On June 17, 2022, the Sixth Circuit Court of Appeals decided White v. City of Detroit[i], in which the court considered whether an officer violated the Fourth Amendment when she shot and killed a pit-bull that was attacking her police canine. The relevant facts of White are as follows:
In the early afternoon of August 3, 2020, Detroit police officers apprehended a fleeing suspect who had run across several yards. One of those yards belonged to Rosemary White. Believing that the suspect had disposed of a weapon nearby, officers called in a canine unit to search for it.
Bodycam and security camera footage captured the events that followed. Officer Shirlene Cherry arrived at the scene with her trained canine, Roky. The White family had two dogs outside, Chino, a pit bull, and Twix, a Yorkie Terrier. Officer Cherry asked White’s daughter, Mi-Chol, to secure the dogs during the search for the weapon. Mi-Chol grabbed Chino to put him inside their home, but he escaped and ran to the front yard. Mi-Chol went inside to grab a leash. With Chino still roaming the fenced-in yard, Officer Cherry decided to take Roky to a neighboring yard to search there first. They walked along the perimeter of the wrought-iron fence toward the next yard while Chino followed them from the other side of the fence.
Then the unexpected happened. As Officer Cherry and Roky reached the corner of the yard, Chino lurched through the fence’s vertical spires and bit down on Roky’s snout. Roky yelped. Cherry turned and saw Roky trapped up against the fence with his nose in Chino’s mouth. Cherry tugged at Roky’s leash and yelled at Chino to “let go.” R.38-3 at 3. Nothing changed. Chino began “thrashing,” “swaying back and forth in an effort to tear” what he was holding. R. 38-4 at 7. Unable to free Roky and afraid for the dog’s life, Cherry unholstered her gun and shot Chino once. Six seconds passed between Chino’s attack and Cherry’s shot. After the shot, Chino released the now-bloodied Roky. Chino died from the shot.[ii]
The White’s sued Officer Cherry for violating their rights under the Fourth Amendment by unreasonably seizing Chino by shooting him. They sued the City for failing to train officers on how to handle this type of situation. The officer and the city filed a motion for summary judgment and the district court granted the motion, dismissing the suit. The White’s appealed to the Sixth Circuit Court of Appeals. [Note: The White’s also filed state law claims but the district court dismissed those claims so they could be heard in state court. They are not discussed in this article.]
The issue on appeal was whether Officer Cherry violated the White’s rights under the Fourth Amendment when she shot and killed their dog, Chino, as he was attacking Roky, her police canine.
The court first noted that qualified immunity protects the officer from suit in this situation unless the White’s can establish (1) that Officer Cherry violated the Fourth Amendment, and (2) that the law was clearly established such that another reasonable officer in the same situation would have known shooting Chino was a violation of the Fourth Amendment. The court first set out to determine if Officer Cherry violated the Fourth Amendment.
The court next examined the legal principles that apply in this case. First, the Fourth Amendment “protects the ‘people’ and their ‘effects’.”[iii] The court then stated that as “unsentimental” as it may sound, dogs are considered “effects,” or in other words, property, under the Fourth Amendment.[iv]
Second, the court stated that they must
[B]alance the nature and quality of the” Fourth Amendment intrusion “against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983).[v]
In other words, the court must weigh the nature of the intrusion on the White’s (killing Chino) against the benefit to the government of the seizure (saving the police canine).
Third, the court stated
Shooting a pet, while always unfortunate, is not always unreasonable. An officer may reasonably use lethal force against a pet that poses an “imminent threat.” Brown, 844 F.3d at [**4] 568. The perceived likelihood, nature, and severity of the threat inform this analysis. See id. at 568-70; Richards v. City of Jackson, 788 F. App’x 324, 333-35 (6th Cir. 2019). In gauging that threat, we remain mindful that police officers frequently “make split-second judgments” about their use of force in “tense, uncertain, and rapidly evolving” circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). All of this prompts us to look at the confrontation through the lens of a “reasonable officer on the scene,” not sanitized judicial hindsight. Id. at 396; see also Brown, 844 F.3d at 567-68.[vi]
The court then examined the facts of the case in light of the legal principles discussed above. First, when Officer Cherry realized that Chino and another dog were in the fenced yard where she and her canine needed to conduct an article search for a gun, she asked the homeowners, the Whites, to put their dogs in the house. Chino escaped her owner’s grasp and continued to run around the yard. Officer Cherry then decided to search the neighboring yard first and began walking near the White’s fence in the neighbors yard.
