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Owners Of Dogs Shot During Raid Can Pursue Civil Rights Claims

Posted on Wednesday, November 14, 2018

The owners of three dogs killed by Detroit police during a marijuana raid can sue the officers who shot the dogs for civil rights violations under 42 USC §1983, the 6th U.S. Circuit Court of Appeals has ruled.

In Smith v City of Detroit, Michigan, et al. (Docket No. 17-1907, unpublished), the City of Detroit claimed the dogs were unlicensed and illegal under the Michigan Dog Law of 1919 and Detroit City Code §6-2-1, which criminalizes the possession of unlicensed dogs. Therefore, the city argued, the failure to license the dogs forfeited any property interest the owners had in the animals.

The U.S. District Court in Detroit granted summary judgment for the defendants, finding the plaintiffs had indeed forfeited any property interest in the dogs by not licensing them.

The 6th Circuit reversed in a 2-1 decision. Police officers simply cannot “kill every unlicensed dog on the spot” – just like they cannot immediately destroy an unlicensed gun or unregistered vehicle, the Court said.

According to the 6th Circuit, the dog owners were entitled to due process and a Fourth Amendment right against unreasonable searches and seizures applied to two of the dogs that were killed.

Detroit Drug Raid

A Pit Bull named Debo, a Rottweiler named Smoke and a pregnant Pit Bull named Mama were on the premises during a drug raid conducted by the City of Detroit Police Department. None of the dogs were licensed.

All three dogs began barking during the search. According to the plaintiff, she told the officers that she was going to secure the dogs. The plaintiff testified that she put Debo and Mama in the basement and blocked the basement with a stove because there was no door, and Smoke was secured in a bathroom behind a closed door. After securing the dogs, the plaintiff said she walked into the living room, where the officers were standing with their guns drawn. The plaintiff said that Debo then slipped through the barricade and came to her side. The plaintiff testified that one officer shot his gun next to her feet, firing at least three or four rounds, hitting Debo in the body and head. The officers, however, testified they discharged their weapons because a “vicious” pit bull “immediately” charged and tried to attack them.

According to the officers, Smoke was shot because he was “growling and exhibiting a posture or other indicators that an imminent attack” was “probably going to occur.” The plaintiff testified that, after Smoke was shot, she heard one officer say, “Did you see that? I got that one good.” Meanwhile, officers testified that Mama was shot four or five times after the dog charged them and showed her teeth.

The plaintiffs filed a civil rights lawsuit under §1983, asserting a claim against the officers for illegal seizure in violation of the Fourth Amendment. The plaintiffs also brought a claim against the City of Detroit (the entity that employed the officers) and state-law claims for conversion and intentional infliction of emotional distress.

The U.S. District Court granted the defendants’ motion for summary judgment, finding the plaintiffs did not have a legitimate possessory interest in the dogs because the animals were unlicensed. On appeal, the 6th District disagreed and reversed in part. 

Canine Contraband?

In its analysis, the 6th Circuit noted that government officials are immune from civil liability under §1983 as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The 6th Circuit explained that, to determine whether a government official is entitled to qualified immunity, several factors must be examined: 1) whether the facts, when taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a constitutional right and 2) whether that constitutional right was clearly established such that a “reasonable official would understand that what he is doing violates that right.”

Here, the defendants acknowledged that material issues of fact remained about whether the seizure of Debo and Smoke was justified by exigent circumstances. They also conceded that a person has a Fourth Amendment right to not have his or her lawfully possessed dog unreasonably seized and that this right has been clearly established. “The only question before us is whether [the officers’] seizures were nevertheless reasonable because Plaintiffs’ dogs were ‘contraband’ and therefore unprotected by the Fourth Amendment,” the 6th Circuit said.

It is well-settled in Michigan that dogs have value and are the property of the owner, the 6th Circuit explained, noting the District Court recognized this principle but concluded the failure to license a dog forfeited any property interest in the animal. “This reading is unsupported by the plain language of either provision,” the 6th Circuit said.

