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.
http://www.wctv.tv/news/headlines/Man-Settles-Suit-with-Tallahassee-Police-Over-Dog-Shooting-201666411.html?ref=411
Showing posts with label consequence. Show all posts
Showing posts with label consequence. Show all posts
Wednesday, November 27, 2013
Pet Owner Reacts to Sentence of the Man who Killed his Dog
04.2012 | SADIE | HARRISONBURG, VA
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.
http://www.whsv.com/home/headlines/Pet-Owner-Reacts-to-Sentence-of-the-Man-who-Killed-his-Dog-186224372.html#.UYuIgkrLKVU
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.
http://www.whsv.com/home/headlines/Pet-Owner-Reacts-to-Sentence-of-the-Man-who-Killed-his-Dog-186224372.html#.UYuIgkrLKVU
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
http://www.pet-abuse.com/cases/6922/IA/US/
- 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
http://www.pet-abuse.com/cases/6922/IA/US/
Tuesday, November 26, 2013
DEPUTY RESIGNS AFTER DOG SHOOTING REPORT
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."
http://www.benningtonbanner.com/news/ci_21530030/deputy-resigns-after-dog-shooting-report
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."
http://www.benningtonbanner.com/news/ci_21530030/deputy-resigns-after-dog-shooting-report
Richmond pays $210K to owners of dog shot dead by cops
Related Stories
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."
http://www.sfgate.com/bayarea/article/Richmond-pays-210K-to-owners-of-dog-shot-dead-by-2558050.php
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."
http://www.sfgate.com/bayarea/article/Richmond-pays-210K-to-owners-of-dog-shot-dead-by-2558050.php
Shooting a Suspect’s Pet - Can officers be liable under the Fourth Amendment?
Imagine the following scenario: You and several officers are serving a warrant to a resident on the second floor apartment of a two-flat. Upon arrival, you knock on the door. Immediately after the door opens, you’re unexpectedly confronted by a large dog that’s growling with its teeth exposed and charging toward you at full speed. You only have perhaps a second or two to react. In an instant, the dog is dead due to a fatal shot from your firearm.
Sound familiar? It should come as no surprise that law enforcement officers find themselves faced with animals, both friendly and violent, during the course of their day-to-day activities. And sometimes, officers resort to the use of deadly force against animals. Believe it or not, that use of deadly force can result in a federal civil rights lawsuit.
Can officers really be liable for shooting a suspect’s family pet? It depends.
A Constitutional Violation
Recently, a family was awarded $333,000 by a federal jury after a Chicago police officer shot and killed the family’s nine-year-old Labrador retriever.1 To add insult to injury, the jury awarded $2,000 in punitive damages against the officer who shot the dog, and $1,000 in punitive damages against the supervisor who made the decision to arrest one of the plaintiffs.2 Since when did it become a constitutional violation to shoot at an animal?
It’s one thing that police officers can be liable for the shooting of animals under various state laws. It’s entirely another thing when officers are liable under the U.S. Constitution. Has it always been this way?
It’s only been within the last 15 years or so that federal appellate courts have found that plaintiffs can state a constitutional claim for the shooting of dogs by police officers. The earliest case that I could locate came from the Eighth Circuit in 1994.3 Since then, several other federal circuit courts, but not all, have followed suit. As of this writing, the following circuits have found that plaintiffs are permitted to state a constitutional violation for the shooting of family pets by law enforcement: the First, Third, Fourth, Seventh, Eighth and Ninth.4–9
Typically, a plaintiff’s claim for the shooting of a family pet by an officer falls under the Fourth Amendment to the U.S. Constitution. No doubt, the Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”10 According to the recent case law, dogs and other family animals are considered “effects” for purposes of the Fourth Amendment.
A “seizure” of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.”11 Accordingly, the killing of a pet (i.e., the destruction of property) can constitute a Fourth Amendment seizure. However, more is required for a successful claim under the Fourth Amendment: Surely, to state a claim, and succeed on that claim, plaintiffs must also prove that the “seizure” by an officer was “unreasonable.”
