In Carroll v. County of Monroe (2d Cir. 12-975-cv, March 12, 2013), the Second Circuit affirmed the denial of plaintiff’s motion to set aside a jury verdict (or alternatively, for a new trial) after a jury found that plaintiff failed to prove her claim (brought under 42 U.S.C. § 1983) that the shooting of her family’s dog (whose name was Damian) during the execution of a “no knock” search warrant of her home was an unconstitutional seizure in violation of the Fourth Amendment.
The tragic facts of this case (according to the court; the plaintiffs’ version of the facts is set forth in the complaint, which is accessible here) are relatively straightforward: After several members of the Greater Rochester Area Narcotics Enforcement Team executed a “no-knock” warrant for plaintiff’s home via battering ram, one officer encountered a growling, barking dog that was “aggressively approaching” him. The officer shot and killed the dog. Additionally, according to the court:
Prior to executing the warrant, Sergeant Michael DeSain briefed the team and mentioned that a dog would be present at the plaintiff’s home. The team did not discuss a plan for controlling the dog or formulate a strategy to neutralize any threat the dog might pose by non-lethal means. Additionally, although the County had a written policy prohibiting the use of lethal force against an animal unless the animal posed a danger to officers or other persons, the County did not formally train its officers about how to handle encounters with dogs during searches. The officers testified that they would call animal control to help secure a dog when executing a normal warrant but never planned for non-lethal means to secure a dog during execution of a no-knock warrant.
The officers explained that executing a no-knock warrant requires them to move through the entryway (also called the “fatal funnel”) as quickly as possible to avoid becoming easy targets for armed occupants. In DeSain’s words, the officers “don’t have the time” to use non-lethal means during execution of a no-knock warrant when confronted by a dog in the fatal funnel “because our lives are at risk entering that door.” …. Moreover, the officers explained that any delay in securing the entryway and moving through the house could facilitate the destruction of evidence. They emphasized, however, that shooting a dog was often unnecessary during execution of a no-knock warrant when, for example, an owner is able to restrain the dog or where the dog runs away, lies down, or poses no threat to officer safety.
The Second Circuit acknowledged that “the unreasonable killing of a companion animal constitutes an unconstitutional ‘seizure’ of personal property under the Fourth Amendment.” It concluded, however, that on the facts of this case the fatal use of force did not amount to a Fourth Amendment violation:
A reasonable jury certainly could have found—based on the evidence presented—that no amount of planning or training would have changed the unfortunate outcome in this case. The plaintiff offered no evidence that any non-lethal means of controlling her dog would have allowed the officers to quickly escape the “fatal funnel” and effectively execute the no-knock warrant. In other words, the jury could have reasonably found that Deputy Carroll would still have needed to shoot the plaintiff’s dog even if the officers had developed a non-lethal plan to restrain the dog.
Although the plaintiff’s counsel mentioned the possibility of using pepper spray, a taser, or a catch pole, the plaintiff offered no evidence that these non-lethal means would have been effective or that it would have been unreasonable for the officers to decide not to use them. Deputy Carroll testified that he had never heard of pepper spray effectively controlling an aggressive dog, and he also explained that the department did not own tasers at the time. A jury could reasonably conclude that using a catch pole in the middle of the entryway would compromise officer safety and unreasonably delay the search, allowing the occupants to destroy evidence, or worse, arm themselves. The jury could further have reasonably found that an officer in Deputy Carroll’s position should not be required to enter a house holding pepper spray or a taser and thereby compromise his ability to defend himself from possible gunfire. Also, unlike scenarios in which a dog might not pose a genuine threat to officer safety … there was sufficient evidence here for the jury to find that Deputy Carroll reasonably feared for his safety when the plaintiff’s dog aggressively approached him in the entryway. In sum, the jury was entitled to believe the officers’ testimony that non-lethal methods would not have been effective in this particular case, and we cannot say that its verdict was wholly without a “sufficient evidentiary basis.”
The court was clear, however, that its holding was limited to the facts of this case, and that “[t]here may very well be circumstances under which a plaintiff could prove that lack of an adequate plan rendered the shooting of his or her dog unreasonable even during execution of a no-knock warrant.”