When is it constitutional for a police officer to shoot a dog during a raid? Any time it moves or barks, according to a federal appeals court.
In a ruling released Monday, the Sixth Circuit Court of Appeals found Battle Creek, Mich. police officers were justified in shooting two pit bulls while executing a search warrant for drugs on the home of Mark and Cheryl Brown in 2013. The Brown's sued the police department in 2015, arguing the killing of their dogs violated their constitutional rights.
The ruling creates a similar legal standard in the Sixth Circuit—which includes Michigan, Ohio, Kentucky, and Tennessee—that several other federal appeals courts have established, but it also appears to expand when it is acceptable for an officer to shoot a dog.
After breaking through the Brown's door, one Battle Creek officer testified that the first dog "had only moved a few inches" toward him before he shot it. The second dog ran into the basement.
"The second dog was not moving towards the officers when they discovered her in the basement, but rather she was 'just standing there,' barking and was turned sideways to the officers," the court narrative continues. "Klein then fired the first two rounds at the second dog."
Police departments around the country have been hit with expensive lawsuits for shooting family pets in recent years, following a 2005 Ninth Circuit Court of Appeals ruling that the unreasonable killing of a dog by a police officer is an unconstitutional "seizure" of property under the Fourth Amendment of the Constitution. In September, a federal jury ordered the city of Hartford, Connecticut, to pay a whopping $200,000 to a family whose St. Bernard was shot by city police in 2006. Commerce City, Colorado, settled a dog shooting case in January for $262,500.
The Sixth Circuit readily agreed with its sister court's constitutional standard, but it found the Battle Creek officers' actions were reasonable because they had no knowledge of the dogs until they arrived at the house, and because there was no witness testimony rebutting the officers' narrative of what happened inside.
"The standard we set out today is that a police officer's use of deadly force against a dog while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer's safety," the court wrote.
As I reported in my November investigation of several ongoing lawsuits against the Detroit Police department for shooting family dogs, owners' accounts often differed wildly from the official police narrative of events. The officers almost always described dogs as "lunging" and "vicious" to justify their status as an imminent threat.
Yet, this is the totality of the Sixth Circuit's reasoning for the reasonableness of the shooting of the second dog:
"Officer Klein testified that the dog, a 53-pound unleashed pit bull, was standing in the middle of the basement, barking, when he fired the first two rounds," the court wrote. "The officers testified that they were unable to safely clear the basement with both dogs there. Therefore, we find that it was reasonable for Officer Klein to shoot the second dog."
The Sixth Circuit's definition of "reasonableness" here is so broad that it would it appear to classify any dog that is not standing still and silent as an imminent threat.
Detroit attorney Chris Olson, who is representing several dog owners suing the Detroit Police Department, says that while the ruling in many ways hews to the established Ninth Circuit standard, it departs significantly enough that it could be considered a circuit split—often a favorable factor in the Supreme Court's decisions on whether to review cases.
"To the extent that the case suggests that you can shoot a dog just because it's not moving and you have to clear a room, I just don't buy it," Olson says. "And I don't think the Ninth Circuit case supports that kind of activity."
Michael Oz is the director of a documentary examining police shootings of dogs, Of Dogs and Men, that was released this summer. He says the case would set an objectively unreasonable standard for dogs who end up in the line of fire.
"The greatest dog trainer in the world will not be able to keep a dog still and silent in the case of a dynamic entry like that," Oz says. "That's just not in their nature. If the standard that needs to be met to shoot is either moving or barking, then we can just assume that standard fits every dog [police] will ever encounter. It's the same as no standard."
Battle Creek Police Chief Jim Blocker told the Battle Creek Enquirer he was pleased with the ruling:
"It was a good ruling," Police Chief Jim Blocker said. "It pointed out some things we have to improve upon, but supported our operating concept that officers must act within reason."
Blocker said "officers have milliseconds to make a decision and it is a judgment call and based on too many variables. Ensuring officer safety and preventing the destruction of evidence must be protected."