The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
Currently pending before this Court is plaintiff's motion to set aside the verdict under Rule 50(b) of the Federal Rules of Civil Procedure or, in the alternative, for a new trial under Rule 59. (Docket # 79).
Plaintiff Sherry Carroll, on behalf of her son David Carroll ("David"), brought this case under 42 U.S.C. § 1983, alleging that the County of Monroe (the "County") and Deputy Sheriff James Carroll ("Carroll") violated David's constitutional rights by shooting and killing his dog during the execution of a search warrant at plaintiff's home. Following a two-day trial, the jury returned a verdict in favor of defendants. (Docket # 69).
In the pending motion, plaintiff argues that the verdict should be set aside, or a new trial granted, because the trial evidence established that the shooting was unreasonable within the meaning of the Fourth Amendment. Specifically, plaintiff contends that Carroll acted unreasonably in shooting the dog because Carroll knew before executing the warrant that a dog was present at plaintiff's residence, but failed to formulate a plan to neutralize the dog using non-lethal means. Plaintiff emphasizes that the trial proof demonstrated that the County did not train its law enforcement officers in the use of non-lethal means to restrain animals present inside premises to be searched. For the reasons discussed below, plaintiff's motion is denied.
On October 11, 2006, a warrant was issued authorizing the search of plaintiff's residence; the warrant permitted the officers to enter the residence without first knocking and announcing their presence (commonly referred to as a "no-knock warrant"). (Tr. 88). Officers from the Greater Rochester Area Narcotics Enforcement Team, including defendant Carroll and Brighton Police Department Sergeant Michael DeSain ("DeSain"), executed the warrant later that day. Before doing so, DeSain briefed the team about the plans to execute it. (Tr. 13). Carroll recalled that DeSain informed the team that a dog was present at the residence. (Tr. 38, 57). The team did not devise a plan for controlling the dog during the warrant's execution. (Tr. 15-16, 20, 38-39).
At the time of the search, the County had a written policy prohibiting the use of lethal force against an animal unless the animal posed a danger to officers or other persons. (Tr. 66). In addition, although the County trained its officers in the execution of search warrants, it did not train them specifically about how to handle dogs during warrant executions. (Tr. 17). Nor did it train them to identify the circumstances justifying the use of lethal force against a dog. (Tr. 17-19, 34).
DeSain and Carroll both testified that officers' options for dealing with animals present inside a residence to be searched were more limited when the warrant was a no-knock warrant than a knock-and-announce warrant. (Tr. 18, 34-35, 38-39). They testified that any delay in the execution of a no-knock warrant threatens to undermine the purpose of "no-knock" authorization, which is to ensure that evidence is not destroyed and to minimize threats to officers' safety. (Tr. 25, 32, 49). In the case of a knock-and-announce warrant, by contrast, officers are less concerned with delay and thus have more time to deal with a dog without resort to lethal means. (Tr. 34-35, 38-39).
As DeSain and Carroll further explained, when officers execute no-knock warrants, their actions are designed to move them out of the entry doorway -- or the "fatal funnel," as the officers called it -- as quickly as possible because doorways present easy targets for surprised or violent occupants. (Tr. 26-27, 38-39). According to DeSain, "statistically, if officers are killed upon entry or shot, they're shot at the doorway[;] . . . if you shot toward a door, your chances of hitting someone on entry would be pretty high." (Tr. 26-27). For that reason, DeSain explained officers must "get out of the fatal funnel [the doorway], and . . . do so expeditiously and in a certain way every time." (Tr. 27).
In this case, the officers approached plaintiff's residence surreptitiously and then lined up in a "stack" at the front door. (Tr. 28). Carroll was the first officer in the stack and carried a shotgun. (Tr. 31). Carroll was responsible for securing the entrance by "mak[ing] sure that nothing . . . surprise[d] [them] in the front" in order to "get everybody out of the fatal funnel as fast as possible." (Tr. 52-53).
After DeSain broke through the front door with a battering ram, Carroll was the first to enter. (Tr. 30). He immediately heard growling and barking and observed a dog quickly and aggressively approaching him from the hallway. (Tr. 40, 53). The dog "was showing his front teeth, and growling, and barking at the same time." (Tr. 53). Carroll also saw the plaintiff in the hallway, but she was too far behind the dog to stop it. (Tr. 54). Carroll shouted to the plaintiff to get out of the hallway; by the time she did, the dog had advanced to within one foot of Carroll. (Tr. 54-55). At that point, he fired one shot at the dog's head and killed it. (Id.).
Both DeSain and Carroll described several scenarios that they had
encountered in executing other warrants that did not necessitate the
use of lethal force -- such as, where the owner had been able to
restrain the dog, where the dog had run away, or where the dog had
laid down. (Tr. 32-33, 57). According to DeSain, even if the team had
formulated a plan to use non-lethal means against the dog,*fn1
the dog ...