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Lesher v. Reed

United States Court of Appeals, Eighth Circuit
Jan 5, 1994
12 F.3d 148 (8th Cir. 1994)

Summary

holding that a dog that was destroyed by the police department was "obviously . . . `seized' within the meaning of the Fourth Amendment"

Summary of this case from Altman v. City of High Point, N.C

Opinion

No. 93-1441.

Submitted September 14, 1993.

Decided January 5, 1994.

Robert A. Newcomb, Little Rock, AR, argued, for plaintiffs-appellants.

Jeanette L. Hamilton, Little Rock, AR, argued (Thomas M. Carpenter and Jeanette L. Hamilton, on the brief), for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Arkansas.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge


James and Dawn Lesher appeal the district court's dismissal of their lawsuit against officers of the Little Rock Police Department ("LRPD") and the City of Little Rock for violations of the First and Fourth Amendments. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

James Lesher was a Little Rock police officer assigned to the canine squad. He entered into a written agreement with the City of Little Rock to donate a dog to the LRPD. The donation agreement provided that James could reclaim custody and control of the dog if the LRPD determined the animal was unsuitable for police work. The agreement also stated that the LRPD could dispose of the dog if James did not reclaim the animal within a certain amount of time or "for any other good cause shown."

The dog continued to live with James and his wife Dawn until the animal bit a young child. After learning of this incident, the LRPD notified the Leshers the dog was unsuitable for police work and the LRPD planned to destroy the animal. James responded that he intended to exercise his option to reclaim ownership of the dog. Acting on orders from the LRPD's Assistant Police Chief, Randy Reed, and a supervisor on the canine squad, W.W. Williams, officers went to the Leshers' home to remove the dog. James released the animal after he was informed he would be relieved of duty if he did not allow the officers to take the dog. Subsequently, the LRPD transferred James from his position on the canine squad to a regular patrol unit.

The Leshers complain that the LRPD's seizure of the dog violated the Fourth Amendment. James claims that LRPD officials violated the First Amendment because they transferred him in retaliation for his protesting their decision to kill the dog. Finding no constitutional issues in this case, the district court granted the defendants' motion to dismiss for failure to state a claim. See Fed. Rule Civ.Pro. 12(b)(6) (1993). The Leshers appeal.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV.

"Congress shall make no law. . . abridging the freedom of speech. . . ." U.S. Const. amend. I.

II. DISCUSSION A. The Fourth Amendment Claim

In order to state a prima facie claim under 42 U.S.C. § 1983, the plaintiffs must allege that the defendants, acting under color of state law, caused a constitutional violation. Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir. 1993). The Leshers complain that LRPD officers, acting without judicial authorization and on orders from LRPD officials, removed their dog from their home without their consent.

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . ." 42 U.S.C. § 1983 (1986).

The district court concluded no constitutional violation had occurred because the LRPD owned the dog at the time the animal was taken from the Leshers' home. Regardless of the disputed ownership of this dog, the court erred in dismissing the Leshers' Fourth Amendment claim. A seizure of property occurs when there is some meaningful interference with a person's possessory interests in that property. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). The Leshers' constitutional right against unreasonable seizures is not vitiated merely because the defendants believed the dog belonged to the LRPD. See Soldal v. Cook County, ___ U.S. ___, ___, 113 S.Ct. 538, 548, 121 L.Ed.2d 450 (1992) ("[T]he reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question of whether the [ Fourth] Amendment applies. What matters is the intrusion on the people's security from governmental interference.").

On appeal, the defendants urge that this case does not fit within Fourth Amendment framework because there was no search. Alternatively, the defendants argue no seizure occurred because James consented to "a voluntary relinquishment of the dog in response to a direct order from a superior." The defendants mistakenly focus on the fact that James was an LRPD employee.

The seizure of property is subject to Fourth Amendment scrutiny even though no search has occurred. Id. at ___, 113 S.Ct. at 547. Public employees, like private citizens, are entitled to the benefits of the Constitution, and the State may not coerce them into relinquishing a constitutional guarantee under threat of losing their employment. Uniformed Sanitation Men Ass'n, Inc. v. Comm'r of Sanitation, 392 U.S. 280, 284-85 n. 5, 88 S.Ct. 1917, 1920 n. 5, 20 L.Ed.2d 1089 (1968). A government employer's seizure of property possessed by an employee is clearly subject to Fourth Amendment restraints. O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987). Although a public employee's Fourth Amendment rights are, to some extent, diminished in the work place, id. at 725, 107 S.Ct. at 1501 ("the privacy interests of government employees in their place of work . . . are far less than those found at home"), a public employee's rights with respect to searches or seizure in his home are no different than a private citizen's. If James were not an LRPD employee, the dog would obviously have been "seized" within the meaning of the Fourth Amendment. A search or seizure carried out in an individual's home without a warrant is per se unreasonable unless it falls within one of the well-defined exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971); see also United States v. Riedesel, 987 F.2d 1383, 1388 (8th Cir. 1993). We remand this case to the district court in order to determine whether the defendants can establish that this seizure was not unreasonable.

