Skinner v. Ard

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TONIA MARIE SKINNER, ET AL.

CIVIL ACTION

VERSUS

NO. 19-66-JWD-EWD

JASON ARD, SHERIFF OF LIVINGSTON

PARISH, ET AL.

RULING AND ORDER

This matter comes before the Court on the Re-Urged Motion to Dismiss Pursuant to Rule

12(b)(6) (Doc. 22) filed by Defendant Deputy Barney McLin (“Deputy McLin”).1 Plaintiffs Tonia

Marie Skinner (“Ms. Skinner”) and Gregory W. Causey (“Mr. Causey”) (collectively, “Plaintiffs”)

oppose the motion. (Doc. 28.) Deputy McLin has filed a reply. (Doc. 30.) Oral argument is not

necessary. The Court has carefully considered the law, the facts in the record, and the arguments

and submissions of the parties and is prepared to rule. For the following reasons, Deputy McLin’s

motion is denied.

In this case, a law enforcement officer attempts to insulate himself from the consequences

of his actions through the protection of the qualified immunity doctrine, arguing that the Court

cannot say, “beyond debate,” that he should have known that his egregious conduct was unlawful.

The victim in this case was a dog named Roscoe and the family that had loved him for six years.

Deputy McLin arrived on Plaintiffs’ property to serve a jury summons. He wasn’t

investigating criminal conduct, hunting a suspect, or otherwise engaging in potentially dangerous

duties.

1 The other defendant in this case is Jason Ard, Sheriff of Livingston Parish, State of Louisiana. Sheriff Ard has filed

a separate Re-Urged Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc. 21), which the Court will decide in a different

ruling.

Roscoe was loose. Ms. Skinner warned Deputy McLin that Roscoe was loose. The deputy

said he wasn’t worried and proceeded anyway. The dog was not barking or aggressive.

Roscoe ran toward the officer, circled him, and “nipped” the back of the deputy’s leg. “To

nip” means to bite “lightly.” In fact, the bite was so mild that it didn’t tear the deputy’s pants leg

and caused only a scratch to his calf. In any event, after the “nip,” Roscoe ran back toward Ms.

Skinner.

Deputy McLin’s response? Did he yell at the dog to go away? Did he reach for his baton

or taser? Did he use his pepper spray?

No. Deputy McLin drew his fire arm and shot Roscoe twice in the side. The dog was

seriously wounded. He could not stand, walk, run, or jump. Roscoe cried in pain. He crawled

toward his owner. The officer fired two more shots at the dog and missed, all while the dog was

near Ms. Skinner. Finally, Deputy McLin took steps toward the pet, aimed at his head, and fired

a final shot which killed Roscoe.

Deputy McLin now claims qualified immunity. He argues that it cannot be said, beyond

debate, that all reasonable officers would know that it was unlawful to kill a loose dog that had

bitten an officer.

The Court disagrees. The Court finds every reasonable officer would know that it was

unlawful to fire a final shot and execute a wounded animal that posed no threat. Accordingly, the

motion is denied.

I. Relevant Factual and Procedural Background

A. Relevant Factual Background

The following facts are primarily taken from the First Amended and Supplemental

Complaint (“First Amended Complaint”), Doc. 20. They are assumed to be true for purposes of

this motion. Thompson v. City of Waco, Texas, 764 F.3d 500, 502–03 (5th Cir. 2014).

Plaintiffs Ms. Skinner and Mr. Causey are married. (First Amend. Compl. ¶¶ 3–4, Doc. 20.)

They are domiciled in Livingston Parish. (Id.)

At the time of the underlying events of this suit, Plaintiffs owned a six-year-old

Weimaraner dog named Roscoe. (Id. ¶ 44.) Roscoe had been a part of Plaintiffs’ family for six

years. (Id.) The dog lived at Plaintiffs’ home and was owned and cared for by them and their

family. (Id. ¶ 45.) “Roscoe was always confined to Plaintiffs’ home and/or back yard and rarely

left.” (Id. ¶ 46.)

Defendant Deputy McLin is a Civil Processing Officer in the Livingston Parish Sheriff’s

Office. (Id. ¶ 10.) His main responsibility is to serve civil summons on citizens of Livingston

Parish. (Id.)

On the morning of February 1, 2018, Deputy McLin arrived at Plaintiffs’ residence to serve

Ms. Skinner with a jury summons. (First. Amend. Compl. ¶ 11, Doc. 20. ) Ms. Skinner saw Deputy

McLin pull into her front yard, and she immediately went outside to notify him that Rosco had just

been let out. (Id. ¶ 12.) She asked Deputy McLin to wait by his unit so she could get Roscoe back

into the house. (Id.) Deputy McLin “told [Ms. Skinner] that he was not worried about the dog and

proceeded directly towards [her] and further onto her property.” (Id. ¶ 13.) Thus, Deputy McLin

“was not surprised or startled by Roscoe’s presence.” (Id. ¶ 48.)

“Roscoe then came from the back of the house and property and ran towards the area where

[Ms. Skinner] and [Deputy McLin] were standing. . . . [] At no time did Roscoe bark, growl, show

his teeth, or show any signs of aggression.” (First Amend. Compl. ¶¶ 14–15, Doc. 20.) As Roscoe

was running toward the front of Plaintiffs’ property, Deputy McLin “did not retreat, yell any loud,

verbal commands, or reach for any weapons, including but not limited to his baton, pepper spray,

taser, or gun, showing his lack of fear and/or apprehension of any threat.” (Id. ¶ 16.)

Plaintiffs next allege that “Roscoe ran around the back side of [Deputy McLin] and, upon

information and belief, nipped at his lower right rear calf area as Roscoe continued to run around

[Deputy McLin].” (Id. ¶ 17.) Deputy McLin’s “injury” from this “nip” was “a scratch to his calf

which was treated with an alcohol swab and a bandage. Upon information and belief, the pants leg

of [his] uniform was not torn or scratched.” (Id. ¶ 36.)