Just like when courts analyze the shooting of a human being, courts must look to the “totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer’s duties.”12 Moreover, the “nature and quality of the intrusion on the individual’s Fourth Amendment interests” must be balanced “against the countervailing government interests at stake.”13 Additionally, courts must judge the reasonableness of an officer’s conduct “objectively” and “from the perspective of a reasonable police officer on the scene, rather than with the 20/20 vision of hindsight.”14 Finally, courts “must account for the difficult and often split-second decisions that police officers must make in carrying out their duties.”15 Thus, unnecessarily killing a pet can sometimes offend the Fourth Amendment.
Shoot, But Don’t Kill
There may also be a constitutional violation under the Fourth Amendment where an officer shoots a family pet, but doesn’t kill it. Several courts have found that the non-fatal shooting of a family dog could violate the Fourth Amendment.16
Yet, while “the bond between a dog owner and his pet can be strong and enduring,” the government’s interest may be heightened where the pet is at large, roaming unsupervised and dangerous, “for at that point the [pet] ceases to become simply a personal effect and takes on the nature of a public nuisance.”17 Courts have held that “the state’s interest in protecting life and property may be implicated when there is reason to believe the pet poses an imminent danger. In [that] case, the state’s interest may even justify the extreme intrusion occasioned by the destruction of the pet in the owner’s presence.”18 Example: One court found that the killing of dogs was reasonable where an officer was charged by a pack of five dogs that had already attacked people in the neighborhood and another officer.19
The Bottom Line
Depending on their jurisdictions, officers must be aware that the shooting of a suspect’s family pet can constitute a constitutional violation under the Fourth Amendment. To minimize that potential, officers should be careful to note all of the circumstances of the shooting of the animal, just as they would in any officer-involved shooting.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
How to Minimize Your Risk of Violating the Constitution During a Potential Pet Shooting
- At a minimum, officers should document the basis for having contact with the animal. Was the officer called as part of a “dog running at large” report? Did the encounter occur during law enforcement operations—i.e., the execution of a search warrant?
- Officers should also report any known history of the dog. Did the complainant report that the dog had bitten people in the area before? Is the officer aware of previous dog bites or aggressive behavior?
- Officers should describe the dog’s actions before they made the decision to use deadly force. Was the dog growling? Exposing its teeth? “Bearing” down on all four paws? Did the officer observe the dog’s hair on its back stand up? Bark? Break away from a restraint?
- Finally, officers should document the type of dog and its weight, as well as the surroundings. A thorough recitation of the events in a police report will no doubt assist in the defense of these expanding claims.
http://www.lawofficer.com/article/leadership/shooting-suspect-s-pet
Sound familiar? It should come as no surprise that law enforcement officers find themselves faced with animals, both friendly and violent, during the course of their day-to-day activities. And sometimes, officers resort to the use of deadly force against animals. Believe it or not, that use of deadly force can result in a federal civil rights lawsuit.
Can officers really be liable for shooting a suspect’s family pet? It depends.
A Constitutional Violation
Recently, a family was awarded $333,000 by a federal jury after a Chicago police officer shot and killed the family’s nine-year-old Labrador retriever.1 To add insult to injury, the jury awarded $2,000 in punitive damages against the officer who shot the dog, and $1,000 in punitive damages against the supervisor who made the decision to arrest one of the plaintiffs.2 Since when did it become a constitutional violation to shoot at an animal?
It’s one thing that police officers can be liable for the shooting of animals under various state laws. It’s entirely another thing when officers are liable under the U.S. Constitution. Has it always been this way?
It’s only been within the last 15 years or so that federal appellate courts have found that plaintiffs can state a constitutional claim for the shooting of dogs by police officers. The earliest case that I could locate came from the Eighth Circuit in 1994.3 Since then, several other federal circuit courts, but not all, have followed suit. As of this writing, the following circuits have found that plaintiffs are permitted to state a constitutional violation for the shooting of family pets by law enforcement: the First, Third, Fourth, Seventh, Eighth and Ninth.4–9
Typically, a plaintiff’s claim for the shooting of a family pet by an officer falls under the Fourth Amendment to the U.S. Constitution. No doubt, the Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”10 According to the recent case law, dogs and other family animals are considered “effects” for purposes of the Fourth Amendment.
A “seizure” of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.”11 Accordingly, the killing of a pet (i.e., the destruction of property) can constitute a Fourth Amendment seizure. However, more is required for a successful claim under the Fourth Amendment: Surely, to state a claim, and succeed on that claim, plaintiffs must also prove that the “seizure” by an officer was “unreasonable.”
