in the united states c appeals for the sixth circuit€¦ · civil action no. 1:15-cv-00283-rjj the...

No. 16-1575

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_____________________

MARK BROWN and CHERYL BROWN, Plaintiffs-Appellants, -v.- CITY OF BATTLE CREEK, a Michigan Municipal Corporation, SEARGENT JEFFREY CASE, OFFICER CHRIS KLEIN, AND OFFICER YOUNG, Defendants-Appellees.

_____________________

On Appeal from the United States District Court for the Western District of Michigan

Civil Action No. 1:15-cv-00283-RJJ

The Honorable Robert J. Jonker, United States District Judge

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PLAINTIFFS-APPELLANTS’ BRIEF

ORAL ARGUMENT REQUESTED

COURTNEY E. MORGAN, JR. (P29137) BRIAN T. KECK (P P77668)

Attorneys for Plaintiffs-Appellants MORGAN & MEYERS, PLC 3200 Greenfield, Suite 260

Dearborn, MI 48120-1802 (313) 961-0130 [email protected] [email protected]

Case: 16-1575 Document: 16 Filed: 07/21/2016 Page: 1

I

CIRCUIT COURT RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure and Sixth Circuit Rule

26.1, counsel for Plaintiffs-Appellants certify that no party to this appeal is a

subsidiary or affiliate of a publicly owned corporation and no publicly owned

corporation that is not a party to this appeal has a financial interest in the outcome.

Plaintiffs-Appellants are individual persons.


II

TABLE OF CONTENTS CIRCUIT COURT RULE 26.1 DISCLOSURE STATEMENT ............................... I TABLE OF AUTHORITIES .................................. Error! Bookmark not defined. STATEMENT IN SUPPORT OF ORAL ARGUMENT ...................................... VII JURISDICTIONAL STATEMENT ..................................................................... VIII QUESTIONS PRESENTED ................................................................................... IX STATEMENT OF THE CASE .................................................................................. 1

I. Introduction……………………………………………………………..1

II. Relevant City of Battle Creek Policies and Training………………….3

A. Relevant City of Battle Creek Policies………………………………...3

B. City of Battle Creek Training…………………………………………..6

III. Execution of Search Warrant at 198 Hanover on April 17, 2013…….7

IV. Tally system at the City of Battle Creek……………………………….18

SUMMARY OF ARGUMENT ............................................................................... 21 ARGUMENT .......................................................... Error! Bookmark not defined.

I. THE DISTRICT COURT ERRED IN DENYING THAT THE

OFFICERS’ SEIZURE OF PLAINTIFF-APPELLANTS’ PET DOGS WAS REASONABLE UNDER THE TOTALITY OF CIRCUMSTANCES…………………………………………...…24

1. Relevant Legal Standard for Qualified Immunity……………25

2. It Is Clearly Established That an Officer’s Unreasonable Killing of a Pet Dogs is a Seizure Under The Fourth Amendment…..25


III

3. The seizure of Plaintiff-Appellants’ Pet Dogs as the Dogs Were

Shot Seven Times, The Dogs Were Fleeing From The BCPD Officers, The BCPD Officers Had No Non-lethal Means Of Handling The Dogs, No Plan Was Developed Or Considered With Respect To Dealing With The Dogs in a Non-Lethal Manner, And Neither Dog Posed An Imminent Threat of Harm to Any of the BCPD Officers……………………………………..28

II. THE DISTRICT COURT ERRED IN DETERMINING THAT

THE CITY’S POLICIES AND PRACTICES AND FAILURE TO TRAIN ITS POLICE OFFICERS ON HOW TO RECOGNIZE WHETHER A DOG IS DANGEROUS AND TO USE NON-LETHAL METHODS TO RESTRAIN DOGS DID NOT RESULT IN THE DEATH OF PLAINTIFFS-APPELLANTS’ PET DOGS, WHERE THERE WERE SUFFICIENT FACTS OF THE INADEQUACY OF THE CITY OF BATTLE CREEK POLICIES AND PRACTICES SUCH THAT IT EQUATES TO DELIBERATE INDIFFERENCE TO THE RIGHTS OF DOG OWNERS, LIKE PLAINTIFFS-APPELLANTS………………..40

III. THE DISTRICT COURT ERRED IN DENYING THAT THE

OFFICERS’ USE OF FORCE TO BREACH THE PLAINTIFFS-APPELLANTS’ FRONT DOOR WAS REASONABLE WHERE THE PLAINTIFFS-APPELLANTS OFFERED TO VOLUNTARILY OPEN THE FRONT DOOR BUT WAS DENIED AND WHEN THERE WAS NO OBJECTIVE EVIDENCE AT THE SCENE REQUIRING IMMEDIATE BREACH OF THE DOOR………………………………………45

CONCLUSION AND RELIEF REQUESTED ....................................................... 51 CERTIFICATE OF COMPLIANCE ....................................................................... 53 CERTIFICATE OF SERVICE ................................................................................ 54 DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS .............. 55


IV

TABLE OF AUTHORITIES Constitutional Provisions: U.S. Const. amend. IX ……………………………………………………….Passim Statutes: 42 U.S.C. § 1983……………………………..………………………………Passim Case Law: Altman v. City of High Point, 330 F.3d 194 (4th Cir.2003)…….. 27, 28, 35, 37, 38

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ……………..…………….23

Bateman v. Driggett, No. 11-13142, 2012 U.S. Dist. LEXIS 91221 (E.D. Mich. July 2, 2012) ………………………………………………………..27 Berger v City of Mayfield Heights, 265 F.3d 399 (6th Cir. 2001)……....................25 Bishop v. Arcuri, 674 F.3d 456 (5th Cir. 2012)…………………...……….49, 50, 51 Bonds v. Cox, 20 F.3d 697 (6th Cir. 1994)………………………….…………… 26 Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir.2001)…… ….…. 27, 28, 33, 34 Boyd v. Baeppler, 215 F.3d 594 (6th Cir. 2000)………………………………….24 Carroll v. City of Monroe, 712 F.3d 649 (2d Cir. 2013) …………………………28 City of Canton v. Harris, 489 U.S. 378 (1989) …......................……………..40, 42 Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994), as amended on denial of reh'g and reh'g en banc (Nov. 23, 1994) overruled on other grounds by Robinson v.Solano Cty., 278 F.3d 1007 (9th Cir. 2002) …….…………………. 27 San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose………30,31


V

Graham v. Connor, 490 U.S. 386, 397…………………………………….…22, 29 Grant v. City of Houston, 625 F. App'x 670 (5th Cir. 2015) ………...........….28, 36

Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d 1143 (6th Cir. 1994)........24

Hill v. McIntyre, 884 F.2d 271 (6th Cir 1989)………………………………..41, 42 Holloway v. Brush, 220 F.3d 767 (6th Cir. 2000) …….………………………… 23

Hudson v. Michigan, 547 U.S. 586 (2006) ……………………. ……………45, 47 Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989)…………….....42, 43 Lenning v. Commercial Union Ins. Co., 260 F.3d 574 (6th Cir. 2001)…………...24 Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994)………...……………………………27 Jefferson v. Lewis, 594 F.3d 454 (6th Cir. 2010)……….…..…………...……22, 25 Messerschmidt v. Millender, 132 S. Ct. 1235 (2012).………...…………………..25 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (2009) ………...………….………..41 People v Polidori, 476 N.W.2d 482 (Mich. Ct. App. 1991), cert. denied, 113 S.Ct. 298 (1992)………………………………...……………………………46 Plumhoff v. Rickard, 134 S.Ct. 2012 (2014)………………………………….…. 46 Richards v. Wisconsin, 520 U.S. 385 (1997)………………………………..47, 50 Robinson v. Pezzat, 818 F.3d 1 (D.C. Cir. 2016). ………………………………. 28 Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003)………………………..………...24 State v. Thurman, 846 P.2d 1256 (Utah 1993)………………………...………….46 Terry v. Ohio, 392 U.S. 1 (1968)…………………………………………….……26 Tennessee v. Garner, 471 U.S. 1 (1985)…………………………………………...6


VI

United States v. Jacobsen, 466 U.S. 109 (1984)………………………….26, 29, 46 United States v. Dice, 200 F.3d 978 (6th Cir. 2000) ……………………...………45 United States v. Lockett, 919 F.2d 585 (9th Cir. 1990)……………………………46 United States v. Spikes, 158 F.3d 913 (6th Cir. 1998)…………..…….29, 46, 47, 48 Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008)…………...…..………………28, 32, 33 Wilson v. Layne, 526 U.S. 603 (1999)……........………………………………….28 Secondary Sources: Adam P. Karp, Causes of Action Under 42 U.S.C. § 1983, Causes of Action 2d § 7 (May 2016 update)……………….……………………………….....…27, 28 Liability of municipality based on custom or failure to train, screen, or supervise,” 1 State and Local Government Civil Rights Liability § 1:7 (June 2016 (update)…..………………………………………………………………….42 2 WAYNE R. LaFave, Search and Seizure § 4.8(c) (3d ed. 1996)……………….47


VII

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Under 6 Cir. R.34(a), Plaintiffs-Appellants, Mark Brown and Cheryl Brown,

respectfully request oral argument of this appeal. In this action under 42 U.S.C. §

1983 and the Fourth Amendment to the United States Constitution, major issues

relative to the application of the law to the record of the facts, as well as questions of

the applicability of several sister circuit cases are raised in this appeal from an order

of the United States District Court granting the Defendants-Appellees, City of Battle

Creek, a Michigan Municipal Corporation, Seargent Jeffrey Case, Officer Chris

Klein, and Officer Young, summary judgment. These questions would lend

themselves to thorough review as provided for in the process of oral argument.

Under the circumstances and recognizing the limitations on written briefs, oral

argument is reasonably required to adequately advise the United States Court of

Appeals on the complex legal and factual issues raised in this case, and to answer

any questions that the Court may have. Therefore, Plaintiffs-Appellants request

the Court to schedule oral argument on this appeal.


VIII

JURISDICTIONAL STATEMENT

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1291.

Appellate jurisdiction is conferred by the fact that Plaintiffs-Appellants filed a timely

Notice of Appeal on April 28, 2016 from a memorandum and final order granting

Defendants-Appellees’ Motion for Summary Judgment, on March 29, 2016.


