Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review
On December 22, 2016, the Sixth Circuit Court of Appeals held that a police officer’s killing of two dogs was reasonable, denying the Plaintiff’s Fourth Amendment unreasonable seizure claim. The public outrage was swift and severe; many reported on the topic stating something akin to “police can kill your dog for merely barking.” Although the headlines do not quite capture the facts in Brown v. Battle Creek Police Department, they do highlight the problem facing police departments and courts in a nation where thirty-six percent of households have pet dogs. In one instance where the public perceived the killing of a dog as unreasonable, the “self-described activist” group Anonymous retaliated against the police department responsible for killing the dog.
Primarily fueling the public outrage is the assertion by police departments and later the determination by courts that the killings are reasonable. Indeed, the legal analysis of a police officer killing a dog centers on the reasonableness of the officer’s actions under the circumstances. This analysis flows from a Fourth Amendment claim of unreasonable seizure, as well as the officer’s primary defense of qualified immunity. Although it is often reasonable for an officer to kill a dog under the circumstances, in the case of Brown v. Battle Creek Police Department, the Court unfairly ignores critical facts showing that the killing of at least one of the dogs unreasonable.
On April 17, 2013, the Battle Creek Police Department (BCPD) received a warrant to the search the home of Danielle Nesbitt. The search warrant was granted after BCPD’s officers conducted a trash pull and found various bags containing the remnants of marijuana and cocaine. Furthermore, BCPD employed a confidential informant that told BCPD that Vincent Jones, the father of Nesbitt’s child, also lived at Nesbitt’s residence. Jones was the target of BCPD’s investigation for drug trafficking and gang affiliation. Prior to conducting the search, the involved officers met to discuss the strategy. They considered Jones’ lengthy criminal record, gang affiliation, and possible possession of weapons. The officers also discussed the possibility of other residents or pets being present at the home during the raid. Cheryl Brown, Nesbitt’s mother, lived in the basement of Nesbitt’s home with her husband, Mark Brown. Moreover, the Brown’s had two pets, both pitbull dogs that lived at Nesbitt’s residence with them.
After they formulated their plan for conducting the search, the BCPD officers drove to the Nesbitt residence. On the way there, the officers were informed that Jones had been apprehended leaving the Nesbitt residence. Mark Brown was at the residence during Jones’ arrest; Brown indicated that he had come home during his lunch hour to “let the dogs out.” When the BCPD search team arrived, Brown was already handcuffed and had been informed that the residence was going to be searched. Brown attempted to explain that he had a key to the residence, but the BCPD search team claimed they did not hear Brown and they entered the residence by breaking the door down with a ram. The BCPD search team testified that, on the way to break down the door, they saw a “Beware of Dog” sign as well as the two pitbull dogs barking and pawing at a window that overlooked the front porch. Contradicting the officer’s testimony, Brown testified that the dogs were not barking.
Upon entering the residence, Officer Klein, a member of the BCPD search team, testified that one dog was barking and the other ran to the basement. After the first dog moved a few inches closer to Klein, Klein shot the dog because he considered those movements to be a “lunge.” After being shot, the first dog ran to the basement and Klein followed to “clear the basement” of other residential occupants. With the first dog blocking the bottom of the stairwell, Klein shot and killed the first dog because he felt that the team could not “safely clear the basement with those dogs down there.” Upon reaching that conclusion and seeing the second dog barking from across the basement, Klein and another officer shot the second dog four times before it died.
Pets as Property: Fourth Amendment Analysis, Qualified Immunity Defense, and Unfair Ruling
The treatment of pets under the law is inconsistent; some courts treat pets as property, akin to a couch, while a few courts treat pets closer to the likes of people. The overwhelming majority of courts take the former stance, treating animals as property that lack any exceptional quality over a couch. However, in the latter case, cases involving testamentary trusts set up for the care of the pets or a dispute over custody of a pet following a divorce demonstrate that pets are treated as something more, beyond the title of property.