“Roscoe then immediately ran back toward [Ms. Skinner], who was reaching for Roscoe

to bring him inside and was actively yelling commands at the dog.” (Id. ¶ 18.) Plaintiffs again

claim that “Roscoe still did not bark, growl, show his teeth, or show any signs of aggression.” (Id.

¶ 19.)

“Only after Rosco retreated from [Deputy McLin] and ran toward his owner, [Ms. Skinner],

did [Deputy McLin] respond by pulling his personally owned weapon and shooting at Roscoe,

hitting Roscoe twice in the side as Roscoe was running away from [Deputy McLin].” (Id. ¶ 20.)

When Deputy McLin fired his gun, “Roscoe was within close proximity and physical distance of

[Ms. Skinner], who was reaching for Roscoe to bring him back inside.” (Id.¶ 21.)

After Roscoe was “shot twice in his side as he ran away from” Deputy McLin, the dog was

“still alive but was seriously wounded . . . and . . . unable to stand, walk, run, or jump.” (First

Amend. Compl. ¶ 22, Doc. 20.) Roscoe was “[c]rying in pain and unable to stand[.]” (Id. ¶ 23.)

He “attempted to crawl on his side toward the house and [Ms. Skinner], while [she] continued to

move closer to the dog who had frothy blood coming from his mouth and nose.” (Id.)

Deputy McLin “then continued to shoot at Roscoe.” (Id. ¶ 24.) Deputy McLin “fired two

more rounds as Roscoe crawled and retreated away, unable to stand seriously wounded, but the

bullets missed the dog.” (Id. ¶ 25.) Ms. Skinner “was still within a close proximity and physical

distance to Roscoe when [Deputy McLin] continued firing his weapon.” (Id. ¶ 26.) Then:

While Roscoe was on his side unable to stand, walk, run, or jump,

and was crying in pain and severely wounded, and clearly posed no

danger or threat to anyone, [Deputy McLin] took a few steps directly

toward Roscoe, stood over the dog, pointed his gun at Roscoe’s

head, and pulled the trigger, killing Roscoe with a single and final

shot to the head.

(Id. ¶ 27.)

“At the time of the kill shot, Ms. Skinner was still in close proximity and physical distance

to Roscoe.” (First. Amend. Compl. ¶ 28, Doc. 20.) Mr. Causey came upon the scene shortly

thereafter and saw Roscoe, “dead on the ground, and his grief-stricken wife.” (Id. ¶ 32.)

At no time did Deputy McLin ask Ms. Skinner to shoot or kill Roscoe, and at no time did

she give Deputy McLin permission to shoot him or “put him ‘out of his misery.’ ” (Id. ¶ 29.)

Additionally, she was “was never afforded the opportunity to protect Roscoe or bring him inside

of her residence, and was not given the opportunity to render any aid to Roscoe after he was

initially shot by [Deputy McLin], in spite of her attempt to forewarn [him] and avoid any conflict.”

(Id. ¶ 31.) Further, Plaintiffs allege:

Since [Deputy McLin] was alerted of the presence of Roscoe as he

stepped out of his vehicle, since [Deputy McLin] was not startled by

the presence of the dog, since [Deputy McLin] did not take any

actions while Roscoe was running toward the front of the property

where he and [Ms. Skinner] were standing, and because Roscoe did

not bark, growl, show his teeth, or show any signs of aggression,

there was no justifiable cause for [Deputy McLin] to discharge his

firearm or use deadly force upon Roscoe.

(Id. ¶ 33.)

Deputy McLin “was equipped with multiple non-lethal weapons as a part of his

uniform . . . including but not limited to a baton, pepper spray, a taser, and handcuffs.”

(First. Amend. Compl. ¶ 34, Doc. 20.) However, “[a]t no time prior to Roscoe running

away from Deputy McLin” did the officer “attempt to use any non-lethal methods to

restrain the dog, instead resorting to the most dangerous weapon he possessed – his

personally owned gun – to shoot at the dog and in the vicinity of [Ms. Skinner].” (Id. ¶ 35.)

Deputy McLin shot Roscoe “only after the dog had begun running away from [the deputy]

towards [Ms. Skinner].” (Id. ¶ 35.) Moreover:

[Deputy McLin] had sufficient notice and time to avoid contact with

Roscoe all together, or employ non-lethal methods to protect himself

and/or restrain Roscoe, rather than killing him; including remaining

in or near his vehicle or returning to his vehicle as [Ms. Skinner]

initially advised; allowing [Ms. Skinner] to retrieve her dog and put

him back in the house; or using loud, verbal commands, his baton,

pepper spray, or taser. [Deputy McLin] neither attempted nor

allowed any of these or other reasonable options prior to using lethal

means.

(Id. ¶ 39.) Further, the officer “was not conducting a criminal investigation with which Roscoe

may have interfered, therefore he could have retreated to his vehicle as requested by [Ms. Skinner]

without prejudice to any investigation or extensive delay in his daily duties.” (Id. ¶ 49.)

Plaintiffs also allege, “[u]pon information and belief,” that the deputy “has previously been

involved in situations wherein he discharged his gun, killing a dog, while no person was in danger

of severe physical harm.” (First Amend. Compl. ¶ 40, Doc. 20.) Plaintiffs uses this allegation to

support their claim against Sheriff Ard. (See id. ¶ 41.)

Plaintiffs seek, inter alia, compensatory and punitive damages. (Id. ¶¶ 81–82.) Plaintiffs

claim that they experienced property damage, veterinary expenses, and mental anguish from

Roscoe’s death and from being “within feet of the trajectory of [Deputy McLin’s] fired weapons.”

(Id. ¶¶ 43, 53.)

