Jеnnifer L.M. LeMay, personally, and as guardian of CLE, VE, minors; Courtney J. Livingston v. Michael B. Mays; City of Minneapolis
No. 20-2632
United States Court of Appeals For the Eighth Circuit
November 15, 2021
Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
Submitted: May 11, 2021
Appeal from United States District Court for the District of Minnesota
The district court1 refused to grant qualified immunity to Minneapolis Police Officer Michael Mays on a motion to dismiss an unlawful seizure claim based on his shooting two dogs during a residential security check. We affirm.
I. Background2
Plaintiffs Jennifer LeMay and Courtney Livingston live together in a home in Minneapolis with LeMay‘s two children and two five-year-old American Staffordshire Terriers (commonly referred to as pit bulls) named Ciroc and Roсko. Livingston suffers from severe anxiety disorder that causes panic attacks and “pseudoseizures,” and one of LeMay‘s children suffers from multiple emotional-behavioral disorders and is considered disabled. Ciroc, a brown-and-white, 60-pound male, served as the child‘s service animal. Rocko, a grey-and-white, 130-pound male, served as Livingston‘s “emotional service . . . and seizure alert animal.”
One evening, Livingston accidentally set off the burglar alarm in the home. The home security alarm company notified the police department, and Officers Mays and Daniel Ledmаn responded to the call. Before the officers arrived at the home, LeMay called the security company to report
Upon arrival at the home, Mays jumped over the six-foot privacy fence surrounding the backyard while Ledman knocked on the front door. Livingston answered the front door with Rocko at her side and told Ledman that she accidentally set off the alarm. Ledman never told Livingston that another officer was in the backyard.
While in the backyard, Mays encountered Ciroc who, according to the pleadings, “walked toward Mays wagging his tail in a friendly manner to greet Mays.” Mays then shot Ciroc in the face. After the shots were fired, Rocko entered the backyard and is alleged to have “рresented himself to Mays in a non-threatening manner.” Mays then “shot Rocko multiple times in his body.” Neither dog was killed, but both were severely injured, rendering them unable to perform their tasks as service animals.
LeMay and Livingston sued Mays and the City of Minneapolis under
The district court dismissed the Monell claim without prejudice. LeMay v. Mays, No. Civ. 19-2463, 2020 WL 3642357, at *4 (D. Minn. July 6, 2020). But it denied dismissal of the unlawful seizure claim. Id. at *3. It held nothing in the complaint showed either dog was an imminent threat; therefore, the shootings were not objectively reasonable. Id. Mays and the City appeal the district court‘s order denying the dismissal of the unlawful seizure claim against Mays, arguing Mays is entitled to qualified immunity.
II. Discussion
“An interlocutory order denying a motion to dismiss based on qualified immunity is immediately appealable.” Stanley v. Finnegan, 899 F.3d 623, 625 (8th Cir. 2018). “To warrant reversal, [the defendant] must show that he is entitled to immunity on the face of the complaint.” Dollar Loan Ctr. of S.D., LLC v. Afdahl, 933 F.3d 1019, 1024 (8th Cir. 2019). “The Suprеme Court has repeatedly ‘stressed the importance of resolving immunity questions at the earliest possible stage in litigation.‘” Dillard v. O‘Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020) (en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The court reviews the denial of a motion to dismiss de novo. Stanley, 899 F.3d at 625.
“Qualified immunity shields public officials from liability for civil damages if their conduct did not ‘violate clearly
A. Unreasonable Seizure
The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]”
Thus, in order to decide whether Mays acted reasonably in shooting Ciroc and Rocco, we must decide whether he faced an imminent danger. Accepting the complaint‘s allegations as true, we conclude he did not.
Two cases assist with our analysis. See Andrews, 454 F.3d at 916-19; Bailey v. Schmidt, 239 F. App‘x 306, 308 (8th Cir. 2007) (unpublished) (per curiam). In Andrews, we held a police officer was not entitled to qualified immunity after shooting a dog he mistook for аnother problem-causing dog, when the dog he shot was in a fenced backyard with the homeowner, presented no danger to others, and was capable of being captured by non-lethal means. 454 F.3d at 916-18. In contrast, in Bailey, we held an officer was entitled to qualified immunity when he shot and killed five pit bulls during the searсh of a home for contraband when the dogs “advanced or acted aggressively toward the officers.” 239 F. App‘x at 308. These cases illustrate the general principle that a police officer may justify shooting a dog in order to protect life and property only when it presents аn objectively legitimate and imminent threat to him or others.
