Court To Cop: We Don't Need On-Point Precedent To Deny You Immunity For Killing A Dog That Couldn't Hurt You

from the Officer-Cure-of-Millhaven dept

Cops kill dogs. And they do it at a rate even the Justice Department is concerned about it. This comes from pro-cop site PoliceOne, so if there's any bias in this article, it's for cops rather than timcushinghatescops.com.

No one keeps records on how many privately owned dogs are shot and killed each year by American law enforcement officers so there are no hard figures. But a perusal of the Web and social media will tell you it's a lot.

Laurel Matthews, a supervisory program specialist with the Department of Justice's Community Oriented Policing Services (DOJ COPS) office, says it's an awful lot. She calls fatal police vs. dogs encounters an "epidemic" and estimates that 25 to 30 pet dogs are killed each day by law enforcement officers.

If that estimate is even close to accurate, that's nearly 10,000 dogs killed by cops per year. While it's true a number of these dogs may be strays, there's no ignoring the fact that dogs make cops act like bunnies with handguns whenever they're anywhere nearby. If a dog acts like a dog around a cop (i.e., barking at someone it doesn't recognize, etc.), it has a good chance of ending up dead.

Six of eleven circuits have declared the unjustified killing of a family dog is a violation of Fourth Amendment rights. People are protected against "unreasonable seizures" of their property, and the ultimate "seizing" is the summary execution of pets they own.

But courts are inconsistent in the application of this principle, so cops continue to kill dogs at an alarming rate and are only stripped of their qualified immunity at an equally alarmingly low rate. In one case, a cop kept his immunity despite missing the non-threatening dog he was trying to kill and wounding a nearby child instead. In other cases, cops have killed dogs while entering houses without a warrant, raiding a house over an unpaid gas bill, and while responding to a burglar alarm accidentally tripped by a family member entering the house.

Here's a little bit of good news -- both for dogs and the Fourth Amendment -- from the Fourth Circuit Court of Appeals. (h/t Gabriel Malor)

A cop who killed a non-threatening dog has had his immunity stripped and will have to face a lawsuit over his unjustified actions. Here are the events that led up to the pet's killing, as recounted by the court [PDF].

On September 24, 2017, [Officer Michael] Roane drove to Ray’s property to assist with an arrest warrant that was being served on Ray for domestic abuse. When Roane arrived on Ray’s property, four other officers were already present and parked in the driveway. Ray’s dog—a 150-pound German Shepard named Jax—was secured by a zip-lead attached to two trees that allowed the animal limited movement within a “play area” of the yard. Rather than park in the driveway like the other officers, Roane parked his truck within the dog’s “play area...”

Reading this complaint in the light most favorable to common sense, Officer Roane placed himself in danger and then tried to use his self-inflicted peril to justify shooting the family's dog. Pretty tough to do when you're surrounded by actually "reasonable" officers.

… prompting the other officers on scene to shout and gesture toward Roane, indicating that he should “[w]ait” and “[l]et [Ray] get her dog.”

Roane did not do this. He did not wait. He did not allow anyone to secure the dog. Instead, he "exited his vehicle and started walking towards the house."

Things then happened that anyone -- including Officer Roane -- would have expected to happen. Roane advanced towards the house. The dog advanced to the end of its zip line. The dog was forced to de-escalate because it had run out of line and was being called back by its owner. Officer Roane had no such restraints and was unwilling to listen to the other officers' attempt to rein him in. But it does appear from the allegations made in the lawsuit Roane knew he was not in danger.

As Roane emerged from his vehicle, Jax began barking at and approaching Roane. Roane responded by backing away from the dog and drawing his firearm, while Ray ran to the zip-lead and began shouting Jax’s name. “In a short moment,” Jax reached the end of the zip-lead and “could not get any closer” to Roane. Roane observed that the dog could not reach him, and further observed that Ray was now holding onto Jax’s fully-extended lead and continuing to call Jax’s name. Roane therefore stopped backing up.