IX

QUESTIONS PRESENTED

1. Did the District Court err when it granted Defendant-Appellee City of Battle

Creek Summary Judgment, when it:

A. Determined that the city of Battle Creek officials did not violate the law

when it was sufficiently established that Plaintiffs-Appellants

constitutional rights were violated.

Appellants’ Answer: Yes.

B. Determined that the City’s policies and practices and failure to train its

police officers on how to recognize whether a dog is dangerous and to

use non-lethal methods to restrain dogs such that it did not result in the

death of Plaintiffs-Appellants’ pet dogs, where there were sufficient facts

of the inadequacy of the City of Battle Creek policies and practices such

that it equates to deliberate indifference to the rights of dog owners, like

Plaintiffs-Appellants.


2. Did the lower Court err when it granted Defendants-Appellees Case, Klein

and Young’s Motion for Summary Judgment, when it:

A. Determined that the officer’s use of force to breach the Plaintiffs-

Appellants’ front door was reasonable where the Plaintiff-Appellant Mr.

Brown offered to voluntarily open the front door but was denied and


X

when there was no objective evidence at the scene requiring immediate

breach of the door.


B. Denied that the officer’s seizure of Plaintiffs-Appellants’ pet dogs was

reasonable where the Plaintiffs-Appellants’ pet dogs were shot seven

times, the dogs were fleeing from the officers, the officers had no non-

lethal means of handling the dogs, no plan was developed to handle the

dogs in a non-lethal manner, and neither dog posed an imminent threat of

harm to any of the officers.



1

STATEMENT OF THE CASE

I. Introduction

This case concerns the egregious 42 U.S.C. § 1983 and Fourth Amendment

violations perpetrated by Defendants-Appellees when officers of the City of Battle

Creek Police Department breached Plaintiffs-Appellants’ front door and killed their

two precious dogs during the execution of a drug-related search warrant on April

17, 2013.

The home that was searched was not a drug house, as Defendants-Appellees

incorrectly cite. The home was not the site of the distribution of illegal narcotics

(no evidence has been presented that narcotics were distributed at the home). The

home was not the meeting place for a Battle Creek gang (no evidence has been

presented to this effect). Instead the residents of the home at 198 Hanover

included: Plaintiffs-Appellants Mark and Cheryl Brown; Cheryl Brown’s daughter

Danielle Nesbitt; Ms. Nesbitt’s 5-year old son, Vontion Jones; and Plaintiffs-

Appellants’ two pet dogs, Baby Girl and Isis, none of whom were suspected of

dealing, distributing, or possessing illegal narcotics on April 17, 2013. In fact, none

of the items identified in the actual search warrant were actually found at the

residence.

Instead, the sole person of interest and subject of the execution of a search

warrant on April 17, 2013 was Vincent Jones (father of Vontion Jones), who would


2

infrequently stop at the home to visit his son. (BCPD PowerPoint – RE 61-1,

Page ID #724; Dep of Chris Klein – RE 61-2, Page ID #747). The City of Battle

Creek deemed Mr. Jones a dangerous individual, which is why the search warrant

was executed using the ERT (a police SWAT group). None of the actual occupants

of 198 Hanover were the subject of the search, including the Plaintiffs’ two pet

dogs – this fact is not in dispute.

Prior to executing the search warrant at 198 Hanover: (1) the City of Battle

Creek Police Department already had the allegedly dangerous subject, Vincent

Jones, in police custody; (2) detained Plaintiff Mark Brown outside his residence at

198 Hanover; (3) knew of the two pet dogs within 198 Hanover; and (4) had no

information to believe that there were any occupants within 198 Hanover, other

than two pet dogs. Nevertheless, no attempts were made to alter the execution of

the raid of the home, such that the pet dogs would not need to die, nor did the

BCPD have any non-lethal means of dealing with dogs.

Instead, ERT members, Defendants Sgt. Klein and Sgt. Case, operated as

they were trained and was the policy of the City of Battle Creek, to assume that the

home was occupied by a dangerous individual, without any facts to support this

blind assumption. Non-lethal means were not employed, or considered, to deal

with the two pet dogs, nor was any extra time devoted to determine how to deal

with the two pet dogs. In fact, Sgt. Klein claims the only thing he would have done


3

differently in executing this particular search warrant was bring a shotgun, so that

he could more effectively and efficiently kill the two dogs. Ultimately, seven (7)

shots were fired by three separate officers (Klein, Young and Case) at Plaintiffs’

two pet dogs, Isis and Baby Girl. All the shots were fired as the dogs were fleeing

from the officers, killing both dogs after they fled to the basement, where

Plaintiffs’ slept, i.e. the dogs’ home. Neither dog attacked any police officer

involved in the raid. No narcotics named in the search warrant were found in the

home. Ultimately, the result of this raid was two dead pet dogs; and, a broken front

door.

II. Relevant City of Battle Creek Policies and Training

C. Relevant City of Battle Creek Policies

The City of Battle Creek has policies and procedures as to when it is

appropriate to kill an animal. A dangerous animal is defined by the City of Battle

Creek as:

3.1 DANGEROUS ANIMAL: An animal that bites or attacks a person or another animal. However, “dangerous animal” does not include any of the following: 1. An animal that bites or attacks a person who is knowingly trespassing on the property of the animal’s owner or who bites and attacks another animal that is on the property of the animal’s owner without permission; … 3. An animal that is responding in a manner that an ordinary and reasonable person would conclude was designed to protect a person if


4

that person is engaged in a lawful activity or is the subject of an assault; …

(Response to Resistance and General Firearms – RE 61-3, Page ID ##788-

789). The same policy goes on to specify when an officer may discharge their

weapon to kill an animal.

5.4 Dangerous/Injured Animals 5.4.1 Officers may discharge their weapon for the purpose of killing dangerous animals or animals so badly injured that it becomes appropriate to end its suffering. 5.4.2 All care and caution for person and property shall be utilized in this particular instance and good judgment must prevail.

(RE 61-3, Page ID #794). As will be explained below, neither Baby Girl nor Isis,

ever attacked or bit an officer on the date of the incident. In fact, both pet dogs

should appropriately fall within the stated exceptions to a “dangerous animal” as

the officers were trespassing in Plaintiffs’ residence and the dogs were responding

in a manner designed to protect their owners, i.e. barking. Furthermore, it is

noteworthy that Sgt. Klein himself does not agree with this definition of a

“dangerous animal”, indicating that he does not follow this definition. (RE 61-2,

Page ID #746). Furthermore, Battle Creek’s own policy defines “Reasonable

belief” and notes importantly that “The reasonableness of an officer’s action will


5

be reviewed based on the facts and circumstances known to him at the time of the

action”. (RE 61-3, Page ID #789).

The City of Battle Creek also provides written procedures and policies as to

the execution of a search warrant.

C. Seizure at the Scene 1. When specifically named in the warrant, the police may search for and seize:

a. Instrumentalities of the crime … b. Fruits of the crime (money or property) c. Evidence (clothing, money, blood, etc.) d. Contraband (narcotics, etc.) …

2. Items NOT Specifically Named in the Warrant: a. Items not named on the warrant may be seized if it is immediately apparent that such items are contraband or evidence. (Plain view exception). However, to actively expand the scope of the search, a fresh warrant should be obtained. …

D. The Warrant Return

1. A copy of the warrant shall be given to the person on the premises or left on the premises. 2. A copy of the inventory of items seized shall be left at the scene, with the warrant copy.

E. Damage to the Searched Premises Officers will document all damage done to the premises due to the execution of a search warrant. Documentation will be done in the officer’s police report and by photos. Officers should attempt to re-secure the premises following the search, if there is no appropriate person present to take custody of the scene.


6

(Search and Seizure Management – RE 61-4, Page ID ##817-818). In the

District Court level Defendants apparently took the contradictory position that they

have no duty to leave a copy of the warrant with the person at the premises or leave

a copy at the premises. (Defs’ Br. in Supp. of Summ. J. – RE 53, Page ID #398).

Importantly, no photographs were taken of any of the damage to the Plaintiffs’

residence, including the damage to the door, the blood left in the home, or the two

dogs that were killed.

D. City of Battle Creek Training

The City of Battle Creek provides no training with respect to executing a

search warrant with a non-aggressive animal. (RE 61-2, Page ID ##741-42; Dep

of Jeffrey Case – RE 61-5, Page ID ##825-26). Instead, the only training that

officers of the City of Battle Creek have received with respect to handling animals

in the execution of a search warrant, or otherwise, is how to shoot and kill them.

(RE 61-2, Page ID #740, 741-42; RE 61-5, Page ID ##824-25). This has been

simulated in multiple ways, one of which is to have a block of wood dragged in

front of the officers, so that they can practice shooting at a low moving target

moving laterally. (RE 61-2, Page ID #740). Similarly, there have been pieces of

wood pulled towards an officer, to simulate a charging dog. Consequently, Battle

Creek Police officers are simply left to their own devices with respect to dealing

with animals they encounter in a home.


7

III. Execution of Search Warrant at 198 Hanover on April 17, 2013

On April 16, 2013 (one day before the raid at the Plaintiffs’ residence), the

Battle Creek Police Department (hereinafter referred to as “BCPD”) decided to

execute a search warrant on 198 Hanover Street. The probable cause for the search

warrant was an unidentified confidential informant whose information proved to be

wrong, and a “trash pull” conducted the night before, which indicated that residue

of illegal narcotics was detected within the trash. (Search Warrant and Affidavit

– RE 61-6, Page ID #872). Despite their presence at the home a day before the

raid, the officers never noted the prominent “Beware of Dogs” sign on the front of

the residence. (RE 61-2, Page ID #763)

Prior to execution of the Search Warrant, the ERT along with other Battle

Creek Police Department officers, held a meeting to go over the specifics of the

raid. The instructions for the raid were to execute a “Knock and Announce”. (RE

61-1, Page ID #730). It further indicated that:

Firearms will be used only as a last resort when in the considered opinion of the officers there is danger of loss of life or serious injury to himself/herself or to another person.

(RE 61-1, Page ID #730).

