Chastang v. Levy

• Decision Date: 13 August 2018
• Docket Number: Case No. 6:17-cv-538-Orl-37DCI
• Parties: Lawrence J. CHASTANG; Dora Patricia Chastang; Lawrence Chastang, Jr.; Miles Christian Chastang; Adriana Patricia Chastang; Winston Chastang, Plaintiffs, v. Gilad LEVY, Defendant.
• Court: U.S. District Court — Middle District of Florida

319 F.Supp.3d 1244

Lawrence J. CHASTANG; Dora Patricia Chastang; Lawrence Chastang, Jr.; Miles Christian Chastang; Adriana Patricia Chastang; Winston Chastang, Plaintiffs,

v.Gilad LEVY, Defendant.

Case No. 6:17-cv-538-Orl-37DCI

United States District Court, M.D. Florida, Orlando Division.

Signed August 13, 2018

William G. Osborne, William G. Osborne, PA, Orlando, FL, for Plaintiffs.

Brian Francis Moes, Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Maitland, FL, Walter A. Ketcham, Jr., Grower, Ketcham, Eide, Telan & Meltz, PA, Orlando, FL, for Defendant.

ORDER

ROY B. DALTON JR., United States District Judge

This case is about a police officer's response to a triggered burglar alarm at a family's home that resulted in the shooting of two pet dogs, one of which died. Plaintiffs are the six members of the Chastang Family who each sue Defendant Gilad Levy ("Deputy Levy "), the officer responsible, for damages under 42 U.S.C. § 1983 for violating their Fourth Amendment right against unreasonable seizure. (Doc. 11, ¶¶ 22–27.) Before the Court are Deputy Levy's summary judgment motion (Doc. 20), and Plaintiffs' partial summary judgment motion (Doc. 23). Each side responded (Docs. 24, 25), and the Court now evaluates the matter.

I. BACKGROUND ¹

A. Chastang Family

The Chastang family consists of six members: father Lawrence, Sr. ("Lawrence, Sr. "), mother Dora Patricia ("Patty "), eldest child Lawrence, Jr. ("Lawrence, Jr. "), second child Miles Christian ("Christian "), daughter Adriana Patricia ("Adriana "), and youngest child Winston ("Winston "). (Docs. 20-3, p. 5:22–24; 20-4, p. 7:1–5.) Lawrence, Jr. is 28, Christian is 26, Adriana is 24, and Winston is 22 or 23. (Docs. 20-2, p. 5; 20-5, p. 9:6; 20-6, p. 5:12; 20-4, p. 7:13.)

The family home is in Winter Garden, Florida. (Doc. 24-1, p. 2, ¶¶ 2–3.) Sitting on a one-acre lot, the property contains the house, a pool, and a detached garage. (Docs. 20-5, p. 53:14–16; 24-1, p. 5.) A long driveway leads up to a large courtyard where numerous vehicles can be parked. (Doc. 24-1, p. 2, ¶ 6.) Before entering the house, at the beginning of the driveway on the right side, this sign is posted:

(Doc. 24-1, p. 2, ¶ 4, p. 7.) At the end of the driveway, on either side of the courtyard, are two additional signs:

(Id. at 2, ¶ 4; pp. 8, 12.) The "remain safely" sign is on the left; "sound your horn" is on the right. (Id. ). The home is inside a gated community that requires an access code to enter. (Doc. 20-8, pp. 22:20–25, 23:1–4.)

Lawrence, Sr. and Patty have lived in this home for thirty years. (Doc. 24-1, p. 2, ¶¶ 2–3.) The children grew up there, but all moved away for college. (Doc. 20-4, pp. 6:21–25, 8:8–15.) Since then, they've sporadically stayed at the family home for breaks and visits, or longer stretches between other living arrangements. (Id. at 8:8–15.) Currently, Adriana is the only child staying there full-time; Lawrence, Jr. lives in the Cayman Islands; Christian lives at his own home in Oakland, Florida; and Winston, the Chastang still in school, lives by campus in Boca Raton, Florida. (Docs. 20-2, p. 8:5–7; 20-4, p. 8:12–13; 20-6, p. 5:14–15; 20-7, p. 5:14–15.)

B. Dogs Growing Up

The Chastangs are dog people. When Lawrence, Jr. was an infant, Lawrence, Sr. and Patty had a Collie named Prince. (Doc. 20-4, pp. 38–39.) But the first family dog was Sandy, a yellow Labrador the children grew up with. (Doc. 20-3, pp. 6–7.) She passed about ten or eleven years ago of natural causes and the family buried her in a marked site on their land. (Id. at 7:3–11; Docs. 20-7, pp. 24–24; 20-2, pp. 16–17.) Around this time, an ATV was stolen from the Chastangs' front yard, so the family decided to get a new dog. (Doc. 20-5, p. 27:2–18.) Christian took the lead in researching dogs and landed on a Rottweiler from a breeder in Gainesville, Florida. (Doc. 20-5, pp. 14–16.) It was selected as "a dog that would be able to roam around in [the] yard – within [the] yard and provide security so that ... when anybody would walk by [the] home, they would know that there was a big dog on the property and not to come in." (Id. at 16:12–17.) At the same time, the family installed an electronic fence along the perimeter of their property and put up the three yard signs. (Id. at 28–29.) Perhaps appropriately so, they named the dog Kimbo after a street fighter. (See id. at 15–16.) And he's lived up to his billing: he not only has a playful, loving temperament around family and friends, but also a presence and 90-100 pound size that deters those who "weren't welcome." (See id. at 18:9–14.) Indeed, since getting Kimbo, nothing "has been taken from [their] property." (Id. at 27:14–15.)