Plaintiffs bring the following claims for relief: (1) illegal seizure under the Fourth

Amendment against Deputy McLin and Sheriff Ard (id. ¶¶ 54–63); (2) state law conversion claim

against Deputy McLin (id. ¶¶ 64–67); (3) state law respondeat superior claim against Sheriff Ard

for Deputy McLin’s actions (id.¶¶ 68–72); and (4) state law claims for negligent hiring, training,

and supervising (id. ¶¶ 73–77).

B. Procedural History

Plaintiffs filed their original complaint on February 1, 2019. (Doc. 1.) On May 1, 2019,

Deputy McLin and Sheriff Ard filed separate motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). (Docs. 5, 6.)

On February 10, 2020, this Court issued an order granting in part and denying in part

Deputy McLin’s motion. (Ruling and Order, Doc. 17 at 19.)2 Specifically, the Court (1) dismissed

Plaintiffs’ claim under § 1983 and for medical and veterinary expenses without prejudice; (2)

dismissed Plaintiffs’ claim for Lejune damages with prejudice; and (3) denied the motion in all

other respects. (Id.) With respect to the § 1983 claim, the Court found:

“It is objectively reasonable for an officer to shoot a dog that he

reasonably believes poses a threat.” Romero v. Bexar Cty., 993 F.

Supp. 2d 658, 662 (W.D. Tex. 2014) (citing Altman v. City of High

Point, 330 F.3d 194, 206 (4th Cir. 2003)). However, courts applying

2 Sheriff Ard’s motion was also granted in part and denied in part. (Ruling and Order, Doc. 18.) Specifically, the

Court (1) denied the motion as to Plaintiffs’ state law claim for respondeat superior; (2) dismissed with prejudice

Plaintiffs’ respondeat superior claim under § 1983; and (3) dismissed without prejudice Plaintiffs’ other claims against

Sheriff Ard. (Id. at 20.) The Court gave Plaintiffs leave to amend to cure those claims dismissed without prejudice.

qualified immunity to officer involved shootings of dogs arrive at

different conclusions. . . .

The factual allegations in the Complaint regarding Deputy McLin’s

action are troubling. Specifically, the Complaint alleges that Roscoe

was retreating when Deputy McLin fired the second shots that killed

him. (Doc. 1 at ¶¶ 17-18.) However, the factual allegations in the

Complaint do not set out that Roscoe was in no way a potential threat

when Deputy McLin fired the second shots. In addition, Deputy

points out, the Complaint also provides conclusory allegations that

“there was no justifiable cause for Deputy McLin to discharge his

firearm or use deadly force upon Roscoe” and that “Deputy Mclin

acted unreasonably under the circumstances.” (Doc. 1 at ¶¶ 20 &

31.) This post-hoc rationalization that Deputy McLin “reasonably

could have and should have employed non-lethal methods to restrain

Roscoe, rather than killing him; or could have gone back to his

vehicle as Ms. Skinner advised initially; or allowed Ms. Skinner to

retrieve her dog and put him back in the house” does not overcome

the qualified immunity in this case. For Plaintiffs to show that

qualified immunity is not appropriate, they must set out specific

facts showing the objective unreasonableness of Deputy McLin’s

actions, including that Roscoe did not pose a threat to Deputy McLin

when he fired the shots that killed him. Therefore, the federal law

claims for unreasonable seizure under the Fourth Amendment will

be dismissed.

(Id. at 14–15.) The Court gave Plaintiffs leave to amend their complaint to cure the deficiencies

with respect to the claims under § 1983 and for medical and veterinary expenses. (Id. at 20.)

On March 9, 2020, Plaintiffs filed their First Amended Complaint. (Doc. 20.) On March

20, 2020, Deputy McLin filed the instant re-urged motion to dismiss under Rule 12(b)(6). (Doc.

22.)3

II. Rule 12(b)(6) Standard

“Federal pleading rules call for a ‘short and plain statement of the claim showing that the

pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a

3 Again, Sheriff Ard filed a separate re-urged motion to dismiss. (Doc. 21.)

complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.

City of Shelby, Miss., 514 U.S. 10, 11, 135 S. Ct. 346, 346–47 (2014) (citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has

explained:

The complaint (1) on its face (2) must contain enough factual matter

(taken as true) (3) to raise a reasonable hope or expectation (4) that

discovery will reveal relevant evidence of each element of a claim.

“Asking for [such] plausible grounds to infer [the element of a

claim] does not impose a probability requirement at the pleading

stage; it simply calls for enough fact to raise a reasonable

expectation that discovery will reveal [that the elements of the claim

existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).

Applying the above case law, the Western District of Louisiana has stated:

Therefore, while the court is not to give the “assumption of truth” to

conclusions, factual allegations remain so entitled. Once those

factual allegations are identified, drawing on the court's judicial

experience and common sense, the analysis is whether those facts,

which need not be detailed or specific, allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” [Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

1949 (2009)]; Twombly, 55[0] U.S. at 556. This analysis is not

substantively different from that set forth in Lormand, supra, nor

does this jurisprudence foreclose the option that discovery must be

undertaken in order to raise relevant information to support an

element of the claim. The standard, under the specific language of

Fed. R. Civ. P. 8(a)(2), remains that the defendant be given adequate

notice of the claim and the grounds upon which it is based. The

standard is met by the “reasonable inference” the court must make

that, with or without discovery, the facts set forth a plausible claim

for relief under a particular theory of law provided that there is a

“reasonable expectation” that “discovery will reveal relevant

evidence of each element of the claim.” Lormand, 565 F.3d at 257;

Twombly, 55[0] U.S. at 556.

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3

(W.D. La. Feb. 9, 2011) (citation omitted).

