                                                                                    FILED
                                                                        United States Court of Appeals
                                         PUBLISH                                Tenth Circuit

                          UNITED STATES COURT OF APPEALS                       June 20, 2016

                                                                            Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                          Clerk of Court
                             _________________________________

KENT MAYFIELD and TONYA
MAYFIELD,

       Plaintiffs - Appellees,

v.                                                            No. 15-3074

JIM BETHARDS, part-time Deputy,

       Defendant - Appellant.

----------------------------------

HARVEY COUNTY SHERIFF’S
DEPARTMENT; T. WALTON, Sheriff;
CARMAN CLARK, Sheriff Deputy;
SCOTT MOTES, Sergeant; TODD
HANCHETT, Undersheriff; GREG NYE,
District Attorney; TIM BOESE, Corporal;
HARVEY COUNTY DISTRICT COURT;
JOHN DOES 1 - 3; JANE DOES 1 - 3,

       Defendants.
                             _________________________________

                         Appeal from the United States District Court
                                  for the District of Kansas
                           (D.C. No. 6:14-CV-01307-JTM-KGG)
                           _________________________________

Submitted on the briefs: *

        *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Kent Mayfield, Tonya Mayfield, pro se.

Toby Crouse, Foulston Siefkin, LLP., Overland Park, Kansas, for Jim Bethards,
Defendant-Appellant.
                       _________________________________

Before LUCERO, PORFILIO, and McHUGH, Circuit Judges.
                  _________________________________

McHUGH, Circuit Judge.
                    _________________________________

      Kent and Tonya Mayfield, proceeding pro se, brought this action against

Deputy Jim Bethards under 42 U.S.C. § 1983, claiming he violated their Fourth and

Fourteenth Amendment rights by killing their pet dog. Deputy Bethards raised a

qualified-immunity defense and moved to dismiss the Complaint under Fed. R. Civ.

P. 12(b)(6) for failure to state a claim. The district court denied his motion and

Deputy Bethards appeals. We affirm.

                                    I. Background

      The Mayfields claim Deputies Clark and Bethards violated their Fourth

Amendment rights by entering their property without a warrant with the intention of

killing their two dogs, firing upon both dogs, and killing one of them.1 According to

the Complaint, the deputies saw the Mayfields’ dogs Suka and Majka lying in the

front yard of the Mayfields’ private residence in Halstead, Kansas, on July 13, 2014.


      1
        The Mayfields initially also included a claim that the deputies had violated
their Fourteenth Amendment rights. But they have abandoned their Fourteenth
Amendment challenge in their answer brief to this court, stating “[t]his is not a due
process claim” and “the 4th amendment is the only appropriate vehicle for resolving
the current unlawful seizure.” See Aplee. Br. at 13.
                                            2
The deputies exited their vehicle and entered the Mayfields’ unfenced front yard to

approach the dogs. In the Complaint, the Mayfields allege a witness observed that

although neither dog acted aggressively, both officers began firing on the dogs once

on the Mayfields’ property. Deputy Clark fired on Suka, the Mayfields’ brown dog,

but missed as she fled to the back of the house. Deputy Bethards shot Majka, the

Mayfields’ white Malamute Husky, three times, killing her on the front porch.

       The deputies then unsuccessfully searched for Suka behind the house, where

she had disappeared into a wooded section of the Mayfields’ property. The

Complaint further alleges that upon returning to the front yard, the deputies first

moved Majka’s body in an apparent attempt to obscure that she had been shot on the

Mayfields’ property and then tried to hide her body in a row of trees.

       Deputies Clark and Bethards raised a qualified-immunity defense and moved

to dismiss the Complaint under Rule 12(b)(6) for failure to state a claim. See Fed. R.

Civ. P. 12(b)(6). The district court dismissed the Mayfields’ Fourth Amendment

claim against Deputy Clark on qualified immunity.2 But the district court denied

qualified immunity to Deputy Bethards, finding the Complaint set forth a plausible

claim that Deputy Bethards violated the Mayfields’ clearly established Fourth

Amendment rights by unlawfully seizing Majka when he shot and killed her.

