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2nd Circuit Revives Fatal Dog Shooting Lawsuit From Conn.

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By William Peacock, Esq. on October 31, 2014 4:48 PM

The police got a tip: There are guns stashed in an abandoned Nissan Maxima in the yard behind a certain house on Enfield Street.

Fair enough. Hartford cops JohnMichael O'Hare and Anthony Pia went to the address to look for the guns, but ran head-first into Seven, the family's St. Bernard. Long story short, they shot Seven multiple times in front of K.H., a then-12-year-old girl, leading to the dog's death.

The district court allowed an exigent circumstances defense, and the jury sided with the defendants. But the Second Circuit overturned that verdict Thursday, holding that there was not sufficient evidence of exigent circumstances and that qualified immunity doesn't apply.

Exception Swallows the Rule?

If it isn't obvious, the officers didn't stop for a warrant. They argued that exigent circumstances justified the intrusion -- guns are scary, so is the neighborhood -- but Second Circuit Judge Rosemary Pooler wasn't convinced.

Pooler first noted that the officers had no specific knowledge of circumstances that made seizing these guns urgent. Though they had generalized knowledge that Hartford is one of the most dangerous cities in America, and that guns are popular among criminals, they needed something more specific to these guns.

Judge Pooler also noted that if she sided with the officers, the Fourth Amendment would be dead in high-crime areas.

"Taken to its logical end, this argument would permit exigent circumstances anytime there is a tip about illegal guns being located somewhere in a high-crime neighborhood or city, and would allow the exception to swallow the rule," she wrote.

By the way: There was no Nissan Maxima on the property, nor were there any guns. Just a traumatized kid holding her dead dog.

No Immunity

Curtilage is one of my favorite words. It's also a very well-known word amongst lawyers and law enforcement. It's also generally known that fenced-in yards are part of a house's curtilage.

"This case provides no exception," Judge Pooler curtly concluded. "Accordingly, it would not have been 'objectively reasonable' for the officers to believe their acts did not encroach upon Plaintiffs' protected curtilage."

And with no objectively reasonable mistake, there's no qualified immunity.

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