Brown v. Muhlenberg Township

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

10-11-2001

Brown v. Muhlenberg Twp

Precedential or Non-Precedential:

Docket 00-1846

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Filed October 11, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-1846

KIM BROWN; DAVID BROWN, H/W

Appellants

v.

MUHLENBERG TOWNSHIP; BOARD OF SUPERVISORS OF

MUHLENBERG TOWNSHIP; MUHLENBERG TOWNSHIP

POLICE DEPARTMENT; ROBERT M. FLANAGAN,

individually and/or as Chief of Police of Muhlenberg

Township; ROBERT D. EBERLY, individually and/or as

Patrolman of Muhlenberg Township; HARLEY SMITH,

individually and/or as Chief of Police of

Muhlenberg Township

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 99-cv-01076)

District Judge: Honorable John P. Fullam

Argued May 15, 2001

BEFORE: SCIRICA, GARTH and STAPLETON,

Circuit Judges

(Opinion Filed: October 11, 2001)

Thomas A. Whelihan

Reger & Rizzo

800 Kings Highway North -

Suite 203

Cherry Hill, NJ 08034

and

Deirdre A. Agnew (Argued)

1450 East Boot Road

West Chester, PA 19380

Attorneys for Appellants

Enger McCartney-Smith (Argued)

Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103

Attorney for Amicus Curiae

Animal Legal Defense Fund

Anthony R. Sherr (Argued)

Mayers, Mennies & Sherr

3031 Walton Road, Building A,

Suite 330

P.O. Box 1547

Blue Bell, PA 19422

and

L. Rostaing Tharaud (Argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street - 16th Floor

Philadelphia, PA 19103

Attorneys for Appellees

2

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This is a civil rights action arising out of the shooting of

a pet dog. The plaintiffs/appellants are Kim and David

Brown, the owners of the pet. Police Officer Robert Eberly

is alleged to be the primary constitutional tortfeasor. Officer

Eberly's employer, Muhlenberg Township, its Board of

Supervisors, and two of its Chiefs of Police are also alleged

to be responsible for Officer Eberly's constitutional torts on

various theories. Additionally, the Browns assert a state law

claim. The District Court granted summary judgment to the

defendants on all claims.

We first address the facts and law concerning whether a

constitutional violation occurred. We then examine whether

the defendants other than Officer Eberly share

responsibility for any constitutional violations that may

have occurred. Finally, we focus on the state law claim.

Because this case comes to us on appeal from the District

Court's grant of summary judgment to the defendants, we

view the facts in the light most favorable to the Browns,

drawing every reasonable inference in their favor. See

Beers-Capitol v. Whetzel, 256 F.3d 120, 130 n.6 (3d Cir.

2001).

I. FACTS

The Browns lived in a residential section of Reading,

Pennsylvania. On the morning of April 28, 1998, they were

in the process of moving. Kim was upstairs packing, while

David was loading the car. Immi, their three year old

Rottweiler pet, had been placed in the Browns' fenced yard.

Although the Browns had not secured a dog license for her,

Immi wore a bright pink, one inch wide collar with many

tags: her rabies tag, her microchip tag, a guardian angel

tag, an identification tag with the Browns' address and

telephone number, and the Browns' prior Rottweiler's

lifetime license. Unbeknownst to the Browns, the latch on

the back gate of their fence had failed, and Immi had

wandered into the adjacent parking lot beyond the fence.

3

A stranger parked in the lot observed Immi as she

wandered about in it. After three or four minutes of sniffing

and casually walking near the fence, Immi approached the

sidewalk along the street on which the Browns lived. As she

reached the curb, Officer Eberly was passing in his patrol

car. Seeing Immi, he pulled over, parked across the street,

and approached her. He clapped his hands and called to

her. Immi barked several times and then withdrew, circling

around a vehicle in the parking lot that was approximately

twenty feet from the curb. Having crossed the street and

entered the parking lot, Officer Eberly walked to a position

ten to twelve feet from Immi. Immi was stationary and not

growling or barking. According to the stranger observing

from his car, Immi "did not display any aggressive behavior

towards [Officer Eberly] and never tried to attack him."

At this point, Kim Brown looked out of an open, screened

window of her house. She saw Officer Eberly not more than

fifty feet away. He and Immi were facing one another.

Officer Eberly reached for his gun. Kim screamed as loudly

as she could, "That's my dog, don't shoot!" Her husband

heard her and came running from the back of the house.

Officer Eberly hesitated a few seconds and then pointed his

gun at Immi. Kim tried to break through the window's

screen and screamed, "No!"

Officer Eberly then fired five shots at Immi. Immi fell to

the ground immediately after the first shot, and Officer

Eberly continued firing as she tried to crawl away. One

bullet entered Immi's right mid-neck region; three or four

bullets entered Immi's hind end.

Immi had lived with the Browns pre-school aged children

for most of her three years and had not previously been

violent or aggressive towards anyone.

Based on these facts and the reasonable inferences that

can be drawn from them, we are thus faced with a situation

in which a municipal law enforcement 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 was available to take custody.

4

II. OFFICER EBERLY

A. Unreasonable Seizure

The Browns claim that Officer Eberly violated their

constitutionally secured right to be free from unreasonable

governmental seizures of their property. The Fourth

Amendment to the United States Constitution, made

applicable to the states by the Fourteenth Amendment,

provides that "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . ." The

people's "effects" include their personal property. See United

States v. Place, 462 U.S. 696, 701 (1983) (detention of

luggage held to be a Fourth Amendment seizure). A Fourth

Amendment "seizure" of personal property occurs when

"there is some meaningful interference with an individual's

possessory interests in that property." United States v.

Jacobsen, 466 U.S. 109, 113 (1984). Destroying property

meaningfully interferes with an individual's possessory

interest in that property. See id. at 124-25. "[T]he

destruction of property by state officials poses as much of

a threat, if not more, to people's right to be `secure . . . in

their effects' as does the physical taking of them." Fuller v.

Vines, 36 F.3d 65, 68 (9th Cir. 1994).

The Browns had a possessory interest in their pet. In

Pennsylvania, by statute, "All dogs are . . . declared to be

personal property and subjects of theft." 3 Pa. Cons. Stat.

Ann. S 459-601(a). See Miller v. Peraino , 626 A.2d 637, 640

(Pa. Super. Ct. 1993); Daughen v. Fox, 539 A.2d 858, 864

n.4 (Pa. Super. Ct. 1988).1 It necessarily follows that Immi

was property protected by the Fourth Amendment and that

Officer Eberly's destruction of her constituted a Fourth

Amendment seizure. Accordingly, we join two of our sister

courts of appeals in holding that the killing of a person's

dog by a law enforcement officer constitutes a seizure

_________________________________________________________________

1. Officer Eberly argues that an unlicensed dog under Pennsylvania law

is as a matter of law an abandoned dog. We find no authority for this

proposition and, accepting the evidence tendered by the Browns, are

unpersuaded that Immi should be regarded as having been abandoned.

5

under the Fourth Amendment. Fuller, 36 F.3d at 68; Lesher

v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994).

To be constitutionally permissible, then, Officer Eberly's

seizure must have been "reasonable." "In the ordinary case,

the [Supreme] Court has viewed a seizure of personal

property as per se unreasonable within the meaning of the

Fourth Amendment unless it is accomplished pursuant to

a judicial warrant issued upon probable cause and

particularly describing the items to be seized." Place, 462

U.S. at 701. Where the governmental interest justifying a

seizure is sufficiently compelling and the nature and extent

of the intrusion occasioned by the seizure is not

disproportionate to that interest, the seizure may be

reasonable even though effected without a warrant. Thus,

when the state claims a right to make a warrantless

seizure, we "must balance the nature and quality of the

intrusion on the individual's Fourth Amendment interests

against the importance of the governmental interests

alleged to justify the intrusion." Id. at 703. Even when the

state's interest is sufficiently compelling to justify a

warrantless seizure that is minimally intrusive, the seizure

will be unreasonable if it is disproportionately intrusive.

