Date: 11-26-2017

Case Style:

Case Number: 16-2704/17-2077

Judge: Sutton

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Michigan (Wayne County)

Plaintiff's Attorney: Steve McKenney

Defendant's Attorney: Jame P. Allen, Sr.

Description: Dog bites dog. So begins this federal case about searches and
seizures allegedly gone awry, if not the newspaper story about the dispute. Detroit has a straydog
problem. As many as 50,000 of them roam the city’s streets and abandoned homes,
sometimes in packs. One group in a position to appreciate the seriousness of the problem, the
United States Postal Service, ranked Detroit sixth in its “Annual Dog Attack City Rankings” in
2016.
The Detroit City Council sought to address the problem by enacting an ordinance that
tightened the regulation of animals within City limits. The law imposed licensing and
vaccination requirements on owners, sought to prevent the spread of rabies, and targeted
“dangerous” or “vicious” animals. It also empowered law enforcement to enter the homes and
yards of pet owners if probable cause existed that they (or their dogs) had violated the
regulations. An assortment of dog seizures under the ordinance by officers of Detroit Animal
Control, an agency of the City, prompted the dispute. Some of the seizures arose from dog
attacks on other dogs, some from attacks on people, some from reports of dogs menacing the
neighborhood, some from rabies concerns, some from neglected dogs, and some from unlicensed
dogs.
In response to these seizures, fourteen individuals, the owners collectively of twentythree
dogs (18 Pit Bulls, 3 Presa Canarios, 1 German Shephard, 1 Boxer), filed this § 1983
action, making three essential claims against the City and the Director of Detroit Animal Control.
The first: One part of the 2004 Detroit ordinance violated the Fourth Amendment by permitting
officers to make warrantless searches of houses and yards to determine if the owners were
complying with the City’s dog-licensing rules and related regulations. The second: The City
had a policy of unreasonably seizing dogs in violation of the Fourth Amendment. The third:
The City had a policy of depriving owners of their pets without due process in violation of the
Fourteenth Amendment. The individuals did not sue any of the individual officers who
conducted the seizures.
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The district court granted the individuals the requested relief—an injunction—with
respect to the warrantless search-and-seizure claim, and the defendants have not appealed that
ruling. The district court granted the defendants judgment as a matter of law as to the other
claims because the plaintiffs could not show any constitutional violations, and the individuals
appealed both rulings. Because most of the plaintiffs cannot show that a Detroit policy or
custom directly caused the alleged search-and-seizure violations, and because all of the plaintiffs
cannot show a cognizable due-process violation, we affirm in large part and reverse in small part.
I.
In 2004, the Detroit City Council enacted an ordinance to address its stray-dog problem.
Entitled “Animal Control, Regulation, and Care,” the ordinance covers the “care, control,
regulation, and disposition” of animals in Detroit. Detroit City Code § 6-1-2(a). The law allows
animal control officers to capture and impound stray dogs and other animals owned in violation
of the provisions and to euthanize them under some circumstances. See id. §§ 6-1-5(a), 6-1-6(d),
6-1-8(e), 6-2-1(c), 6-2-7(a), 6-3-8. It defines strays to include “any animal running loose” and
makes it unlawful for anyone to refuse to surrender an animal that has attacked or bitten a person
or other animal. Id. §§ 6-1-1, 6-1-6(e). It imposes dog licensing and vaccination duties on
owners and increases oversight of the city’s animal shelter. See id. §§ 6-1-7(a), 6-2-1(a), 6-3-1,
6-3-3. And it allows officers to enter “any . . . real property within the City for the purpose of
capturing, collecting, or restraining any animal,” whether they have a warrant or not. Id. § 6-1-
2(e). A violation of the ordinance amounts to a misdemeanor and carries a maximum fine of
$500 and up to 90 days in jail. Id. § 6-1-12(c).
For ten years, the ordinance apparently did not cause any problems. But in 2014 and
2015, officers of the Detroit Animal Control seized each of the plaintiff’s dogs, prompting this
dispute. The grounds for the seizures varied. The officers seized the dogs of five owners
because the dogs were running loose off of the owners’ property. They seized the dogs of seven
