Wednesday, July 18, 2018

Dogs and the Fourth Amendment

by Sherry F. Colb

In my Verdict column this week, I discuss the case of Collins v. Virginia. In it, the Supreme Court recently held that if police want to search a vehicle located within the curtilage of a home, the Fourth Amendment requires them to get a search warrant. This answered an open question about the scope of the "automobile exception" to the warrant requirement, which generally allows police to search a car based on probable cause alone. What made this case different was the fact that a police officer had had to walk across a driveway to reach the vehicle and that walk included an area that he would not have had to cross to get to the front door.

In this post, I want to focus on a different sort of property that police sometimes disturb in the course of carrying out searches and seizures in and around a person's home. That property is canis lupus familiaris, or the dog.

Many police officers actually have deep and profound relationships with dogs, because dogs can help detect drugs and other substances in  the field. They are also prepared to protect their handlers with their lives. Although African Americans and members of other groups that have endured and continue to endure persecution by police can be frightened of dogs, the reason for dogs' aggression towards innocent people virtually always stems from training and orders by police themselves. I remember hearing about a dog, a Saint Bernard, who lived in a Nazi death camp and was ordered to bite the Jewish inmates there. He did as he was ordered to do, but when the Nazi "master" left the area, the dog would snuggle up with the Jews, let them pat him, and kiss them. The problem is rarely the dog.

Not all police, however, have any kind of a relationship with a dog. To many police, dogs are unfamiliar creatures who could hurt them. Furthermore, lacking an understanding of dog behavior, police will sometimes mistake barking for threatening aggression. Why does any of this matter? Police do not run an animal shelter, so why should they have to cultivate a passing familiarity with dog behavior? The answer is that the people whose homes the police enter, to search or to arrest a suspect, often house not only humans but dogs as well.

When police enter a home for the purpose of executing a search warrant or arresting somebody, they may encounter one or more dogs. Close to ninety million dogs lived in American households as of 2017. Having no idea how to distinguish between an actual threat and ordinary, mundane dog behavior will regularly lead police to take out a gun and shoot the dog. The documentary Of Dogs and Men provides a disturbing account of the many such shootings.

From high-profile cases in the last few years, we know that police also shoot people, disproportionately black people. If someone cares more about people than about dogs, doesn't it make sense for them to ignore what the police are doing to canines? No, it does not. The willingness of some police officers to use deadly force when there is no need for it endangers both people and dogs. The problem is a combination of ignorance, prejudice, and indifference, a problem that harms everyone who fails to do exactly what police want or expect them to do when police are attempting to carry out their duties.

Police must sometimes question, stop, arrest, and search suspects who have a mental illness. When this happens, one would hope and expect that police would be in a position to use their training to deal with the situation. One would be disappointed, however, because many police officers seem to have no idea how to handle a person with mental illness other than by trying to kill him or her. Police also sometimes encounter someone who speaks no English. One would hope and expect police to rely on training in how to communicate with someone who does not speak English. But again, one would be disappointed, as at least some police just act as though everyone speaks English and therefore, someone who does not follow orders must be dangerous.

Looked at through this lens, police officers' decisions to slaughter dogs who posed no harm to them becomes comprehensible. A woman is trying to get her dog, who has escaped from the house, to come back in. An officer approaches the dog while the woman assures him that the dog is harmless. The officer then aims his gun and shoots the dog dead. Officers are in a house executing a search warrant, while several dogs just hang around. When the officers decide to search the basement, they shoot and kill the dogs in the basement. And the list goes on and on, just as the list of human fatalities does. What they all share, again, is ignorance--a complete lack of understanding regarding a situation that recurs--and indifference--a lack of any empathy for the human or animal to be killed and for the other humans and animals who will grieve the loss for the rest of their lives.

The reason you need both ignorance and indifference to explain it is that police sometimes shoot humans and dogs in circumstances when it should be quite obvious to anyone that he confronts no danger. Yet the officer, perhaps figuring that he can just lie about what happened, proceeds to deploy lethal violence because he simply does not care. Taking lives and ruining other lives does not feel like a big deal to him. Frighteningly, this sort of indifference characterizes psychopaths, another group of people who victimize animals and humans both. It's a mistake to think that compassion and empathy are a zero sum game.

What does this have to do with the Fourth Amendment? The Supreme Court has held that killing someone constitutes a seizure for constitutional purposes, and destroying someone's property qualifies as a seizure as well. Under the law, a living being who is a dog is property. Therefore, when police kill a civilian's dog, they are engaging in a seizure.

Some seizures are legal, and some are not. Only when a seizure is "unreasonable" does it violate the Fourth Amendment. So the question becomes this: When police officers shoot a family's dogs to death despite the dogs' posing no threat to the officers, do the killings qualify as "unreasonable seizures"? In one case that posed this question, the U.S. Court of Appeals for the Sixth Circuit held that a jury could find that the shootings were reasonable.

The problem might be that judges (and juries) are as ignorant about dogs as many police officers are. In a state of ignorance, they might believe that whether a dog is a threat is just a mystery. If they bark, then they are threatening; if they walk over to you, then they are threatening. Since it is allegedly so hard to tell, it follows that police are acting properly when they err on the side of safety. The question of whether police have killed a dog unnecessarily morphs into the question of whether police may simply assume that a dog is dangerous because she makes them nervous. How, after all, are they really supposed to know that a set of dog behaviors are nonthreatening?

In truth, there are psychopaths among the police. One officer, for example, found an escaped dog, brought the dog to a shooting range, and then shot the dog to death there. It is going to be difficult to stop psychopaths from killing dogs, because they affirmatively enjoy inflicting suffering and ruining  lives.

Most police officers, however, are teachable. They could receive mandatory training in all of the sorts of situations that they might routinely encounter in carrying out a search or seizure. To learn about dogs, perhaps they could spend time in an animal shelter.

By the end of 2018, the average American will reportedly have consumed 222 pounds of flesh from land animals. In consuming the flesh and secretions of animals, Americans rarely think about the fact that they are paying people to inflict pain and slaughter on living beings. But dogs enjoy a somewhat different status.

Dogs are quite similar to the animals who scream and die in slaughterhouses and fishing nets, but people think of them as family members. Perhaps that will motivate people to pass laws holding police accountable for unnecessarily gunning down an innocent canine who was a "good girl," a precious being, and was loved by her family. And maybe, at the same time, police will learn threat assessment in humans as well, so that no one has to lose a family member because a person sworn to "serve and protect" felt uncomfortable and frightened in the absence of any reason to feel that way.

1 comment:

Joe said...

There have been various discussions on the status of animals, in particular companion animals, in the context of Fourth Amendment law. One law article said seven federal court of appeals held them as protected while there is a limited recognition they are particularly special given current social understandings.

Note that the 4A doesn't literally protect all "property," but it is applied broadly. Moving past them as "effects," I might argue that they are in effect family and fit in a wide view of the special place set for the home. Consider, e.g., Justice Harlan (II) broadly arguing in Poe v. Ullman that family life is protected.

Past discussions on this blog also dealt with the issue, including one piece by the author on a case involving taking blood from a dog. There also might be a Fifth Amendment argument involving takings or due process. Anyway, simply treating Simon (to state the name of a family pet) as mere property does seem problematic.

https://verdict.justia.com/2016/08/17/taking-blood-dog-search-dogs-owner