In deciding a Rule 12(b)(6) motion, all well-pleaded facts are taken as true and viewed in

the light most favorable to the plaintiff. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03

(5th Cir. 2014). The task of the Court is not to decide if the plaintiff will eventually be successful,

but to determine if a “legally cognizable claim” has been asserted.” Id. at 503.

III. Discussion

A. Parties’ Arguments

1. Deputy McLin’s Original Memorandum (Doc. 22-2)

Deputy McLin argues that the First Amended Complaint fails to assert a viable claim

against him under federal law because he is entitled to qualified immunity. Deputy McLin

maintains that, when the dog bit him, that was a clear act of aggression that justified the shooting.

Deputy McLin correctly recognizes that the killing of a dog can constitute a seizure under

the Fourth Amendment. He then asserts that, to analyze whether the seizure was reasonable, the

Court must balance the nature and quality of the intrusion on the person’s Fourth Amendment

rights against the governmental interests at stake. Deputy McLin states that this is done by

analyzing the totality of circumstances generally and certain factors in particular, including

whether the dog appeared aggressive, and courts have recognized that “an officer need not use the

least harmful alternative in dealing with a dangerous situation.” (Doc. 22-2 at 10 (citation

omitted).)

Here, Plaintiffs fail to show that Deputy McLin’s actions were unreasonable under the

totality of the circumstances, as (1) the dog was running free on the property and was otherwise

uncontained; (2) the dog had already ran at Deputy McLin, approached him from behind, and bit

his leg; and (3) the dog remained unrestrained after the biting. The mere fact that Roscoe was not

showing signs of aggression before the shooting is irrelevant, as the dog had bitten the deputy, and

Plaintiffs’ allegations that the dog was not aggressive are conclusory.

Ultimately, Plaintiffs have failed to provide any new facts that showed Deputy McLin acted

objectively unreasonable under the circumstances such that every reasonable officer would know

his conduct was unlawful. Little has changed from the Court’s prior ruling, as (1) “there is no

indication in the [First Amended Complaint] that Ms. Skinner was able to apprehend the dog, or

that the dog would not have approached and bit Deputy McLin once more,” and (2) “the dog was

still running at large in the yard and near Deputy McLin, uncontrolled by Ms. Skinner despite her

alleged verbal commands and attempts to restrain him.” (Id. at 12.) Deputy McLin asserts:

There are still no facts pled to show that every reasonable officer

would have known that Deputy McLin’s conduct violated the law.

No facts are pled which would show that shooting a dog that

displayed its aggression by biting the law enforcement officer and

remained unrestrained was so unreasonable that every officer would

have known that it violated the Plaintiffs’ constitutional rights.

Plaintiffs have pointed to no cases that make it “beyond debate” that

it is objectively unreasonable for an officer to shoot an unrestrained

dog which had previously bitten that officer. Without facts detailing

this information, the Court cannot draw the conclusion that Deputy

McLin is not entitled to qualified immunity.

(Id. at 13.) Deputy McLin also emphasizes the high bar qualified immunity imposes. Here,

according to Deputy McLin, it cannot be said “beyond debate” that his conduct violated the law

because “Plaintiffs’ dog, despite not showing outward signs of aggression previously, is alleged to

have bitten Deputy McLin without warning, and remained unrestrained and uncontrolled.” (Doc.

22-2 at 13.) Plaintiff has failed to identify controlling precedent placing Deputy McLin on notice

that his conduct was objectively unreasonable. “The law simply does not require (and certainly

has not established by controlling precedent) that officers wait until a dog approached to bite a

second time before lethal force may be used.” (Id.) In closing, Deputy McLin urges that all federal

claims be dismissed and that, because Plaintiffs have already been afforded one opportunity to

cure the deficiencies, that the dismissal be with prejudice.

2. Plaintiffs’ Opposition (Doc. 28)

Plaintiffs begin their argument by noting a number of cases which have recognized that the

“killing of a companion animal is a seizure under the Fourth Amendment[.]” (Doc. 28 at 4.)

Plaintiffs then contend that Deputy McLin’s conduct was objectively unreasonable. Plaintiffs

largely recounts the details of the First Amended Complaint and then asserts that “Deputy McLin

was never in immediate danger of severe bodily harm or death. Especially at the time that he fired

his gun, Deputy McLin was not in danger of severe bodily harm or death.” (Id. at 5.) Plaintiffs

then emphasize the minor injury caused by the “nip.” Plaintiffs close by arguing that Deputy

McLin could have taken other measures without resorting to lethal force. (Id.)

3. Deputy McLin’s Reply (Doc. 30)

Deputy McLin respond by reurging that “the dog had already bitten Deputy McLin and

was still running at large, unrestrained by Ms. Skinner.” (Doc. 30 at 2.) According to Deputy

McLin, “once the dog bit [him], it posed a threat, and he was reasonable, or, at the very least, was

not objectively unreasonable, in shooting the dog.” (Id.) The law does not require that Deputy

McLin use non-lethal force after being bitten. Plaintiffs largely ignore the second prong of the

qualified immunity analysis, as they fail to point to case law establishing “beyond debate” that

Deputy McLin’s conduct was unlawful. Here, the officer “used deadly force against a dog that

had already bitten him and which was not being controlled by Ms. Skinner.” (Id. at 4.) Deputy

McLin argues:

[U]nless case law establishes “beyond debate” that Deputy McLin was required to

wait for the dog to charge him for a second time, or to cause more grievous harm

after a flagrant show of aggression, before he used deadly force, Plaintiffs cannot

establish that Deputy McLin is not entitled to qualified immunity.

(Id.)

B. Applicable Law

1. Qualified Immunity Generally

“Qualified immunity provides government officials performing discretionary functions

with a shield against civil damages liability, so long as their actions could reasonably have been

thought consistent with the rights they are alleged to have violated.” Gobert v. Caldwell, 463 F.3d

339, 345 (5th Cir. 2006) (citing Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034 (1987)).

