Kendall v. Olsen et al

Filing 74

MEMORANDUM DECISION AND ORDER granting in part and denying without prejudice in part 35 Motion for Summary Judgment - Defendants are entitled to summary judgment on Plaintiff's federal constitutional claims - the court declines to rule on remaining state law claims, which are remanded back to state court; denying 63 Motion for Summary Judgment. Signed by Judge Robert J. Shelby on 2/17/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SEAN KENDALL,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Civil No. 2:15-cv-00862-RJS-DBP

BRETT OLSEN, LT. BRIAN PURVIS,
JOSEPH ALLEN EVERETT, TOM
EDMUNDSON, GEORGE S. PREGMAN,
and SALT LAKE CITY CORPORATION,

Judge Robert J. Shelby
Magistrate Judge Dustin B. Pead

Defendants.
This case arises from the 2014 shooting of Sean Kendall’s dog by Salt Lake City Police
Officer Brett Olsen during a search for a missing toddler. After the shooting, Kendall brought
various state and federal claims against Olsen, the City, and several other officers. Both sides
now move for summary judgment. For the reasons below, the court grants Defendants’ Motion
for Summary Judgment on Kendall’s federal constitutional claims and remands the case back to
state court for further proceedings on Kendall’s state claims.
BACKGROUND
On June 18, 2014, Officer Brett Olsen was patrolling the Sugar House neighborhood of
Salt Lake City by motorcycle when he received word that a mother had reported her toddler
missing from their home. Olsen quickly drove to the home, where several officers were already
on the scene setting up a mobile command station. A supervisor, Lieutenant Purvis, instructed
Olsen to begin canvassing the neighborhood in search of the missing boy. He alerted Olsen that
the boy could not communicate verbally, and instructed that Olsen should therefore search

everywhere visually. By the time Olsen began searching, it was believed the child had been
missing for about an hour. This was significant, as time is generally thought to be crucial when
searching for missing children, with the likelihood of positive outcomes decreasing significantly
after about the first hour.
Olsen teamed up with another officer and began traveling north from the missing boy’s
home, as depicted in the map below. The officers went house to house knocking on doors.
Some homeowners invited the officers into their homes and yards to look around. If nobody was
home, the officers would briefly check the backyard if it was unfenced or if a fence gate was
unlocked. The officers searched several homes in this manner.

2

Eventually, the officers arrived at Kendall’s house, about ten homes away from the
missing toddler’s home. Olsen’s partner went to the front door while Olsen walked to the side
gate leading to Kendall’s backyard, as depicted in the map above, and in greater detail in the
overhead image of the home below. While his partner waited for a response, Olsen looked over
the fence into the backyard at the location marked “Gate B” below.

From his vantage point at Gate B, Olsen could not see the entire backyard. He testified
that after hearing no response from his partner’s knocking at the front door, he tried the gate,
which was unlocked, and entered the backyard. Olsen walked through the backyard to a shed in
the corner of the property (top right corner in the image above), checked the shed, and found
nothing. According to Olsen, as he turned and began to leave, he heard a dog begin barking

3

behind him. He turned back toward the shed and saw a 90-pound dog about 20–25 feet away
“running toward [him] and barking loudly.” Presumably, the dog had emerged from a dog house
wedged between the north side of the shed and the fence. Olsen began retreating quickly toward
the gate, but the dog rapidly closed on him. Realizing he would not make it to the gate before
the dog reached him, Olsen stopped, turned toward the dog, took “an aggressive stance,” and
stomped his foot, hoping the dog would back down. He did not, and, according to Olsen, instead
continued to charge, barking with teeth bared. As the dog closed in to the point where Olsen felt
it was “about to attack and to latch onto [him],” Olsen withdrew his service firearm and fired
twice, killing the dog a few feet from where Olsen stood. Olsen secured the area and notified his
supervisor of the incident by radio.
Ultimately, the missing boy was found unharmed sleeping in his family’s basement
underneath a box. Just over a year later, Kendall filed a Complaint in state court alleging federal
and state constitutional violations as well as various other violations of state law. Defendants
removed the case to federal court. Both parties now move for summary judgment on Kendall’s
federal constitutional claims.1
ANALYSIS
Both sides contend the undisputed facts entitle them to summary judgment. Kendall
argues Olsen’s entrance into his backyard was an unconstitutional search and the shooting of his
dog was an unconstitutional seizure under the Fourth Amendment.2 Defendants contend Olsen’s