Second, after Chino reached through the fence and bit Roky, the police canine on the snout, Officer Cherry pulled on Roky’s leash and yelled “let go” to try to make Chino release his bite on Roky’s snout. Chino did not release his bite. Rather, he began to thrash back and forth, which indicated he had a strong grip on Roky.
Third, at this point, Officer Cherry drew her firearm and shot Chino once, killing him. This occurred six seconds after Chino bit Roky.
The court stated,
Officer Cherry acted reasonably at every turn. The threat had imminence written all over it. Cherry immediately and sensibly reacted to Roky’s yelp and its cause, a pit bull’s clenched-down grip on his nose. The threat also appeared severe and unrelenting. Within seconds, as the video footage confirms, Chino began “thrashing” back and forth, pivoting solely on Roky’s hapless snout. R.38-4 at 7. Thrashing of this sort, as the record and common sense confirm, means a dog has “a good hold of something.” Id. Officer Cherry fairly believed that Roky faced serious, if not deadly, consequences if she did not act.[vii]
The court also discussed alternatives that were available to Officer Cherry. First, she could have used her hands to try to free Roky from Chino’s bite. Second, she could have used her Taser to attempt to free Roky from Chino’s bite. However, the court noted that while these may seem like alternatives in the peace of a judge’s chambers, that does not mean that the Fourth Amendment required the officer to attempt those alternatives. Specifically, the court stated
Only the ignorant peace of a judge’s chamber would prompt the passing thought that the officer should use her hands to remove the one dog from the other. That of course would replace one hazard with another, and in the process insert the officer, never a judge, into harm’s path. Officer Cherry, it is true, had a taser, and perhaps a taser might have spared Roky and Chino. But Officer Cherry believed that the taser would serve only as a “muscle stimulant” and further “lock [Chino’s] jaw,” leaving Roky in continuing peril. R.38-4 at 7. Maybe; maybe not. But there were enough maybes in this unnerving situation to permit Officer Cherry to respond to these “tense, uncertain, and rapidly evolving” circumstances, Graham, 490 U.S. at 397, with decisive action that increased the likelihood of saving Roky: shooting the source of the peril. Shooting an attacking dog to save a behaving police dog is not unreasonable.[viii]
The White’s raised several arguments in support of their contention that it was not reasonable under the Fourth Amendment to shoot Chino.
First, the White’s argued that Chino’s bite on Roky’s snout was not a deadly threat to Roky, but rather was more akin to “active aggression,” such that deadly force would not be a reasonable use of force option. The court responded this this argument and stated
[W]e assess the nature of the threat at the time of the incident, not after the fact of it. Mullins v. Cyranek, 805 F.3d 760, 766-67 (6th Cir. 2015). This pit bull’s clamped bite and thrashing behavior leave no doubt about the seriousness of this threat. Cherry reasonably feared that Roky faced more severe and perhaps deadly harm—say a snapped neck—the longer Chino clenched down and thrashed. Delay sometimes looks good in hindsight, sometimes not. The Fourth Amendment does not require officers to wait for the answer before they act.[ix]
In other words, the court was stating that Officer Cherry was allowed to act on the threat as it appeared at the moment it was occurring, in tense, rapidly evolving circumstances. Looking at the relatively minor injury after the incident is finished, is not the correct way to conduct a Fourth Amendment analysis.
