269 F.3d 205 (3rd Cir. 2001), 00-1846, Brown v Muhlenberg Township

Docket Nº:00-1846
Citation:269 F.3d 205
Party Name:KIM BROWN; DAVID BROWN, H/W APPELLANTS v. MUHLENBERG TOWNSHIP; BOARD OF SUPERVISORS OF MUHLENBERG TOWNSHIP; MUHLENBERG TOWNSHIP POLICE DEPARTMENT; ROBERT M. FLANAGAN, INDIVIDUALLY AND/OR AS CHIEF OF POLICE OF MUHLENBERG TOWNSHIP; ROBERT D. EBERLY, INDIVIDUALLY AND/OR AS PATROLMAN OF MUHLENBERG TOWNSHIP; HARLEY SMITH, INDIVIDUALLY AND/OR AS CHIEF OF
Case Date:October 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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269 F.3d 205 (3rd Cir. 2001)

KIM BROWN; DAVID BROWN, H/W APPELLANTS

v.

MUHLENBERG TOWNSHIP; BOARD OF SUPERVISORS OF MUHLENBERG TOWNSHIP; MUHLENBERG TOWNSHIP POLICE DEPARTMENT; ROBERT M. FLANAGAN, INDIVIDUALLY AND/OR AS CHIEF OF POLICE OF MUHLENBERG TOWNSHIP; ROBERT D. EBERLY, INDIVIDUALLY AND/OR AS PATROLMAN OF MUHLENBERG TOWNSHIP; HARLEY SMITH, INDIVIDUALLY AND/OR AS CHIEF OF POLICE OF MUHLENBERG TOWNSHIP

No. 00-1846

United States Court of Appeals, Third Circuit

October 11, 2001

Argued May 15, 2001

On Appeal From the United States District Court For the Eastern District of Pennsylvania District Judge: Honorable John P. Fullam (D.C. Civil Action No. 99-CV-01076)

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Thomas A. Whelihan, Reger & Rizzo, 800 Kings Highway North - Suite 203 Cherry Hill, NJ 08034, and Deirdre A. Agnew (Argued), 1450 East Boot Road West Chester, PA 19380, Attorneys for Appellants

Enger McCartney-Smith (Argued), Pepper Hamilton Llp, 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103, Attorney for Amicus Curiae Animal Legal Defense Fund

Anthony R. Sherr (Argued), Mayers, Mennies & Sherr, 3031 Walton Road, Building A, Suite 330 P.O. Box 1547 Blue Bell, PA 19422, and L. Rostaing Tharaud (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, 1845 Walnut Street - 16th Floor Philadelphia, PA 19103, Attorneys for Appellees

Before: Scirica, Garth and Stapleton, Circuit Judges

OPINION OF THE COURT

Stapleton, Circuit Judge.

This is a civil rights action arising out of the shooting of a pet dog. The plaintiffs/appellants are Kim and David Brown, the owners of the pet. Police Officer Robert Eberly is alleged to be the primary constitutional tortfeasor. Officer Eberly's employer, Muhlenberg Township, its Board of Supervisors, and two of its Chiefs of Police are also alleged to be responsible for Officer Eberly's constitutional torts on various theories. Additionally, the Browns assert a state law claim. The District Court granted summary judgment to the defendants on all claims.

We first address the facts and law concerning whether a constitutional violation occurred. We then examine whether the defendants other than Officer Eberly share responsibility for any constitutional violations that may have occurred. Finally, we focus on the state law claim. Because this case comes to us on appeal from the District Court's grant of summary judgment to the defendants, we view the facts in the light most favorable to the Browns, drawing every reasonable inference in their favor. See Beers-Capitol v. Whetzel, 256 F.3d 120, 130 n.6 (3d Cir. 2001).

I. FACTS

The Browns lived in a residential section of Reading, Pennsylvania. On the morning of April 28, 1998, they were in the process of moving. Kim was upstairs packing, while David was loading the car. Immi, their three year old Rottweiler pet, had been placed 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: her rabies tag, her microchip tag, a guardian angel tag, an identification

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tag 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.

