DaShuna Richards v. City of Jackson, Mich.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0484n.06

Case No. 18-2024

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

DASHUNA RICHARDS; EDDIE HARRIS, ) Sep 17, 2019

) DEBORAH S. HUNT, Clerk

Plaintiffs-Appellees, )

)

CITY OF JACKSON, MICHIGAN, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

Defendant, ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

MATTHEW PETERS, in his individual and )

official capacity, )

) OPINION

Defendant-Appellant. )

BEFORE: COLE, Chief Judge; SILER and CLAY, Circuit Judges.

COLE, Chief Judge. It is undisputed that Officer Matthew Peters had no warrant, exigent

circumstances, or consent to enter the residence of plaintiffs DaShuna Richards and Eddie Harris

on November 28, 2014. But when Peters approached their front door—which Peters claims he

believed would lead to a common area, even though the plaintiffs’ door was clearly marked with

an individual house number and had its own mailbox and doorbell—he opened it without knocking

and walked inside. Once inside, Peters announced his presence, which prompted the plaintiffs’

pet dog Kane to run down the stairs and growl at the officer who was inside his home. Harris

testified that although Kane was well-trained and did not bite or lunge at the officer, Peters shot

Kane as soon as the dog reached the bottom of the staircase.

Case No. 18-2024, Richards v. City of Jackson

Richards and Harris brought a cause of action against Peters, alleging that he unlawfully

entered their home and shot their dog in violation of the Fourth Amendment and Michigan state

law. Peters moved for summary judgment on grounds of qualified immunity and Michigan

governmental immunity, and the district court denied his motion as to the plaintiffs’ Fourth

Amendment claims and state-law claims of conversion and gross negligence. We affirm.

I. BACKGROUND

In 2014, DaShuna Richards, Eddie Harris, and their pet dog Kane Lee Chaney (“Kane”)

lived together at 513 South Blackstone Street in Jackson, Michigan. Richards bought Kane in

2009, and Richards and Harris shared responsibility for Kane over the five years that followed:

Harris trained Kane, and Richards fed and cared for him. Richard and Harris describe Kane as a

well-trained American Pit Bull Terrier who had never displayed aggression toward other animals

or people.

On November 28, 2014, two police officers arrived at 513 South Blackstone Street for

reasons unrelated to Richards, Harris, or Kane. On November 20, 2014, a probate judge had

ordered a man named Donte Cox to report to Allegiance Health Hospital, as he had failed to pick

up his prescribed medication. If Cox did not appear at Allegiance Health, the order stated that

police officers would take Cox into protective custody and transport him to the hospital. When

Cox failed to appear, the Jackson Police Department dispatched Officers Matthew Peters and

Lewis Costley to look for Cox at several addresses in Jackson, including 511 South Blackstone

Street and 513 South Blackstone Street. Cox did not live at 513 South Blackstone Street in 2014,

and it is unclear from the record whether Cox had ever lived at either Blackstone address.

Peters and Costley began looking for Cox at the addresses provided by dispatch, which led

them to the plaintiffs’ address. Upon arriving at 511 and 513 South Blackstone Street, the officers

found the two units were part of the same building. Each unit had a separate door on the exterior

of the house, and each door was conspicuously labeled with a single, distinct address identifying

the residence inside. Each door was also accompanied by its own mailbox, and the door marked

“513” had its own doorbell as well.

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Costley went to the door labeled “511,” and Peters went to the door labeled “513.” Costley

knocked on the door at 511 Blackstone, waited, and did not receive a response, so he did not enter

the residence. Peters, in contrast, approached the door at 513 Blackstone and walked inside

without knocking or ringing the doorbell. Peters admits he had no search warrant, no consent to

enter the home, and no exigent circumstances that would have permitted him to enter the home

absent a warrant or consent. But Peters contends that the front screen door was slightly ajar and

there was no solid door behind the screen door, so he presumed that the door led to a common

front entry for multiple apartments, despite his acknowledgement that only one house number—

513—was listed next to the door.

In contrast, Richards and Harris testified that the door was not a common entry. Instead,

they contend that Peters walked through the front door of their home—a door that did not provide

entry to any unit other than 513, as indicated by the address marked next to the doorway. Both

Richards’s testimony and multiple photographs of the property contradict Peters’s description of

the door. There were actually two doors at the entryway to 513 Blackstone: the screen door that

Peters describes, as well as a second solid white door immediately behind the screen door. Harris

maintains the screen door was closed before Peters entered the home and that he heard the screen

door creak open upon Peters’s entry. The audio recording from Peters’s body microphone captures

a sound consistent with the creaking that Harris describes.

