     Case: 16-20290      Document: 00513993003         Page: 1    Date Filed: 05/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-20290                                FILED
                                                                              May 15, 2017

WESLEY JONES; AISLING JONES,                                                 Lyle W. Cayce
                                                                                  Clerk
              Plaintiffs - Appellees

v.

OFFICER ADRIAN LOPEZ, Officially & Individually; SAMMY DELACRUZ,

              Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No: 4:14-CV-2728


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Two Houston, Texas, police officers appeal a denial of summary
judgment on the basis of qualified immunity for their fatal shooting of the
plaintiffs’ eight-year-old pet dog.       We find genuine issues of material fact
regarding the events at the plaintiffs’ residence, making the applicability of
qualified immunity unresolvable at this juncture. We also agree with the
district court that the killing of a pet dog is a constitutional seizure.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-20290
      Our appellate jurisdiction is generally limited to a review of final
decisions of the district courts. See 28 U.S.C. § 1291. No final decision has
been entered here. Even so, jurisdiction could exist in this case because the
defendants’ motion for summary judgment based on qualified immunity was
denied; such a ruling is a collateral order that may be subject to immediate
review. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). The
denial of qualified immunity, though, may be reviewed on an interlocutory
appeal only “to the extent that the district court’s order turns on an issue of
law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). That means we
have jurisdiction concerning “the materiality of any factual disputes, but not
their genuineness.”    Brothers v. Zoss, 837 F.3d 513, 517 (5th Cir. 2016)
(quotation marks omitted).
      We also have jurisdiction to consider a legal question on which the denial
of qualified immunity turns, specifically whether the claim actually states a
constitutional violation. See Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir.
1999). We start with that question.


I.    Killing of a Pet Dog as a Fourth Amendment Seizure
      The defendants assert that the killing of a pet dog by a law-enforcement
officer is not a “seizure” within the meaning of the Fourth Amendment. The
district court held there was a Fourth Amendment claim for the killing of the
pet, which is a legal issue that in turn made a decision on qualified immunity
relevant. In two recent decisions we held that an officer’s shooting of a pet dog
is in some circumstances a seizure under the Fourth Amendment. Grant v.
City of Houston, 625 F. App’x 670, 675 (5th Cir. 2015); Stephenson v.
McClelland, 632 F. App’x 177, 184 (5th Cir. 2015).
      In Grant, law enforcement officers were conducting a search of a
suspect’s garage pursuant to a warrant when they were confronted by a three-
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                                  No. 16-20290
legged pit bull that appeared aggressive to the officers. Grant, 625 F. App’x at
672. During the search, the dog charged towards one of the officers who was
forced to kick the dog to prevent it from biting his legs. Id. Witnessing the
dog’s continued aggressive behavior, the officer shot and killed the dog to
prevent it from attacking him. Id. On appeal, we addressed the plaintiff’s
claim that the officers used excessive force to seize the dog in violation of the
Fourth Amendment. Id. at 675. Relying on a case from the Ninth Circuit, we
concluded that “[i]t is beyond dispute that [the officer] ‘seized’ [the dog] within
the meaning of the Fourth Amendment.” Id. Based on Grant, we reached the
same conclusion in Stephenson. See 632 F. App’x at 184. We agree with our
prior though non-precedential rulings.
       Our conclusion is consistent with that of every other circuit court to have
addressed this issue: The killing of a pet dog can be a seizure. See, e.g., Brown
v. Battle Creek Police Dep’t, 844 F.3d 556, 566 (6th Cir. 2016) (collecting cases).
When presented with the issue as a matter of first impression, the Fourth
Circuit undertook an extensive analysis of the relevant legal framework and
held “on the strength of the Constitution’s text, of history, and of precedent”
that “privately owned dogs were ‘effects’ subject to the protections of the Fourth
Amendment.” Altman v. City of High Point, 330 F.3d 194, 203 (4th Cir. 2003).
We see neither a reason to stray from this body of law nor a reason to reiterate
the Fourth Circuit’s thorough analysis.


