Morgan Hansen v. Thomas Black

United States Court of Appeals

For the Eighth Circuit

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No. 16-4162

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Morgan Hansen

lllllllllllllllllllll Plaintiff - Appellee

v.

Thomas Black

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the Western District of Missouri - St. Joseph

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Submitted: April 6, 2017

Filed: September 18, 2017

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Before WOLLMAN and LOKEN, Circuit Judges, and NELSON, District Judge.1

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LOKEN, Circuit Judge.

Morgan Hansen’s German Shepherd, Conan, escaped from her father’s back

yard and ran down highway I-29 near St. Joseph, Missouri, obstructing traffic.

Missouri Highway Patrol trooper Thomas Black unsuccessfully attempted to remove

1

The Honorable Susan Richard Nelson, United States District Judge for the

District of Minnesota, sitting by designation.

the dog from the roadway, then shot and killed him. Hansen filed this 42 U.S.C.

§ 1983 damage action against Black in his individual capacity, arguing Black

unreasonably seized her dog in violation of the Fourth Amendment. Black filed a

motion for summary judgment based on qualified immunity, which the district court

denied. Black appeals this interlocutory order. Viewing the facts most favorably to

the non-movant and reviewing the denial of qualified immunity de novo, we reverse.

De La Rosa v. White, 852 F.3d 740, 743 (8th Cir. 2017) (standard of review).

I.

On Sunday morning, May 20, 2012, Trooper Black was dispatched to respond

to calls regarding a dog on or near the I-29 roadway near busy Frederick Avenue exit

ramps into St. Joseph, where the speed limit was 65 miles per hour. After accessing

the southbound lanes, Trooper Black saw a collared, unleashed German Shepherd --

Conan -- running loose in the roadway. Trooper Black did not see anyone attempting

to catch the dog, and southbound vehicles were swerving onto the right shoulder or

rapidly changing lanes to avoid hitting the dog. To reduce the obvious traffic hazard,

Trooper Black positioned his patrol car across the center stripe, shutting down both

southbound lanes, while he attempted to capture the dog.

Initially, Black exited his patrol car and tried calling and running at the dog,

but it ran away, down the center stripe of the southbound lanes. Black re-entered his

patrol car and drove after the dog, then positioned the car to again block traffic, got

out, and tried to capture the dog by “yelling, shouting, [and] running towards [him].”

The dog again ran away. When Black activated his patrol car sirens to scare the dog

off the road, it looped north and circled his patrol car. Black again got out and tried

to scare the dog off the road by shouting and raising his hands. The dog ran away at

a “full sprint,” heading south on the southbound lanes of the interstate. By this time,

Trooper Black could see hundreds of southbound vehicles backed up a quarter mile,

which in his experience created a serious risk of “secondary” crashes.

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Trooper Black reentered his patrol car and drove as close to the running dog

as he could. He exited and fired a shot at the dog from fifty to seventy feet away.

The dog fell down. As Trooper Black approached from the north, the dog continued

south down the center of the southbound lanes, using his front paws because his back

legs were injured. Trooper Black shot the dog a second time in the torso or chest.

The dog dragged itself onto the grass median between the southbound and

northbound lanes. Observing the dog was now in pain and gravely wounded, Black

fired two more shots “to humanely kill the dog.”2

II.

In this § 1983 damage action, Hansen alleges that Trooper Black’s “shooting

and killing Plaintiff’s dog” violated her rights under the Fourth Amendment. Trooper

Black appeals the district court’s denial of his motion for summary judgment, arguing

he is entitled to qualified immunity from Hansen’s damage claim. Qualified

immunity shields public officials such as Trooper Black from liability and the

burdens of standing trial if their conduct did not “violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” White v.

Pauly, 137 S. Ct. 548, 551 (2017) (quotation omitted). This shields all but the

“plainly incompetent” -- those whose conduct violated legal norms that existing

precedent placed “beyond debate” at the time of the alleged misconduct. Ashcroft v.

