Jeffrey Bletz v. Jeremy Corrie

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-1957

___________

JEFFREY W. BLETZ, personally, and as the guardian of

DJF, a minor; LINDSEY J. BLETZ

Appellants

v.

JEREMY W. CORRIE

_________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1:16-cv-00717)

District Judge: Honorable Yvette Kane

____________________________________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 31, 2020

Before: CHAGARES, RESTREPO, and BIBAS, Circuit

Judges

(Filed: September 9, 2020)

_____________

Devon M. Jacob

Jacob Litigation

P.O. Box 837

Mechanicsburg, PA 17055

Counsel for Appellants

Sean A. Kirkpatrick

J. Bart DeLone

Office of Attorney General of Pennsylvania

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellee

___________

OPINION OF THE COURT

RESTREPO, Circuit Judge.

This civil rights action stems from the shooting of a

family’s pet dog by a law enforcement officer as he served an

arrest warrant at their home. The District Court granted

summary judgment to Pennsylvania State Trooper Jeremy W.

Corrie on the Bletzes’ two claims, a 42 U.S.C. § 1983 claim

for unlawful seizure under the Fourth Amendment and an

intentional infliction of emotional distress claim under

Pennsylvania law. The Bletzes appeal the District Court’s

Fourth Amendment ruling. For the reasons set forth in this

opinion, we will affirm the District Court’s judgment.

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I

On May 1, 2014, Jeffrey W. Bletz was living in York

County, Pennsylvania with his daughter, Lindsey J. Bletz, and

young grandson, DJF. That morning, they were all at home

with their pet dog, Ace, a Rottweiler/Labrador Retriever mix

who was then seven years old. Jeffrey opened the back door

to let Ace outside. He was unaware that, at that moment,

Trooper Corrie and other officers from multiple law

enforcement agencies were swarming his property to serve an

arrest warrant on an armed robbery suspect believed to be

living there.

Trooper Corrie approached the house from the left side

(facing the front), along with Trooper Richard T. Drum. As

they approached, Trooper Corrie heard Trooper Drum yell

“whoa” several times from behind, his voice becoming

increasingly “more excited,” prompting Trooper Corrie “to

turn around.” App. 506. As he turned, he saw a large dog

coming toward him, “already mid-leap, within an arm’s reach,”

at about chest height. App. 506. Ace “was showing [his] teeth,

and growling in an aggressive manner,” making a low-pitched

noise, like a combination of a “growl and a bark.” App. 506,

124.

Trooper Corrie says he “backpedaled to create

distance,” and Ace circled around him to his right,

“attempt[ing] to attack [him] from that direction.” App. 507.

Trooper Corrie “believe[s] there was another snarl,” and then

he fired a shot. App. 125–26. Ace “began to come after [him]

again from [his] right side,” then “abruptly changed directions,

. . . turned its body and charged [him] again.” App. 126. The

dog did not jump a second time before Trooper Corrie fired a

second shot—and then a third. The third shot struck Ace on

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his right side. The dog yelped, ran to Jeffrey, who was then

near the garage, laid down at his feet, and died within minutes.

A necropsy of Ace showed that the bullet entered through the

“right upper chest” and exited through the “left lower chest,”

which “indicat[es] that the bullet travelled from right to left

across the chest and slightly downward.” App. 446.

Trooper Drum, who was with Trooper Corrie during the

encounter, recounted the incident to the State Police on May

27, 2014. He explained that Ace had behaved aggressively

toward him before changing directions and running toward

Trooper Corrie. Trooper Drum recounted that Trooper Corrie

fired three shots when Ace was “right at the base of [Corrie’s]

feet” and “still in the aggressive manner.” App. 497. The

Bletzes did not witness the incident.

On April 29, 2016, the Bletzes initiated this action

against Trooper Corrie claiming unlawful seizure under the

Fourth Amendment and intentional infliction of emotional

distress under Pennsylvania law. After discovery, Trooper

Corrie moved for summary judgment on both counts, and on

March 26, 2019, the District Court granted his motion. The

Bletzes now timely appeal the District Court’s ruling on the

Fourth Amendment claim; they do not challenge its conclusion

on the state law claim.1

1

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1343, and we exercise

jurisdiction under 28 U.S.C. § 1291.

4

II

A

We exercise plenary review over a district court’s grant

of summary judgment, and we apply the same standard as the

district court. Adams v. Zimmer US, Inc., 943 F.3d 159, 163

n.4 (3d Cir. 2019). “Summary judgment is appropriate where,

construing all evidence in the light most favorable to the

nonmoving party, ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.’” Sec’y U.S. Dep’t of Labor v. Kwasny, 853 F.3d 87,

90 & n.5 (3d Cir. 2017) (quoting Fed. R. Civ. P. 56(a) and

citing Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d

Cir. 2015)). A genuine issue of material fact is one that could

lead a reasonable jury to find in favor of the nonmoving party.

Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638,

643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). The moving party bears the burden of

demonstrating that there is no genuine issue of material fact

and that judgment as a matter of law is appropriate. Id. The

court must review the record as a whole, draw all reasonable

inferences in favor of the nonmoving party, and must not

“weigh the evidence or make credibility determinations.”

Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting

Armour v. Cty. of Beaver, Pa., 271 F.3d 417, 420 (3d Cir.

2001)).

B

We must determine whether the District Court properly

granted summary judgment in favor of Trooper Corrie on the

Bletzes’ Fourth Amendment claim. Based on the analysis that

follows, we will affirm the District Court’s ruling.

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1

The Fourth Amendment to the United States

Constitution, applicable to the states by way of the Fourteenth

Amendment, guarantees “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” In Brown v. Muhlenberg

Twp., 269 F.3d 205, 210 (3d Cir. 2001), this Court held that

people have a possessory interest in their pets, and “the killing

of a person’s dog by a law enforcement officer constitutes a

seizure under the Fourth Amendment.” Thus, to be

constitutionally permissible, an officer’s conduct in fatally

shooting a pet “must have been reasonable.” Id. (internal

quotations omitted).

To assess the reasonableness of a seizure, a court 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. (quoting United States v. Place, 462 U.S. 696,

703 (1983)). A “disproportionately intrusive” seizure would

be unreasonable. Id. As always, in Fourth Amendment cases,

a court must be mindful to judge reasonableness “from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham v. Connor, 490

U.S. 386, 396–97 (1989) (“The calculus of reasonableness

must embody allowance for the fact that police officers are

often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular

situation.”).

Our precedent in Brown serves as an example of when

a Fourth Amendment claim regarding the shooting of a pet

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should proceed to trial. In that case, a pet Rottweiler wearing

a bright pink collar with tags had wandered outside the yard

and into an adjacent parking lot. 269 F.3d at 208–09. An

officer saw the dog, and as he approached her, the dog “barked

several times and then withdrew.” Id. at 209. The officer

walked toward her and stood about ten to twelve feet from her,

at which time the dog stayed still, not barking or growling. Id.

A bystander stated that the dog “did not display any aggressive

behavior” toward the officer. Id. The dog’s owner looked out

her window and saw the officer and her dog facing each other

in the parking lot—then she saw the officer reach for his gun.

Id. She screamed, “That’s my dog, don’t shoot!” Id. The

officer hesitated for a few seconds, pointed his gun at the dog,

and shot the dog five times. Id. The officer had “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.” Id.

Weighing this conduct against the state’s “interest in

restraining [a dog] so that it will pose no danger to the person

or property of others,” we concluded that there was a triable

issue as to whether the officer’s shooting of the dog constituted

an unlawful seizure. Id. at 210–11.

We noted, however, that “the state’s interest in

protecting life and property may be implicated when there is

reason to believe the pet poses an imminent danger.” Id. at

210. In such a case, “the state’s interest may even justify the

extreme intrusion occasioned by the destruction of the pet in

the owner’s presence.” Id. at 210–11. This hypothetical

proves prescient here.

While Brown serves as an example of when the

reasonableness of an officer’s conduct presents a triable issue,

we look to our sister circuits for examples of when an officer’s

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conduct has been deemed reasonable as a matter of law. The

Sixth Circuit has held that officers acted reasonably when they

fatally shot two pit bulls that “either lunged or were barking

aggressively” at them, while the dogs were “unleashed and

loose in a small residence.” Brown v. Battle Creek Police

Dep’t, 844 F.3d 556, 570–72 (6th Cir. 2016). At the time, the

officers were searching the home of a suspect who had a

criminal history and gang affiliations. Id. at 568. In another

case where an officer was executing a search warrant inside a

home, the D.C. Circuit held that an officer acted reasonably in

shooting a dog that had bit a fellow officer’s leather boot hard

enough to puncture it only seconds earlier. Robinson v. Pezzat,

818 F.3d 1, 5, 12 (D.C. Cir. 2016). And in a case where

officers responded to separate incidents of dogs roaming in

public places, the Fourth Circuit held that officers acted

reasonably in using lethal force to protect the public when the

dogs had either attacked someone that day or were known to

be aggressive. Altman v. City of High Point, N.C., 330 F.3d

194, 197–99, 204–05 (4th Cir. 2003) (noting that “[w]hen a

dog leaves the control of his owner and runs at large in a public

space, the government interest in controlling the animal . . .

waxes dramatically, while the private interest correspondingly

wanes”).

