Andrews v. City of West Branch, Iowa, 05-1188.

• Decision Date: 27 July 2006
• Docket Number: No. 05-1188.,05-1188.
• Citation: 454 F.3d 914
• Parties: Mike ANDREWS and Jana Andrews, Individually and as Next Friends of Ian Andrews, Appellants, v. The City of West Branch, Iowa; Dan Knight, Appellees. Mike Andrews and Jana Andrews, Individually and as Next Friends of Ian Andrews; Ian Andrews, Appellants, v. The City of West Branch, Iowa; Dan Knight, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

454 F.3d 914

Mike ANDREWS and Jana Andrews, Individually and as Next Friends of Ian Andrews, Appellants, v. The City of West Branch, Iowa; Dan Knight, Appellees.

Mike Andrews and Jana Andrews, Individually and as Next Friends of Ian Andrews; Ian Andrews, Appellants, v. The City of West Branch, Iowa; Dan Knight, Appellees.

No. 05-1188.

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2005.

Filed: July 27, 2006.

Charles T. Traw, Iowa City, IA, for appellant.

Scott J. Beattie, Des Moines, IA, for appellee.

Before MURPHY, HEANEY, and MELLOY, Circuit Judges.

HEANEY, Circuit Judge.

Appellants Mike and Jana Andrews filed this action against the City of West Branch and former Police Chief Dan Knight in district court seeking damages and other relief under 42 U.S.C. § 1983, alleging that Knight wrongfully seized and deprived them of their property; specifically, their dog, Riker. They also filed a state court action seeking relief based on Fourth and Fourteenth Amendment violations and theories of recovery under state tort law. The state court action was removed to federal court and consolidated with the § 1983 action. The appellees moved for summary judgment, and the magistrate judge granted it to them, concluding that Knight's actions were lawful under Iowa Code section 351.26, precluding any claim of a constitutional violation. The district court entered judgment in favor of appellees on all of appellants' claims. The Andrewses appeal, claiming the district court erred in its construction and application of section 351.26 of the Iowa Code, and arguing that the record reflects that a reasonable jury could conclude from the facts presented that appellants are entitled to judgment on their substantive due process, Fourth Amendment, and qualified immunity claims. We affirm in part and reverse in part, finding the Andrewses' substantive due process claim and their attachment of liability to the City of West Branch to be without merit, and their Fourth Amendment claim worthy of consideration by a jury.

I. Facts

The following material facts are not in dispute. At approximately 8:00 a.m. on February 28, 2002, West Branch City Administrator Ty Doermann received a call from a West Branch resident, who complained about a large black dog that was running loose through her neighborhood and had been bothering her dog. Doermann conveyed the complaint to West Branch Police Chief, Dan Knight. Knight responded to the call, and drove around the neighborhood in his squad car in an attempt to catch the loose dog. Knight spotted, then lost sight of, the loose dog several times throughout his pursuit. Finally, Knight parked his car in the driveway of 417 North Maple Street, the Andrewses' home, because he had seen a large black dog in the backyard at that address. He walked toward the fenced backyard with a dog leash in his pocket and fired two shots at the dog; immediately, he realized he had shot the wrong dog. Jana Andrews, the owner of the dog, was standing on her back patio just a few feet away from her dog, Riker, when he was shot. She had just let Riker out to go to the bathroom inside the Andrewses' enclosed, fenced-in backyard. Riker had been badly wounded by Knight's first two shots, so Knight decided to shoot Riker a third time to end Riker's suffering. Riker had not been wearing his collar and tags at the time he was shot, but he was current on his distemper and rabies boosters.

Prior to shooting Riker, Knight gave no warning, and made no effort to inquire if Riker had been running loose prior to the shooting, or whether the Andrewses' backyard was completely enclosed by a fence, which it was.

II. Analysis

Because this case comes to us on appeal from the district court's grant of summary judgment, we view the facts in the light most favorable to the Andrewses, drawing every reasonable inference in their favor. Eliserio v. United Steel Workers of Am Local 310, 398 F.3d 1071, 1076 (8th Cir. 2005). We find the appellants' substantive due process rights claim and their claim that the City of West Branch is liable for Knight's actions to be without merit, and do not address them here.

We first consider whether Knight was authorized by statute¹ or local regulation to shoot Riker. Knight responded to a complaint about an "at large" black dog. Knight spotted a dog running loose several times, then shot Riker while he (the dog) was in the Andrewses' backyard, which was completely fenced in. Under the plain meaning of the city ordinance and the police animal patrol policy, a dog in an enclosed fence is not at large, and Knight therefore did not have animal control jurisdiction over Riker at the time of the shooting. See The Code of Ordinances for West Branch, Chapter 55.11.

Appellees also assert that Knight was justified in shooting Riker because he was not wearing his rabies tag. Iowa Code section 351.26 states that it is lawful for an officer to shoot any dog without a rabies tag, unless the jurisdiction provides for the seizure and impoundment of dogs. West Branch clearly provides for the impoundment of at-large and neglected dogs, see The Code of Ordinances for West Branch, Chapter 55.05; see also The West Branch Police Animal Patrol Policy ("Officers should utilize all available methods to obtain capture of animals running at large. The discharging of a firearm at an animal should be considered as a last resort and then only when conditions are safe to do so."), and we find that the seizure and impoundment policy would logically extend to a fenced-in, passive dog that is not wearing his vaccination tags. Riker posed no greater threat to public safety than a stray dog running loose.

We believe a reasonable jury could conclude that it was premature for Knight to resort to shooting what he believed to be the at-large dog. It does not appear that Knight had exhausted all means of capturing the loose dog. The record shows that after receiving the complaint, Knight drove around the neighborhood in which the dog was at large, catching glimpses of the dog several times. It seems that the only time Knight stepped out of his vehicle in his attempt to contain the animal was to fire his weapon at a black dog in an enclosed fence. While we acknowledge that chasing a loose, disobedient dog can be maddening, Knight's decision to kill Riker does not comport with the Code's requirement that an officer use a firearm only as a last resort. Having determined that Knight was not acting in accord with the relevant Iowa statutes and city ordinances, we turn to the appellants' constitutional claims.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of a constitutional right committed by a person acting under color of state law. Lesher v. Reed, 12 F.3d 148, 150 (8th Cir. 1994); Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir.1993). The Andrewses allege that Knight's actions in shooting and killing Riker violated their Fourth Amendment right to be free from unreasonable seizures.

The Fourth Amendment guards against unreasonable searches and seizures. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). A dog is considered property for Fourth Amendment purposes. Lesher, 12 F.3d at 150-51. "A seizure of property occurs when there is some meaningful interference with a person's possessory interests in that property" Id. at 150. The question before us is whether this seizure was reasonable under the circumstances. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer; it does not turn on the subjective intent of the officer. Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. "[I]n judging the reasonableness of the officers' action, we assess only the reasonableness of their actions vis-a-vis the dogs; we do not consider potential harm to third parties." Altman v. City of High Point, N.C., 330 F.3d 194, 205 (4th Cir.2003). When the state claims a right to make a warrantless seizure, we...