owners because the dogs attacked a person or other animal. And they seized the dogs of two
owners during an eviction.
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The officers took the dogs to the City’s animal shelter. They issued citations to some of
the owners and told most of them that they could get their pets back after paying a fine. The
length and circumstances of each dog’s stay varied. The City held May’s dogs for two days, but
it held Link’s dog for nine months. Four of the plaintiffs lost their dogs because they died during
their stay at the shelter. Five plaintiffs lost their dogs when they returned home sick and died
shortly after their stay. Five of the plaintiffs’ dogs are still living.
The fourteen affected individuals filed this § 1983 lawsuit to enjoin enforcement of § 6-1-
2(e) because it authorized warrantless searches and seizures of their property. They also sought
damages from the City (though not the individual officers) for violations of their Fourth
Amendment right to be free from unreasonable searches and seizures and their Fourteenth
Amendment right to procedural due process. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978). Although the plaintiffs initially sued the City of Detroit, Detroit Police Department,
Detroit Animal Control, and Animal Control Director Harry Ward, they later agreed to drop both
agencies, leaving the City and Director Ward as the only defendants.
The district court enjoined § 6-1-2(e) as unconstitutional and awarded attorney’s fees to
plaintiffs’ counsel as a result. It entered summary judgment against the plaintiffs with respect to
their Monell damages claims because they could not show violations of the Fourth or Fourteenth
Amendments.
The individuals appeal the dismissal of their Monell claims, and the City and Director
Ward appeal the fee award. The City and Director Ward do not challenge the injunction.
II.
A few ground rules are in order. To prevail on their § 1983 Monell claims against the
City and Director Ward under the Fourth and Fourteenth Amendments, the plaintiffs must show
(1) that they suffered a constitutional violation and (2) that a municipal policy or custom directly
caused the violation. Monell, 436 U.S. at 690–92. The question at the summary judgment phase
of a case is whether the plaintiffs have produced sufficient evidence for a reasonable jury to find
in their favor. We look at each question with fresh eyes and draw all reasonable inferences in the
plaintiffs’ favor. Ward v. Polite, 667 F.3d 727, 730 (6th Cir. 2012).
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 5
A.
Did the plaintiffs forfeit their Fourth Amendment Monell challenge? A threshold
question is whether the plaintiffs have argued too little with respect to this claim. To prevail on
their Monell claim, as just noted, they had to show both a constitutional violation and a
municipal policy that directly caused the violation. The district court rejected this claim on the
ground that no constitutional violations occurred. In their opening brief, the plaintiffs challenged
only that ruling without arguing that a municipal policy caused any of the alleged violations.
Generally speaking, that does not suffice. Appellate courts “review[] judgments, not opinions.”
Texas v. Hopwood, 518 U.S. 1033, 1034 (1996). A ruling by us that the plaintiffs have shown a
constitutional violation, unaccompanied by a ruling with respect to any municipal policy, would
not suffice to alter the judgment.
When the City and Director Ward raised this point in their appellee brief, the plaintiffs
used their reply brief to respond—and to argue about several policies or customs that could have
caused the violations. That usually is too little too late. And that usually is unfair to boot, as the
delay deprives the appellee of a chance to offer a response in the normal sequence. Even so, we
will consider the issue here, as the parties briefed the issue below and for the most part have had
a chance to brief it here. Take note, however: That is a function of grace, not entitlement.
What is the relevant policy? Plaintiffs offer several policies or customs that could have
caused the alleged violations. One potential policy is the set of guidelines that Director Ward
issued for the department in addressing Detroit’s stray-dog problem. But the plaintiffs do not
show that any of the guidelines violate the Fourth Amendment, as opposed to, say, state law.
Another possibility, say the plaintiffs, is that we can infer an unconstitutional policy from