Defendants also moved for summary judgment on Kendall’s state constitutional claims, but as
discussed below, the court declines to rule on those claims.
2
In addition to his Fourth Amendment claim, Kendall initially brought a Fifth Amendment claim
against Defendants, but he later withdrew this claim. Dkt. 45 at 1.
1

4

entrance into Kendall’s backyard was not a search, and even if it was, it was justified by exigent
circumstances—namely, the urgent need to find the missing toddler. As to the seizure,
Defendants argue that the shooting of Kendall’s dog was reasonable because the dog acted
aggressively toward Olsen. Alternatively, Defendants argue that even if the search or seizure
violated the Fourth Amendment, Olsen is not liable because he is protected by qualified
immunity.
I.

The Qualified Immunity Doctrine

Olsen’s invocation of qualified immunity changes the constitutional analysis slightly, so
before delving into the constitutional claims, the court first provides a brief discussion of
qualified immunity. Kendall sued the City and the officers under 42 U.S.C. § 1983, which, in
essence, allows a citizen to sue a government official, like a police officer, for any constitutional
violations that official commits on the job. Allowing citizens to sue police officers, however,
potentially leads to the unintended consequence of deterring officers from taking action in
difficult situations for fear they may ultimately be sued. Indeed, “police officers are often forced
to make split-second judgments . . . in circumstances that are tense, uncertain, and rapidly
evolving.”3 We rely on officers to make these difficult decisions quickly, even if it is not
entirely clear exactly what the law requires in every circumstance, because “[p]eople could well
die in emergencies if police tried to act with the calm deliberation associated with the judicial
process.”4

3

Graham v. Connor, 490 U.S. 386, 397 (1989).
United States v. Najar, 451 F.3d 710, 714 (10th Cir. 2006) (quoting Wayne v. United States,
318 F.2d 205, 212 (D.C. Cir. 1963)).
4

5

Courts have developed the doctrine of qualified immunity to balance the competing
interests of vindicating citizens’ important constitutional rights with affording police officers
some necessary leeway to make difficult decisions. Under this doctrine, an officer is liable for
violating a constitutional right only if his mistake about what the law requires is unreasonable.5
The court determines whether an officer’s mistake was reasonable based on whether it resulted in
him violating a constitutional right that has been clearly established by the courts.6 Where a
constitutional right has been clearly established, an officer is expected to be aware of it and to act
accordingly. But where reasonable officers could disagree about whether an action is lawful—
that is, where the right has not yet been clearly established—the officer will not be liable for his
mistake.
What this means for Kendall is that the law requires not only that he establish that Olsen
violated the Fourth Amendment by searching his yard or seizing his dog, but also that any
reasonable officer would know that the search or seizure was in violation of the Fourth
Amendment in view of the specific circumstances presented. With these principles in mind, the
court turns to the constitutional questions.
II.

The Search

Kendall first claims that Olsen violated the Fourth Amendment by entering his backyard
without a warrant. He contends that the search of a home and the surrounding area requires
either a warrant or an exception to the warrant requirement, and that in this case Olsen had
neither. In response, Defendants argue Olsen’s limited sweep of Kendall’s backyard was not a

5
6

Saucier v. Katz, 533 U.S. 194, 205 (2001).
Id. at 202.
6

“search” within the meaning of the Fourth Amendment, and even it was, the warrant requirement
was excused by the exception for exigent circumstances.
The Fourth Amendment generally prohibits searching a home without a warrant.7 And in
certain circumstances, this prohibition extends to the area immediately surrounding the home,
what is known as the “curtilage.”8 Here, Olsen did not enter Kendall’s home, but instead entered
his backyard, which, according to Kendall, is protected Fourth Amendment curtilage.
Defendants disagree. They contend Kendall’s backyard was not sufficiently private to constitute
protected curtilage, so Olsen’s entrance into the backyard was not a “search” of any Fourth
Amendment-protected area.
The question of whether any particular backyard is or is not protected curtilage is not so
clear cut. Indeed, it “depends upon a number of facts and factors,” including how close the area
is to the home, how the area is used, and what steps the homeowner has taken to ensure its
privacy.9 But the court need not answer that question today, for even assuming Kendall’s
backyard was protected Fourth Amendment curtilage—meaning Olsen’s entrance into the
backyard was a “search” for Fourth Amendment purposes—it was justified by the exigent
circumstances of locating a missing child.
As discussed, the Fourth Amendment typically requires a warrant to conduct a search,
especially of the home, but that requirement is excused when an officer faces exigent
circumstances, such as “assist[ing] persons who are seriously injured or threatened with such

