330 F.3d 194 (4th Cir. 2003), 02-1178, Altman v. City of High Point

Docket Nº02-1178
Citation330 F.3d 194
Party NameAltman v. City of High Point
Case DateMay 20, 2003
CourtUnited States Courts of Appeals, Court of Appeals for the Fourth Circuit

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330 F.3d 194 (4th Cir. 2003)



CITY OF HIGH POINT, North Carolina; BOBBY RAYPERDUE, in his individual and official capacities; NELSON MOXLEY, in his individual and official capacities, Defendants-Appellants,


JONI CHASTAIN, in her individual and official capacities, Defendant.

No. 02-1178

United States Court of Appeals, Fourth Circuit

May 20, 2003

Argued: January 21, 2003

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, District Judge.



James Redfern Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellants. Brandon Claus Fernald, La Mesa, California, for Appellees.


Robert D. Mason, Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellants. David Q. Burgess, Charlotte, North Carolina, for Appellees.

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Reversed by published opinion. Judge Luttig wrote the opinion, in which Judge Williams joined. Judge Gregory wrote an opinion concurring in part and dissenting in part.


LUTTIG, Circuit Judge:

This case arises out of several shooting incidents in the City of High Point, North Carolina (the "City" or "High Point"). In each incident, a High Point animal control officer shot and killed one or more dogs that were running at large in the city. Plaintiffs, the owners of the animals, brought suit under 42 U.S.C. § 1983, alleging that the officers’ actions violated their Fourth Amendment rights. The district court denied the officers’ qualified immunity defense, and the officers have appealed that ruling. Their appeal presents a question of first impression in this circuit, namely, whether a privately owned dog falls within one of the classes of property protected by the Fourth Amendment against unreasonable search and seizure. This issue, while ostensibly peripheral as a constitutional matter, is nevertheless of significant importance, and we consider it in depth. As we explain more fully below, we conclude that the dogs at issue in this case do qualify as property protected by the Fourth Amendment and that the officers seized that property. However, because in each instance the seizure involved was reasonable, we conclude that the officers did not violate the plaintiffs’ Fourth Amendment rights. Accordingly, we reverse the district court’s decision denying summary judgment to the officers and the City of High Point.


Because this case comes before us on appeal from the denial of summary judgment, except where otherwise noted, the following facts are recounted in the light most favorable to the plaintiffs, as they are the nonmovants in this action. Defendants Nelson Moxley and Bobby Ray Perdue are and were at all times relevant to this opinion employed by High Point as animal control officers. As animal control officers, Moxley and Perdue were charged with enforcing the various High Point ordinances governing dogs. High Point Ordinance § 12-2-1(a) makes it unlawful for the owner of a dog to allow the animal to "run at large" in the city. The ordinance defines "at large" to mean "a dog that is Page 197

not in an enclosure or otherwise confined, or is not under the control of the owner or other person by means of a leash, cord or chain." H.P. Ordinance § 12-2-1(b). Animal control officers are tasked with impounding any animal found "at large." Id . §12-2-6 ("It shall be the duty of the animal control specialist to capture and impound in the county animal shelter each and every unlicensed dog or any dog found unlawfully at large in the city as provided in this chapter."). Finally, city ordinance provides that "[i]t shall be lawful for the animal control specialist or police officers of the city to tranquilize or kill any dog at large within the city which cannot safely be taken up and impounded." Id . § 12-2-16(b) (emphasis added).1

It was Moxley and Perdue’s efforts to enforce these ordinances that generated the four separate incidents which form the basis of this case. Each incident involves the shooting of one or more of the plaintiffs’ dogs by either Moxley or Perdue. It is undisputed that in each incident, the dog or dogs were running at large within the meaning of High Point Ordinance § 12-2-16(b). We describe the incidents in chronological order.

The Larsen Incident. Plaintiff Kimberly Larsen was the owner of "Heidi," a purebred Rottweiler. Larsen testified that Heidi always wore a collar and tags. On January 10, 1997, Larsen left Heidi in her fenced yard while she and a family member left to run some errands. That same day, Officer Perdue responded to a call about a large, vicious Rottweiler that was loose and had chased and attacked, or attempted to attack, a citizen. When Officer Perdue arrived on the scene, he spoke with Willie Sturdivant, the citizen who had reported the incident. Sturdivant told Perdue that he had been chased by the dog and had only been able to escape the attack by beating the dog off with a stick. Sturdivant was scared to walk back down the street, so Officer Perdue gave him a ride.

