how quick you can draw it and your aim is crucial. An ASP baton can be used as well and can be equally effective. Any of these defenses can be rendered ineffective and the officer need always be ready to escalate.

As a pet owner myself, I understand the best safety measure for my dog is ME. My dogs are always leashed when taken out, they are obedient and social. They are not left alone with small children, even my own. They are fed in a quiet area by themselves. If someone approaches my dogs while out walking, I watch my dog’s body language at all times. I have a short and firm lead to deter any lunging on the dog’s part. I do not allow anyone with law enforcement issues at my house (regardless if I was an officer or not). Therefore there are no unexpected backyard visitors. My fenced back yard is clearly marked to not enter due to the presence of dogs, is the appropriate height for my dogs, the bottom is re-enforced, and the gate is padlocked as well.

As an officer, I am aware of my oath to protect a life, all life to the best of my ability. I also know as a member of the law enforcement family, that any life taken in the performance of our job is not done lightly or without regret, including that of a dog. It is a team effort from the dog owners and the LEO community to work with each other to keep our dogs safe.

Master Deputy Charlotte Raschke has worked in law enforcement since 1988. She started her career in Detention Services and worked all phases of patrol, street crimes, crime prevention, property detective and the K9 unit. She has been in K9 for 13 years as a handler, working three patrol utility/narcotic dogs and a single purpose EOD dog. Master Deputy Raschke is currently a K9 trainer for the Hillsborough County Sheriff’s Office in Tampa, FL. She was twice awarded the Law Enforcement Officer of the Year, the Deputy of the Quarter, and four lifesaving awards. She is an adjunct Instructor for St. Petersburg College’s Multi-Jurisdictional Counter Drug Task Force. Master Deputy Raschke serves as Law Enforcement Today’s K-9 expert.’t-shoot-my-dog/

Tuesday, November 26, 2013

Shooting Dogs: Taking a Bite Out of the Constitution

Laura Scarry, Attorney at Law

The lesson of this class was that the shooting of a dog requires “objective reasonableness” to meet the protections of the Fourth Amendment.

This amendment clearly states the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. A dog is now considered an “effect.”

Officers must now complete thorough reports documenting the facts which will support the shooting of a dog was objectively reasonable based on the totality of the circumstances.

2013 Animal Law Conference | The Police Shot My Dog

Published on Nov 18, 2013

There is an increased concern and awareness about the encounters law enforcement agents have with dogs that result in officers shooting and fatally wounding the dog.

Dog owners have recently been successful in landmark cases and have been awarded substantial monetary damages based on federal civil rights violations. Police officers may also be facing criminal sanctions. Law enforcement authorities recognize that they need to provide training and strategic plans for their officers regarding dog encounters. They need to become educated about the alternatives to the use of lethal force.This involves both education and accountability.

This panel discussed the legal precedents and the training and directives evolving within the law enforcement community.

Scott Sargent, Captain II, Use of Force Division, The Los Angeles Police Department
Karen Snell, Civil Rights attorney
Moderator: Diane Balkin, contract attorney, Criminal Justice Program, Animal Legal Defense Fund

Presented by the Center for Animal Law Studies and ALDF.

Merced police change policy on shooting injured animals

The Merced Police Department no longer will take “severely injured” animals to the department’s shooting range to be put to death by gunfire, said Lt. Bimley West during a news conference Tuesday.

The policy, which West estimated had been in place for more than 25 years, allowed officers to take injured animals to the range on Gove Road to be put down.

The Merced Police Department’s policy was scrutinized after a dog-shooting incident in June was reported by the Sun-Star. Merced resident Payton Sanchez’s pit bull was shot by an officer in the 2600 block of Mira Court. The police officer claimed it had charged at him.

Unable to afford medical care, the family brought the dog back to the police station. A second officer took the injured dog to the shooting range and fatally shot it according to police policy, reports confirmed.

West said Tuesday that the change in policy was prompted by community outcry after another article about the policy in the Sun-Star last week.

