McClendon v. Story County Sheriff's Office

McCaskey; Rogers; Brenda that Askew was Sue tence, we will conclude Defendants-Appellants, challenge plain his error prejudiced, original then affirm will must fail. We Denny Atkinson, Deputy; Upchurch; See sentence, it is reasonable. provided Deputy; Watson, Deputy; McKinney, — -, Booker, (citing id. Thomas, Deputy, Defendants. No. 04-1954. hand, if the court district On the other sentence would that a different decides Appeals, Court of United States ex- pursuant its appropriate have been Eighth Circuit. discretion, will vacate “we greater ercise of Nov. 2004. Submitted: re- and remand for original sentence April Filed: Paladino, sentencing.” Regardless *10. 2005 WL court decides resen-

whether the district Askew, by the the court should abide tence pro- forth Paladino process we set for its de- explanation an appropriate vide cision. See id.

III. Conclusion Because we find no merit his appeal, raises on arguments Askew Apfiemed. As to Askew’s conviction is however, sentence, a limited re- we order in accordance with mand of this case by this circuit procedure adopted remedial The district court directed Paladino. completion this case to us at the to return determination, pursuant sentencing of its forth Paladino. procedure set Cyndi McCLENDON, Plaintiff-

Appellee, OFFICE; STORY COUNTY SHERIFF’S Story County Fitzgerald; An Paul H. Department; Defen imal Control dants,

LAY, Judge. Circuit originated alleged as a claim This case public pursuant officials against several Cyndi § 1983. Plaintiff McClen- U.S.C. don claimed that the Defendants violated rights by seizing her Fourth Amendment in not identified the relevant search items The issue is whether the district warrant. partially denying in the Defen- court erred summary be- judgment dants’ motion for cause it concluded that a issue of Animal material fact existed as to whether McCaskey Officers Sue and Bren- Control entitled to immu- Rogers da were nity. Allegations against public all other officials named as Defendants were dis- by the missed district court. We reverse the decision of the district court and hold McCaskey Rogers and were entitled qualified immunity. We affirm the dis-

missal of all other Defendants. Background

I. June, May, July numer- and complaints reports and of animal ne- ous glect were made to various animal welfare including Story County Iowa’s agencies, Department. Animal com- Control These plaints alleged the horses owned neglected, starving, very McClendon ill, county roaming large proper- at on ty. Rogers permis- obtained on inspect property

sion to the McClendon horses; They June found loose thirty-seven pens; horses in over-crowded highly barnyard conditions in- dangerous shelters, collapsing ma- cluding excessive nure, fences, dangerous debris broken McNulty, argued, Patrick J. Des wire); posts, (e.g., protruding metal barbed Moines, IA, appellant. for conditions; despite a lack of water hot argued, L. Herring, Victoria Des signs of serious illness. See Moines, IA, appellee. for (“McCaskey Aff. Aff. dated June 1”) 27; Jt.App. Rogers passim

No. MURPHY, LAY, MELLOY, 2; on Before Aff. at Order Cross-Motions (“Order”) Summary Judgment at 2-3. Judges. Circuit prevent to be needed certain were that seems impressions “first The Officers’ malnourished,” many death in of them. includ- entire herd mares and foals. See ing pregnant some McCaskey Aff. No. at 65. War- Attached to Search

