Jeffrey Bletz v. Jeremy Corrie ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1957
___________
JEFFREY W. BLETZ, personally, and as the guardian of
DJF, a minor; LINDSEY J. BLETZ
Appellants
v.
JEREMY W. CORRIE
_________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:16-cv-00717)
District Judge: Honorable Yvette Kane
____________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 31, 2020
Before: CHAGARES, RESTREPO, and BIBAS, Circuit
Judges
(Filed: September 9, 2020)
_____________
Devon M. Jacob
Jacob Litigation
P.O. Box 837
Mechanicsburg, PA 17055
Counsel for Appellants
Sean A. Kirkpatrick
J. Bart DeLone
Office of Attorney General of Pennsylvania
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee
___________
OPINION OF THE COURT
RESTREPO, Circuit Judge.
This civil rights action stems from the shooting of a
family’s pet dog by a law enforcement officer as he served an
arrest warrant at their home. The District Court granted
summary judgment to Pennsylvania State Trooper Jeremy W.
Corrie on the Bletzes’ two claims, a 42 U.S.C. § 1983 claim
for unlawful seizure under the Fourth Amendment and an
intentional infliction of emotional distress claim under
Pennsylvania law. The Bletzes appeal the District Court’s
Fourth Amendment ruling. For the reasons set forth in this
opinion, we will affirm the District Court’s judgment.
2
I
On May 1, 2014, Jeffrey W. Bletz was living in York
County, Pennsylvania with his daughter, Lindsey J. Bletz, and
young grandson, DJF. That morning, they were all at home
with their pet dog, Ace, a Rottweiler/Labrador Retriever mix
who was then seven years old. Jeffrey opened the back door
to let Ace outside. He was unaware that, at that moment,
Trooper Corrie and other officers from multiple law
enforcement agencies were swarming his property to serve an
arrest warrant on an armed robbery suspect believed to be
living there.
Trooper Corrie approached the house from the left side
(facing the front), along with Trooper Richard T. Drum. As
they approached, Trooper Corrie heard Trooper Drum yell
“whoa” several times from behind, his voice becoming
increasingly “more excited,” prompting Trooper Corrie “to
turn around.” App. 506. As he turned, he saw a large dog
coming toward him, “already mid-leap, within an arm’s reach,”
at about chest height. App. 506. Ace “was showing [his] teeth,
and growling in an aggressive manner,” making a low-pitched
noise, like a combination of a “growl and a bark.” App. 506,
124.
Trooper Corrie says he “backpedaled to create
distance,” and Ace circled around him to his right,
“attempt[ing] to attack [him] from that direction.” App. 507.
Trooper Corrie “believe[s] there was another snarl,” and then
he fired a shot. App. 125–26. Ace “began to come after [him]
again from [his] right side,” then “abruptly changed directions,
. . . turned its body and charged [him] again.” App. 126. The
dog did not jump a second time before Trooper Corrie fired a
second shot—and then a third. The third shot struck Ace on
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his right side. The dog yelped, ran to Jeffrey, who was then
near the garage, laid down at his feet, and died within minutes.
A necropsy of Ace showed that the bullet entered through the
“right upper chest” and exited through the “left lower chest,”
which “indicat[es] that the bullet travelled from right to left
across the chest and slightly downward.” App. 446.
Trooper Drum, who was with Trooper Corrie during the
encounter, recounted the incident to the State Police on May
27, 2014. He explained that Ace had behaved aggressively
toward him before changing directions and running toward
Trooper Corrie. Trooper Drum recounted that Trooper Corrie
fired three shots when Ace was “right at the base of [Corrie’s]
feet” and “still in the aggressive manner.” App. 497. The
Bletzes did not witness the incident.
On April 29, 2016, the Bletzes initiated this action
against Trooper Corrie claiming unlawful seizure under the
Fourth Amendment and intentional infliction of emotional
distress under Pennsylvania law. After discovery, Trooper
Corrie moved for summary judgment on both counts, and on
March 26, 2019, the District Court granted his motion. The
Bletzes now timely appeal the District Court’s ruling on the
Fourth Amendment claim; they do not challenge its conclusion
on the state law claim.1
1
The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343, and we exercise
jurisdiction under 28 U.S.C. § 1291.
4
II
A
We exercise plenary review over a district court’s grant
of summary judgment, and we apply the same standard as the
district court. Adams v. Zimmer US, Inc., 943 F.3d 159, 163
n.4 (3d Cir. 2019). “Summary judgment is appropriate where,
construing all evidence in the light most favorable to the
nonmoving party, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’” Sec’y U.S. Dep’t of Labor v. Kwasny, 853 F.3d 87,
90 & n.5 (3d Cir. 2017) (quoting Fed. R. Civ. P. 56(a) and
citing Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d
Cir. 2015)). A genuine issue of material fact is one that could
lead a reasonable jury to find in favor of the nonmoving party.
Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638,
643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). The moving party bears the burden of
demonstrating that there is no genuine issue of material fact
and that judgment as a matter of law is appropriate. Id. The
court must review the record as a whole, draw all reasonable
inferences in favor of the nonmoving party, and must not
“weigh the evidence or make credibility determinations.”
Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting
Armour v. Cty. of Beaver, Pa., 271 F.3d 417, 420 (3d Cir.
2001)).
B
We must determine whether the District Court properly
granted summary judgment in favor of Trooper Corrie on the
Bletzes’ Fourth Amendment claim. Based on the analysis that
follows, we will affirm the District Court’s ruling.
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1
The Fourth Amendment to the United States
Constitution, applicable to the states by way of the Fourteenth
Amendment, guarantees “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” In Brown v. Muhlenberg
Twp., 269 F.3d 205, 210 (3d Cir. 2001), this Court held that
people have a possessory interest in their pets, and “the killing
of a person’s dog by a law enforcement officer constitutes a
seizure under the Fourth Amendment.” Thus, to be
constitutionally permissible, an officer’s conduct in fatally
shooting a pet “must have been reasonable.” Id. (internal
quotations omitted).
To assess the reasonableness of a seizure, a court must
“balance the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.” Id. (quoting United States v. Place, 462 U.S. 696,
703 (1983)). A “disproportionately intrusive” seizure would
be unreasonable. Id. As always, in Fourth Amendment cases,
a court must be mindful to judge reasonableness “from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham v. Connor, 490
U.S. 386, 396–97 (1989) (“The 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.”).
Our precedent in Brown serves as an example of when
a Fourth Amendment claim regarding the shooting of a pet
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should proceed to trial. In that case, a pet Rottweiler wearing
a bright pink collar with tags had wandered outside the yard
and into an adjacent parking lot. 269 F.3d at 208–09. An
officer saw the dog, and as he approached her, the dog “barked
several times and then withdrew.” Id. at 209. The officer
walked toward her and stood about ten to twelve feet from her,
at which time the dog stayed still, not barking or growling. Id.A bystander stated that the dog “did not display any aggressive
behavior” toward the officer. Id. The dog’s owner looked out
her window and saw the officer and her dog facing each other
in the parking lot—then she saw the officer reach for his gun.
Id. She screamed, “That’s my dog, don’t shoot!” Id. The
officer hesitated for a few seconds, pointed his gun at the dog,
and shot the dog five times. Id. The officer had “intentionally
and repeatedly shot a pet without any provocation and with
knowledge that it belonged to the family who lived in the
adjacent house and was available to take custody.” Id.Weighing this conduct against the state’s “interest in
restraining [a dog] so that it will pose no danger to the person
or property of others,” we concluded that there was a triable
issue as to whether the officer’s shooting of the dog constituted
an unlawful seizure. Id. at 210–11.
We noted, however, that “the state’s interest in
protecting life and property may be implicated when there is
reason to believe the pet poses an imminent danger.” Id. at
210. In such a case, “the state’s interest may even justify the
extreme intrusion occasioned by the destruction of the pet in
the owner’s presence.” Id. at 210–11. This hypothetical
proves prescient here.
While Brown serves as an example of when the
reasonableness of an officer’s conduct presents a triable issue,
we look to our sister circuits for examples of when an officer’s
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conduct has been deemed reasonable as a matter of law. The
Sixth Circuit has held that officers acted reasonably when they
fatally shot two pit bulls that “either lunged or were barking
aggressively” at them, while the dogs were “unleashed and
loose in a small residence.” Brown v. Battle Creek Police
Dep’t, 844 F.3d 556, 570–72 (6th Cir. 2016). At the time, the
officers were searching the home of a suspect who had a
criminal history and gang affiliations. Id. at 568. In another
case where an officer was executing a search warrant inside a
home, the D.C. Circuit held that an officer acted reasonably in
shooting a dog that had bit a fellow officer’s leather boot hard
enough to puncture it only seconds earlier. Robinson v. Pezzat,
818 F.3d 1, 5, 12 (D.C. Cir. 2016). And in a case where
officers responded to separate incidents of dogs roaming in
public places, the Fourth Circuit held that officers acted
reasonably in using lethal force to protect the public when the
dogs had either attacked someone that day or were known to
be aggressive. Altman v. City of High Point, N.C., 330 F.3d
194, 197–99, 204–05 (4th Cir. 2003) (noting that “[w]hen a
dog leaves the control of his owner and runs at large in a public
space, the government interest in controlling the animal . . .
waxes dramatically, while the private interest correspondingly
wanes”).