Upon entering through the doorway, Peters saw a small foyer, a flight of stairs, and an

additional door at the top of the stairs. The door at the top of the stairs opens into Richards’s and

Harris’s living room, where Harris was playing video games with Richards’s younger brother,

Jaquan Caddell. Kane was lying nearby. While Harris and Caddell were playing video games,

they heard the screen door “creep open” and heard “footsteps in the doorway,” alerting them that

someone was inside the home. (Harris Dep., R. 45-4, PageID 572.)

Standing inside the foyer, Peters knocked on the interior wall of the apartment. After the

knock, the audio recording from Peters’s body microphone captures Harris yelling from the living

room, “Who the f–ck is it?” (Peters Audio at 1:39.) Peters responds, “Police.” (Id. at 1:42.) Right

after Harris yells and Peters responds, the audio recording captures the sound of Kane running and

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growling for four seconds. (Id. at 1:43–1:47.) Peters then contends that he said, “Get your f–cking

dog,” but Harris contends that he could not hear Peters saying anything to him. (Peters Dep.,

R. 45-7, PageID 594.) The audio recording captures Peters saying “. . . [expletive] dog,” but the

recording quality makes it difficult to discern the full quote or how loudly Peters was speaking.

(Peters Audio at 1:47–1:48.) Kane continues to make noise, though it is unclear whether the sound

is running, growling, or some combination of the two. Within two seconds of Peters saying

“[expletive] dog,” the audio recording captures him shooting and killing Kane.

What the audio recording does not capture—and what is hotly contested—is what Kane,

Harris, and Peters were doing during the six seconds between the time Kane began running from

the living room and the time at which he was shot. Both Harris and Peters agree that Kane ran

down the stairs and growled. But from there, the witnesses to the shooting provide differing stories

about what took place.

Harris testified that Kane began running down the stairs to prevent Peters from coming up

the stairway, because Peters “was trying to creep in and creep upstairs without saying nothing.”

(Harris Dep., R. 45-4, PageID 573.) At the time that Peters shot Kane, Harris contends that he was

going down the stairs to get his dog, but that Peters fired the shots before he could reach Kane.

Harris testified that Peters shot Kane as soon as Kane got to the bottom of the stairway.

In contrast, Peters wrote in his police report that Kane immediately ran down the stairs,

“came directly to his feet,” and “began growling, snarling, and biting at my feet and ankles.”

(Police Reports, R. 28-2, PageID 174.) Peters wrote that he “yelled for someone to come get the

dog and kicked at it,” but that “[o]ne kick sent the dog back against the bottom of the stairs only

to have it charge back at [Peters] again biting at [his] legs.” (Id.) Peters later testified that he did

not try to exit the apartment during this encounter, and while he is “sure at some point” he could

have exited the apartment, he did not feel he had time to exit after yelling for someone to get the

dog. (Peters Dep., R. 45-7, PageID 594.) Peters contends that, after he yelled, Harris appeared at

the top of the stairway, ran a third of the way down the stairs, and started yelling at Peters, though

the audio recording does not capture Harris yelling at this point. Peters testified that Kane returned

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between Peters’s legs a second time after being kicked, and that he shot Kane at that point because

he believed Kane was going to bite him.

Costley, the officer who was initially positioned outside 511 Blackstone, entered the

plaintiffs’ residence after hearing Peters’s voice coming from inside the unit. Costley’s police

report states that, at the time he entered 513 Blackstone, Peters was “backed into the far corner of

the small foyer area,” and Kane “was at his legs growling and barking in a vicious manner.”

(Police Reports, R. 28-2, PageID 175.) Costley wrote that Peters “attempt[ed] to push the dog

away with his foot,” and Kane moved back but then “immediately began advancing toward [Peters]

again, while continuing to growl[] and bark[] aggressively,” at which point Peters shot Kane. (Id.)

The record is also unclear about the size of the foyer and Peters’s location at the time of

the shooting. The foyer is located between the front door and the stairwell that leads to the living

room, but none of the witness testimony or photographs in the record provide a clear estimate of

the foyer’s dimensions. And the officers’ accounts regarding Peters’s location within the foyer

differ: Peters repeatedly states in his deposition that he was standing just inside the door while he

was inside the plaintiffs’ home, but Costley testified that when he entered the plaintiffs’ home

through that same front door, Peters was backed into the far corner of the foyer area.

