Author Archives: Patti Strand

Federal Ruling on Dogs Shot by Police: Less than Meets the Eye

A review by Sara Chisnell, NAIA Trust Legislative Director

Last week a ruling from the federal Sixth Circuit Court of Appeals in Michigan was issued that caused quite a media stir, particularly on social media, and as a result many dog owners are up in arms. The ruling dealt with a police shooting of two dogs, and has been portrayed through various news pieces as granting the police the right to shoot your dog if it moves or barks. Just read the headline of one of the main news story shared: “Court: Police can shoot dog if it moves or barks when cop enters home.” It’s even been shared on social media as a new law empowering police with the unfettered right to shoot your dog with no real provocation. As so often happens, the media has sensationalized this case into something it is not. Despite these headlines leading dog owners to believe their dogs are not safe in the presence of police, no sweeping declarations were made giving police freedom to shoot a moving or barking dog.

Let’s begin with the facts of the case. First, the police were at this residence to execute a search warrant subsequent to a trash pull that revealed baggies with marijuana and cocaine residue. Residents had known criminal history, gang affiliations, possession and use of firearms, and potential drug distribution out of the home. This was the atmosphere the police were entering on their raid, which quite reasonably put them on high alert for potential danger. So much so that the police met with the city’s Emergency Response Team (ERT) to prepare for the execution of the search warrant.

Officers detained one of the residents, Mark Brown, upon reaching the home, which is where they saw a “Beware of Dog” sign outside the residence. A sign like this would lead any reasonable person to believe that the dogs on property may have dangerous propensities and to indeed “beware” of any dogs approaching them. This important piece of information was conveniently left out of the news stories. Once at the front door, the officers saw dogs jumping at the front window, one a 97 pound brown pit bull type dog, and the other a smaller white one about 53 pounds. There is conflicting testimony between the officers and Mark Brown as to whether the dogs were barking at this point. Most dogs, even the friendliest, are going to bark when strangers are approaching the front door, but that particular fact has little relevance given the totality of the circumstances.

When the first officer entered the home, the large 97 pound dog lunged towards him, so he fired his first shot. The dog ran down the stairs into the basement, where he was then obstructing the path to the basement. The officer testified that he “did not feel the officers could safely clear the basement with those dogs down there” which speaks to the officers’ personal safety and ability to safely do their job. The dog was then fatally shot. The second dog was also in the basement barking at the officers, who then shot at her. She then ran to a corner of the basement, where another officer then shot her again as she moved out of the corner in his direction. She then ran to a back corner to hide; as she was bleeding profusely another officer shot her in order to put her out of her misery.

This case presents a Fourth Amendment seizure issue much like the Oregon case discussed in a previous article. That case dealt with seizure of an animal by the government and whether a subsequent blood draw was an unreasonable search and seizure. It was also a case misrepresented in the news as granting new rights to animals when in actuality the court affirmed that dogs are property under the law. In this case, the owners of the dogs sued the city and the police department in federal court. They contended that the killing of the dog was an unreasonable seizure under the Fourth Amendment. They lost as the officers were granted summary judgment by the lower court; this was their appeal.

In cases determining actions taken by government officials like this, they are immune from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The immunity essentially protects most but the truly incompetent or those who knowingly violate the law. In determining whether immunity applies to a police officer and their actions, the Court applies a two-prong test: “(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 the right was clearly established such ‘that a reasonable official would understand that what he is doing violates that right.’”

snarlingdog

Contrary to claims by numerous sensational headlines, the court ruling did not grant police officers carte blanche to shoot dogs for simply “moving or barking!”

Interestingly, this particular Circuit Court had not yet determined whether in general, the killing of a dog constitutes a “seizure” under the Fourth Amendment. However, the Court looked to the reasoning and rulings of every other circuit court that addressed the issue and came to the same conclusion. The Court held “a dog is property, and the unreasonable seizure of that property is a violation of the Fourth Amendment.” At real issue here was the reasonableness of the seizure. The Court quoted the DC Circuit court in looking to Fourth Amendment cases: “we analyze the question of whether a pet constitutes an imminent threat from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The Court was attempting the difficult task of putting themselves into the shoes of the officers at the time of the shooting to determine whether the actions those officers took were reasonable.

The Court had to balance the intrusion into the individual’s Fourth Amendment rights against the importance of the government interest; here the right to the personal property (dogs) versus the government’s interest in safely executing a search warrant. The Court acknowledged “there is no dispute that the shooting of Plaintiff’s dogs were severe intrusions given the emotional attachment between a dog and owner.” However, that had to be balanced against “insuring officer safety and preventing the destruction of evidence” that are certainly important government interests that “the courts must strive to protect.”

In this particular instance, the individual resident for whom the search warrant was issued was an actual and serious threat to the officers’ safety; his threat and the high-risk nature of this raid made the whole venture very dangerous. Case history demonstrated that the individual was very rarely alone, so the officers knew there was a very good chance that other members of the gang could be in the home at the time of the raid or nearby. Clearing the house of potentially dangerous, armed individuals was of the utmost importance and officers were justifiably on high alert.

