Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2001

Brown v. Muhlenberg Twp
Precedential or Non-Precedential:

Docket 00-1846




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Filed October 11, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-1846

KIM BROWN; DAVID BROWN, H/W
Appellants

v.

MUHLENBERG TOWNSHIP; BOARD OF SUPERVISORS OF
MUHLENBERG TOWNSHIP; MUHLENBERG TOWNSHIP
POLICE DEPARTMENT; ROBERT M. FLANAGAN,
individually and/or as Chief of Police of Muhlenberg
Township; ROBERT D. EBERLY, individually and/or as
Patrolman of Muhlenberg Township; HARLEY SMITH,
individually and/or as Chief of Police of
Muhlenberg Township

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 99-cv-01076)
District Judge: Honorable John P. Fullam

Argued May 15, 2001

BEFORE: SCIRICA, GARTH and STAPLETON,
Circuit Judges

(Opinion Filed: October 11, 2001)
Thomas A. Whelihan
Reger & Rizzo
800 Kings Highway North -
 Suite 203
Cherry Hill, NJ 08034
 and
Deirdre A. Agnew (Argued)
1450 East Boot Road
West Chester, PA 19380
 Attorneys for Appellants

Enger McCartney-Smith (Argued)
Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
 Attorney for Amicus Curiae
Animal Legal Defense Fund

Anthony R. Sherr (Argued)
Mayers, Mennies & Sherr
3031 Walton Road, Building A,
 Suite 330
P.O. Box 1547
Blue Bell, PA 19422
 and
L. Rostaing Tharaud (Argued)
Marshall, Dennehey, Warner,
 Coleman & Goggin
1845 Walnut Street - 16th Floor
Philadelphia, PA 19103
 Attorneys for Appellees

                        2
OPINION OF THE COURT

STAPLETON, Circuit Judge:

This is a civil rights action arising out of the shooting of
a pet dog. The plaintiffs/appellants are Kim and David
Brown, the owners of the pet. Police Officer Robert Eberly
is alleged to be the primary constitutional tortfeasor. Officer
Eberly's employer, Muhlenberg Township, its Board of
Supervisors, and two of its Chiefs of Police are also alleged
to be responsible for Officer Eberly's constitutional torts on
various theories. Additionally, the Browns assert a state law
claim. The District Court granted summary judgment to the
defendants on all claims.

We first address the facts and law concerning whether a
constitutional violation occurred. We then examine whether
the defendants other than Officer Eberly share
responsibility for any constitutional violations that may
have occurred. Finally, we focus on the state law claim.
Because this case comes to us on appeal from the District
Court's grant of summary judgment to the defendants, we
view the facts in the light most favorable to the Browns,
drawing every reasonable inference in their favor. See
Beers-Capitol v. Whetzel, 

, 130 n.6 (3d Cir.
2001).

I. FACTS

The Browns lived in a residential section of Reading,
Pennsylvania. On the morning of April 28, 1998, they were
in the process of moving. Kim was upstairs packing, while
David was loading the car. Immi, their three year old
Rottweiler pet, had been placed in the Browns' fenced yard.
Although the Browns had not secured a dog license for her,
Immi wore a bright pink, one inch wide collar with many
tags: her rabies tag, her microchip tag, a guardian angel
tag, an identification tag with the Browns' address and
telephone number, and the Browns' prior Rottweiler's
lifetime license. Unbeknownst to the Browns, the latch on
the back gate of their fence had failed, and Immi had
wandered into the adjacent parking lot beyond the fence.

                                3
A stranger parked in the lot observed Immi as she
wandered about in it. After three or four minutes of sniffing
and casually walking near the fence, Immi approached the
sidewalk along the street on which the Browns lived. As she
reached the curb, Officer Eberly was passing in his patrol
car. Seeing Immi, he pulled over, parked across the street,
and approached her. He clapped his hands and called to
her. Immi barked several times and then withdrew, circling
around a vehicle in the parking lot that was approximately
twenty feet from the curb. Having crossed the street and
entered the parking lot, Officer Eberly walked to a position
ten to twelve feet from Immi. Immi was stationary and not
growling or barking. According to the stranger observing
from his car, Immi "did not display any aggressive behavior
towards [Officer Eberly] and never tried to attack him."

At this point, Kim Brown looked out of an open, screened
window of her house. She saw Officer Eberly not more than
fifty feet away. He and Immi were facing one another.
Officer Eberly reached for his gun. Kim screamed as loudly
as she could, "That's my dog, don't shoot!" Her husband
heard her and came running from the back of the house.
Officer Eberly hesitated a few seconds and then pointed his
gun at Immi. Kim tried to break through the window's
screen and screamed, "No!"

Officer Eberly then fired five shots at Immi. Immi fell to
the ground immediately after the first shot, and Officer
Eberly continued firing as she tried to crawl away. One
bullet entered Immi's right mid-neck region; three or four
bullets entered Immi's hind end.

Immi had lived with the Browns pre-school aged children
for most of her three years and had not previously been
violent or aggressive towards anyone.

Based on these facts and the reasonable inferences that
can be drawn from them, we are thus faced with a situation
in which a municipal law enforcement officer intentionally
and repeatedly shot a pet without any provocation and with
knowledge that it belonged to the family who lived in the
adjacent house and was available to take custody.

                                4
II. OFFICER EBERLY

A. Unreasonable Seizure

The Browns claim that Officer Eberly violated their
constitutionally secured right to be free from unreasonable
governmental seizures of their property. The Fourth
Amendment to the United States Constitution, made
applicable to the states by the Fourteenth Amendment,
provides that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . ." The
people's "effects" include their personal property. See United
States v. Place, 

, 701 (1983) (detention of
luggage held to be a Fourth Amendment seizure). A Fourth
Amendment "seizure" of personal property occurs when
"there is some meaningful interference with an individual's
possessory interests in that property." United States v.
Jacobsen, 

, 113 (1984). Destroying property
meaningfully interferes with an individual's possessory
interest in that property. See 

"[T]he
destruction of property by state officials poses as much of
a threat, if not more, to people's right to be `secure . . . in
their effects' as does the physical taking of them." Fuller v.
Vines, 

, 68 (9th Cir. 1994).

