CINCINNATI (CN) – A Michigan police officer who shot and killed a dog during an attempt to apprehend someone who lived in the same building as the dog’s owners argued before a Sixth Circuit panel Tuesday he is entitled to qualified immunity on excessive force claims.
Dashuna Richards and Eddie Harris were the owners of Kane, a full-grown pit bull, and lived in a quadplex building in Jackson, Michigan, described in court documents as a multi-unit dwelling without a common area typically found in such properties.
As such, Richards and Harris were the only tenants with access to the foyer of their unit, and each unit of the building had its own distinct entry and exit.
The layout of the building is particularly important to the case, as Jackson Police Officer Matthew Peters believed he had arrived at a typical multi-unit home when he sought to apprehend Donte Cox, who lived at the property and was believed to be a threat to himself and others.
Richards was at a hotel when Peters arrived, and the police officer inadvertently entered Harris’s residence when he opened an unlocked screen door and attempted to locate Cox.
Peters knocked on the wall, to which Harris – who was upstairs playing a video game – responded, “Who the fuck is it?”
Peters identified himself as a police officer, and immediately thereafter Kane began growling and barking, and ran down the stairs towards Peters. Patrol car audio captured the majority of the incident, and six seconds after Kane was first heard, Peters shot and killed him.
The officer initially claimed he had been bitten by the dog, but later testified in a deposition that Kane did not actually bite him, but he was biting at his feet.
Harris and Richards sued Peters and the city of Jackson in federal court, alleging Fourth Amendment violations for the officer’s entry into their home and subsequent shooting of Kane.
U.S. District Judge Linda Parker denied Peters’ motion for qualified immunity last year, ruling a factfinder such as a jury would have to determine whether it was unreasonable for Peters to assume the home was a standard multi-unit dwelling when he entered it.
Peters’ immunity regarding the seizure of Kane was also dependent on the issue of whether he was lawfully in the residence, and Parker refused to dismiss the claim.
“Defendants argue that plaintiff Harris made no effort to restrain Kane. However, there were six seconds from the moment Kane is heard barking until Officer Peters’ fired his weapon,” the judge wrote.
She continued, “Further, although defendants maintain that Officer Peters told Harris to get his dog, this is not heard in the audio, creating a disputed fact. Therefore, whether a reasonable jury could find that Kane did not attack Officer Peters, and Officer Peters acted unreasonably when he failed to give plaintiff Harris an opportunity to contain Kane prior to shooting and killing him presents a genuine issue of material fact, which should be determined by the factfinder.”
Attorney Mary Massaron argued Tuesday before a Sixth Circuit panel on behalf of the city and Peters, focusing on the issue of qualified immunity.
She spoke at length about the layout of the residence, and called Peters’ entrance into the apartment, “at worst, a reasonable mistake.”
“It doesn’t look like you’re in someone’s house,” the attorney said. “When you enter, all you see is a stairway.”
U.S. Circuit Judge Eric Clay asked Massaron if the legality of the officer’s entrance into the apartment would change the analysis of the subsequent shooting.
“That would not alter the outcome with respect to the shooting,” she replied.
The attorney argued that pit bulls are “notoriously dangerous” dogs and even Kane’s owner, Harris, admitted the dog was “ready to bite.”
Chief U.S. Circuit Judge R. Guy Cole Jr. asked how the scenario would have played out if Kane had been a 25-pound Cocker Spaniel. He reminded Massaron that Peters had “no warrant, no consent, [and] no exigent circumstances” to justify his presence in the home.
Massaron told Cole that courts “across the country” have held pit bulls are a dangerous breed of dog, and that while the substitution of a lap dog might change things, “the pit bull makes it an easy case.”
Attorney Shawn Cabot argued on behalf of Richards and Harris, telling the panel it would be a “dangerous course to carte blanche allow the shooting of a pit bull.” Cabot said “none of this would have happened” if Peters had not entered the residence through the screen door, which he claimed was latched at the time of the incident.
The attorney commended the district court for its decision-making process, and told the panel that the majority of the issues should be decided by a factfinder.
Judge Clay asked Cabot if he was arguing that an officer being attacked by a dog could not defend himself if he had entered a residence illegally.
“First of all, he was not being attacked,” the attorney answered.
Cabot cited the lack of any medical treatment for a bite, and noted that there wasn’t even a rip in the officer’s pants following the incident.
Judge Cole echoed Cabot’s line of thinking toward the end of the argument, and said the case seemed to present a “classic issue for a jury to decide.”
Senior U.S. Circuit Judge Eugene Siler rounded out the panel. No timetable has been set for the court’s decision.