376 F.Supp.2d 267 (2005) | Cited 5 times | D. Connecticut | June 13, 2005


This action arises from defendant Patrick Gaynor's shooting ofa dog owned by plaintiff Craig Dziekan. Plaintiff allegesviolation of his substantive due process and Fourth Amendmentrights under the United States Constitution (counts three andfour). He also asserts that defendants are liable for negligentand intentional infliction of emotional distress (counts one andfive). Plaintiff has withdrawn his Fourteenth Amendment takingsclaim (count two), and his claim of negligent supervision (countsix).

Defendants Gaynor and the city of Meriden have moved forsummary judgment as a matter of law. For the following reasons,defendants' motion will be granted.


Plaintiff and defendants have submitted statements of facts andhave attached evidentiary materials, including exhibits andaffidavits. These submissions reveal that the following facts areundisputed. Plaintiff is a resident of the city of Meriden. At the time ofthe incident, he owned a Louisiana Catahula Leopard dog namedSpringer, weighing 55 to 60 pounds. He also owned a NeopolitanMastiff named Tearing. Defendant Patrick Gaynor was a policeofficer with the city of Meriden.

On May 3, 2003, plaintiff was salvaging slate at the site of anold silver factory that was known to be a site of drug activity.Plaintiff was accompanied by his son, a friend and his two dogs,Springer and Tearing.

On that day, defendant Officer Gaynor, who was then off-duty,noticed a vehicle toward the rear of a dirt lot, which is wherethe road to the old silver factory commences. Defendant Gaynorparked his truck and walked into a clearing where he observedplaintiff and his truck. Springer was unleashed and running in acircular formation. Defendant Gaynor yelled to plaintiff to callthe dog back. Shortly thereafter, defendant Gaynor shot the dog,which died as a result of the gunshot wounds.

The parties dispute whether defendant identified himself as apolice officer when he first encountered plaintiff, and whetherSpringer was charging at defendant or was running in circles whenthe shots were fired. They also differ in their approximations ofthe distances involved.

Defendant Gaynor claims that the dog was charging at him withits mouth open, and that plaintiff made no effort to control the charging dog. Defendant Gaynor asserts that he discharged his gunwhen the dog was six feet away from him.

Plaintiff's deposition testimony reflects the following versionof facts. When plaintiff first observed defendant Gaynor in theclearing, plaintiff was approximately 60 feet away fromdefendant, and Springer was approximately 30 feet away fromdefendant. After Springer sensed defendant, he began to bark andrun in circles, coming within approximately fifteen feet ofdefendant. Defendant yelled, "Get your dog! Get your dog!"Plaintiff answered, "I will. I will. They don't bite." DefendantGaynor appeared threatened by the dog. When defendant dischargedhis weapon, Springer was running in circles approximately fifteenfeet from him. The whole incident occurred in approximately fiveseconds. For purposes of ruling on this motion, the Court willtake plaintiff's version of the facts as true.


A motion for summary judgment will be granted where there is nogenuine issue as to any material fact and it is clear that themoving party is entitled to judgment as a matter of law. CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986). "Only whenreasonable minds could not differ as to the import of theevidence is summary judgment proper." Bryant v. Maffucci,923 F. 2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).

The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. AmericanInternational Group, Inc. v. London American InternationalCorp., 664 F. 2d 348, 351 (2d Cir. 1981). In determining whethera genuine factual issue exists, the court must resolve allambiguities and draw all reasonable inferences against the movingparty. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255(1986). If a nonmoving party has failed to make a sufficientshowing on an essential element of his case with respect to whichhe has the burden of proof, then summary judgment is appropriate.Celotex Corp., 477 U.S. at 323. If the nonmoving party submitsevidence which is "merely colorable," legally sufficientopposition to the motion for summary judgment is not met.Anderson, 477 U.S. at 249.

Substantive Due Process

Defendants argue that plaintiff's substantive due process claimshould be dismissed because the conduct at issue fails to "shockthe conscience." Alternatively, defendants argue that plaintiff'ssubstantive due process is improper because the Fourth Amendmentprovides an explicit source of protection against the allegedmisconduct.

Where a constitutional amendment provides an explicit textualsource of protection against certain government misconduct, thatamendment is the guide for analysis of the claim rather than the generalized notion of substantive due process.Albright v. Oliver, 510 U.S. 266, 273 (1994); Graham v.Connor, 490 U.S. 386, 395 (1989).

