False alarm dispatch and Cop shoots dogs and loses immunity November 24, 2021
KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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False alarm dispatch and Cop shoots dogs and loses immunity
November 24, 2021
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False alarm dispatch and Cop shoots dogs and loses immunity
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??????????Welcome to crazy town, Minnesota USA.
??????????There has been some discussion on this forum, and throughout the alarm industry, about false alarms, police response and police immunity.??Lee Jones has been warning about police refusal to respond to alarm signals and a break down between a perceived connection between Monitoring Centers and police department dispatch.?
??????????The case below really caught my attention, and while I’ll try to contain my personal feelings about the case as reported I apologize to those sensitive souls who may find objection.
??????????It starts with a family in Minnesota, two adults [with two different last names and apparently not married] and kids [just the mother’s, not the guy living with them apparently], who suffer from one form of mental illness or another and require a comfort or support or something like that dog.??Not just a dog, but two dogs.??Not just two dogs, but two pit pulls.?
??????????The mother sets off the alarm, the Monitoring Center dispatches the police.??Mother claims she called to report a false alarm but the Monitoring Center didn’t let the police know.??Two cops go to the house, one to the front door and one climbs over a back fence into the back yard.??Mother, accompanied by one pit bull, tells the cop at the front door that it’s a false alarm.?
??????????The cop in the backyard is confronted by one pit bull, and shots it.??Then the second pit bull comes into the yard and the cop shots that one too.
??????????The family claims the shots are unprovoked; the cop says he was faced with danger.??Apparently video recordings from the house and on the cop’s person are not sufficiently persuasive to establish the shooting justified.
??????????The family sues for violation of various constitutional rights for illegal seizure of property by government.?
??????????The cop claims governmental immunity.
??????????The District Court Judge dismissed the case without prejudice [so it gets restarted] but held that the cop was not entitled to qualified immunity finding “nothing in the complaint showed either dog was an imminent threat; therefore, the shootings were
not objectively reasonable.”
??????????I don’t know about you, but I am incensed. First of all, who needs a pit bull for a comfort dog, let alone two???Next, maybe the District Court judge should jump over a few backyard fences in response to a burglar alarm and be confronted with a pit bull, even a friendly one.??The three judges on the appeal court agree with this.??How can police be expected to respond to dangerous situations when they need to be worried about exposure, personal liability???Lucky it was a dog and not a person with a gun, fake or real, loaded or not; or a knife, long or short, or baseball bat or pipe.??Most people are leery walking from their car to their front door in the dark; try walking up to someone in a car you just stopped or responding to an alarm where there is supposedly illegal activity and walking around a dark yard or house.?
??????????This is what’s going on and the alarm industry is smack in the middle of it.??The alarm company dispatched that alarm and might have not called it off soon enough or at all.??Is that the alarm company’s fault???I think you know my thoughts; what do you think??
??????????Before I let you go, you think the alarm company maybe should be using a Kirschenbaum Residential All in One, that even a crazy person should be held to??
??????????Below is a case from the Federal Court Eighth Circuit Court of Appeals dealing with an Appeal from United States District Court for the District of Minnesota.?
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The district court1 refused to grant qualified immunity to Minneapolis Police
Officer Michael Mays on a motion to dismiss an unlawful seizure claim based on
his shooting two dogs during a residential security check. We affirm.
1
The Honorable John R. Tunheim, Chief Judge, United States District Court
for the District of Minnesota.
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I. Background2
Plaintiffs Jennifer LeMay and Courtney Livingston live together in a home in
Minneapolis with LeMay’s two children and two five-year-old American
Staffordshire Terriers (commonly referred to as pit bulls) named Ciroc and Rocko.
Livingston suffers from severe anxiety disorder that causes panic attacks and
“pseudoseizures,” and one of LeMay’s children suffers from multiple emotionalbehavioral disorders and is considered disabled. Ciroc, a brown-and-white, 60-
pound male, served as the child’s service animal. Rocko, a grey-and-white, 130-
pound male, served as Livingston’s “emotional service . . . and seizure alert animal.”
?
One evening, Livingston accidentally set off the burglar alarm in the home.
The home security alarm company notified the police department, and Officers Mays
and Daniel Ledman responded to the call. Before the officers arrived at the home,
LeMay called the security company to report the alarm had been accidentally
triggered. It is unclear whether the security company relayed that information to
police.
