Federal (U.S.)
Bakay v. Yarnes
431 F.Supp.2d 1103
US District Court, W.D. Washington, at Tacoma, 2006
FACTS: After receiving complaints about the living conditions of more than 70 cats in the Bakay’s care, authorities obtained a search warrant and seized approximately 68 cats. Mr. Bakay asked authorities if they intended to euthanize the cats and was assured that no harm would come to them as along as Bakay complied with the notice authorities gave him, which indicated that he had 15 days to petition in court for the cats’ return. However, after being examined by a veterinarian, 42 of the cats were ordered to be euthanized. Later, authorities served a search warrant on the Bakays’ veterinarian and seized 2 additional cats belonging to the Bakays, one of which was later euthanized. The remaining 27 cats were returned to the Bakays. As a result of the seizure and destruction of the cats, the Bakays alleged violations of the 4th, 5th, and 14th amendments, simple and gross negligence, respondeat superior, conversion and trespass to chattels, breach of bailment contract, outrage, statutory waste, breach of fiduciary duty, and tortuous interference with business expectancy.
ISSUES: Whether Veterinarian Schramm and Clallam County Humane Society were negligent in destroying the cats in question; whether the Bakays’ civil rights, including procedural due process, substantive due process, 4th, 5th, 14th amendment, and state constitutional rights have been violated; whether the Bakays have a legally cognizable claim for trespass to chattels or conversion; whether a bailment contract was formed and breached; whether the Bakays have a legally cognizable claim for the tort of outrage, statutory waste, or tortuous interference with a business expectancy.
HOLDINGS:
1) Euthanasia is allowed at any time for animals seized by the government if they are deemed to be severely injured, diseased, or suffering.
2) The Washington statute under which the animals were seized states that law enforcement officers and licensed veterinarians shall be immune from civil and criminal liability for actions taken under RCW 16.52.210 if reasonable prudence is exercised in carrying out the provisions.
3) There is no credible evidence that defendants were negligent in their examinations, and no credible evidence that the cats in question were not severely injured, diseased, or suffering.
4) The Bakays’ due process rights were not violated; to hold that notice and a hearing are required before an animal that is severely suffering can be euthanized is to rewrite the law.
5) The rest of the Bakays’ claims alleging violations of their rights under the federal and state constitutions are ambiguous and lack merit.
6) No cause of action for trespass to chattels or conversion exists if a defendant has legal authority to seize or take dominion over a plaintiff’s property. No credible evidence exists to suggest that defendants acted negligently in carrying out their duties, or exceeded their authority in this case. Therefore, the Bakays have no legally cognizable action for trespass to chattels or conversion.
7) Any notice given by the officers that the Bakays could petition the court for the return of the cats within 15 days does not constitute a promise that the cats would be returned, just notice that they could seek a potential remedy through the court system.
8) The same statute that gave the Bakays the right to petition the court within 15 days also give the state the right to euthanize animals that are suffering at any time. Consequently, a bailment contract was not created when the cats were seized, and not violated when the cats were euthanized.
9) The Bakays claim of outrage must fail because they have failed to show that the actions taken by defendants were outrageous in any way, that they have suffered severe emotional distress as a result, or that they were present when the cats were euthanized.
10) There is no evidence whatsoever to support the Bakays’ statutory waste claim.
11) The Bakays’ claim of breach of fiduciary duty must fail because no Washington court has recognized the existence of a constructive trust imposed on law enforcement officers after lawfully seizing evidence pursuant to a warrant.
12) No credible evidence exists in the record to suggest that defendants interfered with the Bakays’ business for an improper purpose or used improper means.
Federal (U.S.)
Brown v. Muhlenberg Township
269 F.3d 205
U.S. Court of Appeals, Third Circuit, 2001
FACTS: The Browns’ three year old Rottweiler, Immi, had been place in the Browns’ fenced yard. Although the Browns had not secured a dog license for her, Immi wore a bright pink, one inch wide collar with many tags: a rabies, microchip, guardian angel, and identification tag along with the Browns’ address and telephone number, and the Browns’ prior Rottweiler’s lifetime license. Unbeknownst to the Browns, the latch on the back gate of their fence had failed, and Immi had wandered into the adjacent parking lot beyond the fence. Eventually Officer Eberly came upon Immi. After calling to her, he walked to a position 10 to 12 feet from her. According to a stranger observing from his car, Immi was stationary, not growling or barking and did not display any aggressive behavior towards the officer and never tried to attack him. At this point, Mrs. Brown looked out of an open screened window of her house and saw what was occurring. She shouted out “That’s my dog, don’t shoot!” Officer Eberly hesitated a few seconds and then pointed his gun at Immi. Mrs. Brown tried to break through the window’s screen and screamed, “No!” The officer then fired 5 shots at Immi, killing her. The Browns brought this action against Officer Eberly, the township, and chiefs of police, alleging violations of their 4th and 14th Amendment rights and alleging intentional infliction of emotional distress. The district court granted the defendants summary judgment motion and the Browns appealed.
