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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
ANN ALTMAN; ROBERT ALTMAN;
KIMBERLY LARSEN; WENDY FRYE;
GILBERT WALLACE,
Plaintiffs-Appellees,
v.
CITY OF HIGH POINT, North Carolina;
BOBBY RAY PERDUE, in his
individual and official capacities;No. 02-1178
NELSON MOXLEY, in his individual
and official capacities,
Defendants-Appellants,
and
JONI CHASTAIN, in her individual and
official capacities,
Defendant.
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Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, District Judge. (CA-00-671-1)
Argued: January 21, 2003
Decided: May 20, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
____________________________________________________________
Reversed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams joined. Judge Gregory wrote an opinion con-
curring in part and dissenting in part.
COUNSEL
ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE,
SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Brandon Claus Fernald, La Mesa, California, for
Appellees. ON BRIEF: Robert D. Mason, Jr., WOMBLE, CAR-
LYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Car-
olina, for Appellants. David Q. Burgess, Charlotte, North Carolina,
for Appellees.
____________________________________________________________
OPINION
LUTTIG, Circuit Judge:
This case arises out of several shooting incidents in the City of
High Point, North Carolina (the "City" or "High Point"). In each inci-
dent, a High Point animal control officer shot and killed one or more
dogs that were running at large in the city. Plaintiffs, the owners of
the animals, brought suit under 42 U.S.C. § 1983, alleging that the
officers' actions violated their Fourth Amendment rights. The district
court denied the officers' qualified immunity defense, and the officers
have appealed that ruling. Their appeal presents a question of first
impression in this circuit, namely, whether a privately owned dog
falls within one of the classes of property protected by the Fourth
Amendment against unreasonable search and seizure. This issue,
while ostensibly peripheral as a constitutional matter, is nevertheless
of significant importance, and we consider it in depth. As we explain
more fully below, we conclude that the dogs at issue in this case do
qualify as property protected by the Fourth Amendment and that the
officers seized that property. However, because in each instance the
seizure involved was reasonable, we conclude that the officers did not
violate the plaintiffs' Fourth Amendment rights. Accordingly, we
reverse the district court's decision denying summary judgment to the
officers and the City of High Point.
I.
Because this case comes before us on appeal from the denial of
2
summary judgment, except where otherwise noted, the following facts
are recounted in the light most favorable to the plaintiffs, as they are
the nonmovants in this action. Defendants Nelson Moxley and Bobby
Ray Perdue are and were at all times relevant to this opinion
employed by High Point as animal control officers. As animal control
officers, Moxley and Perdue were charged with enforcing the various
High Point ordinances governing dogs. High Point Ordinance § 12-2-
1(a) makes it unlawful for the owner of a dog to allow the animal to
"run at large" in the city. The ordinance defines "at large" to mean "a
dog that is not in an enclosure or otherwise confined, or is not under
the control of the owner or other person by means of a leash, cord or
chain." H.P. Ordinance § 12-2-1(b). Animal control officers are
tasked with impounding any animal found "at large." Id. § 12-2-6 ("It
shall be the duty of the animal control specialist to capture and
impound in the county animal shelter each and every unlicensed dog
or any dog found unlawfully at large in the city as provided in this
chapter."). Finally, city ordinance provides that"[i]t shall be lawful
for the animal control specialist or police officers of the city to tran-
quilize or kill any dog at large within the city which cannot safely be
taken up and impounded." Id. § 12-2-16(b) (emphasis added).1
It was Moxley and Perdue's efforts to enforce these ordinances that
generated the four separate incidents which form the basis of this
case. Each incident involves the shooting of one or more of the plain-
tiffs' dogs by either Moxley or Perdue. It is undisputed that in each
incident, the dog or dogs were running at large within the meaning of
High Point Ordinance § 12-2-16(b). We describe the incidents in
chronological order.
The Larsen Incident. Plaintiff Kimberly Larsen was the owner of
"Heidi," a purebred Rottweiler. Larsen testified that Heidi always
wore a collar and tags. On January 10, 1997, Larsen left Heidi in her
fenced yard while she and a family member left to run some errands.
That same day, Officer Perdue responded to a call about a large,
vicious Rottweiler that was loose and had chased and attacked, or
attempted to attack, a citizen. When Officer Perdue arrived on the
scene, he spoke with Willie Sturdivant, the citizen who had reported
____________________________________________________________
1 Dogs must also wear tags issued by the city. H.P. Ordinance § 12-2-
14.
3
the incident. Sturdivant told Perdue that he had been chased by the
dog and had only been able to escape the attack by beating the dog
off with a stick. Sturdivant was scared to walk back down the street,
so Officer Perdue gave him a ride.
After dropping off Sturdivant, Officer Perdue began searching for
the loose dog. A local woman told Perdue to be careful of the dog
because it was dangerous and aggressive and had been in the streets
chasing cars and people. She also told him where the owners of the
dog lived, although she noted that they were not home. Perdue next
came upon Charles Elkins, a neighbor of the Larsens, walking on the
street, and he stopped to warn Elkins about the loose dog. Elkins
reported that the dog lived at the Larsens' and directed Perdue to the
house. Officer Perdue pulled into the Larsens' driveway, exited his
vehicle with his shotgun, and began to walk toward the home.
Elkins observed what happened next from a distance of about 150
feet. He said that as Perdue walked toward the home, Heidi came
walking around the corner of the house. Heidi slowly approached Per-
due and jumped or lunged from the driveway up into the yard. At this
point, Heidi was ten to twelve feet from Perdue. Heidi then stopped,
turned around, and began walking away from Perdue toward the
street. Perdue then fired, striking Heidi in the hindquarters. He fired
again to end the animal's suffering. Perdue dragged Heidi's remains
to the end of the driveway and called sanitation to dispose of the
body. He then left the scene.2
The Frye Incident. Wendy Frye owned four dogs - "Tut-Tut,"
"Bandit," "Boo Boo," and "Sadie" - that were approximately seven
months old and weighed 15-20 pounds each. The dogs' mother was
a Siberian Husky mixed-breed dog; it is unclear what breed their
father was. The dogs wore collars but did not wear tags. They were
kept in a pen in Frye's backyard but had a tendency to dig under the
pen and escape.
____________________________________________________________
2 Perdue remembers things happening differently. According to Perdue,
he saw the Rottweiler standing in the middle of the street. The Rottweiler
was big and acting in a crazed, aggressive manner by growling and mov-
ing back and forth. The animal suddenly charged him and he used deadly
force in self-defense.
4
On the morning of February 8, 1997, Officer Berman of the High
Point Police Department responded to a call about a pack of dogs
chasing people. According to him, when he arrived on the scene, the
dogs charged his car, growling and showing their teeth. In the pack
were three of Frye's dogs and two larger strays. Officer Berman
remained in his car and called for Officer Perdue. While Berman
waited for Perdue to arrive, the dogs ran across the street and began
harassing a woman who was trying to exit her vehicle. Berman drove
over and blew an air horn to disperse the dogs. The dogs ran, and the
woman was able to leave her car and get to her residence. A man then
came out of the residence. One of the dogs tried to bite him, but Ber-
man again dispersed the dogs with his horn.
Shortly thereafter, Perdue arrived on the scene. The dogs aggres-
sively rushed his truck as soon as he pulled up. One of the dogs
jumped into the window of his truck and Perdue had to beat if off
with his nightstick. When he exited the vehicle, the pack attacked him
and Perdue fired into it with his shotgun, killing two of the dogs (Ban-
dit and Tut-Tut). The rest of the pack disbursed.
The Wallace Incident. Plaintiff Gilbert Wallace owned a Golden
Retriever/Labrador mixed-breed dog named "Sundance." Wallace
asserts that Sundance was a well-behaved, passive dog, but that he
had a habit of escaping from his fenced-in yard by digging under the
fence. Wallace had several other dogs, which he also kept in a fenced
area. Wallace had been cited on six previous occasions for allowing
his dogs to run loose, and he had been warned about the poor condi-
tion of his fence. In addition, Officer Moxley had previously told
Wallace that his dogs were becoming more aggressive.
On January 25, 1999, High Point Police Officer Blue responded to
a call that a dog had bitten someone. When he arrived at the scene,
a dog that Officer Blue described as a "black chow-lab mix," Sun-
dance, charged him. Blue racked his shotgun, and the animal stopped,
but continued to growl. Blue radioed for animal control to respond.
Blue then interviewed the bite victim, Lonnie Baldwin. Baldwin
told Blue that the dog had chased his child to the bus stop. Baldwin
chased the dog to protect his child, and the dog bit him on the hand.
As Baldwin and Blue were talking, Officer Moxley arrived on the
5
scene along with Officer Perdue. At this point, Sundance had
retreated to Wallace's yard and was sitting outside the fence. Moxley
informed Baldwin and Blue that this dog had given him problems in
the past. He then got back in his truck and drove the short distance
to the Wallace house.
Moxley exited his vehicle with his shotgun and proceeded toward
the rear of the truck. At this point, Sundance charged at full speed,
growling and showing his teeth. Moxley raised his shotgun and fired
when Sundance was about five yards away, killing the dog. He then
loaded the remains into his truck so the dog could be tested for rabies.
Sundance was wearing no collar or tags.
The Altman Incident. The most recent of the four incidents involves
plaintiffs Robert and Ann Altman, and their dog "Hot Rod," whose
actual lineage was unknown but who the Altmans thought was at least
part pit bull. According to the Altmans, Hot Rod was a non-
aggressive, obedient dog, who always wore his collar and tags as
required by law.
On the morning of March 24, 2000, Hot Rod was wandering the
streets alone. Terry Evans, who owned a local business, saw Hot Rod
following a meter reader, Roger Hendricks. Evans was familiar with
Hot Rod, having seen him on the street before and having seen him
behave aggressively. Fearing for Hendricks' safety, Evans called 911.
When Officer Moxley arrived, Hot Rod "took off" toward the residen-
tial houses located further down the street. Moxley exited his vehicle
with his shotgun and gave chase. Moxley fired between two of the
houses in the direction of Hot Rod, who was about 75 yards away.
Hot Rod was running behind the houses, and Moxley was running in
front of the houses. He fired again between two houses in the direc-
tion of Hot Rod, who was approximately 50 to 60 yards away. Mox-
ley fired a third shot, and Evans heard Hot Rod "hollar." Hot Rod
emerged from behind the houses bleeding and dragging his hind leg,
but was still running. Moxley had Hendricks retrieve more shells
from his truck, and then pursued the dog. A short time later, a fourth
shot was heard and Moxley emerged dragging the remains of Hot Rod.3
____________________________________________________________
3 Moxley recalls a different version of the events. According to him,
when he arrived at the scene, Hot Rod was growling at Hendricks from
6
The plaintiffs brought suit under section 1983 against High Point,
and Officers Moxley and Perdue, alleging that the officers' actions in
shooting the plaintiffs' dogs constituted unreasonable seizures in vio-
lation of the Fourth Amendment.4 The plaintiffs also asserted state
law tort claims. All defendants moved for summary judgment, and the
officers asserted qualified immunity. The district court rejected the
officers' qualified immunity defense, and the defendants, both the
officers and the City, timely appealed.
II.
Because this appeal involves the denial of qualified immunity, we
consider first whether the facts, viewed in the light most favorable to
the plaintiffs, state a violation of the Fourth Amendment. See Saucier
v. Katz, 533 U.S. 194, 201 (2001).5 If so, we proceed to consider
whether the right was clearly established; that is, whether it would
have been apparent to a reasonable officer in the respective defen-
dants' positions that his actions violated the Fourth Amendment. Id.
at 201-02. We review the district court's denial of qualified immunity
de novo. See Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001).
