18 F.4th 283
8th Cir.2021Background
- Plaintiffs Jennifer LeMay and Courtney Livingston live in Minneapolis with two service/emotional-support dogs (Ciroc and Rocko); both dogs assisted residents with disabilities.
- A homeowner-triggered alarm led Minneapolis officers Mays and Ledman to the house; LeMay had called the alarm company to cancel the alarm before police arrival (unclear whether police were informed).
- Mays entered the backyard over a six-foot fence; according to the complaint, Ciroc approached Mays wagging his tail and Mays shot Ciroc in the face; Rocko then entered non‑threateningly and Mays shot Rocko multiple times.
- Neither dog died but both were severely injured and could no longer perform their service functions.
- LeMay and Livingston sued Mays and the City under 42 U.S.C. § 1983 for unreasonable seizure (Fourth Amendment) and Monell liability; the district court dismissed the Monell claim but denied dismissal of the unlawful seizure claim, rejecting Mays’s qualified immunity defense.
- Mays appealed the denial of qualified immunity; the Eighth Circuit reviewed de novo whether the complaint on its face shows no violation of clearly established law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether shooting Ciroc and Rocko was an unreasonable seizure under the Fourth Amendment | Dogs were non‑threatening (wagging tail, non‑aggressive) and non‑lethal alternatives existed; shooting was an unreasonable, warrantless seizure | Shooting was reasonable because officer faced imminent danger (per his report and videos) | Held for plaintiffs at this stage: complaint plausibly alleges dogs posed no imminent threat, so seizure may be unreasonable |
| Whether the right was clearly established at the time | A reasonable officer would know shooting non‑threatening pets violates the Fourth Amendment | Precedent (Bailey) allegedly suggests officer could have believed conduct lawful | Held for plaintiffs: controlling precedent (Andrews and others) clearly established that officers may not shoot pets that do not pose an objectively legitimate, imminent threat |
| Whether the court may consider videos, police report, and training materials embraced by the pleadings to resolve immunity on a 12(b)(6) motion | N/A (plaintiffs rely on complaint allegations) | These materials show dogs were aggressive/growling and justify Mays’s belief of imminent danger; thus dismissal is proper | Held: Court will not accept extrinsic materials for their truth at this stage; the submitted videos do not clearly contradict the complaint and are insufficient to resolve the reasonableness question now |
| Whether interlocutory appeal jurisdiction extends to the materials‑consideration question | N/A | Mays sought review of district court’s refusal to consider extrinsic material | Held: Court assumed jurisdiction over the qualified immunity denial but declined to resolve any separate, broader question about the district court’s evidence rulings beyond the narrow immunity review |
Key Cases Cited
- Andrews v. City of West Branch, 454 F.3d 914 (8th Cir. 2006) (officer not entitled to immunity for shooting non‑threatening dog; nonlethal capture feasible)
- Hansen v. Black, 872 F.3d 554 (8th Cir. 2017) (privately owned dogs are "effects" protected by the Fourth Amendment)
- Harlow v. Fitzgerald, 457 U.S. 800 (Sup. Ct. 1982) (qualified immunity standard framed)
- Ashcroft v. al‑Kidd, 563 U.S. 731 (Sup. Ct. 2011) (plaintiff must plead facts showing violation of a clearly established right)
- Pearson v. Callahan, 555 U.S. 223 (Sup. Ct. 2009) (importance of resolving immunity questions early; two‑prong test)
- Anderson v. Creighton, 483 U.S. 635 (Sup. Ct. 1987) (clearly established right standard for qualified immunity)
- Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008) (officers on notice that unnecessarily killing pets offends Fourth Amendment)
- San Jose Charter of Hells Angels v. City of San Jose, 402 F.3d 962 (9th Cir. 2005) (clearly established that officers cannot unnecessarily kill a person’s pet)
- Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001) (officer may not destroy pet that poses no immediate danger when owner available)
- Dillard v. O'Kelley, 961 F.3d 1048 (8th Cir. 2020) (qualified immunity framework reaffirmed on appeal)