McCaskey Aff. horses, to the entire herd of Referring 2”) (“McCaskey Aff. No. Application rant support letter Houlding’s Aff. at 3. McClen- Jt.App. stated that animals are “[t]hese warrant caring for person the sole don was and some showing signs neglect definite equipment or herd, lacked the yet she abusively neglected.” Hould- appear to be for the herd. necessary to care supplies July (“Houlding ing Letter dated the horses al- she fed claimed Letter”) Jt.App. at 53. She described hay, find could not because she falfa cubes (a strangles deadly “rampant outbreak” of feed' of sort was no horse but there respiratory disease highly contagious time, Animal Con- at that property horses), in noted the herd received no informed that already been trol had Houlding for the disease. Id. treatment failure to hay for was denied “in immi- eight of the horses as identified bills. pay her due nent need of intervention” to severe gen- a starvation. Id. She also described weeks, McCaskey and five the next Over food; having several horses eral lack of prop- visits Rogers made additional attention, in- injuries warranting medical unchanged. conditions erty and found the (i.e., hock lower cluding one with a serious July the Officers Finally, on water; and leg) injury; hind insufficient Snider, Inspec- a Livestock Nicole brought barnyard Houlding conditions. dangerous Agricul- Department Iowa tor for the generally that the entire herd was opined D.V.M., Houlding, ture, Dr. Kim D. care, “inadequate inade- neglected due to to McClendon’s pursuant the herd inspect feed, control, igno- improper disease quate Property Photographs consent. See practices feeding and nutrition rance of 19-26, 33-42; Jt.App. in and Horses ” Houlding recommended .... Id. at 68. in at 54-56. Jt.App. photographs water until should be removed “all the animals can be made proper arrangements inspection, McCas- July on the Based Id. their care or sale.” warrant. McCas- key applied for search and a letter key her affidavit submitted Dr. McCaskey and echoed Snider of the warrant. Houlding support Dr. “all of the opined Houlding. She recounted the facts McCaskey’s affidavit of care consis- being deprived horses were above, following and added stated husbandry customary animal tent with regarding her observations statement necessary deprived of suste- practices, and 12th visit: July Aff. at 2. nance.” Snider July a search warrant By are in eminent dan- At least 6-8 horses Houlding’s letter and on Dr. issued based supportive and 10-12 more need ger, Application for McCaskey’s affidavit. See strangles .... them from care to save Warrant, Warrant, and At- Search Search risk, but horses there are All of the at 58-68. The war- Jt.App. tachments older, horses who seem larger that: rant stated hay, seem to be consume most of the me [the made before Proof has been better than the fairing much [sic ] law, on this mares, horses, magistrate], provided lactating colts smaller that are ... a number of horses day that sickly Removing otherwise ones. of critical in immediate need sick and supportive care of the herd for 2/3 care, necessary prevent horses are either ex- all the horses “was These [sic] neglect.” further Id. Dr. con- of a disease known as hibiting signs Story “recommended to curred. She strep infection conta- “strangles”, [sic ] County Animal [the Control 23 horses horses[,] or are weak and among gious entirety remaining of the be rescued herd] malnourished. Aff. at premises,” Houlding from the au- Accordingly, the warrant Id. at 60. “[t]wenty-three peace state officer thorized being deprived identified as of care consis- of ... make immediate search [T]o customary husbandry animal tent with including any of grounds acreage practices, deprived necessary suste- ... outbuildings garage to lo- id.; at 7. The nance.” See Order Officers any horses found on the cate and seize proceeded “[t]wenty-three to seize described condi- property the above ... ... Kim pursuant to the advice of Dr. outbuild- grounds, tion. To search the Houlding, D. Aff. at D.V.M.” to determine there ings and house McCaskey Aff. No. at 5.1 horses, are other fowl or exotic birds Thereafter, McClendon filed this lawsuit dying. distress § con- pursuant U.S.C. 1983. She Id. at 60-61. valid, ceded the search warrant was Defendants, July On argued that Defendants exceeded the Snider, Deputy Houlding, Nicole Sher- scope twenty- of the warrant because all property iffs arrived at McClendon’s to strangles, three horses were not sick with execute the warrant. Two unfortu- search weak, or malnourished. Defendants as- First, nate awaited them. two surprises alia, serted, they inter were entitled bloating died. Their carcasses horses had qualified immunity from suit. separated not from the herd. One parties brought Both motions for sum- pile, tossed in a manure its carcass was mary judgment before district court. legs protruding stiffly out of the mound. The court denied Plaintiffs motion its not covered and its The other carcass was entirety granted Defendants’ motion mul- conspicuously head was afflicted with everyone except McCaskey Rog- as to (the tiple oozing abscesses mark of stran- ers, only Animal Control Officers. gles). Photographs of Carcasses in See Performing two-step qualified immunity a Second, Jt.App. at 69-72. McClendon ad- Katz, analysis pursuant to Saucier v. 533 in- mitted she removed some of the most 121 S.Ct. 150 L.Ed.2d 272 herd, firm from the not in an at- horses (2001), the court held a first fact-finder tempt to obtain medical care for them or patently could conclude that Defendants nourishment, provide solely better scope exceeded the of the warrant because being thwart them from seized. See Order suggested evidence that the Defendants’ at She refused to reveal their location. seizing motive for all the horses towas scene, On the Nicole Snider “observed punish removing McClendon for some of not that the condition of the horses had prior seizure. See Order improved” prop- Second, to the since her last visit 20-21. the court found a erty ago. McCaskey’s one month Snider Aff. at 3. She Rog- issue as to whether opined clearly “all of ... were the horses ers’ conduct violated a established strangles,” right they and that rescue of constitutional knew or carriers § required prior a 1. Iowa Code 717.2A consultation with licensed veterinarian to seizure.

