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Viilo v. Eyre

October 27, 2008

VIRGINIA VIILO, PLAINTIFF-APPELLEE,
v.
KEVIN EYRE AND MONTELLD. CARTER, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:05-cv-00216-CNC-Charles N. Clevert, Jr., Judge.

The opinion of the court was delivered by: Cudahy, Circuit Judge

ARGUED SEPTEMBER 23, 2008

Before BAUER, CUDAHY and WILLIAMS, Circuit Judges.

Virginia Viilo sued the City of Milwaukee and two of its police officers under the Fourth Amendment via 42 U.S.C. § 1983 after Officer Montell Carter 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 defendants' interjection of factual disputes deprives us of jurisdiction. Accordingly, we dismiss the appeal.

I.

On the evening of August 15, 2004, Virginia Viilo was relaxing in her backyard with her elderly mother, her boyfriend, his parents and her dog Bubba, a seven-year-old Labrador Retriever/Springer Spaniel mix. Their rest was disturbed when a team of six officers from the Milwaukee Police Department, including Officer Montell Carter, arrived at Viilo's house. The officers had received an anonymous tip that a wanted felon had entered Viilo's home accompanied by a pit bull. Carter prepared for this eventuality by arming himself with a shotgun because, as he later said, "the best weapon for a dog is a shotgun through my experience."

Bubba was the first to hear the officers as they fanned out and approached Viilo's front door. He ran from Viilo's backyard to a gangway along the side of the house leading to the front yard, leapt a three-foot high gate and ran toward the officers, who were by now close to Viilo's front porch. Although the officers testified that Bubba was growling and exposing his teeth and gums, a neighbor who witnessed the scene later testified that the dog was coming out to greet them. Apparently fearing for the officers' safety, Carter fired two shots at Bubba, hitting him at least once and causing comminuted and compound bone fractures to his front leg. Bubba, in turn, retreated to the bushes near the front window of Viilo's house where he hid for the next ten minutes.

Carter kept watch over Bubba, while the other officers proceeded to the backyard to make contact with Viilo and her guests. The officers refused to allow Viilo to retrieve Bubba or to call a veterinarian. Some ten minutes later, Sergeant Kevin Eyre arrived on the scene. During this time, a crowd of Viilo's neighbors responded to the commotion by gathering around the house; some of them were shouting at the officers, telling them that Bubba wasn't a bad dog. Apparently undeterred, Eyre approached the bush where Bubba was hiding, which prompted Bubba to emerge from the bush and head toward the gangway leading to the backyard. Although the officers stated that Bubba ran out from under the bushes with his teeth and gums exposed, multiple witnesses testified that Bubba was limping and whimpering as he emerged from the bushes and that he was just trying to get back to Viilo.

Viilo's boyfriend later testified as to what happened next:

I walked to the gate, I opened the gate, and the gate makes a metal sound. And I was calling the dog, and as I opened up the gate to go out the front, I could see the dog move from in front of the house-from what I seen, moving from the front of the house to the side. He just kind of like slowly moved over. And when he saw me, he sat down, and he looked me right in the eye, and he just-in the eyes, and he was just looking at me. And all of a sudden, an officer came out from-it looked like from the front... And he lowered his shotgun, and I just screamed. I went "No." I says-you know, I just-I remember just hollering "No, no."

Eyre raised his handgun to shoot Bubba. Although he later professed to fear for his own safety, he nevertheless reconsidered his decision to use his handgun and ordered Carter, who had a shotgun, to shoot Bubba instead. The crowd, meanwhile, had grown larger and people were yelling at the officers not to shoot. Ignoring the crowd's pleas, Carter shot Bubba a third and then a fourth time. Although Eyre later testified that he ordered the fourth shot to end Bubba's suffering, he made no mention of this to the police lieutenant who wrote the official police report.

II.

Although this is not, to say the least, a record that paints a sympathetic picture of the defendants' actions on the night Bubba was killed, the defendants nonetheless argue that they are entitled to qualified immunity as a matter of law.

Qualified immunity protects government officials from liability for civil damages if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Unless and until the Supreme Court overturns Saucier v. Katz, 533 U.S. 194 (2001),*fn1 the defendants' assertion of qualified immunity is subject to the familiar, two-step analysis: first, we ask "whether a constitutional right would ...


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