By Ken Wallentine
Brown v. Battle Creek Police Department, 844 F.3d 556 (6th Cir. 2016)
A confidential informant reported that Jones was selling drugs from a house owned by Nesbitt. Cheryl Brown and Mark Brown lived in the basement. Officers also found baggies with residue of marijuana and cocaine from a trash pull. The officers obtained a search warrant for the residence. Neither of the Browns were targets of the investigation.
Jones was well known to the police, with a history of violent gang involvement, significant drug history, prior foot and car chases, shootings and gun possession. Jones had “maxed out” his last prison sentence and had been released just a few weeks prior to the search warrant. The officers decided to ask a tactical team to enter and secure the house prior to the search.
As officers approached the house, they encountered Mark Brown, who had come home from work at lunch to let his two dogs out. He told an officer that no one else was home, but that his two dogs were in the house. He also said that he had a key to the house. That information was not relayed to the tactical team.
As the officers approached, they could see the dogs jumping and pawing at the front window. When the first officer breached the door to the house, he perceived that one of the dogs lunged at him. He shot the dog in the head. The dog ran down the stairs. Seeing that the dog was still moving and barking, the officer shot the dog twice more, killing it. The second dog had run to a back corner of the basement. Another officer saw the second dog “moving” out of the corner and he shot the second dog. A third officer shot the second dog again to “put her out of her misery.”
The Browns sued, claiming that the officers violated the Fourth Amendment by unreasonably seizing (by killing) their dogs. They also asserted that the city had failed to train its officers to deal with dogs in homes and that the city had inadequate policies that led to the alleged constitutional violation. The trial court granted summary judgment to the officers.
The court of appeals began its discussion by agreeing with every other circuit on the point that household pet dogs are personal property and the unreasonable seizure of them is unconstitutional (no disrespect to cat lovers, but I’ve never found a similar judicial decision applying to felines). Notwithstanding, the court opined that the trial court had properly credited the testimony of the officers who felt threatened by the dogs as they tried to execute the search warrant.
The appellate court held that the Browns failed to show a policy or practice of unconstitutional action relating to shooting dogs during enforcement actions. The court noted that failing to provide policy and training to deal with household dogs in such circumstances “may well become a viable claim as we move forward, but … on the present record the one thing that’s clear is that there isn’t much of a policy [or] practice … throughout the country, on how to deal with this beyond the general statements of how officers are supposed to respond to resistance.”
Officers in Colorado, Illinois, Ohio, Tennessee and Texas are subject to state law requiring some training to prevent dog shootings. Enactment of these laws has usually followed a particularly ugly incident that brought grief to the dog owner and substantial ill will for the law enforcement agency. Agencies paid nearly $2 million to settle claims when officers shot and killed a Rottweiler and two Bullmastiffs during searches of the San Jose Hells Angels clubhouse and several gang members’ houses. (See San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005)).
Many other states have voluntary training programs or partnerships with local animal protection groups to educate officers on dealing with unfriendly dogs. There are also training resources available from the Department of Justice COPS Office and on YouTube. Begin by learning how the Kansas City (MO) Police Department drastically changed community perceptions as explained by one of America’s top tactical commanders, Commander Chip Huth.
Lexipol’s Law Enforcement Policy Manual and Daily Training Bulletin Service provides policy updates based on changing laws and court rulings, so you can rest easy knowing your policy reflects the latest case law. Contact us today to find out more.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.