MANHATTAN (CN) - The 2nd Circuit cleared police cops for
fatally shooting a dog in the head while executing a no-knock search warrant in
upstate New York.
On Oct. 11, 2006, members of the Greater Rochester Area
Narcotics Enforcement Team broke through Sherry Carroll's front door with a
battering ram without announcing their presence. The federal appeals court
noted that from the outset that "the facts of this case are undoubtedly
tragic."
Deputy James Carroll was the first to enter the home and
immediately encountered "a dog growling, barking, and quickly and
aggressively approaching him," according to the decision.
"Once the dog had advanced to within a foot of
him," Carroll fired one fatal shot at the family dog.
Though the team knew before executing the warrant that a dog
would be present, they failed to "discuss a plan for controlling the dog
or formulate a strategy to neutralize any threat the dog might pose by
non-lethal means," the ruling states.
Carroll, who had two children under the age of 18 at the
time of the intrusion, filed a federal complaint against Monroe County, its
sheriff's department, Sheriff Patrick O'Flynn and Deputy Sheriff James Caroll.
A federal jury in Rochester concluded after a two-day trial,
however, that the shooting of the dog was not an unconstitutional seizure in
violation of the Fourth Amendment.
A three-judge panel of the 2nd Circuit refused to disturb
the verdict Tuesday.
"Although the death of her dog was regrettable, we
cannot conclude that the plaintiff has met this heavy burden," the unsigned
decision states.
No-knock warrants are issued in cases where "there is
reason to believe that the occupants of the residence will, if the cops
announce themselves prior to entry, pose a significant threat to cop safety or
attempt to destroy evidence," according the opinion.
Here, the cops testified that trying to secure an aggressive
dog could jeopardize themselves and the evidence, causing an insurmountable
"delay in securing the entryway," which they call the "fatal
funnel," the court noted.
Carroll failed to show that the cops improperly discounted
pepper spray, a taser or a catch pole as a means to secure her pet, according
to the ruling.
She "offered no evidence that these non-lethal means
would have been effective or that it would have been unreasonable for the cops
to decide not to use them," the ruling states.
Carroll testified that he did not know of an instance of
"pepper spray effectively controlling an aggressive dog" and that the
department "did not own tasers at the time," the judges wrote.
Futhermore, "a jury could reasonably conclude that
using a catch pole in the middle of the entryway would compromise cop safety
and unreasonably delay the search."
Despite siding with the county, the judges ended with a
cautionary note.
"We do not mean to endorse the defendants' apparent
position that the failure to plan for the known presence of a dog is always
acceptable when the police are executing a no-knock warrant," merely that
"the jury was not unreasonable to conclude that the plaintiff did not meet
her burden of proof," the ruling states.There may well be instances where
the killing of a pet in such circumstances does meet the burden of proof that a
seizure is unconstitutional, the judges said, adding that they "urge the
defendants to consider whether more comprehensive training and planning would
better serve the public, as well as its cops, in the future."