White v. Detroit, City of

569 F.Supp.3d 650

Rosemary WHITE, et al., Plaintiffs,

v.DETROIT, CITY OF, et al., Defendants.

Civil Action No. 20-CV-12646

United States District Court, E.D. Michigan, Southern Division.

Signed November 3, 2021

Jonathan R. Marko, Katherine Hazel Olds, Zachary T. Runyan, Marko Law, PLLC, Detroit, MI, for Plaintiff Rosemary White.

Zachary T. Runyan, Marko Law, PLLC, Detroit, MI, for Plaintiff Mi-Chol White.

Gregory B. Paddison, Michael M. Muller, City of Detroit Law Department, Detroit, MI, for Defendants City of Detroit, Detroit Police Offic Shirlene Cherry.

OPINION & ORDER (1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Dkt. 38) AS TO THE FEDERAL CLAIMS AGAINST THEM AND (2) DISMISSING WITHOUT PREJUDICE PLAINTIFFS’ STATE LAW CLAIMS

MARK A. GOLDSMITH, United States District Judge

Plaintiffs Rosemary and Mi-Chol White¹ bring this 42 U.S.C. § 1983 action against Defendants the City of Detroit and Detroit Police Officer Shirlene Cherry. 3d Am. Compl. (Dkt. 34).² Plaintiffs bring two federal claims—a Fourth Amendment unlawful seizure claim against Cherry and a failure-to-train claim against the City—as well as three state claims—conversion, intentional infliction of emotional distress, and negligent infliction of emotional distress. See id. ³ This matter is presently before the Court on Defendants’ motion for summary judgment on all claims against them (Dkt. 38). For the following reasons, the Court grants Defendants’ motion as to the federal claims against them and dismisses without prejudice Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367(c)(3).⁴

I. BACKGROUND

After Detroit police officers apprehended a fleeing suspect who ran through several yards including Plaintiffs’, the officers requested a canine unit to come to Plaintiffs’ front yard to search for a weapon that the suspect may have discarded there. Sweppy Dep. at 15-17 (Dkt. 51-1).⁵ When Cherry arrived with her canine, Roky, officers asked Mi-Chol to put away her two dogs that were outside—Chino, a pit bull, and Twix, a Yorkie Terrier. Mi-Chol Dep. at 11 (Dkt. 38-2). Mi-Chol grabbed Chino to put him into a kennel, but he escaped from her grasp and ran to the front yard. Id. at 12–13. Mi-Chol went inside to grab a leash for Chino. Id. at 13.

Because Chino was still out in the yard, Cherry decided to take Roky to the rear of a neighboring home to begin the search for the discarded weapon. Use of Force Report at 2 (Dkt. 38-3). To do so, she began walking with Roky next to the iron fence that surrounded Plaintiffs’ yard. Video from Plaintiffs’ security camera shows that Chino ran alongside Roky on the other side of the fence and, as Roky neared the end of Plaintiffs’ fence, Chino suddenly locked down on Roky's snout. Pl. Security Footage. After Roky cried out, Cherry looked down to see Roky trapped in Chino's mouth, being jerked by Chino as if Chino were trying to pull Roky through the iron fence. Cherry Body Camera Footage at 4:39–4:41. Cherry screamed, "dog, let go," and attempted without success to pull Roky back by his leash. Id. at 4:41–4:43. Chino did not let go. Cherry unholstered her gun and shot Chino, causing him to release Roky. Id. at 4:43–4:45; Pl. Security Footage at 0:07–0:09; Sweppy Body Camera Footage at 10:34–10:37. Approximately six seconds passed between the moment that Chino attacked Roky and the moment that Cherry shot Chino. Chino died as a result of the gunshot.

II. ANALYSIS⁶

The Court first addresses Defendants’ argument that Cherry is entitled to qualified immunity on the Fourth Amendment claim against her. The Court next considers whether Defendants are entitled to summary judgment on the failure-to-train claim. Finally, the Court explains that because Defendants are entitled to summary judgment on the federal claims, the Court will dismiss the state law claims.