3
Upon arrival at the home, Mays jumped over the six-foot privacy fence
surrounding the backyard while Ledman knocked on the front door. Livingston
answered the front door with Rocko at her side and told Ledman that she accidentally
set off the alarm. Ledman never told Livingston that another officer was in the
backyard.
2
We present the facts in the light most favorable to appellees-plaintiffs, with
reasonable inferences drawn in their favor. See Stanley v. Finnegan, 899 F.3d 623,
625 (8th Cir. 2018).
3
The complaint included alternative pleadings as to whether or not the security
company notified the police that the alarm had been cancelled. Fed. R. Civ. P.
8(d)(2). The pleading is sufficient if either of the alternative statements is sufficient
to state a claim. Id.
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While in the backyard, Mays encountered Ciroc who, according to the
pleadings, “walked toward Mays wagging his tail in a friendly manner to greet
Mays.” Mays then shot Ciroc in the face. After the shots were fired, Rocko entered
the backyard and is alleged to have “presented himself to Mays in a non-threatening
manner.” Mays then “shot Rocko multiple times in his body.” Neither dog was
killed, but both were severely injured, rendering them unable to perform their tasks
as service animals.
LeMay and Livingston sued Mays and the City of Minneapolis under 42
U.S.C. § 1983, alleging Mays unlawfully searched their home and seized their dogs
in violation of the Fourth and Fourteenth Amendments of the United States
Constitution and the City was liable under Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978).
4
?Mays and the City moved to dismiss the seizure and Monell counts
under Fed. R. Civ. P. 12(b)(6), arguing Mays was entitled to qualified immunity and
the Monell claim had not been sufficiently pled. To support dismissal, they offered
video footage from a home security camera and Mays’s body camera, still-frame
images from both videos, a police report, and training materials for police–dog
encounters.
?
The district court dismissed the Monell claim without prejudice. LeMay v.
Mays, No. Civ. 19-2463, 2020 WL 3642357, at *4 (D. Minn. July 6, 2020). But it
denied dismissal of the unlawful seizure claim. Id. at *3. It held nothing in the
complaint showed either dog was an imminent threat; therefore, the shootings were
not objectively reasonable. Id. Mays and the City appeal the district court’s order
denying the dismissal of the unlawful seizure claim against Mays, arguing Mays is
entitled to qualified immunity.
?
4
The original complaint also sued multiple officers and the alarm company
under various legal theories. But amendment to the complaint and voluntarily
dismissal narrowed the claims.
-4-
II. Discussion
“An interlocutory order denying a motion to dismiss based on qualified
immunity is immediately appealable.” Stanley v. Finnegan, 899 F.3d 623, 625 (8th
Cir. 2018). “To warrant reversal, [the defendant] must show that he is entitled to
immunity on the face of the complaint.” Dollar Loan Ctr. of S.D., LLC v. Afdahl,
933 F.3d 1019, 1024 (8th Cir. 2019). “The Supreme Court has repeatedly ‘stressed
the importance of resolving immunity questions at the earliest possible stage in
litigation.’” Dillard v. O’Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020) (en banc)
(quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The court reviews the
denial of a motion to dismiss de novo. Stanley, 899 F.3d at 625.
?“Qualified immunity shields public officials from liability for civil damages
if their conduct did not ‘violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Dillard, 961 F.3d at 1052
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome qualified
immunity, the plaintiff “must ‘plead facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at the
time of the challenged conduct.’” Id. (cleaned up) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)). If either prong is not satisfied, the defendant is entitled to
qualified immunity. Norris v. Engles, 494 F.3d 634, 637 (8th Cir. 2007).
A. Unreasonable Seizure
The Fourth Amendment provides for “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV. Privately-owned dogs are “effects” under the
Fourth Amendment. Hansen v. Black, 872 F.3d 554, 558 (8th Cir. 2017). Officers
must then act reasonably when seizing them. See Andrews v. City of West Branch,
454 F.3d 914, 918 (8th Cir. 2006). “The ‘reasonableness’ of [an officer’s actions]
must be judged from the perspective of a reasonable officer; it does not turn on the
subjective intent of the officer.” Id. In assessing reasonableness of a warrantless
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seizure of a dog, we “must balance ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the
governmental interest alleged to justify the intrusion.’” Id. (quoting Altman v. City
of High Point, 330 F.3d 194, 205 (4th Cir. 2003)). “[T]he state’s interest in
protecting life and property may be implicated when there is reason to believe the
pet poses an imminent danger.” Id. (alteration in original) (emphasis added)
(quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3d Cir. 2001)). But when
an officer “shoots and kills an individual’s family pet when that pet presented no
danger and when non-lethal methods of capture would have been successful[,]” this
is “an unreasonable, warrantless seizure of property, in violation of the
Constitution.” Id.
