Viilo v. Eyre
--- F.3d ----, 2008 WL 4694917 (C.A.7 (Wis.))
Virginia Viilo sued the City of Milwaukee and two of its police officers under 42 U.S.C. § 1983 after an officer shot and killed her dog 'Bubba.' The district court denied the defendants' motion for summary judgment on the basis of qualified immunity and the defendants took an interlocutory appeal challenging this denial. The court found that defendants' interjection of factual disputes deprived the court of jurisdiction. Testimony indicated that there were disputes as to whether the dog was actually menacing toward the officers; in fact, witnesses indicated that an officer followed the whimpering dog after it had been initially shot to shoot it again with a shotgun. The court, in aligning itself with other circuits, held that it is a violation of the Fourth Amendment for a police officer to shoot and kill a companion dog that poses no imminent danger while the dog’s owner is present and trying to assert custody over her pet. Moreover, a reasonable officer would or should have known that the actions alleged here would violate the Constitution. The interlocutory appeal was thus dismissed.
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