ISSUES: Whether the Browns right to be free from unreasonable governmental seizures of their property was violated; whether Officer Eberly is entitled to qualified immunity; whether the destruction of Immi deprived the Browns of their property when they were entitled to due process; whether the Browns have satisfied their burden of establishing facts sufficient to support their claim of municipal liability; whether the Browns have established the existence of an unconstitutional governmental custom; whether the Browns have established a failure to train claim; whether Police Chiefs Flanagan and Smith are responsible for Officer Eberly’s constitutional torts; whether the Browns are entitled to recover for intentional infliction of emotional distress.
HOLDINGS:
1) This court joins two of its sister courts or appeals in holding that the killing of a person’s dog by a law enforcement officer constitutes a seizure under the 4th Amendment.
2) When the state claims a right to make a warrantless seizure, the court must balance the nature and quality of the intrusion on the individual’s 4th Amendment interests against the importance of the governmental interests alleged to justify the intrusion.
3) If the facts asserted by the Browns are found to be true, we conclude that a reasonable officer in Officer Eberly’s position could not have applied these well established principles to the situation before him and have concluded that he could lawfully destroy a pet who posed no imminent danger and whose owners were known, available, and desirous of assuming custody.
4) Officer Eberly has not established that he is entitled to qualified immunity.
5) It follows that Officer Eberly’s destruction of Immi deprived the Browns of their property and that they were entitled to due process.
6) Contrary to the Browns’ suggestion, this court concludes that no predeprivation process was constitutionally required here; summary judgment was properly entered against the Browns on their procedural due process claim.
7) The Browns have not satisfied their burden of establishing facts sufficient to support their claim of municipal liability because they have tendered no evidence of any official policy endorsing Officer Eberly’s conduct.
8) The Browns have not established the existence of an unconstitutional governmental custom.
9) The Browns have not established evidence to support their failure to train claim.
10) The elements to establish a supervisory liability claim have not been established.
11) The court in Banasczek held that Pennsylvania recognizes the tort of intentional infliction of emotional distress and rejected the contention that the killing of a pet under any circumstances would not be recognized by the Pennsylvania courts as extreme or outrageous.
12) This court predicts that the Pennsylvania courts would permit a trier of fact to return a verdict for the plaintiff in an intentional infliction of emotional distress case where it can be shown that a police officer’s attention was called to the severe emotional distress of the pet’s owner, he hesitated before shooting, and he then attempted to fir five bullets into the pet within the owner’s view and without justification.
13) Officer Eberly is not entitled to sovereign immunity under state law with respect to the intentional infliction of emotional distress claim because the record will support a conclusion that he acted intentionally.
North Dakota
Kautzman v. McDonald
621 N.W.2d 871
Supreme Court of North Dakota, 2001
FACTS: The Kautzmans owned four German Shepherds and one Golden Retriever cross-breed which they kept as family pets in Cass County. In February of 1999, the dogs escaped through a fence from the Kautzmans’ yard. Police received several phone calls about the dogs from concerned area residents. The dogs were eventually shot to death by law enforcement officers as the dogs were beginning to roam into Fargo city limits. The Kautzmans sued the State, the County, 2 deputy sheriffs and 2 highway patrolmen for the destruction of their dogs. The trial court granted the defendants’ motion to dismiss concluding that dismissal was required because the Kautzmans failed to present a notice of claim to the director of the Office of Management and Budget within 180 days after the alleged injury was discovered or reasonably should have been discovered. The trial court also concluded that the statutes and ordinances relied upon by the Kautzmans did not impose an affirmative duty on the law enforcement officers to not shoot the dogs. It dismissed the Kautzmans’ claim for intentional infliction of emotional distress, concluding that the deputies’ actions did not meet the threshold requirement of extreme and outrageous conduct.
