11th Circuit Strips Immunity From Cop Who Shot And Killed Dog That Had Already Been Neutralized By A Taser

We know cops kill dozens of dogs every day. This much has been verified by the US Department of Justice, which called it an “epidemic.” It’s not just anecdotal evidence generated by a handful of court cases.

We also know most cops who kill dogs get away with it, even though multiple courts have ruled that killing a pet is “seizure” under the Fourth Amendment — something that must be supported by probable cause to remain constitutional.

And the cops got away with this killing, too. At least until they reached the appellate level. The lower court saw nothing unconstitutional about killing a dog that no longer posed a threat (if it ever posed a threat at all) to officers because it had already been tased into submission.

The facts of the case — as recounted in the Eleventh Circuit Appeals Court decision [PDF] — raise a lot of questions no police officer or official are willing to answer honestly.

Plowright, a resident of Miami-Dade County, called 911 to report someone trespassing in the vacant property near his home. Miami-Dade police officers Leordanis Rondon and [Sergio] Cordova responded to the call, approaching Plowright’s front door “through a dimly lit driveway.” As Plowright came out to greet the officers, they drew their guns and “immediately began shouting” at Plowright to show them his hands. When Plowright’s dog Niles, an “American Bulldog weighing less than 40 pounds,” entered the scene, the officers ordered Plowright to get control of him. Before Plowright did so, Rondon fired his taser at Niles, sending him “into shock.” Then, “[a]fter the dog was already down from the [t]aser,” Cordova “fired at least two shots from his gun, killing the dog for no reason.” The officers then ordered the “emotionally devast[ated]” Plowright to the ground as Niles “laid dying.”

Let’s start unpacking this. While it’s understandable officers might have exercised caution because the first person they approached on the property might have been the trespasser, it’s just as understandable that Plowright might have confused by being treated as a criminal suspect by the people he had called to report a crime.

Then there’s the order to “control” the dog, which was given to Plowright as soon as the dog appeared. What was not given to Plowright was any time to comply with this order. Officer Rondon tased the dog and Officer Cordova finished the job moments later. Why bother issuing orders if you’re not going to give people time to comply with them? The only thing I can think of is that officers issue orders they know they’re not going to give someone a chance to comply with for the sole reason of generating justification for any acts of violence or rights violation they engage in past that point. “Subject refused to comply,” etc.

Going beyond that, the officers still treated Plowright as a suspect even while tacitly admitting he wasn’t by ordering him to “control” his dog. If they still thought Plowright was the trespasser, they wouldn’t have given this order. They would have neutralized the dog and moved on to the rest of the stuff they did here, like ordering the person to the ground. But here, they tried to have it both ways: they treated Plowright as the owner of the dog (which would mean he was most likely the owner of the property) and as a criminal trespassing suspect by pointing guns at him and ordering him to the ground.

Logically, none of this works out. Fortunately, it didn’t work out for Officer Cordova either, despite his earlier success in the lower court. The immunity he obtained there is stripped away by the Appeals Court, which says it doesn’t even need a case on point to do so. The rights here were so clearly established by other precedent and, you know, common sense, there’s no way the officer could have honestly believed his violent actions were justified.

Here, a reasonable officer would have known that it was unlawful to shoot Niles under the circumstances alleged in the complaint—even without caselaw directly on point. Even a cursory reading of Barrow and Jacobsen reveals that shooting a domestic animal amounts to a seizure, meaning that it is subject to the Fourth Amendment’s reasonableness requirement. And, because the “nature and extent” of such a seizure is so serious, Place tells us that it can be justified only by significant countervailing government interests. Although it is true that “a general standard such as ‘to act reasonably’” will seldom “put officers on notice that certain conduct will violate federal law” given the “intensely fact specific” nature of the inquiry, the facts alleged in Plowright’s complaint take Cordova’s actions “well beyond the ‘hazy border’ that sometimes separates lawful conduct from unlawful conduct.”

Even without these cases, however, Cordova’s conduct was “so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of [his] conduct” should have been “readily apparent to [him], notwithstanding the lack of case law.” Just as “no reasonable officer could ever believe that it was appropriate” to tase a compliant, non-threatening bystander at the scene of an arrest, Fils v. City of Aventura, 647 F.3d 1272, 1276–77, 1292 (11th Cir. 2011), no reasonable officer could ever believe that it was appropriate to shoot an incapacitated, non-threatening domestic animal during a 911 investigation.

That means this case will move forward, rather than be short-circuited by a cop who was too impulsive to keep himself from killing a neutralized “threat,” but suddenly so cognizant of relevant case law he thought he could secure immunity because no cop before him had done the exact same thing he did under the exact same circumstances.

And there may be even more evidence on the way that will undercut Officer Cordova’s testimony. The appeals court decision says “body cam footage or other evidence” may introduce facts that move the officer closer to qualified immunity or favorable verdict. But, given what’s claimed here and the officers’ responses to the lawsuit, chances are any additional information will only make things worse for Officer Cordova.

In addition to the Fourth Amendment violation, the appeals court says the elements of state law are satisfied here. And that means Officer Cordova will also be facing intentional infliction of emotional distress allegations and will not be able to avail himself of immunity at the state level either.

Given this, one would expect a settlement in the near future. Then again, cops are playing with house money, so if the state of Florida considers protecting a cop from the consequences of his unconstitutional actions, this case may still have a bit of run time before it reaches a resolution.