After the shooting, the audio recording captures Harris saying, “Why you shoot my dog,

man?” (Peters Audio at 1:52.) Peters says, “He was [expletive] biting me, man.” (Id. at 1:53.)

But when deposed, Peters admitted that Kane never bit him. There, he testified that Kane was

“biting at [him],” but Kane “did not make physical contact with [his] leg.” (Peters Dep., R. 45-7,

PageID 592, 595.) Harris also contends that Peters was flippant and even laughed during their

conversation after the shooting, though Peters testified that he did not recall having laughed.

On September 29, 2016, Richards and Harris brought a cause of action against Peters,

alleging that Peters unreasonably searched their home and seized Kane in violation of the Fourth

Amendment and Michigan tort law. Peters moved for summary judgment on grounds of qualified

immunity and Michigan governmental immunity. On August 27, 2018, the district court denied

Peters’s motion as to the Fourth Amendment, conversion, and gross negligence claims. Peters

filed a timely notice of appeal.

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II. ANALYSIS

We begin with whether the district court erred in denying Peters qualified immunity for the

plaintiffs’ Fourth Amendment claims, and then address whether the district court erred in denying

Peters governmental immunity under Michigan law for the plaintiffs’ state-law claims.

A. Qualified Immunity

In analyzing whether an official is entitled to qualified immunity, we must make two

determinations: first, whether the plaintiffs have created a genuine dispute of material fact

regarding whether the official deprived them of a constitutional right; and second, whether that

right was clearly established such that a reasonable official would have known his actions were

unconstitutional. Morgan v. Fairfield Cty., 903 F.3d 553, 560 (6th Cir. 2018) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Courts can address these inquiries in either order. Id. In

undertaking each inquiry, we accept the “most favorable view of the facts to the plaintiff for

purposes of the appeal.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011).

Here, the district court denied Peters qualified immunity for two Fourth Amendment

claims: first, the claim that the warrantless entry into the plaintiffs’ home constituted an

unreasonable search; and second, the claim that shooting and killing the plaintiffs’ pet dog

constituted an unreasonable seizure. We address each claim in turn.

1. Unreasonable Search

In determining whether the district court erred in denying Peters qualified immunity for

entering the plaintiffs’ home, we begin with the question of whether the plaintiffs have presented

a genuine dispute of material fact regarding whether Peters’s entry into their home deprived them

of their Fourth Amendment rights, and then analyze whether the right at issue was clearly

established on November 28, 2014.

a. Constitutional Deprivation

The Fourth Amendment protects against unreasonable searches of an individual’s home.

U.S. Const. amend. IV. The Supreme Court has recognized that “physical entry of the home is the

chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S.

District Court (Keith), 407 U.S. 297, 313 (1972); see Florida v. Jardines, 569 U.S. 1, 6 (2013).

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“In terms that apply equally to seizures of property and to seizures of persons, the Fourth

Amendment has drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S.

573, 589–90 (1980). The Supreme Court has taken this threshold seriously, making clear that “any

physical invasion of the structure of the home, ‘by even a fraction of an inch,’ [is] too much,” and

that “there is certainly no exception to the warrant requirement for the officer who barely cracks

open the front door and sees nothing but the nonintimate rug on the vestibule floor.” Kyllo v.

United States, 533 U.S. 27, 37 (2001) (quoting Silverman v. United States, 365 U.S. 505, 512

(1961)). “With few exceptions, the question whether a warrantless search of a home is reasonable

and hence constitutional must be answered no.” Id. at 31.

Peters does not argue that he had a warrant, consent, or exigent circumstances to enter the

home. Instead, his argument turns on whether he had entered the plaintiffs’ home at all. Peters

claims that he reasonably believed the front door led to a common entryway shared by multiple

residences, and he argues that individuals have no “objectively reasonable expectation of privacy

in the unlocked and open common hallway and stairway of [their] duplex.” United States v.

Dillard, 438 F.3d 675, 684 (6th Cir. 2006).

Peters’s position elides a critical factual dispute: whether the foyer was in fact a common

area. The plaintiffs vigorously dispute that the foyer was a common area—and the record supports

their position. The district court rejected Peters’s suggestion that the foyer was a common area,

finding that each unit had its own door and that the plaintiffs were the only residents of the

Blackstone building who had access to the foyer. We agree that the plaintiffs have demonstrated

that Peters entered their home, not a common area.