       Deputy Bethards filed a timely appeal. We affirm the district court’s decision.

       2
         The district court dismissed the Fourteenth Amendment claims against all
Defendants. “Other than the Fourth Amendment claim against Bethards . . . ,
Plaintiffs fail[ed] to allege facts sufficient to state a plausible claim to relief for any
constitutional torts or due process violations.” The district court also dismissed the
John and Jane Doe Defendants sua sponte.
                                              3
                                     II. Jurisdiction

       The denial of a Rule 12(b)(6) motion to dismiss on qualified-immunity

grounds is an appealable final order if it turns on an issue of law. Ashcroft v. Iqbal,

556 U.S. 662, 672 (2009) (“[T]his Court has been careful to say that a district court’s

order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a

‘final decision’ within the meaning of [28 U.S.C.] § 1291.”); Keith v. Koerner, 707

F.3d 1185, 1187 (10th Cir. 2013). The district court found the Mayfields had

sufficiently alleged a violation of their clearly established rights. Whether a plaintiff

has sufficiently “alleged a violation of his clearly established constitutional rights to

overcome [the defendant’s] defense of qualified immunity is an issue of law

reviewable on interlocutory appeal.” Brown v. Montoya, 662 F.3d 1152, 1162 (10th

Cir. 2011). Accordingly, we exercise jurisdiction pursuant to § 1291 to review the

district court’s order denying Deputy Bethards’s qualified immunity defense. See

Mitchell v. Forsyth, 472 U.S. 511, 526-27, 530 (1985); Keith, 707 F.3d at 1187.

                     III. Standard of Review and Relevant Law

       We review the denial of a motion to dismiss “de novo, applying the same

standards as the district court.” Keith, 707 F.3d at 1187. To survive a motion to

dismiss, a complaint must allege facts that, if true, “state a claim to relief that is

plausible on its face.” Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013)

(internal quotation marks omitted). A claim is facially plausible when the allegations

give rise to a reasonable inference that the defendant is liable. Id. In reviewing a

motion to dismiss, we accept the facts alleged in the complaint as true and view them

                                             4
in the light most favorable to the plaintiff. See Brown, 662 F.3d at 1162. And because

the Mayfields appear pro se, we liberally construe their pleadings. Diversey v.

Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013).

      Qualified immunity protects government officials from suit for civil damages

if their conduct does not violate clearly established statutory or constitutional rights.

Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). When a defendant raises a

qualified immunity defense, the court must dismiss the action unless the plaintiff

shows that (1) the defendant violated a statutory or constitutional right, and (2) the

right was clearly established at the time of the violation. See id. The court may

address these requirements in any order. Wilson, 715 F.3d at 852.

                                      IV. Analysis

      A. The complaint states a plausible violation of the Mayfields’ Fourth
         Amendment rights.

      The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. Deputy Bethards argues the Complaint fails to state a

plausible Fourth Amendment claim because dogs are not “effects” subject to Fourth

Amendment protection and, regardless, killing Majka was reasonable under the

circumstances as a matter of law. We disagree.




                                            5
       Although the Fourth Amendment uses the word “effects,” the Supreme Court

has long equated that term with personal property.3 See United States v. Place, 462

U.S. 696, 700–01 (1983) (“In the ordinary case, the Court has viewed a seizure of

personal property as per se unreasonable within the meaning of the Fourth

Amendment unless it is accomplished pursuant to a judicial warrant issued upon

probable cause and particularly describing the items to be seized.”); see also Illinois

v. McArthur, 531 U.S 326, 330 (2001) (same). And Kansas has recognized for at least

as long that dogs are their owners’ personal property. See Kan. Stat. Ann. § 79-1301

(“A dog shall be considered as personal property and have all the rights and

privileges and be subject to like lawful restraints as other livestock.”); State v.

