Colorado is the first, and the only state, to enact a state analog to Section 1983, allowing a person to sue in state court when their civil rights, as set forth in the Colorado Constitution, have been violated by state actors and specifically disclaiming that “qualified immunity is not a defense to liability.” [i] However, Americans everywhere care about animals and find the ongoing issue of qualified immunity in federal cases to be a significant impediment to justice for our furry friends and their guardians.
But what is Qualified Immunity?
Qualified immunity is a doctrine derived from the judiciary that shields government officials from liability for constitutional violations so long as officials did not violate “clearly established” law. Decided in Harlow v. Fitzgerald and modified to increasingly deny citizens their rights, qualified immunity has grown into a significant obstacle for the enforcement of civil rights. Once a doctrine that claimed to shield public servants from all claims other than those that a “reasonable person would have known” to be a violation, it has been warped into all but plain immunity. Courts, once required to decide if an act was a violation of a Plaintiff’s constitutional rights so as to mark it as an established norm, now may avoid the issue altogether.
How do you create a clearly established norm if courts refuse to decide on the issue before tossing the case?
Short answer: you don’t.
Worse than that, the reasonable standard has been distorted to its inverse: to overcome qualified immunity you don’t have to show the right would have been obvious to a reasonable officer, but to the least informed, least reasonable, willfully ignorant officer. The doctrine is so backward that an officer with a routine history of unlawful behavior, that received complaints about excessive force denying an individual their rights, who was ordered to receive training on that exact issue, could be sued and protected under qualified immunity. Worse, after being sued he could engage in the exact same behavior again, to the exact same person, and still be protected if a court refused to engage in the “knotty constitutional inquiry” of deciding if someone’s rights were violated.[ii]
So how has this affected animal rights?
Surprisingly, animals are affected in a tangential way: through their owners.
This is one of the few examples where the property status of animals actually benefits them. Qualified immunity applies when there is a precedent that the violation of rights was clearly established law. The interpretation of the 5th amendments Takings clause, however, is clearly established law that states, “private property [shall not] be taken for public use, without just compensation.” Animals are considered the property of people, and “every circuit [court] that has considered the issue has held that the killing of a companion dog constitutes a “seizure” within the meaning of the Fourth Amendment.[iii]
Therefore, it doesn’t really matter what type of animal you have or how state actors seized it from you, the action is considered a violation of your right against unlawful seizures. The arguments then already come down to issues of self-defense or reasonable uses of force, which are frequently dismissed as rubbish by courts when cameras or witnesses are available.[iv]
Animals are affected through the deprivation of the rights of their owners. When animals are targeted directly, officers must have a reasonable fear for their own safety; but when they are collateral damage, their property status hurts them. Courts have ruled that damage to property in course of police activity is not a taking, and rather a tort, and governments are immune from suits unless the activity conducted is unreasonable; therefore, dead animals as collateral damage is something that does not burden state actors.
When cops drive through your front door and blow up your house because a criminal suspect ran inside to hide and owe you no compensation because of qualified immunity, your dog becomes homeless too.[v]
Worse, if the dog had been in the house and also killed: too bad, there is nothing you can do. Why? In the view of a particularly callous legal commentator, “the taking itself… constitute[s] just compensation,” because “the property value.. is increased when criminals are removed.”[vi] Apparently, if police blow your house up and kill your dogs, you’re supposed to thank them for a job well done.
So, what should be done?
Legislate the pain away. End qualified immunity and legislate the availability for tortious claims against government actors for damage caused during the course of police actions. Everyone should be accountable for their actions, and unless they are, you can expect your local sheriff’s department won’t think twice before obtaining that used armored personal carrier to drive through your house Rambo style to save the day. Making state actors accountable for their actions by ending qualified immunity and allowing suits for damages will better protect people’s rights, fairly splits the costs of social benefits of policing, and in turn, better protects the animals around them.
[i] https://leg.colorado.gov/sites/default/files/documents/2020A/bills/2020a_217_enr.pdf
[ii] See Pearson v. Callahan for an indifferent court’s callous opinion on the subject
[iii] 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).
[iv] See Virginia VIILO v. Kevin EYRE and Montell D. Carter available at https://www.animallaw.info/case/viilo-v-eyre. Warning graphic and horrible dog shooting is described in this case.
[v] https://www.npr.org/2019/10/30/774788611/police-owe-nothing-to-man-whose-home-they-blew-up-appeals-court-says
[vi] See Lior J. Strahilevitz, Book Note, When the Taking Itself is Just Compensation, 107YALE L.J. 1975 (1998).