The sole subject of the search, Vincent Jones (RE 61-1, Page ID #724; RE

61-2, Page ID #747), is the father of Plaintiffs-Appellants’ young grandchild,

whom infrequently visited the home. (Dep of Cheryl Brown – RE 61-7, Page ID


8

#890). The BCPD determined that the search was “high risk” due to Jones’ alleged

background and therefore engaged the Emergency Response Team (“ERT”) to

execute a “Knock and Announce” raid and search. (RE 61-1, Page ID #730). No

strategy was created to deal with the dogs in the home at this meeting, nor was any

attempts made to determine if dogs were present.

Surveillance was posted around the residence on April 17, 2013, prior to the

raid, to determine the occupants of the home and other information necessary for

the search. Prior to the raid surveillance saw Mark Brown let his pet dogs out into

the yard. Officers detained both Brown and Jones before the ERT arrived. (RE 61-

2, Page ID #748, #750; RE 61-5, Page ID #835; Dep of Mark Brown – RE 61-8,

Page ID ##913-14). By the time the ERT arrived at the home they knew that: (1)

the subject of the search warrant, Jones, was in police custody after being stopped

some distance away from the residence while driving – (RE 61-2, Page ID #751;

RE 61-5, Page ID #835); (2) that Mr. Brown was detained standing just outside

the residence facing the front door (RE 61-5, Page ID #835); and, (3) that there

were two pit bulls in the residence at 198 Hanover (RE 61-2, Page ID #748, 750;

RE 61-5, Page ID #835).

Importantly, after arriving at 198 Hanover, the ERT had no evidence that

the home was occupied, and certainly no evidence that the home was occupied by a

dangerous individual except for pure speculation. (RE 61-2, Page ID #754, #761;


9

RE 61-5, Page ID ##832-33). Meanwhile, both of Plaintiffs-Appellants’ pet dogs

were sitting in their normal spot on the living room couch looking out the window

at their owner being detained. (Plaintiffs-Appellants’ First Amended Complaint,

RE 61-11, Page ID #958)(Dep of Cheryl Brown, RE 61-7, Page ID #882).

Soon thereafter, 9 ERT officers arrived and immediately prepared for breach

of the residence. (RE 61-2, Page ID #751; RE 61-5, Page ID #835). Sgt. Jeffrey

Case, the supervisor of this raid, approached Mr. Brown after exiting the raid van.

(Dep of Tyler Sutherland – RE 61-10, Page ID #939; RE 61-5, Page ID #837).

Mr. Brown stated to both Sutherland and Case that he had the key to the house and

that there was no need to forcibly enter the residence. (RE 61-8, Page ID ##916-

17; RE 61-5, Page ID #837; RE 61-10, Page ID #939). Sgt. Case and Officer

Sutherland denied the offer and have admitted that they would never have

considered that as an option. (RE 61-5, Page ID #837; RE 61-10, Page ID #940).

Knowing that his residence was about to be forcibly breached and that his beloved

dogs likely killed, Mr. Brown broke down crying, pleading with Officer Sutherland

to allow him to open the home and put away his dogs. (RE 61-8, Page ID #916-

17; RE 61-10, Page ID #940)

Within seconds after exiting the raid van, the ERT approached the front door

of the home. The ERT used a battering ram to break open the door. (RE 61-2,

Page ID #755). Sgt. Klein was the first one into the residence after the door was


10

breached. (RE 61-2, Page ID #755). As the officers entered the residence both

dogs fled from the entering officers toward the basement of the home, this is

supported by the testimony of Mark Brown and Officer Sutherland, who both

heard the first shot sometime after multiple officers had entered the residence. (RE

61-8, Page ID #918) (RE 61-10, Page ID #941)

The Brown residence is situated such that the entrance to the home is in the

living room. The Plaintiffs kept their belongings, including their bedroom and

other furniture in the basement of the residence. To get to the basement from the

front door one has to walk through a carpeted living room into the kitchen, where

there is an entranceway to a set of stairs that lead to the basement. (Deposition of

Cheryl Brown, Re 61-7, Page ID #882-883)

Defendants’ alleged statement of facts, which was improperly accepted by

the District Court, indicates that the larger of the two pet dogs (Baby Girl) was

standing at the threshold of the door upon breach of the residence. Klein alleges

that Baby Girl moved a few inches toward Klein, at which point he fired his Glock

at Baby Girl, striking her, somewhere in her body. (RE 61-2, Page ID #756).

However, Klein’s testimony as to where he was when he first shot Baby Girl is

strenuously contested by Plaintiffs-Apellants and is contradicted both by the

testimony of Mark Brown, who testified that there were multiple minutes before he

heard several shots (RE 61-8, Page ID #918), and by Officer Sutherland, who


11

testified that the first few members of the ERT had already entered the residence

BEFORE the first shot was fired. (RE 61-10, Page ID #941). Thus, if the

testimony of Brown and Sutherland is accurate, Baby Girl could not have been

standing at the threshold of the door, when Klein fired his first shot. This is further

corroborated by the fact that no blood was found on the light colored carpet of the

living room where the officers entered the home, and indeed the only blood found

was in the kitchen and basement of the residence. (RE 61-2, Page ID# 757; RE

61-5, Page ID#840) Taken in the light most favorable to Plaintiff-Appellants the

objective facts in this case support that Baby Girl was fleeing from the intruding

officer, i.e. moving from the couch to the kitchen, when she was first shot by

officer Klein.

The diagram below was used at the deposition of Sgt. Klein. The O signifies

where Baby Girl was standing when the door was breached. The X signifies the

location Baby Girl was when she was shot by Sgt. Klein1. The entrance to the

kitchen is depicted by the space on the upper left hand corner of the diagram.

1 Again, this testimony is solely that of Klein, and is the basis of the Defendants’ purported facts. As is provided above, Klein’s testimony is severely contradicted by another officer and the Plaintiff who were standing mere feet away from the breach of the residence.


12

Figure 1.1 – Living Room of 198 Hanover – RE 61-12, Page ID #972).

Klein alleges that after striking Baby Girl with the first bullet, Baby Girl fled

from the police and followed Isis down into the basement, where Plaintiffs slept,

i.e. the dogs’ home. (RE 61-2, Page ID #758). Notably, Klein never observed the

smaller white dog, Isis, when the door was breached meaning that it is undisputed

that Isis fled from the police from the moment that breach was made. (RE 61-2,

Page ID #756). Neither dog turned back to the members of the ERT as they fled to

the basement. (RE 61-2, Page ID #757). Klein claims that he waited for two more


13

ERT members, Sgt. Case and Officer Damon Young, to attempt to clear the

basement. (RE 61-2, Page ID #757). Klein had no information to believe that the

basement was occupied by a person, dangerous or otherwise. (RE 61-2, Page ID

#755). The basement itself was an unfinished basement with no means of ingress

or egress other than a single door at the top of the basement stairs. (RE 61-2, Page

ID #761). Closing the door would have trapped any individual or pet within the

basement. Nevertheless, Klein never considered simply closing the door to the

basement, locking the dogs within, such that a strategy could be developed to

safely remove the dogs without causing further harm. (RE 61-2, Page ID #762).

Instead, Klein acted in a manner such that he assumed that the basement was

occupied and that he needed to clear it.


14

Figure 1.2 – Basement of 198 Hanover – RE 61-13, Page ID #974).

Klein claims that when he, Officer Young, and Sgt. Case began to descend

the stairs into the basement (depicted on the right of Figure 1.2) Baby Girl was

standing at the base of the stairs, turned back towards the approaching officers and

began to bark again. (RE 61-2, Page ID #758). Figure 1.2 is a drawing created by

Klein at his deposition. The X on Figure 1.2 indicates the location where Baby Girl

was standing prior to being shot. (RE 61-2, Page ID #759).

Klein claims that when he, Officer Young, and Sgt. Case began to descend

the stairs into the basement Baby Girl was standing at the base of the stairs,


15

barking at the approaching officers. (RE 61-2, Page ID #758). Klein testified that

he fired two more rounds into Baby Girl, killing her. (RE 61-2, Page ID #758).

Baby Girl was not lunging at any of the officers prior to being shot, or moving

toward the officers in an attempt to attack them. (RE 61-2, Page ID ##758-59).

Upon reaching the base of the basement stairs, Klein observed the sole living

animal standing in the basement; Isis. (RE 61-2, Page ID #759). On the diagram,

Figure 1.2, Isis is depicted as the green rectangle (Klein drew a red rectangle first,

which he later admitted was incorrect and corrected the diagram using a green

marker) on the Westernmost2 part of the basement. (RE 61-2, Page ID #759). As

explained by Klein, Isis was not facing him, but rather was facing sideways

(perpendicular). (RE 61-2, Page ID #759). Klein admits Isis was not moving, but

between 10-15 feet away from him when he fired two rounds of his Glock at Isis,

striking her. (RE 61-2, Page ID #759). Isis did not lunge at, move towards, and

certainly was not in the process of attacking Klein.

Isis then fled away from the three ERT members towards the portion of the

basement behind a furnace, i.e. the furthest point in the basement away from the

intruding officers. (RE 61-2, Page ID #760). Officer Damon Young then flanked

the wounded Isis and fired another round at her. (RE 61-2, Page ID #760). The

2 Klein’s initial drawing of the diagram incorrectly noted North and South on the diagram causing confusion in the transcript as to North-South-East-West designations. Klein later corrected his initial assessment and correctly placed a N on Figure 1.2 denoting the appropriate North-South-East-West orientation of the diagram.


16

green rectangle/square on Figure 1.2 denotes the location where Klein last saw Isis

before she was shot by Officer Young. (RE 61-2, Page ID #760). After being shot

for a third time, Isis attempted to run away from her second shooter back behind

the furnace in the basement in the Northernmost portion of the basement, i.e.

furthest point away from the approaching officers. (RE 61-2, Page ID #761). At

that point, Sgt. Case was already in that location and fired one more bullet into Isis,

killing her. (RE 61-2, Page ID #761; RE 61-5, Page ID #842).