Roane's decision to end his retreat signalled he knew he was able to avoid any contact with the dog whose area he had entered and proceeded into over the protests of other law enforcement officers. That should have been the end of it.

Instead, this was the end of it.

Roane took a step forward, positioning himself over Jax, and fired his weapon into the dog’s head. The dog died from the wound.

Instead of being stripped of his "Human Race Participation Card," Officer Roane will only be stripped of his immunity for his apparent cold-blooded killing of an animal he recognized posed no threat to him as long as he remained outside of the zip-line's reach.

Unimaginably, the lower court said this was all fine and reasonable.

On September 20, 2018, the district court dismissed Ray’s federal claim for unlawful seizure of Jax and declined to exercise supplemental jurisdiction over the remaining two state-law claims. In so doing, the district court concluded Roane’s actions had been reasonable under the totality of the circumstances and he would be entitled to qualified immunity.

Oh absolutely not, says the Fourth Circuit. Taking the allegations in favor of the complainant, there's plenty that's not settled here and it's certainly fucking not settled when it comes to Roane's actions once he moved out of harm's way. Stepping back in to kill a dog that could not reach him isn't reasonable by any stretch of the imagination.

Officer Roane tried the old QI trick: state that no precedent exactly on point exists. In other words, no other cop killed a 150-lb German Shepard named "Jax" in this backyard, in this jurisdiction, at this time of day, etc. QI has become "Steamed Hams" and every apparently unjustified rights violation can't be a cop's fault because the rapidly-evolving situation is the Aurora Borealis localized entirely in this part of the country at this time of year etc.

The court declines to swing at this bad pitch. QI isn't just about point-by-point precedent. It's also about the reasonableness of the officer's actions. And it doesn't see anything reasonable about Officer Roane's decision to shoot a leashed dog in the head after ensuring he could safely do so.

Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.

Roane's wish to have his novel dog-killing recognized as novel by the Appeals Court fails. "Reasonable" still means "reasonable," even if this officer found a new way to kill someone's pet:

Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Accepting these facts, we hold that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.

The court says that even if the cop found a cool new way to kill dogs, it's not going to hand out immunity without a fuller examination of the facts.

We acknowledge that there is no “directly on-point, binding authority” in this circuit that establishes the principle we adopt today. Booker, 855 F.3d at 543. Until now, we have never had the occasion to hold that it is unreasonable for a police officer to shoot a privately owned animal when it does not pose an immediate threat to the officer or others.

Gun down a defenseless dog and, well, have fun defending yourself in court, "on-point" precedent notwithstanding.

In Altman, we held that privately owned dogs are protected under the Fourth Amendment, and further established that the reasonableness of the seizure of a dog depends on whether the governmental interest in safety outweighs the private interest in a particular case. 330 F.3d at 203–05. Based on these broader principles alone, it would have been “manifestly apparent” to a reasonable officer in Roane’s position that shooting a privately owned dog, in the absence of any safety rationale at all, is unreasonable.

No immunity for Officer Roane. The case goes back to the trial court that failed so badly the first time around. If an officer can avoid interacting with a dog they perceive as threatening and still accomplish their objectives (i.e., arrest a suspect), then they should do so. Anything else is objectively (and subjectively) unreasonable. Roane placed himself in harm's way, ignored other officers' advice to not place himself in the dogs' play area, and killed a dog only after it had reached the end of its lead and no longer posed a threat to him. Fuck this guy. He deserves whatever the plaintiff can extract from him.

Filed Under: dog, police, qualified immunity

Appeals Court Says No Rights Were Violated When A Cop Shot At A 'Non-Threatening' Dog But Hit A Kid Instead

from the ongoing-Fifery-of-American-policing dept

The Eleventh Circuit Court of Appeals has reached a conclusion that defies easy summation. But here's an attempt: it is not well-established that cops shouldn't shoot children they've ordered to lie prone on the ground while trying to shoot a dog that posed no threat to officers.

In reversing the lower court's denial of qualified immunity to Officer Michael Vickers, the Appeals Court has opened the door to preventing the stupidest, most-inept cops from being held responsible for their careless blunders.

