In April of 2013, police in Battle Creek, Michigan, executed a search warrant at the home where Cheryl and Mark Brown lived. They detained Mark, who was not a suspect, outside the home and broke into the house through the front door. Police were then aware that Vincent Jones, the resident suspected of dealing cocaine and heroin from the residence, had left the home and been detained by other police. In initially looking through the front door, the police noticed two pit bull terriers on the couch. By the end of the search that the police conducted, they had shot and killed both family dogs.
Mark and Cheryl Brown subsequently sued the police, the city, and the police department under federal civil rights law, claiming that killing their dogs violated the Fourth Amendment prohibition against unreasonable seizures, that the forcible entry and consequent damage to the front door also violated the Fourth Amendment, and that the failure to adequately train officers in how to deal with dogs constituted a Fourth Amendment violation by the city. The district court dismissed all of the claims on the defendants’ motion for summary judgment, and the U.S. Court of Appeals for the Sixth Circuit affirmed in Brown v. Battle Creek Police Department last month.
Probable Cause
The police first acquired probable cause to search the residence where Mark and Cheryl Brown (as well as the suspect Vincent Jones) lived after going through the garbage of the residence and finding evidence of heroin and cocaine distribution. Coupled with information from a confidential informant saying that Vincent Jones was a gang member who was dealing drugs, police had enough evidence to support the issuance of a search warrant. For those wondering what authorized the police to go through the garbage without a warrant or probable cause, the answer is that the Supreme Court held in California v. Greenwood that police may examine a residence’s garbage without triggering the protections of the Fourth Amendment right against unreasonable searches and seizures. Examining garbage, in other words, is not considered a search within the meaning of the Fourth Amendment.
Executing the Warrant
When police arrived at the home to perform their search, Mark Brown was on his way out, headed to work after having come home during his lunch break to let his dogs out. Police detained Mark and put him in handcuffs, a move that is authorized for dealing with people at the premises of a house search under Michigan v. Summers and Muehler v. Mena. Mark told an officer that he had a key to the residence, but the police who broke into the house said they did not know about this communication at the time that they entered the house.
In the course of executing the search warrant, there were several moments when police believed that one or the other of the plaintiffs’ dogs was either acting in a threatening manner or preventing the search of parts of the premises. The dog behavior that the police cited as threatening included barking and “just standing there.” This behavior is arguably nonthreatening, and Mark claims that one of the dogs had “never barked a day in her life,” thus calling into question the credibility of some of the officers’ claims, a credibility issue that should have been resolved in favor of the nonmoving parties in a summary judgment motion (i.e., the plaintiffs).
More important than the particular behaviors of the dogs during the course of the search (on which reasonable minds might differ as to their threatening or nonthreatening nature) was a key choice that the officers made at the very beginning of the episode. They chose to detain a non-suspect resident of the house rather than to enlist his aid in subduing his dogs.
Though the officers who entered the home claim that they did not know that Mark had said he had keys for opening the front door, it is also the case that a resident on his way out of the house would obviously have keys to his own home. Yet the police did not bother to ask for keys but simply broke into the house. Had they instead asked for the non-suspect resident’s help, he could have opened his door and taken his two pit bulls outside to the back yard to enable police to perform their search without interference. (Even if police felt the need to break the door in the interests of time, as suggested by the Court of Appeals, they still could have brought Mark into the house with them to deal with the dogs in a nonlethal fashion). That police had this option but chose not to exercise it was unreasonable, just as it is unreasonable for police under ordinary circumstances to enter a house with a search warrant without first knocking and announcing their presence, under Wilson v. Arkansas. The reason for the knock and announce requirement is, among other things, to protect the front door from being damaged.
Police in the Brown case displayed the same unreasonableness as police who simply fail to knock and announce prior to entry. They disregarded the possibility of protecting their own and the dogs’ safety by allowing the dogs’ owner to subdue his pets prior to the entry. If the Fourth Amendment is concerned about the property right residents have in their front door such that it generally requires knock and announce, then surely the lives of a resident’s dogs are important enough under the Fourth Amendment to trigger a requirement that police take obvious and available steps to avoid a situation in which they feel the need to kill those dogs. Every dog owner I know values his or her dog more highly than his or her door.
Nothing described in the Sixth Circuit Brown opinion would distinguish the behavior of the Browns’ two dogs from that of a typical dog who finds himself or herself confronted by strangers in the form of police officers executing a search warrant unaccompanied by anyone known to the dog. If anything, the dogs here seemed to be trying at various points to run from and avoid the police. If killing the dogs here was reasonable, it would therefore follow that police may, consistent with the Fourth Amendment right against unreasonable seizures (which, under Tennessee v. Garner, includes killings), always kill a dog who lives in a home where they are performing a search. This seems like reason enough to reject the Sixth Circuit’s conclusion that the killings here were reasonable and lawful.
The ASPCA estimates that 70-80 million dogs are owned in the United States and that 37-47 percent of all households in the United States have a dog. People who have dogs typically develop strong bonds of affection with their animals and would be traumatized by police coming into their homes and killing their animal companions. Given the prevalence of dog ownership in the United States, moreover, it is simply untenable for police to claim—when encountering a dog who barks—that they must kill the dog. Police may require training on how to interact with dogs and how to read a dog’s signals (and know, for example, that barking is not typically a sign of imminent attack). That would help to protect the millions of animals who share our homes and are entitled to safety.
In the case before the Sixth Circuit, however, we need not even consider the importance of training in dog behavior. All we need is to observe that police could have asked the dogs’ owner if he could subdue the dogs prior to the search and that the police failed to do that. What occurred afterwards, including the officers’ potentially flawed perception of threats from the dogs (likely driven in part by prejudice against pit bulls) simply adds to the unreasonableness of the entire endeavor.
If it were up to me, I would accordingly reverse the summary judgment ruling of the district court in this case and would thus disagree with how the Sixth Circuit disposed of the Fourth Amendment issue with respect to the killing of the dogs. Notwithstanding Americans’ willingness to consume the products of animal torture and slaughter in the form of meat, dairy, and eggs, Americans do love their dogs and that love ought to have some weight in assessing the claimed authority of police to shoot dogs while executing a search warrant. As the Sixth Circuit opinion quoted a Ninth Circuit opinion in saying, “[t]he emotional attachment to a family’s dog is not comparable to a possessory interest in furniture.” That insight ought to have led to a different result in this case.