7

United States v. Porter, 594 F.3d 1251, 1255 (10th Cir. 2010).
United States v. Cavely, 318 F.3d 987, 993 (10th Cir. 2003).
9
Id. at 993–94.
8

7

injury.”10 A warrant, for example, “is not required to break down a door to enter a burning home
to rescue occupants or extinguish a fire, to prevent a shooting, or to bring emergency aid to an
injured person.”11 Warrants take time, and in certain limited circumstances where time is of the
essence, courts will not require one. To demonstrate the existence of one of these circumstances
and invoke the exigency exception to the warrant requirement, an officer must demonstrate:
(1) he had an objectively reasonable basis to believe there was an immediate need to protect the
lives or safety of himself or others; and (2) the manner and scope of the resulting search was
reasonable.12
As to the first prong of the test, there can be no doubt that when a toddler goes missing
there is an immediate need to protect life or safety. Courts have noted that “the problem of
missing children is a profoundly serious one,”13 and Congress has recognized that “missing
children are at a great risk.”14 Kendall himself “concedes that . . . there were reasonable grounds
for . . . Olsen to believe there was an urgent situation” because “to [his] knowledge, a two- or
three-year-old boy was missing from his home.”15 That there was an exigency does not appear
to be in dispute.

10

Porter, 594 F.3d at 1256–57 (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403
(2006)).
11
Najar, 451 F.3d at 714 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)).
12
Id. at 718.
13
United States v. Wei Seng Phua, No. 2:14-CR-00249-APG, 2015 WL 427862, at *17 (D. Nev.
Feb. 2, 2015).
14
Cuevas v. City of Philadelphia, No. CIV. A. 05-3749, 2006 WL 2345928, at *6 (E.D. Pa. Aug.
11, 2006) (citing congressional findings related to the Juvenile Justice and Delinquency
Prevention Act, 42 U.S.C. § 5601).
15
Dkt. 45 at 78.
8

What is in dispute is the second prong of the test—the reasonableness of the scope and
manner of the search for the child.16 On this point, Defendants argue the scope of the search was
reasonable because officers confined the search to places a toddler could have accessed in a
radius surrounding his home within which he could have wandered in the time that had passed.
And as to manner, Defendants argue the officers reasonably knocked first to ask homeowners for
permission to look around, and absent homeowner permission they conducted only a quick
sweep of open backyards, not the inside of homes or other locked areas. Kendall disagrees,
arguing it was unreasonable for officers to conduct a blanket search of any area within a certain
radius of the missing child’s home.
The scope of a search is reasonable when the search is limited to “the locations where a
victim might likely be found,” and the manner of searching is reasonable when the intrusion is
no greater than necessary given the exigency.17 Here, the toddler had been missing for an hour
by the time Olsen began canvassing the neighborhood, and the child’s mother gave officers no
indication of what direction he may have wandered. Given these facts, the court finds it was
reasonable for officers to confine the scope of the search to places to which a toddler could have
walked in the hour or so that had passed, and within that radius to further confine the search to
areas a toddler could have actually have accessed, like open and unlocked backyards.
Considering the limited information officers were given, these were the locations where the
toddler might likely be found. As to the manner, the court concludes that the intrusion—
knocking on doors and quickly sweeping unlocked backyards—was no greater than necessary,

16

The reasonableness of the search is a question of law for the court to resolve. McInerney v.
King, 791 F.3d 1224, 1232 (10th Cir. 2015).
17
Najar, 451 F.3d at 720.
9

