Virginia Viilo v. Kevin Eyre

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 08-1627

V IRGINIA V IILO,

Plaintiff-Appellee,

v.

K EVIN E YRE and M ONTELL D. C ARTER,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:05-cv-00216-CNC—Charles N. Clevert, Jr., Judge.

A RGUED S EPTEMBER 23, 2008—D ECIDED O CTOBER 27, 2008

Before B AUER, C UDAHY and W ILLIAMS, Circuit Judges.

C UDAHY, Circuit Judge. Virginia Viilo sued the City

of Milwaukee and two of its police officers under the

Fourth Amendment via 42 U.S.C. § 1983 after Officer

Montell Carter shot and killed her dog Bubba. The

district court denied the defendants’ motion for sum-

mary judgment on the basis of qualified immunity and

the defendants took an interlocutory appeal challenging

this denial. The defendants’ interjection of factual dis-

2 No. 08-1627

putes deprives us of jurisdiction. Accordingly, we

dismiss the appeal.

I.

On the evening of August 15, 2004, Virginia Viilo was

relaxing in her backyard with her elderly mother, her

boyfriend, his parents and her dog Bubba, a seven-year-

old Labrador Retriever/Springer Spaniel mix. Their rest

was disturbed when a team of six officers from the Mil-

waukee Police Department, including Officer Montell

Carter, arrived at Viilo’s house. The officers had received

an anonymous tip that a wanted felon had entered Viilo’s

home accompanied by a pit bull. Carter prepared for

this eventuality by arming himself with a shotgun

because, as he later said, “the best weapon for a dog is

a shotgun through my experience.”

Bubba was the first to hear the officers as they fanned out

and approached Viilo’s front door. He ran from Viilo’s

backyard to a gangway along the side of the house

leading to the front yard, leapt a three-foot high gate and

ran toward the officers, who were by now close to Viilo’s

front porch. Although the officers testified that Bubba

was growling and exposing his teeth and gums, a

neighbor who witnessed the scene later testified that

the dog was coming out to greet them. Apparently

fearing for the officers’ safety, Carter fired two shots at

Bubba, hitting him at least once and causing comminuted

and compound bone fractures to his front leg. Bubba, in

turn, retreated to the bushes near the front window of

Viilo’s house where he hid for the next ten minutes.

No. 08-1627 3

Carter kept watch over Bubba, while the other officers

proceeded to the backyard to make contact with Viilo

and her guests. The officers refused to allow Viilo to

retrieve Bubba or to call a veterinarian. Some ten min-

utes later, Sergeant Kevin Eyre arrived on the scene.

During this time, a crowd of Viilo’s neighbors responded

to the commotion by gathering around the house; some

of them were shouting at the officers, telling them that

Bubba wasn’t a bad dog. Apparently undeterred, Eyre

approached the bush where Bubba was hiding, which

prompted Bubba to emerge from the bush and head

toward the gangway leading to the backyard. Although

the officers stated that Bubba ran out from under the

bushes with his teeth and gums exposed, multiple wit-

nesses testified that Bubba was limping and whimpering

as he emerged from the bushes and that he was just

trying to get back to Viilo.

Viilo’s boyfriend later testified as to what happened next:

I walked to the gate, I opened the gate, and the gate

makes a metal sound. And I was calling the dog, and

as I opened up the gate to go out the front, I could see

the dog move from in front of the house—from what

I seen, moving from the front of the house to the

side. He just kind of like slowly moved over. And

when he saw me, he sat down, and he looked me

right in the eye, and he just—in the eyes, and he

was just looking at me. And all of a sudden, an officer

came out from—it looked like from the front . . . And

he lowered his shotgun, and I just screamed. I went

“No.” I says—you know, I just—I remember just

hollering “No, no.”

4 No. 08-1627

Eyre raised his handgun to shoot Bubba. Although he later

professed to fear for his own safety, he nevertheless

reconsidered his decision to use his handgun and ordered

Carter, who had a shotgun, to shoot Bubba instead. The

crowd, meanwhile, had grown larger and people were

yelling at the officers not to shoot. Ignoring the crowd’s

pleas, Carter shot Bubba a third and then a fourth time.

Although Eyre later testified that he ordered the

fourth shot to end Bubba’s suffering, he made no

mention of this to the police lieutenant who wrote

the official police report.

