Sixth Circuit Rules That Police Were Justified In Shooting Barking Dog During Raid

us-courtofappeals-6thcircuit-sealThe 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’t2016 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. ( 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:

64 thoughts on “Sixth Circuit Rules That Police Were Justified In Shooting Barking Dog During Raid”

  1. Even if in this case it was deemed acceptable, it shouldn’t generalize to other cases with a different set of facts/dogs. For god’s sake. It’s in a dog’s nature to bark at intruders. When you’re getting an impromptu police “visit,” you can’t know to secure the dogs first. Our rights are completely eroded–especially the right to privacy, but don’t get me started.

    1. JackW – as long as the owners are at home, they should be allowed to secure the animals. I always secure my dog when I have workmen. None have shot her yet and she does bark. She is bred as a watchdog.

      1. Paul Schulte…
        -I forgot to answer your question yesterday….it’s a Google Chrome browser.
        Still working on the dozen questions Po asked me yesterday.😊😊

  2. The police claim there is a war on cops ( most “war on cops” events have been proven to be started by cops) and they wonder why the community is against them. This could very well be the event that crosses the line. In some areas of California, cops are required to report discharges, accidental and when aimed at people. Discharges aimed at animals are not required to be reported.

  3. Cops aren’t held accountable for killing people, even those who are unarmed, so why the surprise that they get away with killing dogs? Cops who do this have no business being cops. They need jobs where their safety is ensured without the need to kill. Maybe librarians. Existing librarians could teach them how to maintain order without even making any noise.

  4. One thing I find odd, is searching garbage, and assuming that’s evidence against someone. I don’t know about your neighborhood, but where I live, people don’t litter. They tend to through trash in the nearest public trash can or in any garbage can they happen to be passing. I’d hate to have my door kicked in at 2:00 AM because someone threw some garbage in my can as opposed to dropping it on the street.

  5. These cases make me insane.
    Killing dogs, shooting a litter of kittens,
    Taking down grandma, including people in wheelchairs, and blowing away unarmed citizens. Lest we forget that cluster bomb thing thrown in the occupied baby’s crib.
    People, if allow a country to train your police chiefs and police academy for 30 years, a country that believes it’s ok to bulldoze houses that have been in families and neighborhoods for centuries, because one of the sons got arrested for ‘terrortistc’ acts. This is the kind of police you are going to get.

  6. Professor,

    I take issue with two aspects of your analysis:

    1. It was necessary that the court treat the dogs as property. The dogs were not the plaintiffs. In order to prevail, plaintiff was required to demonstrate that his property was seized. If the dogs were not property (and plaintiff’s property at that), plaintiff had no standing to sue.

    2. The actions of the officers were found to be reasonable not merely because the barking dogs were blocking the path of the officers. The court held that, because of plaintiff’s gang affiliations, it was reasonable for the officers to believe that other gang members were present in the house and that the actions of the dogs impeded a safety sweep of the house.

    The decision was an eminently reasonable one.

    1. So it was not reasonable to ‘clear’ the bathroom and ask one of the occupants to put both dogs in the bathroom? Too much work I suppose.
      Much easier to shoot them and pretend life is just one insane computer game. 😔

      1. Ter ber,

        The occupants of the house were gang members. There could have been a gun hidden in the bathroom or elsewhere in the house. For that reason the police took the plaintiff outside the house prior to commencing the search. It would make no sense to secure the occupants of the residence, then let them back inside to rummage about.

        1. I appreciate your reply. But maybe I am old school, and the suspects are innocent until proven guilty. Or do we not do that anymore?

          1. Ter ber,

            The concept of innocent until proven guilty is great once you have the accused in custody and before a judge and jury. Prior to that, there is that little matter of bringing the accused to trial so that the wheels of justice may grind. Part of bringing a suspect to trial is finding evidence so that proof beyond a reasonable doubt may be determined. Finding evidence often involves, as here, obtaining a search warrant from a neutral magistrate and looking for contraband in the searched premises. Drug dealers tend not to go lightly, so is essential for the safety of officers and citizens alike for the cops to do a protective sweep for accomplices who may be armed before commencing the search. If they cannot do that because a dog will not let them, it is, therefore, sad but essential that they neutralize the dog. Otherwise, some bad guy may get a gun and start shooting. Allowing the suspect to issue commands to his canine sort of defeats the purpose of restraining the suspect in the first place. Add to all of this the realization that accomplices present in the house are not going to wait until the dog situation resolves itself before either fleeing or shooting.