2

Trooper Black’s deposition and affidavit are the only record evidence of his

attempted capture and shooting of the dog. Hansen provided no contrary evidence

but denied Trooper Black’s testimony for summary judgment purposes, alleging

Black’s credibility is in issue. “Once the moving party has properly supported its

motion for summary judgment, the non-moving party . . . must come forward with

specific facts showing that there is a genuine issue for trial.” Conseco Life Ins. Co.

v. Williams, 620 F.3d 902, 910 (8th Cir. 2010) (quotation omitted). Like the district

court we conclude no material fact dispute precludes our prompt determination of the

qualified immunity issue, as the Supreme Court has repeatedly directed. See Pearson

v. Callahan, 555 U.S. 223, 232 (2009).

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al-Kidd, 563 U.S. 731, 741, 744 (2011) (quotation omitted). To defeat summary

judgment based on qualified immunity, Hansen must point to facts showing both that

she suffered a violation of a constitutional or statutory right and that the right was

clearly established at the time of Black’s alleged violation.

The Fourth Amendment protects “persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. It “protects property

a well as privacy.” Soldal v. Cook Cty., 506 U.S. 56, 62 (1992). “A ‘seizure’ of

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). This court and other circuits that have considered the issue agree that

privately-owned dogs “should be considered effects within the meaning of the Fourth

Amendment.” Altman v. City of High Point, 330 F.3d 194, 202 (4th Cir. 2003); see

Andrews v. City of W. Branch, 454 F.3d 914, 918 (8th Cir. 2006); Brown v.

Muhlenberg Twp., 269 F.3d 205, 210-11 (3d Cir. 2001); Fuller v. Vines, 36 F.3d 65,

68 (9th Cir. 1994), cert. denied, 514 U.S. 1017 (1995), overruled on other grounds

by Robinson v. Solano Cty., 278 F.3d 1007, 1013 (9th Cir. 2002); Lesher v. Reed, 12

F.3d 148, 150 (8th Cir. 1994).

A. Hansen argues that Black committed an unconstitutional seizure when he

shot and killed her dog. But that over-simplifies the Fourth Amendment issue.

Trooper Black unquestionably had the authority, indeed a public duty, to seize a

large, unleashed dog running unrestrained down a busy high-speed interstate

highway, causing vehicles to swerve, change lanes, and seek safety on the shoulder.

Thus, it is not the seizure that is in question, it is the degree of force Black employed

to accomplish a necessary seizure. “Determining whether the force used to effect a

particular seizure is ‘reasonable’ requires balancing of the individual’s Fourth

Amendment interests against the relevant government interests.” Cty. of Los Angeles

v. Mendez, 137 S. Ct. 1539, 1546 (2017) (quotation omitted). The analysis “turns on

the facts and circumstances of each particular case.” Kingsley v. Hendrickson, 135

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S. Ct. 2466, 2473 (2015), quoting Graham v. Connor, 490 U.S. 386, 396 (1989); see

Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006).

The district court recognized that this Fourth Amendment issue required an

excessive force analysis:

A jury could find that Trooper Black’s seizure was not objectively

reasonable under the circumstances.3 Although the dog may have posed

a risk to motorists while it was running on the Interstate, that risk ended

when Trooper Black shot the dog the first time. . . . The first shot

caused the dog to drop, and by Trooper Black’s own testimony, the dog

was only able to drag itself on its front paws. At this point, Trooper

Black could have picked up the dog. Instead, Trooper Black walked

towards the dog and then shot it a second time. After the first shot . . .

the dog had been stopped, the Interstate could be opened, and the risk

to the public was over. Once the justification for a seizure ends, it is no

longer reasonable for a seizure to occur.

However, although the court properly framed the Fourth Amendment issue, in our

view it failed to “make this determination from the perspective of a reasonable officer

on the scene.” Kingsley, 135 S. Ct. at 2473. Rather, when it appeared to the court

“in the calm aftermath, that [Trooper Black] could have taken a different course” --

carrying the dog off the roadway -- it improperly held Black to that “demanding

standard,” rather than limit its inquiry to the objective reasonableness of Black’s

conduct. Aipperspach v. McInerney, 766 F.3d 803, 806 (8th Cir. 2014) (quotations

omitted), cert. denied, 135 S. Ct. 1415 (2015).

3

This statement reflected a common legal error. “In determining whether a

Fourth Amendment violation occurred we draw all reasonable factual inferences in

favor of the jury verdict, but . . . we do not defer to the jury’s legal conclusion that

those facts violate the Constitution.” Muehler v. Mena, 544 U.S. 93, 98 n.1 (2005).

