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Hansen v. Black

United States Court of Appeals, Eighth Circuit

September 18, 2017

Morgan Hansen Plaintiff - Appellee
Thomas Black Defendant-Appellant

          Submitted: April 6, 2017

         Appeal from United States District Court for the Western District of Missouri - St. Joseph

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


         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 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).


         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.

         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]


         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. 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 ...

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