Based on this principle, the complaint here states a plausible claim that Mays unreasonably seized the dog. As pled, Ciroc “walked toward Mays wagging his tail in a friendly manner to greet Mays.” Mays then “shot Ciroc in the face, cаusing Ciroc fear and great pain.” Then, “Rocko presented himself to Mays in a non-threatening
B. Clearly Established
We then turn to the second prong of the qualified immunity analysis—whether the right was clearly established at the time of the challenged conduct. See Dillard, 961 F.3d at 1052. “Qualified immunity is applicable if [the officer] can show that a reasonable officer with the information he possessed at the time of the shooting could have believed that his conduct was lawful in light of the law that was clearly established on the date of the incident.” Andrews, 454 F.3d at 918-19. “A right is clearly established if a ‘reasonable [officer] would understand that what he is doing violates that right.‘” Id. at 919 (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
It is clearly established that an officer cannot shoot a dog in the absence of an objectively legitimate and imminent threat to him or others. See id.; see also Viilo v. Eyre, 547 F.3d 707, 710-11 (7th Cir. 2008) (holding that a police officer is on notice that unnecessarily killing a persоn‘s pet offends the Fourth Amendment); San Jose Charter of Hells Angels v. City of San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005) (holding it was clearly established that an officer cannot unnecessarily kill a person‘s pet); Brown, 269 F.3d at 210-11 (holding it was clearly established that an officer cannot destroy a pet that poses no immediate danger and whose owners are “known, availablе, and desirous of assuming custody“). Again, as pled, Ciroc and Rocko did not pose an imminent threat to Mays. Thus, a reasonable officer would have known that shooting Ciroc and Rocko would violate the owners’ “clearly established right to be free from unreasonable seizures of prоperty.” Andrews, 454 F.3d at 919.
We reject Mays‘s argument that the Bailey case shows that he, in fact, did not violate a clearly established right. Mays states that Bailey “is still the only guidance for an officer in [his] situation set forth by this Court.” This is not correct. Andrews is also precedent that cannot be ignored. Moreover, there are salient factual differences between Bailey, an unpublished and thus non-precedential opinion, and the case at hand. For example, in Bailey, the officers were faced with five aggressive pit bulls, 239 F. App‘x at 308, as opposed to two non-aggressive pit bulls. Officers in the former scenario were clearly faced with a threat of imminent danger not present in the latter alleged scеnario. In short, Bailey does not impact the clearly established rule from Andrews—an officer cannot lawfully destroy a pet who does not pose an objectively legitimate and imminent danger to him or others. 454 F.3d at 919. Because the complaint plausibly alleges Mays shot Ciroc and Rocko when they posed no imminent danger to him or others, he is not еntitled to qualified immunity at this stage.
C. Consideration of Other Materials
Mays tries to escape this conclusion by contending that unlike the district court, we should consider certain materials he submitted because they are embraced by the pleadings. Specifically, he points to two videos depicting the incident, a police report, and training materials for police encountering dogs. According to Mays, this evidence collectively tells a different
First, not all evidence Mays urges may be properly considered with the pleadings—at least not for the purpose he desires. Our precedent permits consideration of “materials ‘necessarily embraced by the pleadings,’ including exhibits attached to the complaint and matters of public record.” Buckley v. Hennepin Cnty., 9 F.4th 757, 760 (8th Cir. 2021) (quoting Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015)). Such evidence may nоt, however, be viewed for the truth of the matters asserted. Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831-32 (8th Cir. 2003).
But this is exactly what Mays asks us to do with some of the material. For example, he asks us to consider the police report, which he claims is appropriate because it was referenced in the pleadings. But he does not simply want us to consider the police report‘s existence. He also wants us to accept its narrative as truth. Thus, he asks us to accept as fact his own assertion that the dogs growled when they came toward him. Similarly, he provides police training documents regarding encountеrs with dogs and asks us to extrapolate from these documents when it is reasonable to conclude a dog poses a threat to an officer. Such use of documents outside the pleadings goes far beyond what we can consider at this stage of the litigation.
The remaining evidenсe consists of two videos capturing different views of Mays‘s encounter with the dogs. One is from the home security camera and the other is from Mays‘s body camera. Both videos clearly show the shootings. But neither has audio. So, we cannot ascertain whether the dogs were growling at Mays аs he claimed in his police report. More important, neither video depicts the dogs’ behavior leading up to the shootings in a manner entirely inconsistent from the allegations in the complaint. We simply cannot conclude from the videos that the dogs presented an objectively legitimate and immediate threat to Mays.
At this preliminary stage of litigation, the videos are insufficient to decide whether shooting the dogs was reasonable under
III. Conclusion
For the foregoing reasons, we affirm the district court‘s denial of thе motion to dismiss.