Fenske, 61 P.2d 1368, 1369 (Kan. 1936) (upholding larceny conviction for stealing a

dog and stating “[w]e have no hesitancy in saying a dog is personal property”). Thus,

it is unlawful to seize a dog absent a warrant or circumstances justifying an exception

to the warrant requirement. See G.M. Leasing Corp. v. United States, 429 U.S. 338,

358 & n.21 (1977) (discussing exceptions to warrant requirement).

       “A ‘seizure’ of property occurs when there is some meaningful interference

with an individual’s possessory interests in that property.” United States v. Jacobsen,

466 U.S. 109, 113 (1984). Killing a dog meaningfully and permanently interferes

       3
        For a thorough discussion of how the term “effects” came to be included in
the Fourth Amendment text and the meaning of the word at the time, see Altman v.
City of High Point, 330 F.3d 194, 201 (4th Cir. 2003) (concluding the term “referred
only to personal property, and particularly to goods or moveables”); Maureen E.
Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due
Protection, 125 Yale L.J. 946, 984–85 (2016).

                                            6
with the owner’s possessory interest. It therefore constitutes a violation of the

owner’s Fourth Amendment rights absent a warrant or some exception to the warrant

requirement.

      Deputy Bethards argues that, even if the Fourth Amendment applies, killing

Majka was reasonable because he thought she had attacked livestock and he believed

Kansas law allows anyone to kill a dog reported to have done so. But Deputy

Bethards’s explanation for killing Majka is found in his police report, not the

Mayfields’ Complaint. At this stage of the proceedings, our review is limited to the

Complaint and any documents it incorporates. See Gee v. Pacheco, 627 F.3d 1178,

1186 (10th Cir. 2010).4

      Although the Complaint does not incorporate Deputy Bethards’s police report,

it incorporates a letter from the Mayfields to Sheriff Walton in which they dispute as

a case of “mistaken identity” an accusation that Majka had mauled a neighbor’s

livestock a year before Deputy Bethards shot her. Specifically, the attached letter

alleges the livestock owner shot the offending white husky during the previous

incident, and the dog—a different white dog than Majka—had to be “put down” as a

result of the shotgun wounds. In addition, the Complaint alleges that neither of the

Mayfields’ dogs was acting aggressively toward the officers when Deputy Bethards

killed Majka.

      4
        The only document the Complaint specifically incorporates is a letter from
the Mayfields to the “Chief Sheriff” complaining of Deputy Bethards’s and other
deputies’ actions and accusing them of lying in their police reports. The Mayfields
attached the police report to their Opposition to the Harvey County District Court’s
Motion to Dismiss, which the district court granted separately.
                                            7
       We agree with the district court that these allegations state a plausible claim

for violation of the Mayfields’ Fourth Amendment rights, even considering the

Kansas statute relied on by Deputy Bethards. Section 47-646 of the Kansas Statutes

allows “any person at any time to kill any dog which may be found injuring or

attempting to injure any livestock.” Kan. Stat. Ann. § 47-646. According to Deputy

Bethards, the Kansas Supreme Court in McDonald v. Bauman, 433 P.2d 437 (Kan.

1967), interpreted this statute to permit a person not only to kill an offending dog

caught in the act of injuring or attempting to injure livestock, but also to pursue and

kill the dog after it has returned to its owner’s land. But that case cannot be read as

broadly as Deputy Bethards suggests.