While the state's interest in drug interdiction, for example,

is sufficient to render reasonable a brief but warrantless

detention of suspicious luggage for a canine "sniff," such

detention for ninety minutes constitutes an unreasonable

seizure under the Fourth Amendment. Id.

Where a pet is found at large, the state undoubtedly has

an interest in restraining it so that it will pose no danger to

the person or property of others. The dog catcher thus does

not violate the Fourth Amendment when he or she takes a

stray into custody. Moreover, the state's interest in

protecting life and property may be implicated when there

is reason to believe the pet poses an imminent danger.2 In

_________________________________________________________________

2. The state's interest in the protection of life and property undoubtedly

occasioned enactment of 3 P.S. S 459-302(a) which states in relevant

part:

It shall be the duty of every police officer, State dog warden,

employee of the department or animal control officer to seize and

6

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.3 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. Striking the balance required by Place , we hold

that Officer Eberly's destruction of Immi could be found to

be an unreasonable seizure within the meaning of the

Fourth Amendment.

This brings us to Officer Eberly's qualified immunity

defense. Qualified immunity absolves Officer Eberly from

liability and, indeed, from the burdens of defending this

suit, if he can show that a reasonable officer with the

information he possessed at the time could have believed

that his conduct was lawful in light of the law that was

clearly established on April 28, 1998. Anderson v.

Creighton, 483 U.S. 635 (1987). In order for a right to be

"clearly established," the "contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right." Id. at

640. While "[t]his is not to say that an official's action is

protected by qualified immunity unless the very action in

question has previously been held unlawful, . . . it is to say

_________________________________________________________________

detain any dog which is found running at large, either upon the

public streets or highways of the Commonwealth, or upon the

property of a person other than the owner of such dog, and

unaccompanied by the owner. Every police officer, State dog warden,

employee of the department or animal control officer may humanely

kill any dog which is found running at large and is deemed after

due

consideration by the police officer, State dog warden, employee of

the department or animal control officer to constitute a threat to

the

public health and welfare.

While Officer Eberly relies on this statute, it would be clearly

inapposite

should the trier of fact credit the evidence that has been tendered by the

Browns.

3. See Place, 462 U.S. at 705 (contrasting the degree of intrusion when

a seizure of personal effects is made "after the owner has relinquished

control of the property to a third party [and when the seizure is] from

the

immediate custody and control of the owner").

7

that in the light of pre-existing law the unlawfulness must

be apparent." Id. (citations omitted).

As we have previously noted, the Supreme Court's 1984

decision in United States v. Jacobson reaffirmed the well

established proposition that a Fourth Amendment seizure

of property occurs whenever there is some meaningful

intrusion with an individual's possessory interest in that

property and that destruction of property thus constitutes

a seizure under the Fourth Amendment. Moreover, we

believe that, at least after the enactment of 3 P.S.S 459-601

in 1983, a reasonable law enforcement officer in Officer

Eberly's position would have realized that a person's dog is

his personal property under Pennsylvania law. Finally, we

believe that, based on Place and the cases there reviewed,

a reasonable officer would have understood that it was

unlawful for him to destroy a citizen's personal property in

the absence of a substantial public interest that would be

served by the destruction.

If the facts asserted by the Browns are found to be true,

we conclude that a reasonable officer in Officer Eberly's

position could not have applied these well established

principles to the situation before him and have concluded

that he could lawfully destroy a pet who posed no imminent

danger and whose owners were known, available, and

desirous of assuming custody.4 In other words, it would

_________________________________________________________________

4. If the unlawfulness of the defendant's conduct would have been

apparent to a reasonable official based on the current state of the law,

it is not necessary that there be binding precedent from this circuit so

advising. As we explained in Pro v. Donatucci , 81 F.3d 1282, 1292 (3d

Cir. 1996) (footnote omitted):

In Bieregu v. Reno, 59 F.3d at 1459, we noted that "the absence of

a previous decision from our court on the constitutionality of the

conduct at issue is not dispositive" in determining whether the

particular constitutional right at issue was clearly established at

a

particular time, and stated that the standard "require[s] `some but

not precise factual correspondence between relevant precedents and

the conduct at issue,' " id. (citing In re City of Philadelphia

Litig., 49

F.3d at 970) in order to be satisfied. Moreover, Bieregu found law

to

be clearly established despite a circuit split, as long as "no

gaping

divide has emerged in the jurisprudence such that defendants could

8

have been apparent to a reasonable officer that shooting

Immi would be unlawful. Accordingly, Officer Eberly has

not established that he is entitled to qualified immunity.5

_________________________________________________________________

reasonably expect this circuit to rule" to the contrary. 59 F.3d at

1458-59. Thus, the split between the Courts of Appeals for the

Fifth

and the Fourth Circuits at the time of Donatucci's actions does not

preclude our deciding that Pro's right to respond to the subpoena

was clearly established.

In this case, the only court of appeals decisions addressing the relevant

issue, Fuller and Lesher, had reached the conclusion that the state's

killing of a person's dog without a public interest justification

constituted

a Fourth Amendment violation. That unavoidable conclusion was

reached based on a common sense application of the Supreme Court

precedent we have discussed.

Doe v. Delie, 2001 WL 817680 (3d Cir., July 19, 2001), holds only that

conflicting and materially distinguishable district court decisions did

not

render a right clearly established in the Third Circuit.

5. There is no question but that evidence currently in the record would

support findings of fact under which there would be no Fourth

Amendment violation, and Officer Eberly would be entitled to qualified

immunity in any event. That is not the issue before us, however. If there

is evidence from which a trier of fact could conclude that a

constitutional

violation occurred and that a reasonable officer would have known based

on clearly established law that he was violating the Browns' rights,

summary judgment was inappropriate. See, e.g. , Johnson v. Jones, 515

U.S. 304 (1995).

Despite its protestations to the contrary, the dissent does not accept

the record evidence in the light most favorable to the Browns and draw

all reasonable inferences in their favor. Contrary to the assertions of

the

dissent, Officer Eberly's testimony that Immi was acting aggressively

before the shooting and that he did not hear Kim Brown claim ownership

before he shot is not undisputed. Kim Brown's testimony would support

a finding that there was no provocation for the shooting, as would the

testimony of the disinterested observer in the parking lot. With respect

to Officer Eberly's knowledge that the dog's owner was available and

anxious to take custody, Russell Yoder, a neighbor of the Browns, gave

the following testimony:

Q. And what did you hear?

A. Okay. The things that I heard -- the first thing was, I heard a

woman starting to shout and she was shouting, Don't shoot, don't

9

B. Procedural Due Process

Under the Fourteenth Amendment, a state may not

deprive a citizen of his property without affording him due

_________________________________________________________________

shoot. . . . I really couldn't see anything there. But then I heard

--

I heard her say, That's my dog, that's my dog, don't shoot. So all

of

a sudden, right after that there were five shots that just -- they

just

went bang, bang, bang, bang, bang, bang, and I -- I got down on

the -- behind my door `cause I didn't know where these shots were

coming from, . . . .

App. at 449-450.

The District Court was not free to ignore this sworn testimony given

before the Civil Service Commission. It was the equivalent of an affidavit

and while it technically may have been hearsay, so too are affidavits.

Federal Rule of Civil Procedure 56(e) requires only that "supporting and

opposing [sworn statements] be made on personal knowledge, . . . set

forth such facts as would be admissible in evidence, and . . . show that

the [declarant] is competent to testify to the matters stated therein."

The

transcript of Yoder's sworn testimony satisfies all three of these

requirements. See also Williams v. Borough of West Chester Pa., 891

F.2d 458 (3d Cir. 1989) (holding, on the authority of Celotex v. Catrett,

477 U.S. 317 (1986), that "hearsay evidence produced in a affidavit

opposing summary judgment may be considered if the out-of-court

declarant could later present that evidence through direct testimony,

i.e.,

`in a form that would be admissible at trial.' ") (quoting from Celotex,

891

F.2d at 466, n.6).