“Although there were a number of misconceptions and mistruths that circulated from this article, it did give us an opportunity to revisit our method used in putting down severely injured animals,” West said. “We are going to change our policy.”

The new policy will require police officers to call the nearest veterinarian to come to the scene of an injured animal and evaluate its condition. The veterinarian will determine if the animal should be put to sleep or given medical treatment.

If the veterinarian decides an animal should be put to sleep because of its injuries, he or she will euthanize the animal using an injection.

“The evaluation will be made by a vet,” West said. “Our Police Department officers will no longer dispatch an animal due to the severity of its injuries.”

The only time officers will shoot animals is if they are being attacked, West said.

The Police Department hasn’t signed a contract with a local veterinarian, but West said officers will contact the closest one and stay with the animal until the vet arrives. The 24-hour Animal Medical Center on Yosemite Avenue will be used for after-hours calls.

Merced Mayor Stan Thurston called the policy change a “very positive” one, but expressed concerns about getting local veterinarians to agree to the plan while keeping the city’s costs low.

“I hope we can get vets to do that and work out an agreement to minimize costs,” Thurston said. “We’ll try to keep the costs down as much as possible and not have to burden the police officers with the mental trauma of having to shoot an animal.”

Thurston said he’s working with City Manager John Bramble to start a campaign to get local veterinarians to be on-call on a rotating basis, with a different veterinarian’s office being used every 30 days.

Mayor Pro Tem Noah Lor said Tuesday that he felt the police chief made a good decision, and said it will be a more humane way to euthanize injured animals.

“I think this is a good thing for us to move ahead and make that change,” Lor said. “We’re going to need some future discussion and input from the community, but for now, this is a good step forward.”

Merced resident Jules Comeyne, a former officer for the ASPCA, urged elected officials to consider changing the policy during the City Council meeting Monday.

“I would like to voice displeasure of the police taking animals over to the range and shooting them,” Comeyne said. “This has received a lot of negative publicity from all over the country.”

Several others voiced support during the council meeting that led to changing the policy.

West did not say if the Police Department had been contacted by animal rights groups, but indicated it had received numerous calls from residents who “didn’t like the method” of shooting severely injured animals.

“Our citizens have stated the times have changed and it’s time that we make a change,” West said Tuesday. “They have spoken. We have heard them clearly, and we have made a change in our policy.”

After the news conference Tuesday, West said there was a sense of relief among the police officers who did not want to shoot injured animals at the range. Many of them are pet owners, he said.

“I believe there is a sense of relief because it’s not pleasurable for our officers to do that,” West said, adding that the policy change is effective immediately.


POWNAL -- A Bennington County Sheriff’s Department deputy has resigned following an investigation into allegations he shot and killed a neighbor’s dog.

Bennington County Sheriff Chad Schmidt said former Deputy Donald Loveland was placed on administrative leave in late August pending the outcome of a Vermont State Police investigation involving him. Schmidt said Loveland resigned Friday on his own volition.

Schmidt said it’s common practice to place a deputy on administrative leave when there are allegations of criminal misconduct. If no wrong-doing is found they are free to return to duty. He said this incident is alleged to have occurred while Loveland was off-duty. He said Loveland had been with the department since 2002 and mainly worked traffic details and prisoner transports.

Lt. Reginald Trayah, commander of the VSP barracks in Shaftsbury, said he could not confirm or deny the existence of any ongoing investigation.

Bennington County State’s Attorney Erica Marthage said she is reviewing the investigation and could not comment further.

A message from Melissa Kilbride was sent to the Banner via email and was also posted on its Facebook page. According to the message, on Aug. 26 Kilbride was at a family gathering on King’s Way in Pownal, when a pit bull, Maxx, slipped its collar and ran off.

Kilbride said that a few minutes later two gunshots were heard, and the dog did not return. According to Kilbride, she and other family members went looking for the dog and went to Loveland’s home but did not make contact with him.