especially considering the nature of the exigency, and, in particular, the fact that the missing boy
was noncommunicative and had to be located visually.
Kendall’s main area of disagreement is with the reasonableness of the scope of the
search. According to Kendall, accessibility and proximity to a missing child are not enough to
justify searches of neighboring yards. He contends the mere fact that a yard is accessible to a
toddler and is within walking distance of the toddler’s home, on its own, is insufficient to tie a
search of the yard to the exigency of the missing toddler. Instead, Kendall proposes a different
rule: that an exigency-based search of a yard for a missing toddler is constitutional only if there
is a reasonable basis, aside from access and proximity, to believe the toddler is in that particular
yard, as opposed to any other accessible yard within walking distance.
Kendall’s interpretation is not borne out by the case law, nor does it comport with the
realities of on-the-ground police work. In support of his proposed rule, Kendall cites a line from
United States v. Gambino-Zavala, where the Tenth Circuit framed the exigency exception as
requiring that “the government must show the officers reasonably believed a person inside the
home was in immediate need of aid or protection.”18 Kendall seizes on this reference to the
home to support his interpretation that Olsen was required to make a home-by-home
determination of whether the toddler was likely to be in that particular home, rather than merely
relying on the fact that a home was one of many accessible to and within walking distance of the
missing child.
The court disagrees. Gambino-Zavala focused on the home because in that case, the
exigency was limited to one home; a neighbor heard gunshots in a particular unit, and officers

18

539 F.3d 1221, 1225 (10th Cir. 2008) (emphasis added).
10

subsequently searched that unit to determine if anyone inside was injured.19 Nothing in
Gambino-Zavala, or in Tenth Circuit law in general, purports to require the narrow focus
Kendall proposes. Indeed, the Tenth Circuit used to require something similar—a “reasonable
basis, approaching probable cause, to associate the emergency with the place to be searched”—
but in 2006 replaced it with the more general requirement that “the manner and scope of the
search [must be] reasonable.”20
This general reasonableness requirement reflects the reality that not all exigencies are
neatly confined to one home. To be sure, in the case of a neighbor reporting gunshots from a
particular home, the “locations where a victim might likely be found” may well be limited to that
one home.21 But in cases like this one, where a child has been missing for an hour, the child
might likely be found anywhere within a several-block radius. The Tenth Circuit’s
reasonableness requirement accommodates this reality by recognizing that when a genuine and
significant exigency spans a large area, a somewhat broader geographical search may be
warranted.
This simple proposition is lost in Kendall’s proposed rule. Indeed, Kendall’s strict
interpretation of the exigency exception—which would require officers to determine, at each
home, whether there’s reason to believe the child is actually there, as opposed to any other
home—would all but end police assistance in missing child cases like this one, where officers
know little more than where the child was last seen and how long he has been missing. Armed
only with this information, there is no reason, for example, to believe the child is any more likely

19

Id. at 1224.
Najar, 451 F.3d at 718.
21
Id. at 720.
20

11

to be in an open backyard on the north side of the child’s home than he is to be in an open
backyard on the south side of the home. According to Kendall, that means neither gets searched.
That doesn’t comport with what we expect of officers urgently looking for missing children, and
is not reflected in the law.
This is not to say, as Kendall’s attorney suggested at oral argument, that all Fourth
Amendment rights go out the window for any home within walking distance of and accessible to
the missing toddler. Quite the contrary—even after establishing the reasonable geographic scope
of a search, the Fourth Amendment still demands that the manner of searching any home within
that area also be reasonable (meaning the intrusion is no greater than necessary). This reflects
the understanding that even among protected Fourth Amendment areas, the intrusiveness of a
search can vary greatly. A sweep of the curtilage is less intrusive than breaking down a locked
door and searching a living room, which is less intrusive than rummaging through a closet in the
bedroom, and so forth. The Fourth Amendment cabins the intrusiveness of any search by
demanding that the manner of the search be reasonable.
And like scope, what is reasonable in terms of manner will vary depending on the nature
of the exigency. While it is reasonable for police to forcefully enter and search a home after
reports of gunfire in that home,22 nobody contends that Olsen could have barged into and
searched any home within a fixed radius of the missing toddler. Given the nature of the exigency
in this case—a missing, noncommunicative toddler—and the scope of the search—a severalblock radius—it was reasonable to knock on doors and briefly sweep open backyards where a
toddler may have ventured. Olsen was not free to break into homes and ransack bedrooms.