“In determining whether an official enjoys immunity, we ask (1) whether the plaintiff has

demonstrated a violation of a clearly established federal constitutional or statutory right and (2)

whether the official's actions violated that right to the extent that an objectively reasonable person

would have known.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508 (2002)). Courts are

“permitted to exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” See Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808 (2009).

“ ‘Qualified immunity attaches when an official's conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’ ”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly, 137 S. Ct.

548, 551 (2017) (per curiam) (alterations and internal quotation marks omitted)). “ ‘Because the

focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is

judged against the backdrop of the law at the time of the conduct.’ ” Id. (quoting Brosseau v.

Haugen, 543 U.S. 194, 198, 125 S. Ct. 596 (2004) (per curiam)).

“Although ‘[the Supreme] Court's caselaw does not require a case directly on point for a

right to be clearly established, existing precedent must have placed the statutory or constitutional

question beyond debate.’ ” Id. (quoting White, 137 S. Ct. at 551 (internal quotations omitted)). “

‘In other words, immunity protects all but the plainly incompetent or those who knowingly violate

the law.’ ” Id. (quoting White, 137 S. Ct. at 551 (internal quotations omitted)).

“ ‘Of course, general statements of the law are not inherently incapable of giving fair and

clear warning to officers.’ ” Kisela, 138 S. Ct. at 1153 (quoting White, 137 S. Ct. at 552 (internal

quotation marks omitted)). “But . . . [a]n officer ‘cannot be said to have violated a clearly

established right unless the right's contours were sufficiently definite that any reasonable official

in the defendant's shoes would have understood that he was violating it.’ ” Id. (quoting Plumhoff

v. Rickard, 134 S. Ct. 2012, 2023 (2014)).

Phrased another way, “[w]hen considering a defendant’s entitlement to qualified immunity,

[the Court] must ask whether the law so clearly and unambiguously prohibited his conduct that

‘every reasonable official would understand that what he is doing violates [the law].’ ” McLin v.

Ard, 866 F.3d 682, 695 (5th Cir. 2017) (citing Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir.

2011) (en banc) (quoting al-Kidd, 563 U.S. at 741, 131 S. Ct. 2074)). “ ‘To answer that question

in the affirmative, we must be able to point to controlling authority—or a robust consensus of

persuasive authority—that defines the contours of the right in question with a high degree of

particularity.’ ” Id. (quoting Morgan, 659 F.3d at 371–72 (internal quotations omitted) (quoting

al-Kidd, 563 U.S. at 742, 131 S. Ct. 2074)). “ ‘Where no controlling authority specifically prohibits

a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be

said to be clearly established.’ ” Id. (quoting Morgan, 659 F.3d at 372).

2. Fourth Amendment Seizures

“The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.’ ” Grant v. City of

Houston, 625 F. App'x 670, 675 (5th Cir. 2015) (quoting U.S. Const. amend. IV). “A ‘seizure’ of

property occurs when an officer meaningfully interferes ‘with an individual's possessory interests

in that property.’ ” Id. (quoting Severance v. Patterson, 566 F.3d 490, 501 (5th Cir.2009) (quoting

United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L.Ed.2d 85 (1984))). “The

destruction of property constitutes a meaningful interference with an individual's possessory

interests.” Id. (citing Jacobsen, 466 U.S. at 124–25, 104 S. Ct. 1652). “It is beyond dispute” that

the killing of an individual’s pet dog by an officer constitutes a “seizure” “within the meaning of

the Fourth Amendment.” See id. (citing San Jose Charter of Hells Angels Motorcycle Club v. City

of San Jose, 402 F.3d 962, 975 (9th Cir.2005) (“ ‘The killing of [a] dog is a destruction recognized

as a seizure under the Fourth Amendment’ and can constitute a cognizable claim under § 1983.”

(alteration in original) (quoting Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other

grounds by Robinson v. Solano Cnty., 278 F.3d 1007, 1013 (9th Cir. 2002)))).

“Seizures by law-enforcement officials violate the Fourth Amendment only if they are

unreasonable.” Id. (citing Plumhoff v. Rickard, ––– U.S. ––––, 134 S. Ct. 2012, 2020, 188 L.Ed.2d

1056 (2014) (“A claim that law-enforcement officers used excessive force to effect a seizure is

governed by the Fourth Amendment's ‘reasonableness' standard.”). “To determine whether a

seizure was reasonable, we look to the totality of the circumstances, balancing ‘the nature and

quality of the intrusion on the individual's Fourth Amendment interests against the countervailing

governmental interests at stake.’ ” Id. (quoting Plumhoff, 134 S. Ct. at 2020 (quoting Graham v.

Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).

Grant was another case involving the killing of a dog by police officers. The Fifth Circuit

found no error in the district court’s granting of summary judgment to the defendants. Id. at 676.

In doing so, the appellate court weighed the “grave intrusion on [the owner’s] property rights” but

found that the “governmental interest of safety provide[d] a sound justification” for the officers’

conduct. Id. (citations omitted).

Grant provides guidance to this Court with respect to how to evaluate these Fourth

Amendment claims. The Fifth Circuit “examine[s] an officer's use of deadly force from

the perspective “of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” We thus “allo[w] for the fact

that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular

situation.”

Grant, 625 F. App’x at 677 (quoting Plumhoff, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014)

(alteration in original) (citation omitted) (quoting Graham, 490 U.S. at 396–97, 109 S. Ct. 1865)).