In this case, Vickers and other officers were pursuing a suspect through a neighborhood. This pursuit inserted them into the backyard of Amy Corbitt, where Corbitt's 10-year-old child (known only as SDC in the opinion) and five other children (two of them under the age of three) were playing. The officers entered the yard and demanded everyone present to get down on the ground, including the children. They handcuffed the only adult in the backyard (Damion Stewart) and kept the children on the ground. The officers had the scene secured as they outnumbered the prone children who were still laying on the ground with guns pointing at them.

The surprise entrance of the family dog turned this scene from merely-horrific to possibly deadly. From the decision [PDF]:

Then, “while the children were lying on the ground obeying [Vickers’s] orders . . . without necessity or any immediate threat or cause, [Vickers] discharged his firearm at the family pet named ‘Bruce’ twice.” The first shot missed, and Bruce (a dog) temporarily retreated under Corbitt’s home. No other efforts were made to restrain or subdue the dog, and no one appeared threatened by him.

Officer Vickers, presumably still shaken by the sound of his own gunfire, decided to take another shot at the dog when it reappeared and tried to approach all the people it knew, who were lying on the ground all over the backyard. There's no indication the dog even turned in Officer Vickers' direction.

Eight or ten seconds after Vickers fired the first shot, the dog reappeared and was “approaching his owners,” when Vickers fired a second shot at the dog. This shot also missed the dog, but the bullet struck SDC in the back of his right knee. At the time of the shot, SDC was “readily viewable” and resting “approximately eighteen inches from . . . Vickers, lying on the ground, face down, pursuant to the orders of [Vickers].”

Maybe this attempt to secure the scene was necessary because other officers were still trying to detain the criminal suspect…

Barnett (the fleeing suspect) “was visibly unarmed and readily compliant” with officers.

Officer Vickers claimed he was entitled to qualified immunity for shooting at a non-threatening dog and shattering a child's knee instead. In support of this, he pointed to an unpublished decision by the Eleventh Circuit saying no one has the right to be free of "accidental applications of force." The lower court disagreed. The Eleventh Circuit apparently feels there's no case law precisely on point to prevent it from rewarding Officer Vickers for his courageous stupidity in the face of non-danger.

Its explanation of this conclusion sounds like it's going the other way the whole time… right up until its conclusory sentence.

As noted above, at the time Vickers fired at the dog, SDC just happened to be playing in his own yard when, for reasons beyond his control, his yard became the scene of an arrest operation. Although we have held that SDC was already seized at the time of the shot, SDC is best described as an innocent bystander. And although the commands of the officers that SDC and the other children lie face down on the ground were actions directed at SDC and the other children, Corbitt does not claim that those actions violated SDC’s Fourth Amendment rights; rather, she claims that the action of Vickers firing at the dog and accidentally hitting SDC violated the Fourth Amendment. We hold that Vickers’s action of intentionally firing at the dog and unintentionally shooting SDC did not violate any clearly established Fourth Amendment rights.

Or, more concisely: being careless with your deployment of force doesn't violate the Constitution.

Indeed, we are unable to identify any settled Fourth Amendment principle making it obviously clear that volitional conduct which is not intended to harm an already-seized person gives rise to a Fourth Amendment violation.

There will be no holding by the court to encourage more careful deployments of force in the future.

This is not a case that so obviously violates the Fourth Amendment that prior case law is unnecessary to hold Vickers individually liable for his conduct. To find otherwise would require us to conclude that no reasonable officer would have fired his gun at the dog under the circumstances. This we are unable to do.

What do you mean by "we," asks Judge Wilson's dissent:

The majority accurately points out that qualified immunity protects “all but the plainly incompetent.” Maj. Op. at 10 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers. Therefore, I dissent.

As the dissent points out, there was nothing "reasonable" about Officer Vickers' actions, especially when it's apparent from the allegations no one BUT Vickers felt compelled to shoot at the non-threatening dog.

