Submitted: April 6, 2017
from United States District Court for the Western District of
Missouri - St. Joseph
WOLLMAN and LOKEN, Circuit Judges, and NELSON, District
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 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).
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.
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.
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."
§ 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. 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
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).
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