Factors which Grant considered include whether the officer had “advanced notice that a dog was

present on the premises” or were otherwise surprised by the dog,” whether the officer took

“reasonable precautions” to deal with the dog, whether the officer had “exhausted all non-lethal

options prior to using lethal force against the dog.” See id. at 675–76 (relying on Hells Angels, 402

F.3d at 975–78). The Fifth Circuit has also looked at whether the dog was “aggressive,” whether

it was “retreating or fleeing from the officer” or “in fact running towards . . . the officer at the time

the lethal shot was fired,” and whether the dog had “aggressive tendencies” or was “aggressively

barking prior to the shots being fired.” See id at 677. Still other factors include whether the officer

was “imminently in danger of being bitten by [the dog] at the time [the officer] discharged his

weapon” and whether the animal was shot from behind. See id. at 677–78. Again, the key question

is reasonableness based on the totality of the circumstances. Id. at 675.

3. Qualified Immunity with Fourth Amendment Seizures

Considering all of this, “[i]t is objectively reasonable for an officer to shoot a dog that he

reasonably believes poses a threat.” Romero v. Bexar Cty., 993 F. Supp. 2d 658, 662 (W.D. Tex.

2014) (citing Altman v. City of High Point, N.C., 330 F.3d 194, 206 (4th Cir. 2003)). For example,

in Romero, the court granted summary judgment for an officer because “he had reason to believe

that [the plaintiff] was armed and dangerous”; because, upon approaching a house, “several large

dogs ran out aggressively charging, barking and growling”; and because he “acted in self-defense

when he shot the dog.” Id. at 661–62.

Similarly, in Stephenson v. McClelland, 632 F. App'x 177 (5th Cir. 2015), the Fifth Circuit

found that the plaintiffs failed to provide sufficient evidence to show that a reasonable officer in

the defendant’s shoes would know his conduct violated a clearly established right. Id. at 185. The

appellate court based this decision on the following facts: (1) the officer “did not know there would

be a dog present during his encounter with [the suspect] and was surprised by its presence”; (2)

the officer did not know the family pet was “friendly and nonaggressive”; and (3) the officer “was

startled by a large dog that was showing its teeth (whether baring them aggressively or ‘smiling’).”

Id. The Fifth Circuit concluded that the officer “was forced to make a split-second judgment in a

tense situation and he acted to protect himself.” Id.

Conversely, in Kincheloe v. Caudle, No. 09-010, 2009 WL 3381047 (W.D. Tex. Oct. 16,

2009), report and recommendation adopted, No. 09-010, 2009 WL 10699745 (W.D. Tex. Dec. 7,

2009), the magistrate judge recommended that summary judgment be denied because, according

to the plaintiffs’ version of events, the dog Buddy “did not pose an immediate danger to the public

or [the chief] when [the chief] decided to draw his weapon and shoot and kill Buddy.” Kincheloe,

2009 WL 3381047, at *8. According to the plaintiffs, the dog had been on the plaintiffs’ front

porch, and the chief had been in the street standing in front of his patrol car. Id. Buddy had

“beg[u]n to walk slowly toward some bushes in the front yard” when “Chief Caudle drew his gun

and fired two shots at Buddy, killing him.” Id. Plaintiffs had denied “that Buddy charged Chief

Caudle or acted aggressively in any manner.” Id. The magistrate judge concluded:

Based upon Plaintiffs' allegations, Chief Caudle was not faced with

exigent circumstances[, see., e.g., Altman, 330 F.3d at 206 (finding

that killing of dogs was reasonable where officer was charged by a

pack of five dogs that had already attacked persons in the

neighborhood and another officer)] that necessitated the killing of

the dog. If the facts asserted by the Plaintiffs are found to be true,

the Court finds that a reasonable officer in Chief Caudle's position

would have known that the killing of the Kincheloes' dog at the

Kincheloes' residence was unlawful. . . . See [Vilo v. Eyre, 547 F.3d

707, 710 (7th Cir. 2008)] (holding that fact issues precluded

summary judgment on qualified immunity defense where plaintiffs

alleged that officer shot their pet dog multiple times after the dog no

longer posed a threat); [Andrews v. City of West Branch, 454 F.3d

914, 918–19 (8th Cir. 2006)] (finding that officer was not entitled to

qualified immunity where facts showed that police chief knew at the

time he shot pet dog in enclosed yard that he was violating dog

owner's clearly established Fourth Amendment rights); [Brown v.

Muhlenberg Twp., 269 F.3d 205, 209, 211-212 (3d Cir. 2001)]

(finding that there were material fact issues which precluded

summary judgment for officer on Fourth Amendment claim where

plaintiffs alleged “officer intentionally and repeatedly shot a pet

without any provocation and with knowledge that it belonged to the

family who lived in the adjacent house and available to take

custody.”); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled

on other grounds, by Robinson v. Solano County, 278 F.3d 1007 (9th

Cir. 2002) (finding that fact issues precluded summary judgment

where plaintiffs alleged that police officers walked onto plaintiffs'

front lawn and fired shots at dog after the dog had stood up and

denied that dog had charged officer). See also, San Jose Charter of

Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 978

(9th Cir. 2005) (denying summary judgment on qualified immunity

grounds after finding that “[a] reasonable officer should have known

that to create a plan to enter the perimeter of a person's property,

knowing all the while about the presence of dogs on the property,

without considering a method for subduing the dogs besides killing

them, would violate the Fourth Amendment.”).

Id. at *8 & n.5. The district court adopted this part of the magistrate judge’s report and

recommendation and allowed the Fourth Amendment seizure claim to proceed. Id., 2009 WL

10699745, at *5–6.

Thus, as reflected in Kincheloe, other “circuits have invariably concluded that ‘the use of

deadly force against a household pet is reasonable only if the pet poses an immediate danger and

the use of force is unavoidable.’ ” Robinson v. Pezzat, 818 F.3d 1, 7–8 (D.C. Cir. 2016) (quoting

Viilo, 547 F.3d at 710, and citing Hells Angels, 402 F.3d at 975–78 (holding that the killing of

guard dogs was unreasonable under the Fourth Amendment where “the officers were not presented

with exigent circumstances that necessitated killing the dogs”); Brown, 269 F.3d at 210–11 (“[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. In the latter case, the state's interest may even justify the extreme

intrusion occasioned by the destruction of the pet in the owner's presence. This does not mean,

however, that the state may, consistent with the Fourth Amendment, destroy a pet when it poses

no immediate danger and the owner is looking on, obviously desirous of retaining custody.”