Consider the present facts and circumstances: officers arrived at a home and found the subject of their search. At gunpoint, the officers ordered the suspect and all persons in the area—including six children—to the ground. Everyone complied. A nonthreatening family pet was present on the scene; there is nothing to suggest that this pet acted with hostility or threatened the safety of anyone— including the officers. With all the children and the suspect still lying on the ground pursuant to the officers’ commands, Officer Vickers shot at the family pet. He missed. He waited. He shot again. He missed again, instead striking a child who had been—at all times—lying within arm’s reach of the officer.

This conduct—discharging a lethal weapon at a nonthreatening pet that was surrounded by children —is plainly unreasonable.

If the question is "reasonableness" of the actions taken, Officer Vickers fails the test every step of the way.

No reasonable officer would engage in such recklessness and no reasonable officer would think such recklessness was lawful.

Unfortunately, the majority felt the impact of denying qualified immunity would be too much for the occupation of law enforcement to bear. If officers are forced to consider the implications of their violent actions, they might… I don't know… commit fewer acts of violence. Spun into blueness, this would be misconstrued to mean second-guessing themselves in life or death situations. That's extrapolation from facts not in evidence. Nothing here was a threat. But Officer Vickers fired until he hit something anyway. That it happened to be a child rather than the family pet is horrifying, but the truth is, Vickers never should have opened fire at all. But he's free to make the same harmful mistakes again and again, as are all his blue brethren in the 11th Circuit.

Filed Under: 11th circuit, amy corbitt, dog, kids, michael vickers, police, qualified immunity, shooting

YouTuber Who Trained His Girlfriend's Dog To Be A Nazi Facing Hate Crime Charges In Scotland

from the there's-nothing-not-ridiculous-about-that-headline dept

Across the sea in the UK, offensive speech is still getting people jailed. An obnoxious person who trained his girlfriend's dog to perform the Nazi salute and respond excitedly to the phrase "gas the Jews" is looking at possible jail time after posting these exploits to YouTube under the name Count Dankula. According to Scotland resident Markus Meechan, it was the "least cute" thing he could train his girlfriend's dog to do, apparently in response to her constant gushing about the dog's cuteness.

Meechan's video racked up 3 million views on YouTube, but it really didn't start making news until local police started paying attention.

That April, soon after the video was posted, police knocked on Meechan’s door in Coatbridge, a town in North Lanarkshire, Scotland, he told Alex Jones. The officers told him that he was being charged with a hate crime and that the video could be seen as promoting violence against Jews. They told him to change his clothes, took pictures of his apartment and hauled him off to jail.

There's is no doubt the video is offensive. But offended people have plenty of options to counter Meechan's speech with their own. Unfortunately, the 2003 law being used against him has ensured this counterspeech is solely taking the form of testimony against Meechan.

During the trial, Ephraim Borowski, director of the Scottish Council of Jewish Communities, who lost family members during the Holocaust, said the video was “grossly offensive. It stuns me that anyone should think it is a joke," he said, according to The Times.

"My immediate reaction is that there is a clear distinction to be made between an off-hand remark and the amount of effort that is required to train a dog like that. I actually feel sorry for the dog.”

Meechan says he has no hate for Jews and did it solely to annoy his girlfriend. It was recorded, which means it was meant to entertain YouTube users, some of which likely viewed the video as generally supportive of gassing Jews (which may have helpfully aligned with their own views on the subject). But speech can be offensive without being a hate crime, and the general criminalization of offensive subject matter isn't doing much to curb actual racially-motivated criminal activity. All it's really doing is ensuring UK courts receive a steady stream of defendants who've done nothing more dangerous than publicly display their questionable opinions and terrible senses of humor.

The YouTuber is now facing a year in prison because an unfunny prank came to the attention of local police. Prosecutors are busy trying to prove intent, which should be an uphill battle. Meechan has already issued a public apology, as well as a follow-up video further distancing his distasteful prank from any support for anti-Semitism. Nevertheless, prosecutors are alleging the sole reason for the recording was to cause fear and stir up hatred. That really doesn't seem to be the case despite several bigots deciding the video's release meant they should inundate the local Jewish community council with hateful messages.