According to the testimony of Klein, the evidence of aggressive behavior

displayed by the dogs which made him decide to fire five rounds into the dogs

included:

1. Baby Girl – Larger Brown Pet Dog:

a. “Deep aggressive barking, consistent barking, not just one or two barks, but steady, aggressive.” (RE 61-2, Page ID #762).

b. “Lunging towards the window as we made our approach.” (RE 61-2, Page ID #762)

c. “The dog moving from the couch directly to the front door after it was breached” (RE 61-2, Page ID #762)

d. “The fact that the same dog even after it was shot stood at the bottom of the stairs and turned towards me, continuing to bark aggressively in the same manner” (RE 61-2, Page ID #762

2. Isis – Smaller White Pet Dog

a. “the second dog, even after that happened, after firing three rounds at the first dog, the second dog turning, pausing as it was moving across the basement, it stopped and turned and was barking.” (RE 61-2, Page ID #762).


17

Apparently, Isis was guilty by association with Baby Girl, a novel theory indeed.

Shockingly, the only change Sergeant Klein would have made had he known

about the dogs prior to departing with the ERT for the residence would be to carry

a shotgun, rather than a Glock, so as to more efficiently and effectively kill the pet

dogs. (RE 61-2, Page ID #748). Neither Sgt. Klein, nor Sgt. Case, would have

considered bringing non-lethal weapons to deal with the dogs. (RE 61-2, Page ID

#762; RE 61-5, Page ID #843). Simply put, given how the BCPD operated this

particular raid, there was no scenario where either of Plaintiffs’ dogs survived the

raid of the residence. Sgt. Case, the supervisor of the raid, even admitted as much

at his deposition:

Q. Knowing what was about to happen, did you attempt to take any steps for any non-lethal means of

handling the dogs?

A. …There would have been nothing that could have been done at that point to limit the death of those dogs. At some point that would have happened.

(RE 61-5, Page ID #843). Ultimately, no illegal substances named in the search

warrant (heroin or cocaine) were discovered during the search, and the Officers did

not make any arrests. (RE 61-2, Page ID #765; RE 61-5, Page ID #848). No

photographs were taken to document the damage to the residence and the

Plaintiffs’ pet dogs, a breach of Battle Creek Police Department Policy. (CITE)

Mr. and Mrs. Brown filed a complaint with the city regarding the killing of their


18

two pet dogs. Ultimately, the Battle Creek Police Department affirmed the use of

force by the Defendant officers in an investigation that was conducted solely based

on the reports submitted by the Defendants following the incident. As is provided

in Plaintiffs’ expert D.B. Van Blaricom’s report, BCPD Chief of Police Jim

Blocker “reviewed” AND “approved” the shooting of the Baby Girl and Isis.

(Report of Plaintiffs’ Police Practices Expert – RE 61-18, Page ID #1050).

Therefore, the chief policymaker of BCPD has “thereby ratified the defendant

officers’ conduct.” None of the individuals involved in the incident were ever

interviewed by the BCPD regarding the killing of the two pet dogs, and no further

investigation was conducted.

IV. Tally system at the City of Battle Creek

Unsurprisingly, Defendants-Appellants have a history of killing dogs in the

course of their official duties. Importantly, Plaintiffs have alleged that BCPD has a

history of keeping a tally of animals they shot in the course of their duty. Angel

Rivera, a City of Battle Creek police officer, testified unequivocally that a tally

system existed, where officers were “bragging” about animals they shot and killed

in the course of their BSPD duties.

Q. Now, are you aware of members of the Battle Creek Police Department keeping track of the amount of animals they have shot?

A. Yes.


19

Q. Okay, and what are you aware of? A. At one point they put stickers on lockers or they

would track how many were put down. Now, I don't know which specific locker, but it was very common that officers would talk about it.

Q. Do you believe they were bragging about it? A. That's the best way to describe it, yes.

(Dep of Angel Rivera – RE 61-14, Page ID #984).

This was confirmed through the subsequent depositions of Sergeant Brad

Palmer, Officer Joseph Wilder and Officer Scott Marshall. Officer Marshall

testified in his deposition that he saw stickers placed on the locker of Lieutenant

Chrenenko, a member of the ERT, signifying three dogs he had shot and killed.

(Dep of Scott Marshall – RE 61-15, Page ID #1002). Officer Marshall described

the stickers as a red circle with a cartoon dog face within it with a red slash through

it. (RE 61-15, Page ID #1002; Dep of Palmer – RE 61-16, Page ID #1016; Dep

of Joseph Wilder – RE 61-17, Page ID #1031). Officer Marshall also testified to

multiple officers joking about killing dogs and keeping track of the dogs they had

shot. (RE 61-15, Page ID #1002). Similarly, Sgt. Palmer testified that multiple

Battle Creek officers put stickers on their lockers. (RE 61-16, Page ID #1015-16).

These stickers were located in the general locker room for the City of Battle Creek

Police Department and the locker room was accessible for every member of the


20

police department. (RE 61-16, Page ID #1016). Apparently, three of the stickers

had names of the dogs killed inscribed on them: Lucky, Psycho and Fido. (RE 61-

16, Page ID #1016-17. RE 61-17, Page ID ##1031-32)

Despite this culture of killing animals in the course of their duties, the BCPD

has implemented no policies or practices aimed at non-lethal means of dealing with

animals encountered in the field.


21

SUMMARY OF THE ARGUMENT

Today, pet dogs are not seen as objects, like a chair or car. Their utility is no

longer limited to the services they can perform for their owners. In many families,

dogs are considered members of the family, akin to a child. In fact, in this case, as

Mark Brown plead with the raiding officers to allow him to put away his dogs, he

began to cry saying “don’t kill my kids”. RE 61-8, Page ID#916. Ultimately, it is

Plaintiff-Appellants’ claim in this lawsuit that the City of Battle Creek Police

officers treated the Plaintiffs’ pet dogs as an inanimate phsyical obstruction that

simply needed to be removed to effectuate the clearing of home, which resulted in

the confiscation of none of the items listed on the search warrant and instead left

two beloved pet dogs dead.

Unfortunately, the law is slow to respond to changing social norms. As such,

in many states, including Michigan, dogs still are classified as personal property.

Accordingly, when the government kills a pet dog, much of the time, the sole

remedy under law is §1983 and the Fourth Amendment’s prohibition against the

unreasonable seizure of property. The Fourth Amendment applies to all citizens of

the United States, whether they be poor, rich, african-american, or caucasian. The

purpose of which is to limit and check the power of the government over citizens,

like Plaintiff-appellants. Importantly, officers are not entitled to simply rely on the

blanket excuse of officer safety to absolve them of constitutional requirements.


22

Where governmental officials, here the BCPD, unreasonably kill pet dogs, they

violate one of the central principles of the Bill of Rights, i.e. right to be free from

unreasonable seizures.

The governmental Defendants in this case seek protection under qualified

immunity. A "defendant enjoys qualified immunity on summary judgment unless

the facts alleged and evidence produced, when viewed in the light most favorable

to the plaintiff, would permit a reasonable juror to find that: (1) the defendant

violated a constitutional right; and (2) the right was clearly established." Jefferson

v. Lewis, 594 F.3d 454, 460 (6th Cir. 2010). Such a claim based on the

unreasonable seizure of a pet dog has been recognized by eight circuits, and is thus

clearly established. The sole question remaining is whether the officers actions in

killing the Plaintiffs’ pets was reasonable under the totality of the circumstances.

Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

The District Court ultimately determined that the BCPD was entitled to

qualified immunity with respect to the issuance of search warrant on April 17,

2013, which resulted in the death of Plaintiff-Appellants’ two pet dogs, improperly

relying on the Defendant-Appellees’ proposed factual scenario, rather than

Plaintiffs’ factual scenario, and engaging in the pure speculation proferred by

Defendant officers that the home was occuppied by an unknown armed individual

as rationale for the exigency of the search.


23

Under the factual scenario proferred by Plaintiff-Appellants, the Defendant

officers were not acting reasonably when they shot and killed Plaintiffs’ pet dogs

as neither dog lunged at Defendant Klein, or any other officer. Neither of the dogs’

actions meets the definition of a “dangerous animal” pursuant to BCPD, as neither

dog attacked any of the officers, nor did they bite the officers3. Furthermore, it

would appear based on the objective evidence taken in the light most favorable to

the Plaintiff-Appellants that the pet dogs were fleeing from the raiding officers at

all times, meaning that they posed no imment threat of harm to any of the officers.

Accordingly, seizing Plaintiff’s “kids” via the killing of Baby Girl and Isis was an

unreasonable search and seizure under the Fourth Amendment and Defendants are

not entitled to qualified immunity.

STANDARD OF REVIEW

This Court reviews a District Court's grant of summary judgment de novo.

Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000). Summary judgment is

proper when there is no issue of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).; Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986). Facts are “material” and preclude a grant of 3 As is explained above, Defendant Klein’s self-serving testimony indicates that Baby Girl moved a few inches towards him at the threshold of the residence prior to firing the first round at Baby Girl. (RE 61-2, Page ID #756) However, no blood was found on the lightly colored carpet in this area of the house (living room). Instead, blood was solely found beginning in the kitchen, which would indicate that Baby Girl was fleeing from the raiding officers and which is consistent with the testimony of Officer Sutherland and Plaintiff Mark Brown. (RE 61-8, Page ID #918) (RE 61-10, Page ID #941)


24

summary judgment if their resolution affects the outcome of the lawsuit. Lenning

v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). “Materiality” is

determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th

Cir. 2000). An issue is “genuine” if a “reasonable jury could return a verdict for the

nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d 1143,

1148 (6th Cir. 1994). “In evaluating the evidence, [the court] ‘draw[s] all

reasonable inferences therefrom in a light most favorable to the non-moving

party.’” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). Credibility

determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the evidence are jury functions.

ARGUMENT

I. THE DISTRICT COURT ERRED IN DENYING THAT THE OFFICERS’ SEIZURE OF PLAINTIFF-APPELLANTS’ PET DOGS WAS REASONABLE UNDER THE TOTALITY OF CIRCUMSTANCES

The District Court ultimately erred in granting Defendants qualified

immunity with respect to the seizure of the Plaintiffs’ two pet dogs in holding that

the shooting of both pet dogs, collectively seven times, until both expired, with no

veterinary attention provided, no plan in place to deal with the dogs in a non-lethal

manner, and no attempts to deal with either dog in a non-lethal manner, was


25

reasonable under the totality of the circumstances and that a reasonable jury could

not so find.