Peters’s remaining argument—that, even if he had entered the plaintiffs’ home, he had

“restricted his movement to the area of the apartment that was generally accessible to visitors to

the property”—is unpersuasive. (Appellant Br. 29–31.) Richards’s deposition makes clear that,

although the living room and bedroom were at the top of the second set of stairs, everything inside

the exterior door that Peters breached is part of the plaintiffs’ apartment. Once Peters entered the

plaintiffs’ home, it did not matter whether he was in the front hallway where they accepted visitors

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or in their bedroom—“any physical invasion of the structure of the home, ‘by even a fraction of

an inch,’ [is] too much.” Kyllo, 533 U.S. at 37.

b. Clearly Established

Even assuming his entry into the plaintiffs’ home was unconstitutional, Peters argues that

he reasonably believed the foyer was an entrance to a common area, and an officer who acts on a

mistaken but reasonable belief is entitled to qualified immunity. This court has held that “a

government employee will be shielded from liability so long as the employee acted under the

objectively reasonable belief that his or her actions were lawful.” Ahlers v. Schebil, 188 F.3d 365,

373 (6th Cir. 1999); see Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). Thus, at this stage

of litigation, we must determine whether a jury could reasonably find that Peters’s belief was not

objectively reasonable. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Peters contends that when he entered through an unlocked door in a multi-occupant

building, he believed that the door would lead to a foyer from which he could access the doors to

multiple interior units. In his deposition, Peters testified that, in Jackson, “[t]here are countless

large homes with multiple apartments inside of that large building most of which you have to go

into to get to the individual apartments, be it one, two, three, A, B, C,” and, in his experience, the

address markings on the exterior of such buildings would not always indicate that there were

multiple units inside. (Peters Dep., R. 45-7, PageID 594.) But Peters also agreed that he had

received no information from dispatch indicating that such subunits existed in this apartment, and

that he was not asked to look for an individual in 513A, B, or C—he was simply told that Cox

might be at 511 or 513 South Blackstone Street, each of which had its own door and address

marking on the exterior of the home. The fact that some houses in Jackson have this design does

not preclude a jury from finding that Peters was unreasonable in assuming that this house had such

a feature.

The photographs of the home’s exterior further undermine the reasonableness of Peters’s

belief: the clear address markings, individual mailboxes at each door, and the doorbell outside of

the door marked 513 cut against the idea that this front door led to a common area rather than the

entryway of an individual’s home.

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After considering all of the evidence, the district court found that “[w]hether it was

unreasonable for Officer Peters to assume Plaintiffs’ home consisted of multiple dwelling units,

and he unlawfully entered Plaintiffs’ home presents a genuine issue of material fact, which should

be determined by the factfinder.” (Order, R. 59, PageID 944.) We agree. Because there is a

genuine dispute of material fact regarding whether Peters’s belief that he had not entered the

plaintiffs’ home when he walked through their doorway was reasonable, we affirm the denial of

qualified immunity as to this claim.

2. Unreasonable Seizure

In determining whether the district court erred in denying Peters qualified immunity for

shooting Kane, we begin with the question of whether the right at issue was clearly established on

November 28, 2014, and then address whether the plaintiffs have presented a genuine issue of

material fact regarding whether Peters’s seizure of Kane violated the Fourth Amendment.

a. Clearly Established

The Fourth Amendment protects against unreasonable seizures of an individual’s property.

U.S. Const. amend. IV. This court has acknowledged that “there is a constitutional right under the

Fourth Amendment to not have one’s dog unreasonably seized.” Brown v. Battle Creek Police

Dep’t, 844 F.3d 556, 566 (6th Cir. 2016). In describing the contours of that right in Brown, we

began with the premise that a “seizure becomes unlawful when it is more intrusive than necessary.”

Id. at 568 (citing Florida v. Royer, 460 U.S. 491, 504 (1983)). In determining whether a seizure

of a dog was more intrusive than necessary, we reiterated the Supreme Court’s holding that “a

court must ‘balance the nature and quality of the intrusion on the individual’s Fourth Amendment

interests against the importance of the governmental interest alleged to justify the intrusion’ and

determine whether ‘the totality of the circumstances justified [the] particular sort of . . . seizure.’”

Id. (quoting Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013)).

In Brown, we concluded that shooting a pet dog is a “severe intrusion[,] given the emotional

attachment between a dog and an owner.” Id. at 568; see San Jose Charter of the Hells Angels

Motorcycle Club v. City of San Jose, 402 F.3d 962, 975–78 (9th Cir. 2005) (“The emotional

attachment to a family’s dog is not comparable to a possessory interest in furniture.”). But we also

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found that ensuring “officer safety and preventing the destruction of evidence are particularly

important governmental interests that the courts must strive to protect.” Brown, 844 F.3d at 568.

