||TENTH CIRCUIT AFFIRMS IMMUNITY FOR OFFICER WHO SHOT DOG

TENTH CIRCUIT AFFIRMS IMMUNITY FOR OFFICER WHO SHOT DOG

On March 13, 2018, the Tenth Circuit Court of Appeals decided Kendall v. Olsen et al.[i], in which the court discussed whether an officer violated the Fourth Amendment when he shot a dog in the plaintiff’s backyard while searching for a missing child. The relevant facts of Kendall, taken directly from the case, are as follows:

In June 2014, Officer Olsen, Lieutenant Purvis and other members of the Salt Lake City Police Department responded to a call reporting that a three-year-old child was missing from his home. After officers searched the home and failed to find the boy, Lieutenant Purvis ordered Olsen and others to canvass the residential neighborhood for him, instructing them to search visually anywhere the child might have reached because the child could not communicate verbally. By this time, the child had been missing approximately one hour. Olsen and his fellow officers knew that time was of the essence in searching for missing children, with the likelihood of positive outcomes decreasing significantly after the first hour.

Olsen teamed with another officer to go house-to-house, knocking on doors and searching yards for the missing boy. Kendall’s residence was approximately 10 houses from the boy’s residence. When they reached it, the other officer knocked on the front door while Olsen walked up the driveway to visually check the fenced backyard. Olsen entered the yard through an unlocked gate and briefly checked the areas that had not been visible from over the gate. As he turned to leave, Kendall’s dog, Geist, a 90-pound Weimaraner, appeared from behind a shed and began barking at Olsen. It is undisputed that Geist was 20-25 feet from Olsen when Olsen first saw him. Olsen testified at his deposition that the dog then charged him, barking and growling with ears back and teeth bared. Olsen testified that he started to run towards the gate but then stood his ground when he realized he would not reach it in time. He further testified that when Geist continued to charge him aggressively, he drew his service weapon and shot and killed the dog a few feet from him. No one witnessed Olsen’s confrontation with Geist. Kendall does not dispute that Geist barked loudly at Olsen and chased him when he ran, but otherwise disputes that Geist acted as Olsen described, based on his evidence that Geist was a friendly, non-aggressive dog who had never behaved in this manner. Shortly after Olsen shot Geist, the missing boy was found asleep in the basement of his home.[ii]

Kendall sued the officer, his lieutenant, and the city for violating his rights under the Fourth Amendment when the officer seized his dog by shooting it; he also sued under state law.  The defendants filed a motion for summary judgment and the district court granted the officer motion for qualified immunity. Because the officer was not liable, the lieutenant and the city were also granted summary judgment.  The case was remanded to state court for resolution of the state law claims.  Kendall appealed to the Tenth Circuit Court of Appeals.

The issue before the court of appeals was whether the officer was entitled to qualified immunity on the Fourth Amendment claim.

The court first stated that officers who are performing discretionary acts are entitled to qualified immunity from suit as long as they did not violate clearly established law such that another reasonable officer in the same situation would have known he was violating the law.  When a defendant asserts qualified immunity, the burden shifts to the plaintiff to show (1) that the officer did in fact violate a constitutional or federally protected right, and (2) that the law was clearly established at the time of the violation such that the officer had fair warning that his conduct was unlawful.

The court next set out to determine whether the plaintiff met the first prong required to defeat qualified immunity, particularly whether the officer violated Kendall’s rights under the Fourth Amendment.  This analysis involves determining if the entry and search of Kendall’s backyard was reasonable under the Fourth Amendment.  The court articulated the guiding legal principles as follows:

