Wesley Jones v. City of Houston

Case: 16-20290 Document: 00513993003 Page: 1 Date Filed: 05/15/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-20290 FILED

May 15, 2017

WESLEY JONES; AISLING JONES, Lyle W. Cayce

Clerk

Plaintiffs - Appellees

v.

OFFICER ADRIAN LOPEZ, Officially & Individually; SAMMY DELACRUZ,

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

USDC No: 4:14-CV-2728

Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Two Houston, Texas, police officers appeal a denial of summary

judgment on the basis of qualified immunity for their fatal shooting of the

plaintiffs’ eight-year-old pet dog. We find genuine issues of material fact

regarding the events at the plaintiffs’ residence, making the applicability of

qualified immunity unresolvable at this juncture. We also agree with the

district court that the killing of a pet dog is a constitutional seizure.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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No. 16-20290

Our appellate jurisdiction is generally limited to a review of final

decisions of the district courts. See 28 U.S.C. § 1291. No final decision has

been entered here. Even so, jurisdiction could exist in this case because the

defendants’ motion for summary judgment based on qualified immunity was

denied; such a ruling is a collateral order that may be subject to immediate

review. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). The

denial of qualified immunity, though, may be reviewed on an interlocutory

appeal only “to the extent that the district court’s order turns on an issue of

law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). That means we

have jurisdiction concerning “the materiality of any factual disputes, but not

their genuineness.” Brothers v. Zoss, 837 F.3d 513, 517 (5th Cir. 2016)

(quotation marks omitted).

We also have jurisdiction to consider a legal question on which the denial

of qualified immunity turns, specifically whether the claim actually states a

constitutional violation. See Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir.

1999). We start with that question.

I. Killing of a Pet Dog as a Fourth Amendment Seizure

The defendants assert that the killing of a pet dog by a law-enforcement

officer is not a “seizure” within the meaning of the Fourth Amendment. The

district court held there was a Fourth Amendment claim for the killing of the

pet, which is a legal issue that in turn made a decision on qualified immunity

relevant. In two recent decisions we held that an officer’s shooting of a pet dog

is in some circumstances a seizure under the Fourth Amendment. Grant v.

City of Houston, 625 F. App’x 670, 675 (5th Cir. 2015); Stephenson v.

McClelland, 632 F. App’x 177, 184 (5th Cir. 2015).

In Grant, law enforcement officers were conducting a search of a

suspect’s garage pursuant to a warrant when they were confronted by a three-

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legged pit bull that appeared aggressive to the officers. Grant, 625 F. App’x at

672. During the search, the dog charged towards one of the officers who was

forced to kick the dog to prevent it from biting his legs. Id. Witnessing the

dog’s continued aggressive behavior, the officer shot and killed the dog to

prevent it from attacking him. Id. On appeal, we addressed the plaintiff’s

claim that the officers used excessive force to seize the dog in violation of the

Fourth Amendment. Id. at 675. Relying on a case from the Ninth Circuit, we

concluded that “[i]t is beyond dispute that [the officer] ‘seized’ [the dog] within

the meaning of the Fourth Amendment.” Id. Based on Grant, we reached the

same conclusion in Stephenson. See 632 F. App’x at 184. We agree with our

prior though non-precedential rulings.

Our conclusion is consistent with that of every other circuit court to have

addressed this issue: The killing of a pet dog can be a seizure. See, e.g., Brown

v. Battle Creek Police Dep’t, 844 F.3d 556, 566 (6th Cir. 2016) (collecting cases).

When presented with the issue as a matter of first impression, the Fourth

Circuit undertook an extensive analysis of the relevant legal framework and

held “on the strength of the Constitution’s text, of history, and of precedent”

that “privately owned dogs were ‘effects’ subject to the protections of the Fourth

Amendment.” Altman v. City of High Point, 330 F.3d 194, 203 (4th Cir. 2003).

We see neither a reason to stray from this body of law nor a reason to reiterate

the Fourth Circuit’s thorough analysis.

II. Materiality of Factual Dispute About the Shooting

On this issue, we start with a brief look at the evidence. On October 19,

2012, the defendants, Officers Sammy Delacruz and Adrian Lopez of the

Houston, Texas, Police Department, responded to a 911 call alleging animal

abuse. After speaking to the caller, the officers walked next door to the

plaintiffs’ home. Officer Delacruz approached the plaintiffs’ front door, finding

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it wide open. According to Delacruz, he twice knocked on the front door and

announced, “Houston Police.”