A stranger parked in the lot observed Immi as she wandered about in it. After three or four minutes of sniffing and casually walking near the fence, Immi approached the sidewalk along the street on which the Browns lived. As she reached the curb, Officer Eberly was passing in his patrol car. Seeing Immi, he pulled over, parked across the street, and approached her. He clapped his hands and called to her. Immi barked several times and then withdrew, circling around a vehicle in the parking lot that was approximately twenty feet from the curb. Having crossed the street and entered the parking lot, Officer Eberly walked to a position ten to twelve feet from Immi. Immi was stationary and not growling or barking. According to the stranger observing from his car, Immi "did not display any aggressive behavior towards [Officer Eberly] and never tried to attack him."

At this point, Kim Brown looked out of an open, screened window of her house. She saw Officer Eberly not more than fifty feet away. He and Immi were facing one another. Officer Eberly reached for his gun. Kim screamed as loudly as she could, "That's my dog, don't shoot!" Her husband heard her and came running from the back of the house. Officer Eberly hesitated a few seconds and then pointed his gun at Immi. Kim tried to break through the window's screen and screamed, "No!"

Officer Eberly then fired five shots at Immi. Immi fell to the ground immediately after the first shot, and Officer Eberly continued firing as she tried to crawl away. One bullet entered Immi's right mid-neck region; three or four bullets entered Immi's hind end.

Immi had lived with the Browns pre-school aged children for most of her three years and had not previously been violent or aggressive towards anyone.

Based on these facts and the reasonable inferences that can be drawn from them, we are thus faced with a situation in which a municipal law enforcement officer intentionally and repeatedly shot a pet without any provocation and with knowledge that it belonged to the family who lived in the adjacent house and was available to take custody.

II. OFFICER EBERLY

A. Unreasonable Seizure

The Browns claim that Officer Eberly violated their constitutionally secured right to be free from unreasonable governmental seizures of their property. The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The people's "effects" include their personal property. See United States v. Place, 462 U.S. 696, 701 (1983) (detention of luggage held to be a Fourth Amendment seizure). A Fourth Amendment "seizure" of personal 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). Destroying property meaningfully interferes with an individual's possessory interest in that property. See id. at 124-25. "[T]he destruction of

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property by state officials poses as much of a threat, if not more, to people's right to be `secure... in their effects' as does the physical taking of them." Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994).

The Browns had a possessory interest in their pet. In Pennsylvania, by statute, "All dogs are... declared to be personal property and subjects of theft." 3 Pa. Cons. Stat. Ann. S 459-601(a). See Miller v. Peraino, 626 A.2d 637, 640 (Pa. Super. Ct. 1993); Daughen v. Fox, 539 A.2d 858, 864 n.4 (Pa. Super. Ct. 1988).1 It necessarily follows that Immi was property protected by the Fourth Amendment and that Officer Eberly's destruction of her constituted a Fourth Amendment seizure. Accordingly, we join two of our sister courts of appeals in holding that the killing of a person's dog by a law enforcement officer constitutes a seizure under the Fourth Amendment. Fuller, 36 F.3d at 68; Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994).

To be constitutionally permissible, then, Officer Eberly's seizure must have been "reasonable." "In the ordinary case, the [Supreme] Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." Place, 462 U.S. at 701. Where the governmental interest justifying a seizure is sufficiently compelling and the nature and extent of the intrusion occasioned by the seizure is not disproportionate to that interest, the seizure may be reasonable even though effected without a warrant. Thus, when the state claims a right to make a warrantless seizure, we "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. at 703. Even when the state's interest is sufficiently compelling to justify a warrantless seizure that is minimally intrusive, the seizure will be unreasonable if it is disproportionately intrusive. While the state's interest in drug interdiction, for example, is sufficient to render reasonable a brief but warrantless detention of suspicious luggage for a canine "sniff," such detention for ninety minutes constitutes an unreasonable seizure under the Fourth Amendment. Id.

Where a pet is found at large, the state undoubtedly has an interest in restraining it so that it will pose no danger to the person or property of others. The dog catcher thus does not violate the Fourth Amendment when he or she takes a stray into custody. Moreover, the state's interest in protecting life and property may be implicated when there is reason to believe the pet poses an imminent danger.2 In the latter case, the state's

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interest may even justify the extreme intrusion occasioned by the destruction of the pet in the owner's presence.3 This does not mean, however, that the state may, consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger and the owner is looking on, obviously desirous of retaining custody. Striking the balance required by Place, we hold that Officer Eberly's destruction of Immi...

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