                            In the

United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 08-1627

V IRGINIA V IILO,
                                                Plaintiff-Appellee,
                                v.

K EVIN E YRE and M ONTELL D. C ARTER,

                                          Defendants-Appellants.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
       No. 2:05-cv-00216-CNC—Charles N. Clevert, Jr., Judge.



   A RGUED S EPTEMBER 23, 2008—D ECIDED O CTOBER 27, 2008




  Before B AUER, C UDAHY and W ILLIAMS, Circuit Judges.
  C UDAHY, Circuit Judge. Virginia Viilo sued the City
of Milwaukee and two of its police officers under the
Fourth Amendment via 42 U.S.C. § 1983 after Officer
Montell Carter shot and killed her dog Bubba. The
district court denied the defendants’ motion for sum-
mary judgment on the basis of qualified immunity and
the defendants took an interlocutory appeal challenging
this denial. The defendants’ interjection of factual dis-
2                                               No. 08-1627

putes deprives us of jurisdiction. Accordingly, we
dismiss the appeal.


                             I.
  On the evening of August 15, 2004, Virginia Viilo was
relaxing in her backyard with her elderly mother, her
boyfriend, his parents and her dog Bubba, a seven-year-
old Labrador Retriever/Springer Spaniel mix. Their rest
was disturbed when a team of six officers from the Mil-
waukee Police Department, including Officer Montell
Carter, arrived at Viilo’s house. The officers had received
an anonymous tip that a wanted felon had entered Viilo’s
home accompanied by a pit bull. Carter prepared for
this eventuality by arming himself with a shotgun
because, as he later said, “the best weapon for a dog is
a shotgun through my experience.”
  Bubba was the first to hear the officers as they fanned out
and approached Viilo’s front door. He ran from Viilo’s
backyard to a gangway along the side of the house
leading to the front yard, leapt a three-foot high gate and
ran toward the officers, who were by now close to Viilo’s
front porch. Although the officers testified that Bubba
was growling and exposing his teeth and gums, a
neighbor who witnessed the scene later testified that
the dog was coming out to greet them. Apparently
fearing for the officers’ safety, Carter fired two shots at
Bubba, hitting him at least once and causing comminuted
and compound bone fractures to his front leg. Bubba, in
turn, retreated to the bushes near the front window of
Viilo’s house where he hid for the next ten minutes.
No. 08-1627                                               3

  Carter kept watch over Bubba, while the other officers
proceeded to the backyard to make contact with Viilo
and her guests. The officers refused to allow Viilo to
retrieve Bubba or to call a veterinarian. Some ten min-
utes later, Sergeant Kevin Eyre arrived on the scene.
During this time, a crowd of Viilo’s neighbors responded
to the commotion by gathering around the house; some
of them were shouting at the officers, telling them that
Bubba wasn’t a bad dog. Apparently undeterred, Eyre
approached the bush where Bubba was hiding, which
prompted Bubba to emerge from the bush and head
toward the gangway leading to the backyard. Although
the officers stated that Bubba ran out from under the
bushes with his teeth and gums exposed, multiple wit-
nesses testified that Bubba was limping and whimpering
as he emerged from the bushes and that he was just
trying to get back to Viilo.
 Viilo’s boyfriend later testified as to what happened next:
   I walked to the gate, I opened the gate, and the gate
   makes a metal sound. And I was calling the dog, and
   as I opened up the gate to go out the front, I could see
   the dog move from in front of the house—from what
   I seen, moving from the front of the house to the
   side. He just kind of like slowly moved over. And
   when he saw me, he sat down, and he looked me
   right in the eye, and he just—in the eyes, and he
   was just looking at me. And all of a sudden, an officer
   came out from—it looked like from the front . . . And
   he lowered his shotgun, and I just screamed. I went
   “No.” I says—you know, I just—I remember just
   hollering “No, no.”
4                                                   No. 08-1627

Eyre raised his handgun to shoot Bubba. Although he later
professed to fear for his own safety, he nevertheless
reconsidered his decision to use his handgun and ordered
Carter, who had a shotgun, to shoot Bubba instead. The
crowd, meanwhile, had grown larger and people were
yelling at the officers not to shoot. Ignoring the crowd’s
pleas, Carter shot Bubba a third and then a fourth time.
Although Eyre later testified that he ordered the
fourth shot to end Bubba’s suffering, he made no
mention of this to the police lieutenant who wrote
the official police report.