Inside the house, the plaintiffs, Wesley and Aisling Jones, were in their

kitchen with their eight-year-old pet Boxer named Boss. 1 At some point, Mr.

Jones thought he heard a knock at the door, which was already open, and went

to answer it. Boss, alerted by the noise, ran to the open door. Mr. Jones lost

sight of Boss for approximately one to two seconds when he heard gunshots as

he rounded the corner of the kitchen. At the time the first shot was fired and

struck Boss, the dog was still inside the Joneses’ home. Shots were also fired

at the dog once it was outside.

The Joneses contend that, as Mr. Jones stood in the doorway, he

witnessed Officer Delacruz fire several more shots at Boss as the dog was

running away to the corner of the house. Upon hearing the first shot, Mrs.

Jones made her way to the front of the house. She could see Boss running

towards the side of the house through the front windows of the living room.

Boss was struck by a second bullet, fired this time by Officer Lopez, near the

corner of the house. The dog never approached within ten to fifteen feet of the

officers and did not turn back in the direction of the officers once he retreated

to the side of the home.

The defendants paint a decidedly different picture. Officer Delacruz

states that, after the second time he knocked, he began to walk away from the

Joneses’ front door. He claims when he was about three feet from the door, he

noticed a large dog — appearing to him as a pit bull terrier mix — charging at

him. Officer Delacruz states he made it a few more feet from the door when

his path of travel was impeded by a large flower pot. He claims the dog was

1 Boss, a fifty-five pound brindle Boxer, had no history of aggressive behavior and was

recovering from a recent surgery.

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barking and growling loudly and attempting to bite his left leg. Fearing for his

safety, Officer Delacruz fired two shots at Boss. Both officers testify that the

dog briefly retreated, but then turned again to approach Officer Delacruz.

Officer Lopez claims that he knew the dog was going to continue

attacking Officer Delacruz. With no owner in sight to exert control over Boss,

Officer Lopez discharged his service weapon once, striking the dog while he

was near the corner of the house. Boss ultimately died from internal bleeding

as a result of the gunshot wounds.

The district judge orally explained his denial of summary judgment as to

qualified immunity at the hearing on the motion:

THE COURT: No. I think I understand the facts. There were three

shots fired. The plaintiffs didn’t see the first one but saw the next

two. The dog was wounded after the first shot and was killed by

subsequent shots. I think I understand the facts generally.

It just seems to me we have a fact issue as to what danger

the dog posed to the police officers.

There are obviously factual disputes here. The plaintiffs state they were

near the dog, only two seconds behind in the house. They never saw him

threaten to attack the officers, heard him growl, or otherwise pose the threat

identified by the officers. Whether the disputes are material is the limit of our

review. See Zoss, 837 F.3d at 517. The defendants argue that this alleged

factual dispute falls into the category of a false dispute, when the plaintiffs’

version is “blatantly contradicted” and “utterly discredited.” See Scott v.

Harris, 550 U.S. 372, 380 (2007). In Scott, though, the Supreme Court was

discussing a contemporaneous video that discredited opposing testimony. Id.

at 378–81. There is no video here. Instead, we have a conflict of self-serving

statements from each side.

“[T]he district court’s ruling cannot be appealed to the extent that the

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official seeks to challenge the district court’s determinations regarding the

sufficiency of the summary-judgment record.” Johnson v. Johnson, 385 F.3d

503, 524 (5th Cir. 2004) (emphasis omitted). We are to consider whether the

factual dispute is material. It is, as resolving it will resolve whether there was

any basis for the officers’ seizing the dog by shooting him.

Here, the district court correctly construed all facts in the light most

favorable to the Joneses as the non-moving party and found a genuine dispute

of material fact suggesting the officers’ conduct violated their constitutional

rights and that the officers’ actions were objectively unreasonable in light of

clearly established law. A district court’s determination, in the face of

conflicting evidence, “that there was a genuine issue of material fact

concerning the lawfulness of the force employed by [the officers]” is the sort of

factual determination we lack jurisdiction to review on interlocutory appeal.

See Baulch v. Johns, 70 F.3d 813, 815 (5th Cir. 1995).

Without a question of law to resolve, we lack jurisdiction over the denial

of qualified immunity. See id. We do have jurisdiction to consider the purely

legal issue of whether the Joneses have raised a Fourth Amendment claim.

Palmer, 193 F.3d at 351. They have.

***

We agree with the legal ruling that the killing of the plaintiffs’ pet dog

raises a Fourth Amendment claim. We DISMISS the appeal of the denial of

qualified immunity and REMAND for further proceedings consistent with this

opinion.

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