The United States Court of Appeals for the Sixth Circuit has handed down a major ruling that will likely shock many dog owners.  Judge Eric Clay wrote the opinion that police can legally shoot and kill any dog that is barking at them during a raid.  Since this is a common response to intruders, it would mean that police have virtually complete discretion to kill dogs during raids.  The case is Brown v. Battle Creek Police Dep’t, 2016 FED App. 0293P (6th Cir.).

The Court describes the incident as follows:

On April 16, 2013, the BCPD searched the trash of Danielle Nesbitt and found baggies with residue of marijuana and cocaine. They used the garbage to secure a search warrant the next day.  They also relied on a confidential informant on the use of the residence to deal drugs.  They executed the warrant but Vincent Jones was detained outside of the residence by police with heroin on his person. They also found Mark Brown at the location who let them in and told them that there were two dogs in the house.  The officers saw the dogs in the window as they barked and pawed.  Both were pit bulls.  

Officer Klein testified that when he entered the house, the first dog jumped off the couch, was aggressively barking at the officers, and lunged at him. He also noted that when the officers entered the residence, the second pit bull jumped off the couch, went through the kitchen and down into the basement. He further testified that when the first pit bull lunged at him in the entryway, he fired his first shot. Officer Klein explained that the first pit bull “had only moved a few inches” between the time when he entered the residence and when he shot her, and that this movement was what he considered to be a “lunge.” (See Klein Dep. at 73-75, 77.) Klein testified that he “hit” the first dog with a non-lethal shot, but that he was “aiming at its head.” (Id. at 80.)

. . .

Officer Klein stated that after he struck the first pit bull in the entryway, the dog moved away from the officers and towards the kitchen, then down the stairs and into the basement. Officer Klein noted that this first dog was not running, as it “look[ed]” injured. (Id. at 82.) As the officers were descending the stairs to clear the basement, they noted that the first pit bull was at the bottom of the stairs. Klein testified that the first pit bull obstructed the path to the basement, and that he “did not feel [the officers] could safely clear the basement with those dogs down there.” (Id. at 95-96.) The officers’ “priority w[as] [ ] to secure the basement if there w[ere] any people down there.” (Id. at 97.) When the officers were halfway down the stairs, the first dog, who was at the bottom of the staircase, turned towards them and started barking again. From the staircase, Officer Klein fired two fatal rounds at the first pit bull. (Id.)

When the officers got down to the basement, they noted that the “basement was loaded. You’ve gotta look under beds, you’ve gotta do everything, and [the dogs] basically prevented us from doing that, and they were protecting that basement.” (Case Dep. at 86.)

Officer Klein testified that after he shot and killed the first dog, he noticed the second dog standing about halfway across 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. (Klein Dep. at 87.) Klein then fired the first two rounds at the second dog.

After being shot by Officer [*9]  Klein, the second dog ran to the back corner of the basement. The second pit bull was in this corner when Officer Young, who was also clearing the basement, shot her because she was “moving” out of the corner and in his direction. (Id. at 92.) After being shot by Officers Klein and Young, the second pit bull ran to the back of the furnace in the back corner of the basement. Officer Case saw that “[t]here was blood coming out of numerous holes in the dog, and . . . [Officer Case] didn’t want to see it suffer” so he put her out of her misery and fired the last shot. (Id.at 93-94; Case Dep. at 79.)

The Sixth Circuit held that it was enough that the officers felt threatened by the dogs. The first dog was described by the police as lunging as well as growling. However, it is the second dog that will raise issues for pet owners:

At the hearing, the district court held that, even if it did take the facts in the light most favorable to Plaintiffs, the unrebutted fact that Officer Klein said the large brown pit bull lunged at him before he shot her would still establish that his actions were reasonable. (R. 72 at 24, 45.) A jury could reasonably conclude that a 97-pound pit bull, barking and lunging at the officers as they breached the entryway, 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 evidence was not being destroyed.

After Officer Klein shot the first dog, the dog went through the kitchen and into the basement. As the officers were moving down the stairs to clear the basement, they noticed that the wounded dog was at the bottom of the stairs. When the officers were halfway down the stairs, the first dog turned towards them and started barking again from the bottom of the stairs. Officer Klein reasonably fired two fatal rounds at the pit bull. The officers testified that the basement was filled with various objects and it was difficult to determine if there was anybody in the basement hiding behind one of the large objects. The officers had to sweep the basement, and the wounded animal was preventing them from entering the basement and safely sweeping it. Therefore, the seizure of the first dog was reasonable.

With regard to the second pit bull, the question before the district court was whether Plaintiffs presented a genuine issue of material fact as to whether it posed an imminent threat to the officers’ safety. The dog was not present in the entryway and was not standing at the bottom of the basement stairs as the officers descended. The second pit bull was in the basement when they descended the stairs and was barking as the officers were attempting to enter and clear the basement. 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 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.

After being shot by Officer Klein, the second dog ran to the back corner of the basement and was in the corner when Officer Young shot her. Officer Young testified that he was unable to clear that corner of the basement with a 53-pound unleashed pit bull moving in his direction. We find that Officer Young’s shooting of the second dog was reasonable. Officer Case then fired the fatal shot at the second dog when he found it bleeding profusely behind the furnace. As with Officers Klein and Young, we find Officer Case’s actions reasonable.

Three Michigan police officers, who shot two dogs for lunging and barking at them during a drug raid, were once again justified in their actions — this time by a federal appeals court.

Underlying the decision is the treatment of the dogs as simple property even though the court acknowledges the emotional attachment.  The mere fact that the second dog was barking and in the path of the officer was enough to justify the shooting.  That is a standard that is likely to outrage many pet owners, particularly given the past cases that we have discussed (here and here and  here and  here and here and here and here and here).

The troubling aspect of the case is that the court notes the legitimate fears of the officers in entering the home in light of alleged gang affiliations and prior history. However, the specific “seizure” of the second dog was based on his being in the path of the officers and barking.  In fairness to the police (and court), the question is the alternative standard. What would the officers have to show to justify the shooting of the second dog in your view?

Here is the opinion: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0293p-06.pdf