____________________________________________________________
under some bushes. Moxley got out of his truck with his shotgun and
proceeded toward the back of the truck to get his catchpole. Hot Rod
charged, but stopped and retreated when Moxley raised his gun. Moxley
continued toward the rear of his truck when Hot Rod charged again. This
time, Moxley fired, wounding but not killing the dog. Hot Rod ran, and
Moxley pursued, firing twice more. Finally, after retrieving more shells,
Moxley ended Hot Rod's suffering.
4 Plaintiffs also brought suit against Officer Chastain, the supervisor of
Moxley and Perdue, on a supervisory liability theory. The district court
granted summary judgment to Chastain, and the plaintiffs have not
appealed that ruling.
5 The plaintiffs' complaint also claimed that the officers' actions vio-
lated the Fifth and Fourteenth Amendments insofar as they deprived the
plaintiffs of property without due process of law. The plaintiffs, how-
ever, did not argue that claim below, J.A. 531 n.5, and they have not
raised it on appeal. Thus, the plaintiffs have abandoned their Fifth and
Fourteenth Amendment claim, and we do not consider whether any of
these incidents involved a deprivation of property without due process of
law.
7
A.
The first issue then is whether the plaintiffs' Fourth Amendment
rights have been violated. To resolve this issue, we must determine
whether their dogs fell within the ambit of the Fourth Amendment.
The Fourth Amendment, made applicable to the states through the
Fourteenth Amendment, provides that
[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated. . . .
U.S. Const. amend. IV. Plainly, a dog is not a "person," "house," or
"paper." Thus, in order for a dog to be protected by the Fourth
Amendment, it must fall within the category of "effects."
Neither the Supreme Court nor the Fourth Circuit has ever
addressed the issue whether dogs are "effects." Three other circuits,
the Third, Eighth, and Ninth, have considered whether dogs are pro-
tected by the Fourth Amendment. Those circuits have uniformly con-
cluded, although based only on conclusory assertions, that dogs are
indeed so protected. See Brown v. Muhlenberg Township, 269 F.3d
205, 209-10 (3d Cir. 2001) (holding that dogs are "effects"); Fuller
v. Vines, 36 F.3d 65, 68 (9th Cir. 1994) (same); Lesher v. Reed, 12
F.3d 148, 150-51 (8th Cir. 1994) (dogs are property subject to Fourth
Amendment seizure requirements).6 The complete absence of reason-
____________________________________________________________
6 Defendants argue that the circuit authority is not uniform, pointing to
the Seventh Circuit's decision in Pfeil v. Rogers, 757 F.2d 850 (7th Cir.
1985). In Pfeil, the plaintiff claimed that officers violated his son's
Fourth Amendment rights by entering his property and shooting his dogs.
It is true that the Pfeil court did conclude that the officers' conduct in
shooting the dogs did not support a section 1983 action "because it did
not violate a right guaranteed under the United States Constitution." Id.
at 866. But we think that the defendants read too much into this blanket
statement. It does not appear from the Seventh Circuit's opinion in Pfeil
that the court was considering whether the officers' conduct constituted
a Fourth Amendment seizure of the dogs. Indeed, the Seventh Circuit
characterized the plaintiff's Fourth Amendment claim as one for warrant-
less entry and had dismissed that claim earlier in the opinion. See id. at
865. Because the Seventh Circuit did not consider whether the actions
constituted a Fourth Amendment seizure of the dogs, it can hardly be
said that its opinion included a holding with respect to that issue.
8
ing employed by those circuits, however, renders their dispositions of
only the most minimal persuasive value.
Proceeding to analyze this issue that has been assumed away by the
other circuits that have considered it, our inquiry begins with the text
of the Constitution. James Madison drafted what would ultimately
become the Fourth Amendment. In his final draft, which he submitted
to the Committee of Eleven of the House of Representatives, Madison
proposed an amendment which would read: "The rights of the people
to be secured in their persons, their houses, their papers, and their
other property, from all unreasonable searches and seizures, shall not
be violated . . . ." Annals of Cong., 1st Cong., 1st Sess., p. 452
(emphasis added); see also Nelson B. Lasson, The History and Devel-
opment of the Fourth Amendment to the United States Constitution
310 & n.77 (1937). The Committee of Eleven altered Madison's draft
by replacing "other property" with "effects," and it was that revised
language that ultimately became part of the Constitution. Because
there are no records of the Committee's deliberations, it is unclear
precisely why that change was made.
The effect of that change is clear however; it narrowed the scope
of the amendment. "Other property" would potentially have applied
to all privately owned property, both personal and real. By contrast,
"effects" referred only to personal property, and particularly to goods
or moveables. See Dictionarium Britannicum (Nathan Baily ed.,
1730) (defining "effects" as "the goods of a merchant, tradesman,
&c"); Samuel Johnson, A Dictionary of the English Language (1755)
(defining the plural of "effect" as "Goods; moveables"); 1 Noah Web-
ster, First Edition of an American Dictionary of the English Language
(1828) (defining "effect" as "[i]n the plural, effects are goods; move-
ables; personal estate"). The Supreme Court has since confirmed that
"[t]he Framers would have understood the term`effects' to be limited
to personal, rather than real, property." Oliver v. United States Maine,
466 U.S. 170, 177 n.7 (1984); see also id. at 177 (noting that "the
term `effects' is less inclusive than `property'"). Thus, it appears rea-
sonably clear that, in 1791 when the Fourth Amendment was ratified,
the term "effects" meant goods and moveables.
Under the common law as it existed in 1791, see Wyoming v.
Houghton, 526 U.S. 295, 299 (1999) ("In determining whether a par-
9
ticular governmental action violates [the Fourth Amendment], we
inquire first whether the action was regarded as an unlawful search or
seizure under the common law when the Amendment was framed."),
dogs were not treated as property for most purposes. See, e.g., Citi-
zens' Rapid-Transit Co. v. Dew, 45 S.W. 790, 791 (Tenn. 1898) ("It
is true that at common law a dog was not considered as property.
. . ."); Harold W. Hannah, Animals as Property Changing Concepts,
25 S. Ill. U. L.J. 571, 575 (2001) (noting that "at common law dogs
were not regarded as property"). For example, there was no common-
law crime of larceny for taking and carrying away a dog. See Mullaly
v. New York, 86 N.Y. 365, 366 (1881). This treatment of dogs under
the common law at the time appears to have been a reflection of the
sentiment that dogs "were base in their nature and kept merely for
whims and pleasures" and thus possessed no intrinsic value. Dew, 45
S.W. at 791; see Mullaly, 86 N.Y. at 366-67. At the same time that
dogs enjoyed only a limited property status, however, an owner of a
dog could bring an action of trover for conversion of a dog, and dogs
would pass as assets to the executor or administrator of a deceased
owner. See Mullaly, 86 N.Y. at 366; see also 4 William Blackstone,
Commentaries *236 (stating that a dog owner possessed "a base prop-
erty" in his dogs that was sufficient to "maintain a civil action for the
loss of them").
Thus, at least at the federal level, the prevailing understanding
through much of the nineteenth century was that dogs were "prop-
erty," even if only qualifiedly so. See Nicchia v. People of State of
New York, 254 U.S. 228, 230 (1920) ("Property in dogs is of an
imperfect or qualified nature and they may be subjected to peculiar
and drastic police regulations by the state without depriving their
owners of any federal right."); Sentell v. New Orleans & C.R. Co.,
166 U.S. 698, 701 (1897) ("[P]roperty in dogs is of an imperfect or
qualified nature, and [ ] they stand, as it were, between animals ferae
naturae, in which until killed or subdued, there is no property, and
domestic animals, in which the right of property is perfect and com-
plete."). As a result, at the time of the Founding, and for a period
thereafter, it is unclear whether a dog would have been considered to
be an "effect," i.e., a good or moveable. For, although the dog was
treated as property for some purposes, it was generally valueless in
the eyes of the law.
10
However, while dogs may not have been considered goods or
moveables in every respect, their qualified status as property did ren-
der unto their owners interests similar to those asserted by the plain-
tiffs today. As discussed, at common law a dog owner could bring an
action of trover for conversion of a dog. See Jones v. Craddock, 187
S.E. 558, 559 (N.C. 1936) ("Even in the days of Blackstone, while it
was declared that property in a dog was `base property,' it was never-
theless asserted that such property was sufficient to maintain a civil
action for its loss."). The present action by the plaintiffs, though
brought under a federal statute pursuant to a constitutional amend-
ment, is not in nature unlike a common-law action for trover based
on the officers' conversion of their dogs. In this way, the plaintiffs
clearly assert a right with an analog at common law, a fact which
strongly suggests that, at least to this extent, dogs would have been
protected as "effects" within the meaning of the Fourth Amendment
at common law.
This presumptive conclusion that dogs would have been protected
as "effects" as that term was used at the time of the Framing, and
therefore should be considered effects within the meaning of the
Fourth Amendment, is reinforced by the Supreme Court precedent by
which we are bound. Reviewing the cases in which the Court has
addressed the meaning of "effects," it becomes apparent that the Court
has treated the term "effects" as being synonymous with personal
property. In United States v. Place, 462 U.S. 696 (1983), the Supreme
Court concluded that personal luggage was an "effect" within the
meaning of the Fourth Amendment. See also Bond v. United States,
529 U.S. 334, 336-37 (2000). While Place obviously does not hold
that the term "effects" is coterminous with the universe of personal
property, the Court's discussion does suggest that all seizures of per-
sonal property are subject to the Fourth Amendment's requirements.
See Place, 462 U.S. at 701 (stating that "the Court has viewed a sei-
zure of personal property as per se unreasonable within the meaning
of the Fourth Amendment unless it is accomplished pursuant to a
judicial warrant issued upon probable cause and particularly describ-
ing the items to be seized"). In United States v. Jacobsen, 466 U.S.
109 (1984), the Court considered whether a wrapped parcel contain-
ing cocaine, which was intercepted during shipment, was an "effect."
The Court held that "[w]hen the wrapped parcel . . . was delivered to
the private freight carrier, it was unquestionably an `effect' within the
11
meaning of the Fourth Amendment. Letters and other sealed packages
are in the general class of effects in which the public at large has a
legitimate expectation of privacy. . . ." Id. at 114. As in Place, the
Court's discussion in Jacobsen implies that it considers the term
"property" to be coextensive with the term "effects." See id. at 113
(explaining that "[a] `seizure' of property occurs when there is some
meaningful interference with an individual's possessory interests in
that property").