Director Ward’s recollection of just one dog-seizure warrant during his seven years as the
Director. But why is that the appropriate inference? It seems just as fair to infer that no such
policy existed given that many seizures stemmed from applications of the exigent-circumstances
or plain-view exceptions to the warrant requirement or from dog owners who agreed to release
their dogs to law enforcement rather than receive a ticket themselves. That a fact dispute may
exist over whether some of the individual seizures were in truth justified by exceptions to the
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 6
warrant requirement shows only that plaintiffs might have brought § 1983 actions against the
individual officers, not that Director Ward issued an unconstitutional policy. Any such track
record does not establish a “widespread practice” in violation of the Constitution. City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Making matters more speculative, plaintiffs offer
no comparisons: no comparison to the number of warrants issued before Director Ward took the
helm and no comparison to the number of such warrants issued by comparable municipalities or
for that matter any municipalities.
Even the allegation that Director Ward had a policy of encouraging officers to seize
unlicensed dogs does not do the trick. If an officer has probable cause to believe that a dog is
unlicensed, that is a reasonable ground for using the plain-view exception to the warrant
requirement to seize them. That doesn’t mean every seizure was constitutional. It just means
that any such policy was not facially unconstitutional. At the same time, officers could
implement such a policy not through warrantless entries onto the property but by putting dog
owners to the choice (difficult though it might be) of releasing the dog or receiving a ticket
themselves.
That leaves one other possibility to support the plaintiffs’ Monell claim. The
unconstitutional policy stemmed not from anything Director Ward did or did not do but from a
section of the ordinance itself, specifically § 6-1-2(e) of the ordinance. That section, as noted,
permitted officers to enter “any . . . real property within the City” without a warrant to
investigate menacing or unlicensed dogs. By using the ordinance as the relevant policy, the
plaintiffs can clear one hurdle for bringing a Monell claim: They have identified an
unconstitutional policy. The City and Director Ward acknowledge as much. Having agreed (to
their credit) that the ordinance is facially unconstitutional, they cannot deny that an
unconstitutional policy exists.
But did the policy directly cause the alleged illegal searches and seizures? The plaintiffs
also must connect each alleged constitutional violation to the policy by showing that the
ordinance “directly caused the violation” of the plaintiffs’ constitutional rights. Pembaur v. City
of Cincinnati, 475 U.S. 469, 484 (1986). All but two of the plaintiffs come up short in meeting
this requirement.
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 7
For some plaintiffs, the policy had nothing to do with the seizures because the officers
did not enter their property to seize the dogs. As to May, her dogs (Pretty Mama and Brick)
were on public sidewalks, not private property, when the officers seized them. Section 6-1-2(e)
thus had nothing to do with this seizure. The same is true for Munson-Griffin and McConnell.
Officers seized their dogs only after they brought them to the animal shelter. R. 37 at 15
(Meijer); R. 55-15 at 2 (Bam).
For some plaintiffs, the officers seized their pets on real property, but the ordinance did
not directly cause the seizures. The officers had ample grounds for entering Hardrick’s home
based on exigent circumstances: namely, an out-of-control, menacing pit bull (Mama), jumping
in and out of a broken glass window of the house and in and out of the yard at will. See Brigham
City v. Stuart, 547 U.S. 398, 403 (2006). Once on Hardrick’s property, the officers seized two
other dogs—Puppy (Mama’s puppy) and Rocky. The officers seized the other dogs because
“[n]either Puppy nor Rocky [was] being properly cared for, and [P]uppy would likely starve
without Mama to nurse it.” R. 54-4 at 41. Concerns about the well-being of Puppy and Rocky
justified the seizures. No one doubts that an officer could seize a (human) baby along with her
mother if the officer properly seized the mother and no one else was at home. So too of Puppy,
who would have been left in a vacant home without his Mama. Hardrick offers no evidence to
