Wednesday, March 21, 2012

Another Pit Bull Tragedy

Additional Note: This blog was cited in an article that appeared in the Canadian Journal of Applied Sciences, 5(2), 21-25, entitled Dog Fighting in Turkey, by Orhan Yilmaz, Fusun Coskun, and Mehmet Ertugrul, professors at three universities in Turkey.  The authors correctly argue for increased penalties for those convicted of dog-fighting crimes.

In a scene that belongs in an episode of Southland, a 911 caller mistakenly informed the police that a neighbor’s house was being burglarized, which resulted in a young man’s pit bull being shot by the police when they arrived.

Pit bulls are wonderful dogs, but they come with risks. Being large-jawed, they are more capable than many breeds of doing damage with their bites, though no more so than Great Danes, which have obtained the image of gentle giants from Scooby-Doo and Marmaduke but which a century ago, as I have discussed here before, had a bad reputation for aggression. (Petey of the Little Rascals did not remain sufficiently in American consciousness to dominate the image of the breed.) As with any dog, pit bulls can be trained, and often are as calm as dogs can be, but people assume they are vicious because they have become popular with gangs and other unpopular members of American society.

A Burglary That Wasn’t

In Sandoval v. Las Vegas Metropolitan Police Department, 2012 WL 607283 (D.C. Nev. 2012), a 911 call alerted Las Vegas police to prowlers and a possible burglary. Before police arrived, one of the suspected burglars jumped over a fence and was picked up by a maroon SUV. Sergeant Jay Roberts arrived and interviewed the caller, who pointed out the house where he thought there might have been a burglary.

Officer Michael Dunn arrived and Sergeant Roberts told him to cover the back of the home. They were concerned that the burglary might still be in progress. In the words of the court:

“As Sergeant Roberts approached the window to the home with his gun drawn in the low-ready position, he observed three young males moving around in the room…. Unknown to the officers, the three males were Henry and his friends Jordhy Leal and David Madueno, whom Henry had invited over to play video games, watch television, and listen to music.”

Roberts thought the three men might be ransacking the room. He pointed his weapon towards the bedroom window and shouted: “Metro Police, put your hands up.” Officer Dunn entered the home through a sliding door, where he also gave verbal commands to the three young men.

Whether it should have been obvious that the young men were not burglars was not considered by the court, which continued with its description of the events:

“Before complying with the command, Henry told Sergeant Roberts that he had to take care of his dog (a pit bull) who was in the room with them, but was instructed to open the front door. As the suspects exited the room, the dog ran past the young men and lunged at Officer Dunn. When the dog was less than two feet away from Officer Dunn and about one foot from David, Officer Dunn shot the dog in the face. Officer Dunn reported the shooting over the radio and requested animal control. Henry grabbed the dog and Officer Dunn ordered Jordhy and David to get on the ground. Jordhy and David were handcuffed and led outside along with Henry, who was holding the pit bull. While leading the young men outside, the officers inquired as to who they were and why they were on the property. Jordhy and David were sat down on the front lawn for forty minutes while Henry remained with the dog. Henry was understandably upset that his dog had been shot and repeatedly screamed at the officers, “why the fuck they shoot my dog.’” (The version of the order released by the court deleted all but the first letter of the expletive in the last sentence.)

It should be noted at this point that Henry asked for a chance to control his dog, but the officers apparently felt that exigent circumstances precluded any delay to their entry.

Henry was allowed to call his father, Sandoval. When Sandoval arrived he saw the blood on his son, but assumed he had been shot, not realizing the blood was from the dog. Sandoval was pushed against a police car and handcuffed. He began screaming for his medicine, which he needed because of his recent surgery, but got no help for 25 to 30 minutes.

Animal control “eventually arrived on the scene and Henry ran towards the truck and put the dog inside.” Henry remained agitated and was handcuffed and put in the back of a patrol car. He was later released and told to stand behind the yellow tape with his family.

The dog died of its injuries. No one of the family was ever charged or cited for a crime.

Suit Against Las Vegas Police
Sandoval and other people involved filed a complaint with the Las Vegas Metropolitan Police Department for violations of civil rights, excessive force, municipal liability, assault and battery, and false imprisonment. Defendants filed a motion for summary judgment, arguing there was no genuine dispute as to any material fact and that they were entitled to qualified immunity.

The court found that the officers reasonably believed that the three men were committing a burglary. As to shooting the dog, the court stated:

“Upon entering the home, the family pit bull charged at Officer Dunn. Although Plaintiffs claim the dog had never bitten anyone in the past, Officer Dunn had no reason to know that. All that was known was that he stood before three potentially dangerous suspected burglars and a lunging pit bull.”

As to the excessive force claim for shooting the family dog, the court said:

“Plaintiffs also contend that Officer Dunn used excessive force in shooting the family dog. A dog is not a person and therefore is not entitled to protection under the Fourth Amendment. See U.S. Const. amend IV (protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects”) (emphasis added); Altman v. City of High Point, N.C., 330 F.3d 194, 200 (4th Cir.2003) (holding that a dog is not a “person” under the Fourth Amendment). However, an owner may bring a claim against the government actor for violating the Fourth Amendment for an unconstitutional seizure of the owner's property if the manner in which the dog was taken or killed was unreasonable.” (transcript citations omitted)

The court determined:

“Although the loss of the animal is a significant intrusion, the pit bull was charging at Officer Dunn at the time it was shot. Officer Dunn's safety clearly outweighed the loss of the property interest Plaintiffs had in the animal. While Officer Dunn did not attempt nonlethal methods of restraining the dog before shooting, this was a rapidly evolving situation in which Officer Dunn was required to make a split second decision in how to protect himself. Such actions must be judged from the perspective of the officer at the scene rather than with the 20/20 vision of hindsight…. From Officer Dunn's perspective, a pit bull was racing toward him while he was standing before three suspected burglars who may have been noncompliant and reaching for items when Sergeant Roberts first discovered them. Based on the information available to Officer Dunn at the time, it cannot be said his actions were unreasonable.”

Because the officers acted reasonably, the court held that they were entitled to qualified immunity.

No Deprivation of "Familial Association" in Loss of Dog
The plaintiffs also asserted that “they were deprived of the right to familial association when the officers shot the family dog.” The court acknowledged that this was a traumatic event for the family, but said the “right to familial association generally only applies in parent-child relationships.”

“Although many people have close relationships with their pets, the owner-pet relationship is not a parent-child relationship. Furthermore, Plaintiffs have failed to cite any legal authority which would justify the extension of the right of familial association to relationships owners have with their animals. For these reasons, the loss of the family dog consequently does not deprive Plaintiffs' of their right to familial association.”

The court also rejected the argument that there was intentional infliction of emotional distress. Since Officer Dunn had a right to protect himself from the charging pit bull, the action was not done with the intention of causing emotional distress.

Summary judgment was granted to the defendants.

Conclusion

Holding one’s seriously injured pet while waiting at least 40 minutes for an animal control van to arrive is not something most dog owners even want to contemplate. Our hearts go out to Henry.

The court’s ruling is not unexpected, however, nor is its reasoning unsupported by general legal concepts. Courts are going to give the benefit of the doubt to the police. I would like a pit pull. I think they are beautiful dogs, but they come with this kind of risk. Be sure to think about it before getting one.

2 comments:

  1. The summary judgment was reversed on appeal and the lawsuit can proceed
    http://www.courthousenews.com/2014/07/01/69201.htm

    ReplyDelete
  2. The text of the reversal is here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/07/01/12-15654.pdf

    ReplyDelete