Brandee Buschmann v. Kansas City Police Department

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-2815

___________________________

Brandee Buschmann; William Morrison,

lllllllllllllllllllllPlaintiffs - Appellants,

v.

Kansas City Board of Police Commissioners, through its members Cathy Dean,

Nathan Garrett, Don Wagner, Mark Tolbert, and Mayor Quinton Lucas; John

Beck, in his individual capacity,

lllllllllllllllllllllDefendants - Appellees.

____________

Appeal from United States District Court

for the Western District of Missouri - Kansas City

____________

Submitted: April 13, 2023

Filed: August 10, 2023

____________

Before COLLOTON, WOLLMAN, and GRUENDER, Circuit Judges.

____________

COLLOTON, Circuit Judge.

Two dog owners sued a police officer and the Kansas City Board of Police

Commissioners after the officer shot a dog during an encounter at a residence. The

dog owners alleged that the officer violated their rights under the Fourth and

Fourteenth Amendments by unreasonably “seizing” the dog. They also asserted that

the Board’s policies and customs caused the officer to commit the alleged violation.

The district court* granted summary judgment for the officer and the Board, and we

affirm.

I.

Officers John Beck and Jeffrey Lagud were dispatched to the residence of

Brandee Buschmann and William Morrison on July 30, 2016. A neighbor had called

police to report noises that led him to believe that a domestic disturbance was

occurring at the Buschmann-Morrison home. At the scene, the neighbor told officers

that he heard yelling, fighting, and breaking glass at the house next door.

To approach the suspect house, the officers walked through a dark, wooded

area. The neighbor had informed the officers that there was a dog on the property,

but expressed his opinion that the dog was not likely to attack.

Given the nature of the call and the description of the property, the officers

were concerned that they could be in danger. As they approached the house, Beck

drew his firearm, and Lagud took out his taser.

Lagud knocked on the door. Beck was behind Lagud, approximately five feet

from the door. As soon as Lagud knocked, Beck heard a dog’s paws approaching the

door, along with barking and growling noises. Moments later, the door opened, and

a dog ran directly toward Beck.

*

The Honorable Beth Phillips, Chief Judge, United States District Court for the

Western District of Missouri.

-2-

Beck fired a shot at the dog, and the dog turned left in the direction of Lagud.

Beck fired a second shot that killed the dog. Buschmann was near the door at the

time, but the officers did not see her until later. On further investigation, the officers

determined that the noises reported by the neighbor had come from elsewhere, so they

departed the residence.

The dog owners sued and alleged that Beck committed an unreasonable seizure

by shooting their dog. They also claimed that the Board’s policies and customs

caused Beck’s allegedly unconstitutional conduct.

The district court granted summary judgment for the defendants. The court

ruled that Beck was entitled to qualified immunity, and dismissed the claim against

the Board on the ground that no individual officer was liable. We review the district

court’s grant of summary judgment de novo, viewing the record in the light most

favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

II.

The Fourth Amendment, as incorporated against the States, forbids

unreasonable seizures. “The ‘reasonableness’ of a particular use of force must be

judged 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 (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.” Id. at 396-97.

Qualified immunity shields a police officer from suit unless his conduct

violated a clearly established right of the plaintiff. See Harlow v. Fitzgerald, 457

-3-

U.S. 800, 818 (1982). A plaintiff bringing a claim under 42 U.S.C. § 1983 must show

that the officer violated a constitutional right, and that the right was clearly

established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232

(2009). A right is clearly established only if any reasonable officer would understand

that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640

(1987). Existing law must have placed the constitutionality of the officer’s conduct

beyond debate. Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam).

The dog owners contend that Beck’s actions violated their rights under the

Fourth Amendment. Shooting a dog is a seizure of a person’s effect, so the

constitutional standard is reasonableness. Andrews v. City of West Branch, 454 F.3d

914, 918 (8th Cir. 2006). Even if an officer’s actions are deemed unreasonable under

the Fourth Amendment, he is entitled to qualified immunity if a reasonable officer

could have believed, mistakenly, that the seizure was permissible—if he was

“reasonably unreasonable.” Anderson, 483 U.S. at 643.

At the time of the shooting, Andrews was this court’s most prominent case on

the reasonableness of a dog seizure. There, this court held that an officer’s alleged

conduct violated the Fourth Amendment when, in the course of searching for a loose

dog, he approached a backyard and shot a passive dog in an enclosed area without

warning. 454 F.3d at 918-19. The dog was not growling, acting fiercely, or harassing

anyone. Id. at 918. The court reasoned that an officer may not “destroy a pet when

it poses no immediate danger and the owner is looking on, obviously desirous of

retaining custody.” Id. (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 211 (3d

Cir. 2001)).

The situation in Andrews differs starkly from the circumstances confronted by

Beck. Beck and Lagud responded to a report of a domestic disturbance that

suggested violence. After Lagud knocked on the door, Beck heard sounds of a dog

barking, growling, and running toward the door. Moments later the door opened, and

-4-

a dog ran directly toward Beck. Given the behavior of the dog, and the failure of the

owner to control the animal at the doorway, a reasonable officer could have perceived

the dog as an imminent threat. Beck’s firing of a first shot was reasonable. See

Bailey v. Schmidt, 239 F. App’x 306, 308-09 (8th Cir. 2007) (ruling that officers did

not act unreasonably by killing dogs that either advanced on or acted aggressively

toward the officers).

The dog then turned left toward Lagud. Beck was presented with a split-

second decision whether to fire again in order to protect his colleague. A video

recording of the incident may suggest in hindsight that the dog was bound for the

doorway of the house rather than for Lagud’s body, but Beck did not have the luxury

of a slow-motion replay. In the brief moment that was available for Beck to react, it

was reasonable for him to conclude that the dog posed a threat to Officer Lagud. At

a minimum, it was a necessarily quick decision in a gray area where officers are

protected by qualified immunity.

The dog owners also cite LeMay v. Mays, 18 F.4th 283 (8th Cir. 2021), but that

decision is not persuasive support for their claims. LeMay came after the incident in

this case, so it could not have placed Officer Beck on notice of clearly established

law. Nor does LeMay suggest an unreasonable seizure here. That case involved an

officer who allegedly shot two dogs who presented themselves in a nonthreatening

manner, and this court ruled that the dog owner stated a claim at the pleading stage.

18 F.4th at 287-88. The circumstances in LeMay are readily distinguishable from

Beck’s doorway encounter with a growling dog who suddenly rushed at him and then

turned in the direction of his fellow officer.

The judgment of the district court is affirmed.

______________________________

-5-