Smith v. City of Buffalo

JOSEPH SMITH and RONALD RAISER, Plaintiffs, v. CITY OF BUFFALO, et. al., Defendants.

17-CV-00639-JLS-MJR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 29, 2020

REPORT, RECOMMENDATION, AND ORDER

This matter has been referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1). (Dkt. No. 10). Before the Court are the motions of defendants City of Buffalo ("City of Buffalo"), former Buffalo Police Commissioner Daniel Derenda, Buffalo Police Detective Shawn Adams, and Buffalo Police Detective Joseph Cook for dismissal for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6); for judgement on the pleadings, pursuant to Fed. R. Civ. P. 12(c); and for summary judgment, pursuant to Fed. R. Civ. P. 56. (Dkt. No. 40). For the following reasons, the Court converts the motions to dismiss into a motion for summary judgment and recommends that the motion for summary judgment be granted in part and denied in part as to the City of Buffalo and defendants Adams and Cook, and that all claims against Defendant Commissioner Derenda be dismissed.

BACKGROUND

Plaintiffs' claims in this case arise from the execution of a search warrant during the early morning hours of July 29, 2014, at their residence located at 114 Edson Street, Upper, West Seneca, by members of the City of Buffalo's Police Department and others, during which Defendants Adams and Cook shot and killed Plaintiff Raiser's pet dog, "Rocky." Rocky was killed in or near the bedroom of Plaintiff Smith who was present in the bedroom in his bed when the shooting occurred. Plaintiffs contend that the shooting of Rocky was unnecessary and unreasonable as he did not pose a threat to the officers. The Defendants claim that the shooting was justified because Rocky growled at and ran/charged toward Defendant Cook and Cook had to shoot the dog to protect himself. Defendant Adams then shot Rocky to put him down.

There are three remaining claims in this case, all brought pursuant to 42 U.S.C. § 1983.¹ First, Plaintiffs claim that the shooting of Rocky constitutes an unconstitutional "seizure" of personal property in violation of the Fourth Amendment. This claim is brought against Defendants Adams and Cook in their individual capacities. Second, Plaintiffs assert a Monell municipal-liability claim against the City of Buffalo, Commissioner Derenda and Defendants Adams and Cook, both in their official and individual capacities, claiming violations of Plaintiffs' constitutional rights under the Fourth and Fourteenth Amendments. They claim that there exists a pattern or practice by the Buffalo Police Department of unjustifiably shooting and killing dogs during the execution of search warrants that is so persistent and widespread that it constitutes an unconstitutional custom or practice of which policymakers must have been aware. They also claim a failure by policymakers to properly train and supervise their subordinates in dealing with dogs during the execution of search warrants, such that the policymakers have exercised "deliberate indifference" to the constitutional rights of the Plaintiffs and others encountering those subordinates. Finally, Plaintiff Smith asserts a claim ofexcessive use of force, in violation of the Fourth Amendment, against Defendants Adams and Cook.

DISCUSSION

Summary Judgment Standard²

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is to be granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56. A genuine issue of material fact exists "where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "[V]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier [of fact] could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Bay v. Times Mirror Magazine, Inc., 936 F.2d 112, 116 (2d Cir. 1991). When a movant has met this burden, the burden shifts to the non-movant to bring forth evidence establishing the existence of an issue of material fact. Linares v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011).

In evaluating a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it is the burden of the moving party to demonstrate the absence of any material genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). Importantly, a court must not "weigh the evidence, or assess the credibility of witnesses, or resolve issues offact." Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (citations and internal quotations omitted). However, a party cannot defeat a motion for summary judgment by relying upon conclusory statements or mere allegations unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

Plaintiffs' Claim of Unconstitutional Seizure of Personal Property

Plaintiffs claim that the shooting of Rocky by Defendants Cook and Adams constituted an unconstitutional seizure of their personal property as the shooting was unreasonable under the circumstances. The Defendants counter that the shooting was reasonable and that they are therefore entitled to summary judgment based on the undisputed facts.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Second Circuit has held that "the unreasonable killing of a companion animal constitutes an unconstitutional 'seizure' of personal property under the Fourth Amendment." Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (shooting a family dog is."a severe intrusion given the emotional attachment between a dog and an owner").

To determine whether a seizure is unreasonable, a court must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interest alleged to justify the intrusion" and determine whether "the totality of the circumstances justified [the] particular sort of ... seizure." Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (internal quotation marks omitted). We have long held that the plaintiff has the burden to prove that a seizure was unreasonable. See Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991).

Id. at 651. The reasonableness inquiry is an objective one based on the totality of the circumstances and not an officer's subjective intent. Graham v. Connor, 490 U.S. 386, 397 (1989) (finding that the reasonableness inquiry "is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation"). "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." Id. at 396-97. As one court explained:

In the context of the fatal shooting of a pet, there are several specific considerations that the court must keep in mind. First, it is well-established that the killing of a pet dog constitutes a severe intrusion given the emotional attachment between a dog and an owner. On the other side of the balance, however, the governmental interest is significant: dogs may represent a serious risk to the safety of officers and the general public, and in some circumstances, it may be reasonable for an officer to shoot a dog that he believes poses a threat to his safety or the safety of the community. In particular, the state's interest in protecting life and property may be implicated when there is reason to believe [a] pet poses an imminent danger. As long as it was reasonable for the officer to believe that danger was imminent, a fatal seizure may be justified even if the dog did not actually pose a danger to the officer. [T]he law does not require the officer to wait until the approaching animal is within biting distance or is leaping at him before taking protective action.

Azurdia v. City of New York, 18-CV-04189-ARR-PK, 2019 WL 1406647, at *7 (E.D.N.Y. Mar. 28, 2019); see also Cabisca v. City of Rochester, 14-CV-6485-JWF, 2019 WL 5691897, at *10-11 (W.D.N.Y. Nov. 4, 2019).

Here, the Court finds that when viewing the evidence offered by the parties in the light most favorable to Plaintiff Raiser, there exists a genuine issue of material fact as to whether the shooting of Rocky by Defendants Cook and Adams during the execution ofthe search warrant was reasonable under the circumstances and that a reasonable jury could find for Plaintiff Raiser on this claim.

Defendant Cook testified in his deposition that during the execution of the search warrant, as he was proceeding down the hallway leading to Plaintiff Smith's bedroom, he observed Rocky growling and running/charging from the bedroom towards the hallway and towards him. He shot Rocky once in the head when Rocky was less than two feet from the doorway still inside the bedroom. He stated that Rocky immediately went down, was still alive and no longer posed a threat. Defendant Adams then followed Defendant Cook into the bedroom and quickly shot Rocky again as he laid on the floor of the bedroom. Defendant Cook testified that Rocky was an aggressive dog and that he shot Rocky to protect himself and to stop Rocky from preventing him from addressing other potential threats within the bedroom. (Def. Ex. D at 40-46, 54, 57, 66, 73, 89).

Defendant Adams testified that when he heard the shot fired by Defendant Cook he moved toward Plaintiff Smith's bedroom where he first realized that Defendant Cook had shot a dog. He saw Rocky laying on his side on the floor...