                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-2120


TINA RAY,

                   Plaintiff – Appellant,

             v.

MICHAEL ROANE, in his individual capacity,

                   Defendant – Appellee.


Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cv-00093-EKD)


Argued: October 30, 2019                                   Decided: January 22, 2020


Before GREGORY, Chief Judge, KEENAN, and RICHARDSON, Circuit Judges.


Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Keenan and Judge Richardson joined.


ARGUED: Dallas S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS, INC.,
Atlanta, Georgia, for Appellant. Carlene Booth Johnson, PERRY LAW FIRM, PC,
Dillwyn, Virginia, for Appellee. ON BRIEF: Mario B. Williams, NEXUS DERECHOS
HUMANOS ATTORNEYS, INC., Atlanta, Georgia, for Appellant.
GREGORY, Chief Judge:

       Appellant Tina Ray appeals the dismissal of her claim brought under 42 U.S.C.

§ 1983, in which she alleged that her Fourth Amendment rights were violated when Officer

Michael Roane shot and killed her dog, Jax. According to the complaint, Roane shot Jax

when it was in Ray’s yard, tethered, and incapable of reaching or harming Roane. Bound

by those facts at this stage of the proceeding, we hold that the complaint plausibly states a

claim for an unconstitutional seizure of Ray’s property for which Roane is not entitled to

qualified immunity. Therefore, we reverse and remand for further proceedings.



                                              I.

       At the outset, we acknowledge that there is evidence in the record on appeal that

appears to contradict some of the allegations in the complaint. However, because Ray’s

claims were dismissed for failure to state a claim, we “limit our review to the complaint

itself.” Braun v. Maynard, 652 F.3d 557, 559 (4th Cir. 2011). Further, as we do in any case

alleging unreasonable use of force under the Fourth Amendment, we focus on the facts and

circumstances confronting the officer “immediately prior to and at the very moment” that

force was used, and disregard information not known to the officer at that time. Greenidge

v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991). With these principles in mind, the relevant

factual allegations in the complaint are straightforward.

       On September 24, 2017, Roane drove to Ray’s property to assist with an arrest

warrant that was being served on Ray for domestic abuse. When Roane arrived on Ray’s

property, four other officers were already present and parked in the driveway. Ray’s dog—

                                              2
a 150-pound German Shepard named Jax—was secured by a zip-lead attached to two trees

that allowed the animal limited movement within a “play area” of the yard. Rather than

park in the driveway like the other officers, Roane parked his truck within the dog’s “play

area,” prompting the other officers on scene to shout and gesture toward Roane, indicating

that he should “[w]ait” and “[l]et [Ray] get her dog.” Roane exited his vehicle and started

walking toward the house.

       As Roane emerged from his vehicle, Jax began barking at and approaching Roane.

Roane responded by backing away from the dog and drawing his firearm, while Ray ran to

the zip-lead and began shouting Jax’s name. “In a short moment,” Jax reached the end of

the zip-lead and “could not get any closer” to Roane. Roane observed that the dog could

not reach him, and further observed that Ray was now holding onto Jax’s fully-extended

lead and continuing to call Jax’s name. Roane therefore stopped backing up. Roane then

took a step forward, positioning himself over Jax, and fired his weapon into the dog’s head.

The dog died from the wound.

       In her complaint, Ray asserted four claims for relief against Roane—unlawful

seizure of Jax in violation of the Fourth Amendment, violation of substantive due process,

conversion, and intentional infliction of emotional distress—seeking various categories of

damages. Ray later indicated she would not pursue her substantive due process claim.

Roane moved to dismiss the entire action against him and answered the complaint. On

September 20, 2018, the district court dismissed Ray’s federal claim for unlawful seizure of

Jax and declined to exercise supplemental jurisdiction over the remaining two state-law



                                             3
claims. In so doing, the district court concluded Roane’s actions had been reasonable under

the totality of the circumstances and he would be entitled to qualified immunity.