The Browns had a possessory interest in their pet. In
Pennsylvania, by statute, "All dogs are . . . declared to be
personal property and subjects of theft." 3 Pa. Cons. Stat.
Ann. S 459-601(a). See Miller v. Peraino , 

, 640
(Pa. Super. Ct. 1993); Daughen v. Fox, 

, 864
n.4 (Pa. Super. Ct. 1988).1 It necessarily follows that Immi
was property protected by the Fourth Amendment and that
Officer Eberly's destruction of her constituted a Fourth
Amendment seizure. Accordingly, we join two of our sister
courts of appeals in holding that the killing of a person's
dog by a law enforcement officer constitutes a seizure
_________________________________________________________________

1. Officer Eberly argues that an unlicensed dog under Pennsylvania law
is as a matter of law an abandoned dog. We find no authority for this
proposition and, accepting the evidence tendered by the Browns, are
unpersuaded that Immi should be regarded as having been abandoned.

                               5
under the Fourth Amendment. 

; Lesher
v. Reed, 

, 150-51 (8th Cir. 1994).

To be constitutionally permissible, then, Officer Eberly's
seizure must have been "reasonable." "In the ordinary case,
the [Supreme] Court has viewed a seizure of personal
property as per se unreasonable within the meaning of the
Fourth Amendment unless it is accomplished pursuant to
a judicial warrant issued upon probable cause and
particularly describing the items to be seized." 

. Where the governmental interest justifying a
seizure is sufficiently compelling and the nature and extent
of the intrusion occasioned by the seizure is not
disproportionate to that interest, the seizure may be
reasonable even though effected without a warrant. Thus,
when the state claims a right to make a warrantless
seizure, we "must balance the nature and quality of the
intrusion on the individual's Fourth Amendment interests
against the importance of the governmental interests
alleged to justify the intrusion." 

Even when the
state's interest is sufficiently compelling to justify a
warrantless seizure that is minimally intrusive, the seizure
will be unreasonable if it is disproportionately intrusive.
While the state's interest in drug interdiction, for example,
is sufficient to render reasonable a brief but warrantless
detention of suspicious luggage for a canine "sniff," such
detention for ninety minutes constitutes an unreasonable
seizure under the Fourth Amendment. 

pet is found at large, the state undoubtedly has
an interest in restraining it so that it will pose no danger to
the person or property of others. The dog catcher thus does
not violate the Fourth Amendment when he or she takes a
stray into custody. Moreover, the state's interest in
protecting life and property may be implicated when there
is reason to believe the pet poses an imminent danger.2 In
_________________________________________________________________

2. The state's interest in the protection of life and property undoubtedly
occasioned enactment of 3 P.S. S 459-302(a) which states in relevant
part:

       It shall be the duty of every police officer, State dog warden,
       employee of the department or animal control officer to seize and

                               6
the latter case, the state's interest may even justify the
extreme intrusion occasioned by the destruction of the pet
in the owner's presence.3 This does not mean, however, that
the state may, consistent with the Fourth Amendment,
destroy a pet when it poses no immediate danger and the
owner is looking on, obviously desirous of retaining
custody. Striking the balance required by Place , we hold
that Officer Eberly's destruction of Immi could be found to
be an unreasonable seizure within the meaning of the
Fourth Amendment.

This brings us to Officer Eberly's qualified immunity
defense. Qualified immunity absolves Officer Eberly from
liability and, indeed, from the burdens of defending this
suit, if he can show that a reasonable officer with the
information he possessed at the time could have believed
that his conduct was lawful in light of the law that was
clearly established on April 28, 1998. Anderson v.
Creighton, 

(1987). In order for a right to be
"clearly established," the "contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right." 

While "[t]his is not to say that an official's action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, . . . it is to say
_________________________________________________________________

       detain any dog which is found running at large, either upon the
       public streets or highways of the Commonwealth, or upon the
       property of a person other than the owner of such dog, and
       unaccompanied by the owner. Every police officer, State dog warden,
       employee of the department or animal control officer may humanely
       kill any dog which is found running at large and is deemed after
due
       consideration by the police officer, State dog warden, employee of
       the department or animal control officer to constitute a threat to
the
       public health and welfare.

While Officer Eberly relies on this statute, it would be clearly
inapposite
should the trier of fact credit the evidence that has been tendered by the
Browns.

3. See 

(contrasting the degree of intrusion when
a seizure of personal effects is made "after the owner has relinquished
control of the property to a third party [and when the seizure is] from
the
immediate custody and control of the owner").

                               7
that in the light of pre-existing law the unlawfulness must
be apparent." 

As we have previously noted, the Supreme Court's 1984
decision in United States v. Jacobson reaffirmed the well
established proposition that a Fourth Amendment seizure
of property occurs whenever there is some meaningful
intrusion with an individual's possessory interest in that
property and that destruction of property thus constitutes
a seizure under the Fourth Amendment. Moreover, we
believe that, at least after the enactment of 3 P.S.S 459-601
in 1983, a reasonable law enforcement officer in Officer
Eberly's position would have realized that a person's dog is
his personal property under Pennsylvania law. Finally, we
believe that, based on Place and the cases there reviewed,
a reasonable officer would have understood that it was
unlawful for him to destroy a citizen's personal property in
the absence of a substantial public interest that would be
served by the destruction.

If the facts asserted by the Browns are found to be true,
we conclude that a reasonable officer in Officer Eberly's
position could not have applied these well established
principles to the situation before him and have concluded
that he could lawfully destroy a pet who posed no imminent
danger and whose owners were known, available, and
desirous of assuming custody.4 In other words, it would
_________________________________________________________________

4. If the unlawfulness of the defendant's conduct would have been
apparent to a reasonable official based on the current state of the law,
it is not necessary that there be binding precedent from this circuit so
advising. As we explained in Pro v. Donatucci , 

, 1292 (3d
Cir. 1996) (footnote omitted):

       In Bieregu   v. 

