CA6: Shooting dogs during drug raid was a seizure, but here it was reasonable

Officers executing a high risk warrant on plaintiff’s house shot and killed two pit bulls, one of which was standing in a corner of the basement not yet attacking. The warrant was considered high risk because the target of the search had flattened his time in prison and got out only a month ago. They surmised that meant prison discipline problems, and then came the drug search. Out-of-circuit case law held that it was clearly established by 2003 or 1998 that shooting a dog was a Fourth Amendment seizure, and it doesn’t take an in-circuit case to make it clearly established. The shooting, however, was reasonable under the circumstances. The first dog, a 100 pound pit bull, lunged at the officers as they came through the door when they shot it. It ran away. In attempting to clear the basement, the second pit bull, half the size of the other one, was seen barking as the officers came in, and it “moved in their direction so they shot it, too.” The basement had many large objects behind which people could hide, and they feared an attack from the dog in attempting to check. It walked bleeding from multiple bullet wounds behind the furnace. The officer then killed the dog to “put it out of its misery.” They couldn’t clear the house or basement because of the risk posed by the dogs. On this record, the shooting of the dogs was reasonable. Brown v. Battle Creek Police Dep’t, 2016 U.S. App. LEXIS 22447 (6th Cir. Dec. 19, 2016):

At the hearing, the district court held that, even if it did take the facts in the light most favorable to Plaintiffs, the unrebutted fact that Officer Klein said the large brown pit bull lunged at him before he shot her would still establish that his actions were reasonable. (R. 72 at 24, 45.) A jury could reasonably conclude that a 97-pound pit bull, barking and lunging at the officers as they breached the entryway, posed a threat to the officers’ safety and it was necessary to shoot the dog in order for them to safely sweep the residence and insure that there were no other gang members in the residence and that evidence was not being destroyed.

After Officer Klein shot the first dog, the dog went through the kitchen and into the basement. As the officers were moving down the stairs to clear the basement, they noticed that the wounded dog was at the bottom of the stairs. When the officers were halfway down the stairs, the first dog turned towards them and started barking again from the bottom of the stairs. Officer Klein reasonably fired two fatal rounds at the pit bull. The officers testified that the basement was filled with various objects and it was difficult to determine if there was anybody in the basement hiding behind one of the large objects. The officers had to sweep the basement, and the wounded animal was preventing them from entering the basement and safely sweeping it. Therefore, the seizure of the first dog was reasonable.

With regard to the second pit bull, the question before the district court was whether Plaintiffs presented a genuine issue of material fact as to whether it posed an imminent threat to the officers’ safety. The dog was not present in the entryway and was not standing at the bottom of the basement stairs as the officers descended. The second pit bull was in the basement when they descended the stairs and was barking as the officers were attempting to enter and clear the basement. Officer Klein testified that the dog, a 53-pound unleashed pit bull, was standing in the middle of the basement, barking, when he fired the first two rounds. The officers testified that they were unable to safely clear the basement with both dogs there. Therefore, we find that it was reasonable for Officer Klein to shoot the second dog.

After being shot by Officer Klein, the second dog ran to the back corner of the basement and was in the corner when Officer Young shot her. Officer Young testified that he was unable to clear that corner of the basement with a 53-pound unleashed pit bull moving in his direction. We find that Officer Young’s shooting of the second dog was reasonable. Officer Case then fired the fatal shot at the second dog when he found it bleeding profusely behind the furnace. As with Officers Klein and Young, we find Officer Case’s actions reasonable.

These specific facts distinguish this case from the Ninth Circuit’s decision in Hells Angels and from parts of the District of Columbia Circuit’s decision in Robinson. In Hells Angels, the Ninth Circuit found that the killing of the guard dogs was unreasonable, in part, because the officers were put on notice a week in advance of the raid that there were dogs at the place to be searched. Unlike Hells Angels, the officers here were informed on the way to the raid that there was at least one dog in the residence. The officers had no meaningful time to formulate a plan on how to deal with the dog. Although here the officers did not have notice, even had they been given more advance notice, it is not clear that they would have been able to make arrangements for the protection of the dogs. Any such arrangements may have raised suspicion or alerted the criminal suspects that something was amiss. It may have given the suspects an opportunity to depart the premises, destroy evidence, or formulate plans for an attack against the officers. Because of such possibilities, the officers’ actions here—in failing to make advance arrangements for the protection of the dogs—were reasonable.

The Robinson case is especially illustrative because the District of Columbia Circuit found one officer’s actions in shooting a dog reasonable and another officer’s actions in shooting that dog unreasonable. …