After balancing these interests, we found that “a police officer’s use of deadly force against a dog

while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth

Amendment when, given the totality of the circumstances and viewed from the perspective of an

objectively reasonable officer, the dog poses an imminent threat to the officer’s safety.” Id. We

defined the requisite imminent threat as “‘[a]n immediate, real threat to one’s safety that justifies

the use of force in self-defense,’ or ‘[t]he danger resulting from an immediate threatened injury

sufficient to cause a reasonable and prudent person to defend himself or herself.’” Id. at 567

(quoting Imminent Danger, BLACK’S LAW DICTIONARY (10th ed. 2014)).

In defining the right at issue, we noted that a “large number” of our sister circuits had

“already concluded that, ‘the use of deadly force against a household pet is reasonable only if the

pet poses an [imminent] danger and the use of force is unavoidable,’” and that every circuit to

consider the issue “has concluded that the unreasonable killing of a dog constitutes an

unconstitutional ‘seizure’ of personal property under the Fourth Amendment.” Brown, 844 F.3d

at 566–67 (alterations in original) (collecting cases). Accordingly, we determined that the right

not to have one’s dog unreasonably seized “was clearly established in 2013,” and we proceeded to

determine whether the seizures at hand were reasonable. Id. at 567. We see no reason to depart

from that course here.

Despite this court’s holding in Brown, Peters argues that the right at issue was not clearly

established for two reasons, neither of which is convincing. First, Peters argued that Brown was

issued in 2016, which is later-in-time than the conduct at issue and therefore cannot suffice to

clearly establish the law. This argument misreads Brown, where we unequivocally stated that the

“constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized . . .

was clearly established in 2013.” Brown, 844 F.3d at 566–67. Because the right was clearly

established in 2013, it was also clearly established when Peters shot Kane on November 28, 2014.

Second, Peters argues that he could not have been expected to anticipate our recognition in

Smith v. City of Detroit, 751 F. App’x 691, 692 (6th Cir. 2018) that unlicensed dogs are property

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under the Fourth Amendment. Had Peters argued that he shot Kane because he believed Kane was

unlicensed and that Harris and Richards had no property interest in an unlicensed dog, this

argument might have some force. But Peters gives no indication that he knew or even considered

whether Kane was unlicensed at the time of the shooting. Cf. Smith, 751 F. App’x at 697 (“As the

district court observed, ‘the officers did not shoot the dogs because they were unlicensed. Rather,

the officers . . . were not even aware that the dogs were unlicensed.’”). Thus, Peters’s ability to

anticipate this court’s ruling in Smith has no bearing on whether Peters should reasonably have

known that his actions were unconstitutional.

b. Constitutional Deprivation

We must next determine whether plaintiffs have raised a genuine dispute of material fact

regarding whether Kane presented an imminent threat that justified Peters’s decision to shoot

Kane. At this stage of the case, we are required to view the facts in the light most favorable to the

plaintiffs, even where the only genuine dispute is created by the plaintiffs’ “uncorroborated

testimony” regarding the incident. Brown, 844 F.3d at 571; see Robinson, 818 F.3d at 8–10

(finding that the district court erred in holding that the dog owner’s uncorroborated testimony

failed to create a genuine dispute of material fact). Thus, for the purposes of the appeal, we must

assume that when Peters announced his presence from inside the home, Kane ran down the stairs

and growled but never advanced past the foot of the stairwell; that Kane did not lunge or bite at

Peters; and that Harris was on his way down the stairs to get Kane at the time that Peters shot

Kane.

We begin our analysis of whether the seizure in this case was reasonable with a closer look

at Brown. The specific facts in Brown led this court to conclude that no genuine dispute of material

fact existed regarding the reasonableness of shooting two dogs. In Brown, officers were executing

a raid on the home of a suspect who “posed a serious threat to the officers’ safety”: officers knew

that the suspect had a criminal history, used firearms, and had deep ties to a large, tightly-knit

gang. 844 F.3d at 568–69. These circumstances placed the officers in Brown “on high alert going

into the raid that other members of the gang could be in the residence and that they could be armed

and dangerous.” Id. at 569.

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In Brown, it was also undisputed that the dogs displayed signs of aggression beyond

growling. The dogs began lunging toward the windows as the officers approached the front door.