Moreover, ignoring Yoder's testimony would not change the result. Kim

Brown testified that when she yelled Officer Eberly was in close

proximity and hesitated in apparent response to her shout before

shooting. Her testimony would clearly support a finding that Officer

Eberly was on notice of the Browns' ownership and availability before he

shot. On cross examination, for example, she testified as follows:

Q. And you believe that you yelled something out?

A. Yes.

Q. But you don't know what you yelled?

A. I believe the first thing I said was, "That's my dog." I'm

almost

positive.

Q. You say you're almost positive. Does that mean you know that

you did that or you're not sure?

10

process of law. U.S. Const. amend. XIV, S 1. Property

interests created by state law are protected under that

amendment, see Board of Regents v. Roth, 408 U.S. 564

(1972), and destruction of such property by the state

constitutes a "deprivation" thereof, see Parratt v. Taylor,

451 U.S. 527 (1981). It follows that Officer Eberly's

destruction of Immi deprived the Browns of their property

and that they were entitled to due process. See id.

Usually, the process that is constitutionally "due" must

be afforded before the deprivation occurs -- the state must

_________________________________________________________________

A. Not one hundred percent sure.

Q. What percentage would you give to that?

A. Ninety percent.

Q. Why do you have any doubt as to what you yelled?

A. I don't know what order I said everything in. Again, it happened

so fast.

Q. How long after you yelled something did the shooting start?

A. A few seconds. I thought he hesitated.

Q. What led you to believe that he hesitated?

A. There seemed to be quite a few seconds that elapsed between

me seeing his arm move and seeing the actual gun.

* * *

Q. Do you know whether or not he heard you yelling?

A. I don't know what he heard.

Q. You don't know whether he heard you yelling, right?

A. No. I don't know what he heard.

Q. Nothing that you saw or witnessed gave you the impression one

way or the other whether he heard you yell?

A. Yes. He hesitated.

Q. What do you mean by hesitated, what hesitated?

A. His arm stopped moving for a few seconds. I saw it moving, it

stopped, then he brought the gun out.

App. at 106-07; App. at 108.

11

provide predeprivation process. See Zinermon v. Burch, 494

U.S. 113, 127 (1990). When the complained of conduct is

"random and unauthorized" (so that state authorities

cannot predict when such unsanctioned deprivations will

occur), however, the "very nature of the deprivation ma[kes]

predeprivation process impossible." Id. at 137. In such

situations, postdeprivation process is all that is due. See id.

Contrary to the Browns' suggestion, we conclude that no

predeprivation process was constitutionally required here.

In Hudson v. Palmer, 468 U.S. 517 (1984), a prison guard

was alleged to have intentionally destroyed noncontraband

personal property of an inmate while conducting an

authorized "shakedown" of his cell. The inmate claimed that

this constituted a deprivation of property without due

process of law in violation of the Fourteenth Amendment.

The Supreme Court held that no predeprivation process

was required and that the state's provision of a

postdeprivation remedy in the form of a suit for damages

provided all the process that was due. With respect to

predeprivation process, the Court found that the guard's

destruction of the property was the "random and

unauthorized conduct of a state employee" and that

"predeprivation procedures [were] simply`impracticable.' "

Id. at 533. The inmate, like the Browns, argued that the

state's agent (there, the guard; here, Officer Eberly) could

have provided predeprivation process and was, therefore,

constitutionally required to do so. Rejecting this contention,

the Court observed:

Whether an individual employee himself is able to

foresee a deprivation is simply of no consequence. The

controlling inquiry is solely whether the state is in a

position to provide for predeprivation process.

Hudson, 468 U.S. at 534. There is no material distinction

between the Browns' case and Hudson.

Hudson is also helpful with respect to the sufficiency of

the postdeprivation process provided to the Browns by

Pennsylvania. At oral argument, the Browns acknowledged

that Pennsylvania afforded them a judicial remedy: a civil

action for conversion. Like the inmate in Hudson , however,

they argue that their state remedy was inadequate because

12

the state-employed tortfeasor was protected by sovereign

immunity. This argument fails for the same reason it failed

in Hudson. Pennsylvania law, like the state law in Hudson,

deprives public employees of immunity for intentional torts.

Section 8550 of Pennsylvania's Political Subdivision Tort

Claim Act denies immunity to any public employee when

the court finds that his or her conduct constitutes, among

other things, "willful misconduct." "Willful misconduct" in

this context "has the same meaning as the term`intentional

tort.' " Delate v. Kolle, 667 A.2d 1218, 1221 (Pa. Commw.

Ct. 1995); see also Kuzel v. Krause, 658 A.2d 856, 859 (Pa.

Commw. Ct. 1995). Viewing the facts in the light most

favorable to the Browns, they were afforded postdeprivation

judicial process by the law of Pennsylvania, and such

process was all that was due. Summary judgment was

properly entered against the Browns on their procedural

due process claim.

Because the civil rights act liability of the remaining

defendants is predicated on there being a constitutional

violation committed by Officer Eberly, we will hereafter

confine our discussion to civil rights liability in connection

with the possible Fourth Amendment violation.6

III. THE TOWNSHIP AND ITS SUPERVISORS

Regardless of the nature of underlying right alleged to

have been aggrieved, Muhlenberg Township and its Board

of Supervisors can be liable for any constitutional

_________________________________________________________________

6. At the conclusion of the argument section of the Browns' brief devoted

to their procedural due process argument, they assert in conclusory

fashion that Officer Eberly's conduct also violated their right to

substantive due process. Because of the cursory treatment of this

contention, we do not regard a substantive due process issue as properly

before us. We note, however, that "not all property interests worthy of

procedural due process protections are protected by the concept of

substantive due process." Reich v. Beharry , 883 F.2d 239, 244 (3d Cir.

1989). We know of no authority which clearly establishes that one in the

Browns' position has been deprived of a property interest of the "quality"

required for substantive due process protection. DeBlasio v. Zoning Board

of Adjustment, 53 F.3d 592, 600 (3d Cir. 1995). Accordingly, if we were

to assume a substantive due process violation, Officer Eberly would be

entitled to qualified immunity on this claim.

13

deprivations suffered by the Browns only if "there is a direct

causal link between a municipal policy or custom and the

alleged constitutional deprivation." City of Canton v. Harris,

489 U.S. 378, 385 (1989).7 A direct causal link can be

shown in two ways. First, "a body [such as Muhlenberg

Township or its Board of Supervisors] may . . . be sued

directly if it is alleged to have caused a constitutional tort

through `a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body's

officers.' " City of Saint Louis v. Praprotnik, 485 U.S. 112,

121 (quoting Monell v. Dept. of Soc. Serv., 436 U.S. 658,690

(1978)). Second, the Browns could establish the requisite

causal link between the constitutional deprivation and a

custom, "even though such a custom has not received

formal approval through the body's official decisionmaking

channels." Monell, 436 U.S. at 690-91. A"custom, or usage,

of [a] State" for S 1983 purposes"must have the force of law

by virtue of the persistent practices of state officials."

Adickes v. S. H. Kress & Co., 398 U.S. 144, 167 (1970). In

either event, the municipality's liability can be predicated

"only [upon] acts for which the municipality itself is

actually responsible . . . ." Praprotnik, 485 U.S. at 123.

"[O]nly those municipal officials who have`final

policymaking authority' may by their actions subject the

government to S 1983 liability." Id. (quoting Pembaur v. City

of Cincinnati, 475 U.S. 469, 483 (1986)).