515 Saucier, ... 533 situation confronted.”3 twenty-three known that have should 2151 add in the U.S. at S.Ct. not fit horses did ed). clearly not violate a Conduct does id. at 31-32. warrant. See search in right “plainly unless it is

established Qualified Immunity II. knowing a violation of a competent” or clearly precedent. established a denial of This court reviews id. at 533 U.S. Tuggle v. immunity de novo. See qualified (“[Reasonable mistakes can S.Ct. Cir.2003). (8th 714, 719 Mangan, 348 F.3d legal constraints on be made as to the immunity question a of law Qualified is If offi particular police conduct.... iri threshold issue of fact. The question requires cer’s mistake as to what the law is analysis is whether immunity reasonable, the officer is entitled to in a most favorable the facts viewed defense.”); see also Smith actor’s the state plaintiff2 show (8th Aldrich, son v. constitutional or violated a federal conduct .2000). Cir (citing at 720 Sauc statutory right. See id. ier, Ill; A Violation of Constitutional Amendment case of a Fourth the context Right seizure, the ini an unreasonable alleging (1) an examina analysis simply entails tial subjective An intent is officer’s (2) an text of the tion of the question of whether her irrelevant conduct, of the defendants’ examination a constitutional or his conduct violated as to whether a determination scope of a warrant. right by exceeding the terms of the war exceeded the conduct Indeed, subjective intent an officer’s rant. a Fourth Amend relevant under never objective an analysis, long a ment so basis analysis results in If the initial Saucier, 533 for the seizure exists. See official’s conduct indeed conclusion that the 210, (emphasizing at 121 2151 the second U.S. S.Ct. the then exceeded (violated) underlying or motive are right that intent whether the step is to ask rather, ques “the inquiry; Tuggle, 348 relevant “clearly established.” was are Saucier, officers’ actions tion is whether the (citing at 720 F.3d 2151). relevant, in of the facts ‘objectively reasonable’ 201, “The dis- 121 S.Ct. them.”) (J. confronting circumstances determining inquiry whether positive in citing Graham Ginsburg, concurring is whether it clearly established right is Connor, 109 490 that v. U.S. to a reasonable officer would be clear (1989)).4 Yet, 1865, the in 104 L.Ed.2d 443 the conduct was [or her] his unlawful wrong applied test. Rogers it premised a Fourth is on 2. Because this claim violation, equally ob- "a They the court is the correct test is whether Amendment claim situated, adjudicate officer, facts an “on- ligated to from identically could reasonable taking perspective,” into consideration scene Brief have believed the conduct lawful." everything Officers knew that the Defendant (citing Appellants at 8.1 for seizure, then the search and at the time of pro- Defendants' evaluating constitutionality the Defen- majority’s posed not match the standard does perspective of a rea- conduct from the dants' above). holding (quoted in Saucier Saucier, 533 U.S. at officer. See sonable 205, 121 S.Ct. 2151. standard, in- long been the for 4.This has stance, cases Amendment search in Fourth argue district court de- that the 3. Defendants that an officer's claimed wherein defendants to nied care,” as to cal id. at but it defined horses in found a issue district court by desig- critical violation occurred “immediate need of care” whether a constitutional possible nating the Defendants’ them as “horses are either solely [that] based subjective exhibiting signs See Order at 20. Even of a disease known as the intent. assume, arguendo, ‘strangles’, or are weak and mal- [sic ] we added). solely to the entire herd seized nourished.” Id. As attempting noted, in punish description district court “[t]he seizure, negate cannot thwart the this descriptions the warrant track[ed] professionals, affidavits,” uncontested fact two in supporting set forth Snider, Dr. Nicole recom- Houlding and which meant that “the execution of the this mended removal of all the horses. On subjective for a determina- warrant called alone, legal basis the decision of the dis- descrip- tion as to which animals fit the trict court warrants reversal. tion.” Order at 19. identify Because the warrant did not hold that the Defen