Id. at 569. The 97-pound dog jumped off the couch and lunged at the officers again as they entered

the residence, which prompted an officer to fire at the dog. Id. at 563. Still, the dogs continued to

obstruct the officers’ path in the basement of the home. Id. Given the high risk presented by the

suspect’s firearm and gang activity, the officers’ priority was to secure the basement and conduct

a sweep for other potentially dangerous people in the home, and the officers testified they could

not safely accomplish this goal with both dogs present. Id. at 563, 570. Despite having been shot

once, the 97-pound dog turned toward the officers in the basement and started barking again, so

another officer fired a round of shots, killing the dog. Id. at 563. The 53-pound dog was also in

the middle of the basement, barking at officers as they attempted to enter and clear the area. Id.

The same officer who had just shot the first dog fired at the second dog when he saw it barking at

the officers, and a second officer fired at the dog again when it began moving toward him. Id.

In determining that shooting the dogs was not unreasonable, we emphasized that the

plaintiffs in Brown failed to rebut several undisputed material facts: namely, that a “large” dog

had “lunged” at the officer before he shot the dog, and that the officers were “unable to safely clear

the basement with both dogs there.” Id. at 570. The court also reiterated the suspect’s criminal

history and gang affiliations, “the fact that the officers had no time to plan for the dogs,” “the

nature and size of the dogs,” and “the fact that the dogs were unleashed and loose in a small

residence.” Id. at 572. Considering each of these factors as part of the totality of the circumstances,

we found the plaintiffs failed to create a genuine dispute of material fact regarding whether a dog

that was “barking and lunging at the officers as they breached the entryway” posed such an

imminent threat to the officers that “it was necessary to shoot the dog in order for them to safely

sweep the residence” and ensure no dangerous people were present. Id. at 570.

The facts of Brown bear some similarities to those presented here. Like in Brown, Peters

did not know about the dog in advance and had no time to plan for how to handle the dog’s

presence. Brown, 844 F.3d at 572. Additionally, Kane was off-leash in what appears to have been

a small area. But several meaningful differences make this case distinguishable from Brown.

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First, the level of aggression described in Brown is a common theme in cases where courts

have found that a seizure of a dog was reasonable. See Robinson v. Pezzat, 818 F.3d 1, 12 (D.C.

Cir. 2016) (“Given that [the dog] bit [an officer] hard enough to puncture her leather boots, [the

officer’s] belief—just seconds later—that the dog continued to pose an imminent threat even

absent additional aggressive behavior was hardly unreasonable.”); Altman v. City of High Point,

330 F.3d 194, 206 (4th Cir. 2003) (finding seizures were reasonable where officers had knowledge

that the dogs had previously attacked or behaved aggressively toward other humans). Taking the

facts in the light most favorable to the plaintiffs, Kane displayed a significantly lower level of

aggression. Here, Peters’s only reason to believe that Kane presented an imminent threat was that

he ran down the stairs and growled when an unknown person entered his home. As the district

court noted, this behavior is distinguishable from more serious displays of aggression akin to

lunging or biting because “descending stairs, barking, and growling” is “naturally expected of a

dog when a stranger enters its home.” (Order, R. 59, PageID 945.) See Robinson, 818 F.3d at 11

(“A jury could regard . . . Wrinkles’ barking at the police—as would most any self-respecting

dog—to be of limited probative value[.]”). We do not hold today that a dog must bite an officer

before he can fire his weapon. But a jury could reasonably find that the absence of any aggression

apart from growling is a factor that cuts toward unreasonableness in assessing the totality of the

circumstances.

Furthermore, the context of the seizure is dramatically different from that in Brown. Unlike

the officers in Brown, Peters was dealing with only one dog. Id. at 570, 572; Altman, 330 F.3d at

206 (“Obviously, the danger presented by a dog increases significantly when that dog joins others

in a pack.”). And, here, there was no intimation of high-risk gang activity or any similar level of

threat inside the home that would require Peters to conduct a sweep to ensure his safety. Rather,

Peters had been dispatched to look for a man who had failed to pick up his medication from a local

hospital. As discussed above, Peters did not even have a warrant to enter the home in question, let

alone a need to conduct a thorough search or sweep of the premises that might necessitate seizing

the dog to safely clear the scene. Cf. Brown, 844 F.3d at 563, 570.

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Relatedly, the questionable validity of the search distinguishes this case from Brown.

Although the primary question in an excessive force case is typically “whether the force used to

effect that seizure was reasonable in the totality of the circumstances, not whether it was reasonable

for the police to create the circumstances,” Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.

