I’ve written recently about qualified immunity, which is the concept that law enforcement or other government officials cannot be held personally liable for the harm they cause doing their jobs. Lawyers and activists have noted that the doctrine essentially shields law officers from accountability when they violate people’s constitutional rights, allowing cops to shoot people and face no consequences. But courts have steadfastly upheld qualified immunity—a fact that has led me to argue that congressional action is the only hope for rolling back the current rules.
It turns out, I was wrong. This week, I found a case where a court, not Congress, stripped away qualified immunity from a cop and is allowing him to be sued civilly for his violent behavior. The problem, it seems, with my earlier analysis was that I focused on how courts treat cops who shoot or harm people, specifically Black people. That was foolish. I should have been looking at how courts treat cops who brutalize something this country actually cares about.
On Monday, the US Court of Appeals for the Eighth Circuit (which covers Minnesota, Missouri, and some random states that have fewer people but more senators than a rush-hour 7 train) issued a ruling that pierced the veil of qualified immunity and allowed a lawsuit to go forward against a cop that shot some lady’s dog. Two dogs, in fact. Apparently, qualified immunity—which courts are constantly telling us is necessary to protect cops who have to respond to dangerous situations quickly—can be thrown right out the window if the officer involved shoots a pair of canines.
The facts of the case are not in dispute. In 2017, Minneapolis police responded to a house alarm that was accidentally set off at the home of Jennifer LeMay. One of her kids had tripped the alarm by mistake, and when the home security company called, LeMay told them to cancel the alert. But the cops were already on their way. One officer went to the front of the house and was met by one of LeMay’s kids, who told the officer there was no problem. But a different cop, officer Michael Mays, went around the back of the house, scaled a privacy fence, and ended up in the backyard.
There, the cop was greeted by the LeMays’ service dogs, Ciroc and Rocko, both of whom were 5-year-old American Staffordshire Terriers (“pit bulls” to those who really need to watch more dog shows). Mays says Ciroc “charged” him, but his body camera footage shows the dog walking toward him, wagging his tail. Mays backs up, Ciroc keeps approaching, and Mays shoots it in the face. Ciroc runs away, but at that point Rocko moves towards Mays, again in a friendly, tail-wagging manner (what a good boy). Mays then shoots Rocko multiple times. Both dogs lived and will go to heaven later.
The Eighth Circuit court ruled that Mays was not entitled to qualified immunity because he did not face imminent danger. The court argued that Mays violated a clear constitutional rule, finding that it is “clearly established” that an officer cannot shoot a dog in the absence of an “objectively legitimate” threat. This language is important. The court is saying that a general fear of dogs—or, specifically, pit bulls—is not enough to justify deadly force. The threat to the officer has to be an objective one.
It’s interesting, because when it comes to people, courts regularly rule the opposite: that a cop’s own hysterical fear is enough to justify excessive force. It doesn’t matter if the person did not pose a deadly threat; all that matters is whether the cop was afraid. But in this case, the court demanded an objective reason to shoot an animal. This is a good time to mention that the Eighth Circuit panel that unanimously ruled against the cop was made up of three judges appointed by Republican presidents.
And the all-conservative court didn’t stop there. To defend himself, Mays offered his police report, which said that the dogs “charged” at him; the court ruled that it is not obligated to accept the police report’s “narrative as truth.” I cannot recall reading an opinion in which the court basically called a police report a lie and declared that it was not bound to lend it any weight. But in this case, the court argued both that it did not have to trust the police report and, without the aid of that report, that Mays had to establish an objective case for imminent harm before using deadly force.
On dogs. We’re talking about dogs. Not people. Not Black children playing with toys. But dogs. Dogs!
It should be said that the Eighth Circuit is clearly right here. Cops should not be allowed to barge into a person’s house or yard and shoot their pets. There is no evidence that dogs pose a deadly threat to law enforcement. In fact, there is not one recorded case of a police officer being killed in the line of duty by a dog. And it almost goes without saying that police are more likely to shoot the dogs owned by Black and brown people than they are to shoot white people’s pets. We should stop police puppycides. There’s no reason for brutality against pets.
But there’s also—clearly—no reason for brutality against people. We should stop cops from shooting people and hold them accountable when they do. In fact, the Eighth Circuit has laid out some perfectly reasonable rules for stripping officers of qualified immunity when the victims are human, not canine: Ignore the police report and use an objective standard of imminent, deadly violence.
Why can a court see the right answer so clearly when it comes to dogs, but loses the plot when cops turn their guns on people? Is it the tails? Would Black people get justice in front of conservative courts if we grew tails that wagged our intentions? ’Cause, let me tell you, if it would keep my kids safer, I’d sew a tail onto every pair of pants they wear.
This case could get appealed to the Supreme Court, but I have every reason to expect it will be upheld, because again, the Eighth Circuit is clearly right. I hope this ruling is affirmed.
In the meantime, I will continue to nurse my dream that one day Black people are treated by the white justice system with the same dignity and respect for our lives that it grants a dog. It would be an improvement.