The official policy or adopted custom that subjects a

municipality to S 1983 liability may relate to the training of

police officers. A municipality's failure to train its police

officers can subject it to liability, however, "only where [it]

reflects a `deliberate' or `conscious' choice by [the]

municipality -- a `policy' as defined" in Supreme Court

cases. City of Canton, 489 U.S. at 388. Moreover, such

liability arises "only where the failure to train amounts to

deliberate indifference to the rights of persons with whom

the police come into contact." Id. The scope of failure to

_________________________________________________________________

7. The requirement that liability rest on a direct causal link between the

municipal policy or custom and the alleged constitutional deprivation

precludes respondeat-superior liability. See Monell v. Dept. of Social

Services, 436 U.S. 690, 691 (1978).

14

train liability is a narrow one. As the Supreme Court has

explained:

It may seem contrary to common sense to assert that

a municipality will actually have a policy of not taking

reasonable steps to train its employees. But it may

happen that in light of the duties assigned to specific

officers or employees the need for more or different

training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.

Id. at 390.

The Browns have not satisfied their burden of

establishing facts sufficient to support their claim of

municipal liability. They have tendered no evidence of any

official policy endorsing Officer Eberly's conduct. Indeed,

the Township's policy manual spells out a progressive use

of force policy relating to animals that is inconsistent with

Officer Eberly's conduct. The policy states the"[t]he degree

of force [the officer should use] is dependent upon the facts

surrounding the situation the officer faces. Only a

reasonable and necessary amount of force will be used."

The policy authorizes the use of chemical agents, such as

oleoresin capsicum (or "pepper") spray, "for defensive

purposes." The policy explicitly states that"[t]his weapon

may also be used against attacking dogs . . . ." The policy

specifically addressed the use of firearms against animals:

An officer may use a firearm to kill a dangerous animal

or terminate the suffering of a critically injured or sick

animal when other means of disposal are impractical.

Whenever possible, the owner of the animal to be

destroyed shall be contacted and written permission

obtained. In the event the owner cannot be located, the

identification of any available witnesses who will attest

to the need to destroy the animal will be recorded by

the officer. In any case, whenever the shooting of an

animal is necessary, the shooting must be done

cautiously to protect and [sic] nearby persons or

property.

15

Nor have the Browns established the existence of an

unconstitutional governmental custom. They argue, in

essence, that Muhlenberg Township and its Board of

Supervisors customarily condoned a practice of employing

excessive force in handling dogs at large. The record,

however, simply will not support an inference that there

was a pattern of such excessive force, much less that the

Board customarily condoned it.

The Browns' evidence also falls far short of establishing

their failure to train claim. To survive summary judgment

on a failure to train theory, the Browns must present

evidence that the need for more or different training was so

obvious and so likely to lead to the violation of

constitutional rights that the policymaker's failure to

respond amounts to deliberate indifference. City of Canton,

489 U.S. at 390. While it is true that Muhlenberg police

officers received no formal training specifically directed to

handling dogs, they did have the guidance of the policy

manual, and we believe a reasonable trier of fact could not

conclude that the need for further guidance was so obvious

as to indicate deliberate indifference on the part of the

Board to the Browns' constitutional rights.

IV. POLICE CHIEFS FLANAGAN AND SMITH

The Browns also allege that Police Chief Robert Flanagan

and Police Chief Harley Smith are responsible for Officer

Eberly's constitutional torts. Their argument is not that

Chief Flanagan or Chief Smith directed Officer Eberly to

deprive the Browns of any constitutionally protected right.

Rather, the Browns focus on the alleged inadequacy of the

Chiefs' supervision.

In Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989),

this court identified the elements of a supervisory liability

claim. The plaintiff must (1) identify the specific supervisory

practice or procedure that the supervisor failed to employ,

and show that (2) the existing custom and practice without

the identified, absent custom or procedure created an

unreasonable risk of the ultimate injury, (3) the supervisor

was aware that this unreasonable risk existed, (4) the

supervisor was indifferent to the risk; and (5) the

16

underling's violation resulted from the supervisor's failure

to employ that supervisory practice or procedure. We

emphasized that "it is not enough for a plaintiff to argue

that the constitutionally cognizable injury would not have

occurred if the superior had done more than he or she did."

Sample, 885 F.2d at 1118. Rather, the plaintiff must

identify specific acts or omissions of the supervisor that

evidence deliberate indifference and persuade the court that

there is a "relationship between the `identified deficiency'

and the `ultimate injury.' " Id.

These elements have not been satisfied with respect to

either Chief of Police. As to Chief Smith, the Browns have

offered no explanation as to how he could be responsible

for a shooting that occurred almost two years after he

retired. As to Chief Flanagan, the Browns have identified

two supervisory practices or procedures he allegedly failed

to employ. The first -- that he failed to train Muhlenberg

police officers on the proper use of force against animals --

must be rejected for the same reason we rejected the

similar claim against the Board of Supervisors. The policy

manual in effect at the time of the shooting gave

instructions on how to handle situations of this kind, and

a reasonable trier of fact could not conclude that the failure

to provide more formal training evidenced deliberate

indifference.

The Browns' second theory is that Chief Flanagan must

have been aware of Officer Eberly's alleged practice of using

excessive force against animals and nevertheless failed to

take appropriate disciplinary action. There is no evidence

that Chief Flanagan had knowledge of any prior excessive

use of force on animals by Officer Eberly, however. Nor is

there any evidence of a pattern of excessive use of such

force by Eberly which would support a finding that Chief

Flanagan should have been aware that Eberly posed a

threat in situations like the one in question. While Officer

Eberly acknowledged during his deposition that he had

killed dogs on four prior occasions during his sixteen year

career, only one of the incidents he recounted produced a

complaint, and the uncontradicted evidence with respect to

the others reveals nothing comparable to the Browns'

version of the facts in the case at bar. In two of these

17

incidents, the dog charged either Eberly or a fellow officer.

In the third, a stray dog had been terrorizing the

neighborhood and extended, unsuccessful efforts had been

made to catch it. The only incident that generated a

complaint about excessive use of force by Officer Eberly

against a dog occurred in approximately 1988, some ten

years before the incident giving rise to this suit and more

than eight years before Chief Flanagan assumed office on

July 15, 1996.

We will affirm the District Court's grant of summary

judgment in favor of both Chief Flanagan and Chief Smith.

V. THE STATE LAW CLAIM

The Browns claim that they are entitled to recover from

Officer Eberly for intentional infliction of emotional distress.8

They emphasize that a reasonable trier of fact could

conclude that Officer Eberly, without any justification

whatsoever, shot Immi five times in front of her owner,

deliberately ignoring the fact that the owner was screaming

in protest and pleading with him not to shoot. They also

point to evidence indicating that the experience of observing

the slaughter of her beloved pet exacerbated Kim's pre-

existing post traumatic stress disorder, leaving her with

nightmares, headaches, and severe anxiety.

In Williams v. Guzzardi, 875 F.2d 46 (3d Cir. 1989), we

predicted that the Supreme Court of Pennsylvania would

recognize the tort of intentional infliction of emotional

distress as described in Restatement (Second) of Torts S 46

(1965). We have found no Pennsylvania case since that time

which alters this view. Section 46 provides in relevant part:9

_________________________________________________________________

8. The Browns argue in their brief that Chiefs Flanagan and Smith are

not entitled to sovereign immunity under Pennsylvania law. They do not

indicate, however, what state tort claim against them was improperly

rejected by the District Court and we cannot hypothesize one that the

record would support. We thus address only the Browns' intentional

infliction of emotional distress claim which is directed only towards

Officer Eberly.

9. Subsection (2) of Section 46 provides as follows:

18

(1) One who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional

distress to another is subject to liability for such

emotional distress, and if bodily harm to the other

results from it, for such bodily harm.

Accordingly, the elements that the Browns must satisfy

are (1) that Officer Eberly's conduct was extreme and

outrageous, (2) that his conduct caused a person severe

emotional distress, and (3) that he acted intending to cause

that person such distress or with knowledge that such

distress was substantially certain to occur.10 As we have

indicated, the record would clearly support a finding that

Officer Eberly intended to inflict, or knew he would inflict,

severe emotional distress on Kim Brown. Moreover, Officer

Eberly does not challenge the sufficiency of the evidence

tendered by the Browns concerning severe emotional

distress. This leaves the issue of whether the courts of

Pennsylvania would permit a trier of fact to conclude that

Officer Eberly's conduct was extreme and outrageous.