1. Relevant Legal Standard for Qualified Immunity

A "defendant enjoys qualified immunity on summary judgment unless the

facts alleged and evidence produced, when viewed in the light most favorable to

the plaintiff, would permit a reasonable juror to find that: (1) the defendant

violated a constitutional right; and (2) the right was clearly established." Jefferson

v. Lewis, 594 F.3d 454, 460 (6th Cir. 2010). Whether an official protected by

qualified immunity may be held personally liable for an allegedly unlawful official

action generally turns on the objective legal reasonableness of the action, assessed

in light of the legal rules that were clearly established at the time it was taken.

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245, 182 L. Ed. 2d 47 (2012). The

U.S. Supreme Court held in Pearson v Callahan, 555 U.S. 223 (2009) that the

inquiries need not be sequential, and the court may decide them in the order

appropriate under the circumstances of each case. In order to state a claim under

§1983, a plaintiff must establish “that (1) a person, (2) acting under color of state

law, (3) deprived him of a federal right.” Berger v City of Mayfield Heights, 265

F.3d 399, 405 (6th Cir. 2001).

2. It Is Clearly Established That an Officer’s Unreasonable Killing of a Pet Dogs is a Seizure Under The Fourth Amendment


26

Although this particular factual scenario is one of first impression for the

Sixth Circuit, the requirements for bringing a successful constitutional claim

pursuant to the Fourth Amendment have been extensively examined by this Court

and the Supreme Court. Moreover, the majority of circuits have already examined

similar cases and their rulings are informative on the subject matter.

The Fourth Amendment cements “the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures…” U.S. Const, amend. IV. As it relates specifically to this case, the

Fourth Amendment proscribes searches and seizures that exceed a warrant’s scope.

Terry v. Ohio, 392 U.S. 1, 17, 88 S. Ct. 1868, 1877 (1968). The Supreme Court has

held that a search, which is warranted at its commencement, can violate the Fourth

Amendment if it later proceeds to be insufferable in its intensity and scope. Terry,

392 U.S. at 17-19 (1968). A "seizure” of property, occurs, within the meaning of

the Fourth Amendment, when "there is some meaningful interference with an

individual's possessory interests in that property." United States v. Jacobsen, 466

U.S. 109, 113, 104 S. Ct. 1652 (1984). Destruction of property is "meaningful

interference" constituting seizure under the Fourth Amendment because the

destruction of property by state officials poses as much of a threat, if not more, to

people's right to be "secure in their effects" as does the physical taking of them. Id.

at 124-25; Bonds v. Cox, 20 F.3d 697, 701-02 (6th Cir. 1994).


27

A dog is clearly an "effect" or "property" which can be seized either by

physically “taking” or by destruction. Bateman v. Driggett, No. 11-13142, 2012

U.S. Dist. LEXIS 91221, at *21 (E.D. Mich. July 2, 2012); See Lesher v. Reed, 12

F.3d 148, 150 (8th Cir. 1994); see also Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.

1994), as amended on denial of reh'g and reh'g en banc (Nov. 23, 1994) overruled

on other grounds by Robinson v. Solano Cty., 278 F.3d 1007 (9th Cir. 2002); see

also Altman v. City of High Point, 330 F.3d 194, 204–05 (4th Cir.2003); Brown v.

Muhlenberg Twp., 269 F.3d 205, 211 (3d Cir.2001). In fact, Defendants

themselves have already admitted that Plaintiffs’ dogs are considered “property.”

(Defendant MSJ re Claim for Emotional Distress - RE 34, Page ID# 192). In

fact, every circuit that has explored this inquiry has held that pets are protected

from unreasonable seizures. Adam P. Karp, Causes of Action Under 42 U.S.C. §

1983, Causes of Action 2d § 7 (May 2016 update).

As is stated above, multiple circuits and district courts have analyzed similar

dog shooting cases pursuant to the Fourth Amendment. As early as 1994 Circuits

began to hold that an unreasonable seizure of a pet dog by police officers was a

violation of the Fourth Amendment. Lesher, supra, at 150 (8th Cir. 1994); Fuller,

supra at 68 (9th Cir. 1994). Similar rulings have followed in almost every circuit.

Based on Plaintiff-Appellants’ counsel’s review of the case law. The 2nd, 3rd, 4th,

5th, 7th, 8th, 9th, and District of Columbia Circuit Courts have all held that the


28

unreasonable killing of a dog by police officers is a valid claim under the Fourth

Amendment. Id. See also Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir.

2013); Brown, supra at 211 (3d Cir.2001); Altman, supra at 204–05 (4th Cir.2003);

Grant v. City of Houston, 625 F. App'x 670, 675 (5th Cir. 2015); Viilo v. Eyre, 547

F.3d 707, 710 (7th Cir. 2008); Robinson v. Pezzat, 818 F.3d 1 (D.C. Cir. 2016).

Furthermore, cases need not be on point to enjoin a qualified immunity

defense. See generally Hope v. Pelzer, 536 U.S. 730 (2002). “In the end, it comes

down to commonsense jurisprudence and fair notice.” Adam P. Karp, Causes of

Action Under 42 U.S.C. § 1983, Causes of Action 2d § 7 (May 2016 update). A

right is clearly established when a plaintiff is able to cite controlling authority in

his or her circuit or a consensus of persuasive authorities to that extent. Wilson v.

Layne, 526 U.S. 603, 617 (1999).

Given the relative unanimity of agreement amongst the Circuits with respect

to this issue, it is unavoidable that the right to be free from the unreasonable killing

(seizure) of a pet dog by police officers constitutes a clearly established right. The

remaining question under this analysis is whether that constitutional right was

violated in this case.

3. The seizure of Plaintiff-Appellants’ Pet Dogs as the Dogs Were Shot Seven Times, The Dogs Were Fleeing From The BCPD Officers, The BCPD Officers Had No Non-lethal Means Of Handling The Dogs, No Plan Was Developed Or Considered With Respect To Dealing With The Dogs in a Non-Lethal Manner, And


29

Neither Dog Posed An Imminent Threat of Harm to Any of the BCPD Officers.

The principal issue in a § 1983 suit alleging Fourth Amendment violations is

the reasonableness of the seizure. The officer's actions are measured by the

standard of objective reasonableness. Graham v. Connor, 490 U.S. 386, 397, 109

S.Ct. 1865, 104 L.Ed.2d 443 (1989). The reasonableness of the force used to effect

a particular seizure, is determined by “careful[ly] balancing ... ‘the nature and

quality of the intrusion on the individual's Fourth Amendment interests' against the

countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109

S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85

L.Ed.2d 1 (1985)). Reasonableness is determined based on the facts known to the

police at the time the intrusion occurs. United States v. Jacobsen, 466 U.S. 109,

115 (1984); United States v. Spikes, 158 F.3d 913, 926 (6th Cir. 1998). Seizures by

law-enforcement officials violate the Fourth Amendment only if they are

unreasonable. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056

(2014). To determine whether a seizure was reasonable, we look to the totality of

the circumstances, balancing “the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the countervailing governmental

interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865.

The Hells Angels, supra, case has become the preeminent case, often cited in


30

similar dog shooting cases approvingly throughout the circuits. In Hells Angels, the

Ninth Circuit court held that officers with advance notice that a dog will be present

violate the constitution when they fail to formulate a non-lethal plan to restrain the

dog. San Jose Charter of Hells Angels Motorcycle Club, supra. In Hells Angels,

plaintiffs brought § 1983 action against police officers and deputy sheriff, alleging

that searches of their residences violated the Fourth Amendment. The claims by the

plaintiffs arose out of the simultaneous execution of search warrants at the

residences of members of the Hells Angels, and at the Hells Angels clubhouse on

January 21, 1998. While executing one of the search warrants at the residence of

plaintiffs Lori and Robert Vieira, the officers shot two of the Vieiras' dogs. While

searching plaintiff James Souza's property, the officers shot and killed one of

Souza's dogs. Ultimately, the Ninth Circuit affirmed the denial of defendants’

motion for qualified immunity. The court found that the officers had violated the

Fourth Amendment when they unreasonably failed to create a plan to enter the

perimeter of a person’s property, knowing all the while about the presence of dogs

on the property, without considering a method for subduing the dogs besides

killing them. The officers had advance knowledge that there would be three dogs

present at two locations where they were executing the search warrants. Id at 969.

However, the officers formulated no plan for the entry, other than to shoot the

dogs, which they did. Id. at 968. The dog owners brought a § 1983 action against


31

the officers and the City of San Jose alleging that the killing of their dogs was an

unconstitutional seizure in violation of the Fourth Amendment. The Ninth Circuit

held on appeal: “A reasonable officer should have known to create a plan to enter

the perimeter of a person’s property, knowing all the while about the presence of

dogs on the property, without considering a method for subduing the dogs besides

killing them, would violate the Fourth Amendment.” Id. at 977-78.

No such plan was ever considered or developed in the instance case despite

the known presence of the Plaintiffs’ dogs PRIOR TO the ERT’s arrival at the

scene. It is further no excuse that the BCPD did not learn about the dogs’ presence

until they were on their way to the residence, as the presence of the dogs was

readily apparent to any ordinary observer given that a “Beware of dogs” sign was

affixed to the front of the house. As is provided above, officers were present at the

home the day prior to the raid, yet did not think to look at the front of the home to

gather valuable intelligence, like the presence of dogs. Nevertheless, there was

nothing preventing the officers from simply pausing the raid, to develop a plan for

dealing with the known presence of the two pet dogs, given that the known subject

of the search warrant, Vincent Jones, was already in police custody and posed no

threat to the officers. However, no plan was developed by the officers, likely

because the officers would not have taken any different course to the execution of

this raid had they known of the presence of the dogs prior to departing for the


32

residence. As Defendant Klein himself admitted, the only thing he would have

done differently had he known of the presence of the dogs was to bring a shotgun.

(RE 61-2, Page ID #748).

In a similar case, Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008), the

Seventh Circuit denied the defendant officers qualified immunity when they shot

and killed plaintiff’s pet dog, Bubba, during the attempted arrest of a wanted felon

who allegedly had a pit bull. In Villo, Bubba was in the back yard with the

plaintiff, when officers approached the house. Id. at 708. As the officers

approached Bubba leapt a gate and ran toward the officers. Id. The officers alleged

that Bubba was growling and exposing his teeth and gums. Id. One of the officers

fired two shots at Bubba, causing Bubba to retreat into bushes. Id. at 709. Officers

refused to allow the plaintiff to retrieve Bubba or seek an emergency veterinarian.

