There was a time in this country that when a law enforcement officer killed a hostile pet dog, the owner of that dog would seek no further compensation than just the value of the dog. Dogs were nothing more than property.
Legally pet dogs are still property, and if you kill one in the line of duty, your action is a seizure of that property.
But to some dog owners, their canine companions are much more than property. They are family members, friends, and in some people's minds, children. Where once dog owners were called "masters," they are now known by some dog lovers as "parents."
When you kill a dog owner's pet during a police operation, even if your actions are reasonable, you can expect that grieving person to lash out at you, your agency, and anyone else involved.
Often the “aggrieved” dog owner’s anger will manifest in the form of legal action. Many agencies try to head off such litigation by trying to reach a settlement with the dog owner.
But sometimes the owner’s anger cannot be defused with just a monetary settlement. In one recent case, the agency and the dog owner failed to reach agreement because the dog owner insisted that the involved officer be terminated. When your agency and a dog owner can’t reach agreement, then you may receive some court papers.
If you are sued in state court for shooting a dog, it’s likely the case will be filed under a tort called “trespass to chattels.” This tort means the plaintiff is claiming that you damaged his or her personal movable property—as opposed to real estate.
If you are sued in federal court for shooting a dog, it’s likely the case will be filed as an unreasonable Fourth Amendment seizure and a violation of the dog owner’s civil rights.
For reasons that we’ll discuss in a moment, most attorneys who take the cases of dog owners suing officers for shooting their pets will file their cases in federal court, claiming an unconstitutional seizure of the plaintiff’s property and a violation of the plaintiff’s Fourth Amendment rights.
Attorneys say the first move they attempt in a civil rights lawsuit against a police officer is to argue for qualified immunity. Arguing for qualified immunity is one possible way to seek the case’s dismissal with a summary judgment for the defense.
Government officials, including police officers, can receive qualified immunity against a claim they violated someone’s civil rights for discretionary job actions—even if those actions are unlawful—if there is no clearly established case law on the subject.
The issue of clearly established case law is complicated, but it essentially means your attorney will argue to the judge that the U.S. Court of Appeals in your geographic circuit has not established binding precedent. At this writing, six of the 11 U.S. Courts of Appeal have set a binding precedent that when officers shoot pet dogs they are executing a seizure of the owners’ property under the Fourth Amendment. Which means qualified immunity may not be available to you in the majority of federal court districts. Legal experts expect the other circuits to follow suit in the near future.
Going to Court
If your counsel cannot get the case tossed on qualified immunity, you and your agency may once again try to settle or you may have to go to court.
Going to court on a dog shooting case is going to be very unpleasant. The plaintiff’s attorney will make his or her client—the dog’s owner—look like a sympathetic victim and make you look like the worst person on Earth for shooting a “sweet pet doggie.” About 50% of Americans have dogs in their home, most others have a fondness for dogs, so there will be dog lovers on the jury.
Your best defense, regardless of jury sentiment, will be that you had a legal right to be on the property, and the shooting was reasonable. That means a reasonable law enforcement officer with the same training, in the same situation, given the totality of the circumstances, would have feared bodily injury or death from the dog’s hostile behavior and could have reasonably decided to do what you did and use deadly force against the dog.
Attorney Scott MacLatchie of the Charlotte office of Womble Carlyle Sandridge & Rice, LLP defends law enforcement agencies and officers in civil lawsuits and has worked on dog shooting cases. He says, “If the underlying entry (to the person’s real property) is legal, then the corresponding seizure, as long as that was reasonable, will be upheld.”
Having a constitutionally valid reason to be on the dog owner’s property and then a reasonable fear of death and bodily injury from the dog’s behavior is a best-case scenario for an officer sued for shooting a pet. Take away either of those elements, and the case gets a little more difficult for the defense.
“If an officer is shooting a dog on a homeowner’s property, they better have a lawful basis to be on that property,” says police defense attorney and law enforcement trainer Laura Scarry of Chicago-based DeAno & Scarry LLC. “If they don’t have a reasonable basis to be on that property and then they end up shooting a dog on that property, that’s not a good situation.”
Attorneys will also tell you that much of the outcome of your case will hinge on how well you documented and articulated your reasons for shooting.
“I’ve been teaching police officers if there is a shooting of a dog, they can’t just say in the report: ‘Officer feared for life and shot dog,’” says Scarry. “You have to detail what happened. Put in the report that the dog was growling, it was barking aggressively, hair on its back was standing up, it jumped over a five-foot fence to attack. You have to put that stuff in your reports.”
