CINCINNATI (CN) – A pair of squatters whose three dogs were shot and killed by Detroit police during the execution of a search warrant argued Wednesday in the Sixth Circuit over a federal judge’s decision to dismiss their case against the city and several of its officers.
Nikita Smith and Kevin Thomas were suspected of dealing drugs out of a house in which they were squatting in January 2016, and police executed a search warrant on Jan. 14.
The officers had been told by a confidential informant there might be a “small dog” at the residence. In fact, there were three unlicensed dogs at the home, including two pit bulls and a rottweiler.
According to court documents, Smith tried to secure the dogs when the officers announced their presence at the home, but they escaped shortly after the search was initiated.
Debo, a grey pit bull, was shot by Officer William Morrison when the dog charged at him as soon as he entered the home.
Smith initially attempted to control the dog, but he escaped again, and was shot at least seven times by Officer Bashawn Gaines.
As police moved to clear the residence, they discovered another dog, Smoke, in the bathroom.
Officer Morrison quickly shut the bathroom door after he realized the dog was inside, but, according to the officers’ testimony, “Smoke then opened the closed bathroom door by himself.”
The rottweiler “became trapped between the inward-opening door and the vanity in the bathroom,” and was shot by the officers before he could break free, according to court records.
Mama, an 18-month-old pregnant pit bull, was shot on the staircase to the basement, after she began to climb the stairs and allegedly showed her teeth to Officer Ryan Paul.
Smith was arrested after over 25 grams of marijuana was discovered at the residence, but the charges were eventually dismissed.
Smith and Thomas filed a civil rights lawsuit against Detroit and numerous police officers, but U.S. District Judge George Caram Steeh sided with the defendants.
Judge Steeh determined that because the dogs were unlicensed – a criminal misdemeanor in Detroit – the animals were considered “contraband” and, therefore, not protected by the Fourth Amendment.
“Two pit bulls and a rottweiler,” Steeh wrote, “present a danger to the public similar to an unregistered gun. … Had Thomas and Smith licensed their dogs, the police may have had advance notice that they existed.”
Judge Steeh also concluded that, even if Smith and Thomas had a possessory interest in the animals, the officers were entitled to immunity, as the shootings were objectively reasonable because the dogs posed an imminent threat to the officers who shot them.
Attorney Chris Olson argued on behalf of the dogs’ owners Wednesday and told a Sixth Circuit panel that his clients were entitled to a hearing before the city could consider the dogs contraband.
U.S. Circuit Judge Alice Batchelder questioned Olson as to whether unlicensed dogs are considered a nuisance under Michigan law.
Olson admitted they are, but argued that the Michigan Dog Law of 1919 – which used to require a sheriff to destroy unlicensed dogs – was amended to prevent such killings.
He stressed there is “not a single word” in the case record about whether the officers who shot the animals knew they were unlicensed.
Attorney Sheri Whyte represented Detroit and argued that “the logic of this [case] is inescapable.”
“This was a warranted drug raid,” she said. “The dogs were an imminent threat.”
Whyte argued that ownership of the dogs is not an issue, but that there is “no legitimate possessory interest for the purposes of the Fourth Amendment.”
The attorney made an analogy to a citizen who owns a hot dog stand, and explained that the hot dog stand itself is not illegal, but that selling a hot dog from the stand without a license is illegal.
U.S. Circuit Judge Jeffrey Sutton latched onto the analogy, and asked the attorney if a police officer who purchased a hot dog from an unlicensed vendor who happened to have an unlicensed dog could shoot and kill the dog.
“He can just shoot it dead right there, no consequences,” Sutton said.
Whyte was clearly confused by the question, and asked the judge to explain.
“You’re the one that started with the hot dog stand, I couldn’t resist,” he replied.
“He would have no basis to believe it posed any imminent threat,” Whyte responded.
Olson disputed Whyte’s claim in his rebuttal.
“The hot dog dog,” he said, “could be summarily executed in front of its owner.”
He concluded by citing a statistic that only 6 percent of dog owners in Ann Arbor, Mich., have licenses for their pets, and that part of the state’s reasoning for dog licensure is revenue.
“I think it is wrong for a person to have to buy the protection of the Fourth Amendment,” Olson said. “ Detroit Police officers shoot hundreds of dogs. … This happens every day [and] that act will go unchecked [if you affirm].”
No timetable has been set for the Sixth Circuit’s decision.