While there was conflicting testimony between the officers and witness Mark Brown as to whether the dogs were barking at the time the officers walked up to the home, this discrepancy is only about the barking at that moment and not about whether the officers were threatened by the dogs themselves. The fact that a 97 pound dog was loose and lunged at the officer who was going into a house on high alert for armed individuals was deemed a reasonable threat by the court. The Court found that the dog “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 the evidence was not being destroyed.” The other dog was deemed a reasonably perceived threat as well for the same reason: because the officers were unable to safely clear the basement with the distraction of the loose, barking dog, the shooting was necessary.

The Court quoted from a previous ruling to best sum this up:
“we are not saying the officers’ responses in these cases were the best possible responses. We are only saying that, under the circumstances existing at the time the officers took the actions and in light of the facts known by the officers, their actions were objectively reasonable…Even dog owners can find their pets to be unpredictable at times. How much more so a person who is not intimately familiar with the behavior of the particular animal and who is forced to confront the dog for the first time in an unsupervised, unenclosed environment.”

This is a very important distinction from the impression the sensationalized news headlines are making. This case was so much more than a dog merely ‘moving’ towards an officer, or a police officer knocking on a door to a family residence and shooting a dog just for barking. The totality of the circumstances here demonstrates there is more than meets the eye. Officers have to make split second decisions to ensure safety and a 97 pound dog lunging toward a person who is anticipating armed gang members is a reasonable and understandable perceived threat. No one wants to see a dog injured or killed. But these officers put their lives on the line daily, and their lives are the priority. It’s easy for outsiders who have never experienced this situation to pass judgement, but the officers in this case were clearly threatened. Bottom line, the case was deciding this particular situation and this particular set of circumstances and did not make a new law or set new precedent for future police action.

New Rights for Animals? Or Not?

A review by Sara Chisnell, NAIA Trust Legislative Director

A recent ruling by the Supreme Court of Oregon in Oregon v Newcomb has created a lot of confusion in the animal world. Animal rights proponents have claimed this to be a landmark victory in the battle for human rights for animals and have mistakenly led people to believe that the ruling has bestowed some extra rights on animals or given them legal status beyond property. This is so far from the truth. In reality, this was a case about what constitutes an unreasonable search and seizure by the government when it comes to animals.

First, the facts of the original case. The Oregon Humane Society received complaints that the defendant’s dog Juno was abused and neglected. Of interesting note here: a Special Agent of the OHS investigated the complaint, who was not actually employed by law enforcement but a private non-profit, although he was a certified police officer with authority to issue citations. That he actually had government authority was never contested in this case. The dog, Juno, appeared to the agent to be “near emaciated;” Juno was eating at random things in the yard and was dry heaving with nothing coming up. When the Agent asked the defendant why June appeared “near-emaciated,” she stated she had run out of food and was planning to get more. Between the defendant’s admittance that she had no food and the dog’s appearance, the agent concluded he had probable cause for neglect. He asked permission to take the dog in for medical care, but the defendant refused. At that point he took custody of Juno without consent, for both evidence of neglect and to get the dog medical treatment.

Juno was transported to the OHS, where he was seen by a veterinarian. The initial exam showed nothing physically wrong with Juno other than he was very thin. On a body condition range from one (emaciated) to nine (obese), the vet gave Juno a score of 1.5. The vet could not ascertain whether the cause was malnourishment or something internal, so she drew blood to narrow down the cause. The blood tests were normal and did not indicate anything wrong medically with Juno. This meant that lack of proper food was the likely cause of Juno’s emaciation. The vet’s withdrawal of blood and the following testing of it is the central focus of the case. The defendant was charged with neglect due to the result of the blood draw; in other words, the blood draw and diagnosis were the main evidence used to level criminal charges against the defendant.

Prior to trial, the defendant filed to suppress the test results on the basis that the officer lacked probable cause to take Juno into custody; an unlawful seizure. She also argued that the vet engaged in an unreasonable search of her property—i.e., Juno—by drawing blood without a warrant, in violation of both the Oregon Constitution and the Fourth Amendment of the United States Constitution. She further argued because dogs are personal property, “no different than a folder or a stereo or a vehicle or a boot,” that the dog could only be externally examined without a warrant, like other property. She contended the state revealed information otherwise not open to view, violating her constitutionally protected privacy.

The prosecutor first came back with the argument that probable cause the dog was being neglected existed and so Juno was lawfully seized. The prosecutor argued that a dog is not a container that can hold other things, but rather just “more dog.”

Alternatively, the prosecutor added that it was reasonable to provide medical treatment to a dog that had been legally seized based on probable cause that the dog had been neglected.