Thus, in order to decide whether Mays acted reasonably in shooting Ciroc and
Rocco, we must decide whether he faced an imminent danger. Accepting the
complaint’s allegations as true, we conclude he did not.
Two cases assist with our analysis. See Andrews, 454 F.3d at 916–19; Bailey
v. Schmidt, 239 F. App’x 306, 308 (8th Cir. 2007) (unpublished) (per curiam). In
Andrews, we held a police officer was not entitled to qualified immunity after
shooting a dog he mistook for another problem-causing dog, when the dog he shot
was in a fenced backyard with the homeowner, presented no danger to others, and
was capable of being captured by non-lethal means. 454 F.3d at 916–18. In contrast,
in Bailey, we held an officer was entitled to qualified immunity when he shot and
killed five pit bulls during the search of a home for contraband when the dogs
“advanced or acted aggressively toward the officers.” 239 F. App’x at 308. These
cases illustrate the general principle that 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.
?
Based on this principle, the complaint here states a plausible claim that Mays
unreasonably seized the dog. As pled, Ciroc “walked toward Mays wagging his tail
in a friendly manner to greet Mays.” Mays then “shot Ciroc in the face, causing
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Ciroc fear and great pain.” Then, “Rocko presented himself to Mays in a nonthreatening manner.” Mays then also “shot Rocko multiple times in his body.” In
both instances, the complaint sets forth that Mays shot both Ciroc and Rocko when
they presented no imminent danger and were not acting aggressively. This
establishes a viable claim that Mays unreasonably seized the dogs in violation of the
Fourth Amendment.
B. Clearly Established
We then turn to the second prong of the qualified immunity analysis?whether
the right was clearly established at the time of the challenged conduct. See Dillard,
961 F.3d at 1052. “Qualified immunity is applicable if [the officer] can show that a
reasonable officer with the information he possessed at the time of the shooting could
have believed that his conduct was lawful in light of the law that was clearly
established on the date of the incident.” Andrews, 454 F.3d at 918–19. “A right is
clearly established if a ‘reasonable [officer] would understand that what he is doing
violates that right.’” Id. at 919 (alteration in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
It is clearly established that an officer cannot shoot a dog in the absence of an
objectively legitimate and imminent threat to him or others. See id.; see also Viilo
v. Eyre, 547 F.3d 707, 710–11 (7th Cir. 2008) (holding that a police officer is on
notice that unnecessarily killing a person’s pet offends the Fourth Amendment); San
Jose Charter of Hells Angels v. City of San Jose, 402 F.3d 962, 977–78 (9th Cir.
2005) (holding it was clearly established that an officer cannot unnecessarily kill a
person’s pet); Brown, 269 F.3d at 210–11 (holding it was clearly established that an
officer cannot destroy a pet that poses no immediate danger and whose owners are
“known, available, and desirous of assuming custody”). Again, as pled, Ciroc and
Rocko did not pose an imminent threat to Mays. Thus, a reasonable officer would
have known that shooting Ciroc and Rocko would violate the owners’ “clearly
established right to be free from unreasonable seizures of property.” Andrews, 454
F.3d at 919.
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We reject Mays’s argument that the Bailey case shows that he, in fact, did not
violate a clearly established right. Mays states that Bailey “is still the only guidance
for an officer in [his] situation set forth by this Court.” This is not correct. Andrews
is also precedent that cannot be ignored. Moreover, there are salient factual
differences between Bailey, an unpublished and thus non-precedential opinion, and
the case at hand. For example, in Bailey, the officers were faced with five aggressive
pit bulls, 239 F. App’x at 308, as opposed to two non-aggressive pit bulls. Officers
in the former scenario were clearly faced with a threat of imminent danger not
present in the latter alleged scenario. In short, Bailey does not impact the clearly
established rule from Andrews—an officer cannot lawfully destroy a pet who does
not pose an objectively legitimate and imminent danger to him or others. 454 F.3d
at 919. Because the complaint plausibly alleges Mays shot Ciroc and Rocko when
they posed no imminent danger to him or others, he is not entitled to qualified
immunity at this stage.