1996) (quoting Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992)), this court has

acknowledged that where “the events preceding the shooting occurred in close temporal proximity

to the shooting, those events have been considered in analyzing whether excessive force was used.”

Bletz v. Gribble, 641 F.3d 743, 750–52 (6th Cir. 2011) (citing Yates v. City of Cleveland, 941 F.2d

444, 447 (6th Cir. 1991) (noting that the officer’s “actions preceding the shooting were not those

of an objectively reasonable police officer” in finding that the officer’s use of force was objectively

unreasonable)). Because the audio recording suggests that Peters’s relevant conduct—from the

time he entered the home to the time at which he shot Kane—occurred within 17 seconds, a jury

could reasonably find that Peters’s unlawful entry preceding the shooting as an additional factor

cutting against the reasonableness of the seizure.

Several additional unresolved facts suggest that a genuine dispute of material fact remains

regarding whether the seizure was reasonable. For example, the uncertainty in the record regarding

the size of the foyer and Peters’s location in the foyer at the time of the shooting makes it difficult

to tell whether Kane posed an imminent threat to Peters from the foot of the stairwell. A jury could

reasonably find that a growling dog standing several feet away from the officer does not present

the same type of imminent threat as a dog who is lunging toward the officer.

The record also contains no information about Kane’s size. In Brown, this court looked to

the “nature and size of the dogs,” noting that the record demonstrated that one dog was 97 pounds

and the other was 53 pounds. In contrast, none of the police reports or depositions in this case

even describes Kane as “large” or “small.” The lack of information about size matters, as a jury

could reasonably find that the threat posed by a 30-pound dog is meaningfully less severe than that

posed by the 97- and 53-pound dogs described in Brown. See United Kennel Club, American Pit

Bull Terrier (May 1, 2017) (describing weight range); American Dog Breeders Association, The

ADBA Heritage American Pit Bull Terrier Conformation Standard (Jan. 27, 2018) (same). And

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Case No. 18-2024, Richards v. City of Jackson

as for Kane’s “nature,” the only undisputed facts about Kane’s behavior in the record are that he

had never been aggressive toward other people or animals in the five years he had lived with the

plaintiffs, apart from growling when a stranger unexpectedly entered his home.

In light of all the considerations enumerated above—the lack of aggression beyond the

common dog behaviors of running down the stairs and growling at a stranger in the home; the

absence of high-risk criminal activity that might require seizing the dog to safely sweep the

premises; Peters’s unlawful entry into the home where he shot the dog; the material disputes in the

record regarding the distance between Peters and the dog; and the lack of any record facts regarding

Kane’s size or weight—we conclude that the plaintiffs have created a genuine dispute of material

fact regarding whether Kane posed an imminent threat that justified Peters’s decision to shoot.

B. Michigan Governmental Immunity

Peters next argues that the district court erred in denying Michigan governmental immunity

on the plaintiffs’ state-law claims of gross negligence and conversion. Michigan governmental

immunity functions differently for intentional torts and torts that require only negligence, Odom

v. Wayne Cty., 482 Mich. 459, 470 (2008), so we begin with the intentional tort of conversion and

then proceed to the gross negligence claim.

1. Conversion

Richards and Harris alleged that Peters committed the intentional tort of conversion under

Michigan law, because killing Kane was “a distinct act of dominion wrongfully exerted over

Plaintiff’s dog in denial of or inconsistent with Plaintiffs’ rights,” and Peters’s conduct proximately

caused the injuries and damages that resulted. (Compl., R. 1, PageID 10.) See Foremost Ins. Co.

v. Allstate Ins. Co., 439 Mich. 378, 391 (1992) (defining conversion).

Michigan governmental employees are immune from intentional tort liability when they

can establish that “(1) the employee’s challenged acts were undertaken during the course of

employment and that the employee was acting, or reasonably believed he was acting, within the

scope of his authority, (2) the acts were undertaken in good faith, and (3) the acts were

discretionary, rather than ministerial, in nature.” Odom, 482 Mich. at 461. The parties dispute

only the second element: whether a jury could reasonably find Peters did not act in good faith.