, we noted that "the absence of
       a previous   decision from our court on the constitutionality of the
       conduct at   issue is not dispositive" in determining whether the
       particular   constitutional right at issue was clearly established at
a
       particular time, and stated that the standard "require[s] `some but
       not precise factual correspondence between relevant precedents and
       the conduct at issue,' " 

re City of Philadelphia

) in order to be satisfied. Moreover, Bieregu found law
to
       be clearly established despite a circuit split, as long as "no
gaping
       divide has emerged in the jurisprudence such that defendants could

                                 8
have been apparent to a reasonable officer that shooting
Immi would be unlawful. Accordingly, Officer Eberly has
not established that he is entitled to qualified immunity.5
_________________________________________________________________

        reasonably expect this circuit to rule" to the 

. Thus, the split between the Courts of Appeals for the
Fifth
        and the Fourth Circuits at the time of Donatucci's actions does not
        preclude our deciding that Pro's right to respond to the subpoena
        was clearly established.

In this case, the only court of appeals decisions addressing the relevant
issue, Fuller and Lesher, had reached the conclusion that the state's
killing of a person's dog without a public interest justification
constituted
a Fourth Amendment violation. That unavoidable conclusion was
reached based on a common sense application of the Supreme Court
precedent we have discussed.

Doe v. Delie, 

(3d Cir., July 19, 2001), holds only that
conflicting and materially distinguishable district court decisions did
not
render a right clearly established in the Third Circuit.

5. There is no question but that evidence currently in the record would
support findings of fact under which there would be no Fourth
Amendment violation, and Officer Eberly would be entitled to qualified
immunity in any event. That is not the issue before us, however. If there
is evidence from which a trier of fact could conclude that a
constitutional
violation occurred and that a reasonable officer would have known based
on clearly established law that he was violating the Browns' rights,
summary judgment was inappropriate. See, e.g. , Johnson v. Jones, 

(1995).

Despite its protestations to the contrary, the dissent does not accept
the record evidence in the light most favorable to the Browns and draw
all reasonable inferences in their favor. Contrary to the assertions of
the
dissent, Officer Eberly's testimony that Immi was acting aggressively
before the shooting and that he did not hear Kim Brown claim ownership
before he shot is not undisputed. Kim Brown's testimony would support
a finding that there was no provocation for the shooting, as would the
testimony of the disinterested observer in the parking lot. With respect
to Officer Eberly's knowledge that the dog's owner was available and
anxious to take custody, Russell Yoder, a neighbor of the Browns, gave
the following testimony:

        Q. And what did you hear?

        A. Okay. The things that I heard -- the first thing was, I heard a
woman starting to shout and she was shouting, Don't shoot, don't

                        9
B. Procedural Due Process

Under the Fourteenth Amendment, a state may not
deprive a citizen of his property without affording him due
_________________________________________________________________

         shoot. . . . I really couldn't see anything there. But then I heard
--
         I heard her say, That's my dog, that's my dog, don't shoot. So all
of
         a sudden, right after that there were five shots that just -- they
just
         went bang, bang, bang, bang, bang, bang, and I -- I got down on
         the -- behind my door `cause I didn't know where these shots were
         coming from, . . . .

App. at 449-450.

The District Court was not free to ignore this sworn testimony given
before the Civil Service Commission. It was the equivalent of an affidavit
and while it technically may have been hearsay, so too are affidavits.
Federal Rule of Civil Procedure 56(e) requires only that "supporting and
opposing [sworn statements] be made on personal knowledge, . . . set
forth such facts as would be admissible in evidence, and . . . show that
the [declarant] is competent to testify to the matters stated therein."
The
transcript of Yoder's sworn testimony satisfies all three of these
requirements. See also Williams v. Borough of West Chester Pa., 

(3d Cir. 1989) (holding, on the authority of Celotex v. Catrett,

(1986), that "hearsay evidence produced in a affidavit
opposing summary judgment may be considered if the out-of-court
declarant could later present that evidence through direct testimony,
i.e.,
`in a form that would be admissible at trial.' ") (quoting from 

, n.6).

Moreover, ignoring Yoder's testimony would not change the result. Kim
Brown testified that when she yelled Officer Eberly was in close
proximity and hesitated in apparent response to her shout before
shooting. Her testimony would clearly support a finding that Officer
Eberly was on notice of the Browns' ownership and availability before he
shot. On cross examination, for example, she testified as follows:

         Q. And you believe that you yelled something out?

         A. Yes.

         Q. But you don't know what you yelled?

         A. I believe the first thing I said was, "That's my dog." I'm
almost
positive.

Q. You say you're almost positive. Does that mean you know that
you did that or you're not sure?

                        10
process of law. U.S. Const. amend. XIV, S 1. Property
interests created by state law are protected under that
amendment, see Board of Regents v. Roth, 

(1972), and destruction of such property by the state
constitutes a "deprivation" thereof, see Parratt v. Taylor,

(1981). It follows that Officer Eberly's
destruction of Immi deprived the Browns of their property
and that they were entitled to due process. See 

process that is constitutionally "due" must
be afforded before the deprivation occurs -- the state must
_________________________________________________________________

        A. Not one hundred percent sure.

        Q. What percentage would you give to that?

        A. Ninety percent.

        Q. Why do you have any doubt as to what you yelled?

        A. I don't know what order I said everything in. Again, it happened
        so fast.

        Q. How long after you yelled something did the shooting start?

        A. A few seconds. I thought he hesitated.

        Q. What led you to believe that he hesitated?

        A. There seemed to be quite a few seconds that elapsed between
        me seeing his arm move and seeing the actual gun.

* * *

        Q. Do you know whether or not he heard you yelling?

        A. I don't know what he heard.

        Q. You don't know whether he heard you yelling, right?

        A. No. I don't know what he heard.

        Q. Nothing that you saw or witnessed gave you the impression one
        way or the other whether he heard you yell?

        A. Yes. He hesitated.

        Q. What do you mean by hesitated, what hesitated?

        A. His arm stopped moving for a few seconds. I saw it moving, it
        stopped, then he brought the gun out.
App. at 106-07; App. at 108.

                               11
provide predeprivation process. See Zinermon v. Burch, 

, 127 (1990). When the complained of conduct is
"random and unauthorized" (so that state authorities
cannot predict when such unsanctioned deprivations will
occur), however, the "very nature of the deprivation ma[kes]
predeprivation process impossible." 