C. Consideration of Other Materials
Mays tries to escape this conclusion by contending that unlike the district
court, we should consider certain materials he submitted because they are embraced
by the pleadings. Specifically, he points to two videos depicting the incident, a
police report, and training materials for police encountering dogs. According to
Mays, this evidence collectively tells a different story than the pleadings and
establishes that it was reasonable for him to believe the dogs posed an imminent
danger to him, thus making the shootings reasonable and entitling him to qualified
immunity. Assuming we have jurisdiction to consider Mays’s argument, we reject
it because the materials he wishes us to consider, properly viewed, do not settle
whether the shootings were objectively reasonable.
5
?This is true for two reasons.
5
When we have appellate jurisdiction over the denial of a motion to dismiss
in a qualified immunity case, “the scope of appeal is limited to the narrow issue of
whether plaintiffs have alleged a violation of ‘clearly established’ law.” Schatz Fam.
ex rel. Schatz v. Gierer, 346 F.3d 1157, 1159 (8th Cir. 2003). “To warrant reversal,
[the defendant] must show that he is entitled to immunity on the face of the
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First, not all evidence Mays urges may be properly considered with the
pleadings—at least not for the purpose he desires. Our precedent permits
consideration of “materials ‘necessarily embraced by the pleadings,’ including
exhibits attached to the complaint and matters of public record.” Buckley v.
Hennepin Cnty., 9 F.4th 757, 760 (8th Cir. 2021) (quoting Greenman v. Jessen, 787
F.3d 882, 887 (8th Cir. 2015)). Such evidence may not, however, be viewed for the
truth of the matters asserted. Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831–
32 (8th Cir. 2003).
But this is exactly what Mays asks us to do with some of the material. For
example, he asks us to consider the police report, which he claims is appropriate
because it was referenced in the pleadings. But he does not simply want us to
consider the police report’s existence. He also wants us to accept its narrative as
truth. Thus, he asks us to accept as fact his own assertion that the dogs growled
when they came toward him. Similarly, he provides police training documents
regarding encounters with dogs and asks us to extrapolate from these documents
when it is reasonable to conclude a dog poses a threat to an officer. Such use of
documents outside the pleadings goes far beyond what we can consider at this stage
of the litigation.
complaint.” Afdahl, 933 F.3d at 1024 (emphasis added). We are not aware of any
case law in the circuit permitting us to answer the separate question of whether the
district court erred by not considering materials other than the pleadings. In Jackson
v. Curry, our sister circuit held that it did not have jurisdiction over the question of
whether the district court erred by declining to review a video with the pleadings.
888 F.3d 259, 263 (7th Cir. 2018). The officer in Jackson argued that the so-called
“Scott exception” should apply, giving the court jurisdiction to decide this question.
Id. at 264 (citing Scott v. Harris, 550 U.S. 372, 381 (2007)). But the court concluded
that the Scott exception did not apply because the video did not clearly contradict
the complaint. Id. Just like in Jackson, the video depictions of the shootings do not
completely contradict “the essence and essential details” of the allegations in the
complaint. Id.
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The remaining evidence consists of two videos capturing different views of
Mays’s encounter with the dogs. One is from the home security camera and the
other is from Mays’s body camera. Both videos clearly show the shootings. But
neither has audio. So, we cannot ascertain whether the dogs were growling at Mays
as he claimed in his police report. More important, neither video depicts the dogs’
behavior leading up to the shootings in a manner entirely inconsistent from the
allegations in the complaint. We simply cannot conclude from the videos that the
dogs presented an objectively legitimate and immediate threat to Mays.
At this preliminary stage of litigation, the videos are insufficient to decide
whether shooting the dogs was reasonable under the circumstances. Thus, dismissal
at this stage is premature.
6
?
III. Conclusion
For the foregoing reasons, we affirm the district court’s denial of the motion
to dismiss.
____________________________
6
Mays contends discovery would be pointless because he was the only witness
to the dogs’ behavior at the time of the shootings and deposing him would not
uncover any new evidence. We disagree for two reasons. First, according to the
pleadings, Mays is not the only witness to the shootings. The complaint states one
of the children “witnessed the shootings and/or their immediate aftermath through
an upstairs bedroom window[.]” Second, even if Mays is the only witness, discovery
will give the opportunity to explore his recitation of events in a way the police report
did not provide.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301