       As to whether Ray sufficiently alleged that Roane’s actions were unreasonable, the

district court pointed to several facts in the complaint that led it to conclude the seizure was

reasonable: (1) Jax was a large dog weighing approximately 150 pounds; (2) Jax was

“alarmed” by Roane’s arrival; (3) Jax was “barking while approaching Roane,” and Roane

responded by moving backward, away from him; and (4) the entire incident took only a

“short moment.”     J.A. 362.    The district court also pointed to several allegations it

distinguished, such as the fact that Jax had reached the end of his zip-lead and could not

reach Roane. According to the district court, “an objectively reasonable officer would have

felt threatened in the circumstances immediately preceding the shot and . . . might not have

been sure that Jax no longer posed a threat.” J.A. 362–63. The important factor was instead

Jax’s proximity to Roane.

       The district court also held that Roane was entitled to qualified immunity. For the

same reasons it concluded that Ray failed to allege an unreasonable seizure, the court

concluded that a reasonable officer would not have known it was “clearly unreasonable” to

shoot Jax in these circumstances. At worst, this was a “classic case” of a bad guess in a gray

area or a reasonable but mistaken judgment. J.A. 370. Accordingly, the district court

dismissed the entire action with prejudice. Ray now appeals the district’s court dismissal.




                                               4
                                             II.

       We review a district court’s grant of a motion to dismiss de novo. See King v.

Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citing Simmons v. United Mortg. & Loan

Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011)). In reviewing a motion to dismiss for failure

to state a claim, we must “accept as true all of the factual allegations contained in the

complaint and draw all reasonable inferences in favor of the plaintiff.” Id. at 212. A

complaint need only “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A Rule 12(b)(6) motion to dismiss ‘does

not resolve contests surrounding facts, the merits of a claim, or the applicability of

defenses.’” Id. (quoting Republican Party of N. Carolina v. Martin, 980 F.2d 943, 952

(4th Cir. 1992)).

       We also review a qualified immunity-based grant of a motion to dismiss de novo.

Id. at 385 (citation omitted). To determine whether a complaint should survive a qualified

immunity-based motion to dismiss, we exercise “sound discretion” in following the two-

prong inquiry set forth by the Supreme Court, analyzing (1) whether a constitutional

violation occurred and (2) whether the right violated was clearly established. See Pearson

v. Callahan, 555 U.S. 223, 236 (2009); Saucier v. Katz, 533 U.S. 194, 200 (2001); Melgar

v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). A court may consider either prong of the

qualified immunity analysis first. Sims v. Labowitz, 885 F.3d 254, 260 (4th Cir. 2018).




                                              5
                                             III.

       On appeal, Ray argues the district court erred in analyzing both prongs of the

qualified immunity analysis. First, she asserts the district court erred dismissing the action

and concluding the allegations in the complaint were insufficient to allege Roane

unreasonably seized Jax in violation of the Fourth Amendment. Ray then contends,

assuming the seizure was unconstitutional, the district court also erroneously concluded

Roane was entitled to qualified immunity. We agree with Ray.

                                             A.

       As an initial matter, it is well-settled that privately owned dogs are “effects” under

the Fourth Amendment, and that the shooting and killing of such a dog constitutes a

“seizure.” Altman v. City of High Point, N.C., 330 F.3d 194, 203–05 (4th Cir. 2003). Thus,

we will affirm the district court’s conclusion that the shooting of Ray’s dog by Roane was

constitutional only if we conclude it was reasonable under the circumstances alleged in the

complaint.

       “To assess the reasonableness of [a government seizure under the Fourth

Amendment], ‘[w]e must balance the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the governmental interests alleged

to justify the intrusion.’” United States v. Jacobsen, 466 U.S. 109, 125 (citation omitted).