According to Kilbride’s message, she spoke to Loveland the next day and asked if he had seen the dog. According to her, Loveland said the dog attacked his girlfriend’s dog and killed three of his chickens, so he shot at it twice but didn’t think he hit it. She said she reported the incident to the VSP and was told that without a body it would be difficult to press charges.

According to a second message from Kilbride, 10 days after the alleged incident, the dog’s body was found in the woods.

Kilbride said in an interview the dog had slipped its collar before but there had been no problems, as the animal was friendly. She said the family had been getting progressively heavier-duty collars in an effort to curb the dog getting loose.

She said the animal technically belongs to her stepdaughter, Amber Kilbride, 20, but it lived at the home and was the family pet. According to Kilbride, police have the dog’s remains and are waiting to examine them. She said the body was decomposed when it was found. According to her, Loveland lives about 60 feet from their home.

Bennington attorney William D. Wright said he represents Loveland and was contacted after the incident by Loveland. Wright said he spoke to the VSP and offered to meet with them regarding the incident but as of Wednesday has not heard back from police.

Wright would not comment on details regarding the incident, but said that he intends to direct police attention to Title 20 section 3545 of the Vermont statutes, which he said allows a person to kill a domestic pet or wolf-hybrid when said animal is found "wounding, killing or worrying," another domestic animal.

"The ball is their court," said Wright. "We have offered to sit down with (police) and talk about this situation but they have not contacted us."

MA - New Law Includes Policies on LEO and Dogs

"The new law also includes standards for police chiefs in exercising discretion in dealing with dogs deemed dangerous or nuisance dogs.

Within those standards are hearing procedures.

Mr. Moore pointed out that the bill also prohibits chiefs from ordering dogs to be removed from a community. "

Highlights of Massachusetts Bill S.2192:
- Standards for LEO exercising discretion when dealing with dogs
- Hearing Procedures of LEO exercised discretion used with dogs
- BSL ban
- Gas Chamber ban
- Pet protection from domestic violence
- Statewide funding for spay and neuter programs in the state animal shelters



Is a Police Officer's immunity in effect when a police dog attacks an officer?

Appellate Lawyer of the Week: K-9 Controversy

| Texas Lawyer | March 5, 2012

Edward Allen, a Houston associate with Wilhite & Lea
Edward Allen, a Houston associate with Wilhite & Lea

Police officers and the cities that employ them long have had governmental immunity from suits in Texas, because an officer's job often involves life-or-death emergencies. But is that immunity in effect when a police dog attacks an officer?

In City of Houston v. David Jenkins, Houston's 14th Court of Appeals says no to that question, thanks to the persuasive argument of Edward Allen, a Houston associate with Wilhite & Lea who represents Jenkins, the plaintiff.

The allegations in the case, according to the 14th Court's opinion, are as follows: On May 4, 2007, Deputy David Jenkins of the Montgomery County Sheriff's Department was dispatched to pursue suspects who allegedly had assaulted another sheriff's deputy. Houston police officer David Thomas — part of a K-9 unit that included a dog trained for law enforcement work — also was sent to search for the suspects.

It was dark when Jenkins and Thomas arrived at a wooded area. Thomas gave Rudy, a Houston Police Department Belgian Malinios, commands to track the suspects. The search later was called off because other officers apprehended the suspects.

After the search was over, Thomas and Rudy began walking back to his vehicle. Thomas stopped to greet another officer when Rudy, who was on a 15-foot leash, attacked Jenkins as he walked by. According to Jenkins, he received about 16 stitches in his leg and sustained lasting nerve damage.

Jenkins sued Thomas and the city of Houston alleging negligence; Thomas was subsequently dismissed from the suit. Jenkins argued in his petition that the Texas Legislature waived governmental immunity for claims involving the negligent use of tangible personal property under the Texas Tort Claims Act. He also argued that official immunity did not bar his claims, because Thomas was performing a ministerial rather than a discretionary act when Thomas walked Rudy back to his vehicle.