The Fourth Amendment provides that "[t]he right of the peopleto be secure in their persons, houses, papers and effects,against unreasonable searches and seizures, shall not beviolated." Courts have consistently recognized that a lawenforcement officer's killing of a pet dog constitutes adestruction of property and therefore a seizure under theFourth Amendment. San Jose Charter of the Hells Angels Motorcycle Clubv. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005); Seealso Altman v. City of High Point, 330 F.3d 194, 205 (4thCir. 2003) (citing cases and analyzing Fourth Amendment law).Plaintiff provides no argument that his allegations of thesubstantive due process violation are not already covered by theFourth Amendment claim. Accordingly, the court will grant thedefendants' motion for summary judgment on the substantive dueprocess claim. See Andrews v. City of West Branch,2004WL2808385 n. 1 (N.D. Iowa 2004) (where officer killed petdog, substantive due process claim was not warranted sinceFourth Amendment provided explicit protection against unreasonableseizure). Fourth Amendment

Defendants assert that summary judgment is appropriate on theFourth Amendment claim, arguing that defendant Gaynor's shootingof the dog was reasonable under the circumstances.

The Fourth Amendment's reasonableness inquiry requires abalancing of the nature and quality of the intrusion on theplaintiff's Fourth Amendment rights against the countervailinggovernment interest at stake. Graham, 490 U.S. at 396. AsGraham elaborates, the reasonableness of a particular use offorce must be judged from the perspective of a reasonable officeron the scene, rather than with the 20/20 vision of hindsight."The calculus of reasonableness must embody allowance for thefact that police officers are often forced to make split-secondjudgments — in circumstances that are tense, uncertain, andrapidly evolving — about the amount of force that is necessaryin a particular situation." Id. at 395.

The government retains a strong interest in allowing lawenforcement officers to protect themselves and the citizenry fromanimal attacks. Altman, 330 F.3d at 205. Thus, courts havegenerally held that no unreasonable seizure may be found where anofficer has killed a dog that posed an imminent threat. SeeAltman, 330 F.3d at 206 (officers reasonably shot and killeddogs that posed danger, including Rottweiller known to havepreviously attacked individuals in neighborhood, aggressive packof dogs that attacked an officer, and Pitbull mix that displayedaggressive behavior toward a meter reader); Hatch v. Grosinger,2003WL1610778 (D.Minn. 2003) (no unreasonable seizure where doghad exhibited threatening behavior). Similarly, in Warboys v.Officer Proulx, this Court held that "[a]n officer whoencounters a 90- to 100-pound pit bull dog — a dog which isdemonstrably not able to be restrained by its owner or guardianand which is approaching the officer at a rate of 6 feet persecond and is at a distance of no more than ten feet — doesnot act unreasonably in shooting the dog to protect himself andhis canine companion." 303 F.Supp.2d 111, 118 (D.Conn. 2004)

In contrast, courts have found that the killing of a pet dog bylaw enforcement officers constituted an unreasonable seizurewhere the dog posed no imminent danger. For example, it wasunreasonable for an officer to shoot and kill a dog that was offa leash but stationary in a parking lot, and the owner hadscreamed for the officer not to shoot her dog. Brown v.Muhlenberg Township, 269 F.3d 205, 210-211 (3d Cir. 2001); seealso Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994) (summaryjudgment precluded where plaintiff dog owners averred thatofficers killed dog that was standing still in their yard). TheNinth Circuit recently held that law enforcement officers'killing of guard dogs in the yards of two residences whileexecuting search warrants was an intrusion on Fourth Amendment rights so severe as to constitute an unreasonable seizure. SanJose Charter of the Hells Angels Motorcycle Club,402 F.3d at 975. In that case, the law enforcement officers had a week toplan the execution of the entry and knew about the presence ofthe dogs. However, they developed no plan to control the dogsother than to shoot them. Although the governmental interest insafety might have provided a sound justification for theintrusion had the officers been surprised by the dogs, theofficers knew or should have known that the Fourth Amendmentrequires officers to avoid more than necessary intrusion toenforce a search warrant. Id. at 977.

Even construing the inferences of fact most favorably to theplaintiff, the facts of the instant case are most closely alignedwith the decisions holding that seizure was reasonable in lightof the imminent danger posed by the canine. Here, a 55- to60pound dog was shot approximately fifteen feet from defendant.Plaintiff indicated that the whole incident took about fiveseconds, and that Springer was approximately 30 feet away fromdefendant when plaintiff first observed defendant. Accordingly,Springer had advanced toward defendant at a distance ofapproximately fifteen feet in five seconds. Thus, Springer wouldhave been traveling at a rate of three feet per second if running in a straight line.1 Springer was in all likelihoodtraveling at an even faster rate since plaintiff testified thatthe dog had been running in a circular pattern. However, assumingthe slower rate of approximately three feet per second, Springerwould have reached defendant in approximately five seconds.Accordingly, this situation called for split-seconddecision-making.