ISSUES: Whether the trial court erred in dismissing the action against the highway patrolmen and the State for failure to timely file a notice of claim with the director of the Office of Management and Budget; whether the trial court erred in dismissing the Kautzmans’ claim for intentional infliction of emotional distress; whether the trial court erred in dismissing the negligence claim against the deputy sheriffs and Cass County.
HOLDINGS:
1) The allegations in the Kautzmans’ complaint are not indicative of an intention to sue the law enforcement officers in their individual capacities.
2) The trial court did not err in dismissing the action against the State and Highway Patrolmen for failure to file a timely notice of claim with the director of the Office of Management and Budget. The record reveals that the Kautzmans were aware of the defendants’ involvement within days, if not hours, of the shootings and had sufficient time to comply with the notice of claim requirement.
3) The elements of a tort action for the intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress. The trial court did not err in dismissing the Kautzmans’ claim for intentional infliction of emotional distress because the circumstances are simply insufficient to constitute extreme and outrageous conduct on the part of the law enforcement officers.
5) The owner of a domestic animal which is killed or injured by the negligent or willful act of a third person proximately resulting in that death or injury is entitled to recover for the loss suffered.
6) The trial court erred in granting summary judgment and dismissing the tort action against Cass County and the deputy sheriffs because reasonable persons could reach different conclusions about the reasonableness of, and the justification for, the deputies’ shooting of the dogs.
7) When determining whether the discretionary function exception applies, a 2-part inquiry is used: 1) whether the conduct at issue is discretionary, involving an element of judgment or choice for the acting employee; and 2) if the act is discretionary, whether that judgment or choice is of the kind the discretionary function exception was designed to shield.
8) The decision whether the Kautzmans’ dogs posed a danger to the deputies or to others, thereby justifying the destruction of the dogs, implicates no social, economic or political policy, and was merely an ordinary individualized judgment made by the deputies a part of their routine work duties. Discretionary function immunity does not shield individualized decisions such as these and does not apply in this case.
Texas
City of Garland v. White
368 S.W.2d 12
Court of Civil Appeals of Texas, 1963
FACTS: Officers responded to a call that White’s dog was running at large. Upon seeing the dog, Officer Flannigan fired 2 shots at him, even though the dog was not acting aggressively. The dog ran about 4½ blocks to the White’s home and jumped in a car parked in the driveway. Officer Flannigan then retrieved a shotgun and brought it to the White home. Flannigan stated at trial that his purpose in going to the White home with a shotgun was to kill the dog. He stated that when he arrived the dog was in a car, was not growling or barking or doing any harm or damage to anyone. Officers Mize and Brewer then got out of their squad cars and went onto the White property, advancing toward the dog. They did not attempt to inquire about the dog at the White home. The evidence shows that the dog got out of the car and ran into the White garage getting as far away from the officers as he could. The officers made no effort to pull down the overhead door on the garage or to catch the dog in any way. The evidence shows that the dog was standing in the garage on the step leading into the White house from the garage when Flannigan fired 2 shots and killed the dog with the shotgun. The evidence is undisputed at the time the shots were fired the dog was not making any motion to come toward either of the police officers or toward anyone else; that the dog had not barked or snarled at them from the time the officers got out of their cars until it was killed. The shotgun blast not only killed the dog, but damaged the White’s property as well. The Whites were awarded $75 for property damage, $300 for the market value of the dog, and $200 for physical pain and mental anguish. The officers appeal.
ISSUES: Whether the court erred in awarding the Whites damages for the police officers’ destruction of their dog.
HOLDINGS:
1) The general rule is that to justify the killing of a dog in defense of person or property the danger must be imminent and a real or apparent necessity must exist therefore unless there is statutory authority to kill the dog under the circumstances shown.
2) No statute or ordinance in the instant case permitted the killing of the dog under the circumstances shown.
3) The officers had no right to go upon the Whites’ property and to kill their dog or damage their house by the discharging of the shotgun as shown by the evidence.
4) A police officer, even though engaged in the performance of a public duty, is civilly liable when he acts in a wrongful and illegal manner and is guilty of a trespass.
5) The alleged negligence of the Whites as found by the jury was as a matter of law not a proximate cause of the death of the dog under the circumstances shown by the evidence.
6) The action of the officers in killing the dog was admittedly intentional. Contributory negligence is not a defense to an intentional act.
7) The officers’ contention that the evidence does not support an award for White’s mental pain and suffering is overruled.