Police Officer Not Immune From Suit for Damages in Dog-Kill Case

July 27, 2006 | Roger McEowen

 

Many agricultural landowners have had to deal with stray dogs that harm livestock, and Iowa law provides the proper manner for shooting such dogs. But, what about dealing with stray dogs in town? State law and local town ordinances specify the procedure for private persons and peace officers to follow in dealing with strays. Failure to follow those procedures can lead to legal problems. 

In this case, the plaintiffs notified their town administrator that a dog was running loose and had been bothering their dog. The administrator notified the local police, who dispatched an officer to find the stray dog. The officer cruised the town and spotted the dog on several occasions, but always lost sight of the dog. The officer then pulled into the plaintiffs driveway, got out of his vehicle with a leash in his pocket and his gun on his hip. When he spotted a dog matching the description of the stray in the enclosed backyard of the plaintiff’s home he shot the dog three times, killing it. Unfortunately, the dog belonged to the plaintiffs. The plaintiffs sued on the basis that the officer violated state law and their constitutional right to be free from an unlawful seizure of property. The trial court ruled for the officer.

Iowa law gives private citizens and peace officers the right to kill a dog that is not wearing a collar with a rabies vaccination tag when one is required, unless the local jurisdiction requires seizure and impoundment of stray dogs. The town ordinance did require seizure and impoundment, and directed law enforcement officials to utilize all available means to control dogs running loose, with shooting utilized as a last resort. The officer claimed that he was justified in shooting the plaintiffs’ dog because it was not collared, but the appellate court disagreed. The court noted that the town ordinance provided for impoundment and seizure and that the officer shot first, instead of exhausting other options at his disposal - he didn’t attempt to talk with the plaintiffs, didn’t call for backup, didn’t use a tranquilizer gun, and failed to note that the dog was enclosed in a fenced-in yard. Thus, the court ruled that a reasonable jury could find that the officer violated Iowa law - that it was premature to shoot the dog. 

On the constitutional issue, the appellate court determined that the officer conducted an unreasonable warrantless seizure of the plaintiffs’ property. That was particularly the case, the court noted, where the dog posed no danger to anyone and the officer had non-lethal means available to address the problem. As such, the court ruled that a jury could find that the officer did not act reasonably when he killed the plaintiffs’ dog. 

The officer also claimed that he was immune from suit as a public official. The court disagreed, noting that qualified immunity only applied if the officer could have believed that his conduct was lawful. The court noted that if the jury were to find a violation of state law and the constitutional proscription against unreasonable warrantless seizures of property, that the officer could not have believed his conduct was lawful. Thus, the officer did not have qualified immunity. The case goes back to the federal district court for a jury trial on the merits. Andrews v. City of West Branch, No. 05-1188 (8th Cir. Jul. 27, 2006).