Pettit v. New Jersey, 2011 U.S. Dist. LEXIS 35452 (D.N.J. Mar. 30, 2011)

District Court Dismisses All Counts Against State Trooper For The Shooting Of Aggressive Dog On The Owner’s Property

On July 2, 2008, a New Jersey State Trooper commenced an investigation for criminal mischief when someone spread roofing nails in the parking lot and street in front of the public works garage and municipal building for Estell Manor, New Jersey. The trooper learned that the day before, the mayor had been confronted by a grieving father, George Lopez, complaining that the township removed a roadside memorial for his recently killed son. The trooper drove to Mr. Lopez’s house to determine whether had any information regarding the nails thrown in the roadway.

Upon arrival at the residence, the trooper exited his patrol car and called for the homeowner. He received no answer. After this failed attempt to contact Mr. Lopez, the trooper walked up the driveway until he observed a brown Doberman Pincher on the house porch. The dog “began barking” at the trooper and the trooper backed down the driveway toward his patrol car. Prior to reaching his vehicle, the trooper observed a German Shepherd, ironically named Trooper, to run toward him and “leap aggressively” at the trooper. Fearful for his safety, the trooper drew his weapon and “fired three rounds from the hip-retention position as the dog was about to spring” on him. The trooper’s shots hit the German Shepherd and both dogs ran away. Shortly afterthe shots were fired, Mr. Lopez came out of the house and observed the trooper “with his gun drawn demanding” that Lopez speak with him. Disregarding this command, Lopez reentered his house and phoned the police. After phoning the police, Mr. Lopez reemerged from his house and cursed at the trooper for shooting his dog. The trooper conducted a pat-down frisk of Lopez’s outer layer of clothing before initiating questioning. The two individuals then discussed the shooting of the dog and the incident involving the roofing nails at the Estell Manor public works garage and municipal building. Mr. Lopez denied any involvement and did not provide any information regarding the scattered nails in the parking lots.

Plaintiff’s claims, brought under The New Jersey Civil Rights Act (hereinafter “NJCRA”), which was modeled after 42 U.S.C. §1983, allege inter alia that the trooper unreasonably seized his property (the dog) by shooting it. Plaintiff also brought similar claims against the township, the mayor and another employee (collectively with the trooper “Municipal Defendants”).

The District Court granted the Municipal Defendants’ motion for Summary Judgment finding that the trooper’s shooting was reasonable under the circumstances. It rejected plaintiff’s arguments the dog that posed no imminent threat and found that the dog was on the cusp of attacking the trooper and thus the trooper was justified in defending himself and preventing possible serious injury or death. Plaintiff also argued that the trooper’s actions were unreasonable because he could have chosen another response rather than shooting the dog, such as calling plaintiff in advance of his arrival or firing a warning shot. The Court disagreed and stated “reasonableness is not a rigid standard that requires an officer to choose the single best possible response. It’s more variable. The objective reasonableness standard permits an officer to select his reaction from a smorgasbord of alternative choices, with the single requirement that his action be justified by the circumstances.”