According to the Restatement commentary, conduct is

sufficient to make out a claim for emotional distress if "the

recitation of the facts to an average member of the

_________________________________________________________________

(2) Where such conduct is directed at a third person, the actor is

subject to liability if he intentionally or recklessly causes

severe

emotional distress

(a) to a member of such person's immediate family who is present

at the time, whether or not such distress results in bodily harm,

or

(b) to any other person who is present at the time, if such

distress

results in bodily harm.

Contrary to the suggestion of the amicus, we are not persuaded that the

Supreme Court of Pennsylvania would regard this subsection as having

any relevance here.

10. See Comment (i) to S 46 providing in relevant part:

The rule stated in this Section applies where the actor desires to

inflict severe emotional distress, and also where he knows that

such

distress is certain, or substantially certain, to result from his

conduct.

19

community would arouse his resentment against the actor,

and lead him to exclaim, `Outrageous!' " Restatement

(Second) of Torts S 46, cmt. d.

One Pennsylvania case has recognized an emotional

distress claim in a situation like ours. In Banasczek v.

Kowalski, No. 9009 of 1978, 1979 WL 489 (C.P. Luzerne

County Jan. 30, 1979), the plaintiff asserted a claim for

emotional distress stemming from the defendant's shooting

of two of the plaintiff 's dogs. In what appears to have been

a case of first impression in Pennsylvania, the court in

Banasczek held that Pennsylvania recognized the tort of

intentional infliction of emotional distress generally and

then, following the authority of cases from Texas and

Florida, concluded that "the more enlightened view is to

allow recovery for emotional distress in the instance of the

malicious destruction of a pet . . . ." Id. at *2.

Officer Eberly argues in essence that the killing of a pet

under any circumstances would not be recognized by the

Pennsylvania courts as extreme or outrageous. We believe

the Banasczek court was correct in rejecting a similar

contention. Given the strength of community sentiment

against at least extreme forms of animal abuse and the

substantial emotional investment that pet owners

frequently make in their pets, we would not expect the

Supreme Court of Pennsylvania to rule out all liability

predicated on the killing of a pet.

More specifically, we predict that the Pennsylvania courts

would permit a trier of fact to return a verdict for the

plaintiff in an intentional infliction of emotional distress

case where it is shown that a police officer's attention was

called to the severe emotional distress of the pet's owner, he

hesitated before shooting, and he then attempted to fire five

bullets into the pet within the owner's view and without

justification. In such cases, the malicious behavior is

directed to the owner as well as to the pet, with the

potential for serious emotional injury to the owner being

readily apparent. In the relatively few cases where similar

issues have arisen in other jurisdictions, the prevailing view

is consistent with the one we take. See Nelson v. Percy, 540

A.2d 1035, 1036 (Vt. 1987); Richardson v. Fairbanks N. Star

Borough, 705 P.2d 454, 456 (Alaska 1985); LaPorte v.

20

Associated Indeps., Inc., 163 So. 2d 267, 269 (Fla. 1964);

Katsaris v. Cook, 225 Cal. Rptr. 531, 538 (Cal. Ct. App.

1986); Gill v. Brown, 695 P.2d 1276, 1277-78 (Idaho Ct.

App. 1985); City of Garland v. White, 368 S.W.2d 12, 17

(Tex. Civ. App. 1963)

We find ourselves in disagreement with Officer Eberly's

reading of Daughen v. Fox, 539 A.2d 858 (Pa. Super. Ct.

1988), and Miller v. Peraino, 626 A.2d 637 (Pa. Super. Ct.

1993), two Pennsylvania cases involving the death of a pet

in which recovery pursuant to section 46 was denied.

Daughen holds that a veterinarian's negligent operation on

a family pet, without more, was not extreme and

outrageous conduct for purposes of section 46.

Miller stands for the proposition that the defendant must

have intentionally caused a person severe emotional

distress. The vicious beating of the family dog in Miller, if

proven at trial, would by all accounts have been extreme

and outrageous, and we do not read the court in Miller to

disagree. Rather, the Miller plaintiffs failed to allege, much

less produce evidence, that the tortfeasor's heinous acts

against the dog were performed with the intention of

inflicting severe emotional distress on the dog's owners.

This is not so in the case at bar, where the Browns have

produced evidence from which a reasonable trier of fact

could conclude that Officer Eberly shot Immi either

intending to cause Kim Brown severe emotional distress or

with the knowledge that the infliction of such distress on

her would be virtually certain.

Officer Eberly is not entitled to sovereign immunity under

state law with respect to the intentional infliction of

emotional distress claim because the record will support a

conclusion that he acted intentionally.11

_________________________________________________________________

11. We agree with the District Court that Officer Eberly was entitled to

summary judgment with respect to David Brown's intentional infliction

of emotional distress claim. The record indicates that he did not witness

the shooting and would not support a finding that Officer Eberly was

even aware of his existence.

21

VI.

The judgment of the District Court in favor of all

defendants except Officer Eberly will be affirmed. The

judgment in favor of Officer Eberly will be reversed, and the

case will be remanded for further proceedings consistent

with this opinion.

22

GARTH, Circuit Judge, dissenting and concurring:

The issue that has divided this panel and which should

concern every judge, every police officer and every official

who claims qualified immunity by virtue of his or her office

is: how do we determine the second prong of the qualified

immunity doctrine -- i.e., when is the constitutional right

which is claimed to have been violated clearly established

so as to visit liability on the official?

Distressingly, the majority opinion fails to announce a

standard by which the bench and the bar can test whether

a particular legal principle -- that is the particular

constitutional right -- is "clearly established" for purposes

of qualified immunity. I strongly urge that in deciding this

second prong, at the least a balancing process should be

undertaken whereby the factors to be balanced are:

(1) Was the particular right which was alleged to have

been violated specifically defined, or did it have to

be constructed or gleaned from analogous general

precepts? See Wilson v. Layne, 526 U.S. 605

(1999).

(2) Has that particular right ever been discussed or

announced by either the Supreme Court or by this

Circuit?

(3) If neither the Supreme Court nor this Circuit has

pronounced such a right, have there been

persuasive appellate decisions of other circuit

courts -- and by that I mean more than just one

or two -- so that the particular right could be said

to be known generally?

(4) Were the circumstances under which such a right

was announced of the nature that an official who

claimed qualified immunity would have, acting

objectively under pre-existing law, reasonably

understood that his act or conduct was unlawful? 1

_________________________________________________________________

1. The Second Circuit has at least crafted a standard against which the

second prong of the qualified immunity analysis can be tested. That

standard is similar to the one I have just suggested. See Horne v.

Coughin, 155 F.3d 26, 29 (2d Cir. 1998).

23

Tested by these factors, it is clear to me that Officer

Eberly, when he shot and killed the Brown's Rottweiler

which was unleashed, uncontrolled, barking and presenting

an aggressive appearance, could not have reasonably

understood that his act was unlawful. As such, he is

entitled to qualified immunity and the District Court's

judgment should be affirmed.

I

I concede that it is not an easy task to determine when

a right is clearly established. The precedents (with some

exception), measured by the standard outlined above,

would agree that breaking into a home without a warrant

would offend Fourth Amendment rights. Accordingly, that

right is clearly established. Similarly, the precedents would

agree that inducing a coerced confession violates a

defendant's Fifth Amendment rights. Accordingly, that right

is clearly established. By the same token, the precedents

would agree that torturing a prison inmate violates the

Eighth Amendment. Accordingly, that right is clearly

established. But -- I do not know of any precedent or any

judge, other than the members of the majority, who can

responsibly hold that even if the Fourth Amendment is

violated by a police officer shooting an unleashed,

uncontrolled, barking Rottweiler which, as I point out in

note 4 (infra), is an aggressive and possibly threatening

large animal (certainly not a pussycat!), that such a right,

if there is one, has been clearly established in any

jurisdiction, let alone in this Circuit.

