Argued: December 1, 2016
from the United States District Court for the Western
District of Michigan at Grand Rapids. No.
1:15-cv-00283-Robert J. Jonker, Chief District Judge.
T. Keck, MORGAN & MEYERS, PLC, Dearborn, Michigan, for
J. Sahu, CITY ATTORNEY'S OFFICE, Battle Creek, Michigan,
T. Keck, Courtney E. Morgan, Jr., MORGAN & MEYERS, PLC,
Dearborn, Michigan, for Appellants.
J. Sahu, CITY ATTORNEY'S OFFICE, Battle Creek, Michigan,
Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.
42 U.S.C. § 1983 action, Plaintiffs Mark Brown and
Cheryl Brown (collectively, "Plaintiffs") seek to
hold Officers Christof Klein, Damon Young, and Jeffrey Case
(collectively, "Individual Officers" or
"officers") of the City of Battle Creek Police
Department ("BCPD") and the City of Battle Creek
("City") (collectively, "Defendants")
liable for unlawfully seizing their property in violation of
the Fourth Amendment when the officers shot and killed their
two dogs while executing a search warrant. The district court
granted Defendants' motion for summary judgment and
entered judgment in favor of Defendants. Plaintiffs appeal
reasons set forth in this opinion, we AFFIRM the district
STATEMENT OF FACTS
Trash Pull, Warrant, and Briefing Prior to Raid
April 16, 2013, the BCPD conducted a trash pull at the
residence of Danielle Nesbitt ("residence"). The
trash pull recovered baggies with residue of marijuana and
cocaine, a small amount of loose marijuana, and mail
addressed to Plaintiffs and Vincent Jones, the father of Ms.
April 17, 2013, the BCPD obtained a warrant to search the
residence. The evidence recovered from the trash pull and
information from a confidential informant were the bases for
the search warrant. The affiant stated that he had received
information indicating that Vincent Jones lived at the
residence and was distributing controlled substances from
inside the residence. Ms. Nesbitt, the daughter of Cheryl
Brown, owned the home and allowed her mother and Mark Brown
to stay in the basement of the residence.
same day, the officers executed the search warrant. Prior to
execution of the warrant, the officers and members of the
City's Emergency Response Team ("ERT") met to
discuss the details related to the case, including Jones'
criminal history, Jones' known gang affiliations and gang
associates, whether there were children or dogs present at
the residence, and any other issues or concerns they may have
had prior to the search. Defendants decided to involve the
ERT for this search because of the threat the subject,
Vincent Jones, posed given his criminal history, known gang
affiliations, possession and use of firearms, and possible
possession of cocaine and heroin he was alleged to be
distributing out of the residence. Officer Case testified
that Vincent Jones was a member of the north side gang in
Battle Creek, and that this gang was one of the reasons why
the BCPD created the gang unit. He stated that "Vincent
Jones, many of [the officers] kn[e]w him very, very well, his
gang history, his drug history, his gun history, the foot
chases, the car chases, the shootings. He [was] a bad guy.
Very rarely [wa]s he alone." (R. 61-5, Officer Jeffrey
Case Dep., PageID# 53-54.)
Case went on to state that "Vincent Jones was a primary
target when the gang unit started because of many of the
activities that we're talking about, and that gang . . .
was fairly large, very tight. Many of them carried guns, shot
people, sold drugs. So any time Vincent was associated with
something, it was highly likely that there would be others
involved or close." (Id. at 54-55.) He then
testified that, "whether [Vincent Jones] got stopped or
not, the risk [that others were in the residence] would still
be high." (Id. at 55-56.) The officers were
informed during the briefing that Vincent Jones had just been
released from prison after maxing out his time at state
prison a month prior to the raid. During the briefing, the
officers and ERT had no information about whether there were
dogs in the residence.
the briefing, the officers and the ERT headed to the
residence. On the way to the residence, the officers,
including Officers Klein and Young, received information that
Vincent Jones had left the residence and had been detained by
police with heroin on his person. They were also informed
that there was a dog in the backyard and another subject in
the residence, later identified as Mark Brown. Mark Brown
testified that he came to the residence during his lunch
break that day to let the dogs out around 1:00 p.m., and was
on his way out of the residence around 2:00 p.m. to go back
to work when he was detained by Officer Sutherland.