  7. Your average American, armed to the teeth, standing up for rights established in another time and condition, can shoot someone with nothing but a reasonable fear for this or that, then why can’t a cop shoot a drug dealer’s dogs. Drug dealer’s have dogs like pit bulls for reasons such as protecting their product from fellow drug dealers, cuz these dogs make them feel tough, and it goes along with living next to danger. The dogs getting killed compared to the rest of what cops do doesn’t seem all that out of whack. Cops routinely shoot people running away, kids with water pistols, etc. This seems a stretch.

    1. The dog’s owners had a license for a small amount of medical marijuana which was shown to the police. No one was arrested. This was not a drug bust and the dogs were not drug dealer’s dogs.They were family dogs that barked and ran away.

        1. The police claim they had an informant finger them as drug dealers. The day went bad from the start. The home owner arrived as the police arrived. They showed him the warrant and he offered them his keys to the front door. The police used a battering ram.

          1. Michael Blott – we can hope the dogs are expensive and they sue before a jury of dog lovers.

            1. PS again offering nothing but quips.

              Ignorant of the facts, tucking his tail in his coattail posts.

              Impressive stuff, PS; that you have the world figured out so well, and that your opinions keeps us safe.

  8. I see the pit bulls being protective but not aggressive. An animal rescue officer could have snagged them. If there was adequate intel on the house they knew about the dogs going in. I expect they intended to shot the dogs as part of the entry plan. I don’t buy the story of the cops at all.

  9. The judges should order the cops and their police department to buy a dog unit which will confine barking or lurching dogs during raids. Throw em a hotdog for Christ sake.

  10. People who live near the judges who sit on the Sixth Circuit need to load their rifles and go shoot the dogs owned by those judges. The folks who live in the town with the dog killing cops need to practice rifle shooting from long distances and shoot some cops. Turnabout is fair play. Dogs need their day. Dog spelled backwards is God. The cops are in for some bad judgments when they get their interview at the Holy Gates. Bill Gates won’t help them either. The Sixth Circuit let them off the hook but they are headed to Sandy Hook.

  11. Let’s legalize all drugs like they’ve already done in Portugal with great success and redirect the wasteful and failed drug war dollars from the corrupt and diabolical Nazi-like, Gestapo-like, DEA to drug education and rehabilitation. Drugs are a health issue, NOT a criminal justice issue.
    The DEA currently functions as an aggressive military police force in the Amerikan police/prison state and who routinely kill pet dogs on sight. This happens frequently without provocation. Personally, after all drugs are legalized, I’d like to see the neo-fascist DEA completely abolished and every DEA thug standing in the unemployment line. It’s a criminal organization overrun by thugs and gangbangers that have no place in a democratic society. But its all part of a Mob-like racket. They trample over the Constitution and our civil liberties with impunity and contempt for the rule of law. The United States would do well to implement some Progressive strategies from other more evolved countries like Portugal and elsewhere. What’s the definition of insanity? Doing the same time over and over again and expecting different results. The drug war profits the oligarchs and 1% elites who run this country. That’s the true reason we perpetuate this miserably, failed drug war policy. It’s disgraceful and reprehensible. Just sayin’

  12. According to The Guardian this year thus far cops in the U.S. have killed 1,058 people! Living in Charleston, SC where Michael Slager, a thug POS cop who had multiple issues, was set free due to a mistrial because the only black on the damn jury is still a plantation boy and turned it into a mistrial (!!!) I am very attuned to the thin blue line bull shit. Yep, for you folks who don’t live down here in Dixie the Plantation Mentality is alive and well (think of those dummies who voted blindly for HRC!). Fortunately the prosecutor has a new trial set up for March.

    BUT, to the topic at at hand:

    Why aren’t cops armed with tranquilizer guns if they feel threatened by dogs? And lest some think I am a SJW – my bro in law was a CA State Trooper. All I want is ACCOUNTABILITY.

    Far too often innocent animals are killed by cops like these yoyos in Cookeville, TN (I lived there briefly) who were not even fired!