In line with our precedent in Brown and the persuasive

rulings of our sister circuits, we hold that the use of deadly

force against a household pet is reasonable if the pet poses an

imminent threat to the law enforcement officer’s safety,

viewed from the perspective of an objectively reasonable

officer. See, e.g., Brown, 269 F.3d at 210–11 (stating that “the

state’s interest in protecting life and property . . . may even

justify the extreme intrusion occasioned by the destruction of

the pet in the owner’s presence”); Battle Creek, 844 F.3d at 568

8

(“[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.”).

2

Here, the state had an important interest in protecting

the safety of its officers while they undertook a coordinated

effort to serve an arrest warrant on an armed robbery suspect.

To be sure, it was an “extreme intrusion” for Trooper Corrie to

fatally shoot the Bletzes’ pet dog. Brown, 269 F.3d at 211; see

also Altman, 330 F.3d at 205 (stressing the “appreciable”

private interests involved, as “[d]ogs have aptly been labeled

‘Man’s Best Friend,’ and certainly the bond between a dog

owner and his pet can be strong and enduring”). We must

balance these considerations to determine whether Trooper

Corrie’s actions were objectively reasonable under the

circumstances. See Place, 462 U.S. at 703. This requires us to

assess whether Ace posed an imminent threat to Trooper

Corrie’s safety.

Trooper Corrie bears the burden of demonstrating that

there is no genuine issue of material fact that could cause a

reasonable jury to find that he unlawfully seized the Bletzes’

dog. See Willis, 808 F.3d at 643. Both people who witnessed

the incident, Trooper Corrie and Trooper Drum, testified that

Ace aggressively charged at Trooper Corrie, growling and

showing his teeth, as though about to attack—and that he did

not relent until subdued by the third bullet. Trooper Corrie

reasonably interpreted Ace’s behavior as a threat of imminent

attack. Considering that he had to make a split-second decision

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while participating in a coordinated effort to arrest an armed-

robbery suspect, he acted reasonably in shooting Ace.

The Bletzes argue that material facts are disputed

because Trooper Corrie’s testimony that he shot Ace on his

right side conflicts with his testimony that he shot because the

dog charged at him. In support of this argument, the Bletzes

cite the testimony of their expert, James W. Crosby, who

opined that because the dog was “positioned laterally to

Corrie,” it “was not engaged with Corrie in any way when

Corrie’s third round was fired.” App. 458.

Even though Ace happened to be moving laterally

relative to Trooper Corrie when he was struck, this does not

rule out the dog’s continued aggression, and plaintiffs do not

cite any admissible evidence tending to show that Ace

displayed no signs of aggression signaling an imminent attack.

The Bletzes were not present to witness the incident. Rule

56(c)(1)(A) requires that parties “asserting that a fact . . . is

genuinely disputed” support that claim “by citing to particular

parts of materials in the record.” Here, the evidence cited does

not suggest Ace refrained from acting aggressively at every

stage of the altercation.

Further, Ace approached the officers in the context of a

coordinated effort to serve an arrest warrant on an armed

robbery suspect. Considering all of this, Trooper Corrie acted

reasonably in shooting Ace, whose behaviors presented an

imminent threat to his physical safety.

The Bletzes further argue that Trooper Corrie acted

unreasonably because he was not provided and did not pursue

training regarding the “safe handling of dogs” and neglected to

attempt nonlethal means of subduing Ace. Appellants’ Br. 10.

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However, the touchstone of a Fourth Amendment analysis is

whether the officer acted reasonably under the circumstances.

See Brown, 269 F.3d at 210 (citing Place, 462 U.S. at 703). It

is not whether the officer received or could have pursued a

certain level of training. We offer no opinion on Trooper

Corrie’s training or potential alternatives to lethal force—and

this opinion should not be read as endorsing his reaction or

stating that he implemented “the best possible response[].”

Altman, 330 F.3d at 207. “We are only saying that, under the

circumstances existing at the time the officer[] took the actions

and in light of the facts known by the officer[], [his] actions

were objectively reasonable.” Id.; see also Graham, 490 U.S.

at 396 (stating that we must not view the situation with “the

20/20 vision of hindsight”).

In conclusion, Trooper Corrie, while participating in a

coordinated effort to serve an arrest warrant on an armed

robbery suspect, reasonably used lethal force against a dog

who, unrebutted testimony shows, aggressively charged at

him, growled, and showed his teeth, as though about to attack.2

We will thus affirm the District Court’s order granting

summary judgment.

2

Given our conclusion that the shooting of Ace did not

violate the Fourth Amendment, we will not address whether

the law was “clearly established” for purposes of qualified

immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If

no constitutional right would have been violated were the

allegations established, there is no necessity for further

inquiries concerning qualified immunity.”).

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