(footnotes omitted)); see also Bletz v. Corrie, 974 F.3d 306, 310 (3d Cir. 2020) (“we hold that the

use of deadly force against a household pet is reasonable if the pet poses an imminent threat to the

law enforcement officer's safety, viewed from the perspective of an objectively reasonable

officer.” (citing Brown, 269 F.3d at 210–11; Brown v. Battle Creek Police Dep't, 844 F.3d 556,

568 (6th Cir. 2016) (“[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.”)).

4. Analysis

Having carefully considered the matter, the Court will deny Deputy McLin’s motion. The

Court first finds that Plaintiffs have sufficiently pled a Fourth Amendment violation. That is, the

Court finds that, viewing the totality of the circumstances, the operative complaint, on its face,

contains enough factual matter that, when taken as true, raises a reasonable hope or expectation

that discovery will reveal relevant evidence of each element of Plaintiffs’ federal claims. See

Lormand, 565 F.3d at 257.

While Defendants maintain that Roscoe was loose and “nipped” Deputy McLin’s calf, they

ignore the factors which the Fifth Circuit looked to in Grant, almost all of which weigh in favor

of Plaintiffs. Specifically, Deputy McLin had “advanced notice that a dog was present on the

premises” and was otherwise unsurprised by the dog, see Grant, 625 F. App’x at 675–76; First

Amend. Compl. ¶ 12–13, 48, Doc. 20. The deputy failed to take any “reasonable precautions” to

deal with the dog (and in fact proceeded toward the house after being warned the dog was loose

while saying he was “not worried about the dog,” see Grant, 625 F. App’x at 675–76; First Amend.

Compl. ¶ 12–13, 48, Doc. 20. Deputy McLin also failed to exhaust any non-lethal options prior to

using lethal force, see Grant, 625 F. App’x at 675–76; First. Amend. Compl. ¶¶ 20–27, 35, Doc.

20.

Further, Roscoe was not aggressive but only “nipped” (that is, “bit or pinch[ed] . . . lightly”)

the officer in a way that caused virtually no injuries—only a scratch and no torn pants or ripped

pants leg, see Grant, 625 F. App’x at 677; First. Amend. Compl. ¶¶ 17, 36, Doc. 20; Merriam-

Webster, nip, https://www.merriam-webster.com/dictionary/nip . Roscoe was “retreating [and]

fleeing from the officer . . . at the time the lethal shot[s] [were] fired,” see Grant, 625 F. App’x at

677; First Amend. Compl. ¶¶ 18–20, 23, 24–25, Doc. 20). Roscoe was also not “aggressively

barking prior to the shots being fired,” see Grant, 625 F. App’x at 677, as, indeed, the dog was in

no way barking, growling, showing his teeth, or showing any signs of aggression, First. Amend.

Compl. ¶¶ 14–15, 18–19, Doc. 20.

Perhaps most importantly, Deputy McLin was not “imminently in danger of being bitten

by [the dog] at the time [the officer] discharged his weapon,” see Grant, 625 F. App’x at 675–78.

Critically, Roscoe was running away from the officer at the time he was initially shot. First Amend.

Compl. ¶¶ 18–19, Doc. 20. After Roscoe was shot, he was crawling away from Deputy McLin,

wounded and “unable to stand, walk, run, or jump. (Id. ¶¶ 20, 22–23.) Roscoe “clearly posed no

danger or threat to anyone” when Deputy McLin “took a few steps directly toward Roscoe, stood

over the dog, pointed his gun at Roscoe’s head, and pulled the trigger, killing Roscoe with a single

and final shot to the head.” (Id. ¶ 27.)

Considering the totality of the circumstances, the Court finds that Plaintiffs have clearly

alleged a Fourth Amendment violation. See Jones v. Lopez, 689 F. App'x 337 (5th Cir. 2017) (per

curiam) (“agree[ing] with the legal ruling that the killing of the plaintiffs’ pet dog raise[d] a Fourth

Amendment claim” when plaintiffs claimed that “[t]hey never saw him threaten to attack the

officers, heard him growl, or otherwise pose the threat identified by the officers” and when they

claimed the dog was retreating from the officers); Kincheloe, 2009 WL 3381047, at *8.

Second, the Court finds that Deputy McLin is not entitled to qualified immunity. Again,

“[i]t is objectively reasonable for an officer to shoot a dog that he reasonably believes poses a

threat.” Romero, 993 F. Supp. 2d at 662. Deputy McLin’s only argument is that, when Deputy

McLin fired the first two shots which wounded Roscoe, the dog was loose and had bitten him in

the leg. But, considering the minor nature of the scratch and the fact that Roscoe was running

away from the officer, McLin could not have reasonably believed Roscoe posed a threat at that

point.

Even if a reasonable officer in Deputy McLin’s shoes could have believed that Roscoe

posed a threat when he first shot Roscoe in the side, the First Amended Complaint makes clear

that, after those initial shots, Roscoe was “still alive but was seriously wounded . . . and . . . unable

to stand, walk, run, or jump.” (Id. ¶ 22.) Roscoe was retreating from the officer, as he “attempted

to crawl on his side toward the house and [Ms. Skinner].” (Id. ¶¶ 23, 25.) Then:

While Roscoe was on his side unable to stand, walk, run, or jump,

and was crying in pain and severely wounded, and clearly posed no

danger or threat to anyone, [Deputy McLin] took a few steps directly

toward Roscoe, stood over the dog, pointed his gun at Roscoe’s

head, and pulled the trigger, killing Roscoe with a single and final

shot to the head.