       In McDonald, the defendant shot a dog he caught attacking his hogs, chased

the dog to its home, and then shot the dog several more times. Id. at 439. The dog

survived and its owner sued to recover the veterinarian expenses incurred in treating

the gunshot wounds. Id. at 439–40. After the jury returned a verdict in favor of the

defendant, the dog owner appealed. Id. at 440–41. The Kansas Supreme Court

affirmed, holding that section 47-646 allows a person to shoot a trespassing dog

“which he finds on his premises injuring or attempting to injure” livestock “either at

the time the dog is found in the act . . . or within a reasonable time thereafter,” which

includes “the right within such reasonable time, if necessary, to pursue such dog after

it has left his premises, and to shoot . . . such dog off his premises.”5 Id. at 442. In


       5
        Significantly, neither section 47-646 nor McDonald addresses the killing of a
dog on its owner’s property by either a private third party or a police officer acting in
                                             8
reaching that conclusion, the Kansas Supreme Court identified two prerequisites that

make application of the statute a fact-intensive inquiry. First, McDonald places the

burden of proof on a defendant seeking to rely on the statute “to show by a

preponderance of the evidence that he was justified in shooting the dog.” Id. at 443.

Second, where the aggrieved livestock owner pursues the dog onto its owner’s

property and shoots it, the defendant must establish that he entered the dog owner’s

land “with authority, or under such circumstances that authority to enter such other’s

land may be implied.” Id. And the Kansas Supreme Court further explained that

whether a livestock owner in hot pursuit has entered the dog owner’s property with

consent or implied consent is a question for the jury. Id. Thus, McDonald supports

rather than refutes the district court’s denial of Deputy Bethards’s motion to dismiss.6

      In summary, the Complaint alleges facts that if true could support a finding

that Deputy Bethards unconstitutionally seized—indeed destroyed—the Mayfields’


his official capacity in response to an accusation by a livestock owner about an attack
the third party or police officer did not witness.
      6
         Deputy Bethards’s reliance on Clark v. City of Draper, 168 F.3d 1185 (10th
Cir. 1999), is similarly misplaced. In Clark, the owner of two foxes that were seized
and destroyed pursuant to state law to determine whether a child had been exposed to
rabies, sued city officials under § 1983 for alleged violations of due process. Id. at
1187. In affirming summary judgment in favor of the City and its officials, a panel of
this court noted that both the U.S. Supreme Court and the Utah Territorial Supreme
Court had held that “property in domesticated canines is subject to the state’s police
power for the protection of its citizens.” Id. at 1188 (citing Sentell v. New Orleans &
C.R. Co., 166 U.S. 698, 700–04 (1897), and Jenkins v. Ballantyne, 30 P. 760, 760
(Utah 1892)). But Clark is easily distinguished from the Mayfields’ case because the
public officials seized the foxes pursuant to a court order (and thus the Clark Court
specifically held the case did not implicate the Fourth Amendment) and the animals
were destroyed only after an evidentiary hearing. Id. at 1187, 1189 n.8.
                                           9
personal property. And although Deputy Bethards could present evidence that might

succeed at summary judgment or trial, at the motion-to-dismiss stage our review is

limited to the sufficiency of the allegations in the Complaint. Accepting those

allegations as true and viewing them and all reasonable inferences from those facts in

favor of the Mayfields, see Diversey, 738 F.3d at 1199, we can infer that killing

Majka was not a reasonable seizure. The complaint therefore states a plausible Fourth

Amendment claim.

      B. It was clearly established that pet dogs are subject to Fourth
         Amendment protection.

      Deputy Bethards next argues that, even if dogs are subject to Fourth

Amendment protection, the law was not clearly established because there was no

Supreme Court or Tenth Circuit case on point. Again, we disagree.

      A right is clearly established if “it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” Pauly v. White, 814 F.3d

1060, 1074 (10th Cir. 2016) (internal quotation marks omitted). This generally

requires a Supreme Court or Tenth Circuit decision on point or a weight of authority

from other courts. See Thomas, 765 F.3d at 1194. The question is not whether there is

a prior case with precisely the same facts, but “whether the law put officials on fair

notice that the described conduct was unconstitutional.” Pauly, 814 F.3d at 1075

(internal quotation marks omitted). And we have cautioned that defining a right too

narrowly risks making recovery against a public official virtually impossible because

only “those rare cases in which a precedential case existed which was ‘on all fours’


                                           10
factually with the case at bar” would abrogate qualified immunity. Melton v. City of

Okla. City, 879 F.2d 706, 729 n.37 (10th Cir. 1989) (internal quotation marks

omitted), modified in part on other grounds on reh’g, 928 F.2d 920 (10th Cir. 1991)

(en banc).