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Case No. 18-2024, Richards v. City of Jackson

The good-faith requirement “imposes a subjective test for governmental immunity for

intentional torts, based on the officials’ state of mind, in contrast to the objective test for federal

qualified immunity.” Brown v. Lewis, 779 F.3d 401, 420 (6th Cir. 2015); Odom, 482 Mich. at

481–82. Peters argues that he acted under the good-faith belief that shooting Kane was necessary

to defend himself from imminent harm. But plaintiffs contend Peters’s actions were not taken in

good faith, arguing that the record evidence supports a finding that Peters “took no efforts to bring

to a halt his chain of unlawful conduct that ultimately led to the unjustified destruction of Kane

and resultant wrongful conversion of [plaintiffs]’ personal property,” because Peters “knew or

should have known that he was not permitted to enter into [plaintiffs]’ home, he knew that he was

unlawfully on their premises once inside, and, instead of retreating or giving Plaintiff-Appellee

Eddie the opportunity to grab Kane, [Peters] maliciously executed the pet within 6 seconds.”

(Appellee Br. 40.) We believe that the record supports a jury finding in favor of either party on

this issue. Because a genuine dispute of material fact remains, we affirm.

2. Gross Negligence

Richards and Harris also alleged that, as a police officer, Peters “had a duty to perform

[his] employment activities so as not to endanger or cause harm to Plaintiffs,” and he “breached

his duties with deliberate indifference and gross negligence and without regard to Plaintiffs’ rights

and welfare, which caused serious injuries and damages to Plaintiffs.” (Compl., R. 1, PageID 12.)

Peters contends that his intentional acts of entering the foyer and shooting the dog correspond to

the intentional torts of trespass and conversion, and “[g]ross negligence ‘is not an independent

cause of action’ when the underlying claim is an intentional [tort] by an officer.” Presnall v. Huey,

657 F. App’x 508, 513 (6th Cir. 2016) (quoting Bletz, 641 F.3d at 756).

Peters is correct that “Michigan ‘has rejected attempts to transform claims involving

elements of intentional torts into claims of gross negligence.’” Miller v. Sanilac Cty., 606 F.3d

240, 254 (6th Cir. 2010) (quoting VanVorous v. Burmeister, 262 Mich. App. 467, 483 (2004),

overruled on other grounds by Odom, 482 Mich. 459). But “plaintiffs are barred from bringing

gross-negligence claims only if those claims are ‘fully premised’ on alleged intentional torts.”

Brent v. Wayne Cty. Dep’t of Human Servs., 901 F.3d 656, 700–01 (6th Cir. 2018), cert. denied,

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Case No. 18-2024, Richards v. City of Jackson

139 S. Ct. 1551 (2019) (quoting VanVorous, 262 Mich. App. at 483). This court has sustained

gross-negligence claims premised on allegations that officers were “grossly negligent in failing to

follow certain procedures and statutory obligations” or where the plaintiff can otherwise “show

that the defendant owed him a duty of care.” Id. at 701 (citing Cummins v. Robinson Twp., 283

Mich. App. 677, 692 (2009)).

In Bell v. Porter, 739 F. Supp. 2d 1005 (W.D. Mich. 2010), the district court upheld a

plaintiff’s gross negligence claim based on an officer’s breach of similar duties: “to avoid

foreseeable injury to plaintiff while investigating or pursuing legitimate police activity” and “to

avoid conduct or failure to act that is so reckless that it demonstrates a substantial lack of concern

for whether injury will result.” Id. at 1015. Like in Bell, the plaintiffs’ allegation of gross

negligence here is “based on the same incident” as the intentional torts Peters describes, but the

plaintiffs have “adequately alleged an alternative basis for the claim.” Id. Thus, the allegation in

the complaint that Peters breached his “duty to perform [his] employment activities so as not to

endanger or cause harm to Plaintiffs” is sufficiently distinct from the separately-pleaded

intentional torts. (Compl., R. 1, PageID 12.)

Finally, Peters argues that his conduct was not the proximate cause of the plaintiffs’ injury,

because he claims that Kane’s aggressive behavior and Harris’s inability to gain control also

contributed to Kane’s death. This argument is uncompelling. The Michigan Supreme Court has

held that a government official can only be deprived of immunity for gross negligence claims if

his actions were “the one most immediate, efficient, and direct cause of the injury or damage.”

Robinson v. City of Detroit, 462 Mich. 439, 462 (2000). Here, the “one most immediate, efficient,

and direct cause of the injury or damage” to Kane (and, consequently, to the plaintiffs) was

undoubtedly Peters’s decision to fire his weapon and kill the plaintiffs’ dog. Id. Thus, we affirm

the denial of Peters’s motion for summary judgment.

III. CONCLUSION

For the foregoing reasons, we affirm.

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