II.

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 nonethe-

less argue that they are entitled to qualified immunity as

a matter of law.

Qualified immunity protects government officials from

liability for civil damages if their actions did not violate

“clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Unless and until the

Supreme Court overturns Saucier v. Katz, 533 U.S. 194

(2001),1 the defendants’ assertion of qualified immunity

1

In Pearson v. Callahan, No. 07-751, the Supreme Court directed

the parties to brief and argue “[w]hether the Court’s decision

in Saucier v. Katz, 533 U.S. 194 (2001), should be overruled.”

(continued...)

No. 08-1627 5

is subject to the familiar, two-step analysis: first, we ask

“whether a constitutional right would have been violated”

on Viilo’s version of the facts; if so, we then ask “whether

the right was clearly established.” Id. at 200.

There is no question that Viilo’s account of events

establishes a violation of her constitutional rights. Every

circuit that has considered the issue has held that the

killing of a companion dog constitutes a “seizure” within

the meaning of the Fourth Amendment. See Altman v.

City of High Point, N.C., 330 F.3d 194, 204-05 (4th Cir.

2003); Brown v. Muhlenbergs Twp., 269 F.3d 205, 210-11 (3d

Cir. 2001); Lesher v. Reed, 12 F.3d 148, 150 (8th Cir. 1994);

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

other grounds by Robison v. Solano County, 278 F.3d 1007,

1013 (9th Cir. 2002); see also Siebert v. Severino, 256 F.3d 648,

656 (7th Cir. 2001) (holding that the seizure of a horse is

a Fourth Amendment event). The defendants’ actions,

therefore, were constitutional only if reasonable. See

United States v. Place, 462 U.S. 696, 703 (1983).

Both common sense, and indeed Wisconsin law, see

Wis. Stat. § 174.01(1), counsel 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.

See, e.g., Brown, 269 F.3d at 210-11. The defendants make

two attempts to resist this conclusion: first, they argue

that the killing was justified based on the risk that

1

(...continued)

See http://www.scotuswiki.com/index.php?title=Pearson_v._

Callahan (visited Oct. 1, 2008).

6 No. 08-1627

Bubba might interfere with their investigation; second,

they argue that it was not clearly established in 2004 that

the seizure of a dog was a Fourth Amendment event.

This first argument is obviously and vigorously con-

tested. Despite the police testimony, at least seven wit-

nesses testified that Bubba wasn’t interfering with the

officers when he was shot for the third and forth 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.

As to the defendants’ second argument, it is true that

to be “clearly established,” a right must be specific to the

relevant factual context of a cited case and not gen-

eralized with respect to the Amendment that is the basis

of the claim. Brousseau v. Haugen, 543 U.S. 194, 198-99

(2004). Nevertheless, the defendants had reasonable

notice that killing Bubba would constitute the “seizure” of

an “effect” within the meaning of the Fourth Amendment.

In 2001, the Third Circuit said that “the state’s interest

in protecting life and property may be implicated when

there is reason to believe the pet poses an imminent

danger. . . . 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.” Brown,

269 F.3d 205, 210-11 (emphasis added). Along the same

lines, in a case decided after the events at issue here, the

Ninth Circuit held that it was clearly established in 1998

that an officer cannot kill a person’s pet unnecessarily. See

No. 08-1627 7

San Jose Charter of Hells Angels Motorcycle Club v. City of

San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005).

While Brown and Hells Angels clearly establish that it is

unreasonable for officers to kill a person’s pet unnecessar-

ily, these decisions are not essential to reaching this

conclusion. “[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 (1987). In 2001, we

held that domestic animals are “effects” within the mean-

ing of the Fourth Amendment. See Siebert, 256 F.3d at 656.

The Siebert decision is enough to give police officers

reasonable notice that unnecessarily killing a person’s

pet offends the Fourth Amendment.

III.

In fact, were we able to reach the merits of this appeal,

there would be a strong case for affirming the district

court. However, the existence of disputed issues of fact

deprives us of jurisdiction to address the defendants’

qualified immunity defense.