The city filed a plea to the jurisdiction, arguing election of remedies under Texas Civil Practice & Remedies Code §101.106: that the claims against the city should be barred because Jenkins sued the city and Thomas.

The city also filed a summary judgment motion, arguing that governmental immunity barred the claims against it.

Jenkins moved for partial summary judgment, arguing governmental immunity did not apply to the city.

The trial court denied the city's plea to the jurisdiction but granted its motion for summary judgment. The trial court did not rule on Jenkins' motion.

Both sides appealed the trial court's decisions on the city's motions.

The 14th Court affirmed the trial court's denial of the city's plea to the jurisdiction. But the appeals court reversed the trial court's decision to grant the city's motion for summary judgment and remanded the case. In the opinion, written by Justice Tracy Christopher, the court looked at whether Thomas was performing a ministerial or a discretionary act while handling Rudy. A discretionary act gives the city immunity, but a ministerial act does not, Christopher wrote.

The 14th Court compared the use of Rudy to the use of a police car. Sometimes, immunity does not attach simply because the misused car is a "police" car. For example, when a police officer gets in an accident en route to an emergency, that is a discretionary act. But when the officer's accident occurs en route to a non-emergency, that is a ministerial act and the "conduct remains subject to the same rules that govern the conduct of private citizens driving privately-owned cars."

"An officer can exercise discretion in deciding when and how to use a potentially dangerous tool, and still have a ministerial duty in using the tool in other circumstances . . .," wrote Christopher. "On this record, Thomas identified no governmental concerns that played a role in the decision not to securely restrain Rudy while transporting him away from the search site."

"We needed to focus on whether this was an emergency situation or a non-emergency situation. And I think that is what really resonated with the court of appeals," Allen says.

Judith Ramsey, a senior assistant city attorney who represents Houston, disagrees with the decision and plans to ask the 14th Court for an en banc rehearing.

"We believe it is discretionary, because the dog was still in use in a situation in a field where a suspect had been apprehended. We believe the situation had not been completed, I guess is one way to put it," she says. "And that a police dog cannot be legitimately compared to a police car — at least in the way the court of appeals did so."


They shoot dogs don’t they? The Graham Test

This week’s blog takes another ‘bite’ out of the entries in the wonderful summary provided by the ABA TIPS Fall 2011 Law Journal’s review of Animal Tort and Insurance Law by Adam P Karp, Yvonne C. Ocrant and Steven R. Bonanno.

Under Government Liability the Law Review discusses the liability of governments in police shootings of dogs.  It was agreed in the review, the shooting of a dog by the police is a fourth amendment seizure of that dog from its owner, even if the shooting is not fatal.  Claims against the government and the police officer are routinely dismissed where the police officer had nowhere to retreat and the dog was charging, acting aggressively, not responding to verbal requests to sit and stay and no owner was in the vicinity.

However, cases involving dog shootings by police were not automatically dismissed where the police officer was the only one left standing, where they were the only witness to the incident, when observers disagreed with the description of the incident given by the officer and where the dog can be shown to have a ‘clean record’ having attended and graduated from beginner and intermediate obedience classes.  These cases are routinely set down for trial because an issue of fact exists.

What is the outcome of setting these cases down for trial?  Does the dog owner get to speak about the dog that was killed or injured? Does the officer get to speak about how he felt or past experiences he may have had that colored his response?  Do recommendations come out of the trial which help focus discussion on what went wrong, what went right and open a dialogue between the interested and involved parties so future events like this do not happen?

Not really.  The court handles these cases, examines the ‘issue of fact’ brought before it by the parties at preliminary hearings, and decides who acted appropriately in this instance.  Only the court decides the issue of fact at hand as presented by each party.  Immediate dismissal of the claims was precluded because of the existence of an issue of fact.  Except for peripheral content given by the parties, their input is examined and believed or not believed by the court that then renders a decision taking the power of resolution out of the hands of the parties and placing it squarely in their own hands.