We also seized, exactly many how horses should be dants did not violate McClendon’s constitu instead described the horses to be rights tional because the horses seized fit disease, wellness, body using seized Adjudica description the warrant. criteria, imminently condition it was rea- fit within the tion of whether items seized rely sonable for “ultimately upon turns on the Officers warrant’s professional opinions Houlding the substance of the items seized ‘and not ” assigned determining the label to it which [McClendon].’ Snider (5th Hill, According opinions, United 19 F.3d seize. to their States Cir.1994) Word, (citing description applied entirety States v. warrant United (6th Cir.1986)); In Dr. Houlding’s see also seized herd. Reyes, supporting application, United States v. 383 letter the warrant (10th Cir.1986) opined (stating that seizure of she that the entire herd suffered care, feed, specific generic “inadequate inadequate item characteristic of a from accept improper ....” [and] class mentioned the warrant disease control able). Here, the warrant authorized sei Letter at 68. recommended She horses,” zure of that “all the “any Warrant animals should be removed of criti- until proper arrangements were “sick and immediate need can be made "Teriy” stop protective legal justification” search was moti- coincide with the for the States, by pretext. vated As this circuit has held: search. Scott v. United 436 U.S. 128, 138, 98 S.Ct. 56 L.Ed.2d 168 ... protective a [of The ultimate test whether Connor, (1978); Graham cf. pat-down supported by search is reasonable 109 S.Ct. 104 L.Ed.2d 443 suspicion] searching is not what the officer (“An ... officer’s evil intentions will actually hypothetical a believed but what not make Fourth Amendment violation exactly the same circumstances officer objectively out of an reasonable use of force reasonably Su could have believed. The ....”) ... These cases thus foreclose [the] States, preme Court in Whren v. United argument otherwise-justified ... that an 135 L.Ed.2d and seizure search violates the Fourth .(1996), example, 89.. for ruled that an offi legal justification Amendment because the "subjective play cer's intentions no role in simply pretext ... for law-enforce- ordinary, probable-cause Fourth Amend investigate ment officers to their analysis.” hunches ment Id. at 116 S.Ct. 1769. Supreme ... Whren and other Court cases Roggeman, United States v. 279 F.3d proposition stand the that under Fourth (8th Cir.2002) (some analysis consequence n. 5 citations Amendment it is of no internal omitted). "that the did not motivation for the search (7th Cir.1992)). add- concept care or sale.” Id. The for their ed); (describing Houlding Aff. at 3 also of a “narrow construction” is a see convention necessary of suste- “deprived jurisprudence herd legal of and would be an nance”). “all of the opined also Snider demand to law place upon unworkable en- ... being deprived of neces- horses were and the experts they forcement with whom sustenance,” sary (empha- Snider Aff. at consult. added), that “all the horses