    1. Your issues run deeper than you think . . . Why else would you say “the only black on the damn jury is still a plantation boy ” just because YOU did not like the way he voted on the jury. I too am Black and challenge you to name one “Black leader” on the national level, who has not described us as Poor, uneducated, immoral, criminal, picked on people who cannot make it in America without help from the government. They are the real “Plantation” boys. They (Obama included) see us and describe us as inferior before the whole world and then cry Racism when we are treated as they describe us. The person you talk about listened to the testimony and evidence, discussed it with other jury members and reached a decision based on the facts.

    1. Yep and If I sat on a jury Id find them not guilty.
      My dogs are like my family. Shoot my dog and I am going to shoot you in return

    1. Its a terrible decision that has been fueled by Civil Asset Seizure, the failed Drug War, the Destruction of the 9th and 10th Amendments as well as the reckless use of No Knock Warrants

      The Drug War has long been a failure and the Federal Govt needs to stay out of the issue largely.

      Civil Asset Seizure is as Unconstitutional as it gets.

      No Knock Warrants are a serious problem and need to be greatly limited to hostage situations

      I am sick and tired of this blind exucse protection that cops get simply for being cops. No they dont have the right to just walk on anyones property and shoot their dogs and yes they get away with it even without warrants and in non raid situations.

      Somehwere in the past 10 years it has been not only acceptable but actually POLICY to train officer to simply shoot any dog they see when entering private property with or without warrant or probable cause. Officers trespassing on foot looking for someone who jumped a fence, have shot peoples dogs behind fences. Think about that one a minute.

      This is America and we have rights here. This is not a Police State. If you want to live in a Police State move to England where you have no rights to anything.

      1. The “rights” are quickly being eroded – there are various tiers of justice now depending on one’s social/financial status. Remember Eric Holder’s “too big to jail” doctrine?. The corporate globalists whether Republican or Democrat have been steadily eroding civil liberties.

        1. The Bill of Rights, the 1st and 2nd Amendments in particular, is the biggest roadblock to the NWO Globalists that there is.

          Before anyone laughs

    2. oh and PS- Being afraid of dogs should make you automatically disqualified from being a cop. Spare me the safety bullsht too. Somehow they managed for 200+ years to get by without this current trend.

      1. WE only have this info because Maryland passed an unusual SWAT transparency law after a raid on a small town mayor’s home in which his two Labradors were shot and killed:

        Over the last six months of 2009, SWAT teams were deployed 804 times in the state of Maryland, or about 4.5 times per day. In Prince George’s County alone, with its 850,000 residents, a SWAT team was deployed about once per day. According to a Baltimore Sun analysis, 94 percent of the state’s SWAT deployments were used to serve search or arrest warrants, leaving just 6 percent in response to the kinds of barricades, bank robberies, hostage takings, and emergency situations for which SWAT teams were originally intended.

        Worse even than those dreary numbers is the fact that more than half of the county’s SWAT deployments were for misdemeanors and nonserious felonies. That means more than 100 times last year Prince George’s County brought state-sanctioned violence to confront people suspected of nonviolent crimes. And that’s just one county in Maryland. These outrageous numbers should provide a long-overdue wake-up call to public officials about how far the pendulum has swung toward institutionalized police brutality against its citizenry, usually in the name of the drug war.

    3. Note that the 2nd dog possed NO threat to the cop but was killed because the cop did now want to see it suffer. Bad call by the cop and the court.

    4. The decision allows the threat to be arbitrary and at the total discretion of the officer. The dog could be running away while barking, In reading the decision, any movement could be labeled a lunge.This is akin to any man is a rapist because he has a penis.

    5. CJ:

      Think a little deeper about the ruling.

      Now every time cops execute a search warrant, they will face a homeowner making two decisions:

      (1) Will the cops find anything leading to my arrest: and

      (2) Am I willing to allow my dogs to be shot?

      On question #1, 99.9% of the time, homeowners let cops in regardless of the consequences.

      Add the dogs into the equation, and the probability of peaceful acceptance of that search warrant goes down significantly (how many of us will stand aside, knowing that our dogs will be shot?).

      That means that both cops and homeowners will die at a higher rate – a needless increase in violence.

      And that is on the cops and the court.

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