The Browns were moving out on the morning of April 28, 1998. Kim was packing upstairs; David was loading the car. Immi, their three-year-old Rottweiler, was in the fenced yard of their home in a residential section of Reading, Pennsylvania. She wore a bright pink collar an inch wide, hung with tags: rabies, microchip, a guardian angel tag, and an ID tag with the family's address and phone number. Unknown to the Browns, the latch on the back gate had failed.
Immi wandered into the adjacent parking lot. A stranger sitting in a parked car watched her sniff and walk casually near the fence for three or four minutes before she approached the sidewalk. Officer Robert D. Eberly of the Muhlenberg Township Police Department was passing in his patrol car. He pulled over, parked across the street, and approached her, clapping his hands and calling out. Immi barked several times, then withdrew, circling a vehicle about twenty feet from the curb.
Eberly crossed into the lot and stopped ten to twelve feet from her. On the account the U.S. Court of Appeals for the Third Circuit accepted in reviewing summary judgment — the facts read most favorably to the Browns — Immi was stationary, not growling or barking. The stranger said she "did not display any aggressive behavior towards [Officer Eberly] and never tried to attack him."
Kim Brown looked out of an open, screened window fifty feet away and saw officer and dog facing one another. Eberly reached for his gun. She screamed as loudly as she could, "That's my dog, don't shoot!" Her husband came running from the back of the house. Eberly hesitated a few seconds, then pointed the gun. Kim tried to break through the screen, screaming, "No!"
He fired five shots. Immi fell immediately after the first, and he kept firing as she tried to crawl away. One bullet entered the right side of her neck; three or four entered her hind end. She had lived with the Browns' preschool-aged children for most of her three years and, on the record before the court, had never been aggressive toward anyone.
Muhlenberg officers received no formal training specifically directed to handling dogs, the appeals court noted. They had a policy manual, which authorized pepper spray against attacking dogs, permitted a firearm to kill a "dangerous animal," and instructed that whenever possible the owner be contacted and written permission obtained first. In his deposition, Eberly said he had killed dogs on four prior occasions in a sixteen-year career; one, in about 1988, drew an excessive-force complaint.
That manual, the panel wrote, was "inconsistent with Officer Eberly's conduct" — and that is why the claim against the township failed. The court affirmed summary judgment for the township, its Board of Supervisors, and two chiefs of police, finding no policy, no custom, and no failure to train amounting to deliberate indifference. The written rule was enough; that no officer had been trained to follow it was not.
As to the officer, the panel held that killing a person's dog is a seizure under the Fourth Amendment, that this shooting "could be found to be an unreasonable seizure," and that Eberly "has not established that he is entitled to qualified immunity." That is not a finding of liability; it means the Fourth Amendment and emotional-distress claims could proceed. Animal People reported the panel ruled 2-1 and that the decision reinstated the Browns' case. The holding binds only courts within the Third Circuit. The sources report no discipline against Eberly, no criminal charge, and no payment to the Browns.