rebut the officer’s evidence that Rocky was not being cared for. Both seizures were justified by
an exigency. Even if that were not the case, even if in other words the officers mistakenly sized
up these exigencies, § 6-1-2(e) did not cause the seizures of Mama, Puppy, or Rocky, which is
all that matters.
The same goes for Robinson and Weems. The officers entered their properties to execute
a lawful eviction order and in the process seized their dogs—Diamond, Sparkles, and Scrappy—
who no longer had any right to be there. It does not matter that the lawfulness of a seizure is
distinct from the lawfulness of a search. See Soldal v. Cook Cty., 506 U.S. 56, 63–65 (1992).
Neither seizure, lawful or not, had anything to do with this provision of the ordinance.
Several plaintiffs agreed to turn over their dogs to the officers when confronted with
allegations that their dogs had violated one provision or another of the City ordinance. Link
gave the officers his dog (McLovin) when they invoked another provision of the ordinance—§ 6-
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 8
1-6—which required a ten-day rabies quarantine for his dog. Faced with allegations that their
dogs had violated the ordinance—by biting a person or running loose—Seward, Shackelford, and
Peterson gave their dogs to the officers to avoid being ticketed themselves for violating the
ordinance. See § 6-1-12; R. 37 at 23, R. 55-18 at 7 (Major); R. 55-22 at 5 (Kobe); R. 37 at 10
(Rocco). Because the officers did not simply enter the property and seize the dogs based on § 6-
1-2(e), no Fourth Amendment “injury flow[ed]” directly from that provision. Bd. of Cty.
Comm’rs v. Brown, 520 U.S. 397, 409 (1997).
Two of the plaintiffs’ claims fail for lack of evidence. In the complaint, Nelson and
Napier alleged that officers entered their property while they were absent and seized their dogs
without their consent. R. 30 at 35 (Chunk); id. at 39 (four unnamed pit bulls). But both
plaintiffs failed to appear for scheduled depositions and never provided affidavits to support
these allegations. Absent any evidence to support the allegations in their complaint, Nelson and
Napier’s claims necessarily fail on summary judgment. See Fed. R. Civ. P. 56(c).
That leaves two plaintiffs who have shown a material factual dispute about whether this
policy directly caused a Fourth Amendment violation. The first is Savage. He was absent from
his home when the officers entered his yard and seized his three Presa Canarios: Isis, Heru, and
Beautiful. Nothing in the record, and no evidence supplied by the defendants, contradicts
Savage’s record-supported claim that the officers entered his property based on any reason other
than that § 6-1-2(e) allowed them to enter. That satisfies the direct-cause component of a Monell
claim.
The record also supports the other requirement of a Monell claim for Savage—that the
officer’s entry into his back yard and seizure of the three four-legged pets violated his Fourth
Amendment rights. There is not a lot of law about the Fourth Amendment and dogs. This much
is clear, however. Even if friendship and ownership usually do not go hand in hand, “a dog is
property.” Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 566 (6th Cir. 2016). And an
officer’s entry onto private property to seize a dog must obey the Fourth Amendment’s strictures.
Id. Absent a warrant or exception to the Fourth Amendment, the officers had no right to enter
Savage’s yard and seize his three dogs.
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 9
But exigent circumstances, counter the officers, justified the search and seizure because a
neighbor had reported that the three dogs had attacked another dog. That reality might justify a
warrantless entry in some circumstances. See Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3d
Cir. 2001). But it could not do so here. The officers entered the yard and seized the dogs fiftythree
days after the neighbor’s complaint. If that is an emergency, the concept has little
meaning. An allegation that a dog bit another dog on a previous occasion does not create an
exigency now and forever. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984). The officers had
plenty of time to get a warrant, and yet they did not. Savage has established a cognizable claim
that the officers violated his Fourth Amendment rights and did so directly as a result of the City’s
unconstitutional ordinance.
A similar conclusion applies to Rice’s dog: Charlotte. A material fact dispute also