sis of (em- strangles.” of Id. at 3 were carriers McClendon claims that since she added). that an ani- phasis The statement horses, removed the most infirm it is obvi feed” or is “inadequate mal from suffers that the remaining ous necessary is suf- of sustenance” “deprived healthy and that Defendants exceeded the as a ani- qualify ficient to “malnourished” scope purpose of the warrant for the of legitimately cannot chal- mal. McClendon retaliating against strongly her. We dis lenge Defendants’ decision to seize the seizure, agree. At the scene Dr. label descriptive the horses because the Snider, Houlding, McCaskey, in the warrant was not identical used remaining that never stated the horses McCaskey Dr. or that used healthy beyond otherwise the Hill, at 988. Rogers. See Indeed, scope of the warrant. two horses just had died. The district court relied a clear These statements establish heavily transcripts from an Iowa state the seized and nexus between horses disposition court of McClendon’s livestock yet fails description, warrant documenting McCaskey’s purportedly ad Instead, construes to address them. she mission that she the time of knew—at narrowly, arguing warrant of failed to seizure—some the horses fit terms express warrant’s and the substance the warrant Order description.5 See (i.e., attachments the two warrant n. Partial Tr. of Proceedings 31-32 & affi Houlding’s McCaskey’s Dr. letter and Story County in the Iowa Dist. Ct. for davit), upon only focus a removal of some (“S.C.Tr.”). But transcript does not them, horses, not all of and that this con actually support such an admission. At disagree. clear. That struction is We counsel interro proceeding, Plaintiffs plain language contradicts construction gated and counsel claimed that its attach supporting of the warrant and exhibiting signs several horses were not ments. The warrant authorized seizure strangles, malnutrition or then asked fitting “any horses” McCaskey, that correct?” S.C. Tr. “[I]sn’t quantified the to be seized. never at 76. did not concede this McCaskey’s Although affidavit and ground. She maintained her belief that num Houlding’s quantified letter both exhibiting signs of the horses were several clearly die with ber of horses would however, explained, She intervention, illness. not they out immediate did all of personally she did examine stop They ultimately there. recommended signs of Second, “[w]e horses for illness because offi seizure of the entire herd. trying things to do “not were several executing a search warrant are cers stated, McCaskey “I same time.” Id. also interpret narrowly.” See obliged to it (3d Stiver, good any call the horses wouldn’t United States Cir.1993) O’Hearn, I’m say not a vet. would (citing Hessel v. condition.... actually Although point evidence here its substance 5. the district court raised this since analysis. step step analysis, we address to one of the Saucier two of its Saucier related thin, they they probably divulge were would not which were all animals had location, all horses.” Id. removed or their [sic] not malnutritioned been current deputies’ Dr. Houlding’s reliance on hold, law, as a matter of this testi- We determination was all the more reason- mony does not constitute an admission able. McCaskey knew on-scene that some of the horses seized did not fit within the at 27. Order First, description. warrant’s the warrant The court district did extend this require did not all horses seized to be reasoning McCaskey to Rogers. and Be- Second, malnourished. even there was Officers, they Animal cause Control discrepancy some between the Officers’ apparently the court assumed McCas- experts’ opinion body their on and key Rogers great and a knew deal about horses, condition of some of the it was health, equine jus- and therefore were less rely experts’ reasonable to on the recom- in relying Houlding’s exper- tified on Dr. all, McCaskey’s mendation. After compared tise as to the other Defendants. Rogers’ impressions “first were that absolutely See Order 31. There was no entire herd was malnourished.” McCas- assuming McCaskey basis for key Rogers Aff. No. Aff. at 3. Rogers possessed expertise equine on McCaskey’s testimony regarding lay her health. The record reveals that both Offi- conditions, opinion body of the horses’ of- horses, cers own but this makes them no punctuated post fered ex disclaim- veterinary of a expert more than the aver- er, does not evidence violation of a consti- age dog owner. See Tr. at S.C. right. tutional Rogers Even if possess did One must also note that McClendon’s a knowledge, legal lot of there was no preemptive removal of twelve horses com- holding higher legal basis for them to a plicated process the seizure because the standard than the other Defendants. verify Officers and others could not which Clearly the best course of action was to thirty-seven previously examined rely on professional recommendation missing or their condition. of a third party licensed veterinarian on The court acknowledged district the com- scene, personal not their impres- own plications brought McClendon’s sions, obviously which could be attacked at preemptive removal as it discussed other subsequent hearing lacking veterinary as Defendants involved the seizure. Moreover, expertise. § Iowa Code 717.2A objectively required The Court finds it was rea- consultation with a licensed vet- Upchurch prior sonable for and Atkinson erinarian to rescuing neglected [two live- deputies] sheriffs believe the hors- stock. We will not bar es should be seized. The duties of sher- from the benefits of im- deputies typically require munity they iffs do not followed the law of health; knowledge therefore, of equine jurisdiction their and obtained a veterinari- expertise reliance on the opinion, licensed an’s reasonable Animal veterinarian to determine which animals Control Officer would. The district court’s fit set forth in finding deputies’ the search that the reliance on Dr. objectively Houlding’s warrant was expertise reasonable. was “all the more McClendon obscured the identification in light reasonable” of McClendon’s efforts seizure, subject of which animals were seizure thwart the see Order at by removing anticipa- equally applicable McCaskey twelve of them in Rog- tion of the seizure. Since McClendon ers.