In the mind of the person that lost, had their dog injured or the police officer that acted on his own or the bystander’s best interest, so much more is taken into account of this incident than ‘an issue of fact’.  What did they each learn from the incident?  Has it been explored? Have changes been made in their behavior? And if so, are the changes implemented so future incidents of this kind benefit from what they experienced first hand?  Or is it simply a matter of getting to the truth, as a court sees it and meting out punishment for the police officer who acted as he saw fit or the dog owner who failed to act in a certain prescribed way.

Does discipline, issued by court decree, work to change the response of these parties in a positive way going forward?  Maybe not.

If upon intake this case was forwarded to mediation, as the line of first defense, discussions can be had which are not available in court due to time and linear nature of the court process.  ‘Just the Facts Mame”.  Yet how the police officer felt at the time, prior incidents he has had, his experience with dogs, specifically and in general and the training he received can and should be explored.

In the dog owner’s case, how did they feel? Was this a one time tragic occurrence, a constant treat that was ignored or a neighborhood practice?  Is the owner able to learn from the incident and pass on thoughts and ideas for themselves and for the police officer? And can they express their feelings and enlighten others about the incident as it unfolded?

Not so much!  The incident occurs, the facts examined and either dismissed as justified, the parties never being heard from again or set down for trial if that pesky ‘issue of fact’ raises its ugly head.  After a trial, the punishment is meted out to the villain.

In mediation, the parties can have a conversation, respond to the facts and emotions surrounding what happened, as they see it, in this case.  They can work on understanding what went wrong, get it off their chest, feel they moved the ball a little farther forward so next time such an incident arises the reaction may be tempered by experience and all parties escape unscathed.

These kinds of cases absolutely lend themselves to mediation.  A trial decides if the actions were right or wrong and then metes out justice (we hope).  Everyone will go on their merry way.  Yet has justice really been meted out and do they go on their way?

There will always be roaming dogs, police called to contain them, dogs who act aggressively when cornered, and owners through carelessness, by accident or through no fault of their own, have their dogs roam.  That the dog may act in a way that gets it killed is a fact of life.  How we as a society handle it may mean the difference between a life spared or not.

Mediation creates the space where, by discussing the circumstances, feelings, emotions and outcomes of a particular event, a different template might be created for first responders to help save the police and bystanders from injury, the pet owner from possible liability and definite despair and the animal from destruction.

Richmond pays $210K to owners of dog shot dead by cops

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2007-05-31 11:12:00 PDT RICHMOND -- The city of Richmond has agreed to pay $225,000 to settle two federal civil rights lawsuits filed in connection with the controversial shooting death of a pit bull.

Cynthia Peters and Mark Parr accused officers of acting in "reckless and callous disregard" of their constitutional rights when police shot their 1-1/2-year-old pit bull, Blu, on July 27, 2005.

The Richmond City Council agreed to pay $210,000 to the couple and an additional $15,000 to Genevia Walker, a bystander who also sued the city in federal court, saying her neck was burned when three bullet casings fired by an officer hit her neck and left her temporarily unable to hear.

"We're happy with the way the case was resolved," Karen Snell, an attorney for Peters and Parr, said today.

Blu was in the couple's fenced yard on Sixth Street when the officers opened the gate to pursue a suspect and shot the dog 11 times with pistols and a shotgun.

When Parr ran up and asked the officers, "Why'd you shoot my dog?" police "pointed their guns at him, kicked and punched him and threw him to the ground," according to the lawsuit filed by the couple in U.S. District Court in San Francisco.

Police arrested Parr on suspicion of obstructing police officers, but no charges were filed.

An internal investigation by the police department found no fault with the officers; the couple appealed. The Police Commission in February 2006 ruled in their favor and attributed Blu's death to insufficient departmental guidelines for handling such situations.

In court papers, the city said "the destruction" of Blu was necessary and therefore reasonable, that the force used against Parr was reasonable and that his arrest was lawful.