Jacobsen, and the cases which preceded it, could be read to protect
certain personal property only insofar as the possessor had a legiti-
mate privacy expectation in that property, but in Soldal v. Cook
County, Ill., 506 U.S. 56 (1992), the Court clarified that the Fourth
Amendment's protections extend to property in which there is no par-
ticular privacy or liberty interest. "We thus are unconvinced that any
of the Court's prior cases supports the view that the Fourth Amend-
ment protects against unreasonable seizures of property only where
privacy or liberty is also implicated." Id. at 65; see also id. at 62 (not-
ing that "our cases unmistakably hold that the [Fourth] Amendment
protects property as well as privacy").7 Soldal thereby removed a
potentially significant restriction on the types of property which the
Fourth Amendment protects. The Court did state that "the [Fourth]
Amendment does not protect possessory interests in all kinds of prop-
erty," id. at 62 n.7, but the only example the Court gave of a case
involving an unprotected possessory interest was its decision in
Oliver v. United States Maine. In Oliver, the Court held only that
open fields are not "effects" within the meaning of the Fourth Amend-
ment, reaffirming Justice Holmes' opinion in Hester v. United States,
265 U.S. 57 (1924). See Oliver, 466 U.S. at 176. As discussed above,
the Court also stated that the Framers would have understood the term
"effects" to reference personal, as opposed to real, property. Id. at 177
n.7. Thus, the Supreme Court's cases appear to treat the scope of "ef-
fects" as congruent with the scope of personal property, and, after
____________________________________________________________
7 The Court also explained that the Fourth Amendment's protections do
not change based on the nature of the legal context, i.e., it applies in the
civil as well as a criminal context, Soldal, 506 U.S. at 67, or on the
motive of the government actor engaging in the search or seizure, id. at
69.
12
Soldal, it is clear that there need be no nexus between a privacy or
liberty interest and the possessory interest for Fourth Amendment
protection to attach.
These cases confirm, we believe, the conclusion that dogs merit
protection under the Fourth Amendment. The common law personal
property rights that attached to dogs were at least as strong as those
that have been held sufficient by the Court to qualify other objects as
"effects" entitled to Fourth Amendment protection. For example, the
common law property interest in dogs was certainly as great as the
possessory interest a person has been held by the Court to enjoy today
in illegal narcotics. See Jacobsen, 466 U.S. at 124-25 (concluding that
destruction by officer of trace amount of cocaine for testing purposes
"affect[ed] respondents' possessory interest protected by the [Fourth]
Amendment" and thereby constituted a seizure). And, of course, that
there may be no privacy interest in dogs is no bar to their treatment
as effects, since Soldal explains that such an interest is not an eligibil-
ity requirement for Fourth Amendment protection.8
Accordingly, on the strength of the Constitution's text, of history,
and of precedent, we hold that the plaintiffs' privately owned dogs
were "effects" subject to the protections of the Fourth Amendment.
That dogs are, for Fourth Amendment purposes, "effects" under the
analysis employed in the Supreme Court cases surveyed above is con-
sistent with the fact that, as the common and statutory law in the
states has developed, dogs have come to be recognized as property
even under state law. While not recognized at the federal level for
some time, early in the nineteenth century dogs began to gain status
under state property laws, often by virtue of statutory enactment but
also through the evolution of the common law. So it was that in New
York, the Court of Appeals held in the 1881 case of Mullaly v. New
York that the old common-law rule that there could be no larceny of
a dog had been changed by legislation. See Mullaly, 86 N.Y. at 368.
The Court of Appeals reasoned that "[t]he artificial reasoning upon
which these [old common-law] rules were based are wholly inapplica-
____________________________________________________________
8 For that matter, the police officers' purpose in shooting the dogs is
also irrelevant to their status under the Fourth Amendment. See Soldal,
506 U.S. at 69.
13
ble to modern society. . . . Large amounts of money are now invested
in dogs and they are largely the subject of trade and traffic. In many
ways they are put to useful service, and so far as pertains to their
ownership as personal property, they possess all the attributes of other
personal property." Id. at 367-68. Of particular note, the Court of
Appeals in Mullaly concluded that dogs were "personal property,"
which was defined in New York as "`goods, chattels, effects, evi-
dences of rights of action,' and certain written instruments." Id. at 368
(emphasis added). By 1898, the Supreme Court of Tennessee could
confidently state that the old common-law rules denying treatment as
property to dogs had been abandoned and that "dogs have now a dis-
tinct and well-established status in the eyes of the law." Dew, 45 S.W.
at 791.
North Carolina is no stray when it comes to the trend in favor of
treating dogs as personal property; indeed, North Carolina appears to
have been at the forefront of that trend. In the case of Dodson v.
Mock, 20 N.C. 282 (1838), the Supreme Court of North Carolina con-
sidered a civil action by a plaintiff to recover damages for the killing
of his dog. The defendant contended that the dog was not property
because it had no value, and therefore no action would lie for an
injury to it. The Supreme Court of North Carolina rejected that argu-
ment and held that "[d]ogs belong to that class of domiciled animals
which the law recognises as objects of property, and whatever it
recognises as property, it will protect from invasion by a civil action
on the part of the owners." Id.; see also, e.g., State v. Smith, 72 S.E.
321, 322 (N.C. 1911) (referring to dogs as "personal property");
Jones, 187 S.E. at 559 ("While from the earliest times dogs have been
the companions of man, for a long period their legal status was of low
degree, and it was formerly held they were not property, and hence
not the subjects of larceny. But in more recent times this ancient doc-
trine has given place to the modern view that ordinarily dogs consti-
tute species of property, subject to all the incidents of chattels and
valuable domestic animals."). Today, dogs are also treated as personal
property by the statutes of North Carolina. See, e.g., N.C. Gen. Stat.
§ 14-81 (treating larceny of dogs as a property offense); id. § 67-
4.1(a)(3) (defining "owner" as "any person or legal entity that has a
possessory property right in a dog").
14
B.
Given our holding that the dogs at issue in this case were "effects"
within the meaning of the Fourth Amendment, we must next consider
whether the officers' actions in the case at bar constituted "seizures"
of the dogs and, if so, whether those seizures were constitutionally
permissible. Turning to the former question, we think it clear that the
officers' actions constituted a seizure of the dogs. A Fourth Amend-
ment "seizure" of personal property occurs when "there is some
meaningful interference with an individual's possessory interests in
that property." Jacobsen, 466 U.S. at 113. Destroying property mean-
ingfully interferes with an individual's possessory interest in that
property by changing a temporary deprivation into a permanent depri-
vation. See id. at 124-25. Thus, when the officers destroyed the dogs,
they "seized" the plaintiffs' "effects." See Brown, 269 F.3d at 210;
Fuller, 36 F.3d at 68.
In order for the officers' warrantless seizures of the plaintiffs' dogs
to be constitutional, the seizures must have been "reasonable." A sei-
zure of personal property conducted without a warrant is presump-
tively unreasonable. See Place, 462 U.S. at 701. Under the basic
reasonableness calculus, a court must "balance the nature and quality
of the intrusion on the individual's Fourth Amendment interest
against the importance of the governmental interests alleged to justify
the intrusion." Id. at 703. The reasonableness calculus is objective in
nature; it does not turn upon the subjective intent of the officer. Cf.
Graham v. Connor, 490 U.S. 386, 397 (1989) (stating, in the context
of a Fourth Amendment excessive force claim, that "the question is
whether the officers' actions are `objectively reasonable' in light of
the facts and circumstances confronting them, without regard to their
underlying intent or motivation"). The Supreme Court has admon-
ished that "[t]he calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second
judgments - in circumstances that are tense, uncertain, and rapidly
evolving - about the amount of force that is necessary in a particular
situation." Id. at 396-97. Finally, in judging the reasonableness of the
officers' actions, we assess only the reasonableness of their actions
vis-a-vis the dogs; we do not consider potential harm to third parties.
Cf. Howerton v. Fletcher, 213 F.3d 171, 175 (4th Cir. 2000) (holding
that the "risk posed to third parties by the official use of force is not
15
to be considered" in determining whether an official used excessive
force as against a particular plaintiff). The task of this court is to put
itself into the shoes of the officers at the time the actions took place
and to ask whether the actions taken by the officers were objectively
unreasonable.
Engaging in that exercise in the instant case can render only the
conclusion that, in every incident, the actions of Officers Moxley and
Perdue were objectively reasonable. Before delving into the peculiar
facts of each incident, we note the overarching interests involved. On
the one hand, the public interests in this case are significant. The state
of North Carolina and the City of High Point have a substantial inter-
est in protecting their citizens from all the dangers and nuisances
associated with dogs. Dogs may harass or attack people, livestock, or
other pets. Dogs can maim or even kill. Dogs may also spread disease
or cause property damage. On the other hand, the private Fourth
Amendment interests involved are appreciable. Dogs have aptly been
labeled "Man's Best Friend," and certainly the bond between a dog
owner and his pet can be strong and enduring. Many consider dogs
to be their most prized personal possessions, and still others think of
dogs solely in terms of an emotional relationship, rather than a prop-
erty relationship.
The case before us does not present both interests at their zenith,
however. When a dog leaves the control of his owner and runs at
large in a public space, the government interest in controlling the ani-
mal and preventing the evils mentioned above waxes dramatically,
while the private interest correspondingly wanes. Put simply, while
we do not denigrate the possessory interest a dog owner has in his pet,
we do conclude that dog owners forfeit many of these possessory
interests when they allow their dogs to run at large, unleashed, uncon-
trolled, and unsupervised, for at that point the dog ceases to become
simply a personal effect and takes on the nature of a public nuisance.
This understanding is reflected in High Point Ordinance § 12-2-16,
which provides that when a dog is running at large it may be tranquil-
ized or even killed if it cannot be safely taken up and impounded.
With that understanding, we turn to the particular facts before us.
Again, it is undisputed that in each incident, the dog or dogs involved
were running at large. In the Larsen Incident, Officer Perdue was con-
16
fronted with a Rottweiler, a large and dangerous breed of dog, that
was loose and had been roaming the neighborhood. The dog had
already attacked one person in the neighborhood, and Perdue would
have understood from his conversations with people in the neighbor-
hood that the dog was aggressive and dangerous. While the dog did
not actually attack Officer Perdue, it did move back toward the road
where it would once again pose a danger to the neighborhood. Perdue
acted to stop the dog from escaping by the one means available to him
at that instant - a shotgun. While, in hindsight, it may appear that
Perdue had other options available, we are not prepared to dispute his
judgment at the moment, confronted as he was by a large, dangerous
Rottweiler that had already attacked one person in the neighborhood.
Officer Perdue's actions in the Frye Incident were likewise reason-
able. He was confronted not simply by a single dog, but by a pack of
five dogs that had attacked persons in the neighborhood and another
officer. Indeed, one of the dogs had attacked Perdue himself, attempt-
ing to jump into his truck window. When he exited his vehicle, the
pack charged him. Perdue was entitled to shoot the dogs in self-
defense. The only fact that weighs against the reasonableness of Per-
due's actions is that three of the dogs were young and not particularly
large. While that fact may be significant when an officer confronts a
smaller dog one-on-one, it is of less moment when the officer is
attacked by a pack of dogs. Obviously, the danger presented by a dog
increases significantly when that dog joins others in a pack.
Officer Moxley's actions in the Wallace Incident were also clearly
reasonable. There, the officer was confronted with a dog that had
already attacked and wounded one person in the neighborhood.
Moments after Moxley exited his truck, the animal attacked him.
Moxley acted reasonably in defending himself using the shotgun he
was carrying at the time.
The Altman Incident presents a somewhat closer case since Hot
Rod had not actually attacked a person. We nevertheless conclude
that Officer Moxley's actions were reasonable. Hot Rod was part pit
bull, and pit bulls, like Rottweilers, are a dangerous breed of dog.
While Hot Rod had not attacked anyone, his behavior toward the
meter reader was sufficiently aggressive to cause Evans to call the
police. Responding to that call, Officer Moxley was immediately con-
17
fronted with a fleeing dog. It was not unreasonable for him to con-
clude, in that split second as Hot Rod sped away, that he could not
safely capture the animal. Thus, as High Point Ordinance § 12-2-
16(b) instructs him to do, Officer Moxley attempted to and succeeded
in killing the animal, thereby removing, for all Moxley knew, a poten-
tially dangerous pit bull from the public streets.