519 above, clearly con- at the time of established the of the McClendon’s light Id.; actions.” challenged and the see also Behrens rights were not violated stitutional Pelletier, 299, 306, 116 ends here. v. 516 U.S. S.Ct. inquiry qualified (1996); 834, RE- is 133 Johnson of the district court L.Ed.2d 773 v. judgment The Jones, 2151, 515 115 to U.S. S.Ct. VERSED (1995); 238 of 132 L.Ed.2d Nebraska v. AFFIRMED as the dismissal Beef (8th 1080, Greening, 398 F.3d 1082-83 Cir. other Defendants. 2005) (discussing jurisdictional the limits MELLOY, concurring Judge, Circuit Johnson, Mitchell, prescribed Beh- dissenting. ). rens I dissent because believe respectfully I Thus, ask, first, our is “[t]aken task qualified denied properly the court district party the most favorable to the as- Rog- immunity to officers injury, serting alleged the the facts do affirmance majority’s the ers. concur officer’s violated a con- show the conduct defen- remaining of the of the dismissal Saucier, right.” stitutional dants. 201, 121 2151. I S.Ct. believe McClendon easily. first clears this hurdle undergo a by majority, the we stated

As intentionally officers alleges that exceeded when review a denial two-step process we outset, scope by seizing healthy the of the warrant immunity. we of At the qualified true, If this is then allegation horses. the the facts as asserted determine whether conduct violated McClendon’s con- officers’ conduct plaintiff “show the officer’s the rights. Odyssey, Audio Ltd. v. stitutional v. right.” a constitutional violated Saucier Bank, 721, First Nat. 194, 201, 121 2151, 150 Brenton Katz, 533 U.S. S.Ct. Cir.2001) (“A (8th (2001). property of no, 736 seizure is 272 If the answer L.Ed.2d unsupported by that is a warrant other is inquiry. the If the answer that ends is presumptively court order unreasonable yes, go on to determine “whether we meaning of the Fourth Amend- within right clearly Id. The established.” ment.”). Assuming version McClendon’s right was deciding test whether a must, correct, is she of the facts as we has be clearly is it would established “whether violated the officer’s conduct “show[n] that his [or clear to a reasonable officer Saucier, right,” 533 U.S. at constitutional was unlawful in the situation conduct her] 2151, move on to 121 S.Ct. and we 121 Id. at he confronted.” [or she] part of the inquiry. second under inquiry 2151. “This must be ” ‘proper sequence.’ Littrell taken majority appears point, At one (8th Franklin, v. 582 Cir. limited in inquiry the initial recognize 2004) U.S. at (quoting (“In way. Opinion at (Majority this 121 S.Ct. of a Amendment case the context Fourth seizure, the ini- alleging a denial immu- an unreasonable appeal An of (1) simply an examina- analysis entails nity not concern “the correctness tial does (2) warrant, facts, an nor even tion of the text version plaintiffs conduct, of the allegations actu- examination Defendants’ plaintiffs ... whether the Forsyth, a determination as to whether that a claim.” ally state Mitchell of the war- 86 conduct exceeded the terms rant.”).) However, (1985). opinion goes analysis is limit- Our L.Ed.2d length legal whether the ed of law: whether the discuss question to “a scope defendant in fact outside allegedly violated norms 520 actions”).

