Jury Must Decide If Virginia Sheriff’s Killing of Dog Was Constitutional *Centurion Insurance AFS*

A Virginia deputy sheriff must face a jury over whether his shooting to death of a dog was justified or if it was unconstitutional before it can be determined if he is entitled to qualified immunity, a federal appeals court has ruled in reversing a lower court decision letting the sheriff off the hook.

This is the second time a ruling in the sheriff’s favor has been reversed. The Fourth Circuit Court of Appeals has ordered that the case go to a jury.

Michael Roane, a deputy sheriff, shot and killed Tina Ray’s dog while attempting to serve an arrest warrant. In 2018, a federal district court dismissed Ray’s action against Roane. The district court also held in the alternative that Roane was shielded by qualified immunity.

But in 2020, the Fourth Circuit Court of Appeals reversed that decision. In its reversal opinion, the appeals court identified two material allegations that, if substantiated, would support an inference that the shooting was unnecessary and therefore unconstitutional under the Fourth Amendment, which protects the interest of individuals in dogs they keep as pets.

In 2022, the district court, armed with new testimony regarding the material allegations cited by the Fourth Circuit, again dismissed Ray’s action against Roane. Last week the Fourth Circuit court for the second time vacated the ruling in favor of the sheriff and remanded the case for trial. The Fourth Circuit said that the lower court erred in downplaying new witness testimony gained through discovery that supported Ray’s version of events and erred in resolving the disputes over the material allegations itself rather than letting a jury decide them.

Opening Scene

This case began in 2017, when four Augusta County law enforcement officers arrived at Ray’s house to serve an arrest warrant and protective order. They were greeted by Ray; two of Ray’s friends; and Ray’s dog, a 150-pound German shepherd named Jax. The officers called Deputy Sheriff Roane for investigative support, and the whole group waited at a picnic table in Ray’s yard for 30 or 40 minutes until Roane arrived. Jax lounged nearby, tethered to a 25-foot “zip line” connecting two trees in the yard. He remained tethered throughout a rapidly developing episode that began when Roane arrived and ended when Roane shot Jax dead.

Ray sued for unreasonable seizure under the Fourth Amendment over the shooting of her dog. Roane moved to dismiss Ray’s complaint for failure to state a Fourth Amendment claim on the ground that he mistakenly but reasonably believed Jax to be unrestrained at the time of the shooting.

In her complaint, Ray alleged that Roane arrived dramatically on the scene in his truck, “barreling” down her driveway, “screeching to a halt” under the zip line, and “slamming the door” as he exited. Alarmed, “Jax began barking while approaching Roane.” Roane drew his gun and retreated, moving backwards until “Jax had reached the end of his line and could not get any closer to Roane.” At that point, recognizing Jax’s inability to advance further, Roane stopped his retreat, “took a step towards the dog so that he stood over Jax,” and shot Jax in the head.

According to the Fourth Circuit court, together, those two factual allegations by Ray – that Roane stopped his retreat and then stepped forward before shooting – “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.”

In his defense, Roane argued that his decision to shoot fell within the bounds of Fourth Amendment reasonableness. At a minimum, he contended that he was entitled to qualified immunity because his efforts to protect himself against the threat posed by Jax were not clearly unreasonable.

Genuine Dispute

After the first reversal, further discovery uncovered a genuine dispute about the material facts that the appeals court had identified. Witnesses gave similar accounts of the episode’s general contours but disagreed on the details. Most significantly, they split as to the allegations the court had identified as critical: that Roane had stopped retreating and stepped forward before shooting Jax.

Three witnesses, including Roane, testified to the effect that Roane “was backpedaling the whole time” – that is, until the moment of the shooting. Two witnesses testified that they were uncertain whether Roane stepped forward before firing. And three witnesses, including Ray, testified that Roane stopped, then stepped towards Jax, and then shot.

One witness also testified that he “can’t say if it’s true or not” that “Roane took a step back towards Jax prior to firing the shot,” but the weight of his testimony appeared to be that Roane did not take such a step.

In granting summary judgment for Roane, the district court found that Ray had failed to state a Fourth Amendment claim because Jax’s size and aggression caused Roane reasonably to fear for his safety, especially given the “split-second” nature of the interaction. The court acknowledged Ray’s allegation that Roane “calmly . . . stepped towards Jax” before shooting him. But because Roane was able to act calmly in the face of danger did not mean he did not assess Jax to be a threat. For the same reasons, the district court also held in the alternative that Roane was shielded by qualified immunity.

Crediting Inferences

However the Fourth Circuit found that the testimony of witnesses and Ray’s allegations could support an inference that Roane did not reasonably perceive Jax as a threat to his safety and shot him nevertheless, in violation of clearly established Fourth Amendment law. It rejected the district court’s summary judgment.

The Fourth Circuit said that the only way the district court could have reached its decision is by failing to “fully credit” Ray’s allegations “and the inferences arising therefrom.” The appeals judges criticized the district court for appearing to treat the genuine dispute over Roane’s alleged “step forward” as immaterial despite the appeals court’s earlier finding that the two disputed issues were indeed material, and highly so.

In the opinion written by Judge Pamela Harris, the Fourth Circuit concluded that it could not simply accept Roane’s version of the facts over the allegations in Ray’s complaint at the motion-to-dismiss stage of the proceedings, which “tests the sufficiency of the complaint, not its veracity.”

In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the non-movant – here, Ray – and draw all reasonable inferences in her favor, the judges noted. The court cannot “weigh the evidence or make credibility determinations.” That function is reserved for a jury, and only if “the movant shows that there is no genuine dispute as to any material fact” may summary judgment be awarded.

It is time for the “dispute to go to a jury for resolution,” the Fourth Circuit ordered.

The Fourth Circuit noted that a jury crediting the testimony of three witnesses who said that Roane stopped retreating and stepped toward Jax before firing could draw a “reasonable inference” that Roane recognized Jax’s inability to advance further and thus the absence of any “imminent threat,” which would in turn establish that Roane’s seizure of Jax was unreasonable.

The court closed by explaining that whether officer Roane is entitled to qualified immunity as a matter of law cannot be determined at this time for the same reason that Roane’s merits argument cannot be resolved as a matter of law.

Judge Pamela Harris wrote the majority opinion, in which Judge Roger Gregory and Judge Henry Floyd joined.

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Virginia