In line with our precedent in Brown and the persuasive
rulings of our sister circuits, we hold that the use of deadly
force against a household pet is reasonable if the pet poses an
imminent threat to the law enforcement officer’s safety,
viewed from the perspective of an objectively reasonable
officer. See, e.g., Brown, 269 F.3d at 210–11 (stating that “the
state’s interest in protecting life and property . . . may even
justify the extreme intrusion occasioned by the destruction of
the pet in the owner’s presence”); Battle Creek, 844 F.3d at 568
8
(“[A] police officer’s use of deadly force against a dog while
executing a warrant to search a home for illegal drug activity
is reasonable under the Fourth Amendment when, given the
totality of the circumstances and viewed from the perspective
of an objectively reasonable officer, the dog poses an imminent
threat to the officer’s safety.”).
2
Here, the state had an important interest in protecting
the safety of its officers while they undertook a coordinated
effort to serve an arrest warrant on an armed robbery suspect.
To be sure, it was an “extreme intrusion” for Trooper Corrie to
fatally shoot the Bletzes’ pet dog. Brown, 269 F.3d at 211; see
also Altman, 330 F.3d at 205 (stressing the “appreciable”
private interests involved, as “[d]ogs have aptly been labeled
‘Man’s Best Friend,’ and certainly the bond between a dog
owner and his pet can be strong and enduring”). We must
balance these considerations to determine whether Trooper
Corrie’s actions were objectively reasonable under the
circumstances. See Place, 462 U.S. at 703. This requires us to
assess whether Ace posed an imminent threat to Trooper
Corrie’s safety.
Trooper Corrie bears the burden of demonstrating that
there is no genuine issue of material fact that could cause a
reasonable jury to find that he unlawfully seized the Bletzes’
dog. See Willis, 808 F.3d at 643. Both people who witnessed
the incident, Trooper Corrie and Trooper Drum, testified that
Ace aggressively charged at Trooper Corrie, growling and
showing his teeth, as though about to attack—and that he did
not relent until subdued by the third bullet. Trooper Corrie
reasonably interpreted Ace’s behavior as a threat of imminent
attack. Considering that he had to make a split-second decision
9
while participating in a coordinated effort to arrest an armed-
robbery suspect, he acted reasonably in shooting Ace.
The Bletzes argue that material facts are disputed
because Trooper Corrie’s testimony that he shot Ace on his
right side conflicts with his testimony that he shot because the
dog charged at him. In support of this argument, the Bletzes
cite the testimony of their expert, James W. Crosby, who
opined that because the dog was “positioned laterally to
Corrie,” it “was not engaged with Corrie in any way when
Corrie’s third round was fired.” App. 458.
Even though Ace happened to be moving laterally
relative to Trooper Corrie when he was struck, this does not
rule out the dog’s continued aggression, and plaintiffs do not
cite any admissible evidence tending to show that Ace
displayed no signs of aggression signaling an imminent attack.
The Bletzes were not present to witness the incident. Rule
56(c)(1)(A) requires that parties “asserting that a fact . . . is
genuinely disputed” support that claim “by citing to particular
parts of materials in the record.” Here, the evidence cited does
not suggest Ace refrained from acting aggressively at every
stage of the altercation.
Further, Ace approached the officers in the context of a
coordinated effort to serve an arrest warrant on an armed
robbery suspect. Considering all of this, Trooper Corrie acted
reasonably in shooting Ace, whose behaviors presented an
imminent threat to his physical safety.
The Bletzes further argue that Trooper Corrie acted
unreasonably because he was not provided and did not pursue
training regarding the “safe handling of dogs” and neglected to
attempt nonlethal means of subduing Ace. Appellants’ Br. 10.
10
However, the touchstone of a Fourth Amendment analysis is
whether the officer acted reasonably under the circumstances.
See Brown, 269 F.3d at 210 (citing Place, 462 U.S. at 703). It
is not whether the officer received or could have pursued a
certain level of training. We offer no opinion on Trooper
Corrie’s training or potential alternatives to lethal force—and
this opinion should not be read as endorsing his reaction or
stating that he implemented “the best possible response[].”
Altman, 330 F.3d at 207. “We are only saying that, under the
circumstances existing at the time the officer[] took the actions
and in light of the facts known by the officer[], [his] actions
were objectively reasonable.” Id.; see also Graham, 490 U.S.
at 396 (stating that we must not view the situation with “the
20/20 vision of hindsight”).
In conclusion, Trooper Corrie, while participating in a
coordinated effort to serve an arrest warrant on an armed
robbery suspect, reasonably used lethal force against a dog
who, unrebutted testimony shows, aggressively charged at
him, growled, and showed his teeth, as though about to attack.2
We will thus affirm the District Court’s order granting
summary judgment.
2
Given our conclusion that the shooting of Ace did not
violate the Fourth Amendment, we will not address whether
the law was “clearly established” for purposes of qualified
immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If
no constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity.”).
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