22

See Gambino-Zavala, 539 F.3d at 1225–26.
12

Indeed, contrary to Kendall’s contention, the court’s holding does not imply that Olsen had
“virtually unbounded authority to enter into and search people’s private homes . . . [across] the
Wasatch Front, or perhaps beyond.” Rather, the court holds only that where a nonverbal toddler
has been missing from his home for over an hour, it is reasonable, within walking distance of the
missing toddler, for officers to knock on doors and conduct a quick sweep of open backyards
into which the toddler may have wandered.
In sum, the court concludes that even if Olsen’s warrantless sweep of Kendall’s backyard
was a Fourth Amendment search, it was not unconstitutional because it was justified by exigent
circumstances. And even in the event it was an unconstitutional search, Olsen would be entitled
to qualified immunity because his mistake as to what the law requires would be reasonable. On
this point Kendall has the burden of pointing to Tenth Circuit or Supreme Court case law that
would put a reasonable officer on notice that when a nonverbal toddler is missing, a searching
officer must have a reason, aside from mere proximity, for quickly sweeping any open and
accessible nearby backyard. Kendall has provided no such authority. Thus, summary judgment
on Kendall’s claims related to Olsen’s search is granted in Defendants’ favor, both on the basis
that no constitutional violation occurred and that Olsen is entitled to qualified immunity.
III.

The Seizure

Kendall also contends that Olsen’s shooting of his dog was an unconstitutional seizure
under the Fourth Amendment. The Fourth Amendment prohibits unreasonable seizures.23 And
nobody disputes that Olsen’s shooting of Kendall’s dog was a seizure.24 Thus, the only question

23

See U.S. Const. amend. IV; see also Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179,
1188 (10th Cir. 2001).
24
See Dkt. 35 at 34; see also Dziekan v. Gaynor, 376 F. Supp. 2d 267, 270 (D. Conn. 2005)
13

is whether the shooting was reasonable in view of the facts presented. In this context,
reasonableness turns on weighing the intrusiveness of the seizure against the government’s
reason for doing it.25 Put simply, the less intrusive the seizure and the more compelling the
government’s justification for it, the more likely it is to be constitutional.
The intrusion here was quite serious. While Fourth Amendment seizures generally
involve property, this case involved a dog, and courts have recognized that most dog owners
“think of dogs solely in terms of an emotional relationship, rather than a property relationship.”26
Thus, when a dog is seized—and especially, as here, where it is killed, not merely injured or
detained—the intrusion on the owner weighs heavily in favor of finding the seizure unreasonable
and unconstitutional.
On the other side of the equation is officer safety, also a weighty concern. Officers face a
changing array of threats daily. Among these threats are dogs, some of which “may harass or
attack people,” and “maim or even kill.”27 Thus, while many dogs pose no serious threat to
officers, some do, and because officers are often forced to make split-second judgments about
the threat a particular dog poses, their ability to effectively protect themselves also weighs
heavily in the legal reasonableness calculus.
Courts have found a balance between the rights of dog owners and the interests of officer
safety by implementing a simple rule: an officer’s killing of a dog is reasonable only if the dog

(“Courts have consistently recognized that a law enforcement officer’s killing of a pet dog
constitutes a destruction of property and therefore a seizure under the Fourth Amendment.”).
25
Graham v. Connor, 490 U.S. 386, 396 (1989).
26
Altman v. City of High Point, N.C., 330 F.3d 194, 205 (4th Cir. 2003).
27
Id.
14

poses an “imminent threat.”28 Whether a dog poses an imminent threat is judged “from the
perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight.”29
In other words, the question is not whether the dog, in retrospect, actually posed an imminent
threat, but instead whether a reasonable officer on the scene would perceive it that way.
In this case, the uncontradicted evidence demonstrates that a reasonable officer in Olsen’s
position would conclude that Kendall’s dog posed an imminent threat when it aggressively
charged Olsen while simultaneously barking loudly and baring its teeth. That evidence consists
entirely of Olsen’s testimony about the event, because he was the only one to witness it. In his
police report, written hours after the incident, Olsen reported that he “saw a large gray dog
running towards [him] and barking loudly,” and that he “believed the dog was about to bite
[him].”30 In his deposition, he testified that “the dog had a very mean demeanor,” its “ears were
back, the tail[] w[as] straight, the teeth were bared, it was snarling, barking loudly and actually
running towards [him].”31 Olsen testified that in the moment before he pulled the trigger the dog
“was leaping towards [him].”32 Given this testimony, a reasonable officer could conclude that
the 90-pound Weimaraner posed an imminent threat.