The defendant’s motion to suppress the test results was denied by the trial court because they found that probable cause for neglect of Juno existed and the seizure into custody was legal. Also, the court agreed with the prosecutor that a dog is neither a container nor similar to one, and likened the blood draw on the dog to a child taken into protective custody and diagnostic analysis performed. This part probably got the animal rights proponents all excited, but it doesn’t really matter because it was simply an analogy given by the lower court and not precedence. Further, the trial court went on to analogize a blood test on a dog to chemical testing of a seized substance on probable cause that it is a drug, or testing a lawfully seized firearm for fingerprints. The trial court ruled that no warrant was needed to medically test the dog’s blood. The jury found the defendant guilty on second degree animal neglect.

The defendant appealed, and both parties raised the same arguments they made to the trial court. The Court of Appeals found that the seizure was legal but that the blood could not be drawn from the dog without a warrant. The Court concluded that although Juno was legally in the state’s custody, drawing the blood “was a constitutionally significant intrusion into the defendant’s privacy, one that ‘exposed otherwise concealed information about the dog that served as evidence of a crime.’” The Court of Appeals could find no recognized exception to the warrant requirement and found instead that it was an unlawful search and violation of privacy and reversed the conviction.

Finally we get to the Oregon Supreme Court’s decision and reasoning. At issue was whether or not the defendant had a constitutionally protected privacy interest in Juno’s blood ONCE LEGALLY SEIZED. The seizure itself was no longer at issue and had been deemed legal. Oregon Constitution Article I, section 9 basically mirrors the US Constitution: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure.” The Fourth Amendment to the US Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This does not mean that a warrant is necessary for all searches. Many factors are considered in determining whether a search is reasonable, such as the owner’s expectation of privacy and freedom from scrutiny based on societal and legal norms of behavior.

The question here (and has come up frequently in the past with other pieces of property) is to what extent the state can examine property without a warrant subsequent to legal seizure in the course of a criminal investigation. The Oregon Supreme Court initially went right to the issue of whether the fact that the property in question was a living dog would make a legal difference. The defendant argued that because dogs are personal property, the state is limited to only “thoroughly examine” the exterior without a warrant.

Examining the interior of property to reveal what’s inside is another matter. It has been ruled previously that if the interior contents are open to view or smell, such as a clear container holding powder or gas escaping a cylinder, no warrant is required. The defendant maintained that a dog is like a closed opaque container, one that does not reveal contents, and so a warrant is needed to search inside. However, the court has recognized previously that not all containers are equal and so not all have the same level of protection. The court found the same to be true for personal property. “Not all things that can be owned and possessed as personal property merit the same constitutional protection in the same circumstances. With regard to living animals, and domestic pets in particular, we have recognized that ‘some animals, such as pets, occupy a unique position in people’s hearts and in the law,’ one that is not well-reflected in the ‘cold characterization of a dog *** as mere property.’”

The court goes on to make one distinction of animals from other forms of property—while still importantly maintaining they ARE property—is that animals have welfare statutes applied to them: protections distinct to animals and inapplicable to other inanimate forms of property. The court also quoted a prior ruling that recognized animals as “sentient beings capable of feeling pain, stress, and fear,” which is another part of this ruling the animal rights proponents have latched onto. However, the court makes the very important distinction that the animal rights proponents fail to acknowledge, that “[t]o be sure, the protection given to animals under Oregon law does not place them on par with humans.” With that said, the law does prohibit people “from treating animals in ways that humans are free to treat other forms of property.”

Owners of animals still have possessory and privacy interests in their animal property and expectations of societal norms and conventions. The court makes the distinction between 2 examples. One, a dog gets loose from its owner while walking down the street and a stranger pets the dog—the act of petting does not violate any possessory or privacy interest and is within normal expectations. However if the stranger sticks the dog with a syringe and removes blood for a scientific study, that would certainly fall outside of societal norms and conventions.

In order to properly determine the existence of a privacy right, not only the nature of the property has to be considered but the extent and nature of the governmental intrusion as well. Here in this particular case, the dog was legally taken into custody, medical attention was necessary, and the blood draw was essential to proper treatment. The court found that, in this particular situation and set of circumstances, the dog was not an opaque container with things being stored inside. The dog’s blood was not something that was put inside or hidden by the owner, but as the prosecutor contended at trial, just “more dog.” The court was very cautious to note that this was only true for this case and might not be true under a set of different facts.

The court also noted that because of the animal welfare laws that do somewhat limit property rights in animals, that dog owner’s privacy rights do not override an obligation to minimum care. An exam and medical judgement is not government scrutiny. It’s very important to note that the court stressed that their decision was limited to the specific facts of this case, so it does not set precedence for future legal change. Also, the holding was certainly confined to LAWFUL seizures. The bottom line of this case was clear: the ruling has nothing to do with changing the legal status of animals but is rather an interpretation of the current legal property status of animals when it comes to the Fourth Amendment and criminal investigations.