Searches without a warrant are presumptively unreasonable and therefore violate the Fourth Amendment subject to certain exceptions. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). One such exception is when “the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Id. (internal quotation marks omitted). We use a two-part test to assess whether such exigent circumstances exist: (1) Did “the officers have an objectively reasonable basis to believe there [was] an immediate need to protect the lives or safety of themselves or others”? And (2) was “the manner and scope of the search . . . reasonable”? United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). “We evaluate whether a reasonable belief existed based on the realities of the situation presented by the record from the viewpoint of prudent, cautious, and trained officers.” United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008) (internal quotation marks omitted). “Reasonable belief does not require absolute certainty; the standard is more lenient than the probable cause standard.” McInerney v. King, 791 F.3d 1224, 1232 (10th Cir. 2015) (internal quotation marks omitted).[iii] [emphasis added]

The court then stated that the entry into and search of Kendall’s backyard was “clearly reasonable” in this case.  The court considered the first element of the test above, particularly, whether the officer had a reasonable belief there was an immediate need to protect lives or safety.  Here, there was a missing three-year-old child, the search of the child’s home did not initially reveal the child, the child was at significant risk because of his young age and lack of ability to communicate, and the chance of finding the child will diminish with time.  Additionally, Kendall’s backyard was within the distance that the child could have traveled in the time that he was missing.

The court also examined the second element related to exigent circumstances, particularly whether the manner and scope of the search of Kendall’s backyard was reasonable.  As stated above, the backyard was within the distance the child could have walked; additionally, the unlocked gate could have been opened the opened by a three year old.  Further, the search was brief (90 seconds) and limited to areas that the officer could not see from the gate.  Therefore, the court held that the entry and search of Kendall’s backyard was reasonable under the Fourth Amendment.

The court next set out to determine if the seizure of Kendall’s dog by shooting it violated the Fourth Amendment, or stated another way, did the officer act reasonable under the Fourth Amendment when he shot Kendall’s dog.   The court first noted

It is clearly established in this circuit and elsewhere that the killing of a pet dog by a law enforcement officer is a seizure that violates the owner’s Fourth Amendment rights “absent a warrant or circumstances justifying an exception to the warrant requirement.” Mayfield v. Bethards, 826 F.3d 1252, 1256 (10th Cir. 2016); see id. at 1259 (noting that seven federal circuit courts have found the killing of a pet dog is a seizure within the meaning of the Fourth Amendment). One recognized exception to the warrant requirement is when exigent circumstances justify the seizure. See United States v. Place, 462 U.S. 696, 701 (1983).[iv]

The officer argued that exigent circumstances existed to shoot the dog because a reasonable officer in his position would have believed the dog posed an imminent danger to him in the backyard.  The court noted that the officer and Kendall offer different versions of events as to the actions of the dog before he was shot.  However, the court stated

Even under Kendall’s version of the facts, however, Geist, a large dog, appeared suddenly approximately 20-25 feet from Olsen, barking loudly, and then ran at Olsen when the officer started to run from him. Under these circumstances, Olsen would have had only a few seconds to react to the rapidly approaching dog. Under these circumstances, an officer could reasonably believe that Geist posed an imminent threat to his safety.[v]

Kendall argued that the officer was mistaken in his belief that the dog was threatening him and even if the officer had a reasonable belief the dog was a threat, shooting him was still unreasonable because the officer had less lethal weapons such as a Taser and a baton.    To this argument, the court noted that the officer had to make a split-second decision in a tense, rapidly evolving situation and even if he had less lethal weapons, that fact did not render his use of his firearm unreasonable under the Fourth Amendment.  Specifically, the court stated

[T]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). While Olsen perhaps could have reacted differently, we cannot say that his split-second decision to use lethal force was objectively unreasonable. See id. at 396 (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”).[vi] [emphasis added]

Therefore, the court held because Kendall was unable to show that the officer violated his rights under the Fourth Amendment, he failed to meet the first prong required to defeat qualified immunity.  As such, the court affirmed the grant of qualified immunity for the officer in this case.

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CITATIONS:

[i] No. 17-4039 (10th Cir. Decided March 13, 2018)

[ii] Id. at 2-3

[iii] Id. at 5

[iv] Id. at 7-8

[v] Id. at 8

[vi] Id. at 8-9

By |2018-09-11T18:35:11+00:00September 11th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.