In such
situations, postdeprivation process is all that is due. See 

the Browns' suggestion, we conclude that no
predeprivation process was constitutionally required here.
In Hudson v. Palmer, 

(1984), a prison guard
was alleged to have intentionally destroyed noncontraband
personal property of an inmate while conducting an
authorized "shakedown" of his cell. The inmate claimed that
this constituted a deprivation of property without due
process of law in violation of the Fourteenth Amendment.
The Supreme Court held that no predeprivation process
was required and that the state's provision of a
postdeprivation remedy in the form of a suit for damages
provided all the process that was due. With respect to
predeprivation process, the Court found that the guard's
destruction of the property was the "random and
unauthorized conduct of a state employee" and that
"predeprivation procedures [were] simply`impracticable.' "

The inmate, like the Browns, argued that the
state's agent (there, the guard; here, Officer Eberly) could
have provided predeprivation process and was, therefore,
constitutionally required to do so. Rejecting this contention,
the Court observed:

       Whether an individual employee himself is able to
       foresee a deprivation is simply of no consequence. The
       controlling inquiry is solely whether the state is in a
       position to provide for predeprivation process.

. There is no material distinction
between the Browns' case and Hudson.

Hudson is also helpful with respect to the sufficiency of
the postdeprivation process provided to the Browns by
Pennsylvania. At oral argument, the Browns acknowledged
that Pennsylvania afforded them a judicial remedy: a civil
action for conversion. Like the inmate in Hudson , however,
they argue that their state remedy was inadequate because

                               12
the state-employed tortfeasor was protected by sovereign
immunity. This argument fails for the same reason it failed
in Hudson. Pennsylvania law, like the state law in Hudson,
deprives public employees of immunity for intentional torts.
Section 8550 of Pennsylvania's Political Subdivision Tort
Claim Act denies immunity to any public employee when
the court finds that his or her conduct constitutes, among
other things, "willful misconduct." "Willful misconduct" in
this context "has the same meaning as the term`intentional
tort.' " Delate v. Kolle, 

, 1221 (Pa. Commw.
Ct. 1995); see also Kuzel v. Krause, 

, 859 (Pa.
Commw. Ct. 1995). Viewing the facts in the light most
favorable to the Browns, they were afforded postdeprivation
judicial process by the law of Pennsylvania, and such
process was all that was due. Summary judgment was
properly entered against the Browns on their procedural
due process claim.

Because the civil rights act liability of the remaining
defendants is predicated on there being a constitutional
violation committed by Officer Eberly, we will hereafter
confine our discussion to civil rights liability in connection
with the possible Fourth Amendment violation.6

III. THE TOWNSHIP AND ITS SUPERVISORS

Regardless of the nature of underlying right alleged to
have been aggrieved, Muhlenberg Township and its Board
of Supervisors can be liable for any constitutional
_________________________________________________________________

6. At the conclusion of the argument section of the Browns' brief devoted
to their procedural due process argument, they assert in conclusory
fashion that Officer Eberly's conduct also violated their right to
substantive due process. Because of the cursory treatment of this
contention, we do not regard a substantive due process issue as properly
before us. We note, however, that "not all property interests worthy of
procedural due process protections are protected by the concept of
substantive due process." Reich v. Beharry , 

, 244 (3d Cir.
1989). We know of no authority which clearly establishes that one in the
Browns' position has been deprived of a property interest of the "quality"
required for substantive due process protection. DeBlasio v. Zoning Board
of Adjustment, 

, 600 (3d Cir. 1995). Accordingly, if we were
to assume a substantive due process violation, Officer Eberly would be
entitled to qualified immunity on this claim.

                               13
deprivations suffered by the Browns only if "there is a direct
causal link between a municipal policy or custom and the
alleged constitutional deprivation." City of Canton v. Harris,

, 385 (1989).7 A direct causal link can be
shown in two ways. First, "a body [such as Muhlenberg
Township or its Board of Supervisors] may . . . be sued
directly if it is alleged to have caused a constitutional tort
through `a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body's
officers.' " City of Saint Louis v. Praprotnik, 

,
121 (quoting Monell v. Dept. of Soc. Serv., 436 U.S. 658,690
(1978)). Second, the Browns could establish the requisite
causal link between the constitutional deprivation and a
custom, "even though such a custom has not received
formal approval through the body's official decisionmaking
channels." 

. A"custom, or usage,
of [a] State" for S 1983 purposes"must have the force of law
by virtue of the persistent practices of state officials."
Adickes v. S. H. Kress & Co., 

, 167 (1970). In
either event, the municipality's liability can be predicated
"only [upon] acts for which the municipality itself is
actually responsible . . . ." 

.
"[O]nly those municipal officials who have`final
policymaking authority' may by their actions subject the
government to S 1983 liability." 

v. City
of Cincinnati, 

, 483 (1986)).

The official policy or adopted custom that subjects a
municipality to S 1983 liability may relate to the training of
police officers. A municipality's failure to train its police
officers can subject it to liability, however, "only where [it]
reflects a `deliberate' or `conscious' choice by [the]
municipality -- a `policy' as defined" in Supreme Court
cases. City of 

. Moreover, such
liability arises "only where the failure to train amounts to
deliberate indifference to the rights of persons with whom
the police come into contact." 

of failure to
_________________________________________________________________

7. The requirement that liability rest on a direct causal link between the
municipal policy or custom and the alleged constitutional deprivation
precludes respondeat-superior liability. See Monell v. Dept. of Social
Services, 

, 691 (1978).

                               14
train liability is a narrow one. As the Supreme Court has
explained:

       It may seem contrary to common sense to assert that
       a municipality will actually have a policy of not taking
       reasonable steps to train its employees. But it may
       happen that in light of the duties assigned to specific
       officers or employees the need for more or different
       training is so obvious, and the inadequacy so likely to
       result in the violation of constitutional rights, that the
       policymakers of the city can reasonably be said to have
       been deliberately indifferent to the need.

