Sixth Circuit Says All Animals Are Equal, But Cop Animals Are More Equal Than Others

Legal Issues

from the this-is-what-happens-when-you-call-a-dog-an-officer dept

Cops kill pets. This is an inarguable fact. None other than the US Department of Justice has declared the (unofficial) War on Dogs to be a law enforcement epidemic. If a cop encounters a family dog while doing cop stuff, chances are the dog is going to die.

Sure, some people may claim cops encounter dogs all the time without killing them, but cops are the only ones killing (see above link) “25 to 30” pet dogs every day. Killing pets is something people normally attribute to budding mass murderers, but cops walk around every day doing this and most people still think they’re not psychopaths.

More than half the federal circuits have held that killing someone’s pet is a violation of the Fourth Amendment. But those holdings are pock-marked with loopholes. And this recent Sixth Circuit Appeals Court decision [PDF] makes it clear that when it comes down to a tussle between a cop’s dog and a regular person’s dog, the regular dog’s death will be a justified killing.

In this case, cops already had their man. The fleeing suspect had been apprehended. But the Detroit police officers believed the suspect had ditched a gun. An officer brought a K-9 “officer” out to sniff for the (alleged) weapon. This required the officer to take the dog across several people’s yards. This is what happened next.

Bodycam and security camera footage captured the events that followed. Officer Shirlene Cherry arrived at the scene with her trained canine, Roky. The White family had two dogs outside, Chino, a pit bull, and Twix, a Yorkie Terrier. Officer Cherry asked White’s daughter, Mi-Chol, to secure the dogs during the search for the weapon. Mi-Chol grabbed Chino to put him inside their home, but he escaped and ran to the front yard. Mi-Chol went inside to grab a leash. With Chino still roaming the fenced-in yard, Officer Cherry decided to take Roky to a neighboring yard to search there first. They walked along the perimeter of the wrought-iron fence toward the next yard while Chino followed them from the other side of the fence.

Then the unexpected happened. As Officer Cherry and Roky reached the corner of the yard, Chino lurched through the fence’s vertical spires and bit down on Roky’s snout. Roky yelped. Cherry turned and saw Roky trapped up against the fence with his nose in Chino’s mouth. Cherry tugged at Roky’s leash and yelled at Chino to “let go.” Nothing changed. Chino began “thrashing,” “swaying back and forth in an effort to tear” what he was holding. Unable to free Roky and afraid for the dog’s life, Cherry unholstered her gun and shot Chino once.

What is a reasonable amount of time to de-escalate a dog-on-dog altercation? That question can’t be answered. All we have is this data point, which suggests anything under six seconds is more than enough time to justify the use of deadly force to end it.

Six seconds passed between Chino’s attack and Cherry’s shot. After the shot, Chino released the now-bloodied Roky. Chino died from the shot.

Killing another animal to save a police animal is just good police work, says the Sixth Circuit. Never mind that they’re both animals. One has been elevated: it is a “police” animal, which makes it the equivalent of a fellow officer. This isn’t an underhanded exaggeration. In many places, assaulting a police dog is treated no differently than assaulting a police human. The criminal penalties are nearly identical.

When it’s dog-on-dog, only one dog is truly protected by law. And the court isn’t going to second-guess cops who see their pet being attacked by a citizen’s pet.

What of the alternatives? What of other reasonable options short of Officer Cherry’s lethal use of force? Commands for Chino to “let go” did not do the trick. Several forceful pulls on the leash still left Roky at Chino’s unmistakable beck and unrelenting call. Only the ignorant peace of a judge’s chamber would prompt the passing thought that the officer should use her hands to remove the one dog from the other. That of course would replace one hazard with another, and in the process insert the officer, never a judge, into harm’s path. Officer Cherry, it is true, had a taser, and perhaps a taser might have spared Roky and Chino. But Officer Cherry believed that the taser would serve only as a “muscle stimulant” and further “lock [Chino’s] jaw,” leaving Roky in continuing peril. Maybe; maybe not. But there were enough maybes in this unnerving situation to permit Officer Cherry to respond to these “tense, uncertain, and rapidly evolving” circumstances, Graham, 490 U.S. at 397, with decisive action that increased the likelihood of saving Roky: shooting the source of the peril. Shooting an attacking dog to save a behaving police dog is not unreasonable.

In this situation, it’s only perhaps less unreasonable than other situations. In this case, the officer patrolled another yard while waiting for the pet owner to secure their dog. That was a smart move and it should not weigh against the officer.

The problem is the standard. It will always allow police dogs to be more valuable than family pets. No cop takes a dog out for a stroll. Every time a police dog is on a scene, it will be a “rapidly evolving” situation. Whether it’s an evolving threat (like the one here) or a latent threat (literally any pet located anywhere a cop and their dog happen to be), the cops will win and the people paying their salary will lose. A perceived threat to a human officer is enough to justify deadly force. A subjective threat to a cop’s dog will also justify acts of violence.

Granted, this is not an ideal case. One dog attacked another. But the standard set by the court makes it clear certain animals are more important than others. And that makes this coda ring a bit hollow.

The problem in this case is not the law’s lack of appreciation for the Whites’ love of their dog. It is that the lives of two dogs were at risk. Officer Cherry permissibly considered that reality in killing one and saving the other.

There was no perfect solution to the situation facing the officer and her K-9. But this ruling is precedent — a published opinion. And it says — once everything else is stripped away — that police can kill pets when they feel they need to without having to worry too much about being successfully sued. And if the police dog had been the aggressor and the other dog had merely responded to an attack, I doubt the judicial outcome would have changed.

Filed Under: 6th circuit, detroit, detroit pd, dogs, police, shirlene cherry