U.S. Court of Appeals for the Tenth Circuit, 0916 COBJ, Vol. 45, No. 9 Pg. 117


45 Colo.Law 117

U.S. Court of Appeals for the Tenth Circuit

Vol. 45, No. 9 [Page 117]

The Colorado Lawyer

September, 2016

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on “Opinions/Rules/Statutes”).

No. 15-3074. Mayfield v. Bethards. 06/20/2016. D.Kan. Judge McHugh. Pet Dogs—Constitutional Rights—Qualified Immunity—Effects—Dogs Are Personal Property—Adequacy of Complaint.

Plaintiffs sued a police deputy for killing their pet dog, claiming a violation of their Fourth Amendment rights. They alleged that the deputy shot and killed their dog while it was lying in their front yard. The deputy moved to dismiss on qualified-immunity grounds. The district court denied the motion, and the deputy appealed.

Qualified immunity protects government officials from suit for civil damages if their conduct does not violate clearly established statutory or constitutional rights. The Tenth Circuit noted that the Fourth Amendment protects people against unreasonable searches and seizures of, among other things, their effects. The deputy asserted that dogs are not “effects,“ so there was no constitutional violation. The Tenth Circuit disagreed, stating that “effects” is equated with personal property and Kansas recognizes that dogs are their owners’ personal property. Therefore, killing a dog violates the Fourth Amendment, absent a warrant or an exception to the warrant requirement.

The deputy also asserted that killing the dog was reasonable under the circumstances because he believed the dog had attacked livestock. The Tenth Circuit rejected this claim. The issue here was whether plaintiffs’ complaint was adequate. The complaint alleged that a different dog had attacked the livestock. Thus, the complaint alleged facts that, if true, could support a constitutional violation.

The judgment was affirmed.

No. 14-1322. Nelson v. United States. 06/28/2016. D.Colo. Chief Judge Tymkovich. Personal Injury —Colorado Recreational Use Act—Federal Tort Claims Act—Negligent Maintenance—Objective Standard—Permissive User—No Liability.

Plaintiff was seriously injured in a...

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