The Browns have not satisfied their burden of
establishing facts sufficient to support their claim of
municipal liability. They have tendered no evidence of any
official policy endorsing Officer Eberly's conduct. Indeed,
the Township's policy manual spells out a progressive use
of force policy relating to animals that is inconsistent with
Officer Eberly's conduct. The policy states the"[t]he degree
of force [the officer should use] is dependent upon the facts
surrounding the situation the officer faces. Only a
reasonable and necessary amount of force will be used."
The policy authorizes the use of chemical agents, such as
oleoresin capsicum (or "pepper") spray, "for defensive
purposes." The policy explicitly states that"[t]his weapon
may also be used against attacking dogs . . . ." The policy
specifically addressed the use of firearms against animals:

       An officer may use a firearm to kill a dangerous animal
       or terminate the suffering of a critically injured or sick
       animal when other means of disposal are impractical.
       Whenever possible, the owner of the animal to be
       destroyed shall be contacted and written permission
       obtained. In the event the owner cannot be located, the
       identification of any available witnesses who will attest
       to the need to destroy the animal will be recorded by
       the officer. In any case, whenever the shooting of an
       animal is necessary, the shooting must be done
       cautiously to protect and [sic] nearby persons or
       property.

                               15
Nor have the Browns established the existence of an
unconstitutional governmental custom. They argue, in
essence, that Muhlenberg Township and its Board of
Supervisors customarily condoned a practice of employing
excessive force in handling dogs at large. The record,
however, simply will not support an inference that there
was a pattern of such excessive force, much less that the
Board customarily condoned it.

The Browns' evidence also falls far short of establishing
their failure to train claim. To survive summary judgment
on a failure to train theory, the Browns must present
evidence that the need for more or different training was so
obvious and so likely to lead to the violation of
constitutional rights that the policymaker's failure to
respond amounts to deliberate indifference. City of 

. While it is true that Muhlenberg police
officers received no formal training specifically directed to
handling dogs, they did have the guidance of the policy
manual, and we believe a reasonable trier of fact could not
conclude that the need for further guidance was so obvious
as to indicate deliberate indifference on the part of the
Board to the Browns' constitutional rights.

IV. POLICE CHIEFS FLANAGAN AND SMITH

The Browns also allege that Police Chief Robert Flanagan
and Police Chief Harley Smith are responsible for Officer
Eberly's constitutional torts. Their argument is not that
Chief Flanagan or Chief Smith directed Officer Eberly to
deprive the Browns of any constitutionally protected right.
Rather, the Browns focus on the alleged inadequacy of the
Chiefs' supervision.

In Sample v. Diecks, 

, 1118 (3d Cir. 1989),
this court identified the elements of a supervisory liability
claim. The plaintiff must (1) identify the specific supervisory
practice or procedure that the supervisor failed to employ,
and show that (2) the existing custom and practice without
the identified, absent custom or procedure created an
unreasonable risk of the ultimate injury, (3) the supervisor
was aware that this unreasonable risk existed, (4) the
supervisor was indifferent to the risk; and (5) the

                               16
underling's violation resulted from the supervisor's failure
to employ that supervisory practice or procedure. We
emphasized that "it is not enough for a plaintiff to argue
that the constitutionally cognizable injury would not have
occurred if the superior had done more than he or she did."

. Rather, the plaintiff must
identify specific acts or omissions of the supervisor that
evidence deliberate indifference and persuade the court that
there is a "relationship between the `identified deficiency'
and the `ultimate injury.' " 

have not been satisfied with respect to
either Chief of Police. As to Chief Smith, the Browns have
offered no explanation as to how he could be responsible
for a shooting that occurred almost two years after he
retired. As to Chief Flanagan, the Browns have identified
two supervisory practices or procedures he allegedly failed
to employ. The first -- that he failed to train Muhlenberg
police officers on the proper use of force against animals --
must be rejected for the same reason we rejected the
similar claim against the Board of Supervisors. The policy
manual in effect at the time of the shooting gave
instructions on how to handle situations of this kind, and
a reasonable trier of fact could not conclude that the failure
to provide more formal training evidenced deliberate
indifference.

The Browns' second theory is that Chief Flanagan must
have been aware of Officer Eberly's alleged practice of using
excessive force against animals and nevertheless failed to
take appropriate disciplinary action. There is no evidence
that Chief Flanagan had knowledge of any prior excessive
use of force on animals by Officer Eberly, however. Nor is
there any evidence of a pattern of excessive use of such
force by Eberly which would support a finding that Chief
Flanagan should have been aware that Eberly posed a
threat in situations like the one in question. While Officer
Eberly acknowledged during his deposition that he had
killed dogs on four prior occasions during his sixteen year
career, only one of the incidents he recounted produced a
complaint, and the uncontradicted evidence with respect to
the others reveals nothing comparable to the Browns'
version of the facts in the case at bar. In two of these

                               17
incidents, the dog charged either Eberly or a fellow officer.
In the third, a stray dog had been terrorizing the
neighborhood and extended, unsuccessful efforts had been
made to catch it. The only incident that generated a
complaint about excessive use of force by Officer Eberly
against a dog occurred in approximately 1988, some ten
years before the incident giving rise to this suit and more
than eight years before Chief Flanagan assumed office on
July 15, 1996.

We will affirm the District Court's grant of summary
judgment in favor of both Chief Flanagan and Chief Smith.

V. THE STATE LAW CLAIM

The Browns claim that they are entitled to recover from
Officer Eberly for intentional infliction of emotional distress.8
They emphasize that a reasonable trier of fact could
conclude that Officer Eberly, without any justification
whatsoever, shot Immi five times in front of her owner,
deliberately ignoring the fact that the owner was screaming
in protest and pleading with him not to shoot. They also
point to evidence indicating that the experience of observing
the slaughter of her beloved pet exacerbated Kim's pre-
existing post traumatic stress disorder, leaving her with
nightmares, headaches, and severe anxiety.

In Williams v. Guzzardi, 

(3d Cir. 1989), we
predicted that the Supreme Court of Pennsylvania would
recognize the tort of intentional infliction of emotional
distress as described in Restatement (Second) of Torts S 46
(1965). We have found no Pennsylvania case since that time
which alters this view. Section 46 provides in relevant part:9
_________________________________________________________________

8. The Browns argue in their brief that Chiefs Flanagan and Smith are
not entitled to sovereign immunity under Pennsylvania law. They do not
indicate, however, what state tort claim against them was improperly
rejected by the District Court and we cannot hypothesize one that the
record would support. We thus address only the Browns' intentional
infliction of emotional distress claim which is directed only towards
Officer Eberly.