Laws enforced in this fashion don't instill a greater respect for rule of law or those who craft bad laws with good intentions. Fifteen years have passed since this law took effect and it's certainly hasn't shown much return on investment. Instead of stomping out hate, it's being used to carve holes in speech protections, ensuring the merely offensive will be given the same punishments as those who actually incite hatred and violent acts.

Filed Under: dog, hate speech, markus meechan, nazi salute, scotland, uk, viral video

Woman Sues After Police Destroy Her Home During 10-Hour Standoff With The Family Dog

from the we're-unfamiliar-with-this-home-entry-device-you-call-a-'key' dept

When the only thing standing between law enforcement and a suspect they're seeking is a person's home, well… the home's got to go.

As seen previously here at Techdirt, police officers pretty much razed a residence to the ground searching for a shoplifting suspect. In another case, law enforcement spent nineteen hours engaged in a tense standoff with an empty residence before deciding to send in a battering ram.

Another standoff -- currently the center of a federal lawsuit -- stands somewhere in between these two cases. The house wasn't completely empty or completely destroyed. But that still doesn't make the Caldwell (ID) police look any more heroic… or any less destructive.

The lawsuit's [PDF] opening paragraph lays it all out.

On August 11, 2014, after registering her child for first grade, Ms. West returned to her home to find multiple City of Caldwell police officers in her yard searching for a Fabian Salinas. Wanting to cooperate, and uncertain whether Salinas was in her house, Ms. West gave the police a key to her house and gave them permission to use it to enter her house to arrest him. During a ten hour long standoff, police repeatedly exceeded the authority Ms. West had given them, breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas destroying most of Ms. West and her children’s personal belongings. The only occupant of the house was Ms. West’s dog. Ms. West’s home remained uninhabitable for two months.

Here's one photo of the home, taken by officers and provided to the Idaho Statesman in response to a public records request. (More photos can be found at the link.)

If you'd like to see some pictures of the standoff with the family pet that include the Caldwell Police's impressive armored personnel carrier (presumably able to withstand even the nastiest of dog bites), those can be found here.

According to Courthouse News Service's interview with Shariz West's lawyer, the documentation he's viewed gives no explanation why it took a small army of SWAT officers 10 hours to discover the suspect wasn't in the home.

"I have no idea," he said. "I've read the police reports and debriefing, and it's my recollection that someone heard a deadbolt activate, which was impossible, and saw the curtains move, which is possible because there was a pit bull in the house at the time. Basically, they had a standoff with a dog."

And that some remedial attic-traversing training might be in order.

Fisher said some of the damage to the house was caused when an officer slipped off a truss while crawling in the attic and fell through the ceiling.

So, when given a key and consent from the occupant, officers instead chose to grab an armored vehicle and go through several windows and the attic. Even if they believed the suspect might be dangerous, there has to be some middle ground between full-scale assault and simply unlocking the door and stepping inside.

This happened back in 2014 but there's been no coverage of the Caldwell cops' 10-hour, one-dog standoff until now. Thomas Johnson of Fault Lines suggests that might have something to do with the local paper of record.

If you’re wondering why it took a couple of years for this event to make news outside of Idaho, it’s because the local paper apparently only checks court records or their exclusive police source, resulting in some very incomplete reporting. Why bother getting out there and talking to the homeowner or neighbors when you can sit on your chunk?

The "coverage" Johnson points to opens with some severe law enforcement spin:

A man who escaped a police standoff last August in Caldwell, only to be captured in Meridian about a week later, pleaded guilty in 3rd District Court to felony eluding and felony rioting.

That's a pretty generous depiction of what actually happened. From all appearances, the suspect was never in the home during the 10-hour standoff. And when someone's not actually where you think they are, it's a huge stretch to refer to their non-presence as an "escape." If that's the spin the PD's using, they can just claim any person with an outstanding warrant not found at Shariz West's home on that long day in August 2014 also "escaped" the same standoff.