B. The First Amendment Claim

James alleges he was transferred from the canine squad because he protested the LRPD's decision to kill the dog. Articles in a local newspaper about whether the dog should be killed transformed this issue into a matter of public concern. In order for a public employee to state a claim for violation of his right to freedom of speech, he must demonstrate that the speech is protected by the First Amendment and that the speech was a substantial factor in an adverse employment decision. Bausworth v. Hazelwood School District, 986 F.2d 1197, 1198 (8th Cir. 1993). To establish First Amendment protection, the employee must make a threshold showing that the speech was a matter of public concern; public concern is determined from the speech's content, form, and context. Id. James' complaint contains no specifics about what he said, where he said it, or who was involved. A public employee's personal complaints to his employers, even if they are about a matter of public interest, do not constitute protected speech. "Thus, speech is a matter of public concern when a public employee speaks as a concerned citizen, but not when the employee speaks as an employee." Id. James failed to state a nexus between his allegedly protected activity and the public's interest in the dog's fate. We conclude the court properly dismissed the First Amendment claim.

Because James failed to demonstrate his speech was protected, we need not address the issue whether the protected speech was a substantial factor in an adverse employment decision.

III. CONCLUSION

The district court's dismissal of the First Amendment claim is affirmed. The dismissal of the Leshers' Fourth Amendment claim is reversed and the case is remanded for proceedings consistent with this opinion.


Summaries of

Lesher v. Reed

United States Court of Appeals, Eighth Circuit
Jan 5, 1994
12 F.3d 148 (8th Cir. 1994)

holding that a dog that was destroyed by the police department was "obviously . . . `seized' within the meaning of the Fourth Amendment"

Summary of this case from Altman v. City of High Point, N.C

holding that police officers' removal of a dog from inside plaintiffs' home fits "within the meaning of the Fourth Amendment"

Summary of this case from Brown v. Muhlenberg Township

finding that a government employee did not waive his Fourth Amendment property rights over his dog when he relinquished the dog pursuant to a direct order from his superior

Summary of this case from Maldonado v. Municipality of Barceloneta

determining plaintiff stated a Fourth Amendment unreasonable seizure claim based on allegations his employer the police department removed a dog from his home after threatening plaintiff with termination if he did not allow the officers to take the dog

Summary of this case from Hess v. Abels

reversing dismissal of a Fourth Amendment dog seizure case and remanding for a reasonableness analysis, implicitly recognizing dogs as "property" for Fourth Amendment purposes

Summary of this case from Andrews v. City of West Branch

In Lesher, city police officers informed the plaintiff, a fellow officer, that he would be fired if he did not turn over his dog, which had bitten a child.

Summary of this case from Hess v. Ables

In Lesher v. Reed, 12 F.3d 148, 150 (8th Cir. 1994), the government officials "removed [plaintiffs'] dog from their home."

Summary of this case from Brown v. Muhlenberg Township

In Lesher, the court held that a public employee and his wife, James and Dawn Lesher, stated a Fourth Amendment claim when officers entered their home and seized a police dog without a warrant.

Summary of this case from Hoeltzel v. Pillsbury

removing the dog from the home was a seizure subject to the Fourth Amendment reasonableness inquiry

Summary of this case from Branson v. Price

declining to accept defendants' argument that no seizure occurred because the plaintiff, a public employee, consented to "a voluntary relinquishment of the dog in response to a direct order from a superior"

Summary of this case from Sabin v. Miller

stating that plaintiffs' constitutional right against unreasonable seizures from their home was not vitiated merely because the employer believed the dog seized from plaintiffs belonged to employer

Summary of this case from Sabin v. Miller

stating the defendants "mistakenly" focused on the fact that the plaintiff was a public employee, when defendants argued no seizure occurred

Summary of this case from Sabin v. Miller

taking of dog states claim for seizure

Summary of this case from Hatch v. Grosinger

In Lesher, the Eighth Circuit held in error the district court's conclusion that no "seizure" occurred when members of the Little Rock Police Department took a police dog owned by the Department from the home of one of its officers.

Summary of this case from Rossi v. Town of Pelham

In Lesher v. Reed, 12 F.3d 148, 150 (C.A.8 1994), the United States Court of Appeals for the Eighth Circuit considered the police department's contention that the seizure, from the residence of the officer, of a police dog, the ownership of which was claimed by the officer pursuant to an agreement with the department, did not fit within Fourth Amendment framework because there was no search. Alternatively, the department argued no seizure occurred because the officer consented to "a voluntary relinquishment of the dog in response to a direct order from a superior."

Summary of this case from Fraternal Order of Police Montgomery County Lodge 35, Inc. v. Manger
Case details for

Lesher v. Reed

Case Details

Full title:JAMES LESHER; DAWN LESHER, PLAINTIFFS-APPELLANTS, v. RANDY REED…

Court:United States Court of Appeals, Eighth Circuit

Date published: Jan 5, 1994

Citations

12 F.3d 148 (8th Cir. 1994)

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