9. Subsection (2) of Section 46 provides as follows:

                               18
         (1) One who by extreme and outrageous conduct
         intentionally or recklessly causes severe emotional
         distress to another is subject to liability for such
         emotional distress, and if bodily harm to the other
         results from it, for such bodily harm.

Accordingly, the elements that the Browns must satisfy
are (1) that Officer Eberly's conduct was extreme and
outrageous, (2) that his conduct caused a person severe
emotional distress, and (3) that he acted intending to cause
that person such distress or with knowledge that such
distress was substantially certain to occur.10 As we have
indicated, the record would clearly support a finding that
Officer Eberly intended to inflict, or knew he would inflict,
severe emotional distress on Kim Brown. Moreover, Officer
Eberly does not challenge the sufficiency of the evidence
tendered by the Browns concerning severe emotional
distress. This leaves the issue of whether the courts of
Pennsylvania would permit a trier of fact to conclude that
Officer Eberly's conduct was extreme and outrageous.
According to the Restatement commentary, conduct is
sufficient to make out a claim for emotional distress if "the
recitation of the facts to an average member of the
_________________________________________________________________

         (2) Where such conduct is directed at a third person, the actor is
         subject to liability if he intentionally or recklessly causes
severe
         emotional distress

         (a) to a member of such person's immediate family who is present
         at the time, whether or not such distress results in bodily harm,
         or

       (b) to any other person who is present at the time, if such
distress
       results in bodily harm.

Contrary to the suggestion of the amicus, we are not persuaded that the
Supreme Court of Pennsylvania would regard this subsection as having
any relevance here.

10. See Comment (i) to S 46 providing in relevant part:

         The rule stated in this Section applies where the actor desires to
         inflict severe emotional distress, and also where he knows that
such
         distress is certain, or substantially certain, to result from his
         conduct.

                                 19
community would arouse his resentment against the actor,
and lead him to exclaim, `Outrageous!' " Restatement
(Second) of Torts S 46, cmt. d.

One Pennsylvania case has recognized an emotional
distress claim in a situation like ours. In Banasczek v.
Kowalski, No. 9009 of 1978, 

(C.P. Luzerne
County Jan. 30, 1979), the plaintiff asserted a claim for
emotional distress stemming from the defendant's shooting
of two of the plaintiff 's dogs. In what appears to have been
a case of first impression in Pennsylvania, the court in
Banasczek held that Pennsylvania recognized the tort of
intentional infliction of emotional distress generally and
then, following the authority of cases from Texas and
Florida, concluded that "the more enlightened view is to
allow recovery for emotional distress in the instance of the
malicious destruction of a pet . . . ." 

Officer Eberly argues in essence that the killing of a pet
under any circumstances would not be recognized by the
Pennsylvania courts as extreme or outrageous. We believe
the Banasczek court was correct in rejecting a similar
contention. Given the strength of community sentiment
against at least extreme forms of animal abuse and the
substantial emotional investment that pet owners
frequently make in their pets, we would not expect the
Supreme Court of Pennsylvania to rule out all liability
predicated on the killing of a pet.

More specifically, we predict that the Pennsylvania courts
would permit a trier of fact to return a verdict for the
plaintiff in an intentional infliction of emotional distress
case where it is shown that a police officer's attention was
called to the severe emotional distress of the pet's owner, he
hesitated before shooting, and he then attempted to fire five
bullets into the pet within the owner's view and without
justification. In such cases, the malicious behavior is
directed to the owner as well as to the pet, with the
potential for serious emotional injury to the owner being
readily apparent. In the relatively few cases where similar
issues have arisen in other jurisdictions, the prevailing view
is consistent with the one we take. See Nelson v. Percy, 

, 1036 (Vt. 1987); Richardson v. Fairbanks N. Star
Borough, 

, 456 (Alaska 1985); LaPorte v.

                                20
Associated Indeps., Inc., 

, 269 (Fla. 1964);
Katsaris v. Cook, 

, 538 (Cal. Ct. App.
1986); Gill v. Brown, 

, 1277-78 (Idaho Ct.
App. 1985); City of Garland v. White, 

, 17
(Tex. Civ. App. 1963)

We find ourselves in disagreement with Officer Eberly's
reading of Daughen v. Fox, 

(Pa. Super. Ct.
1988), and Miller v. Peraino, 

(Pa. Super. Ct.
1993), two Pennsylvania cases involving the death of a pet
in which recovery pursuant to section 46 was denied.
Daughen holds that a veterinarian's negligent operation on
a family pet, without more, was not extreme and
outrageous conduct for purposes of section 46.

Miller stands for the proposition that the defendant must
have intentionally caused a person severe emotional
distress. The vicious beating of the family dog in Miller, if
proven at trial, would by all accounts have been extreme
and outrageous, and we do not read the court in Miller to
disagree. Rather, the Miller plaintiffs failed to allege, much
less produce evidence, that the tortfeasor's heinous acts
against the dog were performed with the intention of
inflicting severe emotional distress on the dog's owners.
This is not so in the case at bar, where the Browns have
produced evidence from which a reasonable trier of fact
could conclude that Officer Eberly shot Immi either
intending to cause Kim Brown severe emotional distress or
with the knowledge that the infliction of such distress on
her would be virtually certain.

Officer Eberly is not entitled to sovereign immunity under
state law with respect to the intentional infliction of
emotional distress claim because the record will support a
conclusion that he acted intentionally.11
_________________________________________________________________

11. We agree with the District Court that Officer Eberly was entitled to
summary judgment with respect to David Brown's intentional infliction
of emotional distress claim. The record indicates that he did not witness
the shooting and would not support a finding that Officer Eberly was
even aware of his existence.

                                21
VI.

The judgment of the District Court in favor of all
defendants except Officer Eberly will be affirmed. The
judgment in favor of Officer Eberly will be reversed, and the
case will be remanded for further proceedings consistent
with this opinion.

                               22
GARTH, Circuit Judge, dissenting and concurring:

The issue that has divided this panel and which should
concern every judge, every police officer and every official
who claims qualified immunity by virtue of his or her office
is: how do we determine the second prong of the qualified
immunity doctrine -- i.e., when is the constitutional right
which is claimed to have been violated clearly established
so as to visit liability on the official?