In any event, the city and PD are now facing a lawsuit. The police did give her a three-week stay in a hotel. Too bad it took more than two months for her to be able to return to her residence. This raid on a house containing nothing more than a dog is the natural side effect of police militarization, which encourages law enforcement to escalate in questionable situations, rather than use more measured tactics to ensure occupants aren't deprived of a place to live simply because a suspect might be hiding somewhere behind closed doors.

Filed Under: dog, police, standoff

DailyDirt: Are You Smarter Than A Dolphin?

from the urls-we-dig-up dept

We may think we're pretty smart, but animals like dolphins are pretty smart too. For over 30 years, scientists have been trying to determine how smart dolphins really are. Bottlenose dolphins have a brain-to-body-weight ratio that is only second to humans, and they also have a very complex neocortex, the part of the brain that is responsible for traits typically associated with human intelligence, such as problem-solving and self-awareness. Researchers have even found that dolphins have von Economo neurons, which are associated with emotions, social cognition, and the ability to sense what others are thinking. Besides dolphins, people may be underestimating the intelligence of animals in general. Here are just a few links related to animal smarts.

• Recently, divers off the coast of Kona in Hawaii caught video footage of a bottlenose dolphin asking a human for help to get out of a tangle of fishing lines. The dolphin swam up to one diver as he gestured with his hand for it to come closer. The diver removed a fishing hook out of the dolphin's left pectoral fin, and at one point the dolphin had to surface for air, but it went back so that the diver could finish untangling it. [url]
• Dog owners can now figure out just how smart their dogs are with Dognition. It's a web app that lets dog owners record the results of their experiments, which involve playing games with their dogs designed to assess five dimensions of intelligence (empathy, communication, cunning, memory, and reasoning). The data collected from the Dognition project could help scientists better understand the way dogs think and behave. [url]
• Dogs are able to subtly alter the timing, pitch, and amplitude of their barks to produce a variety of sounds that could have different meanings. While humans may have trouble distinguishing between a "food growl" and a "stranger growl," studies have shown that dogs can recognize the meaning of particular barks and growls of other dogs. [url]
• Here are eight other animals that show notable signs of intelligence: Chimpanzees have DNA that is more than 98% identical to human DNA; elephants exhibit self-awareness; cephalopods are curious and have the ability to learn and use tools; crows are crafty; squirrels can be deceptive; dogs can understand people's intentions; cats are extremely adaptable; and pigs can distinguish between familiar scribbles on a screen and ones that they have never seen before. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: animal intelligence, animals, brains, cat, cephalopod, chimpanzee, crow, dog, dognition, dolphin, elephant, intelligence, pig, smart animals, squirrel

DailyDirt: Talking Animals Are Real

from the urls-we-dig-up dept

Parrots are well-known as non-human animals that can speak our language with some degree of intelligence, but there are a few other examples of animals that can perform similar feats. So far, the vocalizations of these animals are a bit difficult to understand, but it's clear that there are some non-human species that want to imitate us. Before anyone else says it... I, for one, welcome our new _____ overlords.

• An Asian elephant named Koshik can say five Korean words -- "annyong" ("hello"), "anja" ("sit down"), "aniya" ("no"), "nuo" ("lie down") and "choah" ("good"). This 22-year-old male elephant was born in captivity, and this may be the first time researchers have heard an elephant use its trunk to modify its vocalizations. [url]
• Some dog owners have trained their dogs to speak short English words and phrases. In a few more (hundred) generations of human-directed breeding, maybe we'll have dogs that are fluent in human languages. [url]
• Hoover the seal was famous for being the first non-human mammal to speak recognizable English words. He lived at the New England Aquarium and spoke with a thick Bostonian accent.... [url]
• Beluga whales are sometimes referred to as "sea canaries" because they're so vocal, but now there's recorded evidence that at least one of these creatures can mimic human speech. A beluga whale in captivity didn't actually say anything recognizable, but it made sounds in an audible range of normal human speech -- which is much lower than usual whale noises. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: beluga whale, biology, dog, elephant, intelligence, parrot, seal, smart animals, talking animals, vocalization