A. Specifically Defined

Can it really be held that the Fourth Amendment"seizure

of property" right was readily and generally known to apply

to the shooting of a Rottweiler which was loose on the

street? Can we really say that this particular Fourth

Amendment principle was defined with particular specificity

and was therefore clearly established for purposes of

qualified immunity? I am aware of no authority which

defines the principle with sufficient particularity so as to

make it applicable to the situation here.

24

B. Lack of Binding Precedent

Can we really hold that the decisional law of the Supreme

Court and this Court effectively equates the two concepts

discussed above? Or -- that Fourth Amendment principles

of either court have at any time been applied to the

shooting of an animal such as the Brown's Rottweiler under

the circumstances faced by Officer Eberly? The majority

has furnished us with no such authority and I know of

none.

C. Absence of Out-of-Circuit Authority

Well then, can we look at other appellate decisions that

are relevant -- if not on-point, at least near the point --

and which are persuasive? As I explain later in referring to

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

v. Vines, 36 F.3d 65 (9th Cir. 1994) (see text at 31-32,

infra), neither of those cases is relevant, neither case is on-

point, neither case involves the same circumstances, and

neither case can be applied here in the context of Officer

Eberly's actions. Needless to say, neither case is

persuasive.

D. Pre-Existing Law

Are there then cases under pre-existing law which would

have or should have been known to Eberly, leading to his

reasonable understanding that by shooting the dog which

confronted him, he was doing something unlawful? If there

are such cases, we have not been informed of them by the

majority and I have not been able to find any.

II

In determining whether a legal principle is "clearly

established," if we cannot look to state law, as we cannot,

see Doe v. Delie, 2001 WL 817680 (3d Cir. July 19, 2001)

("officials do not forfeit qualified immunity from suit for

violation of a federal constitutional right because they failed

to comply with a clear state statute.") (citations omitted),

and we cannot look to district court opinions or to other

circuit pronouncements even if they are relevant (and those

25

cited by the majority are not, see text at 31-32, infra), id.,

and we in the Third Circuit have never addressed this issue

in the present context, then how can we possibly expect a

police officer such as Eberly to understand that he would

be violating a right that has never been specifically defined,

let alone clearly established, in this or any other

jurisdiction. As the majority opinion points out, citing to

Anderson v. Creighton, 483 U.S. 638 (1987), the"contours

of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates

that right." Id. at 640; maj. op. at 7. That is to say that "in

light of preexisting law, the unlawfulness must be

apparent." Anderson, 483 U.S. at 640. How has the

unlawful conduct of Officer Eberly, if indeed it was

unlawful, been shown by the majority to be "apparent?" It

is no answer, nor is it sufficient, to proclaim ipse dixit, as

the majority has, "that Officer Eberly has not established

that he is entitled to qualified immunity." Maj. op. at 9.

The relevant focus has to be on the final part of the

qualified immunity inquiry -- whether the right allegedly

violated was clearly established so that a reasonable official

in Eberly's position would understand that what he was

doing violated that right. Anderson, 483 U.S. at 641. If

there has never been a constitutional right articulated that

would prevent a police officer from shooting a barking,

unleashed, uncontrolled dog such as the Rottweiler which

was killed -- as there has not been in this jurisdiction or

any others -- how can the absence of such a right as

postulated by the majority constitute a clearly established

right so as to hold Eberly liable?

In my opinion, the majority has erred in its unanalytic

resolution of this issue, and its resolution should be

rejected because it makes bad law in this case and in

future cases where the clearly established element must be

decided. Because there is no standard announced other

than the one I have advanced, and there is no basis or

authority supporting the "clearly established" holding of the

majority, in my opinion, its holding here will dilute -- if not

destroy -- the essential clearly established element

announced by the Supreme Court in Harlow v. Fitzgerald,

457 U.S. 800 (1982) and explained in Anderson v.

Creighton, 483 U.S. 635 (1987).

26

Here, because the record establishes that Officer Eberly

was qualifiedly immune when he shot the Browns'

Rottweiler, I would affirm the District Court's judgment.

Eberly's immunity springs from the fact that even assuming

a Fourth Amendment violation -- an assumption bearing

many serious concerns and one that carries a great deal of

baggage under the circumstances here -- there was no

clearly established constitutional right that Eberly violated

to warrant holding him liable -- any more than there was

a clearly established right that the majority concedes

immunizes Eberly from the Brown's substantive due

process claim. See maj. op at 13, n. 6. 2

Moreover, recognizing that in the qualified immunity

context, the determination of whether Eberly's actions were

reasonable in the face of conflicting evidence can only be

made by resort to affidavit and testimony supporting the

Browns' position, I conclude that Eberly's actions were not

only objectively reasonable for Fourth Amendment

purposes, but did not, and could not, constitute an

intentional infliction of emotional distress.

_________________________________________________________________

2. I have assumed that a Fourth Amendment violation has occurred for

purposes of this case. I point out, however, that the District Court

adverted to the dog being abandoned, undoubtedly because it was

unleashed, out on the street, under no control of an owner, and was

barking at a police officer. Inasmuch as an element of the Fourth

Amendment violation requires a determination of being unreasonable

which may fall within the jury's purview but which is a decision which

could not be rendered by a jury if qualified immunity attached, because

the grant of qualified immunity would preclude a trial being held, I point

out no more than that the issue of a Fourth Amendment violation in the

case of an unleashed, uncontrolled Rottweiler barking at a police officer

on a public street leaves much to be desired in the way of satisfying the

strictures of a Fourth Amendment seizure, and is completely

distinguishable from Fuller v. Vines, 26 F.3d 65 (9th Cir. 1994) (holding

that plaintiffs stated a Fourth Amendment violation in alleging that

police officers killed plaintiffs' dog in the plaintiff 's yard) and

Lesher v.

Reed, 12 F.3d 148 (8th Cir. 1994) (holding that police officers' removal

of a dog from inside plaintiffs' home fits "within the meaning of the

Fourth Amendment").

27

III

Pennsylvania law provides that "It shall be the duty of

every police officer or state dog warden to seize and detain

any licensed dog which is found running at large , either

upon the public streets or highways of the Commonwealth,

or upon the property of a person other than the owner of

such dog, and unaccompanied by the owner or keeper." 3

P.S. S 459-302 (emphasis added). By statute it is provided

that "Every police officer or state dog warden may kill any

dog which is found running at large and is deemed after

due consideration by the police officer or state dog warden

to constitute a threat to the public health and welfare." 3

P.S. S 459-303 (emphasis added). Officer Eberly testified:

"Because of the way [s]he was barking and growling at me,

I perceived [her] as a threat to me, but I had a

responsibility to do something to get this dog into custody

as a police officer. That's part of my responsibility for stray

dogs." A-394.

IV

Let me amplify my earlier analysis explaining the second

prong -- the clearly established prong-- of the qualified

immunity doctrine. Government officials "are shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow,

457 U.S. at 818; see also Malley v. Briggs, 475 U.S. 335,

341 (1986) (observing that "all but the plainly incompetent

or those who knowingly violate the law" are protected by

qualified immunity). Whether a government official

asserting qualified immunity may be held personally liable

for conduct that allegedly violated a constitutional or

statutory right depends on the "objective legal

reasonableness" of the action. Anderson v. Creighton, 483

U.S. 635, 639 (1987). As the Court explained, and as I have

stated above:

The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is

doing violates that right. This is not to say that an

official action is protected by qualified immunity unless

28

the very action in question has been previously held

unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.

Id.