Because 28 U.S.C. § 1291 gives appellate courts juris-

diction to hear appeals only from “final decisions,” inter-

locutory appeals are the exception, not the norm. In

Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme

Court clarified the scope of this exception, holding

that orders denying summary judgment are immedi-

ately appealable under the collateral order doctrine

where (1) the defendant was a public official asserting a

8 No. 08-1627

defense of qualified immunity, and (2) the issue appealed

concerned not which facts the parties might be able to

prove, but rather whether or not those facts showed a

violation of clearly established law. Id. at 528.

The basis for the Mitchell decision was the Court’s

conclusion that pretrial orders denying qualified

immunity were “effectively unreviewable,” since review

after trial would come too late to vindicate the right

of public officials not to stand trial in certain circum-

stances. Id. at 525-27. At the same time, the Court made

it clear that the right of public officials not to stand trial

is far from absolute, and that orders denying sum-

mary judgment on the basis of qualified immunity would

be immediately appealable only when

[an] appellate court reviewing the denial of the defen-

dant’s claim of immunity need not consider the cor-

rectness of the plaintiff’s version of the facts, nor

even determine whether the plaintiff’s allegations

actually state a claim. All it need determine is a ques-

tion of law: whether the legal norms allegedly

violated by the defendant were clearly established at

the time of the challenged actions.

Id. at 528. The Supreme Court unanimously reaffirmed

this limit to the immediate appealability of orders

denying summary judgment on the basis of qualified

immunity in Johnson v. Jones, 515 U.S. 304 (1995), holding

that “a defendant, entitled to invoke a qualified immunity

defense, may not appeal a district court’s summary

judgment order insofar as that order determines whether

No. 08-1627 9

or not the pretrial record sets forth a ‘genuine’ issue of

fact for trial.” Id. at 319-20.

Of course, a district court’s mere assertion that

disputed factual issues exist does not automatically

preclude an immediate appeal. See Behrens v. Pelletier, 516

U.S. 299, 312-13 (1996). To the contrary, rulings remain

appealable where the defendant appeals the denial of

qualified immunity on the basis of stipulated facts, on

the facts as alleged by the plaintiffs or on the facts the

district court deems sufficiently supported to create jury

issues. See Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)

(Newman, J.). However, as Judge Newman went on to

emphasize, “[w]hat we may not do, after Johnson and

Behrens, is entertain an interlocutory appeal in which a

defendant contends that the district court committed an

error of law in ruling that the plaintiff’s evidence was

sufficient to create a jury issue on the facts relevant to

the defendant’s immunity defense.” Id. at 91. Guided by

these principles, we have not hesitated to dismiss inter-

locutory appeals where the defendant interposes factual

issues in the appeal. See, e.g., Dufour-Dowell v. Cogger, 152

F.3d 678, 680 (7th Cir. 1998); Gorman v. Robinson, 977

F.2d 350, 355 (7th Cir. 1992).

The present case easily fails the standard for

appealability in the aftermath of Johnson and Behrens. The

district court held that “[a] reasonable jury could find

that at Eyre’s order Carter shot Bubba as he was crying,

sitting down, moving slowly, or headed to the backyard.”

Viilo v. City of Milwaukee, 552 F. Supp. 2d 826, 840 (E.D. Wis.

2008). The defendants have manifestly not based their

10 No. 08-1627

appeal on these facts. Indeed, even on appeal, the parties’

views of the facts could not be more different. Viilo

introduced evidence from two experts who concluded

that as a result of Bubba’s injuries after the first two

shots, he would not have posed a threat. This conclusion

was corroborated by the testimony of Viilo’s boyfriend

and at least six neighbors, each of whom stated that

Bubba was limping, crying and trying to get back to the

gangway leading to the backyard when he was shot for

the third and fourth times.

The defendants reject this testimony. According to

them, Bubba “came out of the bushes, with its gums and

teeth exposed, growling and barking.” They insist that

“[t]he third shot . . . was intended to protect Sergeant

Eyre, Officer Carter and the other officers” because “[t]here

is no evidence that Bubba became less dangerous after

the first two shots.” Further, they gloss over factual issues

regarding Eyre’s motivation for ordering the fourth shot.

In denying rather than embracing the facts the district

court held to be sufficiently well-supported to create

jury issues, the defendants have pleaded themselves out

of court. The appeal is therefore

D ISMISSED.

10-27-08