Qualified immunity denied for officer who shot and killed a puppy

Facts

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Body cam videos:

https://www.ca5.uscourts.gov/opinions/unpub/23/23-30180_Exhibit_B_Burmaster_Bwc.mp4

https://www.ca5.uscourts.gov/opinions/unpub/23/23-30180_Exhibit_C_Roussell_Bwc.mp4

Around 9p.m. on April 10, 2021, Plaintiffs Derek Brown and Julia Brown got into an argument at their home in New Orleans. A neighbor called the police and Officer Burmaster responded to the complaint. Officer Burmaster waited for Officer Roussel to arrive and they then both walked over to the Plaintiffs’ house. As Burmaster and Roussel approached the home, Burmaster made “kissy noises” to attract any dogs. Burmaster believed there were no dogs because he saw nothing in the yard to indicate dogs were present and received no response to his “kissy noises.” Plaintiffs state that the “kissy noises” were made in front of their neighbor’s house, not theirs.

Burmaster and Roussel then entered the front courtyard of the Plaintiffs’ home through one of the two gates. A dog began to bark and before Burmaster saw any dogs, he drew his firearm. Roussel was standing right next to Burmaster and tapped Burmaster on the shoulder to indicate that they should leave the yard. Roussel walked out of the gate they came in through and held the gate open for Burmaster because he was “close enough to also come out.” Burmaster chose not to exit the gate.

Two dogs, Bucho (larger dog) and Apollo (smaller dog) came down the stairs to the courtyard. Bucho ran in the direction away from Burmaster, and Apollo ran towards Burmaster, wagging his tail. At the time, Burmaster was armed with a firearm and a taser, and wearing police boots. Burmaster fired three shots at Apollo, killing him. Apollo was 16 weeks old and weighed approximately 22 pounds. Apollo did not bark, growl, jump, bare his teeth, or lunge.

On March 31, 2022, Plaintiffs filed their Complaint against Burmaster and the City of New Orleans under 42 U.S.C. § 1983, asserting a violation of their rights under the Fourth, Fifth, and Fourteenth Amendments. Burmaster filed a Motion for Summary Judgment on March 19, 2023, which the district court denied, finding that there were genuine disputes of material fact. The 5th lacked jurisdiction and dismissed the appeal.

Analysis

This court has no jurisdiction to consider the correctness of the plaintiff’s version of the facts and cannot review the district court’s factual determination that a genuine factual dispute exists.

Here, Burmaster argues that Apollo was aggressive, barking, and going to bite him. He argued that he had nowhere to exit the yard and had no choice but to shoot the dog. Our court lacks jurisdiction to consider the genuineness of the district court’s factual determinations, and accordingly the appeal must be dismissed for lack of jurisdiction.

Taking the facts in the light most favorable to Plaintiffs, as we must: Apollo was approximately the size of a large cat, not even reaching the shins of Burmaster. The video evidence shows that Apollo’s tail was wagging, and he does not jump, or lunge. It also shows that Officer Roussel tapped Burmaster on the shoulder indicating they should leave through the gate and Burmaster chose not to leave. The video evidence also shows that Burmaster had his gun drawn before he saw Apollo at all. Burmaster concedes he had a taser, and police boots, which he could have used on the dog. Burmaster also stated that he was afraid that Apollo would bite his penis, although Apollo could not even reach his thighs.

Viewing the facts in the light most favorable to Plaintiffs, a reasonable jury could conclude that Burmaster did not reasonably believe that Bruno, a small puppy who was wagging his tail shortly before the shooting, posed a threat. A reasonable jury could further conclude that Burmaster did not reasonably believe he was in imminent danger, based on Bruno’s size, Burmaster’s ability to exit the yard, and the availability of non-lethal tools like the taser and police boots.

The district court ruled that the material facts at issue were genuinely disputed, and we have no jurisdiction to review that determination. Accordingly, the appeal is DISMISSED.

 

https://www.ca5.uscourts.gov/opinions/unpub/23/23-30180.0.pdf