Liza Franklin, Dep. Corporate Counsel for the City of Chicago says any case of officer use of deadly force, even against an animal, must be treated as a serious incident scene. “I need you to document it as clearly as you can,” she says in “Police & Dog Encounters,” a series of law enforcement training videos produced by Safe Humane Chicago and the National Canine Research Council, and distributed by the Department of Justice Community Oriented Policing Services office.
“I can’t (defend you) without reports and photographs from the scene,” says Franklin. “The family will probably take its own photos. So what I need is context. I need to be able to tell how far away the dog was from you when you made the decision to shoot. So I need some indication of where your shell casings are in relation to the dog’s body.”
Thorough reporting is critical for your defense in court, but be careful about what you say in your report. Be aware that “vicious” is in many states a specific legal term with a legal definition. Describing a dog as “vicious” when it doesn’t meet the legal definition is a problem. Better terms to use are “hostile” and “aggressive.” But don’t leave it at just that. Describe what made you believe the dog was hostile or aggressive. Finally, be very careful about assigning a breed name to the dog. Dog experts have a hard time assigning breed to your average American “Heinz 57” mixed-breed mutt. Just because you think it looks like an American pit bull terrier doesn’t mean it is one.
Losing and Paying
Officers and agencies do lose dog shooting lawsuits. Here’s what to expect if the jury finds for the plaintiff.
Settlements in the $50,000 range are not unusual and six-figure compensatory awards are not unheard of. In addition, attorneys representing prevailing plaintiffs in civil rights lawsuits against law enforcement officers and other government officials receive the cost of their representation from the losing defendant. These fees are set by the judge, and it is not unusual for the legal fees to exceed the value of the judgment. This is one reason why so many attorneys are willing to represent plaintiffs on contingency in federal civil rights lawsuits against law enforcement officers.
Both compensatory damages and legal fees are usually covered by the agency’s insurance. So an individual officer will probably not have to pay these costs.
Of course, that doesn’t mean your agency can’t discipline you. Losing a lawsuit over shooting a dog may severely damage your career progress or even end it.
Watch What You Say
Your biggest fear in a dog shooting lawsuit is punitive damages. While compensatory damages are likely to be covered by your employer, punitive damages are probably coming out of your pocket.
A jury can award the plaintiff punitive damages in a dog shooting case if it finds you acted with malice. In the case of killing someone’s pet, malice could mean indifference for the person’s feelings about the animal, recklessness on your part, or having a predisposed attitude about the animal that can be proven in court.
The bottom line is that officers should maintain professionalism at the scene of a dog shooting and watch what they say before, during, and after the incident. Remember just about everything you say or do is being recorded, and you don’t want some stupid joke to cost you your house, your pension, and possibly your badge.
Franklin says she has represented officers who damaged themselves severely at dog shooting scenes by running their mouths. “Some officers got hit with punitive damages after they shot a dog. We feel [the shooting was legitimate]. But they were cavalier about it in front of the family.” She cautions: “Be mindful of what you say.”
Los Angeles-based police defense attorney Mildred “Missy” O’Linn believes law enforcement agencies could defuse some community anger over dog shootings and perhaps avoid some lawsuits if they would show more compassion toward the owner of the pet that was shot and toward the animal itself.
It’s not unusual for dogs to survive shootings by officers and perhaps more would have a chance to survive if they received immediate veterinary care. O’Linn believes agencies should be prepared to respond to the situation.
“It would be wonderful if we took the dog that’s been wounded to medical care without delay,” O’Linn says. She recommends that agencies have an account with a local veterinary hospital, just in case a dog shooting should occur. “I think that would go a long way toward improving community response to these incidents. We need to handle these incidents with compassion, respect, and some type of assistance, if that’s appropriate.”
Of course the first question any law enforcement administrator would ask about such a policy is would providing such care for the wounded dog be admitting liability. O’Linn, a partner at Manning & Kass, Ellrod, Ramirez, Trester LLP, says that’s not the primary concern when a dog shot by a police officer is suffering.
“You can let the public know through your PIOs that your actions are not about who is right or who is wrong. You are trying to respond with compassion to the needs of an animal that was injured during the course of an event in which we were involved. If anybody asks about admitting wrong, you can say, 'Our attorneys will deal with other issues down the line,'” she says.
More Lawsuits Coming
Experts and attorneys contacted for this special report on police encounters with pet dogs say they can’t confirm that the frequency of dog shooting lawsuits is increasing. But anecdotally, it certainly appears that way.
And noted dog trainer and author Brian Kilcommons believes the flood of such cases has yet to crest. “The law schools are now teaching animal law and animal rights law. So there will soon be a whole new wave of attorneys who are locked and loaded on this issue,” he says.