II.    Materiality of Factual Dispute About the Shooting
       On this issue, we start with a brief look at the evidence. On October 19,
2012, the defendants, Officers Sammy Delacruz and Adrian Lopez of the
Houston, Texas, Police Department, responded to a 911 call alleging animal
abuse.    After speaking to the caller, the officers walked next door to the
plaintiffs’ home. Officer Delacruz approached the plaintiffs’ front door, finding
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                                       No. 16-20290
it wide open. According to Delacruz, he twice knocked on the front door and
announced, “Houston Police.”
       Inside the house, the plaintiffs, Wesley and Aisling Jones, were in their
kitchen with their eight-year-old pet Boxer named Boss. 1 At some point, Mr.
Jones thought he heard a knock at the door, which was already open, and went
to answer it. Boss, alerted by the noise, ran to the open door. Mr. Jones lost
sight of Boss for approximately one to two seconds when he heard gunshots as
he rounded the corner of the kitchen. At the time the first shot was fired and
struck Boss, the dog was still inside the Joneses’ home. Shots were also fired
at the dog once it was outside.
       The Joneses contend that, as Mr. Jones stood in the doorway, he
witnessed Officer Delacruz fire several more shots at Boss as the dog was
running away to the corner of the house. Upon hearing the first shot, Mrs.
Jones made her way to the front of the house. She could see Boss running
towards the side of the house through the front windows of the living room.
Boss was struck by a second bullet, fired this time by Officer Lopez, near the
corner of the house. The dog never approached within ten to fifteen feet of the
officers and did not turn back in the direction of the officers once he retreated
to the side of the home.
       The defendants paint a decidedly different picture. Officer Delacruz
states that, after the second time he knocked, he began to walk away from the
Joneses’ front door. He claims when he was about three feet from the door, he
noticed a large dog — appearing to him as a pit bull terrier mix — charging at
him. Officer Delacruz states he made it a few more feet from the door when
his path of travel was impeded by a large flower pot. He claims the dog was



       1 Boss, a fifty-five pound brindle Boxer, had no history of aggressive behavior and was
recovering from a recent surgery.
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                                 No. 16-20290
barking and growling loudly and attempting to bite his left leg. Fearing for his
safety, Officer Delacruz fired two shots at Boss. Both officers testify that the
dog briefly retreated, but then turned again to approach Officer Delacruz.
      Officer Lopez claims that he knew the dog was going to continue
attacking Officer Delacruz. With no owner in sight to exert control over Boss,
Officer Lopez discharged his service weapon once, striking the dog while he
was near the corner of the house. Boss ultimately died from internal bleeding
as a result of the gunshot wounds.
      The district judge orally explained his denial of summary judgment as to
qualified immunity at the hearing on the motion:
      THE COURT: No. I think I understand the facts. There were three
      shots fired. The plaintiffs didn’t see the first one but saw the next
      two. The dog was wounded after the first shot and was killed by
      subsequent shots. I think I understand the facts generally.

            It just seems to me we have a fact issue as to what danger
      the dog posed to the police officers.

      There are obviously factual disputes here. The plaintiffs state they were
near the dog, only two seconds behind in the house. They never saw him
threaten to attack the officers, heard him growl, or otherwise pose the threat
identified by the officers. Whether the disputes are material is the limit of our
review. See Zoss, 837 F.3d at 517. The defendants argue that this alleged
factual dispute falls into the category of a false dispute, when the plaintiffs’
version is “blatantly contradicted” and “utterly discredited.”      See Scott v.
Harris, 550 U.S. 372, 380 (2007). In Scott, though, the Supreme Court was
discussing a contemporaneous video that discredited opposing testimony. Id.
at 378–81. There is no video here. Instead, we have a conflict of self-serving
statements from each side.
      “[T]he district court’s ruling cannot be appealed to the extent that the

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                                  No. 16-20290
official seeks to challenge the district court’s determinations regarding the
sufficiency of the summary-judgment record.” Johnson v. Johnson, 385 F.3d
503, 524 (5th Cir. 2004) (emphasis omitted). We are to consider whether the
factual dispute is material. It is, as resolving it will resolve whether there was
any basis for the officers’ seizing the dog by shooting him.
      Here, the district court correctly construed all facts in the light most
favorable to the Joneses as the non-moving party and found a genuine dispute
of material fact suggesting the officers’ conduct violated their constitutional
rights and that the officers’ actions were objectively unreasonable in light of
clearly established law.    A district court’s determination, in the face of
conflicting evidence, “that there was a genuine issue of material fact
concerning the lawfulness of the force employed by [the officers]” is the sort of
factual determination we lack jurisdiction to review on interlocutory appeal.
See Baulch v. Johns, 70 F.3d 813, 815 (5th Cir. 1995).
      Without a question of law to resolve, we lack jurisdiction over the denial
of qualified immunity. See id. We do have jurisdiction to consider the purely
legal issue of whether the Joneses have raised a Fourth Amendment claim.
Palmer, 193 F.3d at 351. They have.
                                      ***
      We agree with the legal ruling that the killing of the plaintiffs’ pet dog
raises a Fourth Amendment claim. We DISMISS the appeal of the denial of
qualified immunity and REMAND for further proceedings consistent with this
opinion.




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