“Whether something is contraband – strictly unlawful to possess or produce – is defined by positive law,” the 6th Circuit wrote. “The Michigan Dog Law … makes it ‘unlawful for any person to own any dog 6 months old or over, unless the dog is licensed.’ … Prior to 2014, the law authorized a county sheriff to ‘locate and kill, or caused to be killed, all such unlicensed dogs.’ But that authorization was eliminated by Public Act 32 of 2014, and the law now requires the county prosecutor, ‘[u]pon receipt of the name of an owner of an unlicensed dog from the county treasurer,’ to bring proceedings against the owner. … The law provides the process for notifying owners of unlicensed dogs of the proceeding ….”

Moreover, if these criteria are not met, “the law does not authorize killing the dog, but penalizes the owner,” the 6th Circuit stated, pointing out the law says: “Any person or police officer, violating or failing or refusing to comply with any of the provisions of this act shall be guilty of a misdemeanor and upon conviction shall pay a fine not less than $10.00 nor more than $100.00, or shall be imprisoned in the county jail for not exceeding 3 months, or both such fine and imprisonment.”

Similarly, under Detroit City Code §6-2-1, it is “unlawful for any person to own, harbor, keep, or shelter a dog more than four (4) months of age within the City without purchasing a license for the dog,” the 6th Circuit explained. This ordinance permits the Detroit Animal Control Division to enforce the provision “consistent with the Michigan Dog Law of 1919.” Therefore, “[i]t is clear from these provisions that owners of unlicensed dogs are entitled to process prior to seizure as provided by the Michigan Dog Law, and therefore retain a property interest in the dogs. The district court erred in finding otherwise.”

According to the 6th Circuit, “By guaranteeing process to dog owners before their unlicensed dogs are killed, Michigan law makes clear that the owners retain a possessory interest in their dogs. This is particularly so in the context of everyday property that is not inherently illegal, such as some drugs, but instead is subject to jurisdiction-specific licensing or registration requirements, such as cars or boats or guns. Just as the police cannot destroy every unlicensed car or gun on the spot, they cannot kill every unlicensed dog on the spot.”

Even assuming the dogs were indeed contraband, “the result here would be the same,” the 6th Circuit said. “The district court held that the Fourth Amendment simply does not apply to protect contraband. That is wrong – and it has been wrong for at least forty years. In cases involving contraband, the Supreme Court has continued to ask whether a seizure was reasonable under the Fourth Amendment: A warrantless seizure of contraband is not reasonable if it was not ‘immediately apparent’ to an officer that the item was contraband.”

The Fourth Amendment applies to the unlicensed dogs in this case and the officers’ actions were unreasonable, the 6th Circuit concluded. “[T]he officers here could not look at the dogs and know whether they were licensed. Further, there is evidence that the officers did not see each dog before shooting it. Although Michigan law required the dogs to wear license tags, … the Officers could not tell that the dogs were unlicensed simply because they were not wearing tags. Dogs can be licensed but not wearing a license tag. … Under these circumstances, it would not be immediately apparent to the police officers that the dogs needed to be licensed and were not. As the district court observed, ‘the officers did not shoot the dogs because they were unlicensed. Rather, the officers … were not even aware that the dogs were unlicensed.’ … Without that, the plain view exception does not apply to justify warrantless seizures. We emphasize, however, that even if the Officers had knowledge that the dogs were unlicensed, they still would not have been authorized to shoot them on the basis that they were contraband.”

Thus, based on the defendants’ concession that issues of material fact precluded summary judgment regarding two of the dogs, “we reverse the judgment of the district court only as to Officers Morrison and Gaines and remand the case for further proceedings consistent with this opinion.” 

Dissenting Opinion

Judge Alice M. Batchelder dissented, asserting that Michigan law is “not nearly so clear” on whether owners of unlicensed dogs retain a property interest in the animals.

According to the judge, existing law at the time that the officers killed the dogs “did not establish beyond debate” that the officers’ conduct infringed on the plaintiffs’ Fourth Amendment rights, “and so the majority errs by not affording the officers qualified immunity.”

In her dissent, the judge said she recognized her conclusion “may not sit well with dog owners and animal lovers in general.” She wrote, “I am a long-time dog owner myself, and this conclusion does not sit well with me either. But my review of Michigan state law and the Supreme Court’s qualified-immunity and Fourth Amendment cases makes me unable to join the majority’s opinion.”

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