Moore v. Town of Erie

Decision Date19 July 2013
Docket NumberCivil Action No. 12-cv-02497-CMA-MJW
PartiesBRITTANY MOORE, a/k/a BRITTANY LANDIS, KAITLIN ROSE LANDIS, KIRSTIN RAE LANDIS, and KAYMEN RENEE LANDIS, Minors, by and through their next friend, BRITTANY MOORE, Plaintiffs, v. TOWN OF ERIE, COLORADO, and ERIE POLICE OFFICER JAMIE CHESTER (Badge E-23), in his official and individual capacities, Defendants.
CourtU.S. District Court — District of Colorado

Judge Christine M. Arguello


This matter is before the Court on Defendants' Motion to Dismiss. (Doc. # 8.) Plaintiffs Brittany Moore, and minors through Brittany Moore, Kaitlin Rose Landis, Kirstin Rae Landis, and Kaymen Renee Landis (collectively, "Plaintiffs") bring this suit against the Town of Erie and Erie Police Officer Jamie Chester (collectively, "Defendants") under Title 42 U.S.C. § 1983 and Colorado state law claims of intentional infliction of severe emotional distress and willful and wanton negligence. (Doc. # 3.) Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1441, and 1446 under federal question jurisdiction. (Id. at 2.)


On May 10, 2011, at approximately 7:56 p.m., Plaintiff Moore called 911 to report a threatening phone call she received and requested that an officer come to her property for her protection. (Doc. # 3, ¶ 20.) Defendant Chester responded to the call, but initially went to the wrong address. (Id., ¶¶ 21, 24.) Upon realizing his mistake, Defendant Chester proceeded to Plaintiff Moore's residence, which was next door. (Id., ¶ 24.) At the time Defendant Chester arrived at the wrong address, Plaintiff Moore was standing on her front porch. (Id., ¶ 25.) Plaintiff Moore's two dogs, one of which was a five-year-old German Shepherd named "Ava," approached Defendant Chester as he walked towards Plaintiffs' property. (Id., ¶ 33.) Upon seeing the dogs approaching him, Defendant Chester began to walk backward with his hand on his holstered gun. (Id., ¶ 35.) The dogs continued to approach Defendant Chester, who drew his gun and shot and killed Ava. (Id., ¶ 51.)

On September 19, 2012, Plaintiffs filed a Complaint and Jury Demand alleging four claims for relief. (Doc. # 3.) First, Plaintiffs assert that Defendant Chester violated their Fourth Amendment right by shooting and killing Ava without any reasonable justification. (Id., ¶ 90.) Second, Plaintiffs claim that the Town of Erie and its Police Department failed to instruct, supervise, control, equip, train, or discipline police officers in their duties to refrain from unlawfully killing dogs. (Id., ¶ 102.) Third, Plaintiffs allege intentional infliction of severe emotional distress against Defendant Chester for shooting and killing Ava. (Id., ¶ 120.) Lastly, Plaintiffs assert willful and wanton negligence against Defendant Chester for shooting and killing Ava. (Id., ¶ 123.) Defendants fileda Motion to Dismiss on September 12, 2012 (Doc. # 8), Plaintiffs filed a response on October 18, 2012 (Doc. # 10), and Defendants replied on November 11, 2012 (Doc. # 11).


A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) tests the formal sufficiency of a complaint. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). A complaint will survive such a motion if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). For a motion to dismiss, "[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted).

In reviewing a Rule 12(b)(6) motion, a court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless, a complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone islegally sufficient to state a claim for which a relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).


In their motion to dismiss, Defendants assert that Plaintiffs fail to state a claim upon which relief may be granted on each of their four claims. (Doc. # 8 at 1.) The Court will address each claim in turn.


Title 42 U.S.C. § 1983 provides a civil cause of action for individuals who are deprived of "any rights, privileges, or immunities secured by the Constitution and laws" by a person acting "under color of law." Adickes v. S.H. Kress & Co., 398 U.S. 144, 147, 150 (1970). Defendant Chester first contends that Plaintiffs failed to state a claim under which relief may be granted because he did not violate a constitutional right. (Doc. # 8 at 3.)