The Supreme Court has admonished that the particular

right at issue must be defined with specificity."[W]hat

`clearly established' means in this context depends largely

upon the level of generality at which the relevant legal rule

is to be identified." Wilson v. Layne, 526 U.S. 605, 614

(1999) (internal quotations and citation omitted)."It could

plausibly be asserted that any violation of the Fourth

Amendment is `clearly established,' since it is clearly

established that the protections of the Fourth Amendment

apply to the actions of police. . . . However, . . . the right

allegedly violated must be defined at the appropriate level of

specificity before a court can determine if it was clearly

established." Id. at 615 (emphasis added) (citations

omitted). The Court in Wilson held that bringing the media

into a private home to film the execution of a warrant

violated the Fourth Amendment, but held that the right was

not clearly established to warrant finding the officers liable

for damages. The Court defined the specificity of the right

as follows: "the appropriate question is objective inquiry of

whether a reasonable officer could have believed that

bringing members of the media into a home during the

execution of an arrest warrant was lawful, in light of clearly

established law and the information the officers possessed."

Id.

In the present case, the appropriate question is whether

Officer Eberly as a reasonable officer could have perceived

that the Rottweiler which was unleashed, uncontrolled, and

running free on a public way and was barking at him, was

a threat to him or to the public health and welfare. If so, as

I believe all reasonable persons would agree, then his

shooting the unleashed, uncontrolled and barking

Rottweiler was lawful.

As I have indicated, I am willing to assume a Fourth

Amendment constitutional right (see n. 2, supra), but

contrary to the majority, I cannot say that Eberly's conduct

in shooting an unleashed Rottweiler which any reasonable

29

person would perceive as threatening and which was under

the control of no owner and was barking, is clearly

established as a constitutional violation in the Third

Circuit. To the contrary, as I have earlier stated and as the

majority must agree, my research has not revealed any

Third Circuit precedent involving a police officer or other

official who has ever been held liable or non-immune as a

result of shooting an uncontrolled animal running freely on

the public highway and which was perceived as being a

threat to the public safety or to the officer. Nor have I found

any out-of-circuit precedent that could be deemed as

constituting clearly-established law and which could be

said to have informed Officer Eberly that in shooting the

Rottweiler he was violating the Browns' Fourth Amendment

rights.

In my view, even if non-circuit precedents existed, which

they do not, such precedents are non-binding decisions

which do not "clearly establish" law for purposes of

qualified immunity. The Supreme Court has not defined the

level of precedent required to render a right " clearly

established." Harlow, 457 U.S. at 818 n. 32 ("we need not

define here the circumstances under which the state of the

law should be evaluated by reference to the opinions of this

Court, of the Courts of Appeals, or of the local District.").

Several courts, and most importantly the Third Circuit,

have held that non-binding precedent does not make a

right "clearly established." See Doe v. Delie, 2001 WL

817680 (3d Cir. July 19, 2001) (holding that district court

decisions did not render a right clearly established in the

Third Circuit); Hansen v. Soldenwagner, 19 F.3d 573, 578

n. 6 (11th Cir. 1994) (concluding that "the case law of one

other circuit cannot settle the law in this circuit to the

point of it being `clearly established.' "); Knight v. Mills, 836

F.2d 659, 668 (1st Cir. 1987) (holding that decisions by two

other circuits cannot create clearly established law when

the Supreme Court had reserved the issue); Ohio Civ. Serv.

Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.

1988) (concluding that decisions of other circuits clearly

establish the law only if they "both point unmistakably to

the unconstitutionality of the conduct complained of and

[are] so clearly foreshadowed by applicable direct authority

30

as to leave no doubt in the mind of a reasonable officer that

his conduct, if challenged on constitutional grounds, would

be found wanting.").

In Doe v. Delie, 2001 WL 817680 (3d Cir. July 19, 2001),

which found a constitutional right of privacy of a prison

inmate's medical information (a decision which I

questioned, see id. (Garth, J., dissenting), but then

appropriately found that there was no clearly established

right that was violated (a decision with which I agreed), we

held that neither state nor out-of-circuit precedents could

satisfy the clearly established element of the immunity

doctrine. We did so because there was no authority to

which we could look in any jurisdiction, including our own,

whereby a prison official would understand that by

prescribing a medication so that others might hear the

prescription, the prisoner's right to privacy had been

violated. Just so here, where even if the Brown's claimed

constitutional right was confirmed, the majority opinion has

not substantiated that it would have been apparent to a

reasonable officer -- in the circumstances present when the

Brown's Rottweiler confronted Eberly -- that shooting the

Rottweiler would be unlawful.

Indeed, the only decisional law in our sister circuits is

decisional law by the Eighth Circuit (Lesher) and by the

Ninth Circuit (Fuller) involving dogs seized within the

property of their respective owners -- a far cry from an

unleashed dog on the public street out of its owners'

control. These cases do not render the law clearly

established in either the Eighth or Ninth Circuits, to say

nothing of my own Circuit -- the Third. Thus Officer Eberly

is entitled to qualified immunity.

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

government officials "removed [plaintiffs'] dog from their

home." Similarly, in Fuller v. Vines, 36 F.3d 65 (9th Cir.

1994), the police officers killed plaintiffs' dog in the

plaintiff 's yard. In neither case were the dogs running free

and uncontrolled and in neither case was there a

perception of a threat to the public safety. Here, in

contrast, the Browns' Rottweiler was outside their control,

outside the Browns' property, and unleashed and barking

31

on the public street giving every appearance of a threat to

public safety.

Officer Eberly saw the Browns' Rottweiler running free

without a leash obstructing traffic on Madison Avenue in

Muhlenberg. Eberly parked his police car, exited, walked

toward the dog and clapped his hands and called to her.

The Rottweiler then barked at Eberly. One witness,

Christopher Grim, testified that the Rottweiler"was getting

ugly with the officer. . . . It was showing its teeth and

barking and growling and it had -- it was po[i]sed, back

end dip position . . . . I don't know if you've ever noticed

when dogs get really like wild or violent they come and they

bear down on their back legs in kind of a striking-type

thing." A-432. Eberly testified:

The dog at that point, as it came around the back[of

a parked car], came towards me, barking and growling

and, again, put his feet forward and took a stance and

took like a, he was protecting, whatever, stance. At

that point the dog went back on his hind legs and

came forward off his hind legs, and it looked like the

dog was going to attack me from how he sprang

forward. At that time I though he was coming for me.

When he came off his back legs and came towards me,

I raised my weapon and fired.

A-396-97; see also Eberly's Testimony, A-406 (explaining

that "she rocked back and forth on her hind legs and

started to come forward. It looked like, from my experience,

this dog was lunging and going to attack me."). Eberly shot

five times, hitting the Rottweiler three or four times.3

Even disregarding Eberly's and Grim's testimony, and

viewing the facts, as I must, in the light most favorable to

_________________________________________________________________

3. In a later part of this dissent, I have criticized the majority for

having

relied upon the testimony of Russell Yoder, which does not satisfy the

requirements of Fed. R. Evid. 804(b)(1) and which is therefore

inadmissible hearsay. It may well be that Grim's testimony suffers from

the same failing, in which case I should not consider it any more than

Yoder's testimony. Accordingly, I have disregarded not only Grim's

testimony, but also the testimony of Officer Eberly, since we are bound

on summary judgment to view all of the evidence and to credit all of the

inferences in favor of the plaintiffs.

32

the Browns, Eberly's actions were objectively reasonable. It

is uncontested that the dog was a Rottweiler,4 that it was

unleashed and uncontrolled, and that it had been barking.

_________________________________________________________________

4. Surprisingly, the majority opinion has failed to inform the reader

about the characteristics and nature of a Rottweiler that should be taken

into consideration in assessing the reasonableness of Eberly's actions.

While the record does not disclose this information, we can take judicial

notice of these traits from the American Kennel Club's descriptions

(www.akc.org) and the American Rottweiler Club's"Introducing the

Rottweiler" (www.amrottclub.org).