Based on these circumstances, the Court finds defendant couldhave reasonably assumed that the dog posed an imminent threat tohis safety and, therefore, his conduct did not constitute anunreasonable seizure. Defendant had heard from plaintiff that thedog would not bite, but he had no way to ascertain the truth ofthat representation within the time period at issue. Under suchcircumstances, the law does not require the officer to wait untilthe approaching animal is within biting distance or is leaping athim before taking protective action. Warboys,303 F.Supp.2d at 118. In light of the important interest in the defendant'sself-protection, and the split-second decision-making required,the seizure was not an unreasonable intrusion on plaintiff'sFourth Amendment rights. Therefore, summary judgment in favor ofdefendants is appropriate on the Fourth Amendment claim. Qualified Immunity

Alternatively, summary judgment is appropriate based on thedoctrine of qualified immunity. Qualified immunity "looks to thereasonableness of an officer's belief that he acted lawfullyafter the officer is found to have been unreasonable in hisconduct." Stephenson v. Doe, 332 F.3d 68, 80 n. 15 (2d Cir.2003). Thus, qualified immunity shields law enforcement officersfrom suits for damages under 42 U.S.C. § 1983, unless theiractions violate clearly-established rights of which anobjectively reasonable person would have known. Saucier v.Katz, 533 U.S. 194 (2001). Qualified immunity provides "ampleprotection to all but the plainly incompetent or those whoknowingly violate the law." Malley v. Briggs, 475 U.S. 353, 341(1986).

In the first stage of the qualified immunity analysis, thecourt must consider whether the facts, taken in a light mostfavorable to the plaintiff, could show a constitutionalviolation. Cowan v. Breen, 352 F.3d 756, 760 (2d Cir. 2003). Ifso, the court must determine whether the right in question wasclearly established at the time the violation occurred.Saucier, 533 U.S. at 201.

In determining whether a right is clearly established, thecourt considers whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002). Thus, aqualified immunity defense is established where "(a) thedefendant's action did not violate clearly established law, or(b) it was objectively reasonable for the defendant to believethat his action did not violate such law." Tierney v. Davidson,133 F.3d 189, 196 (2d Cir. 1998).

The doctrine of qualified immunity recognizes that "reasonablemistakes can made as to the legal constraints on particularpolice conduct." Saucier, 533 U.S. at 205. However, qualifiedimmunity applies if the officer's mistake as to what the lawrequires is reasonable. Id. Qualified immunity does not applyif, on an objective basis, it is obvious that no reasonablycompetent officer would have taken the actions of the allegedviolation. Malley, 475 U.S. at 341. Summary judgment isappropriate when a trier of fact would find that reasonableofficers could disagree. Lennon v. Miller, 66 F.3d 416, 420 (2dCir. 1995).

In this instance, the alleged facts could show aFourth Amendment seizure based on defendant Gaynor's killing of theplaintiff's dog. However, reasonably competent officers coulddisagree as to the appropriate course of conduct when faced withthe potential harm posed by an unleashed 55- to 60-pound dogrunning in circles within approximately 15 feet of an officer. As discussed previously, case law reveals that noFourth Amendment violation occurs where a law enforcement officer killsa dog that has posed an imminent threat to the officer orcitizenry. Accordingly, defendant Gaynor was objectivelyreasonable in his belief that his actions would not violateclearly established law. Accordingly, summary judgment in favorof defendants is also appropriate on this alternative ground.

State Law Claims

Plaintiff's remaining counts against defendants for intentionaland negligent infliction of emotional distress are based on statelaw. Having dismissed all of the federal claims, the Court willdecline to exercise supplemental jurisdiction over the remainingstate-law claims pursuant to 28 U.S.C. § 1367(c)(3).


For the foregoing reasons, defendants' Motion for SummaryJudgment [doc. #24] is GRANTED as to the Fourth Amendment claim.The Court declines to exercise supplemental jurisdiction pursuantto 28 U.S.C. § 1367 over the remaining state law intentional andnegligent infliction of emotional distress claims, which claimsare dismissed without prejudice. The clerk is instructed to enter judgment in favor ofdefendants and to close this case.


1. To calculate average speed, one divides the distancetraveled by the time it took to travel that distance. Warboys,305 F.Supp.2d at 116 n. 6.

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