CA4: Unnecessarily shooting ptf’s dog was a 4A seizure

Officer came to scene at plaintiff’s house and parked his car within the running area of a dog on a lease between two trees. The plaintiff came out to get the dog. It barked at the officer. When the dog got to the end of his lease and couldn’t go any farther, the officer walked up and, essentially, executed the dog by shooting him in the head. There is no case in the circuit on point, but the law everywhere else agrees that a dog is an “effect” under the Fourth Amendment, and the use of deadly force to unnecessarily kill a dog is a Fourth Amendment violation. Taking the complaint at face value, which is the standard of review at this point, the officer is not entitled to qualified immunity. Ray v. Roane, 2020 U.S. App. LEXIS 1885 (4th Cir. Jan. 22, 2020):

We acknowledge that there is no “directly on-point, binding authority” in this circuit that establishes the principle we adopt today. Booker, 855 F.3d at 543. Until now, we have never had the occasion to hold that it is unreasonable for a police officer to shoot a privately owned animal when it does not pose an immediate threat to the officer or others. Still, even without “directly on-point, binding authority,” qualified immunity is inappropriate if “the right was clearly established based on general constitutional principles or a consensus of persuasive authority.” Booker, 855 F.3d at 543; Owens, 372 F.3d at 279-280. This is such a case.

First, we observe that the unlawfulness of Roane’s alleged actions was established by the general principles we espoused in Altman. In Altman, we held that privately owned dogs are protected under the Fourth Amendment, and further established that the reasonableness of the seizure of a dog depends on whether the governmental interest in safety outweighs the private interest in a particular case. 330 F.3d at 203-05. Based on these broader principles alone, it would have been “manifestly apparent” to a reasonable officer in Roane’s position that shooting a privately owned dog, in the absence of any safety rationale at all, is unreasonable. Owens, 372 F.3d at 279.

The consensus of our sister circuits leaves no doubt that this principle was clearly established by September 2017. See id. at 279-280. As the D.C. Circuit observed in 2016, prior to Roane’s alleged conduct in this case, “[e]very circuit that has considered the issue … ha[s] invariably concluded that ‘the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger and the use of force is unavoidable.'” Robinson v. Pezzat, 818 F.3d 1, 7, 422 U.S. App. D.C. 35 (D.C. Cir. 2016) (citation omitted); see also Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 568 (6th Cir. 2016) (“[A] police officer’s use of deadly force against a dog . . . is reasonable under the Fourth Amendment when … the dog poses an imminent threat to the officer’s safety.”); Carroll v. Cty. of Monroe, 712 F.3d 649, 652 (2d Cir. 2013) (noting that the reasonableness of officers’ conduct is contingent on there being “a genuine threat to officer safety”); Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (“[C]ommon sense … counsel[s] that the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger[.]”); San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005) (holding that “any reasonable officer [would know] that the Fourth Amendment forbids the killing of a person’s dog, or the destruction of a person’s property, when that destruction is unnecessary”); Brown v. Muhlenberg Twp., 269 F.3d 205, 210-11 (3d Cir. 2001) (“[T]he state may [not], consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger[.]”).

Based on this preexisting consensus of persuasive case law, together with the general principles we announced in Altman, we hold that a reasonable officer in Roane’s position would have known that his alleged conduct was unlawful at the time of the shooting in this case. Anderson, 483 U.S. at 640; Booker, 855 F.3d at 543. Thus, we hold that the district court erred in concluding Roane is entitled to qualified immunity at this stage of the litigation.

Notably, Roane does not contest the legal principle we adopt today, namely, that it is unreasonable for an officer to shoot a privately owned dog when the dog poses no objective threat to the officer or others. Instead, Roane’s arguments exclusively focus on the underlying facts, and ultimately amount to the factual assertion that Roane reasonably perceived Jax as a threat at the time of the shooting. But this is an appeal from a motion to dismiss, which tests the sufficiency of the complaint, not its veracity. For the reasons discussed above, we cannot accept Roane’s version of the facts at this stage of the proceedings, in which we must grant all reasonable inferences in favor of Ray. DePaola, 884 F.3d at 484.