Fourth Amendment

Officer who shot service dogs not entitled to qualified immunity, 8th Circuit says

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A federal appeals court ruled Monday that a Minneapolis police officer was not entitled to qualified immunity in a lawsuit alleging that his shooting of two service dogs violated the constitutional rights of their owners.

The 8th U.S. Circuit Court of Appeals at St. Louis ruled for Jennifer LeMay and Courtney Livingston, whose 5-year-old pit bulls Ciroc and Rocko were severely injured when they were shot by Minneapolis police officer Michael Mays while he was conducting a security check. has coverage of the Nov. 15 opinion.

Rocko was Livingston’s emotional service and seizure alert animal, while Ciroc was a service animal for a child in the home who had emotional-behavioral disorders.

Mays and his partner were called to the home after Livingston accidentally set off the burglar alarm. Mays jumped a backyard security fence, encountered Ciroc and shot the dog in the face. After the shots were fired, Rocko entered the backyard, and Mays shot him, too.

The lawsuit contended that the dogs were not threatening, and Mays unlawfully seized the dogs in violation of the Fourth and 14th Amendments. Mays had asserted qualified immunity in a motion to dismiss the suit.

“In order to decide whether Mays acted reasonably in shooting Ciroc and Rocco, we must decide whether he faced an imminent danger,” the appeals court said in an opinion by U.S. Circuit Judge L. Steven Grasz. “Accepting the complaint’s allegations as true, we conclude he did not.”

The suit had alleged that Ciroc “walked toward Mays wagging his tail in a friendly manner” before Mays shot him. The suit also contended that “Rocko presented himself to Mays in a nonthreatening manner” before he was shot.

The appeals court cited two 8th Circuit opinions, one of them unpublished, that illustrate this general principle: “A police officer may justify shooting a dog in order to protect life and property only when it presents an objectively legitimate and imminent threat to him or others.”

The court also cited other federal appellate opinions that clearly establish that an officer cannot unnecessarily kill another person’s pet.

Mays had asked the appeals court to consider additional materials to support his version of events. But a police report in which he asserted that the dogs had growled and training materials for dog encounters can’t be considered at this stage of the litigation, the appeals court said.

In addition, videos of the incident aren’t “entirely inconsistent from the allegations in the complaint,” the 8th Circuit said. “At this preliminary stage of litigation, the videos are insufficient to decide whether shooting the dogs was reasonable under the circumstances.”

The case is LeMay v. Mays.

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