Archive for November, 2012

I wrote last week about the shooting death of Axel, an 18-month-old Yellow labrador, in Charles City County, Virginia.

One response to my suggestion of the possibility of civil liability for the shooter under the federal civil rights law (§ 1983) in combination with the Fourth Amendment has been for some to ask: Why has nothing been done before? And one response to that question has been that there is a “good ol’ boy” network in Charles City County that is protecting an errant animal control officer. That suggestion, in turn, raises another question about civil liability. Is it possible to hold the county or some other officials liable for the alleged Fourth Amendment violation involved in killing Axel (and possibly other animals)?

The short answer is that it is possible to hold supervisory officials and a local governmental body liable, but it is very difficult to do because the legal standard is very stringent. I’ve included below a summary of relevant law from a recent Supreme Court decision. I recognize that it can make for tough reading for one not accustomed to legalese. The important point to note is that liability under § 1983 depends on one’s own actions.

Here are some relevant questions for the legal analysis, questions that show the kind of facts that would need to be developed to support a claim of county liability: Was Axel’s shooting pursuant to official policy? Much depends on the facts, but presumably other potential defendants would try to portray the shooter as a rogue officer. Was the county deliberately indifferent to a pattern of constitutional violations? A similar question is relevant when considering the potential liability of supervisory officials: Was there continued inaction in the face of documented widespread abuses?



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According to a recent story on CBS6, an animal control officer in Charles City County, Virginia killed an 18-month-old yellow labrador, Axel, while investigating a neighbor’s complaint. Officer Franklin Bates arrived at Sharon McGein’s home with her neighbor’s 17-year old son, whom Axel had reportedly chased and tried to bite. The teenage neighbor identified Axel as the dog that chased him. Accounts differ as to what happened next. Maybe the dog charged the officer; maybe the officer provoked the dog to bark menacingly. But there is no maybe about what reportedly happened next. Officer Bates shot Axel three times in the face. The dog died.

The County Administrator and the State Police are reportedly investigating whether to file charges.

This incident may also give rise to civil liability. In Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003), the Fourth Circuit held that dogs are “effects” protected by the Fourth Amendment against unreasonable seizure. Because shooting and killing a dog is a “seizure” of the dog, the dog’s owner can sue the shooter (and other government defendants as well) under § 1983.

Whether such a suit would succeed depends heavily on the facts of the shooting. In Altman, for example, the panel majority held that the animal control officers were protected by qualified immunity. But that was largely because the dogs “were running at large, uncontrolled and with no owner looking on.” That does not appear to be the case here. And the Altman decision will be treated as having put the government on notice of the potential for liability. Should the case be litigated, the key question will be this: Did Axel pose an imminent danger that justified the officer’s use of deadly force?

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The Supreme Court today unanimously overturned a Fourth Circuit decision that affirmed the denial of attorneys’ fees in a civil rights case. The Court in Lefemine v. Wideman vacated a Fourth Circuit decision that affirmed the denial of “prevailing party” attorney’s fees to a plaintiff who had secured declaratory and injunctive relief but no money damages.

Unanimous summary decisions like this one are a problem for any inferior court. Yet some courts deciding some issues seem more likely to result in such decisions (such as the Sixth Circuit operating under AEDPA or the Ninth Circuit examining qualified immunity). The Fourth Circuit has generally steered clear of this kind of unanimous overturning. What happened here?

It looks like the Fourth Circuit panel simply misapplied Supreme Court precedent, in large part because of an earlier circuit precedent (from 1993) that also (but without correction) misapplied Supreme Court precedent.


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I posted yesterday about a fascinating jurisdictional argument about CAFA that appears in an amicus curiae brief filed by Jones Day on behalf of the National Association of Manufacturers in Standard Fire v. Knowles. I continue to think that the brief represents strong lawyering. But having considered the details of the argument in some depth, I am unpersuaded. In what follows, I try to “show my work” leading up to this (provisional) conclusion. The argument is a bit rough and the language is unpolished. I should also caution that I never paid careful attention to the relevant provision of CAFA until yesterday. Nevertheless, I have found the question of how to interpret 28 U.S.C. § 1453 to be very interesting and have thus far enjoyed trying to work through it. So, here goes . . .


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Alison Frankel wrote an overview yesterday of a fascinating jurisdictional argument arising out of CAFA in the upcoming Supreme Court case of Standard Fire v. Knowles. The argument appears in an amicus brief filed by Jones Day on behalf of the National Association of Manufacturers. Frankel credits Jeffrey Mandell of Jones Day with developing the argument.

The basic claim is that a CAFA provision that relaxes prior limits on removal (Section 5 of CAFA, at 28 U.S.C. § 1453) provides a statutory basis for federal jurisdiction over class actions removed from state court, regardless of whether those class actions satisfy all the requirements for original jurisdiction in the CAFA provision that expands original jurisdiction (Section 4 of CAFA, at 28 U.S.C. § 1332(d)).

To evaluate the argument, one needs to dive into the details. For example, § 1453 contains no mention of either complete diversity or minimal diversity. Is the provision best read it as a broad jurisdictional grant that is unconstitutional whenever there is no minimal diversity?  I hope to explore this and other issues in the future, for a first review of the brief indicates that the argument is worth pursuing. Kudos to Mandell and the lawyers at Jones Day.

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