The Lawletter Vol 47 No 1
In May 2021, the Eighth Circuit affirmed the denial of the City of Minneapolis’s and a police officer’s motion to dismiss dog owners’ unlawful search and seizure claim under 42 U.S.C. § 1983. LeMay v. Mays, 18 F.4th 283 (8th Cir. 2021). Plaintiffs Jennifer LeMay and Courtney Livingston owned two pit bulls named Ciroc and Rocko, which were service animals for members of the family. Id. at 285. Livingston had accidentally triggered the burglar alarm. Officers Michael Mays and Daniel Ledman responded to conduct a residence security check. Officer Ledman went to the front door and Officer Mays climbed over a six-foot fence surrounding the backyard. After encountering Ciroc in the yard, Officer Mays shot him. The other dog, Rocko, walked from the front door near his owner after Ciroc was shot in the yard. Then, Officer Mays shot Rocko several times. Plaintiffs alleged that neither dog approached Officer Mays in a threatening manner. Although the dogs were not killed, both were critically injured enough so they were no longer able to act as service dogs. “LeMay and Livingston sued Mays and the City of Minneapolis under 42 U.S.C. § 1983, alleging Mays unlawfully searched their home and seized their dogs in violation of the Fourth and Fourteenth Amendments of the United States Constitution and the City was liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).” Id. at 286. The Monell claim was dismissed. However, the district court denied the government’s assertion that Officer Mays was entitled to qualified immunity against the unlawful search and seizure claim.
To overcome qualified immunity, a plaintiff “must ‘plead facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.’” Id. at 287 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). On appeal, the court determines a party’s entitlement to immunity based on the “face of the complaint.” Id. at 286 (citing Dollar Loan Ctr. of S.D., LLC v. Afdahl, 933 F.3d 1019, 1024 (8th Cir. 2019)). In affirming the district court’s decision, the Eighth Circuit held that (1) it was clearly established that the Fourth Amendment precluded the officer from shooting the dogs in the absence of an objectively legitimate and imminent threat to himself or others, and (2) fact issues remained as to whether the officer faced imminent danger when he shot the dogs. Id. at 287–88 (citing Brown v. Muhlenberg Twp., 269 F.3d 205, 212 (3d Cir. 2001) (Fourth Amendment interests will only be abrogated by officer immunity if the officer can establish imminent danger when shooting an individual’s pet while on owner’s property)).
The Eighth Circuit’s reasoning and decision was in line with many other circuit court opinions. See Mayfield v. Bethards, 826 F.3d 1252 (10th Cir. 2016); Saathoff v. Davis, 826 F.3d 925 (7th Cir. 2016); Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009); Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008); San Jose Charter of Hells Angels v. City of San Jose, 402 F.3d 962 (9th Cir. 2005); Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003). However, these cases are very fact specific. Immunity may be determined based on many factors under the totality of the circumstances. Courts consider the breed of the dog for the dog’s aggressive nature, the dog’s location and behavior, and any dog owner’s negligence or lack of supervision or control. See Dempsey v. City of Rochester, No. 6:19-CV-6780 EAW, 2020 WL 7047493, at *4 (W.D.N.Y. Nov. 30, 2020); Strong v. Perrone, No. 17-CV-6183-FPG, 2020 WL 1445877, at *4 (W.D.N.Y. Mar. 25, 2020) (“If a dog is showing signs of aggression (baring teeth, ears back, tail straight, lunging, growling, snarling, barking, or charging), courts regularly find that it is reasonable for officers to defend themselves.”); Matteson v. Hall, No. 6:18-CV-06772-MAT, 2019 WL 2192502, at *6 (W.D.N.Y. May 21, 2019) (“[D]og owners forfeit many of these possessory interests when they allow their dogs to run at large, unleashed, uncontrolled and unsupervised.” (internal citations omitted)).
Critically, courts have regularly dismissed these cases based on immunity. See, e.g., Stephenson v. McClelland, 632 F. App'x 177 (5th Cir. 2015) (per curiam); Schutt v. Lewis, No. 6:12-CV-1697-Orl-37DAB, 2014 WL 3908187 (M.D. Fla. Aug. 11, 2014); McCarthy v. Kootenai County, No. 08-CV-294-N-EJL, 2009 WL 3823106 (D. Idaho Nov. 12, 2009); Dziekan v. Gaynor, 376 F. Supp. 2d 267 (D. Conn. 2005); Warboys v. Proulx, 303 F. Supp. 2d 111 113 (D. Conn. 2004). In short, “the law does not require the officer to wait until the approaching animal is within biting distance or is leaping at him before taking protective action.” Dempsey, 2020 WL 7047493, at *4 (quoting Azurdia v. City of New York, No. 18-CV-04189-ARR-PK, 2019 WL 1406647, at *7 (E.D.N.Y. Mar. 28, 2019) (in turn quoting Dziekan, 376 F. Supp. 2d at 272))).