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Dogs get added protection under 4th Circuit ruling

By: Peter Vieth//February 17, 2020

Dogs get added protection under 4th Circuit ruling

By: Peter Vieth//February 17, 2020

A federal appeals court has denied qualified immunity for a police officer who shot and killed a citizen’s dog when the dog allegedly posed no threat.

The Jan. 22 decision by the 4th U.S. Circuit Court of Appeals revives a lawsuit filed by a Virginia woman against a county sheriff’s deputy who shot and killed her 150-pound German Shepherd, Jax.

The court said a district court judge, faced with contradictory evidence, failed to limit her review to the allegations of the dog’s owner, Tina Ray, who alleges that Officer Michael Roane shot the dog when it was in her yard, tethered and incapable of reaching the officer. The allegations support a Fourth Amendment seizure claim and undermine the officer’s qualified immunity defense, the court ruled.

Domestic trouble reportedly led to the incident. Officers went to Ray’s home in Greenville to serve a domestic violence warrant. Roane was the fifth officer to arrive and he drove right into the yard and parked within the dog’s “play area,” according to the opinion.

Officers reportedly tried to alert Roane that he was about to exit his vehicle in the dog’s area, but Roane got out of his truck and walked toward the house. Jax ran barking toward the officer, but quickly reached the end of his tether and could not get any closer to the officer, the lawsuit said.

Roane first pulled his gun and backed away, but then stopped backing away from the dog. He stepped forward and shot Jax in the head, the suit claimed. The dog died from the wound. The local newspaper published a photo of the dog lying in the grass.

“What did you expect me to do, he was going to bite me,” the officer said, according to the complaint.

The suit was considered by the trial judge with three claims: unlawful seizure pursuant to the Fourth Amendment and state law claims of conversion and intentional infliction of emotional distress.

In 2018, U.S. District Judge Elizabeth K. Dillon dismissed the seizure count and refused to take on the state claims. She concluded Roane’s actions had been reasonable under the totality of circumstances and he was entitled to qualified immunity. Dillon noted the weight of the dog and said the officer might not have been sure Jax no longer posed a threat.

The case implicated the right of a dog owner not to have her dog destroyed when the dog no longer posed a threat to the officer, said Dallas S. LePierre of Atlanta, who argued the case at the 4th Circuit on Ray’s behalf.

But the officer still could have perceived a threat, argued Roane’s attorney, Carlene B. Johnson of Dillwyn, Virginia.

“This all happened in a short moment, and, within that short moment, the dog had closed to within a step of the officer,” Johnson told the judges.

Chief Judge Roger L. Gregory wrote the court’s opinion, which was joined by Judges Barbara Milano Keenan and Julius N. Richardson.

The appeals court ruled the complaint properly alleged a violation of Ray’s Fourth Amendment rights and that Roane was not entitled to qualified immunity.

Gregory said the district court improperly considered evidence that’s not part of the plaintiff’s complaint.

“The problem with Roane’s argument, and thus with the district court’s decision adopting it, is that it requires us to ignore certain factual allegations in Ray’s complaint and to draw reasonable inferences against Ray on a motion to dismiss,” the court said.

“According to the complaint, Roane stopped backing away from Jax when the dog reached the end of the zip-lead, and then took a step toward the dog before firing his weapon,” Gregory wrote.

“Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others,” the court said.

The judges acknowledged there is no on-point, binding authority in the 4th Circuit on the issue.

“Until now, we have never had the occasion to hold that it is unreasonable for a police officer to shoot a privately owned animal when it does not pose an immediate threat to the officer or others,” the court said.

The court held that a reasonable officer in Roane’s position would have known that his conduct, as alleged, was unlawful at the time of the shooting.

Keenan signaled that Ray’s claim could face rough waters as more facts come before the trial judge. Ray reportedly offered a contradictory story about the incident in an audio recording, saying she was not even present when the officer shot the dog.

“That’s what’s troubling about this case, at least to me,” Keenan said. “It’s kind of the elephant in the corner. I know we need to analyze the complaint, but we know from that audio recording—and the district court knew—that the plaintiff was not being truthful in some respects in her pleadings,” she continued.

“Ms. Ray still has a ways to go, but we will fight hard to vindicate her rights,” said Mario Williams of Atlanta, another of Ray’s attorneys.

Johnson was not available for comment.

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