The American Rottweiler Club describes a Rottweiler as "a robust,

powerful and loyal breed. . . . He is an outstanding companion and

guard but ownership of a Rottweiler carries much greater than average

legal and moral responsibilities, due to traits possessed by this breed,

their size and strength. . . . Males range from 24" to 27" at the shoulder

and 95-135 lbs in weight. Females are somewhat smaller, 22" to 25" tall

and 80 to 100 lbs."

"The Rottweiler is very strong for its size. It has been used in Europe

to pull carts and retains the compact musculature desirable in a draft

animal. A full grown adult can easily knock a human off his feet. . . .

Obedience training is a must because of the animal's size and strength;

you must be able to maintain complete control of your animal at all

times. . . . [Aggressiveness] varies with the individual dog to some

degree,

although all have a strong territorial instinct and will defend their

master's home, car and property from intruders. Rottweilers have also

been known to bully or bluff their owners or other people, a trait that is

most disconcerting. . . . Although the Rottweiler does not usually bite

without provocation, even being cornered and held by one of these dogs

is a very unnerving experience for meter men, delivery persons or

neighbors wandering into the yard while the owner is absent." American

Rottweiler Club, "Introducing the Rottweiler."

The American Kennel Club states, "[t]he ideal Rottweiler is a medium

large, robust and powerful dog. . . . His compact and substantial build

denotes great strength, agility and endurance. Dogs are characteristically

more massive throughout with larger frame and heavier bone than

bitches. . . . Dogs [range from] 24 inches to 27 inches. Bitches [range

from] 22 inches to 25 inches."

Although it is sad to learn of the death or injury of any pet, I cannot

overlook the apprehension that an individual -- particularly a police

officer, who has a duty to protect and ensure the safety of the public --

may have when faced with an unleashed, uncontrolled, barking

Rottweiler.

33

Nothing in the record establishes the majority's conclusions

that Eberly knew the family to whom the dog belonged, that

the Browns owned the dog and lived in an adjacent house,

or that the Browns were available to take the Rottweiler in

custody. Nor can the record be read to show that Eberly

shot the Rottweiler without any provocation. See Maj. Op.

at 4. Moreover, Eberly's testimony that he heard and saw

no one before shooting is also not disputed. Contrary to the

majority's statement of facts, Ms. Brown's testimony

concerning when and what she shouted to Eberly is both

ambiguous and equivocal. She did not state that when the

officer reached for his gun, she shouted "That's my dog,

don't shoot!" Maj. Op. at 4. Rather, referring to what Ms.

Brown herself testified to, these are the operative facts:

Q: So you saw his right arm move and you yelled

something?

A: Yes.

Q: What did you yell?

A: At that point I'm not exactly sure what I yelled. I

know once he started shooting I know what I

yelled. I just started screaming.

. . .

Q: You don't know what you yelled?

A: I believe it was, "That's my dog," but I'm not

positive.

. . .

Q: As you sit here today, do you know what you

yelled?

A: I don't know in order. I know that words must have

come out of my mouth, but I don't know for certain

what I said.

A-104-06 (emphasis added).

Because Ms. Brown did not know what she said and

when she said it, reliance cannot be had on her testimony

as related in the majority opinion. All we can glean from the

record is that at some point in time after Eberly fired at the

34

Rottweiler, she started screaming. But we cannot know

what she said and at what point she claimed the Rottweiler

as hers. Moreover, in light of the record which I have just

reproduced above, it cannot be said that Eberly heard

anything until after he had fired his weapon.5

In particular, I stress that the majority's conclusion that

Ms. Brown claimed ownership of the dog prior to the

shooting -- because it depends so heavily on Yoder's

testimony -- is flawed and inaccurate. Let me explain why.

The majority opinion in its extensive footnote 5, in an

effort to bolster its conclusion that Eberly knew that the

Rottweiler's owner was available and anxious to take

custody, unfortunately recites testimony which was not

available for consideration by the District Court. It is by no

means available for consideration by us, and should not be

relied upon in the majority opinion because the testimony

of Russell Yoder was taken in connection with a Civil

Service Commission Hearing, and is inadmissible into

evidence under Fed. R. Evid. 804(b)(1).

That Rule requires such testimony, in order to be

admissible as an exception to the hearsay rule, to be

accompanied by proof (1) that the declarant -- in this case

Yoder -- was unavailable to testify, (2) that the testimony

was taken at a hearing, deposition, civil action or

proceeding, and (3) that the party against whom the

testimony is now offered -- in this case Eberly-- had an

opportunity to test the testimony by examination. New

Jersey Turnpike Authority v. PPG Industries, Inc. , 197 F.3d

96, 110 (3d Cir. 1999); Kirk v. Raymark Industries, Inc., 61

F.3d 147, 164-65 (3d Cir. 1995).

Here, Yoder's testimony was taken before a Civil Service

Commission with nothing appearing in the record to

establish his availability or unavailability in the instant

proceeding, nor can we tell from the record, by which we

are bound, whether the Commission Hearing -- not a court

_________________________________________________________________

5. Although in the qualified immunity summary judgment context we

could not rely upon Eberly's testimony if it was disputed, here no one

can contest Eberly's statement made in his deposition that "[a]fter the

shooting, that's when I heard voices."

35

proceeding -- satisfied the other elements of the Rule so as

to permit consideration in this summary judgment

proceeding. See New Jersey Turnpike, 197 F.3d at 110. Nor

is the majority opinion's explanation and its citations to

Williams v. Borough of West Chester, Pennsylvania , 891

F.2d 458, 466 n. 12 (3d Cir. 1990) and Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986) an answer to Yoder's

unavailability. Williams, referring to Celotex, is no more

than dictum, while Celotex refers only to appropriate

admissible affidavits or depositions, neither of which appear

in the instant record other than through Yoder's

administrative testimony. Hence by any evidentiary test,

Yoder's prior testimony before an administrative tribunal

was not admissible for consideration here because Yoder

must be considered "available" on this record where it is

undisputed that there is no finding to that effect.

Indeed, the District Court judge did not, so far as I can

tell, rely on that evidence in any particular and it has only

been resurrected by the majority on this appeal so as to

shore up its conclusion that Eberly should be liable. It

would have been an abuse of discretion for the District

Court to have admitted and considered this testimony

without a finding of unavailability, see Kirk , 61 F.3d at 165,

and the burden of proof of unavailability, as well as the

other elements of Rule 804(b)(1), rests upon the proponents

of the testimony -- here, the Browns. An examination of the

record reveals that it is completely silent as to Yoder's

availability. Hence, it is inappropriate -- indeed it is error

-- for the majority to rely on inadmissible hearsay

testimony whose reliability has not been tested. Without

Yoder's testimony -- testimony which the majority opinion

relies upon so heavily -- the majority's conclusion simply

cannot stand.

V

It is crystal clear to me that even in the face of a Fourth

Amendment violation, which as I have noted may be

problematical, see n.1, supra, Eberly's conduct as a police

officer in discharge of his statutory duty was not only

appropriate but no clearly established constitutional right

stemming from the occurrence of his shooting the Browns'

36

dog would or could have been known to any reasonable

person. Unfortunately, the majority opinion has not seen fit

to announce a standard for clearly established doctrine in

the context of qualified immunity, and by failing to do so,

it obviously could not relate the actions of Officer Eberly to

an unarticulated standard. Thus, by this failure, it has

abdicated this Court's responsibility to balance"the

interests in vindication of citizens' constitutional rights and

in public officials' effective performance of their duties."

Anderson, 483 U.S. at 639 (internal quotations omitted),

and has made it impossible for officials within our

jurisdiction to reasonably anticipate when their conduct

may give rise to liability for damages.

Because I cannot join such an opinion which disregards

the content of an acknowledged doctrine, I would affirm, in

its entirety, the District Court's judgment of May 22, 2000

which granted summary judgment for Officer Eberly and

the other named defendants.6 To the extent that the

majority holds otherwise, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

6. For largely the same reasons discussed above, I would also hold -- as

I stated earlier -- that Eberly's conduct, based solely on the record

supporting the Browns' position, could not constitute an intentional

infliction of emotional distress.

37