However, when a police officer kills a pet dog, a Fourth Amendment unreasonable seizure claim may be triggered that will inevitably be rebutted with the assertion of qualified immunity. Qualified immunity is most often asserted when a police officer uses excessive force, sometimes fatally, against citizens. In analyzing a qualified immunity defense, courts will look to whether the officer’s actions were objectively reasonable under the circumstances and if the right (violated by the officer) was clearly established at the time of the violation. In Brown, like many other courts before, the court held that a pet is property and the unreasonable seizure (killing) of a pet violates the Fourth Amendment. Furthermore, the court found that the right to be free from the unreasonable seizure (killing) of a pet is a clearly established right.
Therefore, Brown turned on whether the officer was entitled to the qualified immunity defense. To clarify the analysis as it applied to pet dogs, the court properly recited the current standard stating that deadly force is reasonable “when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer’s safety.” In Brown, the analysis centered on whether an objective officer would have believed the dogs to be an imminent threat.
In an effort to establish the dogs as an imminent threat, the court covered, at length, the dangerous nature of Jones. The Court relied heavily on presumptions made about Jones’ behavior as an individual who rarely travelled alone. Consequently, despite having Jones in custody, the Court found the officer’s killing of the dogs reasonable because other gang members might potentially be in the residence destroying evidence and the dogs were impeding a swift sweep of the residence.
Indeed, the court properly identified preserving evidence and apprehending criminals as governmental interests. However, the court failed to address the damning facts against the officer’s behavior. In particular, that Mark Brown had a set of keys to open the front door, negating the need to break it down with a ram. This loud and aggressive entrance undoubtedly made the dogs more nervous and defensive.
A dog is not unequivocally aggressive because it barks at unknown intruders who are loudly and aggressively breaking in to the house. Similarly, moving towards an intruder is not necessarily a sign of imminent danger. Nearly all officers who witnessed it stated that the within a few seconds of entering the home, the first dog was shot. Moving towards an individual is much less indicative of aggressive behavior than raised hackles or barred teeth, yet neither of those behaviors were reported by the officers. Even worse, as soon as the officers entered the house, the second dog ran downstairs to get away from the officers. Not until the second dog had witnessed the killing of the first dog and was cornered in the basement did it start barking. As soon as the second dog started barking, the officers shot it.
As the court noted, governments have a sincere interest in protecting their law enforcement officers. The defense of qualified immunity plays a critical role in protecting governments and law enforcement officers from the decisions made on the job. Overcoming a qualified immunity defense is not simple. However, the number of police shootings of both citizens and pet dogs is on the rise. Police departments and courts are facing an increase in these cases, costing millions to both the municipality and the individual officer. Recently, the Department of Justice Community Oriented Police Services recognized the growing problem, calling it an “epidemic.” In response to this “epidemic,” the organization released a training pamphlet to educate police departments on effectively reducing danger to both the officer and dog.
Without a doubt, police officers must be able to complete their jobs efficiently and dangerous dogs make that job more difficult. In Brown, with the primary target in custody, the owner of the dogs present with a key, and the dog retreating, it was unreasonable for the police officer to kill the second dog. The search warrant seemed to be poorly planned and executed, and expediency likely clouded the officer’s judgment. By failing to address the facts from the Plaintiff’s perspective, while seeming unsympathetic to the position of a pet owner, the Court in Brown added to the public outrage surrounding the increasing police killings of pets. Furthermore, by failing to hold the police officers accountable for the second dog, the Court invited more criticism to the defense of qualified immunity, and missed a chance to sculpt our Fourth Amendment jurisprudence as it applies to unreasonably seized pets.
 Brown v. Battle Creek Police Department, 844 F.3d 556 (6th Cir. 2016).
 Hilary Hanson, Court Rules It Was ‘Reasonable’ For Cop To Shoot Dog For Barking The Huffington Post (2017), http://www.huffingtonpost.com/entry/court-rules-it-was-reasonable-for-cop-to-shoot-dog-for-barking_us_585c4bc9e4b0eb586485d619 (last visited Feb 11, 2017); Jacob Gershman, Appeals Court: Police Can Shoot Barking Pit Bull WSJ (2017), http://blogs.wsj.com/law/2016/12/23/appeals-court-police-can-shoot-barking-pit-bull/ (last visited Feb 11, 2017).