Because none of the incidents involved objectively unreasonable
action by the officers, we therefore hold that the officers committed
no unreasonable seizure in violation of the Fourth Amendment. It is
important to note that we are not saying the officers' responses in
these cases were the best possible responses. We are only saying that,
under the circumstances existing at the time the officers took the
actions and in light of the facts known by the officers, their actions
were objectively reasonable. In retrospect, it may have been prefera-
ble if the officers attempted first to use nonlethal force in every
instance. Such nonlethal force may have been successful, but, tell-
ingly, it may not have been. Even dog owners can find their pets to
be unpredictable at times. How much more so a person who is not
intimately familiar with the behavior of the particular animal (as nei-
ther Officers Perdue nor Moxley were in any of these cases) and who
is forced to confront the dog for the first time in an unsupervised,
unenclosed environment.9
We are also not passing on the results reached by the other circuits
that concluded, on the facts before them, that the destruction of pet
dogs was unreasonable. The fact that all the dogs in the instant case
were running at large, uncontrolled and with no owner looking on,
renders this case distinguishable from the Third Circuit's decision in
Brown and the Ninth Circuit's decision in Fuller. In Brown, the
owner of the dog was looking on and willing to assert control over
the animal. See Brown, 268 F.3d at 211 (concluding that a state may
not "consistent with the Fourth Amendment, destroy a pet when it
poses no immediate danger and the owner is looking on, obviously
____________________________________________________________
9 In one incident - the Wallace Incident - Officer Moxley had
encountered the dog, Sundance, before. However, Moxley's prior
encounters with Sundance had given him the impression that the dog was
aggressive. As a result, that prior experience only supports the reason-
ableness of Moxley's response when Sundance attacked him.
18
desirous of retaining custody"). In Fuller, the owners of the dog were
standing in their front yard with the dog when it was shot. See Fuller,
36 F.3d at 66. The private Fourth Amendment possessory interests are
obviously stronger when, although the dog is unleashed, the owner is
nearby and attempting to assert control over the dog. And the public
interest in control of the dog is correspondingly lessened when a pri-
vate owner is available to assert control.10
Given our conclusion that the officers' actions did not violate the
plaintiffs' Fourth Amendment rights, we need not reach the second
step of the qualified immunity analysis and determine whether the
right was clearly established.
III.
Our colleague, Judge Gregory, concurs with our conclusions that
dogs are "effects" for purposes of the Fourth Amendment and that the
dogs at issue in this case were the objects of warrantless seizures.
Post at 29. He dissents from our resolution of the question of whether
a constitutional violation occurred. Judge Gregory criticizes us for
"improper[ly] focus[ing] on `the particular facts' of each, specific
incident." Id. at 30. Instead, he prefers to view the case "as a general
matter" and concludes that "viewing the evidence in the light most
favorable to the plaintiffs, it is apparent that`the facts alleged show
____________________________________________________________
10 High Point has also appealed the denial of summary judgment. Nor-
mally, High Point's appeal would be improper because the denial of
summary judgment is not a final order subject to interlocutory appeal and
High Point cannot defend on the basis of qualified immunity. However,
our resolution of the claims against Officers Moxley and Perdue fully
resolves the claims against High Point as well, since a municipality can-
not be liable in the absence of a constitutional violation by one of its
agents. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). For
that reason, we find that the issues raised by High Point on appeal are
"inextricably intertwined" with those raised by the officers. Accordingly,
we will exercise pendent appellate jurisdiction over High Point's appeal
and reverse the district court's denial of summary judgment as to the
City. See Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.
1995) (concluding that pendant appellate jurisdiction was appropriate
because resolution of claims against officer fully resolved the claims
against the municipality).
19
the officer[s'] conduct violated a constitutional right.'" Id. at 38. The
dissent then proceeds to consider whether Officers Moxley and Per-
due are entitled to qualified immunity. Such immunity would be inap-
propriate here, reasons the dissent, because an officer violates clearly
established federal law "when he shoots and kills an individual's fam-
ily pet when that pet presented no danger and when nonlethal meth-
ods of capture would have been successful." Id. at 38.
It is the dissent's analysis that is contrary to clearly established pre-
cedent, though. For fear that that flawed analysis will further erode
the clarity of qualified immunity law, we feel that we must address
some of the dissent's errors.
A.
First, the dissent's only apparent authority for its conclusion that
the seizures at issue in this case were unreasonable is its own asser-
tion that Officers Moxley and Perdue failed to comply with some
High Point City ordinances and with certain High Point Police
Department regulations. The dissent is replete with citations to these
sources, see post at 36, 37, 38, 41, 42, to the near complete exclusion
of all other forms of authority. In short, the dissent appears to reason
that the officers were acting unconstitutionally because they violated
the standards set by city ordinance and police department regulation.
This court, and the Supreme Court, have both rejected such reason-
ing categorically. Recently, in Robles v. Prince George's County,
Maryland, 302 F.3d 262 (4th Cir. 2002), the Fourth Circuit consid-
ered whether police officers who bound a defenseless man to a pole
with flex cuffs at three in the morning in a deserted parking lot and
then abandoned him, all with admittedly no legitimate law enforce-
ment purpose, were entitled to qualified immunity. This court found
that the officers had committed a constitutional violation under Bell
v. Wolfish, 441 U.S. 520 (1979), but, despite the officers' utterly inde-
fensible behavior, we nevertheless awarded them qualified immunity.
Said the court,
[t]he Constitution is not a "font of tort law" to be "superim-
posed upon whatever systems may already be administered
by the States." The officers' conduct violated police regula-
20
tions as well as state law and was dealt with under those
provisions. But not every instance of inappropriate behavior
on the part of police rises to the level of a federal constitu-
tional violation.
Id. at 271 (internal citation omitted) (former emphasis added); see
also, e.g., Screws v. United States, 325 U.S. 91, 108 (1945)
("Violation of local law does not necessarily mean that federal rights
have been invaded."). To conclude, as apparently would the dissent,
from the mere occurrence of a state law violation, much less a viola-
tion of city ordinance or police regulation, that a federal constitutional
violation must also have transpired, is to engage in non sequitur. The
dissent argues that such is not the case because"[f]lagrant disregard
of these [local] laws . . . is relevant from an evidentiary perspective
to show that a reasonable officer confronting the same situations as
the defendants would have acted differently." Post at 37. The logical
flaw of that argument lies in its unspoken premise, namely that the
standards set by local law in fact coincide with the reasonableness
standards set by the Fourth Amendment. That these two independent
authorities would happen to be in perfect alignment is not impossible,
but it seems unlikely, and the dissent has proffered no reasons to bol-
ster its premise that such is the case.
B.
Second, in keeping with what appears to be an emerging interpre-
tive trend in this circuit prompted obviously by discomfort with the
court's decision in Robles v. Prince George's County, see Jones v.
Buchanan, 325 F.3d 520 (4th Cir. 2003); Robles v. Prince George's
County, Maryland, 308 F.3d 437 (4th Cir. 2002) (opinion concurring
in the denial of rehearing en banc), the dissent adopts a revisionist
reading of that decision. The dissent describes Robles as "holding that
a reasonable officer could not have been expected to anticipate that
ten to fifteen minutes of unauthorized detention would amount to a
greater than de minimis injury." Post at 39.11 Similarly, the dissent
opines that "[i]n Robles, the Court's constitutional calculation of what
____________________________________________________________
11 A necessary element of the plaintiff's case in Robles was proof that
he had suffered more than de minimis injury. See Robles, 302 F.3d at
269.
21
would be a de minimis injury was an unusually close call." Id. at 48.
To support its interpretation of Robles, the dissent relies heavily, not
on Robles itself, as one might expect, but rather on two other opin-
ions, this court's decision in Jones v. Buchanan and the opinion con-
curring in the denial of rehearing en banc in Robles. The former
opinion, which mentioned Robles only in the penultimate footnote,
certainly did not contain a holding as to the holding of Robles, con-
trary to the dissent's suggestion. The latter opinion, as I have else-
where explained, see Jones, 325 F.3d at 538-40 (Luttig, J.,
dissenting), also sheds no light on the holding of Robles and, indeed,
the dissent's reliance on the concurrence in the denial of rehearing is
merely another example of the tendency of such opinions to sow con-
fusion as to the law.
Turning to the actual language used in the Robles opinion, it is
clear that the court did not rest its qualified immunity analysis on the
closeness of the question of whether there had been more than de
minimis injury. There is no mention of the closeness of the injury in
the portion of the court's opinion devoted to determining whether
there had been a violation of clearly established federal law. That por-
tion of the opinion simply explains that
[t]he cases cited by plaintiff [as putting the defendants on
notice] . . . are inapposite. They involve instances where
detainees were subject to physical abuse or prolonged and
inhumane conditions of detention. Although the officers'
actions in this instance were foolish and unorthodox, it is
also not clear that at the time they acted they should have
reasonably known that their conduct violated Robles' con-
stitutional rights.
Robles, 302 F.3d at 271 (internal citations omitted). The Robles court
clearly relied only on the absence of factually similar legal authority.
The dissent chides us for failing to recognize that the legal authority
was factually dissimilar only "because Robles' case presented the
Court with a closer call on the de minimis inquiry." Post at 33. But
a statement that the injuries were different could be read to connote
either difference in kind, i.e., physical abuse as opposed to mental
anguish, or difference in quantity, i.e., that Robles' injuries were of
a lesser magnitude. The former reading provides no support to the dis-
22
sent and even if Robles can be read to state the latter, such would
establish merely that Robles' case was closer than those other cases,
not that it was itself a close case with respect to de minimis injury.
The court does discuss the quantitative degree of injury in its anal-
ysis of whether the plaintiff had established a constitutional violation
at all. That discussion, however, does not even hint that the question
was close. If anything, it bespeaks the contrary. Said the court,
any reasonable person would have been upset by what hap-
pened here. Robles was tied up in a dark and deserted loca-
tion in the middle of the night. He did not know when or if
anyone would come to rescue him or who might discover
him. The resulting injury was more than de minimis.
Id. at 270.
Presumably reading this same language from Robles, the dissent
divines that the entire Robles opinion turned on the closeness of the
injury question. As the dissent would have it, the Robles court's state-
ment that "the resulting injury was more than de minimis" clearly
shows that in fact the de minimis injury issue was an "unusually close
call," over which the court was torn. Then, exhausted from its strug-
gle with this difficult question - which, incidentally, resulted in only
a single paragraph of analysis - the panel decided that rather than
explicitly mentioning how pivotal that issue was to its qualified
immunity analysis, it would instead incorporate its implicit internal
struggle into that analysis sub silentio.
We are chary of an interpretive methodology, such as the dissent's,
that would allow for hidden reasoning and implicit holdings. Reading
the opinion as it was written, one cannot but conclude that the Robles
opinion turned only on what the Robles opinion says it turned on -
the lack of factually similar legal precedent. This is not to say that the
Robles opinion would not make sense if it read as the dissent and oth-
ers would have it read. It is merely to say that it is not susceptible to
such a reading.
C.
Third, the dissent's qualified immunity analysis is seemingly prem-
ised upon standards foreign to the precedent in this area. It is certainly
23
true that an officer is not entitled to qualified immunity when he vio-
lates clearly established federal law. But to argue that the conditions
that must obtain in order to establish a clear violation are present in
this case is counterfactual.