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A dog owner’s protected property interest wanes if her pet escapes. “[W]hile

we do not denigrate the possessory interest a dog owner has in [her] pet, we do

conclude that dog owners forfeit many of these possessory interests when they allow

their dogs to run at large, unleashed, uncontrolled, and unsupervised, for at that point

the dog ceases to become simply a personal effect and takes on the nature of a public

nuisance.” Altman, 330 F.3d at 205-06. Here, responding to 911 calls, Trooper

Black encountered a large dog running free on a high speed interstate, causing traffic

to swerve between lanes and drive onto the shoulder. Black made multiple attempts

to capture the dog without using force. But his efforts were unavailing and caused

a dangerous quarter-mile traffic back-up. At this point, we agree with the district

court that Black’s decision to use force to clear the highway of this traffic hazard by

firing the first shot was objectively reasonable. The first shot wounded the dog, but

it remained in the southbound lanes, struggling to evade Black and continuing to

obstruct the highway. Trooper Black decided that traffic safety, his first priority,

required him to clear an interstate highway rather than continuing to hold traffic while

waiting for additional help. He did not have a taser, catch, or snare pole, so he shot

the dog a second time. The district court, employing hindsight, reasoned that Black

could simply have carried Conan off the roadway. But we are not prepared to say

that, in these circumstances, the Fourth Amendment required an officer to approach

and attempt to carry a large wounded animal that his extensive efforts had failed to

control. Moreover, the district court failed to explain how Black would have been

able to safely reopen the interstate after leaving this wounded animal on the median.

None of the cases on which Hansen relies involved an unleashed, unsupervised

dogs that was risking public safety on a busy interstate highway and would not

respond to numerous attempts at a safe, harmless seizure. In Andrews, 454 F.3d 914,

an officer looking for a large black dog loose in a residential neighborhood shot

another dog that was harmlessly urinating in a fenced backyard, with its owner

standing a few feet away. In Brown, 269 F.3d at 209, 211-212, an officer repeatedly

shot a pet “without any provocation and with knowledge that it belonged to the family

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who lived in the adjacent house and was available to take custody.” When a dog is

“at large, uncontrolled and with no owner looking on [is] distinguishable from the

Third Circuit’s decision in Brown.” Altman, 330 F.3d at 207.

An officer’s use of deadly force is always tragic, but the actions of Trooper

Black were objectively reasonable under the circumstances, and he is therefore

entitled to qualified immunity.

B. Even assuming a constitutional violation, Trooper Black is entitled to

qualified immunity because his conduct did not violate a clearly established Fourth

Amendment right. To avoid qualified immunity, Hansen must show that existing

precedent placed Trooper Black’s conduct “beyond debate.” al-Kidd, 563 U.S. at 741;

see White, 137 S. Ct. at 552. Hansen has not cited, and we have not found, any case

concluding that an officer violated the Fourth Amendment when he shot and killed

an unrestrained, unsupervised dog creating a serious risk to public safety and

avoiding numerous attempts to control him without force. In Andrews, 454 F.3d 914,

and in Lesher, 12 F.3d 148, the dogs were under their owners’ control when seized.

The district court reasoned, citing Andrews, that it was “clearly established that

pets who do not pose an imminent danger cannot be shot, regardless of the specific

facts that demonstrate the lack of danger,” and Trooper Black’s “first shot made it

possible to remove the dog from Interstate through means that did not require it to be

shot again.” We cannot agree it was clear to a reasonable officer that the wounded

dog presented no imminent danger to the motoring public when it remained in the

southbound lanes, struggling to get away, while a traffic back-up created a constant

risk of secondary crashes. Moreover, whether Black could have safely carried the

dog off the road, and then moved his patrol car to lift the roadblock with the wounded

dog still on the interstate median, is speculation that Fourth Amendment excessive

force precedents do not require. Trooper Black is entitled to qualified immunity

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because existing precedent did not place “beyond debate” that his conduct

contravened Hansen’s clearly established Fourth Amendment rights.

The Order of the district court dated October 27, 2016 denying Trooper

Thomas Black’s motion for summary judgment is reversed.

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