various statements made about the horses officer at the time of his [or her] times, likely and the levels of will affirm the a qualified “[W]e various denial of knowledge the individuals involved had claim if there exists a view, equine my health. much of issue of material fact concerning about the offi analysis majority inap- knowledge done the is cers’ or if moving party propriate prong of not qual- judgment under first entitled to as a matter of immunity analysis, Lyles, ified which is confined law.” 181 F.3d at accord (8th 1124, determining Vaughn Ruoff, whether a constitutional vi- v. 253 F.3d 1127 . Cir.2001) facts, Thus, olation could be shown all the though we assess the presented by plaintiff, are true. of reasonableness the officers’ actions from objective an standpoint, taking we do so Our second task is to determine whether “specific into account the context of the a reasonable officer would know the sei case,” including knowledge. the officers’ unlawful, zure of the “in light horses was 201, 533 U.S. at 121 S.Ct. clearly of established law and the informa that, searching case, tion I possessed.” officers believe in this there is an Creighton, Anderson v. 483 predicate issue of material fact as to the (1987). 107 97 L.Ed.2d At surrounding qualified immunity, 523 facts summary judgment stage, namely, the burden what the officers on the scene proof of moving party, seizing is on the so the knew when the horses. It is undis- party seeking immunity puted must establish the that a veterinarian on the scene predicate City relevant facts. Pace v. recommended removal of all the horses. of (8th (Affidavit Moines, DVM, Des 201 F.3d 1056 of Dr. Kim Houlding, Cir. D. predicate Jt.App. “Once the facts are es 17. (“Twenty-three horses were tablished, the reasonableness of the offi being deprived identified as of care consis- cial’s conduct under the circumstances is a tent customary with animal husbandry Serrell, question practices, of Tlamka v. 244 deprived necessary law.” -and of suste- (8th Cir.2001); F.3d accord Accordingly, nance. I recommended to McVay McVay ex rel. Estate v. Story County Sisters Animal Control that 23 hors- of Mercy System, Health 399 F.3d es be rescued from premises.”).) The (8th Cir.2005). 497180, *2 majority 2005 WL states that this fact alone dictates “In a genuine dispute the event that- exists officers are entitled to immu- concerning predicate nity. respectfully facts material to the disagree because the issue, qualified immunity exchange the defendant is details of the are unknown. summary judgment entitled to on that The search warrant allowed for removal Pace, ground.” 201 F.3d at 1056. of horses that were “sick and in immediate “[Pjublic (Search permitted officials are claim need of critical care.” 60) appeal objective that their actions Jt.App. The warrant described these ly knowledge reasonable their horses as exhibiting signs “either of a dis- the time of the incident.” Mueller v. ease known “strangles” as the ... or ... Tinkham, (8th So, Cir. weak malnourished.” Id. for a 1998); seized, see Lyles City Barling, legally also horse to be it needed to be (8th Cir.1999) (“A (1) law “sick and in immediate need of critical (a) enforcement officer to qualified is entitled care” and either exhibiting signs of (b) immunity from suit for actions that are “strangles” weak malnour- added). objectively in light clearly reasonable ished. Id. If the de- established law and the facts known had fendants shown Dr. had weak, mal- of the warrant and told the officers on the that all the stated nourished, need of criti- that horses all fit the of and in immediate scene terms care, alternatively that all cal this is not shown but strangles of the showing signs Instead, were evidence before us. the evidence of critical and in immediate need were sick shows that the veterinarian on the scene care, they that should be and therefore deprived were of “neces- found the horses seized, join majority’s grant in I would sary substenance” and “care consistent cir- immunity. Under those qualified of customary husbandry prac- with animal cumstances,! majority with the that agree view, my this observation is not tices.” for the imminently “it reasonable Offi- was enough close to the terms of the warrant opin- rely upon professional cers to reasonably rely for officers to on it in in Houlding determining Dr. of ion[ ] seizing agree all the horses. with the (Majority Opinion which horses to seize.” majority reasonably that the officers could 516.) circumstances, it Under such rely that did not recommendation to a reasonable officer would not be clear language match the warrant verbatim. unlawful, that his or her behavior was However, this is not a case which of the seized horses were even some terms expert slightly used different would be entitled healthy, and the officer required essence made the observation immunity. qualified seizure. This is a case in which the veteri- However, have not made the defendants quality narian found a sub-standard of care Instead, we showing that this case. available, enough and not food when the Houlding Dr. that from have a statement (1) required warrant the horses be sick (the passive identified” the horses “were and in immediate need critical care and making it unclear whether she was voice (a) showing signs either of the stran- identification) being doing the “as the one (b) gles or weak and malnourished.6 customary consistent with deprived of care Thus, question I believe there is a deprived husbandry practices, animal material fact as to what the officers knew It for this necessary sustenance.” scene, is, Houlding Dr. on the what Houlding that Dr. recommended reason the horses and how this told them about removal, according to her statement. their up matched with the terms of the warrant. Houlding that Dr. and not assuming Even facts that Adding uncertainty are the horses other individual identified some the horses suggest that the officers knew such, of the horses dur- description her anyway, them healthy, but seized not were of the warrant does ing execution McClendon had moved perhaps It is description the warrant. match the their arrival.7 some of her horses before Houlding scope that Dr. knew the possible it, simply empower finding before and it chose not to support that all the horses 6. As for its horses, but seized, to rescue all of the the officers majority properly offers were only particular horses in a instead to rescue Houlding "all the ani- of Dr. statement had condition. This shows Dr. arrange- proper mals should be removed until opinion be seized that all horses should for their care or sale.” ments can be made the warrant was issued and be- even before 516-517.) Opinion (Majority I would find set, not that she believed fore its terms help to the defen- that this statement is of no they the terms of the warrant. all fit appears in dants’ case because this statement Houlding and attached a letter written Dr. dispute also raises the issue 7. This fact application. The court that to the warrant We that willful violations of willfulness. note subject of the horses to be drafted the are not law "Qualified immunity protects 'all protection. Houlding’s had recommendation seized they McCaskey testified that “loaded them SLAVIN, Appellant, Anna M.