      Nevertheless, Deputy Bethards contends the general rule prohibiting the

warrantless seizure of personal property lacks the necessary specificity to provide

adequate notice that his conduct violated the Mayfields’ constitutional rights. But

well before Deputy Bethards killed Majka, this court had analyzed seizures of cattle

and horses under the Fourth Amendment. See Campbell v. City of Spencer, 682 F.3d

1278, 1280, 1285 (10th Cir. 2012) (horses); Stanko v. Maher, 419 F.3d 1107, 1112-

15 (10th Cir. 2005) (cattle); DiCesare v. Stuart, 12 F.3d 973, 977–78 (10th Cir. 1993)

(horses).7 And the Kansas Court of Appeals had upheld an order suppressing

evidence in a criminal prosecution for animal cruelty because the search of the

defendant’s property and seizure of her dogs “did not comport with the requirements

of the Fourth Amendment.” State v. Marsh, 823 P.2d 823, 829–30 (Kan. Ct. App.

1991). These decisions clearly established that animals, including dogs, constitute

personal property protected by the Fourth Amendment.




      7
        Although the decision is unpublished, this circuit had also applied Fourth
Amendment analysis to the warrantless seizure of dogs prior to Deputy Bethards’s
conduct here. See Bewley v. City of Duncan, Nos. 97-6274, 97-6321, 1998 WL
314382, at *5 (10th Cir. June 4, 1998) (unpublished) (holding exigent circumstances
existed that made warrantless search for and shooting of dog reasonable under the
Fourth Amendment).
                                          11
      But even assuming more specificity is needed, the clear weight of authority

from other jurisdictions provided Deputy Bethards adequate notice that the conduct

here implicated the Mayfields’ Fourth Amendment rights. See Thomas, 765 F.3d at

1194 (stating that a right is clearly established “if the clearly established weight of

authority from other courts shows that the right must be as the plaintiff maintains”

(internal quotation marks omitted)). Indeed, seven federal circuits had addressed the

issue prior to Detective Bethards’s conduct, each holding that killing a pet dog is a

Fourth Amendment seizure. See Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008)

(“Every circuit that has considered the issue has held that the killing of a companion

dog constitutes a ‘seizure’ within the meaning of the Fourth Amendment.”); see also

Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d. Cir. 2013); Maldonado v.

Fontanes, 568 F.3d 263, 270–71 (1st Cir. 2009); Andrews v. City of W. Branch, 454

F.3d 914, 918 (8th Cir. 2006); San Jose Charter of Hells Angels Motorcycle Club v.

City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005); Altman v. City of High Point,

330 F.3d 194, 203, 205 (4th Cir. 2003); Brown v. Muhlenberg Twp., 269 F.3d 205,

210 (3d Cir. 2001).

      We therefore hold that when Deputy Bethards seized the Mayfields’ personal

property by killing their pet dog Majka in 2014, it was clear his actions would violate

the Fourth Amendment absent a warrant “particularly describing the . . . things to be

seized,” U.S. Const. amend. IV, or circumstances justifying an exception to the

warrant requirement, see G.M. Leasing Corp., 429 U.S. at 358 & n.21 (discussing

exceptions to warrant requirement). For the reasons previously explained, the

                                           12
circumstances alleged in the Complaint do not establish an exception to the warrant

requirement as a matter of law. Accordingly, the Complaint plausibly states a claim

that survives a qualified immunity defense.

                                      IV. Conclusion

      The Mayfields’ Complaint asserts facts sufficient to show a violation of their

clearly established Fourth Amendment rights. We therefore affirm the district court’s

order denying Deputy Bethards’s motion to dismiss.




                                         13