To establish a clear violation of a federal right,"[t]he contours of
the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say
that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful; but it is to
say that in the light of pre-existing law the unlawfulness must be
apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal
citation omitted). A clear violation of federal law may occur when
precedent, either from the Supreme Court, the circuit in which the
case arises, or a consensus of cases from other circuits, puts the offi-
cer on notice that his conduct is unconstitutional. See Wilson v.
Layne, 526 U.S. 603, 617 (1999).
The dissent's effort to adduce relevant legal authority is ineffective.
At the time Officers Moxley and Perdue acted, neither the Supreme
Court nor the Fourth Circuit had held that dogs were "effects" within
the meaning of the Fourth Amendment. Nor had either court issued
any opinion as to the Fourth Amendment reasonableness standards
governing seizure of dogs. Indeed, a review of the Supreme Court's
cases would have revealed that "dogs . . . may be subjected to peculiar
and drastic police regulations by the state without depriving their
owners of any federal right," Nicchia, 254 U.S. at 230, a statement
that hardly would have put Officers Moxley and Perdue on notice that
their actions violated federal law.
Perhaps sensing this weakness, the dissent seeks to marshal a con-
sensus of cases from other circuits, but no such consensus existed at
the time of the actions at issue here. The only circuit cases of any rel-
evance were Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994), and Fuller
v. Vines, 36 F.3d 65 (9th Cir. 1994). The dissent asserts that these
cases held "that an officer commits an unreasonable, warrantless sei-
zure of property . . . when he shoots and kills an individual's family
pet when that pet presented no danger and when nonlethal methods
of capture would have been successful." Post at 38. According to the
24
dissent, these cases also held that such a right was clearly established.
See id. at 44.
The dissent's ascription of such a holding to Lesher is baffling. The
claim at issue in Lesher was whether officers violated the Fourth
Amendment by taking a dog from the plaintiffs' home. See Lesher,
12 F.3d at 150 ("The Leshers complain that [the] officers . . . removed
their dog from their home without their consent."). The opinion says
nothing about a shooting. While Lesher did hold that such police
action could constitute a Fourth Amendment seizure, it remanded to
determine whether the seizure was unreasonable. Id. at 151. More-
over, no qualified immunity defense was mentioned in Lesher, so nat-
urally there was no holding as to whether the Fourth Amendment
right asserted was clearly established. Thus, every fact or holding the
dissent attributes to Lesher was either expressly disclaimed by the
opinion itself or not mentioned because it did not exist.
The dissent is left with Fuller v. Vines, which, as explained above,
is distinguishable and thus of little relevance. Indeed, the iteration of
that case on which the dissent relies to establish the proposition that
the right was clearly established has, by its own terms, no preceden-
tial value. See post at 44 (citing Fuller v. Vines, 1997 WL 377162
(9th Cir.) (unpublished)).
There is one remaining avenue open to the dissent. Qualified
immunity is also inappropriate when the action at issue was so obvi-
ously unconstitutional that, even though no precedent was factually
similar, any reasonable officer would have known from the general
contours of the law that his action was in violation thereof. See United
States v. Lanier, 520 U.S. 259, 271 (1997) ("But general statements
of the law are not inherently incapable of giving fair and clear warn-
ing, and in other instances a general constitutional rule already identi-
fied in the decisional law may apply with obvious clarity to the
specific conduct in question, even though `the very action in question
has [not] previously been held unlawful[.]'" (quoting Anderson v.
Creighton, 483 U.S. at 640)). This is a difficult standard to satisfy, see
Lanier, 520 U.S. at 271 (suggesting that a section 1983 case accusing
welfare officials of selling foster children into slavery would satisfy
the standard), and it has been rendered even more so in this circuit by
the Robles decision. For, if binding a man to a pole in the middle of
25
a deserted parking lot at three in the morning and abandoning him all
for no legitimate law enforcement purpose was not clearly unconstitu-
tional, then few things will be. Indeed, it follows a fortiori from the
fact that it was far from obvious, even to a court of law, that dogs are
"effects" protected by the Fourth Amendment, that the officer on the
beat could not reasonably be expected to know that his seizure of a
dog might violate the Fourth Amendment.
Despite the difficulty of the issue of whether dogs are even pro-
tected by the Fourth Amendment, the dissent seemingly believes that,
unlike lashing a defenseless man to a pole in the middle of the night
and leaving him, shooting dogs that are running at large does present
one of those rare instances of a clear constitutional violation, notwith-
standing the absence of relevant precedent. Says the dissent,
Moxley and Perdue insisted on disregarding local law by fir-
ing buckshot throughout the City's neighborhoods, and as a
result, they killed several nondangerous and nonthreatening
dogs owned by the plaintiffs as family pets. Viewing the
facts in the light most favorable to the plaintiffs, it is clear
that the officers carried out these warrantless seizures with-
out any concern for the public's safety. As a result, Moxley
and Perdue must be expected to know that their shooting
spree was unconstitutionally unreasonable.
Post at 46.
This observation is at least arguably accurate if the dissent intends
to use the term "unreasonable" colloquially, although such would be
irrelevant to the Fourth Amendment analysis at issue in this case. To
supply the "unconstitutionally" modifier, however, gives rise to the
expectation that the standards used to assess reasonableness are those
supplied by the Constitution itself. Reasonableness alone is nothing
but a standard after all. One cannot assess the reasonableness of an
action without taking into account certain factors. For legal purposes,
those factors are provided by the substantive area of the law that gov-
erns the case and they form the parameters of the reasonableness
judgment. So it is that Fourth Amendment excessive force reasonable-
ness involves the assessment of different factors than, say, the ques-
tion of whether an agency's interpretation of an ambiguous statute
26
that it administers is reasonable. See Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
When we speak of Fourth Amendment reasonableness, we are tak-
ing many factors into consideration, but not all. We are not, for exam-
ple, considering the potential harm to third persons or animals. Cf.
Howerton v. Fletcher, 213 F.3d at 175. Yet the dissent seems to be
taking such harms into account in its analysis. See, e.g., post at 35 ("If
anything, it is clear that the decision to shoot was made in spite of the
fact that it would dramatically increase the danger to the public."
(emphasis added)); id. at 45. Nor do we treat as dispositive possible
violations of state or local law, or police regulation. Yet the dissent's
analysis relies almost exclusively on purported violations of city law
and police practice to establish a constitutional violation and to deny
immunity. See, e.g., post at 38, 41, 42, 43, 46. We think it clear that
the dissent has not actually engaged in Fourth Amendment reason-
ableness analysis at all, but rather has simply given its personal opin-
ion as to the appropriateness of the officers' actions. So understood,
we reiterate that we do not necessarily disagree with the dissent's
opinion, but only with its conclusion that the Constitution imposes or
permits imposition of such personal standards upon the officers in this
case. Since, under the factors provided for consideration by the Fourth
Amendment, the officers' conduct was not violative of the Constitu-
tion and a fortiori not so clearly so as to deprive them of qualified
immunity, the dissent's willingness to allow this case to proceed finds
no basis in the law of qualified immunity.
What really seems to be driving the dissent is a concern that Offi-
cers Moxley and Perdue are out to get the animals of High Point. The
dissent describes the unfortunate encounters these officers have had
with various animals on occasions predating the incidents at issue
here, and concludes that "Moxley and Perdue adopted a . . . cavalier
and reckless attitude towards animal control." Id. at 37. Time and
again, the dissent implies that Officers Moxley and Perdue were
unreasonable because of their history of animal shootings and because
of the officers' personal views regarding the most efficacious meth-
ods of animal control. See, e.g., id. at 42-43 (quoting Officer Moxley
on the use of deadly force); id. at 45.
Such subjective considerations, however, are irrelevant as a matter
of law. Both the analysis regarding the merits of the constitutional
27
violation and the qualified immunity analysis focus on whether the
officer acted in an objectively reasonable manner in this particular
case, without regard to the officer's actual subjective intent or malice
and without regard to possibly inappropriate actions the officer took
on other occasions. See Graham, 490 U.S. at 397 ("An officer's evil
intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force."); Crawford-El v. Britton, 523
U.S. 574, 588 (1998) ("[A] defense of qualified immunity may not be
rebutted by evidence that the defendant's conduct was malicious or
otherwise improperly motivated. Evidence concerning the defendant's
subjective intent is simply irrelevant to that defense."). Thus, the dis-
sent's proffer of what amounts to little more than character evidence
with respect to Officers Moxley and Perdue is simply not germane.
Certainly if Officers Moxley and Perdue have engaged in a practice
of malicious and unnecessary killing of animals, such conduct is wor-
thy of censure. Yet we would incur greater censure, and deservedly
so, were we to allow our own personal views of the appropriateness
of particular actions to color our interpretation of what the Constitu-
tion requires.
CONCLUSION
The judgment of the district court is reversed and the case is
remanded with instructions to enter judgment for the defendants -
Officers Moxley and Perdue, and the City of High Point.
REVERSED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I.
I concur with the majority's conclusion that an individual's dog is
an "effect" for purposes of the Fourth Amendment, and with the
Court's finding that the dogs at issue in this case were the objects of
warrantless seizures. I respectfully dissent, however, from the majori-
ty's consideration of the qualified immunity issue in Part II.B. In par-
ticular, I am disturbed by the majority's finding that the officers'
actions in each instance were reasonable, based as it is on the majori-
28
ty's dogged refusal to consider the facts in the light most favorable
to the nonmovants. Additionally, I am troubled by the majority's con-
fusion of the qualified immunity test announced by the Supreme
Court in Saucier v. Katz, 533 U.S. 194, 201 (2001). Rather than rec-
ognizing the two, distinct steps outlined by the Saucier Court, the
majority errs by effectively conflating the two prongs and creating a
one-step test.
As explained below, I conclude that the plaintiffs, as a general mat-
ter, have demonstrated a violation of their constitutional rights to be
free from unreasonable seizures. See Saucier, 533 U.S. at 201. Addi-
tionally, I find that in the specific context of each incident, viewing
the incidents in the light most favorable to the plaintiffs, the plaintiffs'
constitutional rights were clearly established. Accordingly, I would
affirm the district court's ruling that Officers Moxley and Perdue are
not entitled to qualified immunity, and that the City of High Point is
not entitled to summary judgment.
II.
A.
Officers performing discretionary duties are entitled to qualified
immunity if "their conduct does not violate clearly established statu-
tory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800. 818 (1982). Officers
Moxley and Perdue are entitled to qualified immunity unless: (1)
"[t]aken in the light most favorable to the party asserting the injury,
. . . the facts alleged show the officer[s]' conduct violated a constitu-
tional right"; and (2) the right was "clearly established . . . in the spe-
cific context of the case." Saucier, 533 U.S. at 201. See also Mansoor
v. Trank, 319 F.3d 133, 137 (4th Cir. 2003).
The majority's finding that the plaintiffs have failed at the first step
of the qualified immunity test is rooted primarily in the Court's
improper focus on "the particular facts" of each, specific incident.
Ante, at 17. At the first stage of our analysis, we are merely to con-
sider the "threshold question" of whether any "constitutional right
would have been violated were the [plaintiffs'] allegations estab-
lished." Saucier, 533 U.S. at 201. "[I]f, taking the allegations or evi-
29
dence (depending on the procedural posture of the case) in the best
light for the plaintiff, the plaintiff has stated a violation of a constitu-
tional right, we proceed to the second step." Jones v. Buchanan, ___
F.3d ___, No. 01-2280, slip op. at 8 (4th Cir. Apr. 15, 2003). In con-
ducting this initial inquiry, the Supreme Court has "assume[d] a con-
stitutional violation could have occurred under the facts alleged based
simply on the general rule prohibiting excessive force, [and] then
proceed[ed] to the question whether this general prohibition against
excessive force was the source for clearly established law that was
contravened in the circumstances this officer faced." Saucier, 533
U.S. at 207-08.
Similarly, this Court in Robles v. Prince George's County, 302
F.3d 262 (4th Cir. 2002), found that a pretrial detainee satisfied the
first prong of the qualified immunity inquiry with his allegation that
he suffered a deprivation of a due process right when Prince George's
County police officers tied him to a metal pole in a deserted shopping
center and abandoned him there at 3:30 a.m., only reporting the inci-
dent to the neighboring Montgomery County Police Department. Id.
at 267-70. Ten to fifteen minutes later, Montgomery County officers
arrived to untie Robles and take him into custody. Id. at 267. To make
his constitutional showing, Robles had to show, in part, "that the
injury resulting from [the officers'] actions was more than de
minimis." Id. at 269. Even though Robles suffered no physical injury,
and even though his detention lasted as little as ten minutes, we found
that the resulting mental and emotional distress suffered by Robles
was "more than de minimis." Id. at 270. As such, he successfully
alleged a violation of a constitutional right. In Robles, the Court's
constitutional calculation of what would be a de minimis injury was
an unusually close call, and for this reason, it could not be said, at the
second stage of the qualified immunity analysis, that the constitu-
tional violation was "clearly established" at the time of Robles'
unlawful detention.
Peculiarly, the majority expresses concern with this straightforward
reading of Robles, and is instead bent on adopting an interpretation
of the decision that has already been rejected by this Circuit. In Jones
v. Buchanan, we noted, "Rather than simply proving that the police
acted unreasonably in violation of the Fourth Amendment, Robles had
to prove that the police had violated the Due Process Clause," which
30
required the application of "a far more rigorous standard than at issue"
in a Fourth Amendment consideration. No. 01-2280, slip op. at 21-22
n.8. We further explained that the due process burden "is a difficult
burden for any plaintiff, but particularly so for Robles since he con-
ceded that no one bothered him during the 10-minute ordeal, admitted
that he suffered no physical injury, and offered no objective evidence
(e.g., lost wages or medical testimony) to support his claim of psycho-
logical injury." Id. at 22 n.8. The Jones Court found these distinctions
to be dispositive, and accordingly held, notwithstanding our decision
in Robles, that officers are not entitled to qualified immunity when
they knock an intoxicated individual to the floor, "jump[] on him,
crushing his nose and lips, and bruising his ribs," when that individual
is "unarmed, locked in a room by himself, and handcuffed with his
wrists behind his back." Id. at 15.
Judge Luttig authored a dissent in Jones, which the majority of that
panel found to be "as puzzling as it is unpersuasive." Id. at 21 n.8. In
the face of what is now Circuit precedent, Judge Luttig continues to
press this same, discarded understanding of Robles, positing, "The
Robles court clearly relied only on the absence of factually similar
legal authority" in ruling that the due process violation at issue in that
case was not clearly established. Ante, at 23. Essentially, the majority
reads Robles as standing for the proposition that, unless a plaintiff can
point to a case directly on point, the officers in question will be enti-
tled to qualified immunity. The majority's interpretation of Robles,
however, was rejected not only by the Jones Court, but also by the
Robles Court itself. While an officer must be given notice that his
unlawful actions may also be unconstitutional, "notice does not
require that the `very action in question has previously been held
unlawful. . . .'" Robles, 302 F.3d at 270 (quoting Wilson v. Layne, 526
U.S. 603, 615 (1999)).
Even more, the Supreme Court has clarified that "officials can still
be on notice that their conduct violates established law even in novel
factual circumstances. Indeed, in [United States v.] Lanier, [520 U.S.
635 (1987)], [the Supreme Court] expressly rejected a requirement
that previous cases be `fundamentally similar.'" Hope v. Pelzer, 536
U.S. 730, 741 (2002). See also Anderson v. Creighton, 483 U.S. 635,
640 (1987) (holding, "For a constitutional right to be clearly estab-
lished, its contours `must be sufficiently clear that a reasonable offi-
31
cial would understand that what he is doing violates that right. This
is not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful.
. . .'") (internal citations omitted).
As the majority would have it, because the officers in Robles were
found to be entitled to qualified immunity after "binding a man to a
pole in the middle of a deserted parking lot at three in the morning
and abandoning him all for no legitimate law enforcement purpose,"
ante, at 26, then every officer in this Circuit will always be entitled
to qualified immunity, regardless of the factual circumstances of his
or her individual case, and regardless of differing constitutional stan-
dards (Fourth Amendment seizure versus Fourteenth Amendment due
process violation). This unduly harsh and untempered standard is con-
tradicted by the actual text of the Robles opinion. Much to the majori-
ty's apparent dissatisfaction, the Robles Court emphasized the
importance of the de minimis calculation to its holding, noting that
"for Robles' [due process] rights to have been violated by this arbi-
trary and purposeless act, he needs to have suffered more than a de
minimis injury." Robles, 302 F.3d at 270. Although Robles met this
burden in proving that the injury he suffered was more than de
minimis, he failed to convince the Court that the resulting constitu-
tional violation was clearly established.
The majority's insistence that the Robles Court "clearly relied only
on the absence of factually similar legal authority" misses the point,
ante, at 23, as that authority is factually dissimilar only because the
substantial injuries suffered by the complainants in those cases were
clearly more than de minimis. To establish a constitutional violation,
Robles had to show: (1) that "the officers' actions amounted to pun-
ishment and were not merely `an incident of some other legitimate
governmental purpose,'" and (2) that "the injury resulting from their
actions was more than de minimis." Robles, 302 F.3d at 269 (internal
citations omitted). In concluding that the constitutional violation was
not clearly established, the Court observed that the cases cited by
Robles were "inapposite" because "[t]hey involve[d] instances where
detainees were subject to physical abuse or prolonged and inhumane
conditions of detention." Id. at 271 (emphasis added). These distin-
guishing features relate solely to the second prong of the pretrial
detainee/due process test: whether the injury suffered was more than
32
de minimis. Thus, it necessarily follows that these cases were distin-
guishable because Robles' case presented the Court with a closer call
on the de minimis inquiry. How else could the Court conclude that
cases involving "physical abuse" were "inapposite"? As Judge Wil-
kinson, who authored the initial Robles opinion, later explained in a
thoughtful and well-reasoned concurrence to the denial of rehearing
en banc, "The panel . . . concluded that Robles had offered sufficient
evidence that he suffered more than de minimis injury, but that issue
was close. After all, Robles was left alone for only 10 minutes, during
which time no one bothered him. He concedes that he suffered no
physical injury and that the officers told him that someone would pick
him up there later." Robles v. Prince George's County, 308 F.3d 437,
438 (4th Cir. 2002) (internal citations omitted).
Like the majority, I sympathize with Robles' plight. Yet regardless
of how I might have decided the case, I cannot deny that the Robles
Court placed strong emphasis on the lack of severe abuse. Had Robles
been left handcuffed for twelve hours as opposed to ten minutes, there
is no doubt that the case would have been resolved differently. See
Robles, 302 F.3d at 271 (citing Putman v. Gerloff, 639 F.2d 415 (8th
Cir. 1981)). Frustrated by this fact, the majority ignores it. In so
doing, the majority, not this dissent, adopts an interpretation of Robles
that is revisionist. See ante, at 26.
Returning to the present case and the first step of the qualified
immunity analysis, the plaintiffs have alleged that Officers Moxley
and Perdue violated their Fourth Amendment rights to be free from
unreasonable seizures by shooting and killing their family pets, when
those pets presented no immediate danger and when nonlethal meth-
ods of capture would have been successful. The majority gives the
plaintiffs' allegations (and the facts supporting them) little, if any,
weight, and inexplicably concludes that "in every incident, the actions
of Officers Moxley and Perdue were objectively reasonable." Ante, at
16. It is, of course, well established that we must take the facts in the
light most favorable to the party asserting the injury. See Saucier, 533
U.S. at 201. In Jones, for example, the defendant officer disputed
Jones' assertion that his wrists were handcuffed behind his back, and
instead suggested that "Jones may not be able to prove he was hand-
cuffed." Jones, No. 01-2280, slip op. at 13. This Court acknowledged
that Jones might fail at trial to convince a jury of this fact, but held
33
that, "in determining whether [the officer] is entitled to summary
judgment, we must accept the facts in the light most favorable to
Jones, and if Jones was handcuffed behind his back in a locked room,
we find it hard to see how he would pose an immediate threat to any-
one." Id.
Contrary to Jones and the relevant constitutional standard, the
majority insists on viewing the facts in the light most favorable to the
officers. For example, in the Wallace incident, the majority bases its
finding of reasonableness on its assumption that "Moments after
Moxley exited his truck, the animal attacked him." Ante, at 17. View-
ing the evidence in the light most favorable to the plaintiffs, however,
there is absolutely no way to conclude that Wallace's dog ever
attacked Moxley. Moxley admitted that, upon arriving at the scene,
he immediately drew his shotgun instead of considering less drastic
options, such as using a catch pole. Moxley then walked toward the
back of his truck, at which point he claims, "Before I reached the back
of the truck, the dog comes around . . . growling and showing teeth
and charges right at me. I raised my shotgun up, and I shot him at the
back of the truck." (J.A. at 403.)
While Moxley was the only eyewitness to this account, this Court
is not required to accept, much less embellish upon, his version of
events. As explained below, the physical evidence included a trail of
blood running from a hole in the fence around Wallace's yard to the
road where Moxley's truck was parked. If Moxley's account were
accurate, the only possible explanation for the trail of blood would be
that Moxley decided to parade the dog's body around the neighbor-
hood by first dragging the carcass from the point "at the back of his
truck" where the dog was shot over to the hole in Wallace's fence,
and then back from the fence to the road and into the truck. The more
logical and likely conclusion, of course, is that the dog was cowering
in the hole in the fence, presenting no immediate threat to Moxley (or
anyone else for that matter) at the time the dog was shot. Taking the
factual evidence in the light most favorable to the plaintiffs, we must
view Moxley's account with great suspicion, particularly when, as
discussed below, Moxley has a documented history of fabricating
reports to justify his actions.
Similarly, as regards the Altman incident, the majority finds Mox-
ley's actions to be reasonable because Moxley made a "split second"
34
decision to remove a potential danger "from the public streets." Ante,
at 18. Again, this conclusion is contradicted by the evidence before
this Court. According to Terry Evans, a witness on the scene, Officer
Moxley fired at the dog while the dog was "probably fifty to seventy-
five yards from him, at least," running away from Moxley down a
narrow alley way, in between two houses. (J.A. at 293.) Moxley fired
three times, wounding the dog with the third shot. At this point, Mox-
ley called to a bystander on the street to go into Moxley's truck to
grab a few extra shotgun shells. Approximately six minutes transpired
from the time that Moxley asked for the shells to the time that the
bystander retrieved the ammunition and delivered it to Moxley. Mox-
ley then reloaded and killed the dog. By asking unknown civilians to
go into his truck and search for ammunition, and by discharging his
shotgun in an urban area while standing more than 150 feet from his
target, Moxley made it clear that removing a potential danger from
the public streets was the last thing on his mind. If anything, it is clear
that the decision to shoot was made in spite of the fact that it would
dramatically increase the danger to the public. Thus, for these rea-
sons, as well as for the reasons stated below, I respectfully dissent
from the majority's finding of reasonableness.
According to the City of High Point Police Department's rules,
"Non-sworn personnel shall not carry firearms in the performance of
their duties." H.P. Police Department, General Order No. 3.13
(emphasis in the original). Animal control officers ("ACOs") were not
sworn police officers at the time of these shootings, and thus were not
generally permitted to carry firearms.1 For officers who are permitted
to carry firearms, the regulations state, "Officers are not to discharge
a firearm . . . when acting negligently or with wanton disregard for
public safety . . . or through carelessness or recklessness." Id.
Despite the fact that ACOs are not sworn officers, the Police
Department's regulations do anticipate the potential use of deadly
force by ACOs. The regulations outline the following procedures for
the "Capture of [a] dangerous animal" by an ACO:
____________________________________________________________
1 The City of High Point Police Department has since amended its reg-
ulations and now permits ACOs to carry firearms.
35
a) Owner to be contacted and assume responsibility for the
control of the animal;
b) Traps may be set, or
c) Use of catch poles, or
d) Stun baton, or
e) Tranquilizer gun.
f) Firearm only as a last resort (in the event of immediate
danger to the officer, another person, or animal).
H.P. Police Department, General Order No. 3.3. When firearm use is
necessary, the regulations state that an ACO should first "[e]nsure the
safety of all citizens, property, and other animals and out of public
view if possible." Id. Furthermore, the ACO should only "[s]hoot the
animal from close range (5 to 15 feet, if possible)." Id. Lastly, "Dan-
gerous dog" is defined in § 12-2-17 of the High Point City Code as:
A dog that: 1. Without provocation has killed or inflicted
severe injury on a person; or 2. Is determined pursuant to
this section to be potentially dangerous because the dog has
engaged in one (1) or more of the listed behaviors in subdi-
vision (2) of this subsection.
Subdivision (2) states, in part, that a "potentially dangerous dog" is
a dog that has been determined to have "[i]nflicted a bite on a person
that resulted in broken bones or disfiguring lacerations or required
cosmetic surgery or hospitalization" or a dog that has "approached a
person when not on the owner's property in a vicious or terrorizing
manner in an apparent attitude of attack . . . ." H.P. Ordinance § 12-
2-17.
As the majority recognizes, mere violation of these ordinances and
regulations is not necessarily sufficient to prove the existence of a
constitutional injury. See ante, at 21. As we stated in Robles, "not
every instance of inappropriate behavior on the part of police rises to
36
the level of a federal constitutional violation." 302 F.3d at 271
(emphasis in original). Flagrant disregard of these laws, however, is
relevant from an evidentiary perspective to show that a reasonable
officer confronting the same situations as the defendants would have
acted differently. That is, in light of the above-cited regulations, one
might expect the use of deadly force by an ACO to be an unusually
rare occurrence.
Scott L. Allen, an experienced ACO, testified that after fifteen
years in animal control, he was only aware of two instances in which
deadly force was used. Officer Allen further explained that "deadly
force should not be used in animal control activities unless absolutely
necessary to save the life of the animal control officer or a bystander.
There are many nonlethal tools at the disposal of the modern animal
control officer including Chemical Capture devices such as tranquil-
izer guns, animal traps, as well as the catch-pole to name a few." (J.A.
at 71.) Even more, Officer Marc LaRue Cutrell, who served as Mox-
ley's and Perdue's supervisor, testified that both Moxley and Perdue
should have been aware that the destruction of someone's dog could
create a potential Fourth Amendment problem. (See J.A. at 237-38.)
In contrast to the reasonable approach outlined by Officer Allen,
Moxley and Perdue adopted a more cavalier and reckless attitude
towards animal control. Police Department statistics document, "From
1997 to 2000 . . . Officers Moxley and Perdue discharged their depart-
mentally issued tranquilizer guns or shotguns 101 times during the
course of their duties." (J.A. at 94 (emphasis added).) That is, Moxley
and Perdue were responsible for the discharge of a firearm approxi-
mately once every two weeks. Of course, dogs were not the only ani-
mals at which the defendants took aim. As the district court noted,
"Their victims include[d] a racoon in a tree, a `vicious rooster,' and
a `vicious cat.'" (J.A. at 510.)
Based on these statistics, one might begin to doubt the credibility
of Moxley and Perdue when they assert that, in each of the specific
incidents before this Court, deadly force was warranted. Our reluc-
tance to accept the defendants' version of events would be augmented
by the fact that not one of the dogs destroyed by the defendants in the
present case would have been defined as a "dangerous dog" under the
City of High Point's ordinances. H.P. Ordinance § 12-2-17(a). More-
37
over, none of the dogs would have been classified as a "potentially
dangerous dog." H.P. Ordinance § 12-2-17(b). As such, it is hard to
say how a reasonable officer would find it necessary to use deadly
force to capture these dogs.
The officers' actions appear even more unreasonable when one
remembers that, in each instance, they failed to contemplate the multi-
tude of nonlethal methods available to them, despite the fact that the
Police Department's regulations require an ACO to first consider five
nonlethal measures for the "Capture of [a] dangerous animal." H.P.
Police Department, General Order No. 3.3. The regulations further
provided that if these five options are untenable, a firearm should be
used "only as a last resort (in event of immediate danger to the offi-
cer, another person, or animal)." Id. (emphasis added).
In sum, viewing the evidence in the light most favorable to the
plaintiffs, it is apparent that "the facts alleged show the officer[s']
conduct violated a constitutional right": to wit, the Fourth Amend-
ment right to be free from unreasonable seizures. Saucier, 533 U.S.
at 201. Accordingly, I would join the Third, Eighth, and Ninth Cir-
cuits in holding that an officer commits an unreasonable, warrantless
seizure of property, in violation of the U.S. Constitution, when he
shoots and kills an individual's family pet when that pet presented no
danger and when nonlethal methods of capture would have been suc-
cessful. See Brown v. Muhlenberg Township, 269 F.3d 205, 210-11
(3rd Cir. 2001); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994);
Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994).
B.
Having resolved this threshold issue, the question becomes whether
the right was clearly established. Saucier, 533 U.S. at 201. To answer
this question, a court must engage in "a more particularized, and
hence more relevant" inquiry. Id. at 202 (quoting Anderson v. Creigh-
ton, 483 U.S. 635, 640 (1987)). "The relevant, dispositive inquiry is
whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Saucier, 533 U.S. at 202.
"This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held
unlawful; but it is to say that in the light of pre-existing law the
38
unlawfulness must be apparent." Anderson v. Creighton, 483 U.S.
635, 640 (1987) (internal citations omitted). See also Robles, 302 F.3d
at 271 (holding that a reasonable officer could not have been expected
to anticipate that ten to fifteen minutes of unauthorized detention
would amount to a greater than de minimis injury). Lastly, the quali-
fied immunity analysis is not dependent "on the subjective beliefs of
the particular officers at the scene, but instead on what a hypothetical,
reasonable officer would have understood under those circum-
stances." Figg v. Schroeder, 312 F.3d 625, 635-36 (4th Cir. 2002).
Although the majority does not reach the second step of the quali-
fied immunity test, its review of the facts suggests it would not find
any constitutional violation to be clearly established. The Court, how-
ever, fails to view those facts in the light most favorable to the plain-
tiffs. In particular, the majority relies on the accounts proffered by
Moxley and Perdue, who were less than credible to say the least.
Indeed, Officer Moxley often modified his official reports so as to
ensure a finding of compliance by the City of High Point Police
Department. According to an internal department report on an unre-
lated incident, "[I]nconsistencies . . . indicate a reasonable probability
of untruthfulness regarding ACO Moxley's oral interview." (Br. of
Appellee, at 5.) Similar problems characterize some of ACO Perdue's
accounts.2 Skepticism of Moxley's and Perdue's accounts is particu-
larly warranted in the specific incidents before this Court, because, as
explained below, it seems unlikely that the officers were motivated
out of an earnest desire to safeguard the public. The majority correctly
notes that the qualified immunity test is an objective one, and that
"[a]n officer's evil intentions will not make a Fourth Amendment vio-
lation out of an objectively reasonable use of force." Ante, at 28
(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). In this case,
however, the officers' evil intents are relevant, not from a constitu-
tional perspective, but for a credibility determination. Knowing the
____________________________________________________________
2 As to the Frye shooting, for example, Perdue testified that each of
Frye's animals were large dogs, weighing forty-five to fifty pounds each,
and that together they formed a menacing and dangerous pack. In actual-
ity, the puppies weighed only fifteen to twenty pounds apiece. Further-
more, Perdue effectively conceded that he exaggerated the severity of the
threat when he testified that, as he was taking deadly aim at Boo-Boo,
Frye stepped out of her home and scooped the dog up in her arms.
39
officers' history of deceit and ill-motive, we should be less willing to
blindly accept their assertions that, in each of the cases, the dogs were
dangerous and that the threats were imminent. Rather, viewing the
facts in the light most favorable to the plaintiffs, we might conclude
that, the officers' assertions notwithstanding, the dogs were nonthrea-
tening. See, e.g., Jones, No. 01-2280, slip op. at 11 (noting that
although the officer "maintains that he did perceive such a threat
. . . Jones can point to evidence which suggests either that [the officer]
is not credible on this point or that the deputy's perception of a threat
was not objectively reasonable"). Therefore, upon engaging in the
second stage of the qualified immunity analysis, it will be necessary
to review some of the factual details overlooked by the majority.
The Larsen Incident. The first event involved the shooting of Heidi,
a purebred Rottweiler owned by Kimberly Larsen. The plaintiffs
allege that Heidi had been professionally trained by Visha K-9 Spe-
cialists, who "opined that Heidi sought anyone's affection, showed no
signs of aggressive or anti-social behavior, and was very humble and
somewhat shy." (J.A. at 22.) The plaintiffs support this allegation by
noting that Heidi was certified as both a therapy dog and as a "Canine
Good Citizen" by the American Kennel Club.
In responding to the call on January 10, 1997, Officer Perdue did
not make any attempt to contact Heidi's owners. Instead, he pulled
into the Larsens' driveway and exited the vehicle with his shotgun.
According to an eyewitness, Charles Elkins, Heidi jumped up from
the driveway to a slightly elevated yard, but was not behaving aggres-
sively. (J.A. at 257-58.) Elkins explained that"[t]he dog was standing
nearly still at the moment that it was shot. The dog appeared to be just
undecided about what was happening and what to do about it." (J.A.
at 256-57.) As the dog was walking away from him, Perdue fired,
striking Heidi in her hindquarters.
Perdue explained his decision to shoot by stating, "I would get out
the shotgun. I have done this numerous times. If the dog shows me
he's not aggressive and he's not going to attack me, that's fine. I can
always put the shotgun up and go get the catch pole." (J.A. at 428.)
Perdue's standard operating procedure, however, directly contradicts
the City's regulations, which require an officer to first: (1) contact an
owner; (2) set a trap; (3) use a catch pole; (4) use a stun baton; or (5)
40
use a tranquilizer gun. H.P. Police Department, General Order No.
3.3. These options must be considered before an ACO shoulders a
shotgun. Id. In sum, considering the evidence in the light most favor-
able to the plaintiffs, I would conclude that Perdue did not shoot
Heidi because of any real or perceived danger.
The Frye Incident. The second incident occurred on February 7,
1997, and involved four, seven-month old Siberian Husky puppies
owned by Wendy Frye: Sadie, Tut-Tut, Bandit, and Boo-Boo. Upon
arriving at the scene, Officer Perdue immediately reached for his
shotgun, as was his custom. When asked why he needed to use deadly
force against Frye's dogs, Perdue responded, "If you hit one of [the
dogs with a tranquilizer dart] you're just wasting your time. He's
going to run off, and he's going to come back, and you're going to
have the same scenario all over again. And you're dealing with five
dogs, so it would have been a waste of time." (J.A. at 421.) Similarly,
Frye's fiance, Joe Scroggs, was told by Police Department officials
that the puppies were shot, not because they posed any danger to any-
one, but because "we weren't going to spend all day chasing them."
(J.A. at 121.) Needless to say, effecting a warrantless seizure is not
defensible on the grounds that it was faster and easier than following
established, less intrusive procedures.
The majority concludes, "In retrospect, it may have been preferable
if the officers attempted first to use nonlethal force in every instance.
Such nonlethal force may have been successful, but, tellingly, it may
not have been." Ante, at 18. As to the Frye shooting, however, we
know conclusively that nonlethal force would have been successful.
As mentioned above, the dogs were so small that Frye was able to
"grab[] [Boo-Boo] up and pick[] him up," just as Perdue was prepar-
ing to fire at him. (J.A. at 423.) Furthermore, even if Perdue perceived
the dogs to be a threat, no reasonable officer, and certainly no reason-
able animal control officer who handles loose and at-large dogs on a
daily basis, could view Frye's fifteen pound puppies as dangerous.
The Wallace Incident. The third incident involved a Golden
Retriever/Labrador mixed-breed named Sundance, owned by Gilbert
Wallace. While there were no other eyewitness other than Officer
Moxley, physical evidence included a trail of blood leading from a
hole in the fence to the road and several empty shotgun casings. The
41
only logical inference to be drawn from this evidence is that Sun-
dance was in the hole at the time he was shot, and was attempting
either to crawl into or out of Wallace's yard. In either case, it would
have been impossible for Sundance to charge Moxley at the time of
the shooting.
Moreover, Moxley concedes that he ignored Police Department
policy in deciding when to use a firearm. For example, when asked
why he shot Wallace's dog, Officer Moxley explained, "I could not
allow the dog to escape since the [human] victim would have to start
rabies shots in three days." (J.A. at 406.) When asked if there was
"any written rule anywhere" that would support this policy, Officer
Moxley responded, "No. That's my rule, I guess. I'm not going to
allow a dog to escape that's bitten someone and we don't have an
owner for." (J.A. at 406.)
The Altman Incident. The final incident involved Hot Rod, a pit-
bull mix owned by Robert and Ann Altman. On March 24, 2000,
Officer Moxley responded to a 911 call about a loose dog. When
Moxley arrived at the scene, Hot Rod "took off" down the alley. Mox-
ley exited his truck with his shotgun. Without pausing to interview
Evans or Hendricks, or to inquire as to who the owner of the dog
might be, Moxley immediately gave chase. Moxley made no attempt
to capture Hot Rod through any of the nonlethal means that were
readily available to him. Although Police Department regulations
state that officers should only discharge their firearm when they are
within close range of an animal (5 to 15 feet), Moxley began firing
from a distance of approximately 150 to 225 feet. After three shots,
Moxley hit Hot Rod. According to Terry Evans, the individual who
placed the 911 call, Hot Rod was running away from Moxley at the
time of the shooting. Evans explained, "The dog never lunged
towards him, I can tell you that. I mean, the guy got out of his truck
and the dog was running. I never seen the dog come at the officer at
all." (J.A. at 300.) Again, without considering any of the nonlethal
options available to him, Moxley chose to shoot a dog that presented
no immediate danger.
With the facts of each incident fully summarized, it is now neces-
sary to determine whether the unconstitutionality of each of these
unreasonable, warrantless seizures was "clearly established" at the
42
time of the incidents. See Figg v. Schroeder, 312 F.3d at 635-36. The
Supreme Court made it clear more than a decade ago that an individu-
al's personal property is an "effect" for purposes of Fourth Amend-
ment analysis. See Soldal v. Cook County, 506 U.S. 56, 62 (1992)
(holding that "our cases unmistakably hold that the [Fourth] Amend-
ment protects property as well as privacy"). As the majority observes,
the State of North Carolina has recognized an individual's property
interest in his dog at least since 1838. See Dodson v. Mock, 20 N.C.
282. In short, the majority's extensive and thorough analysis demon-
strates that it has long been "clearly established" that dogs are "ef-
fects" for the purposes of Fourth Amendment analysis, and an
individual has the right to be free from the unconstitutional seizure of
his dog. See ante, at 8-15.
"A `seizure' of property occurs where there is some meaningful
interference with an individual's possessory interests in that prop-
erty." Soldal, 506 U.S. at 63 (quoting United States v. Jacobsen, 566
U.S. 109, 113 (1984)). Plainly, it would be a waste of words to
inquire into whether the complete and irremediable destruction of an
individual's property affects a "meaningful interference" with a per-
son's right to the use, possession, and enjoyment of that property.
When officers kill a dog, they have undoubtedly "seized" it from its
owner.
The only unresolved question, therefore, is whether the unreason-
ableness of the seizures in the present case would have been suffi-
ciently apparent to the officers to put them on notice that their actions
were unconstitutional. "In determining whether a right is clearly
established, we may rely upon cases of controlling authority in the
jurisdiction in question, or a `consensus of cases of persuasive author-
ity such that a reasonable officer could not have believed that his
actions were lawful.'" Rogers v. Pendleton, 249 F.3d 279, 287 (4th
Cir. 2001) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
While there is no Supreme Court or Fourth Circuit case directly on
point, each of the three circuits to have considered whether an indi-
vidual has a constitutional right to be free from the unreasonable
destruction of his or her dog has found that right to be clearly estab-
lished. See Brown v. Muhlenberg Township, 269 F.3d 205, 211 (3rd
Cir. 2001); Lesher v. Reed, 12 F.3d 148, 151 (8th Cir. 1994) (holding
43
that a dog that was destroyed by the police department was "obvi-
ously . . . `seized' within the meaning of the Fourth Amendment");
Fuller v. Vines (Fuller I), 36 F.3d 65, 68 (9th Cir. 1994) (noting that
"[t]he killing of the [plaintiff's] dog is a destruction recognized as a
seizure under the Fourth Amendment"); Fuller v. Vines (Fuller II),
No. 96-15842, 1997 WL 377162, at **1 (9th Cir. July 2, 1997)
(unpublished) (finding that "it was apparent in light of preexisting law
that shooting and killing a dog constituted a seizure within the mean-
ing of the Fourth Amendment," and was thus a clearly established
constitutional right).
In particular, the Third Circuit has had occasion to delve into the
"unreasonableness" aspect of this inquiry. Although Brown v. Muh-
lenberg Township had not been decided at the time of the four events
at issue here, "a right can be deemed clearly established even if there
is no prior decision addressing the precise conduct at issue, so long
as its illegality would have been evident to a reasonable officer based
on existing caselaw." Rogers, 249 F.3d at 285-86. I find the reasoning
of the Third Circuit persuasive on this point, and would conclude, as
that circuit has, that the constitutional right at issue was clearly estab-
lished.
In Brown, the court considered the case of "Immi," an unregistered
three-year old Rottweiler running at large and unrestrained. 269 F.3d
at 208-09. After surveying the scene, an officer slowly approached
Immi and drew his gun. At this point, Immi's owner ran outside, and
from a distance of approximately fifty feet, called for the officer not
to shoot. The owner was too late, however, and the officer fired sev-
eral times, killing the dog. Id. The court concluded that while "the
state's interest in protecting life and property may be implicated when
there is reason to believe that the pet [to be killed] poses an imminent
danger, . . . [t]his does not mean . . . that the state may, consistent with
the Fourth Amendment, destroy a pet when it poses no immediate
danger and the owner is looking on . . . ." Id. at 210-11.
While the facts of the present case are not directly on point with
Brown, several similarities are noteworthy. For example, like the Lar-
sen incident, which involved a Rottweiler, and the Altman incident,
involving a pit bull mix, the Brown case regarded a breed of dog gen-
erally considered to be dangerous. Despite the inherent dangerousness
44
of the breed, however, the Third Circuit found the unconstitutionality
of the officer's actions to be clearly established. (The seizure of
Wendy Frye's Siberian Husky puppies, and the seizure of Gilbert
Wallace's Golden Retriever/Labrador Retriever mix appear even
more unreasonable, considering the generally accepted friendliness of
these breeds.)
While the Third Circuit noted that the owner of Immi was present
and "obviously desirous of retaining custody," Brown, 269 F.3d at
211, there are facts in each of the instances before this Court that
accentuate the unreasonableness of the seizures. In attempting to kill
Altman's dog, for example, Officer Moxley discharged his shotgun in
a densely-developed urban neighborhood from a distance of 225 feet,
while the dog was running away from him and clearly presenting no
imminent or immediate danger to anyone. Similarly, the evidence in
both the Larsen and Wallace incidents strongly suggests that the dogs
were not threatening anyone, and in fact, may have been cowering
submissively. As for the puppies in the Frye incident, they were so
small that Wendy Frye was able to rush out of her house and pick up
the last surviving dog in her arms. Rather than firing because of any
perceived danger, Officer Perdue apparently acted because "we
weren't going to spend all day chasing" the Frye puppies. (J.A. at
421.) Each of these facts take on additional importance when it is
remembered that, according to their supervisor, both Officers Moxley
and Perdue should have been aware that the destruction of an individ-
ual's dog in the absence of any imminent threat of harm might raise
the possibility of a Fourth Amendment violation. (J.A. at 237-38.)
Although the Third Circuit did place some emphasis on the pres-
ence of the owner, there are other facts in the instant cases that make
it apparent that the constitutional rights at issue were clearly estab-
lished. Moxley and Perdue insisted on disregarding local law by firing
buckshot throughout the City's neighborhoods, and as a result, they
killed several nondangerous and nonthreatening dogs owned by the
plaintiffs as family pets. Viewing the facts in the light most favorable
to the plaintiffs, it is clear that the officers carried out these warrant-
less seizures without any concern for the public's safety. As a result,
Moxley and Perdue must be expected to know that their shooting
spree was unconstitutionally unreasonable.
45
III.
In sum, I would find that: (1) Officers Moxley and Perdue violated
the Plaintiffs' constitutional rights by effecting several unreasonable,
warrantless seizures; and (2) those constitutional rights were clearly
established. I am most concerned, however, with the majority's con-
clusion that the actions of Moxley and Perdue were somehow consti-
tutionally reasonable. The majority is able to reach this finding only
by ignoring some evidence (such as the trail of blood beginning at the
fence around Wallace's yard) and refusing to consider the remaining
facts in the light most favorable to the nonmovants. In taking this
view of the Plaintiffs' evidence, the majority has obfuscated this Cir-
cuit's qualified immunity analysis by effectively replacing the
Supreme Court's well-defined, two-part test, see Saucier, 533 U.S. at
201, with an unsupportable single-step approach.
For the foregoing reasons, I respectfully concur in part and dissent
in part from the judgment of the majority.
46