Dogs, Drugs & Police – A Bad Combination

January 9, 2017

At the end of last year, the Sixth Circuit Court of Appeals (that’s the one that covers Michigan, Ohio, Kentucky, and Tennessee) ruled that it is reasonable for police officers to shoot and kill a dog for merely blocking the path of travel of a police officer searching a basement.  Now to be fair, when police are executing a search warrant there are lots of nuisances, split second decisions and uncertain situations to manage.  But sadly, even with all of these factors, it looks like dogs in the Sixth Circuit better be on their very best behavior.

Here are the basics:  the Battle Creek Police were going to serve a search warrant at a house where they knew a gang member lived and, based on a previous “trash pull” (that’s were the police go through your garbage cans, which they can do without a warrant since you’ve put your stuff in the trash and thus is now “public”), thought there would be drugs.  Before they got to the house, but only shortly before, they learned that the gang member had already been picked up AND that there were dogs in the house.  But notwithstanding that the person they were concerned about had already been arrested and that there were dogs in the house, the police decided not to delay the search and went to the house.  When they got there they arrested a second person who lived in the house (who happened to be on the front lawn walking to his car).  So now there is no one in the house except for two dogs and the police proceed to break down the front door and enter the house.

Now while in my house Splash might not pick up her head when someone enters the house, our other dogs, Dusty and Oscar, run to the door barking their little heads off.  Dogs barking when a door bell is rung or when a stranger enters a house is all regarded as pretty typical dog behavior, but now it that person happens to be a police officer it may be more than enough to get a dog shot.

After breaking through the door, one Battle Creek officer, according to the appellate court, testified that the first dog “had only moved a few inches” toward him before he shot it. The second dog ran into the basement.  When the officers went to the basement, “The second dog was not moving towards the officers when they discovered her in the basement, but rather she was ‘just standing there,’ barking and was turned sideways to the officers,” the testimony continues, and the officer “then fired . . . two rounds at the second dog.”

It’s pretty established law that the unreasonable killing of a dog by a police officer is an unconstitutional “seizure” of property under the Fourth Amendment of the Constitution, so the issue before the Court was the “reasonableness” of the killings.  The court stated that “The standard we set out today is that a police officer’s use of deadly force against a dog while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer’s safety.”  The Court decided that given that the officers did not know about the dogs until shortly before they executed the warrant and that the dogs in question barked at the officers and blocked their path of travel that it was reasonable to shoot and kill the dogs.  The Court never asked (1) once the person and his housemate were arrested, could the officers have waited until they had a plan for the dogs before breaking into the house (oops – I forgot to add that when the housemate was arrested he offered to give the police keys to the front door so they wouldn’t have to break it down); or (2) could the officers have walked around the dog rather than shooting it.

So where does that leave dogs in the Sixth Circuit?  Potentially in a world of hurt. Even the most docile and well behaved dog is bound to bark when the front door to their house is broken down, and if simply laying down is enough to get you shot, then even Splash is at risk.  Frankly, we’re pretty conflicted about this case.  On the one hand, we appreciate that police officers are confronted with split second decisions with huge ramifications that most of us thankfully will never face.  On the other hand, in this case could the officers simply delayed executing the warrant until there was time to come up with a plan to deal with the dogs so that no such split second decision was forced upon them?  Where do you come down on this?

Thanks for reading.

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