Police shootings of dogs spark Fourth Amendment lawsuits, challenges to qualified immunity
An estimated 10,000 dogs are fatally shot by U.S. law enforcement officers each year, according to the Department of Justice. Photo from Shutterstock.
In September 2022, a Detroit police officer and K-9 unit dog jumped over the gate of Tiffany Lindsay’s backyard while chasing a carjacking suspect.
The officer looked in Lindsay’s doghouse, waking up her dog, Jack, who lunged at the K-9 unit dog and police officer, biting both. The officer smacked Jack with his flashlight several times before fatally shooting the dog. Jack’s body later was found in a neighbor’s trash can, according to a lawsuit Lindsay filed in federal court against the city of Detroit and the police officer involved. The complaint states the officer’s acts were unreasonable because Lindsay was not a suspect and there was no warrant to enter the property or seize her dog.
Jack is one of an estimated 10,000 dogs fatally shot by U.S. law enforcement officers each year, according to the Department of Justice.
“Those numbers are probably conservative,” says Chris Green, executive director of the Animal Legal Defense Fund. “When you consider that there’s 18,000 police forces across the United States, even if each one of them shot one dog per year, you’d be at 18,000.”
Some incidents result in lawsuits citing Fourth Amendment violations, including unreasonable search and seizure, and challenge the officer’s immunity. Some generate settlements of more than $1 million.
Best friend or legal property?
Legally, dogs are considered property. “Basically, (the courts) don’t treat pets any differently than if the officer damaged your front door by entering it with a warrant,” says Stephen A. Salzburg, a professor at George Washington Law.
Some state courts, such as in Alaska and New York, have considered requests for relief, including the owner’s emotional distress. Other states limit compensation to the dog’s market value, “which is typically virtually nothing,” says Delcianna Winders, an associate professor of law and the director of the Animal Law and Policy Institute at the Vermont Law and Graduate School. “If you’ve got a purebred dog, it might be a couple thousand dollars.”
Many decisions are based on outdated state laws, says Green, an ABA member and the 2022 recipient of the Tort Trial and Insurance Practice Section’s Animal Law Committee’s Excellence in the Advancement of Animal Law Award. “You’ve literally had about a half a dozen major appellate court decisions that were justifying denying damages to a family based on earlier opinions from the late 1800s.”
Because police shootings involve government action, federal cases can be filed under 42 U.S. Code Section 1983, unlawful seizure and deprivation of property. “You bypass all that antiquated state common law and go straight to a federal court where juries can consider damages,” Green says.
These types of lawsuits follow San Jose Charter of Hells Angels v San Jose, a 2005 case considered the first time a court ruled that killing a dog is an unlawful seizure. That suit, stemming from officers killing a rottweiler and two bullmastiffs during the search of the Hell’s Angels clubhouse and several members’ houses, resulted in more than $2 million in settled claims.
“The Fourth Amendment forbids the killing of a person’s dog or the destruction of a person’s property when that destruction is unnecessary—i.e., when less intrusive, or less destructive, alternatives exist,” the opinion says. “We have recognized that dogs are more than just a personal effect. … The emotional attachment to a family’s dog is not comparable to a possessory interest in furniture.”
Use of deadly force on dogs
When John Thompson, executive vice president of the Small and Rural Enforcement Executive Association, started his career in law enforcement in the 1970s, “we were taught you could just eliminate the dog,” he says. “If a dog came at you, you just shot it. It was an acceptable practice.”
Police use similar logic to shoot a dog as they do to shoot people—when there is legitimate reason to use force, the perception of a threat, “or the perception of threat where none exists,” says Martha Smith-Blackmore, a Boston-based forensic veterinarian, “which unfortunately is the most common reason.”
Bigger, more muscular dogs are often viewed as more dangerous. “There’s prejudice against pit bulls,” says Winders, a vice chair of the ABA’s Animal Law Committee in the Torts Trial & Insurance Practice division. “And courts are sometimes more willing to say that that was appropriate because of the breed of the dog.”
These cases question the law enforcement officer’s qualified immunity, just as in cases where officers shoot people.
In 2008, in Viilo v Eyre, the 7th U.S. Circuit Court of Appeals concluded that “the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger, and the use of force is unavoidable.”
“It’s a multi-factor test,” Winders says. “Was the animal at large or were they under control? Was there time to find an alternative method to controlling the animal? Was the officer in danger?”
Video evidence can support cases. “It could be really helpful in answering important questions: Was the dog confined? Or were they wagging their tail?” Winders adds. “Most often, it’s going to be the owner of the dog’s word against the officer’s word, which makes it tricky.”
Necropsies, or animal autopsies, also provide clues. “It’s a matter examining the remains to show if the dog was shot was running away,” says Smith-Blackmore, who has served as an expert witness.
Sometimes the shooting is justified, says Thompson, if an officer has been bitten or the dog is known to be violent.
Receiving qualified immunity depends on whether there was immediate danger and the officer’s actions were reasonable and unavoidable, Winders says, and it is granted more often than not.
Cases that go before a judge and jury often settle. Juries are inclined to be sympathetic to the dog owner who had their dog shot by an officer in their own home, Winders says. “Part of the motivation for settling is that punitive damages can be available.”
Consequences for officers vary, depending on local laws, regulations and agency policies. The Austin Police Department, for example, requires an investigation but employees are not mandated to be placed on restricted duty.
The National Sheriffs’ Association guidelines include prioritizing the officer and individuals on the scene over the lives of the animals, using the least force necessary and deadly force when others are at risk.
Federal and some state laws permit officers to be criminally prosecuted for shooting a dog, Winders says, though she is not aware of any cases.
Putting a price on life
In cases that make it before a judge, how is a dollar amount determined for the pain and suffering for the loss of a dog killed by a police officer?
“It’s basically impossible,” Winders says.
In 2019, Angela Zorich received a $750,000 settlement from St. Louis County, Missouri, after her 4-year-old pit bull Kiya, was shot by a SWAT team during a no-knock raid over an unpaid gas bill.
Photos show bullet holes and blood two feet from the front door, proving Kiya was laying still and not an active threat, says Dan Kolde, Zorich’s attorney based in St. Louis. “And this cop immediately unloads an automatic rifle into Kiya, killing her,” he adds.
The case went to a jury trial, says Kolde, a member of the ABA Solo, Small Firm and General Practice Division. As the judge was about to call for closing arguments, the county requested a settlement, Kolde says.
Kolde and his client reviewed a similar case in Commerce City, Colorado, which settled for $262,000. “We kind of just said, ‘Well, why don’t we just triple that?’”
The county agreed.
While some cases receive large payouts, many fail, says Salzburg. “It may be reasonable to take action,” he says. “They don’t know whether the dog has been vaccinated for rabies.”
In 2020, the ABA House of Delegates passed a resolution urging the creation of laws and policies demanding training for law enforcement on reasonable use of force during encounters with animals.
“Before they go to execute a warrant, they should think about if there are dogs on site. Can we come with snare poles and other nonlethal methods of addressing the situation? Maybe bring animal control with them?” Winders says.
Police need to understand animal body language, says Shalimar Oliver, animal crimes case manager at the Humane Society of the United States who conducts trainings for law enforcement. “It’s so crucial to recognize to know how to identify what the dog is saying to you.”
Tiffany Lindsay’s case against the city of Detroit and the police officer for killing her dog is pending.
Updated on Oct. 27 to correct the spelling of Humane Society of the United States.