Just like when courts analyze the shooting of a human being, courts must look to the “totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer’s duties.”12 Moreover, the “nature and quality of the intrusion on the individual’s Fourth Amendment interests” must be balanced “against the countervailing government interests at stake.”13 Additionally, courts must judge the reasonableness of an officer’s conduct “objectively” and “from the perspective of a reasonable police officer on the scene, rather than with the 20/20 vision of hindsight.”14 Finally, courts “must account for the difficult and often split-second decisions that police officers must make in carrying out their duties.”15 Thus, unnecessarily killing a pet can sometimes offend the Fourth Amendment.
Shoot, But Don’t Kill
There may also be a constitutional violation under the Fourth Amendment where an officer shoots a family pet, but doesn’t kill it. Several courts have found that the non-fatal shooting of a family dog could violate the Fourth Amendment.16
Yet, while “the bond between a dog owner and his pet can be strong and enduring,” the government’s interest may be heightened where the pet is at large, roaming unsupervised and dangerous, “for at that point the [pet] ceases to become simply a personal effect and takes on the nature of a public nuisance.”17 Courts have held that “the state’s interest in protecting life and property may be implicated when there is reason to believe the pet poses an imminent danger. In [that] case, the state’s interest may even justify the extreme intrusion occasioned by the destruction of the pet in the owner’s presence.”18 Example: One court found that the killing of dogs was reasonable where an officer was charged by a pack of five dogs that had already attacked people in the neighborhood and another officer.19
The Bottom Line
Depending on their jurisdictions, officers must be aware that the shooting of a suspect’s family pet can constitute a constitutional violation under the Fourth Amendment. To minimize that potential, officers should be careful to note all of the circumstances of the shooting of the animal, just as they would in any officer-involved shooting.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
How to Minimize Your Risk of Violating the Constitution During a Potential Pet Shooting
- At a minimum, officers should document the basis for having contact with the animal. Was the officer called as part of a “dog running at large” report? Did the encounter occur during law enforcement operations—i.e., the execution of a search warrant?
- Officers should also report any known history of the dog. Did the complainant report that the dog had bitten people in the area before? Is the officer aware of previous dog bites or aggressive behavior?
- Officers should describe the dog’s actions before they made the decision to use deadly force. Was the dog growling? Exposing its teeth? “Bearing” down on all four paws? Did the officer observe the dog’s hair on its back stand up? Bark? Break away from a restraint?
- Finally, officers should document the type of dog and its weight, as well as the surroundings. A thorough recitation of the events in a police report will no doubt assist in the defense of these expanding claims.
http://www.lawofficer.com/article/leadership/shooting-suspect-s-pet
A police chief in western Kern County has surrendered his guns after local family got a restraining order against him.
A Maricopa resident applied for the temporary restraining order after Chief Gene Fretheim shot and killed her 9-year-old pit bull, and now another woman is considering filing a similar restraining order. The police department says the chief was acting in self-defense.
The temporary restraining order forced Fretheim to hand over his weapons to the Taft Police Department Monday, but a department spokesman said he still is working, just without the weapons.
Lisa Chavez got the order that disarmed the chief. She could not be reached Monday, but her neighbor of 22 years, Lisa Chavez, Rockey Shafer, described what happened the day the dog was shot, and the reaction of Chavez's 11-year-old son, Logan.
"He came up to me that day--he calls me Grandma--and he said, 'Grandma, they killed my dog.'" Shafer said fighting back tears.
Shafer is upset and surprised Maricopa police Chief Fretheim shot and killed the family's pet.
"It was an old pit bull," Shafer said describing the dog. "My sister walks by there every day. She walks her mile in town. The dog just raises up and goes 'woof,' you know just real lazy-like. So the dog was not aggressive."
17 News tried contacting the Chief but was not at the Maricopa Police Department and he wasn't returning calls. Dispatch said they were unable to locate the Chief, however, Sgt. Derek Merritt, who spoke on behalf of the police department, said Fretheim is complying with the temporary restraining order.
"According to the restraining order he can't be in possession,'' of a gun, Merritt said. "So he, from my understanding, has turned his firearms over to the Taft Police Department.''