In an unusual move, Richmond Police Chief Chris Magnus apologized to the couple. Magnus told The Chronicle last year that his apology doesn't necessarily mean he doesn't support his officers, but that owning up to Blu's death was the right thing to do.

"Being sorry that something happened doesn't mean that your people acted in the wrong way," Magnus said.

Richmond police have since drafted a policy specifying when officers can use deadly force against dogs and provided training on how to deal with dogs in general.

The city paid more than $500,000 in 1998 in connection with a lawsuit over another "unnecessary shooting" of a dog named Champ that belonged to James Fuller. Officers entered his yard in 1991 to speak with Fuller and shot the dog during the exchange.

"They did nothing to change their policy until the new chief came along," said Snell, who nevertheless applauded the city for outlining a policy that bars officers from shooting a dog "if there are nonlethal alternatives."

Attorneys for the city of Richmond did not immediately respond to requests for comment today.

Richmond City Councilman Tom Butt said today, "It is regretful that the city was so slow to learn. The adage 'once burned, twice shy' suggests that when someone has had a bad experience, he or she is likely to shy away from being in the same position again, having better learned to deal with similar situations.

"Previous chiefs did not learn. Magnus made the correction to the policy. I think he did the right thing by apologizing."

Cops: Man unleashes pit bull at carjack victim, K-9

ELK GROVE, CA - A parolee used his pit bull to attack a driver in an attempted carjacking and then turned the dog on a K-9officer, say Elk Grove police.

Officers became involved when they responded to a disturbance at 6:17 Monday evening at an AM/PM service station at 10421 Grant Line Road, said spokesman Officer Chris Trim.

Responding officers learned a man, identified as Ronald Tomlinson, 46, had shut off the gas nozzle to a car pumping gas and opened the driver's door. The car owner confronted Tomlinson who ordered his dog to go after the man, Trim said. The pit bull bit and scratched the man on the leg, according to the police report.

Tomlinson then went to another car and got in with his dog, said witnesses. As the car owner approached him, the owner told police Tomlinson pointed to his dog and started to open the door to release him. The owner backed off.

The car Tomlinson was in wouldn't start and at that point, officers pulled up. Tomlinson fled with his dog on southbound Grant Line, police said.

A K-9 used to search for Tomlinson found him within some bushes by a fence line. Trim said officers ordered Tomlinson to come out but instead, Tomlinson let his dog go after the police K-9. As the two dogs fought, the pit bull broke off and went behind Tomlinson.

Trim said Tomlinson still did not surrender so the K-9 was let off leash to take him into custody. Trim said Tomlinson's pit bull again went after the K-9 but the K-9 officer was able to grab the dog by the scruff of his neck.

Officers were then able to arrest Tomlinson for carjacking and parole violation, Trim said. Tomlinson was also wanted on an active arrest warrant, according to police.

Tomlinson was treated for injuries from being in K-9 custody and then booked in Sacramento County Main Jail.

The K-9 was not hurt in the scuffle. Tomlinson's pit bull was turned over to Sacramento County Animal Services on a 10-day hold.


Years after mayor’s dogs were shot in raid, training on confronting animals gets underway

Berwyn Heights leader says he pushed for policy change in settlement to prevent repeat of tragedy

This story was corrected at 11 a.m. July 27. An explanation is at the end of the story.

It has been four years since Berwyn Heights Mayor Cheye Calvo’s two black Labrador retrievers were killed by Prince George’s County sheriff deputies during a raid on his home and, since that time, he has focused on making changes to prevent the needless killings of animals by law enforcement officers.

That time has arrived, according to county officials.

In-service animal-control training began in March for county police and began in May for sheriff’s deputies.

Calvo’s home was raided by a county SWAT team July 29, 2008, after a 32-pound package of marijuana was mailed to his home to be intercepted in a smuggling operation in which Calvo and his family were later cleared of any involvement. Calvo, who was never charged, said officers entered his home without knocking and shot his two dogs, Chase and Payton.