As we held in Altman, private interests in dogs—and family pets especially—are highly

significant since dogs “have aptly been labeled ‘Man’s Best Friend,’ and certainly the bond

between a dog owner and his pet can be strong and enduring.” 330 F.3d at 205 (“Many

consider dogs to be their most prized personal possessions, and still others think of dogs

                                              6
solely in terms of an emotional relationship, rather than a property relationship.”).

Likewise, the government undoubtedly has a strong public interest in protecting citizens

and officers from dogs that may be dangerous or otherwise a source of public nuisance. Id.

at 205–06. Thus, “[t]he 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.” Altman, 330 F.3d at 205 (quoting Graham v. Connor, 490 U.S. 386,

396–97 (1989)).

       In weighing these competing interests, we focus on the circumstances confronting

Roane at the moment he fired his weapon. Greenidge, 927 F.2d at 792; see also Altman,

330 F.3d at 205–06. Although we view the facts in the light most favorable to Ray, we

disregard allegations of subjective intent in the complaint and consider only the

information known to Roane at the time of the shooting. Altman, 330 F.3d at 205–06;

Greenidge, 927 F.2d at 792. Our task, as we explained in Altman, is to place ourselves in

the shoes of Roane and ask whether his actions were objectively unreasonable. Altman,

330 F.3d at 205. In other words, we assess whether Roane’s asserted justification of officer

safety justifies his decision to shoot Jax. Id.

       Accepting these principles, Roane argues that his actions were objectively

reasonable because he was confronted with a 150-pound German Shepard that was

“alarmed” by his arrival, barking, and that in a “short moment” had advanced to within a

step of him. Under these circumstances, Roane asserts that he reasonably felt threatened

by Jax. Roane also cites to numerous cases involving dog shootings in which the officer’s

                                                  7
conduct was deemed reasonable, despite the fact that the dogs at issue were smaller than

Jax or farther from the officer at the time of the shooting. As a result, Roane reasons the

district court properly determined Ray’s complaint failed to allege a Fourth Amendment

violation. We disagree.

       The problem with Roane’s argument, and thus with the district court’s decision

adopting it, is that it requires us to ignore certain factual allegations in Ray’s complaint and

to draw reasonable inferences against Ray on a motion to dismiss. DePaola v. Clarke, 884

F.3d 481, 484 (4th Cir. 2018) (“In reviewing the defendants’ motions to dismiss, we accept

as true the factual allegations set forth in [the] complaint and draw reasonable inferences

therefrom in [her] favor.”). According to the complaint, Roane stopped backing away from

Jax when the dog reached the end of the zip-lead, and then took a step toward the dog

before firing his weapon. See J.A. 15. These factual allegations yield the reasonable

inference that Roane observed that the dog could no longer reach him, and, thus, could not

have held a reasonable belief that the dog posed an imminent threat. Taking these factual

allegations as true and drawing these reasonable inferences in Ray’s favor, Roane’s seizure

of Jax was unreasonable because Jax no longer posed any threat to Roane.

       Tellingly, in reaching the opposite conclusion, the district court relied on cases that

were all decided on summary judgment involving one or more dogs that, like here, were

barking or advancing toward an officer but, unlike here, were unleashed or unrestrained

and posed an immediate danger to the officer. See, e.g., Stephenson v. McClelland; 632 F.

App’x 177, 179 (5th Cir. 2015) (per curiam); Schutt v. Lewis, No. 6:12-CV-1697, 2014

WL 3908187, at *1 (M.D. Fla. Aug. 11, 2014); McCarthy v. Kootenai Cty., No. 08-CV-294,

                                               8
2009 WL 3823106, at *1–2 (D. Idaho Nov. 12, 2009); Dziekan v. Gaynor, 376 F. Supp. 2d

267, 269 (D. Conn. 2005); Warboys v. Proulx, 303 F. Supp. 2d 111, 113 (D. Conn. 2004).

The district court’s extensive reliance on cases decided on summary judgment underscores

our conclusion that the district court did not fully credit the allegations in Ray’s complaint

and the inferences arising therefrom.