One of the officers approached the bush where Bubba hid, which prompted Bubba

to emerge and attempted to head toward the backyard. Id at 709. The officers

alleged that Bubba ran out from under the bushes with his teeth and gum exposed,

although witnesses refuted this. Id. Bubba was thereafter shot two more times. The

officers professed to fear for their safety, as rationale for the shooting. Id.

Ultimately, the Seventh Circuit denied the officers qualified immunity given the

conflicting testimony regarding the final two shots. Id. at 710. Importantly, the

Viilo court relied heavily on the Hells Angels case for the proposition that such a


33

claim was clearly established.

Like in Viilo, the instant case has important factual contests that necessitate

reversal of the District Court’s decision. Similar to Viilo, the testimony of

Defendant Sgt. Klein, is that Baby Girl moved towards him at the threshold of the

doorway, which made him feel that he was in imminent threat for his safety.

Nevertheless, there is conflicting testimony on this point from both Mark Brown

(Plaintiff) but also an assisting officer (Officer Sutherland). Both of whom testified

that it wasn’t until multiple officers had already entered within the residence that

the first shot was fired. Moreover, the physical evidence at the scene did not

indicate the presence of blood in the living room and instead the officers have only

testified to observing blood in the kitchen and basement. (RE 61-2, Page ID# 757;

RE 61-5, Page ID#840) This would clearly indicate that both dogs were fleeing

towards the basement (again the only way to get to the basement is to first go

through the living room and then through the kitchen, where the basement door is

located) when Baby Girl was shot and not as the threshold of the house, as the

District Court improperly accepted as an uncontested fact.

Likewise, the Third Circuit has also held similar actions on the parts of

Defendants-Appellees to be unreasonable. Brown v. Muhlenberg Township, 269

F.3d 205 (3rd Cir. 2001). Brown arose out of a dog’s shooting by an officer when it

wandered out of the Brown family’s fenced home and into an adjacent parking lot.


34

Id at 208-09. An officer observed the dog walking loose, clapped his hands, and

called. Id. at 209. The dog subsequently barked a few times, withdrew, circling

around a vehicle in the parking lot that was twenty feet from the curb. The officer

approached the dog, which was not growling or barking, and did not bark or

behave aggressively. Id. The officer subsequently pulled his gun, while the owner,

not more than fifty feet away and now observing, pleaded from a distance not to

shoot. Notwithstanding, the officer fatally shot the dog five times.

The court held that the defendants were liable for unreasonable seizure

because the killing of a dog was manifestly a seizure and per se unreasonable

because it was not pursuant to a warrant particularly describing what would be

seized. Id. at 210. Alternatively, to determine whether a warrantless seizure to be

constitutional, the court must weigh the nature of the intrusion upon the citizen’s

Fourth Amendment rights against the government’s interest in justifying the

intrusion. Id. Even when the state’s interest is sufficiently compelling to justify a

warrantless seizure that is minimally intrusive, the seizure will be unreasonable if it

is disproportionately intrusive.” Id. A state, therefore, may not destroy an animal

“when it poses no immediate danger and the owner is looking on, obviously

desirous of retaining custody.” Id. at 211. The case against the officer was

subsequently remanded for further proceedings. Id. at 219. In the matter at hand,

Plaintiff Brown was waiting outside, looking at his dogs in the window, pleading


35

with the officers to allow him to put his dogs away, to no avail.

The Fourth Circuit in Altman v. City of High Point utilized the balancing test

in determining that officers’ decisions to shoot dogs were reasonable. Altman v.

City of High Point, 330 U.S. 194, 196. Altman pertained to incidents in which the

dogs were allegedly “running at large.” Id. at 206. In that incident, an officer was

confronted with a Rottweiler that was loose and had been roaming the

neighborhood. Id. The dog had allegedly attacked one person in the neighborhood,

and the officer understood from his conversations with people in the neighborhood

that the dog was aggressive and dangerous. Id. The dog never attacked the officer.

However, the officer observed the dog move toward the road where it would once

again pose a danger to the neighborhood. Id. As such the officer shot the dog with

a shotgun. Id. Likewise, Altman also pertained to a companion case in which an

officer was confronted by a pack of dogs that attacked persons in the neighborhood

and another officer. When the officer exited his vehicle, the pack of dogs charged

him. The officer thereafter shot the dogs in self-defense. Id. The Fourth Circuit

determined that the weight of the officer’s interest in protecting himself and

members of the public outweighed the possessory interests of the owners.

Significantly, the officer’s actions were compliant with a city ordinance

authorizing the killing of dogs at large which cannot be safely impounded. Id. at

206.


36

Another case, which is instructive is Grant v. City of Houston, 625 F. App'x

670 (5th Cir. 2015). In Grant, defendant officers arrived at plaintiff’s home to

execute an arrest warrant for plaintiff’s brother. Id. at 672. The officers thereafter

obtained a search warrant to search the residence. During the search, plaintiff's

dog, Buster was placed in the garage. Subsequently, officers searched the garage.

While in the garage the officers “heard the loud, sharp sound of aggressive barking

and snarling coming from behind [him].” Id. Buster charged towards the officer's

legs, “snapping its teeth and turning its head sideways so that it could bite [his]

leg.” The officer kicked Buster twice, but the dog continued its aggressive

approach. After retreating to a corner, the officer drew his pistol and fired at

Buster. Buster continued to charge at which point a second round was fired killing

the dog. Id. The only evidence that plaintiff had to dispute the officer’s account

was a retained expert who opined that the wound in Buster’s neck indicated that

Buster was shot from behind. Id. at 677. Ultimately, the Grant court determined

that the officer was entitled to qualified immunity as the officer only fired at the

dog when “it was clear that the dog was aggressively trying to harm” the officer

and it was reasonable for the officer to believe that he was imminently in danger of

being bitten. Id.

The decision in Grant is inapposite to the current case in many ways. In

Grant, the officer only used lethal force as a last resort, after first kicking the dog.


37

The dog in Grant actually attacked the police officer and attempted to bite him.

The officer in Grant attempted to retreat from the approaching dog to no avail, as

he was literally cornered. The only factual dispute presented by the plaintiff in

Grant was as to the placement of the second shot, which was inconclusive of the

entry or exit path of the bullet. In the instant matter, the only assertion by

Defendant that he was “attacked” by either of the two pet dogs was that Baby Girl

allegedly moved toward him a matter of inches before he shot Baby Girl with the

first bullet4. It is Plaintiffs’ contention, based on the facts taken in the light most

favorable to the Plaintiffs, that both dogs were fleeing from the police officers after

the front door was breached by the BCPD ERT. Ultimately, both dogs were killed

in the basement, the area they called home, without the officers attempting to

continue the search despite the presence of the dogs, nor did the officers attempt or

even consider non-lethal means of handling the dogs.

The facts of the case at bar are more similar to Hells Angels and Brown than

Altman or Grant. As in Hells Angels the officers had advanced knowledge of the

dogs’ presence, yet formulated no plan on how to peacefully remove them.

Importantly, in the instant matter a “Beware of Dogs” sign was affixed to the front

of the residence, which the officers could have observed the night prior to the raid,

4 As is provided above, this self-serving testimony is contradicted by objective evidence, including the lack of blood in the living room, and the testimony of Mark Brown and Officer Sutherland.


38

and the dogs’ presence was known to the approaching officers prior to their arrival.

Like in Brown, Plaintiff pleaded with the officers to allow him to intervene to no

avail. Further, the dogs in the case at bar withdrew from the officers’ presence.

Unlike in Altman, the dogs were no threat to the police or to the public at large.

The Altman dogs had attacked members of the public immediately preceding their

killing. There was no public interest to be served in killing the dogs here. In short,

Plaintiff-Appellants interests were significantly greater than that of Defendants-

Appellees, and under the totality of the circumstances the Defendant officers were

not reasonable in killing the Plaintiffs’ dogs.

In the instant matter: (1) the Defendant officers had plenty of time to take

into account that there were dogs present at the home, having learned of the dogs

presence prior to arriving at the scene; (2) had the Defendant officers simply

looked at the house during the trash pull the night prior to the raid, they would

have observed the “Beware of Dogs” sign affixed to the front of the home; (3)

given this timeframe the Defendant officers had time to formulate a plan of action

on how to address the dogs in a non-lethal manner; (4) evidence taken in the light

most favorable to the Plaintiffs indicates that Klein did not shoot Baby Girl at the

threshold of the home but rather stepped into the home chasing the dog, before

firing the first round into Baby Girl’s body; (5) both dogs fled from the ERT

members into the basement, the area they knew as their home; (6) based on Klein’s


39

testimony, he followed the fleeing dogs into the basement; (7) Klein testified that

while entering the basement following the fleeing dogs, Baby Girl stopped at the

base of the stairs barking at him but never lunged at him, prior to Klein shooting

two more rounds into Baby Girl; (8) even based on the testimony of Klein, Isis

never attempted to charge or lunge at Klein, instead Isis stood some 10-15 feet

away from Klein in the basement facing sideways when Klein fired two rounds

into Isis; and (9) after being struck with two bullets, Isis fled as far as possible

away from the intruding officers hiding behind the furnace in the basement where

she was struck by two more bullets fired by Defendant Young and Defendant Case.

In further support of Plaintiffs’ assertion that Defendants’ actions were

unreasonable, it is the professional opinion of Plaintiffs’ Expert, D.P. Van

Blaricom, “that the forcible entry into the plaintiffs’ residence and the shooting of

their 2 dogs was unnecessary and unreasonable.” (RE 61-18, Page ID # 1046). As

Mr. Blaricom goes on to point out, “the forcible breaching of plaintiffs’ door and

the shooting of their dogs was all avoidable.” Id. (emphasis added). Mr. Van

Blaricom’s proffered testimony itself provides reasonable factual dispute which

can only be appropriately settled by a jury.

