In light of all the recent police shootings involving dogs, I thought I might post what looks like a little good news for the owners that are left to carry on without the canine companion that is taken from them in what is often the rash response that law enforcement has to dealing with dogs that confront them. by James P Gaffney Who Let the Dogs Out? 11:15 am in Case Law & Legal Updates, Featured, News, Posts by James P Gaffney Officers need to be concerned about the possibility of a lawsuit being filed if an officer is involved in a dog shooting! Many in society these days consider their dogs as valued family members rather than simply the family pet. In fact, the preferred nomenclature is “canine companion” vs. pet these days. This perspective is a trend emerging in the federal circuit courts of appeal. ASPCA has worked since 1874 to increase public awareness of the important role that animals fill. It is with that thought in mind officers need to understand protections have been in place for approximately 138 years against acts of cruelty to animals. And now the higher courts are ruling the shooting of a dog by a police officer is a seizure pursuant to the Fourth Amendment. In New York City in 1874, the ASPCA took the lead role in coming to the aid of Mary Ellen, age 10, who was believed to be a child abuse victim. Reports of this girl’s constant abuse were reported to New York City authorities. The agencies approached chose not to intervene. Representatives of the ASPCA were then contacted and investigated the complaint on the behalf of Mary Ellen. The investigation led to the arrest and conviction of an individual due to the role taken by the leaders dedicated to preventing animal cruelty. On April 21, 1874, Mary Connolly, Mary Ellen’s step-mother, was found guilty of felonious assault and was sentenced to one year of hard labor This conviction resulted in the first case of child abuse brought before a criminal court. It appears that those who seek to protect animals were also more enlightened about child abuse long before other agencies. Groups like ASPCA and others have positively influenced public policy regarding animals, even to the extent of changing emergency management procedures to include sheltering domestic animals, rather than leaving them to fend for themselves during evacuations, as in the past. In my role as Incident Commander, I became aware of citizens refusing to abandon their residences during a flood due to their attachment to their pets. The possibility of being liable in the wrongful death of a dog makes it clear since 1874 there has been emerging awareness of the need to protect all animals (and in one incident, a child) from unnecessary harm. The current trend now makes it unlawful for an officer to seize a dog by deadly physical force unless the actions taken are found to be objectively reasonable pursuant to the Fourth Amendment. While LEO’s are familiar with objective reasonableness in use of force encounters against humans, the court’s interpretation that this applies to dogs killed in the line of duty is a new twist. Courts change direction from time to time. Keeping pace with the rulings of the higher courts is the most intriguing and challenging aspect of policing. It is amazing how over time as much as things remain the same; they also change. In law enforcement there always is something new to accomplish, learn, address, implement, modify, add, or eliminate regarding a department’s policy and procedure to keep law enforcement in step with the expectations of society. Society’s long lasting concern for the wellbeing of animals has placed law enforcement in a position to take notice and adjust. In the area of use of force, the rulings in the cases of Tennessee v Garner and Graham v Connor provide understanding when a person is seized as well as under what circumstances an officer is to be found objectively reasonable based upon the totality of the circumstances at the time of the incident. While attending the ILEETA Conference last month, I attended a class facilitated by Laura Scarry, a Chicago attorney who represents law enforcement officers accused of civil rights violations at the state and federal level. Ms. Scarry advised participants of this change in the court’s view regarding dog shootings. We learned, in fact, such a shooting could possibly be deemed a violation of the Fourth Amendment! This class informed participants of current court rulings in place by circuit courts ruling that the use of deadly physical force can result in a federal civil rights lawsuit if a dog is “wrongfully” injured or killed. For the purposes of this article, the portion of the Fourth Amendment under discussion is where the Fourth Amendment discusses that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The federal courts recognize a dog, one’s canine companion, as an “effect.” The precedent in place is a result of the 9th Circuit Court of Appeals ruling in the case of Fuller v Vines, 36 F.3d 65,68 (9th Cir. 1994). In this case, an officer’s shooting and killing of a defendant’s dog could constitute a seizure under the Fourth Amendment. As of the ILEETA Conference, at least three federal circuit courts of appeal have noted that the shooting of a dog by police is a seizure under the Fourth Amendment. The flexibility of the courts to address changing expectations of society with the passing of time is firmly in place within the Constitution, in the Bill of Rights .A dog is now protected from a “wrongful death.” The use of deadly physical force against a dog will not be tolerated unless, as in all shootings, objective reasonableness is established by the totality of circumstances in place at the time of the incident based on the officer’s understanding of the facts. Such an understanding is formed: • From the perspective of a reasonable officer • On the scene • At the moment force was used. • Without 20/20 hindsight • In circumstances that are tense, uncertain, and rapidly evolving A fellow officer had to shoot a dog prior to the time I attended the ILEETA conference. At the time of the shooting, I asked questions regarding the circumstances to have a better understanding of the facts. I thought I was taking a risk-management approach in evaluating whether a complaint of reckless endangerment could be raised against the department. Now I understand that there are also civil rights implications. The officer did have a right to be on the property at the time the shooting occurred. The officer responded to a domestic incident. As he approached, the homeowner’s dog attacked him. The officer fired as the dog charged. The dog was killed. In the end, the totality of the circumstances resulted in a finding the officer conducted himself properly. In looking back, I realize that all the questions I was asking actually had to do with whether or not the officer was acting in an objective reasonable manner, as well as justifying the seizure of the dog by deadly physical force. This emerging trend should not be an issue for the police departments which have a policy and procedure in place directing that all shootings be initiated on an objectively reasonable basis. Law enforcement officers have a special camaraderie in place among members of the K9 unit, and the dog assigned to each officer. The dog is deemed a partner; a fellow officer. The dog is , is trained, receives medical treatment, is provided protective gear, and is utilized at a tactical advantage to protect fellow officers and arrest or maintain control over people taken into custody. A police dog is a valued member of law enforcement. The trend to consider dogs as more than property will continue among many in our society. The courts’ decision to consider such a shooting as a possible civil rights violation is, however, new. This new trend is easily addressable by maintaining the old-time concept of documenting the circumstances to demonstrate the action taken at the time by the officer was objectively reasonable. Who would have thought the actions of the ASPCA in 1874 in protecting from child abuse would reinforce the value and rights of animals to the point a dog is now protected from wrongful death? Whether one is in favor or against this trend is a non-issue. Officers and administrators need to keep abreast of the changing times to offset the likelihood of a lawsuit. The challenge before law enforcement never ends!