Brown was walking on the front lawn of the residence toward
his car, which was parked on the street, when Officer
Sutherland pulled up behind Mark Brown's car. Officer
Sutherland placed Mark Brown in handcuffs and informed him
that officers would soon be executing a search warrant for
the residence. Mark Brown was standing behind his car with a
view of the residence's front door and front window.
minutes after Mark Brown was detained, the officers,
including Officers Case, Klein, and Young, and the ERT pulled
up to the residence. Officers Klein and Case testified that
this was when they first saw the "Beware of Dog"
sign outside the residence. (Case Dep. at 44; R. 61-2,
Officer Christof Klein Dep., PageID# 104.) The officers, with
the exception of Officer Case, proceeded directly to the
front door. Mark Brown testified that when the officers and
ERT arrived, he told Officer Sutherland that he had a key to
the front door, that there was no one else in the residence,
and that his two dogs were in the residence. Officer
Sutherland tried telling the officers this information before
they breached the front door. Officer Klein testified that he
did not hear about Mark Brown's comments to Officer
Sutherland prior to breaching the front door.
Execution of the Search Warrant
Forced Entry Through Front Door
Klein led the group of officers and ERT to the front door,
where he saw two dogs through the front window standing on a
couch. Officer Klein testified that as the officers
approached the front door, he could see the dogs barking
aggressively, "digging and pawing, " and
"jumping" at the window. (Klein Dep. at 79.) The
first dog was a large, brown pit bull, weighing about 97
pounds, and the second dog was a smaller white pit bull,
weighing about 53 pounds. Officer Klein knocked on the front
door, announced their presence, and "less than fifteen
seconds" later, breached the door with a ram, which is a
large metal object used by law enforcement to open doors.
(Klein Dep. at 70-71.) After the door was breached, Officer
Klein was the first of the search warrant team to enter the
Brown testified that he was able to see the two dogs in the
window standing on the couch before the door was breached.
Mark Brown testified that, as the officers were approaching
the residence, the dogs were not barking. Mark Brown also
stated that the second dog did not bark at all, and that he
had the second dog almost a year at that point and "she
[had] never barked a day in her life." (R. 61-8, Mark
Brown Dep., PageID# 54.)
Entryway and Kitchen Sweep
Klein testified that when he entered the house, the first dog
jumped off the couch, was aggressively barking at the
officers, and lunged at him. He also noted that when the
officers entered the residence, the second pit bull jumped
off the couch, went through the kitchen and down into the
basement. He further testified that when the first pit bull
lunged at him in the entryway, he fired his first shot.
Officer Klein explained that the first pit bull "had
only moved a few inches" between the time when he
entered the residence and when he shot her, and that this
movement was what he considered to be a "lunge."
(See Klein Dep. at 73-75, 77.) Klein testified that
he "hit" the first dog with a non-lethal shot, but
that he was "aiming at its head." (Id. at
Klein stated that after he struck the first pit bull in the
entryway, the dog moved away from the officers and towards
the kitchen, then down the stairs and into the basement.
Officer Klein noted that this first dog was not running, as
it "look[ed]" injured. (Id. at 82.) As the
officers were descending the stairs to clear the basement,
they noted that the first pit bull was at the bottom of the
stairs. Klein testified that the first pit bull obstructed
the path to the basement, and that he "did not feel [the
officers] could safely clear the basement with those dogs
down there." (Id. at 95-96.) The officers'
"priority w[as] [ ] to secure the basement if there
w[ere] any people down there." (Id. at 97.)
When the officers were halfway down the stairs, the first
dog, who was at the bottom of the staircase, turned towards
them and started barking again. From the staircase, Officer
Klein fired two fatal rounds at the first pit bull.
the officers got down to the basement, they noted that the
"basement was loaded. You've gotta look under beds,
you've gotta do everything, and [the dogs] basically
prevented us from doing that, and they were protecting that
basement." (Case Dep. at 86.)
Klein testified that after he shot and killed the first dog,
he noticed the second dog standing about halfway across the
basement. The second dog was not moving towards the officers
when they discovered her in the basement, but rather she was
"just standing there, " barking and was turned
sideways to the officers. (Klein Dep. at 87.) Klein then
fired the first two rounds at the second dog.
being shot by Officer Klein, the second dog ran to the back
corner of the basement. The second pit bull was in this
corner when Officer Young, who was also clearing the
basement, shot her because she was "moving" out of
the corner and in his direction. (Id. at 92.) After
being shot by Officers Klein and Young, the second pit bull
ran to the back of the furnace in the back corner of the
basement. Officer Case saw that "[t]here was blood
coming out of numerous holes in the dog, and . . . [Officer
Case] didn't want to see it suffer" so he put her
out of her misery and fired the last shot. (Id. at
93-94; Case Dep. at 79.)
City of Battle Creek Police Department's Relevant Policy
BCPD has the following policies with regard to the use of
firearms when responding to resistance in ...