up didn’t want more ani- because we disappearing.” (McCaskey testimo- mals 217.) ny, Supp. Jt.App. p. First She America, UNITED STATES of protection also testified that “for the Appellee. had been horses and because others No. 04-2225. moved, (McCaskey we removed them.” testimony, Jt.App. (emphasis add- Appeals, United States Court of ed).) addition, footage the video sub- Eighth Circuit. exchange mitted an shows between Submitted: March 2005. during McClendon and one of the officers the execution of the search warrant. April Filed: says that Notice stated only the sick would be seized replies, going and the officer “We disease, showing signs

take the ones but showing greatest signs the ones disappeared.” disease have above, As stated “we will affirm the denial of a claim if there exists a issue of material fact concerning knowledge.” the officers’ Lyles, 181 at 917. believe these

facts, taken in the most favorable to

McClendon, a genu- are sufficient leave ine issue of material fact knowl-

edge the officers had on the scene. This precludes finding summary judgment stage. this

I would affirm the district court’s denial qualified immunity as to Rogers. I would also affirm the dismissal

of the other defendants. plainly incompetent Briggs, or those who 106 S.Ct. knowingly (1986)) added). violate law.’" L.Ed.2d 271 (quoting Malley U.S. at

Case Details

Case Name: McClendon v. Story County Sheriff's Office

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 4, 2005

Citation: 403 F.3d 510

Docket Number: 04-1954

Court Abbreviation: 8th Cir.