       Accordingly, we conclude the district court erred in holding that the complaint failed

to allege a violation of Ray’s Fourth Amendment rights. We next turn to whether Roane

is entitled to qualified immunity at this stage of the litigation.

                                               B.

       Qualified immunity “shield[s] [officials] from civil damages liability as long as their

actions could reasonably have been thought consistent with the rights they are alleged to

have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987); see also Saucier, 533

U.S. at 201–02. Thus, although we conclude that Ray has plausibly alleged a violation of

her constitutional rights, Roane is entitled to qualified immunity unless we conclude that

that a reasonable officer in Roane’s position would have understood that his conduct was

unlawful at the time of the shooting. Braun, 652 F.3d at 561.

       The question of whether a right is clearly established is a question of law for the

court to decide. Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The question of

whether a reasonable officer would have known that the conduct at issue violated that right,

however, cannot be decided prior to trial if disputes of the facts exist. Smith v. Ray, 781

F.3d 95, 100 (4th Cir. 2015). Thus, “while the purely legal question of whether the

constitutional right at issue was clearly established is always capable of decision at the

                                               9
summary judgment stage [or on a motion to dismiss], a genuine question of material fact

regarding [w]hether the conduct allegedly violative of the right actually occurred . . . must

be reserved for trial.” Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (alteration

and omission in original and internal quotation marks omitted) (quoting Pritchett, 973 F.2d

at 313).

       In addition, to determine whether a right was clearly established, we first look to

cases from the Supreme Court, this Court, or the highest court of the state in which the

action arose. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004). In the

absence of “directly on-point, binding authority,” courts may also consider whether “the

right was clearly established based on general constitutional principles or a consensus of

persuasive authority.” Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 543 (4th Cir. 2017);

Owens, 372 F.3d at 279 (“[T]he absence of controlling authority holding identical conduct

unlawful does not guarantee qualified immunity.”). The Supreme Court has ruled against

defining a right at too high a level of generality and held that doing so fails to provide fair

warning to officers that their conduct is unlawful outside an obvious case. White v. Pauly,

137 S. Ct. 548, 552 (2017).

       On appeal, Ray argues that since at least 2003, we have “placed Roane on fair

notice/warning that [she] had a clearly established right to enjoy her dog Jax, free from

Roane using unreasonable deadly force against Jax,” particularly where her dog Jax was

secured, controlled, and could no longer reach Roane.           According to Ray, Roane’s

actions—killing a pet while that pet poses no immediate threat of harm to a law

enforcement officer—are unreasonable and contravene well-recognized precedents.

                                              10
       In response, Roane contends neither our precedents nor the body of case law

involving police-dog shooting address the “particularly unusual circumstances” Roane had

faced at Ray’s home. According to Roane, there is no authority involving “a 150-pound

dog that had advanced toward [an officer] to within a step, ‘alarmed’ and barking”; a “25-

foot zip-lead contraption”; or other relevant facts similar to the ones here. As a result,

qualified immunity protects “mistakes in judgment” and gives officers like Roane

“breathing room to make reasonable but mistaken judgments.” Moreover, this Court

should not engage in “Monday morning quarterback[ing]” to find an officer, like Roane,

“could have or should have done something different.”

       We disagree with Roane’s contentions with respect to qualified immunity, for the

same reasons already set forth in our discussion of whether the complaint states a claim for

a violation of the Fourth Amendment. Viewing all facts in the complaint and inferences

arising therefrom in Ray’s favor, it is clear that Roane shot Jax at a time when he could not

have held a reasonable belief that the dog posed a threat to himself or others. Accepting

these facts, we hold that a reasonable police officer would have understood that killing Jax

under such circumstances would constitute an unreasonable seizure of Ray’s property

under the Fourth Amendment.