                               II.
  Although this is not, to say the least, a record that
paints a sympathetic picture of the defendants’ actions
on the night Bubba was killed, the defendants nonethe-
less argue that they are entitled to qualified immunity as
a matter of law.
   Qualified immunity protects government officials from
liability for civil damages if their actions did not violate
“clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). Unless and until the
Supreme Court overturns Saucier v. Katz, 533 U.S. 194
(2001),1 the defendants’ assertion of qualified immunity



1
  In Pearson v. Callahan, No. 07-751, the Supreme Court directed
the parties to brief and argue “[w]hether the Court’s decision
in Saucier v. Katz, 533 U.S. 194 (2001), should be overruled.”
                                                   (continued...)
No. 08-1627                                                    5

is subject to the familiar, two-step analysis: first, we ask
“whether a constitutional right would have been violated”
on Viilo’s version of the facts; if so, we then ask “whether
the right was clearly established.” Id. at 200.
  There is no question that Viilo’s account of events
establishes a violation of her constitutional rights. 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 Altman v.
City of High Point, N.C., 330 F.3d 194, 204-05 (4th Cir.
2003); Brown v. Muhlenbergs Twp., 269 F.3d 205, 210-11 (3d
Cir. 2001); Lesher v. Reed, 12 F.3d 148, 150 (8th Cir. 1994);
Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on
other grounds by Robison v. Solano County, 278 F.3d 1007,
1013 (9th Cir. 2002); see also Siebert v. Severino, 256 F.3d 648,
656 (7th Cir. 2001) (holding that the seizure of a horse is
a Fourth Amendment event). The defendants’ actions,
therefore, were constitutional only if reasonable. See
United States v. Place, 462 U.S. 696, 703 (1983).
  Both common sense, and indeed Wisconsin law, see
Wis. Stat. § 174.01(1), counsel that the use of deadly force
against a household pet is reasonable only if the pet poses
an immediate danger and the use of force is unavoidable.
See, e.g., Brown, 269 F.3d at 210-11. The defendants make
two attempts to resist this conclusion: first, they argue
that the killing was justified based on the risk that


1
  (...continued)
See http://www.scotuswiki.com/index.php?title=Pearson_v._
Callahan (visited Oct. 1, 2008).
6                                                No. 08-1627

Bubba might interfere with their investigation; second,
they argue that it was not clearly established in 2004 that
the seizure of a dog was a Fourth Amendment event.
  This first argument is obviously and vigorously con-
tested. Despite the police testimony, at least seven wit-
nesses testified that Bubba wasn’t interfering with the
officers when he was shot for the third and forth time.
Rather, according to the witnesses, he was attempting
to limp back to his owner. It should go without saying
that this testimony, if it is credited by the jury, does not
support the conclusion that the decision to shoot Bubba
a third and fourth time was reasonable.
  As to the defendants’ second argument, it is true that
to be “clearly established,” a right must be specific to the
relevant factual context of a cited case and not gen-
eralized with respect to the Amendment that is the basis
of the claim. Brousseau v. Haugen, 543 U.S. 194, 198-99
(2004). Nevertheless, the defendants had reasonable
notice that killing Bubba would constitute the “seizure” of
an “effect” within the meaning of the Fourth Amendment.
In 2001, the Third Circuit said that “the state’s interest
in protecting life and property may be implicated when
there is reason to believe the pet poses an imminent
danger. . . . This does not mean, however, that the state may,
consistent with the Fourth Amendment, destroy a pet when it
poses no immediate danger and the owner is looking on.” Brown,
269 F.3d 205, 210-11 (emphasis added). Along the same
lines, in a case decided after the events at issue here, the
Ninth Circuit held that it was clearly established in 1998
that an officer cannot kill a person’s pet unnecessarily. See
No. 08-1627                                               7

San Jose Charter of Hells Angels Motorcycle Club v. City of
San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005).
  While Brown and Hells Angels clearly establish that it is
unreasonable for officers to kill a person’s pet unnecessar-
ily, these decisions are not essential to reaching this
conclusion. “[T]he very action in question [need not
have] previously been held unlawful” for a public official
to have reasonable notice of the illegality of some action.
Anderson v. Creighton, 483 U.S. 635, 640 (1987). In 2001, we
held that domestic animals are “effects” within the mean-
ing of the Fourth Amendment. See Siebert, 256 F.3d at 656.
The Siebert decision is enough to give police officers
reasonable notice that unnecessarily killing a person’s
pet offends the Fourth Amendment.