precludes summary judgment on this claim. The key problem for the government is that the
evidence is unclear about where the officer seized Charlotte: on private property or on public
property? Evidence cuts in both directions. Some of the evidence suggests that the officers
might have seized Charlotte after she left the property. Other evidence, however, would permit
the conclusion that the officer seized Charlotte on Rice’s property. That material fact dispute
precludes the city from disavowing reliance on the statute to make this seizure. As above,
moreover, there is no Fourth Amendment exception that would have allowed them to enter the
property without permission. A jury must resolve this claim.
B.
Due Process. On appeal, the individuals also claim a deprivation of property without due
process in two ways: (1) a denial of process before the officers placed their pets in the city’s
animal shelter, which caused them to become sick and in some instances die, and (2) a denial of
process after the seizures due to the lack of a citation that would have enabled them to contest the
seizure or fines. These claims fail because the plaintiffs have failed to show an underlying
violation, making it unnecessary to determine the existence of a valid or invalid municipal
policy.
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 10
As to the first claim, the officers did not deprive them of property merely because, after
the animals entered the pound, they became sick, died, or died after returning home due to
alleged unsanitary conditions there. “[N]egligent conduct by a state official, even though
causing injury,” does not constitute a deprivation under the Due Process Clause. Daniels v.
Williams, 474 U.S. 327, 331 (1986). That’s all the plaintiffs argue here. They offer no evidence
of a “deliberate decision” to destroy their pets. Id.
As to the second claim, the City has not yet denied the plaintiffs due process. Any
constitutional violation “is not complete unless and until the State fails to provide due process.”
Zinermon v. Burch, 494 U.S. 113, 126 (1990). The plaintiffs need to show that Michigan offers
no statutory or common law remedy. Hudson v. Palmer, 468 U.S. 517, 534–36 (1984). Yet they
have not done so. Michigan tort law allows recovery for harm to animals. See Oestrike v.
Neifert, 255 N.W. 226, 227 (Mich. 1934). And municipal officers are not immune for acts of
gross negligence. See Mich. Comp. Laws § 691.1407(2).
III.
In their cross-appeal, the defendants argue that the district court improperly awarded
attorney’s fees because the plaintiffs did not “prevail[]” in full but obtained only some of what
they sought. 42 U.S.C. § 1988(b). The district court granted the plaintiffs a permanent
injunction, and the defendants have not appealed that decision. That kind of injunctive relief is
the quintessence of “prevailing” status. See Lefemine v. Wideman, 568 U.S. 1, 2 (2012) (per
curiam); McQueary v. Conway, 614 F.3d 591, 603 (6th Cir. 2010). The district court properly
awarded attorney’s fees.
In the alternative, the City and Director Ward raise a bevy of grounds for slashing the
award’s amount: Namely, the district court incorrectly included fees for the time plaintiffs’
counsel spent consulting with experts, talking with potential clients, researching unsuccessful
claims, and researching claims never brought. But these arguments, including a protest over two
hours of legal research, overlook an admonition. In view of their ring-side seats of the
proceedings, district courts exercise considerable “discretion in determining the amount of a fee
award” to “avoid[] frequent appellate review of what essentially are factual matters.” Hensley v.
Nos. 16-2704/17-2077 Hardrick v. City of Detroit Page 11
Eckerhart, 461 U.S. 424, 437 (1983). Exactly the case here: The district court carefully
considered the relief plaintiffs sought, compared it to the results obtained, and reduced the award
accordingly. No abuse of discretion occurred.

Outcome: For these reasons, we affirm the district court’s rejection of the plaintiffs’ Fourteenth
Amendment claims. We affirm the district court’s rejection of the Fourth Amendment claims
filed by May, McConnell, Munson-Griffin, Hardrick, Robinson, Weems, Link, Napier, Nelson,
Peterson, Seward, and Shackelford. And we reverse the district court’s rejection of the Fourth
Amendment claims filed by Rice and Savage. We separately affirm the district court’s decision
awarding attorney’s fees to plaintiffs’ counsel.

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