(Id. ¶ 27.) In sum, at the time the final shot was fired, Roscoe did not pose a threat, and every

reasonable officer would know that killing the dog when he was no longer a threat was objectively

unreasonable and plainly incompetent. See Kincheloe, 2009 WL 3381047, at *8 n.5 (collecting

extensive persuasive authority that killing dog that was not a threat is objectively unreasonable).

This case is a far cry from Grant, Stephenson, and Romero. Unlike Stephenson, Deputy

McLin knew the dog was present during the encounter and was otherwise not surprised, and the

dog was not aggressive or showing his teeth at the time of the shooting. Stephenson, 632 F. App’x

at 185. Rather, Roscoe was running back toward his owner. Further, unlike Romero, there was

no reason to believe that Plaintiffs were “armed and dangerous,” and Roscoe did not “r[u]n out

aggressively charging, barking and growling.” Romero, 993 F. Supp. 2d at 662 Moreover, at the

time Roscoe was shot in the head, he unquestionably no longer posed a threat, and Deputy McLin

was not acting in self-defense. Lastly, as demonstrated above, nearly all of the factors Grant

considered weigh in favor of a constitutional violation.

Kincheloe cites Viollo, and the Court finds this Seventh Circuit case directly on point.

There, officers received an anonymous tip that a wanted felon had entered the plaintiffs’ home

accompanied by a pit bull. Viollo, 547 F.3d at 708–09. As six officers approached the house, the

family dog Bubba ran toward the officers and, according to them, growled and exposed his teeth

(though a neighbor testified the dog came out to greet them). Id. at 709. One officer fired two

shots at the dog, at least one of which shots hit the dog and caused a bone fracture in his front leg.

Id. The dog retreated to the bushes near the front window of the house and remained hidden for

ten minutes. Id. Officers refused to let the owners retrieve the dog or call a veterinarian. Id. One

officer then approached the bush, which prompted the dog to emerge and head toward the gangway

leading to the back yard. Id. Multiple witnesses testified that “Bubba was limping and whimpering

as he emerged from the bushes and that he was just trying to get back to” the plaintiffs. Id. A

witness testified that the dog was moving slowly and just sat down when an officer “came out . . .

from the front . . . And he lowered his shotgun[.]” Id. An officer fired that shotgun a third and

fourth time and killed Bubba. Id.

The Seventh Circuit began, “Although this is not, to say the least, a record that paints a

sympathetic picture of the defendants' actions on the night Bubba was killed, the defendants

nonetheless argue that they are entitled to qualified immunity as a matter of law.” Id. The officers

argued that the killing was justified (1) because of “the risk that Bubba might interfere with their

investigation;” and (2) because it was not clearly established at the time that this seizure was a

Fourth Amendment violation. Id. at 710.

The Seventh Circuit rejected both arguments. The appellate court explained:

This first argument is obviously and vigorously contested. Despite

the police testimony, at least seven witnesses testified that Bubba

wasn't interfering with the officers when he was shot for the third

and fourth time. Rather, according to the witnesses, he was

attempting to limp back to his owner. It should go without saying

that this testimony, if it is credited by the jury, does not support the

conclusion that the decision to shoot Bubba a third and fourth time

was reasonable.

Id. As to the second argument, the court looked to persuasive authority which “clearly establish

that it is unreasonable for officers to kill a person's pet unnecessarily” but found that “these

decisions are not essential to reaching this conclusion.” Id. The Seventh Circuit then stated:

“[T]he very action in question [need not have] previously been held

unlawful” for a public official to have reasonable notice of the

illegality of some action. Anderson v. Creighton, 483 U.S. 635, 640,

107 S. Ct. 3034, 97 L.Ed.2d 523 (1987). In 2001, we held that

domestic animals are “effects” within the meaning of the Fourth

Amendment. See [Siebert v. Severino, 256 F.3d 648, 656 (7th Cir.

2001).] The Siebert decision is enough to give police officers

reasonable notice that unnecessarily killing a person's pet offends

the Fourth Amendment.

Id. at 710–11.

The same reasoning applies here with even greater force. Unlike Villo, where the police

had received an anonymous tip that a wanted felon had entered the plaintiffs’ home with a pit bull,

547 F.3d at 708–09, here, Deputy McLin was merely serving a jury summons, so there was no

suspected criminal activity or danger. Additionally, like Villo, at the time of the fatal shot, Roscoe

was wounded and “attempting to limb back to his owner.” Id. at 709. Further, the “robust

consensus of persuasive authority” highlighted by Kincheloe and exemplified by Villo clearly

establish that the killing of a pet dog which the officer does not reasonably believe is a threat is

objectively unreasonable.

In any event, as in Villo, reliance on persuasive authority is not essential, as Grant

recognizes that “[i]t is beyond dispute that the killing of an individual’s pet dog by an officer

constitutes a ‘seizure’ within the meaning of the Fourth Amendment” and that “[s]eizures by law-

enforcement officials violate the Fourth Amendment . . . if they are unreasonable.” Grant, 625 F.

App'x at 675. Certainly, it was fair notice that it was objectively unreasonable to execute Roscoe

when he was seriously wounded; when he could not stand, walk, run, or jump; when he was

retreating from the officer; and when Deputy McLin had to take “a few steps directly toward” the

pet to finish Roscoe by firing the kill shot into his head.

For all these reasons, Deputy McLin is not entitled to qualified immunity. His motion is

denied.

IV. Conclusion

Accordingly,

IT IS ORDERED that the Re-Urged Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc.

22) filed by Defendant Deputy Barney McLin is DENIED.

Signed in Baton Rouge, Louisiana, on February 3, 2021.

S

JUDG E JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA