St. Bern Killed by Police:Feds Reverse “Exigent”

In CA, if the police kill your animals and did not have the correct legal reasoning behind it (according to your facts/the law) then the destruction of your ‘property’ may fall under the 4th Amendment.
One of the biggest cases in CA was the killing of the pitbull in the Fuller case in Richmond CA, when the dog was in the possession of a family member. It took the attorneys almost 7 years to get the verdict for over half a million which likely was for damages/fees.
The Hells Angels case from Santa Clara also resulted in large findings for the homeowner, whose place was torn up by the SWAT team, and several dogs were killed for no reason.
Also in CA, it has been held that exigent circumstances may allow police to enter w/o a warrant  involving shrieking dog.. (a general idea of the latest case)… and it was very late at night; Court did not address contention of excepting personal property from exigent circumstances exception.
 http://www.theanimalcouncil.com/files/People_v_Chung_6_3_10_CA_capp_2_dist.pdf
In Oregon, the Court has ruled in similar fashion, but without making a blanket finding that animals per se, warrant exception.
Oregon: In State v. Fessenden/Dicke,  the Court found that an officer can seize an animal without a warrant when that officer has probable cause to believe the animal is a victim of cruelty and immediate action is necessary to prevent further imminent harm to the animal. The Court determined, for the first time in Oregon, that the exigent circumstances exception to the warrant requirement under both the Oregon Constitution (Article I, Section 9) and the Fourth Amendment can apply to cases involving animal victims. —that other states already allow such warrantless seizure to prevent serious injury caused by criminal activity, including California, Montana, and Texas. Note that the Court did NOT rule that it would always apply.
See excerpt from a police website:

SWAT officers commonly encounter hostile dogs during operations such as raids and high-risk warrant service. And sometimes they shoot and kill dogs during these operations.

…[B]ut these tactical units should be aware that under the law—especially in jurisdictions covered by the U.S. Court of Appeals for the 9th Circuit—planned operations in which dogs are killed have a higher standard for reasonable use of force than impromptu law enforcement actions. This is because of a lawsuit stemming from dogs killed by police during a 1998 operation on a Hells Angels club house and several members’ homes in and around San Jose, Calif.

During entry into the targeted homes, the officers shot and killed a Rottweiler and two bull-mastiffs. The dog owners sued. And the Ninth U.S. Circuit Court of Appeals let the suit go forward. In 2005 after the U.S. Supreme Court declined to hear an appeal of the Ninth Circuit decision, Santa Clara County settled for $990,000 and the City of San Jose settled for $800,000. The cities of Santa Clara and Gilroy had already paid total damages of about $50,000.

The bottom line is that if the pre-operation surveillance reveals the presence of dogs, you need to account for how to get around them or through them without killing them.”

CONSTITUTIONAL LAW

2nd Circuit Reverses jury verdict for Police who shot Family’s dog to death in its own yard


A federal appeals court has reversed a jury verdict for the defense in a civil rights case over a dog fatally shot to death by Connecticut police in its owners’ yard, remanding the case back to the trial court for a determination on damages.

Despite the neighborhood’s reputation as a high-crime area, “Exigent circumstances” did not justify entry by Hartford police without a warrant into a family’s yard, based on a tip that guns might be located there, the New York-based 2nd U.S. Circuit Court of Appeals said in its Thursday ruling.

The city declined to comment about the 2nd Circuit ruling and counsel for the officers could not be reached, reports the Associated Press.

“Taken to its logical end, this argument would permit exigent circumstances anytime there is a tip about illegal guns being located somewhere in a high-crime neighborhood or city, and would allow the exception to swallow the rule,” wrote Judge Rosemary Pooler.

A 12-year-old girl in the family had been playing in the yard with the dog, a St. Bernard, at the time of the shooting. She was hospitalized and given antidepressants after the animal’s shooting, but still feels responsible for his death, according to testimony in the case.

Related articles:

ABAJournal.com: “Trial Looms in Federal Case Over Death of Family Pet Shot by Police in Front of Girl, 12”

ABAJournal.com: “Federal Jury Upholds City Police in Civil Rights Case Over Death of Family Dog In Yard of Their Home”

 Previous:
May 2012  http://www.abajournal.com/news/article/federal_jury_upholds_city_police_in_civil_rights_case_over_death_of_family_/

While no one celebrates the death of a family dog shot by city police who entered the back yard of a Hartford, Conn., home without a warrant, officials are grateful that a federal jury has declined to hold the officers liable in a civil rights claim, says a lawyer who represented them at trial.

The dog’s death “was indeed an unfortunate result based on unavoidable circumstances,” attorney Thomas R. Gerarde told the Hartford Courant. after the jury reached its verdict late Tuesday afternoon.

The defense argued that Officer John Michael O’Hare and Detective Anthony Pia were simply doing their jobs when they entered the yard of the Harris family, based on a tip that gang members had guns there. Because guns can be moved so quickly, there was no time to get a warrant, Gerarde contended.

Attorney Jon Schoenhorn, who represented Harris, had argued that the officers’ entry without a warrant into the perimeter of the Harris home was a violation of their Fourth Amendment right against unreasonable search and seizure. He could not be reached for comment by the newspaper about the defense verdict.

Accounts of exactly what happened differ, but there appears to be no dispute that the dog, a large St. Bernard, ran at the officers when they entered the yard. A police report described the animal as vicious.

Additional and related coverage:

ABAJournal.com: “Trial Looms in Federal Case Over Death of Family Pet Shot by Police in Front of Girl, 12”

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