Altman v. City of High Point , 330 F.3d 194 ( 2003 )

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 war-rantless seizures. I respectfully dissent, however, from the majority’s consideration of the qualified immunity issue in Part II.B. In particular, I am disturbed by the majority’s finding that the officers’ actions in each instance were reasonable, based as it is on the majority’s dogged refusal to consider the facts in the light most favorable to the nonmovants. Additionally, I am troubled by the majority’s confusion of the qualified immunity test announced by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Rather than recognizing 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 matter, have demonstrated a violation of their constitutional rights to be free from unreasonable seizures. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Additionally, 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 statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. 818 (1982). Officers Moxley and Perdue are entitled to qualified immunity unless: (1) “[tjaken in the light most favorable to the party asserting the injury, ... the facts alleged show the offlcer[s]’ conduct violated a constitutional right”; and (2) the right was “clearly established ... in the specific context of the case.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. 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 206. At the first stage of our analysis, we are merely to consider the “threshold question” of whether any “constitutional right would have been violated were the [plaintiffs’] allegations established.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. “[I]f, taking the allegations or evidence (depending on the procedural posture of the case) in the best light for the plaintiff, the plaintiff has stated a violation of a constitutional right, we proceed to the second step.” Jones v. Buchanan, 325 F.3d 520, 526 (4th Cir.2003). In conducting this initial inquiry, the Supreme Court has “assume[d] a constitutional violation could have occurred under the facts alleged based simply on the general rule prohibiting excessive force, [and] then proceeded] 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, 121 S.Ct. 2151.

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 incident 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 constitutional 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 required the application of “a far more rigorous standard than at issue” in a Fourth Amendment consideration. 325 F.3d at 535 n. 8. We further explained that the due process burden “is a difficult burden for any plaintiff, but particularly so for Robles since he conceded 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 psychological injury.” Id. at 535 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 531.

Judge Luttig authored a dissent in Jones, which the majority of that panel found to be “as puzzling as it is unpersuasive.” Id. at 535 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 210. 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 entitled 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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (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. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) ], [the Supreme Court] expressly rejected a requirement that previous cases be ‘fundamentally similar.’ ” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). See also Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (holding, “For a constitutional right to be clearly established, its contours ‘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 (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 212, 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 standards (Fourth Amendment seizure versus Fourteenth Amendment due process violation). This unduly harsh and untempered standard is contradicted by the actual text of the Robles opinion. Much to the majority’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 arbitrary 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 constitutional 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 210, 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 punishment 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 conditiohs of detention.” Id. at 271 (emphasis added). These distinguishing features relate solely to the second prong of the pretrial detainee/due process test: whether the injury suffered was more than de minimis. Thus, it necessarily follows that these cases were distinguishable 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 Wilkinson, 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 212.

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 methods 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 205. 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, 121 S.Ct. 2151. 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 handcuffed.” Jones, 325 F.3d at 529. This Court acknowledged that Jones might fail at trial to convince a jury of this fact, but held 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 anyone.” 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 206. Viewing 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 neighborhood 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 Moxley’s actions to be reasonable because Moxley made a “split second” decision to remove a potential danger “from the public streets.” Ante, at 206. 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, Moxley 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. Moxley 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 reasons, 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:

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 “[sjhoot the animal from close range (5 to 15 feet, if possible).” Id. Lastly, “Dangerous 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 subdivision (2) of this subsection.

Subdivision (2) states, in part, that a “potentially dangerous dog” is a dog that has been determined to have “[ijnflicted 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 209. As we stated in Robles, “not every instance of inappropriate behavior on the part of police rises to the level of & 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 tranquilizer 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 Hex-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 Per-due adopted a more cavalier and reckless attitude towards animal control. Police Department statistics document, “From 1997 to 2000 ... Officers Moxley and Per-due discharged their departmentally 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 approximately once every two weeks. Of course, dogs were not the only animals 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 reluctance 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). Moreover, 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 multitude 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 officer, 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 Amendment right to be free from unreasonable seizures. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Accordingly, I would join the Third, Eighth, and Ninth Circuits in holding that an officer commits an unreasonable, war-rantless 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 successful. 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, 121 S.Ct. 2151. To answer this question, a court must engage in “a more particularized, and hence more relevant” inquiry. Id. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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, 121 S.Ct. 2151. “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 preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 qualified 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 circumstances.” Figg v. Schroeder, 312 F.3d 625, 635-36 (4th Cir.2002).

Although the majority does not reach the second step of the qualified immunity test, its review of the facts suggests it would not find any constitutional violation to be clearly established. The Court, however, fails to view those facts in the light most favorable to the plaintiffs. 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 unrelated 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 Per-due’s accounts is particularly 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 violation out of an objectively reasonable use of force.” Ante, at 213 (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In this case, however, the officers’ evil intents are relevant, not from a constitutional perspective, but for a credibility determination. Knowing the 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 nonthreatening. See, e.g., Jones, 325 F.3d at 528 (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 Specialists, 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 El-kins, Heidi jumped up from the driveway to a slightly elevated yard, but was not behaving aggressively. (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, Per-due 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) 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 favorable 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 ran 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 anyone, 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 207. 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 preparing 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 reasonable 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 only logical inference to be drawn from this evidence is that Sundance 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. Moxley 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 Mox-ley 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 necessary to determine whether the unconstitutionality of each of these unreasonable, warrantless seizures was “clearly established” at the 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 individual’s personal property is an “effect” for purposes of Fourth Amendment analysis. See Soldal v. Cook County, 506 U.S. 56, 62, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding that “orn-eases unmistakably hold that the [Fourth] Amendment 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 demonstrates that it has long been “clearly established” that dogs are “effects” 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 200-204.

“A ‘seizure’ of property occurs where there is some meaningful interference with an individual’s possessory interests in that property.” Soldal, 506 U.S. at 63, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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 person’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 unreasonableness of the seizures in the present case would have been sufficiently 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 authority 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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).

While there is no Supreme Court or Fourth Circuit case directly on point, each of the three circuits to have considered whether an individual has a constitutional right to be free from the unreasonable destruction of his or her dog has found that right to be clearly established. 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 that a dog that was destroyed by the police department was “obviously ... ‘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 [plaintiffs] 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 7, 1997) (unpublished) (finding that “it was apparent in light of preexisting law that shooting and killing a dog constituted a seizure within the meaning 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. Muhlenberg 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 established.

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 several 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 Larsen incident, which involved a Rottweiler, and the Altman incident, involving a pit bull mix, the Brown case regarded a breed of dog generally considered to be dangerous. Despite the inherent dangerousness 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 individual’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 presence of the owner, there are other facts in the instant cases that make it apparent that the constitutional rights at issue were clearly established. 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 warrantless 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.

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 conclusion that the actions of Moxley and Perdue were somehow constitutionally 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 Circuit’s qualified immunity analysis by effectively replacing the Supreme Court’s well-defined, two-part test, see Saucier, 533 U.S. at 201, 121 S.Ct. 2151, 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.

1 . The City of High Point Police Department has since amended its regulations and now permits ACOs to carry firearms.

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 actuality, the puppies weighed only fifteen to twenty pounds apiece. Furthermore, Perdue effectively conceded that he exaggerated the severity of the threat when he testified that, as he was taking deadly aim at Boo-Boo, Fiye stepped out of her home and scooped the dog up in her arms.