1. Are Dogs "Effects" Within the Meaning of the Fourth Amendment?

The Fourth Amendment to the United States Constitution 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 . . . ." U.S. Const. amend. IV. The Supreme Court "has treated the term 'effects' as being synonymous with personal property." Altman v. City of High Point, 330 F.3d 194, 202 (4th Cir. 2003) (citing Bond v. United States, 529 U.S. 334, 336-37 (2000); United States v. Jacobsen, 466 U.S. 109, 114 (1984); United States v. Place, 462 U.S. 696, 701 (1983); Nicchia v. New York, 254 U.S. 228, 230 (1920); Sentell v. New Orleans & C.R. Co., 166 U.S. 698,701 (1897) (at common law a dog owner could bring an action of trover for conversion of a dog)). Although the Tenth Circuit has not addressed this issue, every circuit that has visited the issue has uniformly concluded that dogs are effects subject to the protection of the Fourth Amendment.1 See Carroll v. Cnty. of Monroe, 712 F.3d 649, 649 (2d Cir. 2013) (unreasonable killing of a companion animal constitutes an unconstitutional seizure of personal property under the Fourth Amendment); Maldonado v. Fontanes, 568 F.3d 263, 271 (5th Cir. 2009) ("The killing of a person's pet dog or cat by the government without the person's consent is also a seizure within the meaning of the Fourth Amendment."); Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (dogs are effects and the killing of a companion dog constitutes a seizure); Altman v. City of High Point, 330 F.3d 194, 203 (4th Cir. 2003) ("[W]e hold that the plaintiffs' privately owned dogs were 'effects' subject to the protection of the Fourth Amendment."); Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3rd Cir. 2001) (killing of a person's dog by a law enforcement officer constitutes a seizure); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994) ("A dog is an 'effect' or 'property' which can be seized.") overruled on other grounds by Robinson v. Solano Cnty., 278 F.3d 1007 (9th Cir. 2002); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994) (dogs are property subject to Fourth Amendment seizure requirements); see also Scharfeld v. Richardson, 133 F.2d 340, 341 (D.C. Cir. 1942) ("It is an established principle of the common law that a dog is personal property."). Indeed, in Colorado, dogs enjoy the status of qualified property. Thiele v. City and Cnty.of Denver, 312 F.2d 786, 789 (Colo. 1957); see further Colorado Dog Fanciers, Inc. v. City and Cnty. of Denver By & Through City Council, 820 P.2d 644, 653 (Colo. 1991) (dogs are property and their taking is subject to the police power of the state); Colo. Rev. Stat. § 25-4-601 (defining an "owner" as "any person who has a right of property in a dog, cat, [or] other pet animal.") Therefore, this Court concludes that "Ava" was an effect as that term was used in the Fourth Amendment.

2. Does the Killing of a Dog Constitute a "Seizure" under the Fourth Amendment?

Having found that Ava was an "effect" subject to the protection of the Fourth Amendment, the Court must next consider whether Defendant Chester's killing of Plaintiffs' dog constituted a "seizure" under the Fourth Amendment. The Fourth Amendment "protects two types of expectations, one involving 'searches,' the other 'seizures.'" Jacobsen, 466 U.S. at 113. "A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property." Id. Destroying property meaningfully interferes with an individual's possessory interest in that property. Id. at 124-25. Therefore, when Defendant Chester killed Plaintiffs' dog, he "seized" Plaintiffs' "effects." See Carroll, 712 F.3d at 649 (unreasonable killing of a companion animal constitutes an unconstitutional seizure under the Fourth Amendment); Viilo, 547 F.3d at 710 (same); Maldonado, 568 F.3d at 271 (same); Altman, 330 F.3d at 205 ("[W]hen the officers destroyed the dogs, they 'seized' plaintiffs' 'effects.'"); Brown, 269 F.3d at 210; Fuller, 36 F.3d at 68 ("The killing of the dog is a destruction recognized as a seizure under the Fourth Amendment.").

In support of Defendant Chester's argument that Plaintiffs do not have standing to assert a Fourth Amendment violation against him, he absurdly contends "an individual does not have standing to assert Fourth Amendment rights on behalf of another." (Doc. # 8 at 3-4.) However, the crux of Plaintiffs' claim is that Defendant Chester violated their rights when he...

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