                            III.
  In fact, were we able to reach the merits of this appeal,
there would be a strong case for affirming the district
court. However, the existence of disputed issues of fact
deprives us of jurisdiction to address the defendants’
qualified immunity defense.
  Because 28 U.S.C. § 1291 gives appellate courts juris-
diction to hear appeals only from “final decisions,” inter-
locutory appeals are the exception, not the norm. In
Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme
Court clarified the scope of this exception, holding
that orders denying summary judgment are immedi-
ately appealable under the collateral order doctrine
where (1) the defendant was a public official asserting a
8                                                No. 08-1627

defense of qualified immunity, and (2) the issue appealed
concerned not which facts the parties might be able to
prove, but rather whether or not those facts showed a
violation of clearly established law. Id. at 528.
   The basis for the Mitchell decision was the Court’s
conclusion that pretrial orders denying qualified
immunity were “effectively unreviewable,” since review
after trial would come too late to vindicate the right
of public officials not to stand trial in certain circum-
stances. Id. at 525-27. At the same time, the Court made
it clear that the right of public officials not to stand trial
is far from absolute, and that orders denying sum-
mary judgment on the basis of qualified immunity would
be immediately appealable only when
    [an] appellate court reviewing the denial of the defen-
    dant’s claim of immunity need not consider the cor-
    rectness of the plaintiff’s version of the facts, nor
    even determine whether the plaintiff’s allegations
    actually state a claim. All it need determine is a ques-
    tion of law: whether the legal norms allegedly
    violated by the defendant were clearly established at
    the time of the challenged actions.
Id. at 528. The Supreme Court unanimously reaffirmed
this limit to the immediate appealability of orders
denying summary judgment on the basis of qualified
immunity in Johnson v. Jones, 515 U.S. 304 (1995), holding
that “a defendant, entitled to invoke a qualified immunity
defense, may not appeal a district court’s summary
judgment order insofar as that order determines whether
No. 08-1627                                                  9

or not the pretrial record sets forth a ‘genuine’ issue of
fact for trial.” Id. at 319-20.
  Of course, a district court’s mere assertion that
disputed factual issues exist does not automatically
preclude an immediate appeal. See Behrens v. Pelletier, 516
U.S. 299, 312-13 (1996). To the contrary, rulings remain
appealable where the defendant appeals the denial of
qualified immunity on the basis of stipulated facts, on
the facts as alleged by the plaintiffs or on the facts the
district court deems sufficiently supported to create jury
issues. See Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)
(Newman, J.). However, as Judge Newman went on to
emphasize, “[w]hat we may not do, after Johnson and
Behrens, is entertain an interlocutory appeal in which a
defendant contends that the district court committed an
error of law in ruling that the plaintiff’s evidence was
sufficient to create a jury issue on the facts relevant to
the defendant’s immunity defense.” Id. at 91. Guided by
these principles, we have not hesitated to dismiss inter-
locutory appeals where the defendant interposes factual
issues in the appeal. See, e.g., Dufour-Dowell v. Cogger, 152
F.3d 678, 680 (7th Cir. 1998); Gorman v. Robinson, 977
F.2d 350, 355 (7th Cir. 1992).
  The present case easily fails the standard for
appealability in the aftermath of Johnson and Behrens. The
district court held that “[a] reasonable jury could find
that at Eyre’s order Carter shot Bubba as he was crying,
sitting down, moving slowly, or headed to the backyard.”
Viilo v. City of Milwaukee, 552 F. Supp. 2d 826, 840 (E.D. Wis.
2008). The defendants have manifestly not based their
10                                              No. 08-1627

appeal on these facts. Indeed, even on appeal, the parties’
views of the facts could not be more different. Viilo
introduced evidence from two experts who concluded
that as a result of Bubba’s injuries after the first two
shots, he would not have posed a threat. This conclusion
was corroborated by the testimony of Viilo’s boyfriend
and at least six neighbors, each of whom stated that
Bubba was limping, crying and trying to get back to the
gangway leading to the backyard when he was shot for
the third and fourth times.
  The defendants reject this testimony. According to
them, Bubba “came out of the bushes, with its gums and
teeth exposed, growling and barking.” They insist that
“[t]he third shot . . . was intended to protect Sergeant
Eyre, Officer Carter and the other officers” because “[t]here
is no evidence that Bubba became less dangerous after
the first two shots.” Further, they gloss over factual issues
regarding Eyre’s motivation for ordering the fourth shot.
In denying rather than embracing the facts the district
court held to be sufficiently well-supported to create
jury issues, the defendants have pleaded themselves out
of court. The appeal is therefore
                                                 D ISMISSED.




                           10-27-08
