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Qualified immunity for shooting dog

Court rules that the behavior of the dog, and the subject’s failure to control the dog, could lead a reasonable officer to perceive the dog as an imminent threat

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Buschmann v. Kansas City Police Department, 2023 WL 5113497 (8th Cir. 2023)

Officers were sent to Brandee Buschmann’s home after a neighbor reported hearing sounds of a domestic disturbance there. Once the officers arrived, the neighbor confirmed he heard yelling, fighting and breaking glass at the house next door. He told officers there was a dog on the property, but did not think the dog was likely to attack.

To approach the suspect’s house, the officers walked through a dark, wooded area. As they approached the house, one officer drew his firearm and the other drew his TASER device. The officers knocked on the door. As soon as the first officer knocked, the officers heard a dog’s paws approaching the door, along with barking and growling. When the door was opened, a dog ran directly toward the officer who had his gun drawn.

The officer fired a single shot at the dog before the dog turned toward the other officer. The officer fired a second shot, killing the dog. Buschmann was near the door at the time, but the officers did not see her until later. The officers ultimately concluded the noises heard by the neighbor came from another location.

Buschmann and her partner sued, claiming the officer unreasonably seized the dog. They also asserted that the Board of Police Commissioners’ policies and customs caused the officer to commit the alleged violation. The trial court granted summary judgment for the officer and the Board. The plaintiffs appealed.

The appellate court affirmed the grant of summary judgment based on qualified immunity: “In the brief moment that was available for [the officer] to react, it was reasonable for him to conclude that the dog posed a threat to [his partner]. At a minimum, it was a necessarily quick decision in a gray area where officers are protected by qualified immunity.” The behavior of the dog, and Buschmann’s failure to control the dog at the doorway, could lead a reasonable officer to perceive the dog as an imminent threat.

In recent years, many departments have implemented training to help officers avoid the unnecessary deaths of dogs. It is now common for officers planning search or arrest warrant operations to consider potential canine threats and non-deadly mitigation methods. If your agency has not explored such training, consider “The Law Enforcement Dog Encounters Training handbook,” published by the U.S. Department of Justice, and other free resources.

Read more Ken Wallentine case reviews here.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.
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