28

See Branson v. Price, No. 13-cv-03090-REB, 2015 WL 5562174, at *6–7 (D. Colo. Sept. 21,
2015) (listing cases). It does not appear that the Tenth Circuit or the Supreme Court has weighed
in on the proper standard in this circumstance, but as Branson demonstrates, the clear consensus
among courts of appeal is that an officer may reasonably kill a dog that presents an imminent
threat. Id. (examining cases from the Third, Seventh, Eighth, and Ninth Circuits, and finding no
circuit decision to the contrary).
29
Graham, 490 U.S. at 396.
30
Dkt. 46, Ex. (A)(2)(1).
31
Dkt. 63, Ex. (A)(2) at 93.
32
Id. at 97.
15

Kendall takes issue with this conclusion for several reasons. First, he contends that
various inconsistencies in Olsen’s testimony render him not credible and his testimony not
believable. These inconsistencies include: (1) Olsen testified he may have heard his partner ring
Kendall’s doorbell, while his partner testified that he knocked on the door; (2) Olsen testified he
heard a doorbell and knocking from his location at Gate B, but Kendall submits that was too far
from the front door to hear knocking or a doorbell; (3) Olsen testified he waited to enter the
backyard until it appeared that nobody would answer the door, but his partner testified that he
heard gunshots shortly after he started knocking; and (4) Olsen at times reported that it took
about thirty seconds to check the backyard and at other times testified it took about a minute and
a half. The court finds that these are relatively minor inconsistencies that might be expected of a
person trying to describe a dynamic and quickly evolving situation. They are not material
inconsistencies sufficient to give rise to an inference that Olsen is deliberately lying or that his
recollection of key events is suspect. Because no reasonable jury could find Olsen not credible
based on his statements in the record before the court, Kendall has failed to raise a triable issue
of fact to defeat summary judgment.
Kendall also argues that even taking Olsen’s testimony at face value, a reasonable officer
could not conclude based on those facts that he faced an imminent threat. Kendall first contends
that “Olsen had no lawful reason to be in [the] yard in the first place.”33 That argument
addresses whether the search was reasonable, and the court already concluded that it was. He
next argues that Olsen invited the attack because he “recklessly started running as soon as he

33

Dkt. 45 at 83.
16

heard [the] bark, which anyone should know would simply provoke a dog to run after him.”34
An officer’s split-second decision to make a break for the gate to escape or avoid a
confrontation, rather than standing his ground to face a charging 90-pound dog, is not
unreasonable. Moreover, Olsen did ultimately try the tactic Kendall now suggests he should
have taken: Olsen testified he first attempted to retreat, but then, realizing the dog would beat
him to the fence, turned and “tried standing [his] ground and taking a more dominant stance,
broadening [his] shoulders and stomping [his] foot, in an attempt to ‘call [the dog’s] bluff,”35 but
to no avail.
Kendall also argues that Olsen should have known that Weimaraners are typically
“friendly, warm, kind dogs who do not bite without being cornered.”36 While this may well be
so, it tells the court nothing about how this Weimaraner acted on this specific occasion. Just as
breeds with reputations for being dangerous or aggressive may act in friendly or docile ways in
many circumstances, so too can dogs typically thought to be warm and docile act aggressively at
times. Regardless, officers are not charged with developing specific expertise in the nuances
between breeds. To be sure, had Olsen been greeted with a 5-pound Pomeranian the analysis
would be different, but he was confronted with a large, 90-pound dog, and it was reasonable to
assume the charging dog posed a threat. In the same vein, Kendall argues that this particular dog
was friendly and nonaggressive, as demonstrated by testimony of Kendall’s sister and neighbor.
This testimony may be relevant to whether Kendall’s dog in fact posed a threat to Olsen, but
that’s not the question the court must answer; the question presented for Fourth Amendment

34

Id. at 84.
Dkt. 36 at 4.
36
Dkt. 45 at 85.
35

17

purposes is whether a reasonable officer on the scene would believe the dog posed an imminent
threat. A reasonable responding officer would not be expected to know anything about
Kendall’s dog’s history, and would instead be expected to act reasonably based on the facts in
front of him. Those facts—which, again, are not in dispute—are that a 90-pound dog charged
Olsen while barking aggressively.37
Last, Kendall argues that Olsen acted unreasonably because he did not first try to use
lesser force, like his baton, his boot, or his taser. But the law does not require officers to try
varying degrees of nonlethal force before turning to lethal force. Indeed, “an officer need not use
the least harmful alternative in dealing with a dangerous situation in which officer safety is an
issue.”38 This is so even where, in retrospect, a lower degree of force may have been sufficient.
The standard is not what a lawyer, or a judge, or anybody scrutinizing the situation with the
benefit of retrospective deliberation would have done. The standard is what a reasonable officer
on the ground in the moment would have done, an officer who is “forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.”39 In this case, a reasonable officer could
conclude that lethal force was required.