Distressingly, the majority opinion fails to announce a
standard by which the bench and the bar can test whether
a particular legal principle -- that is the particular
constitutional right -- is "clearly established" for purposes
of qualified immunity. I strongly urge that in deciding this
second prong, at the least a balancing process should be
undertaken whereby the factors to be balanced are:

       (1) Was the particular right which was alleged to have
       been violated specifically defined, or did it have to
       be constructed or gleaned from analogous general
       precepts? See Wilson v. Layne, 

       (1999).

       (2) Has that particular right ever been discussed or
       announced by either the Supreme Court or by this
       Circuit?

       (3) If neither the Supreme Court nor this Circuit has
       pronounced such a right, have there been
       persuasive appellate decisions of other circuit
       courts -- and by that I mean more than just one
       or two -- so that the particular right could be said
       to be known generally?

       (4) Were the circumstances under which such a right
       was announced of the nature that an official who
       claimed qualified immunity would have, acting
       objectively under pre-existing law, reasonably
       understood that his act or conduct was unlawful? 1
_________________________________________________________________

1. The Second Circuit has at least crafted a standard against which the
second prong of the qualified immunity analysis can be tested. That
standard is similar to the one I have just suggested. See Horne v.
Coughin, 

, 29 (2d Cir. 1998).

                               23
Tested by these factors, it is clear to me that Officer
Eberly, when he shot and killed the Brown's Rottweiler
which was unleashed, uncontrolled, barking and presenting
an aggressive appearance, could not have reasonably
understood that his act was unlawful. As such, he is
entitled to qualified immunity and the District Court's
judgment should be affirmed.

I

I concede that it is not an easy task to determine when
a right is clearly established. The precedents (with some
exception), measured by the standard outlined above,
would agree that breaking into a home without a warrant
would offend Fourth Amendment rights. Accordingly, that
right is clearly established. Similarly, the precedents would
agree that inducing a coerced confession violates a
defendant's Fifth Amendment rights. Accordingly, that right
is clearly established. By the same token, the precedents
would agree that torturing a prison inmate violates the
Eighth Amendment. Accordingly, that right is clearly
established. But -- I do not know of any precedent or any
judge, other than the members of the majority, who can
responsibly hold that even if the Fourth Amendment is
violated by a police officer shooting an unleashed,
uncontrolled, barking Rottweiler which, as I point out in
note 4 (infra), is an aggressive and possibly threatening
large animal (certainly not a pussycat!), that such a right,
if there is one, has been clearly established in any
jurisdiction, let alone in this Circuit.

A. Specifically Defined

Can it really be held that the Fourth Amendment"seizure
of property" right was readily and generally known to apply
to the shooting of a Rottweiler which was loose on the
street? Can we really say that this particular Fourth
Amendment principle was defined with particular specificity
and was therefore clearly established for purposes of
qualified immunity? I am aware of no authority which
defines the principle with sufficient particularity so as to
make it applicable to the situation here.

                               24
B. Lack of Binding Precedent

Can we really hold that the decisional law of the Supreme
Court and this Court effectively equates the two concepts
discussed above? Or -- that Fourth Amendment principles
of either court have at any time been applied to the
shooting of an animal such as the Brown's Rottweiler under
the circumstances faced by Officer Eberly? The majority
has furnished us with no such authority and I know of
none.

C. Absence of Out-of-Circuit Authority

Well then, can we look at other appellate decisions that
are relevant -- if not on-point, at least near the point --
and which are persuasive? As I explain later in referring to
Lesher v. Reed, 

, 150 (8th Cir. 1994), and Fuller
v. Vines, 

(9th Cir. 1994) (see text at 31-32,
infra), neither of those cases is relevant, neither case is on-
point, neither case involves the same circumstances, and
neither case can be applied here in the context of Officer
Eberly's actions. Needless to say, neither case is
persuasive.

D. Pre-Existing Law

Are there then cases under pre-existing law which would
have or should have been known to Eberly, leading to his
reasonable understanding that by shooting the dog which
confronted him, he was doing something unlawful? If there
are such cases, we have not been informed of them by the
majority and I have not been able to find any.

II

In determining whether a legal principle is "clearly
established," if we cannot look to state law, as we cannot,
see Doe v. Delie, 

(3d Cir. July 19, 2001)
("officials do not forfeit qualified immunity from suit for
violation of a federal constitutional right because they failed
to comply with a clear state statute.") (citations omitted),
and we cannot look to district court opinions or to other
circuit pronouncements even if they are relevant (and those

                                25
cited by the majority are not, see text at 31-32, infra), 

in the Third Circuit have never addressed this issue
in the present context, then how can we possibly expect a
police officer such as Eberly to understand that he would
be violating a right that has never been specifically defined,
let alone clearly established, in this or any other
jurisdiction. As the majority opinion points out, citing to
Anderson v. Creighton, 

(1987), the"contours
of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates
that right." 

maj. op. at 7. That is to say that "in
light of preexisting law, the unlawfulness must be
apparent." 

. How has the
unlawful conduct of Officer Eberly, if indeed it was
unlawful, been shown by the majority to be "apparent?" It
is no answer, nor is it sufficient, to proclaim ipse dixit, as
the majority has, "that Officer Eberly has not established
that he is entitled to qualified immunity." Maj. op. at 9.

The relevant focus has to be on the final part of the
qualified immunity inquiry -- whether the right allegedly
violated was clearly established so that a reasonable official
in Eberly's position would understand that what he was
doing violated that right. 

. If
there has never been a constitutional right articulated that
would prevent a police officer from shooting a barking,
unleashed, uncontrolled dog such as the Rottweiler which
was killed -- as there has not been in this jurisdiction or
any others -- how can the absence of such a right as
postulated by the majority constitute a clearly established
right so as to hold Eberly liable?

In my opinion, the majority has erred in its unanalytic
resolution of this issue, and its resolution should be
rejected because it makes bad law in this case and in
future cases where the clearly established element must be
decided. Because there is no standard announced other
than the one I have advanced, and there is no basis or
authority supporting the "clearly established" holding of the
majority, in my opinion, its holding here will dilute -- if not
destroy -- the essential clearly established element
announced by the Supreme Court in Harlow v. Fitzgerald,

(1982) and explained in Anderson v.
Creighton, 

(1987).

