Tuesday, October 28, 2008

No qualified immunity for police in 7th Circuit dog shooting case

Great case was just handed down from the 7th Circuit! Here's the blurb and link from today's Illinois State Bar Association's "ISBA E-Clips":

Viilo v. Eyre, No. 08-1627 (10/27/08). Appeal, E.D. Wisc. Appeal dismissed.
Ct. of Appeals lacked jurisdiction to consider defendants-police officers' appeal of Dist. Ct.'s denial of their motion for summary judgment alleging qualified immunity in plaintiff's sec. 1983 action alleging 4th Amendment violation arising out of defendants' shooting of plaintiff's pet dog during search of plaintiff's home. Record contained factual dispute as to whether said shooting was necessary, and defendants otherwise had notice that unnecessary killing of pet dog could constitute "seizure" within meaning of 4th Amendment.

Commentary from me: Yippee! (Ok, not the most scholarly of commentary, I admit...) Seriously, I am very encouraged by the 4th amendment decisions that have been coming down, pretty much unanimously around the country for about a decade now, that the shooting of a companion animal does constitute a seizure within the meaning of the 4th amendment and police can't hide behind the shield of qualified immunity to defend their (at best) insensitive and thoughtless actions. The city of San Jose and Santa Clara County ultimately paid more than a million dollars in the infamous Hell's Angels case and another California city paid more than $500,000 in Fuller v. Vines (see Viilo for cites). Other cases have resulted in a few 6, and a number of 5, figure awards or settlements.

Hopefully, if enough of these suits really start to pull in big numbers then perhaps THAT will persuade municipalities and police departments not to rely on what I like to call the "Kujo defense." ("Your honor, I know the dog was 15 years old, toothless and blind, but he was charging straight toward me, growling and baring his fangs...") I realize not all police officers are rogue cops (please, no angry emails). But some are. I see this in my practice all too frequently. At least several times a year someone comes in with a story of how they and their dog were minding their own business, in their own home, when the cops bust in for some (usually misplaced) reason and shoot the family dog just because it was there and they figured they could get away with it.

If anyone reading this blog happens to know who represented Viilo, please ask them to call me. I would love to stay posted on what happens as the case heads back down to trial court.

POSTSCRIPT: Thanks to one of Megan Senatori's animal law students for letting her know about my blog post. Congrats to Megan and best wishes for the trial!

1 comment:

reetajenet said...

While officers were attempting to catch a fleeing suspect, their police dog bit a man who was in a friend's backyard. The officer controlling the dog allegedly failed to immediately call off the dog, even though the man, who was an older white male, had no resemblance to the young black suspect being pursued. While a reasonable jury could have concluded that this was an excessive use of force, the officer was entitled to qualified immunity on Fourth Amendment excessive force claims. It was not clearly established that the use of non-deadly canine force to attempt to catch a fleeing suspect without giving a verbal warning was a Fourth Amendment violation. Trammell v. Thomson, No. 3:06-CV-984, 2008 U.S. Dist. Lexis 44210.

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