37

See, e.g., Williams v. Voss, No. CIV. 10-2092 ADM/TNL, 2011 WL 4340851, at *4 (D. Minn.
Sept. 15, 2011) (no genuine issue of fact about whether dog was aggressive where officer’s
“sworn affidavits stat[ed] that the dog charged at them aggressively” and plaintiff had “no
specific evidence to refute that assertion” because other witnesses “could not see the dog at the
time it was shot”).
38
McCarthy v. Kootenai Cty., No. CV08-294-N-EJL, 2009 WL 3823106, at *6 (D. Idaho Nov.
12, 2009).
39
Graham, 490 U.S. at 396–97.
18

When presented with what appears to be an imminent threat, an officer need not wait to
be mauled or attacked before employing force in self-defense. Kendall has not demonstrated that
Olsen’s actions deviated from a what a reasonable officer would have done. And even if Olsen’s
actions were unreasonable—that is, even if the shooting was an unconstitutional seizure—Olsen
would be entitled to qualified immunity because a reasonable officer would not be on notice that
shooting a 90-pound dog that is running toward him and barking, with no time for the officer to
escape, would violate the Fourth Amendment. Defendants’ Motion for Summary Judgment on
the Fourth Amendment claim against Olsen is granted.
IV.

The Claims Against the City and Lieutenant Purvis

In addition to his claim against Olsen, Kendall brought a claim against the City alleging,
in essence, that if Olsen violated the Constitution, so too did the City because it had policies or
practices in place that permitted or encouraged Olsen to act unconstitutionally. Because the
court has now determined that Olsen did not violate the Constitution, neither did the City.
Similarly, Kendall brought a claim against Lieutenant Purvis (the officer who ordered Olsen to
canvass the neighborhood) alleging that Purvis has liability for any constitutional violation Olsen
committed while conducting the canvass because Purvis ordered Olsen to do it. Again, because
the court determined Olsen committed no constitutional violation, neither did Purvis. The court
grants Defendants’ Motion for Summary Judgment on the federal constitutional claims against
the City and Purvis.
V.

The State Law Claims

Having dismissed all of Kendall’s federal claims, the court must now decide what to do
with his remaining state law claims. This is a court of limited jurisdiction, meaning it is

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authorized to hear only certain types of claims.40 Generally, state law claims are not among
those the court can decide, unless certain conditions are met. The condition that allowed the
state claims to initially go forward in this case was that they were related to the federal
constitutional claims, over which this court does have jurisdiction.41 As discussed above, those
claims are now dismissed. The court in some instances may continue to hear associated state
claims, notwithstanding dismissal of the federal claims, but this is disfavored.42 Indeed, the
Tenth Circuit has made clear that after dismissing federal claims, “the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.”43 Given this guidance
from the Tenth Circuit, and given Utah’s interest in the remaining legal issues arising under state
law, the court declines to exercise supplemental jurisdiction over Kendall’s remaining state
claims. Those claims are remanded back to state court.
CONCLUSION
This case is tragic on several levels. Parents feared their child missing, officers urgently
responded, and Kendall lost his beloved companion animal. The court is mindful of the strong
reactions this case has aroused among animal owners, parents, law enforcement, and community
members. The case has exposed tensions that can arise between important competing interests,
and the court has done its best to resolve these tensions while constraining its analysis to the
facts presented by the parties and the established law.

40

See Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015).
See 28 U.S.C. § 1367.
42
See Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011).
43
Id. (quoting Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir.
1998)).
41

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For the reasons stated above, the court concludes that Kendall has failed to establish
either an unconstitutional search or seizure under the Fourth Amendment. But even if Officer
Olsen’s search or the shooting of Kendall’s companion pet amounted to a violation of a
constitutional protection, Kendall has failed on the record before the court to establish that the
law concerning officer conduct at the time was clearly established—providing fair notice to
reasonable officers under similar circumstances that Officer Olsen’s conduct was
unconstitutional. The court awards summary judgment to Olsen, Purvis, and the City on
Kendall’s federal constitutional claims. The case is remanded back to state court to resolve
Kendall’s state law claims.
DATED this 17th day of February, 2017.
BY THE COURT

______________________________________
Honorable Robert J. Shelby

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