After the incident made national headlines, the mayor agreed last year to a settlement against the county police department and sheriff’s office, which both were involved in the raid. As a result of that settlement, the county law enforcement agencies have implemented training courses for officers on how to properly control loose animals, specifically dogs, without using lethal force when at the scene of an incident.

“I remember when I met the officers and sheriff’s deputies who shot my dogs,” Calvo said referring to the settlement meeting. “On some level, it’s a very emotional thing. You have an expectation that they’re not very nice people. But it wasn’t that they were bad people. Honestly, it was that they didn’t know any better. … They had nothing in place.”

Calvo said rather than asking for money in the settlement, he wanted to spark change and prevent a similar incident from occurring.

“So many of those situations are because an officer is fearful, and they have no training, but it’s completely unnecessary,” Calvo said. “Mailmen get excellent training on how to deal with dogs. Police don’t get a similar training. They have firearms at their side and jump to lethal force, and it’s completely unnecessary. They’re only as good as their training.”

Jamar Henry, the county police department’s legal adviser, said a specific training course was not outlined in Calvo’s settlement, but it did include establishing a new policy for confronting animals using “humane and non-lethal force where possible.” In that new policy, the police department decided to create a new course for in-service training.

Cpl. Mike Summers, who leads the animal control classes in the police department’s training and education division, said prior to the new class, training on how to deal with animals was not provided.

The one-hour course officers will take annually, along with their other annual classes, reviews everyday cases, teaches officers lethal and less lethal options for controlling loose animals, and shows officers how to recognize signs of animal aggression, Summers said.

As of mid-June, 624 of the roughly 1,500 county police officers have received the “Dealing with Aggressive Animals” course, and every officer eventually will have taken the course as officers cycle through the annual training classes, Summers said.

To supplement the classes, the department also has received 75 animal-restraint poles — 4-foot metal poles with loops designed to trap dogs at their necks and prevent them from attacking. The poles have been distributed to each of the police district stations for use by any officer who has completed the in-service animal training.

Summers said the poles are “another tool in the toolbox” to use for animal containment. Each of the 50 patrol squads in the county have one officer assigned to carry the pole, Summers said.

Although Summers said the training is designed to help limit departmental shootings involving animals, he said the outcome of an animal’s life is case-by-case depending on the situation. He said he has had to shoot several dogs in his 17-year tenure with the department, noting that once there were two dogs viciously attacking another small dog and, in another instance, he arrived on a crime scene and two large dogs lunged at him.

Sheriff’s deputies began receiving animal control-specific education as part of their annual in-service training May 30.

Mark Spencer, inspector general for the sheriff’s office, said a lot of policy revisions started in 2010 when Sheriff Melvin C. High, who was the police chief at the time of the Calvo raid, took office. He noted, however, that several pieces of training for deputies related to animal control stemmed from the settlement, such as learning how to determine the behavior of a dog and to quickly notify animal control.

He also said the sheriff’s office invited Randall Lockwood, vice president of forensic services for the national chapter of the American Society for the Prevention of Cruelty to Animals, to speak to deputies on dog behavior and how to use non-lethal force toward animals.

“We’ve put emphasis on trying to de-escalate situations where we encounter loose animals,” he said.

Similar to the county police department, Spencer said the sheriff’s office purchased capture poles to help trap animals.

Summers and Spencer did not have statistics on how many law enforcement loose animal-related shootings there are in Prince George’s. Both offices said they do not compile statistics on animal shootings.

Calvo said he hopes the education on animal control that has been added reduces the number of “needless animal deaths.”

“A concept in law enforcement that is a critical one is continuum force. Law enforcement should use the minimum level of force to achieve their directive,” he said. “That doesn’t mean every judgment is perfect, but the principal is in place.

The same continuum should apply to domestic animals.”

Correction: The initial story incorrectly identified which law-enforcement agency shot the dogs. The shootings have been attributed to the Prince George’s County sheriff’s department, which was involved in the SWAT raid.

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


     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.


     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.


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.


     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.


     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.


     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.