Plaintiffs do not contend that protective sweeps are unnecessary in order to

“secure” the premises to ensure their safety and to attempt to prevent the loss or

destruction of evidence. However, that immediacy and the level of force must be


40

balanced with necessity, the judge of which is reasonableness. Contrary to the

Defendant Officers’ testimony, they are not allowed to rely on the mere possibility

of a potentially dangerous situation to justify their actions. They are only able to

base their actions on the facts they know at the time. This is even admitted by the

City of Battle Creek’s own policy. The fact is that the Defendant Officers had no

knowledge that there was anyone dangerous in the home, had already detained the

allegedly dangerous suspect, Vincent Jones, yet did not alter the manner in which

they executed the search of the home. Defendant Officers’ actions were

unreasonable under the circumstances and as a result Plaintiffs’ two pet dogs are

dead. Accordingly, the Defendant Officers are not entitled to governmental

immunity

II. THE DISTRICT COURT ERRED IN DETERMINING THAT THE CITY’S POLICIES AND PRACTICES AND FAILURE TO TRAIN ITS POLICE OFFICERS ON HOW TO RECOGNIZE WHETHER A DOG IS DANGEROUS AND TO USE NON-LETHAL METHODS TO RESTRAIN DOGS DID NOT RESULT IN THE DEATH OF PLAINTIFFS-APPELLANTS’ PET DOGS, WHERE THERE WERE SUFFICIENT FACTS OF THE INADEQUACY OF THE CITY OF BATTLE CREEK POLICIES AND PRACTICES SUCH THAT IT EQUATES TO DELIBERATE INDIFFERENCE TO THE RIGHTS OF DOG OWNERS, LIKE PLAINTIFFS-APPELLANTS.

It has been clearly recognized that “inadequacy of police training may serve

as the basis for § 1983 liability only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into contact.” City


41

of Canton v. Harris, 489 US 378, 388-89 (1989). In order to bring a claim under a

theory of failure to train, “the plaintiff must prove: that the training program is

inadequate to the tasks that officers must perform; that the inadequacy is the result

of the city’s deliberate indifference; and that the inadequacy is ‘closely related to’

or ‘actually caused’ the plaintiff’s injury.” Hill v. McIntyre, 884 F.2d 271, 275 (6th

Cir 1989). At issue here is whether the Defendant City of Battle Creek’s

inadequacy in training constituted deliberate indifference of the Plaintiff’s

constitutional right to be free from unreasonable killing of their two pet dogs.

Local governing bodies, and local officials in their official capacity, can be

sued directly under § 1983 for monetary, declaratory, or injunctive relief where the

action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by

that body's officers. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct.

2018 (1978). Furthermore, if the § 1983 action against a government body is an

allegation that official policy is responsible for a deprivation of rights protected by

the Constitution, local governments may also be sued for constitutional

deprivations pursuant to governmental “custom” even though such a custom has

not received formal approval through the body's official decision-making channels.

Id.


42

In order to bring a claim under a theory of failure to train, “the plaintiff must

prove: that the training program is inadequate to the tasks that officers must

perform; that the inadequacy is the result of the city’s deliberate indifference; and

that the inadequacy is ‘closely related to’ or ‘actually caused’ the plaintiff’s

injury.” Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir 1989) citing City of Canton. It

is clearly the testimony in this case that BCPD officers frequently encountered

pets, a majority of them being dogs, in the line of duty, and yet, Defendants offer

no proof the officers of BCPD have “experience with non-lethal methods” or

“know that non-threatening animals can be placed in a pre-cleared area” except to

claim that they do. (RE 61-2, Page ID #751; RE 61-5, Page ID #843).

Deliberate indifference may be proven when the tortious actions are

“[repetitive in nature and] coupled with the apparent acquiescence of those in high-

ranking positions.” “Liability of municipality based on custom or failure to train,

screen, or supervise,” 1 State and Local Government Civil Rights Liability § 1:7

(June 2016 update). “Further, several courts have held that the persistent failure of

senior policymaking officials to take affirmative corrective action can lead to the

inference of acquiescence in an implicit policy on the part of local government.”

Id. (referencing Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989)).

Leach, supra, upheld § 1983 liability against a county sheriff for the

maltreatment of a paralyzed prison inmate because “there had been enough similar


43

incidents to put the Sheriff, in his official capacity, on notice that Leach would be

subject to constitutional deprivation.” Leach, 891 F.2d at 1247. Indeed, the circuit

held that the district court properly found “evidence of numerous instances of

abuse of paraplegic or physically infirm inmates.” Id. Here Defendants themselves

have acknowledged that they frequently encounter aggressive animals in the

execution of raids. (RE 61-2, Page ID #751; RE 61-5, Page ID #843). Defendant

Klein admitted shooting and killing multiple dogs in the course of his duties as a

BCPD officer. (RE 61-2, Page ID#752). Yet despite this known issue, BCPD had

failed to take any action to train their officers in such a manner that they can deal

with aggressive or non-aggressive dogs in a non-lethal manner.

Here, Plaintiff has alleged further that officers of the Battle Creek Police

Department were engaged in a “tally” system when it came to the killing of dogs.

In particular, Officer Angel Rivera testified there were “stickers on lockers…they

would track how many were put down.” (RE 61-14, Page ID #984). Further, when

asked whether he thought the officers participating in this conduct were “bragging”

about it he replied, “[T]hat is the best way to describe it, yes.” Id. Officer Bradley

Palmer, another BCPD officer testified that officers, “used to put stickers on their

lockers,” with “the name of a dog.” (RE 61-16, Page ID #1015-16). The fact this

type of conduct was allowed within the BCPD further shows a “deliberate

indifference” in the policies and practices of Defendant-Appellee City of Battle


44

Creek towards handling pet dogs.

The unreasonable conduct of the officers in this case was further condoned

by policy and practice of Defendant-Appellee Battle Creek as the BCPD

investigation into Plaintiffs-Appellants’ citizen complaint did not result in any type

of disciplinary action towards the officers involved in the incident. Defendant may

make much of the fact that they have a policy in place for their officers with

respect to the killing of animals. (RE 61-3, Page ID ##788-789). This policy

declares that officers may discharge their weapons at an animal that bites or attacks

a person. It is undisputed that neither pet dog bit any of the officers. It is also clear

based on the evidence as presented in the light most favorable to the Plaintiff-

Appellants that neither of the dogs attacked the officers. As is pointed out in

Plaintiff’s expert D.B. Van Blaricorm’s report, BCPD Chief of Police Jim Blocker

“reviewed” AND “approved” the shooting of the Baby Girl and Isis. (RE 61-18,

Page ID #1050). Therefore, as noted by Mr. Blaricom, the chief policymaker of

BCPD has “thereby ratified the defendant officers’ conduct.”

Such deliberate indifference existed in this case, as the Defendant Officers

admitted that the City of Battle Creek had NO policy or training in place to advise

officers on how to deal with animals in a non-lethal manner. (RE 61-2, Page ID

##741-42; RE 61-5, Page ID ##825-26). Instead, the only training that officers of

the City of Battle Creek have received with respect to handling animals in the


45

execution of a search warrant, or otherwise, is how to shoot and kill them. (RE 61-

2, Page ID ##740-42; RE 61-5, Page ID ##824-25) Furthermore, the actions of

Defendants Klein, Case, and Young were not isolated incidents, but rather

symptomatic of a consistent and pervasive pattern of misuse of fatal force by

officers of the Battle Creek Police Department.

III. THE DISTRICT COURT ERRED IN DENYING THAT THE OFFICERS’ USE OF FORCE TO BREACH THE PLAINTIFFS-APPELLANTS’ FRONT DOOR WAS REASONABLE WHERE THE PLAINTIFFS-APPELLANTS OFFERED TO VOLUNTARILY OPEN THE FRONT DOOR BUT WAS DENIED AND WHEN THERE WAS NO OBJECTIVE EVIDENCE AT THE SCENE REQUIRING IMMEDIATE BREACH OF THE DOOR.

Unless exigent circumstances exist, the execution of a search warrant

requires authorities to knock and announce their presence. “The knock-and-

announce rule protects several important interests, including 1) reducing the

potential for violence to both the police officers and the occupants of the house

into which entry is sought; 2) curbing the needless destruction of private property;

and 3) protecting the individual’s right to privacy in his or her house.” United

States v. Dice, 200 F.3d 978, 982 (6th Cir. 2000) (abrogated on other grounds by

Hudson v. Michigan, 547 U.S. 586 (2006)) (emphasis added). It is undisputed that

Plaintiff Mark Brown was present outside of the home at the time of the execution

of the search warrant in this case, yet no effort was made by the BCPD to allow

Mr. Brown to voluntarily comply with the knock-and-announce search warrant and


46

let the officers into the home using the key he had in his pocket. In fact, the

officers have admitted that this would have never been an option. (RE 61-5, Page

ID #837; RE 61-10, Page ID #940). No exigency existed to enter the home

immediately given that the subject of the search, Vincent Jones, was already in

police custody and there was no evidence that the home was occupied.

The question for the Court is whether the execution of the search warrant in

forcibly breaching the front door despite Plaintiff’s voluntary efforts to allow

access to the residence was a violation of his Fourth Amendment Constitutional

right and whether such a right was clearly established. As is stated above, cases

have applied a reasonableness standard to determine whether the Fourth

Amendment was violated, which is determined based on the facts known to the

police at the time the intrusion occurs. Dalia, supra at 258 (1980). Jacobsen, supra

at 115; Spikes, supra at 926. The knock-and-announce rule protects the security,

privacy and property interests of people in their homes. Before breaking and

entering the premises to search, officers must give occupants a reasonable

opportunity to voluntarily allow the police to enter, the time given to comply is

dependent on the facts known to the police at the time the intrusion occurs. Spikes,

supra at 927; State v Thurman, 846 P.2d 1256, 1261-62 (Utah 1993); People v

Saechao, 544 N.E.2d 745, 750 (Ill. 1989); People v Polidori, 476 N.W.2d 482, 485

(Mich. Ct. App. 1991), cert. denied, 113 S.Ct. 298 (1992); United States v. Lockett,


47

919 F.2d 585, 588 (9th Cir. 1990); 2 WAYNE R. LaFave, Search and Seizure §

4.8(c) (3d ed. 1996); State v Carufel, 314 A.2d 144, 147 (R.I. 1974). This

requirement protects homeowners from damaged doors and to protect an

occupant’s privacy by assuring them that government agents will not enter their

home without complying with those requirements. Hudson v. Michigan, 547 U.S.