       We acknowledge that there is no “directly on-point, binding authority” in this circuit

that establishes the principle we adopt today. Booker, 855 F.3d at 543. Until now, we have

never had the occasion to hold that it is unreasonable for a police officer to shoot a privately

owned animal when it does not pose an immediate threat to the officer or others. Still, even

without “directly on-point, binding authority,” qualified immunity is inappropriate if “the

                                              11
right was clearly established based on general constitutional principles or a consensus of

persuasive authority.” Booker, 855 F.3d at 543; Owens, 372 F.3d at 279–280. This is such

a case.

          First, we observe that the unlawfulness of Roane’s alleged actions was established

by the general principles we espoused in Altman. In Altman, we held that privately owned

dogs are protected under the Fourth Amendment, and further established that the

reasonableness of the seizure of a dog depends on whether the governmental interest in

safety outweighs the private interest in a particular case. 330 F.3d at 203–05. Based on

these broader principles alone, it would have been “manifestly apparent” to a reasonable

officer in Roane’s position that shooting a privately owned dog, in the absence of any safety

rationale at all, is unreasonable. Owens, 372 F.3d at 279.

          The consensus of our sister circuits leaves no doubt that this principle was clearly

established by September 2017. See id. at 279–280. As the D.C. Circuit observed in 2016,

prior to Roane’s alleged conduct in this case, “[e]very circuit that has considered the issue

. . . ha[s] invariably concluded 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.’”

Robinson v. Pezzat, 818 F.3d 1, 7 (D.C. Cir. 2016) (citation omitted); see also Brown v.

Battle Creek Police Dep’t, 844 F.3d 556, 568 (6th Cir. 2016) (“[A] police officer’s use of

deadly force against a dog . . . is reasonable under the Fourth Amendment when . . . the

dog poses an imminent threat to the officer’s safety.”); Carroll v. Cty. of Monroe, 712 F.3d

649, 652 (2d Cir. 2013) (noting that the reasonableness of officers’ conduct is contingent

on there being “a genuine threat to officer safety”); Viilo v. Eyre, 547 F.3d 707, 710 (7th

                                               12
Cir. 2008) (“[C]ommon sense . . . counsel[s] that the use of deadly force against a

household pet is reasonable only if the pet poses an immediate danger[.]”); San Jose

Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 977–78

(9th Cir. 2005) (holding that “any reasonable officer [would know] that the Fourth

Amendment forbids the killing of a person’s dog, or the destruction of a person’s property,

when that destruction is unnecessary”); Brown v. Muhlenberg Twp., 269 F.3d 205, 210–11

(3d Cir. 2001) (“[T]he state may [not], consistent with the Fourth Amendment, destroy a

pet when it poses no immediate danger[.]”).

       Based on this preexisting consensus of persuasive case law, together with the

general principles we announced in Altman, we hold that a reasonable officer in Roane’s

position would have known that his alleged conduct was unlawful at the time of the

shooting in this case. Anderson, 483 U.S. at 640; Booker, 855 F.3d at 543. Thus, we hold

that the district court erred in concluding Roane is entitled to qualified immunity at this

stage of the litigation.

       Notably, Roane does not contest the legal principle we adopt today, namely, that it

is unreasonable for an officer to shoot a privately owned dog when the dog poses no

objective threat to the officer or others. Instead, Roane’s arguments exclusively focus on

the underlying facts, and ultimately amount to the factual assertion that Roane reasonably

perceived Jax as a threat at the time of the shooting. But this is an appeal from a motion to

dismiss, which tests the sufficiency of the complaint, not its veracity. For the reasons

discussed above, we cannot accept Roane’s version of the facts at this stage of the



                                             13
proceedings, in which we must grant all reasonable inferences in favor of Ray. DePaola,

884 F.3d at 484.



                                          IV.

      For the foregoing reasons, we reverse the district court’s dismissal of Ray’s

complaint and remand for further proceedings consistent with this opinion.



                                                         REVERSED AND REMANDED




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