A. Qualified Immunity

Qualified immunity shields government officials performing discretionary functions "from liability for civil damages insofar as 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, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Created to protect government officials from interference with their official duties, qualified immunity "is an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It allows police officers "breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law." Stanton v. Sims, 571 U.S. 3, 6, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (punctuation modified). After a defending officer initially raises qualified immunity, the plaintiff bears the burden of showing that the officer is not entitled to qualified immunity. Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013).

Qualified immunity involves a two-step inquiry. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). First, viewing the facts in the light most favorable to the plaintiff, the Court must determine whether the officer committed a constitutional violation. Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). Second, the Court must determine whether that constitutional right was clearly established at the time of the incident. Id. Here, Defendants concede that "it is clearly established in the 6th Circuit that people have a 4th Amendment constitutional right to not have one's dog unreasonably seized." Mot. at 5.⁷ In other words, Defendants challenge only Plaintiffs’ ability to prove the first prong. Accordingly, the Court confines its analysis to the first prong.

"Reasonableness is the touchstone of any seizure under the Fourth Amendment." Brown, 844 F.3d at 567. Reasonableness is an objective inquiry assessed from the time that the officer's actions took place. Id. at 568. To determine whether Cherry's seizure of Chino was objectively reasonable, the 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." Id. (punctuation modified). A seizure becomes unlawful when it is more intrusive than necessary. Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The plaintiff bears the burden of proving that the seizure was unreasonable. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

In Brown, the Sixth Circuit held that the officers’ shooting of the plaintiffs’ dogs was a severe intrusion "given the emotional attachment" between dogs and their owners. 844 F.3d at 568. Thus, Cherry's shooting of Chino was likewise a severe intrusion. However, for the reasons explained below, despite the severity of the intrusion, Cherry's actions were nevertheless objectively reasonable.

The Sixth Circuit has not directly addressed the issue of reasonableness in the context of an officer's shooting of a pet to protect the officer's canine partner. However, as a starting point for its analysis, this Court uses the Sixth Circuit's holding in a related context—i.e., the reasonableness of an officer's shooting of a pet to protect the officer's own safety. The Sixth Circuit has held that the severity of the intrusion of an officer's shooting of a pet is outweighed when the officer reasonably perceives the pet to pose an imminent danger to the officer's own safety. Id. at 567 (holding that officers were justified in shooting and killing a pit bull that barked aggressively and then lunged at one of the officers). An officer may also use deadly force against an animal who threatens the safety of fellow officers. Robinson v. Pezzat, 818 F.3d 1, 12 (D.C. Cir. 2016) ("Given that [the dog] bit [the second officer] hard enough to puncture her leather boots, [the first officer's] belief—just seconds later—that the dog continued to pose an imminent threat even absent additional aggressive behavior was hardly unreasonable.").

These principles logically extend to an officer's use of deadly force against a pet in situations where the pet poses an imminent danger to the officer's canine partner. Canine partners play an important role in law enforcement. They help to detect and prevent the destruction of evidence, find and apprehend suspects, locate and rescue victims, and protect the lives of their human police handlers. Because police officers rely on their canine partners to effectively perform the officers’ jobs and protect the officers’ safety, an officer's shooting of a pet—although a severe intrusion—simply does not outweigh the important government interest in protecting a police dog's safety, where the pet poses an imminent danger to the police dog.

Outside this circuit, at least one other court has held that an officer reasonably uses deadly force against a pet that poses an imminent danger to the officer's canine partner. In Warboys v. Proulx, 303 F. Supp. 2d 111 (D. Conn. 2004), the defendant-officer, his fellow officers, and the defendant's canine partner were attempting to track a fleeing suspect. Id. at 113. The scent trail of the suspect led the police dog and the officers to the rear of the plaintiff's residence. Id. The plaintiff's son opened a door to the residence, allowing the plaintiff's pit bull to escape. Id. at 113–114. The plaintiff's son made a failed attempt to catch the pit bull, who continued to move towards the defendant-officer and his canine. Id. at 114. The plaintiff's son yelled something to the effect of "he won't hurt you," but the defendant-officer unholstered his gun and fired it into the pit bull's head, killing the pit bull. Id. Approximately five seconds elapsed between the time that the pit bull left the house and the time that the officer shot it. Id.

The Warboys court acknowledged the...