586, 620, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). This fact was also admitted by

Sergeant Klein in his deposition.

Q. Sure. With respect to knock-and-announce search warrants, would you agree that the longstanding purpose of the requirement of a knock-and-announce is to provide the occupant with the opportunity to voluntarily submit to the authority of the search warrant and to avoid violence and/or property damage? A. Yes.

(RE 61-2, Page ID #763). Thus, this is so clearly established that Defendant Klein

has actual knowledge of this fact.

Furthermore, while it is reasonable for police officers to assume that

suspects selling illegal drugs in small quantities from a residence that has normal

plumbing facilities will attempt to destroy those drugs, this reality must be

balanced against the fact that the simple presence of drugs alone does not justify

abandoning the “knock and announce” rule or so diluting its requirements that it

becomes a meaningless gesture. Spikes, supra, at 926 citing Richards v. Wisconsin,

520 U.S. 385, 117 S.Ct. 1416, 1420-21, 137 L.Ed.2d 615 (1997). The amount of


48

time officers need to wait before entering a home necessarily depends on how

much time it would take for a person in the house to open the door. Spikes, supra at

927.

The circumstances present in this case did not warrant the breach of the

Plaintiffs’ front door without allowing Mr. Brown to open the door, when he was

cooperating with police and voluntarily offering to allow them entry. First and

foremost, in this case, BCPD already detained Vincent Jones, the only known

alleged dangerous suspect involved in this search, and the only subject of the

search. (RE 61-1, Page ID #724; RE 61-2, Page ID ##747, 751; RE 61-5, Page

ID #835). He was not a threat to the operation, as he was detained. Secondly, both

Defendants Klein and Case admitted in their depositions that they had absolutely

no information prior to breaching the door that the house was occupied by anyone

other than two pet dogs. (RE 61-2, Page ID ##754, 761; RE 61-5, Page ID ##832-

33). Thirdly, as has been provided previously, Mr. Brown repeatedly told officers

he had his keys and they could use the keys to open the door to his home. (RE 61-

8, Page ID ##916-17; RE 61-5, Page ID ##837; RE 61-10, Page ID #939). This

was confirmed by Officer Sutherland and Sergeant Case, the supervisor of the ERT

on that date. Nevertheless, Defendants have repeatedly stated that this was never

an option they would seriously consider and within seconds of their arrival forcibly

breached the Plaintiffs’ front door. (RE 61-5, Page ID #837; RE 61-10, Page ID


49

#940).

The Circuit Court in Banks, infra, upheld the constitutionality of a search

when the investigating agency knocked-and-announced its presence, waited fifteen

to twenty seconds, and battered through a premises in search of cocaine. United

States v. Banks, 540 U.S. at 524. In Banks, the resident did not respond when the

investigators knocked and announced their presence because he was taking a

shower and did not hear them. Id. at 523. The Court held that the reasonableness of

the search is viewed from the lens of the officers at the time of the search, not in

the 20/20 vision of hindsight, and that there was no indication the police knew

Banks was in the shower. Id. at 527. Simply put, the police in Banks had no way of

knowing whether or not evidence was being destroyed. Here, as indicated above,

Mr. Brown stood cooperatively before the BCPD officers and voluntarily offered

to open the door for the officers to enter his residence and conduct a lawful search.

Circuits around the nation have, moreover, routinely hold similar searches to

be prohibited by the Fourth Amendment. The Fifth Circuit held that the disposable

nature of drugs and the generally dangerous nature of drug dealers did meet the

Government’s requisite showing that to search a home without knocking and

announcing its presence. Bishop v. Arcuri, 674 F.3d 456, 466 (5th Cir. 2012).

Bishop pertained to the execution of a search warrant based upon information from

a reliable informant that methamphetamines were being produced in a Texas home.


50

Prior to executing the warrant, Arcuri, the investigating officer, determined that

women, not the male suspect, paid taxes and utility bills for the house, that the car

parked in the driveway was registered to another person, and that there was no

history of criminal activity at the home. Id. at 460. Notwithstanding, Arcuri and his

team battered through the door and scoured the premises without following knock-

and-announce requirements, but did not find the methamphetamines. Bishop

subsequently brought a 42 U.S.C. § 1983 claim against Arcuri for, among other

things, an unreasonable search under the Fourth Amendment. Id. at 460.

The court, in applying Richards, held the Bishop search to be unreasonable

because “risk of evidence destruction had not yet ripened into exigent

circumstances sufficient to justify a no-knock entry at the time just before Arcuri's

team entered Appellants' home.” Id. at 462. Indeed, “nothing in Arcuri's deposition

testimony or briefing suggests that he had any reason to believe that evidence was

in danger of being destroyed before the inhabitants knew police were on the

premises.” Id. Further, the general dangerousness of investigating drug dealers did

not excuse Arcuri’s conduct, as his investigation revealed no particularized facts

suggesting that he or his team were making a high risk entry aside from the

dangers inherent to making an entry involving drugs.” Id. at 464. (Internal

quotations omitted.)


51

In this instance, the officers’ general apprehensiveness about the

dangerousness of a drug search prevents them from prevailing, without facts to

support the exigent circumstances necessary to allow them to refrain from

complying with knock-and-announce requirements. Bishop plainly recognizes that

the general dangerousness of a search excuses unreasonable conduct under the

Fourth Amendment. Bishop, supra at 465. Here, Jones had been detained, no other

residents were home, and Mr. Brown offered to unlock the door and detain his

dogs. Moreover, Mr. Brown was alone with seven to eight officers, and could

therefore present them with no danger on his own. The fear, then, at the time the

Defendants-Appellees decided to breach Plaintiffs-Appellants’ home was the

generalized fear that Bishop contemplated and enjoined from being used as a basis

to violate the constitutional rights of citizens.

Consequently, given that Plaintiff Brown voluntarily offered access to his

home, the suspect of the search was already in custody, and the officers had no

evidence to suggest that the home was occupied, it was unreasonable for the

raiding police officers to refuse Mr. Brown’s voluntary offer to open the door to

his residence and therefore a violation of his Fourth Amendment rights.

CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, the District Court erred in granting summary

judgment to Defendants-Appellees on the above-enumerated questions.


52

Accordingly, Plaintiffs-Appellants respectfully request that this Court issue an

Order:

(1) REVERSING the District Court’s order entering summary judgment as to the above enumerated issues and REMANDING this action for further proceedings not inconsistent with the cited case law.

Respectfully Submitted, MORGAN & MEYERS, PLC

_ BY: /s/Brian T. Keck___________________

COURTNEY E. MORGAN, JR. (P29137)

BRIAN T. KECK (P77668) Attorneys for Plaintiffs-Appellants 3200 Greenfield, Suite 260 Dearborn, MI 48120-1802 (313) 961-0130 [email protected] [email protected]

DATED: July 21, 2016


53

CERTIFICATE OF COMPLIANCE

I certify that the foregoing Appellant’s Brief on Appeal complies with the

type-volume limitations of F.R.A.P. 32(a)(7)(B). The text of the Brief (exclusive

of Disclosure of Corporate and Financial Interests, Table of Contents, Table of

Authorities, Statement in Support of Oral Argument, Certificate of Compliance,

Certificate of Service and Designation of Appendix), contains text in

proportionally spaced typeface (Times New Roman at 14 point), containing 12,883

words.

I declare that the foregoing Certificate of Compliance is true to the best of

my knowledge, information and belief.


_ BY: /s/Brian T. Keck___________________

COURTNEY E. MORGAN, JR. (P29137) BRIAN T. KECK (P77668)

Attorneys for Plaintiffs-Appellants 3200 Greenfield, Suite 260 Dearborn, MI 48120-1802 (313) 961-0130 [email protected] [email protected]



54

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 2016 Plaintiffs-Appellants’ Brief on Appeal

was electronically filed with the Clerk of the Court using the ECF system, which

will send notification of that filing to the following:


_ BY: /s/Brian T. Keck___________________

COURTNEY E. MORGAN, JR. (P29137)

BRIAN T. KECK (P P77668) Attorneys for Plaintiffs-Appellants 3200 Greenfield, Suite 260 Dearborn, MI 48120-1802 (313) 961-0130 [email protected] [email protected]



55

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Civil Action No. 1:15-cv-00283-RJJ Pursuant to Sixth Circuit Rule 30(g)(1),

the following filings from the district court’s record are designated as being relevant to the arguments on appeal:

Record Entry Number

Description of Item Page ID # Range

Date Filed in District Court

1 Complaint and Jury Demand 1-14 03/17/15

15 First Amended Complaint and Restated Jury Demand

68-83 06/15/15

53 Defendants’ Motion for Summary Judgment 369-407 1/15/16

61 Plaintiffs’ Response to Defendants’ Motion for Summary Judgment

677-717 02/05/16

61-1 BCPD PowerPoint 718-735 02/05/16

61-2 Dep of Klein 736-785 02/05/16

61-3 Response to Resistance and General Firearms

786-798 02/05/16

61-4 Search and Seizure Management 799-820 02/05/16

61-5 Dep of Case 821-869 02/05/16

61-6 Search Warrant and Affidavit 870-872 02/05/16

61-7 Dep of C. Brown 873-906 02/05/16

61-8 Dep of M. Brown 907-930 02/05/16

61-10 Dep of Sutherland 933-953 02/05/16

61-11 Plaintiffs-Appellants’ First Amended Complaint

954-970 02/05/16

61-12 Living Room of 198 Hanover 971-972 02/05/16

61-13 Basement of 198 Hanover 973-974 02/05/16

61-14 Dep of Rivera 975-992 02/05/16

61-15 Dep of Scott Marshall 993-1008 02/05/16

61-16 Dep of Palmer 1009-1026 02/05/16


56

Record Entry Number

Description of Item Page ID # Range

Date Filed in District Court

61-17 Dep Wilder 1027-1038 02/05/16

61-18 Report of Plaintiffs’ Police Practices Expert 1039-1051 02/05/16

68 Order Granting Defendants’ Motion for Summary Judgment (#53)

1193 03/29/16

69 Judgment 1194 03/29/16

71 Notice of Appeal 1196 04/28/16


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