Second, the White’s argued that Officer Cherry “immediately” shot Chino. However, the video evidence showed that she waited six seconds prior to shooting Chino. In that time, Officer Cherry pulled on the leash several times and yelled for Chino to “let go.” The court then stated
Six seconds elapsed from Chino’s bite before Cherry fired her gun. Fast though this seems, it is precisely the kind of imminent harm that officers too often face and must have firm resolve to address promptly. See Scott v. Harris, 550 U.S. 372, 383-85, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Graham, 490 U.S. at 397.[x]
Third, the White’s argued that Officer Cherry should have walked Roky further away from the fence. While, in hindsight, this was a great idea, the court stated
[T]he assumption that a fence will not operate like a fence requires a level of vigilance and a form of risk avoidance that the Fourth Amendment simply does not regulate. To repeat, to repeat again, the question at hand is whether the officer behaved reasonably at the time of the encounter, “not whether it was reasonable for the police to create the circumstances.” Livermore ex rel. Rohm v. [**6] Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (quotation omitted). The question is not whether the officer, the past considered, acted in the best way possible. Brown, 844 F.3d at 572.[xi]
Thus, the Fourth Amendment analysis does not require the court to consider hindsight nor does it require the officer to act in the “best way possible;” rather, the officer must act reasonably.
Fourth, the White’s argued that there is a different standard for use of force for police canine safety than there is for officer safety. In other words, a shooting that would be reasonable to protect a police officer may not be reasonable to protect a police canine. The court responded and stated
There is not a lot of law about the Fourth Amendment and dogs.” Hardrick v. City of Detroit, 876 F.3d 238, 246 (6th Cir. 2017). Even so, no court to our knowledge has held that the Fourth Amendment requires officers to stand down when another animal threatens to harm severely (and perhaps kill) a police dog. Sure, “the safety of Officers is more important than the safety of police dogs,” as the Whites point out. Appellant’s Br. 36. But that does not remove the officer’s interest in protecting a police dog from the balance sheet. Police dogs have become an essential component of law enforcement. . . While police dogs may not “solve all our problems,” no one can deny that they “protect and help keep alive the officers we pay to catch those dangerous criminals who violate our laws.” Chew v. Gates, 27 F.3d 1432, 1475 (9th Cir. 1994) (Trott, J., concurring in part). Whether considered a member of the police force or merely police property, these dogs serve a much-valued public interest. Consistent with that interest, federal and state laws alike impose enhanced penalties for those who harm police dogs. See 18 U.S.C. § 1368; Mich. Comp. Laws § 750.50c.[xii]
Lastly, the White’s argued that strong state interest in protecting police canines does “not dignify the lift of their dog.”[xiii] The court agreed that family pets are far more significant in a person’s life than other “effects” (property) such as furniture, as the emotional attachment to a pet is strong. However, the court stated
The problem in this case is not the law’s lack of appreciation for the Whites’ love of their dog. It is that the lives of two dogs were at risk. Officer Cherry permissibly considered that reality in killing one and saving the other.[xiv]
Thus, the court of appeals held that Officer Cherry did not violate the Fourth Amendment when she shot and killed Chino, who was attacking her police canine. As such the White’s failed to meeting the first prong of the qualified immunity analysis by establishing a Fourth Amendment violation. Therefore, the court of appeals affirmed the district court’s grant of summary judgment for Officer Cherry.
The court also affirmed the district court’s grant of summary judgment for the City of Detroit, as there was not an underlying constitutional violation to support the White’s claim that the city failed to train it’s officer on how to handle situations such as those involved in this case.
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Citations
[i] No. 21-1746 (6th Cir. Decided June 17, 2022)
[ii] Id. at 2-3
[iii] Id. at 4
[iv] Id.
[v] Id.
[vi] Id. at 5 (emphasis added)
[vii] Id. at 5-6
[viii] Id. at 6-7 (emphasis added)
[ix] Id. at 7
[x] Id. at 8
[xi] Id. at 8-9 (emphasis added)
[xii] Id. at 9-10 (emphasis added)
[xiii] Id. at 10
[xiv] Id. at 11