Yet the case keeps growing. A similar charge is being lodged against the Maricopa Police Department for shooting a different pit bull who the owners say was chained up in the backyard of the house Justin Lewisburch and his girlfriend Heather rent.
"No one left us a permit or anything saying that our dog was to be fined or cited or needed registration or tags or anything like that," Lewisburch said. "It was just one day our dog was dead."
Police say there is more to the story, and told 17 News the owner of the home called them, complaining she couldn't get into the house.
"The people that lived in the house had been evicted and moved out," Merritt explained. "The property owner was trying to make entry into her yard but she couldn't. The dog wouldn't let her in there."
Lewisburch and his girlfriend Heather said they have lived at the home the whole time, and marked up a "beware of dog" sign to the front gate to read, "Beware, they will murder your dog."
Lewisburch and his girlfriend are going to file a restraining order against Maricopa Police.
"I know they illegally trespassed by property illegally and killed my animal," she said.
Meantime, the Maricopa Police Department says the community is going to suffer without an armed police chief.
"The biggest thing is it puts a big strain on the city because in this department, this size the chief wears the uniform on patrol as well as i do and now we are going to be forced to pay officers overtime to cover his shift because you wouldn't want an officer coming to your house without a gun," Sgt Merritt told 17 News.
Chief Fertheim is due in court on October 15, for the initial shooting and current temporary restraining order.
http://www.kerngoldenempire.com/news/local/story/Maricopa-chief-gives-up-his-guns/d/story/0iMsHOhL2Ey5ymHC6Gp5xQ
The temporary restraining order forced Fretheim to hand over his weapons to the Taft Police Department Monday, but a department spokesman said he still is working, just without the weapons.
Lisa Chavez got the order that disarmed the chief. She could not be reached Monday, but her neighbor of 22 years, Lisa Chavez, Rockey Shafer, described what happened the day the dog was shot, and the reaction of Chavez's 11-year-old son, Logan.
"He came up to me that day--he calls me Grandma--and he said, 'Grandma, they killed my dog.'" Shafer said fighting back tears.
Shafer is upset and surprised Maricopa police Chief Fretheim shot and killed the family's pet.
"It was an old pit bull," Shafer said describing the dog. "My sister walks by there every day. She walks her mile in town. The dog just raises up and goes 'woof,' you know just real lazy-like. So the dog was not aggressive."
17 News tried contacting the Chief but was not at the Maricopa Police Department and he wasn't returning calls. Dispatch said they were unable to locate the Chief, however, Sgt. Derek Merritt, who spoke on behalf of the police department, said Fretheim is complying with the temporary restraining order.
"According to the restraining order he can't be in possession,'' of a gun, Merritt said. "So he, from my understanding, has turned his firearms over to the Taft Police Department.''
Yet the case keeps growing. A similar charge is being lodged against the Maricopa Police Department for shooting a different pit bull who the owners say was chained up in the backyard of the house Justin Lewisburch and his girlfriend Heather rent.
"No one left us a permit or anything saying that our dog was to be fined or cited or needed registration or tags or anything like that," Lewisburch said. "It was just one day our dog was dead."
Police say there is more to the story, and told 17 News the owner of the home called them, complaining she couldn't get into the house.
"The people that lived in the house had been evicted and moved out," Merritt explained. "The property owner was trying to make entry into her yard but she couldn't. The dog wouldn't let her in there."
Lewisburch and his girlfriend Heather said they have lived at the home the whole time, and marked up a "beware of dog" sign to the front gate to read, "Beware, they will murder your dog."
Lewisburch and his girlfriend are going to file a restraining order against Maricopa Police.
"I know they illegally trespassed by property illegally and killed my animal," she said.
Meantime, the Maricopa Police Department says the community is going to suffer without an armed police chief.
"The biggest thing is it puts a big strain on the city because in this department, this size the chief wears the uniform on patrol as well as i do and now we are going to be forced to pay officers overtime to cover his shift because you wouldn't want an officer coming to your house without a gun," Sgt Merritt told 17 News.
Chief Fertheim is due in court on October 15, for the initial shooting and current temporary restraining order.
http://www.kerngoldenempire.com/news/local/story/Maricopa-chief-gives-up-his-guns/d/story/0iMsHOhL2Ey5ymHC6Gp5xQ
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