Brown v. Muhlenberg Townshi

269 F.3d 205 (3rd Cir. 2001)

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Nature of the Case

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Facts

Ps were in the process of moving. Their three-year-old Rottweiler pet had been placed in the fenced yard. Ps had not secured a dog license for her, but Immi wore a bright pink, one-inch-wide collar with many tags: her rabies tag, her microchip tag, a guardian angel tag, an identification tag with Ps' address and telephone number, and Ps' prior Rottweiler's lifetime license. The latch on the back gate of their fence had failed, and Immi had wandered into the adjacent parking lot beyond the fence. Immi approached the sidewalk along the street on which Ps lived. Officer Eberly was passing in his patrol car. Seeing Immi, he pulled over, parked across the street, and approached her. He clapped his hands and called to her. Immi barked several times and then withdrew. The dog crossed the street and entered the parking lot. Officer Eberly walked to a position ten to twelve feet from Immi. Immi was stationary and not growling or barking. According to a stranger observing from his car, Immi 'did not display any aggressive behavior towards [Officer Eberly] and never tried to attack him.' P saw Officer Eberly not more than fifty feet away. He and Immi were facing one another. Officer Eberly reached for his gun. P screamed as loudly as she could, 'That's my dog, don't shoot!' Her husband heard her and came running from the back of the house. Officer Eberly hesitated a few seconds and then pointed his gun at Immi. P tried to break through the window's screen and screamed, 'No!' Officer Eberly then fired five shots at Immi. Immi fell to the ground immediately after the first shot, and Officer Eberly continued firing as she tried to crawl away. One bullet entered Immi's right mid-neck region; three or four bullets entered Immi's hind end. Immi had lived with the Browns pre-school aged children for most of her three years and had not previously been violent or aggressive towards anyone. Ps sued Ds claim that Officer Eberly violated their constitutionally secured right to be free from unreasonable governmental seizures of their property. Ds moved for summary judgment, and it was granted. Ps appealed.