After dropping off Sturdivant, Officer Perdue began searching for the loose dog. A local woman told Perdue to be careful of the dog because it was dangerous and aggressive and had been in the streets chasing cars and people. She also told him where the owners of the dog lived, although she noted that they were not home. Perdue next came upon Charles Elkins, a neighbor of the Larsens, walking on the street, and he stopped to warn Elkins about the loose dog. Elkins reported that the dog lived at the Larsens’ and directed Perdue to the house. Officer Perdue pulled into the Larsens’ driveway, exited his vehicle with his shotgun, and began to walk toward the home.

Elkins observed what happened next from a distance of about 150 feet. He said that as Perdue walked toward the home, Heidi came walking around the corner of the house. Heidi slowly approached Perdue and jumped or lunged from the driveway up into the yard. At this point, Heidi was ten to twelve feet from Perdue. Heidi then stopped, turned around, and began walking away from Perdue toward the street. Perdue then fired, striking Heidi in the hindquarters. He fired again to end the animal’s suffering. Perdue dragged Heidi’s remains to the end of the driveway and called sanitation to dispose of the body. He then left the scene.2

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The Frye Incident. Wendy Frye owned four dogs — "Tut-Tut," "Bandit," "Boo Boo," and "Sadie" — that were approximately seven months old and weighed 15-20 pounds each. The dogs’ mother was a Siberian Husky mixed-breed dog; it is unclear what breed their father was. The dogs wore collars but did not wear tags. They were kept in a pen in Frye’s backyard but had a tendency to dig under the pen and escape.

On the morning of February 8, 1997, Officer Berman of the High Point Police Department responded to a call about a pack of dogs chasing people. According to him, when he arrived on the scene, the dogs charged his car, growling and showing their teeth. In the pack were three of Frye’s dogs and two larger strays. Officer Berman remained in his car and called for Officer Perdue. While Berman waited for Perdue to arrive, the dogs ran across the street and began harassing a woman who was trying to exit her vehicle. Berman drove over and blew an air horn to disperse the dogs. The dogs ran, and the woman was able to leave her car and get to her residence. A man then came out of the residence. One of the dogs tried to bite him, but Berman again dispersed the dogs with his horn.

Shortly thereafter, Perdue arrived on the scene. The dogs aggressively rushed his truck as soon as he pulled up. One of the dogs jumped into the window of his truck and Perdue had to beat if off with his nightstick. When he exited the vehicle, the pack attacked him and Perdue fired into it with his shotgun, killing two of the dogs (Bandit and Tut-Tut). The rest of the pack disbursed.

The Wallace Incident. Plaintiff Gilbert Wallace owned a Golden Retriever/Labrador mixed-breed dog named "Sundance." Wallace asserts that Sundance was a well-behaved, passive dog, but that he had a habit of escaping from his fenced-in yard by digging under the fence. Wallace had several other dogs, which he also kept in a fenced area. Wallace had been cited on six previous occasions for allowing his dogs to run loose, and he had been warned about the poor condition of his fence. In addition, Officer Moxley had previously told Wallace that his dogs were becoming more aggressive.

On January 25, 1999, High Point Police Officer Blue responded to a call that a dog had bitten someone. When he arrived at the scene, a dog that Officer Blue described as a "black chow-lab mix," Sundance, charged him. Blue racked his shotgun, and the animal stopped, but continued to growl. Blue radioed for animal control to respond.

Blue then interviewed the bite victim, Lonnie Baldwin. Baldwin told Blue that the dog had chased his child to the bus stop. Baldwin chased the dog to protect his child, and the dog bit him on the hand. As Baldwin and Blue were talking, Officer Moxley arrived on the scene along with Officer Perdue. At this point, Sundance had retreated to Wallace’s yard and was sitting outside the fence. Moxley informed Baldwin and Blue that this dog had given him problems in the past. He then got back in his truck and drove the short distance to the Wallace house.

Moxley exited his vehicle with his shotgun and proceeded toward the rear of the truck. At this point, Sundance charged at full speed, growling and showing his teeth. Moxley raised his shotgun and fired when Sundance was about five yards away, killing the dog. He then...

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