 U.S. Pet Ownership Statistics, Avma.org (2017), https://www.avma.org/KB/Resources/Statistics/Pages/Market-research-statistics-US-pet-ownership.aspx (last visited Feb 11, 2017).
 “Anonymous is a loosely affiliated group of hackers” that focuses on “politically-motivated” activism. Ben Gilbert, What is Anonymous and what does it do? Business Insider (2017), http://www.businessinsider.com/what-is-anonymous-2015-11/#which-isnt-to-say-things-are-all-political-the-attack-on-sony-that-brought-down-the-playstation-network–sonys-online-playstation-service–was-perpetrated-by-members-of-anonymous-13 (last visited Feb 11, 2017).
 Group ‘Anonymous’ Targets Hawthorne Police Department For Fatally Shooting Dog, Losangeles.cbslocal.com (2017), http://losangeles.cbslocal.com/2013/07/05/group-anonymous-targets-hawthorne-police-department-for-fatally-shooting-dog/ (last visited Feb 11, 2017).
 GRAPHIC: Outrage erupts over cops killing dogs, WND (2017), http://www.wnd.com/2013/08/outrage-erupts-over-cops-killing-dogs/ (last visited Feb 11, 2017).
 Dogs Shot by Cops: Companion Animals and Law Enforcement – Animal Legal Defense Fund, Animal Legal Defense Fund (2017), http://aldf.org/resources/when-your-companion-animal-has-been-harmed/dogs-shot-by-cops-companion-animals-and-law-enforcement/ (last visited Feb 11, 2017).
 Brown, 844 F.3d at 556.
 Id. at561.
 A trash pull involves an officer investigating the contents of an individual’s discarded refuse.
 Brown, 844 F.3d at 561.
 Brown, 844 F.3d at 561.
 Id. at 562.
 Brown, 844 F.3d at 562.
 Id. at 563.
 Animals enjoy anti-cruelty and civil trust protections, as well as being at the center of custody disputes. Vincent P. McCarthy, The Changing Concept of Animals as Property. International Journal for the Study of Animal Problems, 3(4), 295-300.
 Shidon Aflatooni, The Statutory Pet Trust: Recommendations for a New Uniform Law Based on the Past Twenty-One Years, 18 Animal L. 1 (2011).
 Hament v. Baker, 97 A.3d 461, 463 (Vt. 2014). The Supreme Court of Vermont has consistently ruled that pet animals are property. But pets are different from other property.
 Richard Schott, Qualified Immunity: How It Protects Law Enforcement Officers FBI (2017), https://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers (last visited Feb 11, 2017).
 Brown, 844 F.3d at 566.
 Id. at 567.
 Id. at 568.
 Id. at 569. The Court described the unusual completion of Jones’ sentence to the maximum time as indicative of his dangerous nature. Furthermore, the Court discussed the nature of Jones’ gang activity and that he was “very rarely alone.” This lack of reclusive behavior is how the Court justified the officer’s actions as necessary because the residence had not been fully swept yet.
 Brown, 844 F.3d at 562.
 Angela Chen, What Signals a Dog Is About to Attack? WSJ (2017), http://www.wsj.com/articles/SB10001424127887324637504578567414083664112 (last visited Feb 11, 2017).
 Brown, 844 F.3d at 563.
 Id. supra note 46.
 Brown, 844 F.3d at 563.
 AM Joy, Police shootings of Americans on the rise MSNBC (2017), from http://www.msnbc.com/am-joy/watch/police-shootings-of-americans-on-the-rise-721875011669 (last visited Feb 11, 2017).
 Id. Starting the 1990’s, lawsuits against police departments and their municipalities for killing pet dogs have been on the rise.
 David Griffith, Can Police Stop Killing Dogs? Policemag.com (2017), http://www.policemag.com/channel/patrol/articles/2014/10/can-police-stop-killing-dogs.aspx (last visited Feb 11, 2017).