Between Sandy and Kimbo, the family rescued another dog "for a short time," who didn't stay with them. (Doc. 20-4, p. 39:19–25.) And after getting Kimbo, the family also got a teacup Yorkie, Teddy, who Adriana picked out for her fourteenth birthday. (Doc. 20-2, pp. 23–24.) Teddy died late summer 2016 after being attacked by two Pitbulls in the neighborhood right outside the Chastang home. (Doc. 20-3, pp. 8–9.)

C. Acquisition of Bane and Pepper

In 2014, two more dogs entered the Chastang fold. (Docs. 20-4, p. 12:10–12; 20-6, p. 12:16–18.) Lawrence, Jr. was living in Greenville, South Carolina with his then-girlfriend following his college graduation. (Doc. 20-4, p. 12:17–25.) For his birthday, she gifted him a seven-week old Rottweiler—she knew of his affinity for Kimbo, so selected the same breed for the puppy present. (Id. at 10:17–20, 12:10–12; Doc. 20-2, p. 18:7–21.) The pup was a total surprise, and Lawrence, Jr. named it Bane after the Batman character. (Doc. 20-4, pp. 23:2–6, 10:24–25.) Bane was the first dog Lawrence, Jr. owned in his own right, and he considers Bane his dog. (Id. at 17:19–23.) As such, Lawrence, Jr. took care of Bane's veterinary needs (id. at 17–19) and made the decision to put him in specialized alert and off-leash recall training (id. at 23–32).

Wherever Lawrence, Jr. went, Bane went: When Lawrence, Jr. and his then-girlfriend relocated from Greenville to a townhouse in Orlando, Florida, Bane came along. (Id. at 13.) Then, around May 2016, Lawrence, Jr. and his girlfriend separated. (Id. at 13:21–25.) Taking Bane, he moved out of the townhouse to stay with his parents while he figured out next steps—his move to the Cayman Islands, where he intended to bring Bane, if possible. (Id. at 13–14.) While Lawrence, Jr. and Bane stayed at the family home, Patty helped take care of Bane by feeding him and letting him out. (Id. at 20–23.) As Lawrence, Jr. trained Bane on the electric fence, he was free to roam the property. (Id. at 72–73.)

That same year, Christian got a dog—a black Labrador he named Pepper. (Doc. 20-6, pp. 9–12.) He chose to rescue her during "a lonely year at UCF." (Id. at 29:22–25.) The decision was made without involving his family. (Id. at 30:8–10.) As he describes it, he "was living in a oneone apartment and no one really wanted to come hang out with [him] because a oneone apartment's boring, so [he] got the dog and hung out with her." (Id. ) He selected her from a rescue facility in Orange County; during his visit, she was "just brought in." (Id. at 11:6–10.) He asked about her, paid a $15 adoption fee, and the three-month old pup was his. (Id. at 11:6–16.) He named her Pepper based on her coloring and a "laylow" "soft" reggae band that matched her personality. (Id. at 11:21–25, 12:1.) Since adopting her, Christian trained her, got her vaccinated and took care of her veterinary needs. (Id. at 11–13.) He also taught her surfing. (Id. at 13.)

After Christian graduated from college in May 2015, he and Pepper stayed at the family home while looking for his own home to purchase or rent. (Id. at 6:13–18, 34–36.) Since moving to his Oakland home in October 2016, Pepper has a crate in both houses and shares time between them. (Id. at 8:24–25, 9:1–5, 36:1–7.) Even with this shared situation, Christian considers Pepper his dog as, among the other family dogs, "Pepper's the one that ... for the first year and a half of her life ... spent her time with [him]." (Id. at 6:22–25, 7:1–5.)

D. Incident

The summer of 2016, Lawrence, Sr. and Patty had a full house. Lawrence, Jr., Christian, and Adriana were staying at the family home, which meant Bane and Pepper were there, too, along with Kimbo and Teddy. (Doc. 20-2, pp. 8:1–4; 22:13–17, 28:20–25, 29:1–2.) But leading up to the Fourth of July holiday, the family was scattered: Lawrence, Sr. and Patty were at the family's condos in Cape Canaveral and Adriana was visiting her friend in the Bahamas. (Id. at 15:19–22; Docs. 20-3, p. 15:20–22; 20-5, p. 38:12–22.) Winston came up to join his brothers for the holiday, so he, Lawrence, Jr., and Christian manned the family home. (Doc. 20-7, pp. 11–12.)

On the afternoon of July 2, all of the boys were out, leaving the dogs home alone in their crates. (Docs. 20-7, p. 14:10–14; 20-6, p. 16:2–3; 20-4, p. 53:10–12). Patty's sister, Marianna Trejos ("Marianna "), was in town assisting a friend at a gun show and made plans with Patty to stay at the family home. (Doc. 20-11, pp. 8–9.) She arrived there around 5:15 p.m., when no one else was home, and parked her vehicle near the detached garage in the courtyard. (Id. at 10:3–19.) As is her habit, she headed to the backyard to tend to the plants and bushes. (Id. at 9, 11, 12.) Soon after, she popped into the house to use the restroom—the back door was unlocked, so she let herself in. (Id. at 13:8–15.) Opening the door triggered the house alarm, and a continuous beeping noise sounded. (Id. at 14–15.) Marianna called her sister for the code, deactivated the alarm, and the noise stopped. (Id. at 18.) She then used the restroom and let Kimbo, Bane, and Pepper out of their kennels. (Id. at 22:13–16.) They headed out to the backyard, and Marianna returned to trimming bushes back by the family pool. (Id. at 22:17–25.)

Unbeknownst to Marianna, entering the alarm code did not resolve...