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Is Firing at a Dog When Children Are Nearby Clearly Unreasonable?

By Joseph Fawbush, Esq. on August 06, 2019

The suspect fled into the yard of a residential home. There were six children present, innocent bystanders not suspected of any crime. Nervous about the suspect, the officers told the children to lie down on the ground and not move. The children did so. The adult watching the children was put in handcuffs, as was the suspect.

It was after the handcuffing that a dog approached from the house, looking to go to its owners lying down in the yard. It was not threatening, according to reports. Still, the officer fired his weapon at the dog, missing. The dog hid back in the home, only to reappear within approximately 10 seconds to again approach its owners. The officer fired again. Another miss. This time the bullet hit a child on the ground in the back of his right knee. The child was less than two feet away from the officer.

Does the Officer Get Qualified Immunity?

A complaint against the officer alleged that the officer used unreasonable force in violation of the 4th Amendment.  The question before the 11th Circuit Court of Appeals in Corbitt v. Vickers was whether this officer should get qualified immunity and the complaint should be dismissed. The district court denied the motion to dismiss. The 11th Circuit Court of Appeals reversed.

The Decision

Qualified immunity cases rest on whether the plaintiff can show that a constitutional right was violated and that it is clearly established that the action in question violates that right. A plaintiff can do this in three ways:

  • If existing precedent establishes that the conduct violates the constitutional right
  • If a broader principle should govern the unique circumstances of the case
  • The conduct obviously violates the constitution

The majority held that the circumstances supported a 4th Amendment claim. However, it found no relevant caselaw that would put the officer on notice that firing at a non-threatening dog with children around was unacceptable. Judge R. Lanier Anderson wrote for the majority that “there was no clearly established law making it apparent to any reasonable officer in Vickers’s shoes that his actions in firing at the dog and accidentally shooting SDC would violate the Fourth Amendment.” Therefore, it reversed the lower court’s decision.

In his dissent, Judge Charles R. Wilson wrote that “no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children” Therefore, the conduct obviously violates the constitution and qualified immunity should not apply.

A Heavy Burden

The case reinforces how difficult it can be to show that qualified immunity does not apply when previous caselaw has not addressed similar circumstances, at least in the 11th Circuit. The majority noted as much in its decision.

One can certainly question the wisdom at firing a gun at a dog – twice, with a pause between shots – while surrounded by children. But that questionable judgment does not negate the protection offered by qualified immunity, at least in the 11th Circuit.

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