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County or supervisory official liability under § 1983 for Axel’s shooting death? »

Dogs are Fourth Amendment “effects,” so the government can’t just shoot them without expecting to pay

November 8, 2012 by Kevin C. Walsh

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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Posted in Law | Tagged Altman, Axel, Charles City County, dogs, Fourth Amendment, High Point, seizure | 9 Comments

9 Responses

  1. on November 9, 2012 at 12:35 pm Axel Rip

    Per the aco responsible for killing Axel. he was 10+ feet away and had ONLY barked, he was not moving, biting at or growling at anyone. As Currently being stated Axel did NOT try to bite anyone. Animal control called (the day after he killed Axel) and said he had barked, nothing more, once the media and this story started getting more attention,the story changed that he had tried to bite. Axel had simply ran after a running boy. When the aco had arrived Axel had gone home and was back on his own property. When the aco arrived, he went through a shut gate, onto our property and brought the teenage boy with him. Axel then followed HIM of the property where the aco says he stomped at him, he then stated that Axel ran about ten feet away and barked, so he shot him. This IS what the aco stated. In Charles city county the aco has no law enforcement powers and was there for trespassing on personal property


    • on November 9, 2012 at 1:00 pm Anonymous

      Don’t forget to mention that Axel didn’t break a leash law, because there IS none in CC this time of year.


  2. on November 9, 2012 at 2:27 pm Ann Dana

    I think PETA would also be interested in acting on this….it is as bad as Michael Vick and should be prosecuted and the county that has allowed this for so long should be held liabel……I for one, am glad that I do not live in that county…


  3. on November 10, 2012 at 11:30 am Mary Walters

    Many residents of Charles City have been harassed, intimidated and afraid to speak up for fear of their pets’ lives for years due to Frank Bates running at large. The county has repeatedly failed to take any proactive measures. Both are liable for Axel’s death, for the killing of other healthy adoptable animals impounded in their county facility, and other matters which are now being brought forward.


  4. on November 11, 2012 at 10:21 am Anonymous

    Forget PETA, they’re busy killing dogs and cats themselves and are a radical organization full of themselves (crap.) ASPCA is a more legitimate organization to deal with animal cruelty.


  5. on November 12, 2012 at 10:21 am Anonymous

    From what I understand this isn’t the first time Officer Bates has shot a dog. Why has nothing been done before this?


    • on November 12, 2012 at 8:37 pm MaryS

      why has nothing been done before? Charles City Board of Supervisors has known he has been a problem but the good ol’ boy network is alive and well particularly with 2 board members. The magistrate is friends with Frank Bates. Then you have the state vet who repeatedly goes into pounds, reports violations/issues and then never follows up or fines the counties. Simply FOIA Charles City County, Abingdon, Petersburg, Hopewell, etc.


      • on November 14, 2012 at 8:19 pm Bianca

        I wasn’t aware that the magistrate knew Bates. How did you find that bit of info?


  6. on November 14, 2012 at 9:30 am County or supervisory official liability under § 1983 for Axel’s shooting death? « walshslaw

    […] « Dogs are Fourth Amendment “effects,” so the government can’t just shoot them witho… […]



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