But under these circumstances, Ms. Mi-Chol cannot show that Officer Cherry’s split-second decision to shoot Chino to stop him from physically attacking Roky and to save Roky’s life was an unlawful seizure in violation of the Fourth Amendment.
White v. City of Detroit
Sixth Circuit Appellate Court
June 17, 2022
On Monday August 3, 2020 there was an armed robbery at the Dollar Store at 15200 Mayfield Street, Detroit, Michigan. The suspect fled on foot and was arrested. The officers believed that the suspect pitched the firearm and were retracing his steps. Officer Shirlene Cherry and her Canine Roky were also retracing the suspect path.
The officers asked the residents of 15074 Alma Street, Detroit Michigan a Ms. Mi-Chol to put away her two dogs that were outside – Chino, a pit bull, and Twix, a Yorkie Terrier. Ms. Mi-Chol grabbed Chino to put him into a kennel, but he escaped from her grasp and ran to the front yard. Ms. Mi-Chol went inside to grab a leash for Chino.
On Monday August 3, 2020 Detroit Police Officers were searching the area of 15074 Alma Street, Detroit Michigan for a firearm used in a robbery when a family canine attacked a police canine. The Detroit Police Officer shot the civilian canine which led to this civil suit.
Because Chino was still out in the yard, Officer Cherry decided to take Roky to the rear of a neighboring home to begin the search for the discarded weapon. To do so, she began walking with Roky next to the iron fence that surrounded Ms. Mi-Chol’s yard. Video from Ms. Mi-Chol security camera shows that Chino ran alongside Roky on the other side of the fence and, as Roky neared the end of Ms. Mi-Chol’s fence, Chino suddenly locked down on Roky’s snout. After Roky cried out, Officer Cherry looked down to see Roky trapped in Chino’s mouth, being jerked by Chino as if Chino were trying to pull Roky through the iron fence. Officer Cherry screamed, “dog, let go,” and attempted without success to pull Roky back by his leash. Chino did not let go. Officer Cherry unholstered her gun and shot Chino, causing him to release Roky. Approximately six seconds passed between the moment that Chino attacked Roky and the moment that Officer Cherry shot Chino. Chino died as a result of the gunshot.
For law enforcement to obtain Qualified Immunity it is a two-part test:
(1) Whether the officer violated the plaintiff’s constitutional rights under the Fourth Amendment; and
(2) Whether that constitutional right was clearly established at the time of the incident.
Pearson v. Callahan, 555 U.S. 223, 236 (2009)
In this case the City of Detroit – the defendant, concedes the second prong, that Ms. Mi-Chol had a clearly established constitutional right to not have a dog unreasonably seized. Therefore, the Sixth Circuit only analyzed the first prong whether or not Officer Cherry violated Ms. Mi-Chol constitutional right under the Fourth Amendment.
The Sixth Circuit has not directly addressed the issue of reasonableness in the context of an officer’s shooting of a pet to protect the officer’s canine partner.
Accordingly, the Sixth Circuit has held that courts must “[A]nalyze the question of whether a pet constitutes an imminent threat from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Brown v. Battle Creek Police Department, 844 F.2d 556 (6th Cir. 2016).
In Brown, the Sixth Circuit held that the officers’ shooting of the plaintiffs’ dogs was a severe intrusion “given the emotional attachment” between dogs and their owners. Thus, Officer Cherry’s shooting of Chino was likewise a severe intrusion. However, for the reasons explained below, despite the severity of the intrusion, Officer Cherry’s actions were nevertheless objectively reasonable.
Officer Cherry did not have any warning that Chino was an aggressive dog that might attack Roky if the two got too close. It is true that, because even seemingly friendly dogs can act aggressive at times, Officer Cherry’s most prudent course of action would have been to keep Roky farther away from the fence. But the fact that Officer Cherry could have acted more cautiously does not render her actions unreasonable.
It is incredibly unfortunate that Chino was killed-a significant loss for the White family. But under these circumstances, Ms. Mi-Chol cannot show that Officer Cherry’s split-second decision to shoot Chino to stop him from physically attacking Roky and to save Roky’s life was an unlawful seizure in violation of the Fourth Amendment. Because Ms. Mi-Chol cannot show that Officer Cherry committed a constitutional violation, Officer Cherry is entitled to qualified immunity. As a result, Officer Cherry is entitled to summary judgment on the Fourth Amendment claim against her.
Failure to Train
Here, the court has found that Officer Cherry is entitled to qualified immunity because Ms. Mi-Chol cannot prove that she committed a Fourth Amendment violation. This finding precludes the City of Detroit from being found liable on the failure-to-train claim. Accordingly, the City of Detroit is entitled to summary judgment on this claim.
Information for this article was obtained from White v. City of Detroit, No. 2:20-cv-12646 (6th Cir. 2022).
This case was issued by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Ohio and Tennessee.
- The Sixth Circuit Appellate Court ruled in favor of the City of Detroit, Detroit Police and Officer Cherry as it determined that shooting a dog that is attacking a police canine is not constitutionally unreasonable. In this case Ms. Mi-Chol’s dog, Chino, was the aggressor. What remains unclear is if the police canine was the aggressor with a civilian’s canine and shooting the civilian canine would be reasonable. I believe that if the police canine was the aggressor, shooting a civilian’s canine that was attacked, would be unreasonable.
- The Failure to Train claim was dismissed because the City of Detroit, Detroit Police and Officer Cherry were given Qualified Immunity. In a future case, courts may fully litigate a Failure to Train claim if Qualified Immunity is not granted. This case underscores the need for consistent and high-quality police canine training.
- This case provides a brief glimpse of the unique and challenging decisions an officer must make daily. Officer Shirlene Cherry was abruptly faced with a very difficult decision. Making that decision on August 3, 2020 at 15074 Alma Street was difficult. While making the decision today, with 20/20 hindsight under fluorescent lights is much easier.
Does your agency train on Use of Force?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!