                               26
Here, because the record establishes that Officer Eberly
was qualifiedly immune when he shot the Browns'
Rottweiler, I would affirm the District Court's judgment.
Eberly's immunity springs from the fact that even assuming
a Fourth Amendment violation -- an assumption bearing
many serious concerns and one that carries a great deal of
baggage under the circumstances here -- there was no
clearly established constitutional right that Eberly violated
to warrant holding him liable -- any more than there was
a clearly established right that the majority concedes
immunizes Eberly from the Brown's substantive due
process claim. See maj. op at 13, n. 6. 2

Moreover, recognizing that in the qualified immunity
context, the determination of whether Eberly's actions were
reasonable in the face of conflicting evidence can only be
made by resort to affidavit and testimony supporting the
Browns' position, I conclude that Eberly's actions were not
only objectively reasonable for Fourth Amendment
purposes, but did not, and could not, constitute an
intentional infliction of emotional distress.
_________________________________________________________________

2. I have assumed that a Fourth Amendment violation has occurred for
purposes of this case. I point out, however, that the District Court
adverted to the dog being abandoned, undoubtedly because it was
unleashed, out on the street, under no control of an owner, and was
barking at a police officer. Inasmuch as an element of the Fourth
Amendment violation requires a determination of being unreasonable
which may fall within the jury's purview but which is a decision which
could not be rendered by a jury if qualified immunity attached, because
the grant of qualified immunity would preclude a trial being held, I point
out no more than that the issue of a Fourth Amendment violation in the
case of an unleashed, uncontrolled Rottweiler barking at a police officer
on a public street leaves much to be desired in the way of satisfying the
strictures of a Fourth Amendment seizure, and is completely
distinguishable from Fuller v. Vines, 

(9th Cir. 1994) (holding
that plaintiffs stated a Fourth Amendment violation in alleging that
police officers killed plaintiffs' dog in the plaintiff 's yard) and
Lesher v.
Reed, 

(8th Cir. 1994) (holding that police officers' removal
of a dog from inside plaintiffs' home fits "within the meaning of the
Fourth Amendment").

                               27
III

Pennsylvania law provides that "It shall be the duty of
every police officer or state dog warden to seize and detain
any licensed dog which is found running at large , either
upon the public streets or highways of the Commonwealth,
or upon the property of a person other than the owner of
such dog, and unaccompanied by the owner or keeper." 3
P.S. S 459-302 (emphasis added). By statute it is provided
that "Every police officer or state dog warden may kill any
dog which is found running at large and is deemed after
due consideration by the police officer or state dog warden
to constitute a threat to the public health and welfare." 3
P.S. S 459-303 (emphasis added). Officer Eberly testified:
"Because of the way [s]he was barking and growling at me,
I perceived [her] as a threat to me, but I had a
responsibility to do something to get this dog into custody
as a police officer. That's part of my responsibility for stray
dogs." A-394.

IV

Let me amplify my earlier analysis explaining the second
prong -- the clearly established prong-- of the qualified
immunity doctrine. Government officials "are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known." 

; see also Malley v. Briggs, 

,
341 (1986) (observing that "all but the plainly incompetent
or those who knowingly violate the law" are protected by
qualified immunity). Whether a government official
asserting qualified immunity may be held personally liable
for conduct that allegedly violated a constitutional or
statutory right depends on the "objective legal
reasonableness" of the action. Anderson v. Creighton, 

, 639 (1987). As the Court explained, and as I have
stated above:

       The contours of the right must be sufficiently clear that
       a reasonable official would understand that what he is
       doing violates that right. This is not to say that an
       official action is protected by qualified immunity unless

                               28
       the very action in question has been previously held
       unlawful, but it is to say that in the light of pre-
       existing law the unlawfulness must be apparent.

Court has admonished that the particular
right at issue must be defined with specificity."[W]hat
`clearly established' means in this context depends largely
upon the level of generality at which the relevant legal rule
is to be identified." Wilson v. Layne, 

, 614
(1999) (internal quotations and citation omitted)."It could
plausibly be asserted that any violation of the Fourth
Amendment is `clearly established,' since it is clearly
established that the protections of the Fourth Amendment
apply to the actions of police. . . . However, . . . the right
allegedly violated must be defined at the appropriate level of
specificity before a court can determine if it was clearly
established." 

(emphasis added) (citations
omitted). The Court in Wilson held that bringing the media
into a private home to film the execution of a warrant
violated the Fourth Amendment, but held that the right was
not clearly established to warrant finding the officers liable
for damages. The Court defined the specificity of the right
as follows: "the appropriate question is objective inquiry of
whether a reasonable officer could have believed that
bringing members of the media into a home during the
execution of an arrest warrant was lawful, in light of clearly
established law and the information the officers possessed."

present case, the appropriate question is whether
Officer Eberly as a reasonable officer could have perceived
that the Rottweiler which was unleashed, uncontrolled, and
running free on a public way and was barking at him, was
a threat to him or to the public health and welfare. If so, as
I believe all reasonable persons would agree, then his
shooting the unleashed, uncontrolled and barking
Rottweiler was lawful.

As I have indicated, I am willing to assume a Fourth
Amendment constitutional right (see n. 

), but
contrary to the majority, I cannot say that Eberly's conduct
in shooting an unleashed Rottweiler which any reasonable

                               29
person would perceive as threatening and which was under
the control of no owner and was barking, is clearly
established as a constitutional violation in the Third
Circuit. To the contrary, as I have earlier stated and as the
majority must agree, my research has not revealed any
Third Circuit precedent involving a police officer or other
official who has ever been held liable or non-immune as a
result of shooting an uncontrolled animal running freely on
the public highway and which was perceived as being a
threat to the public safety or to the officer. Nor have I found
any out-of-circuit precedent that could be deemed as
constituting clearly-established law and which could be
said to have informed Officer Eberly that in shooting the
Rottweiler he was violating the Browns' Fourth Amendment
rights.

In my view, even if non-circuit precedents existed, which
they do not, such precedents are non-binding decisions
which do not "clearly establish" law for purposes of
qualified immunity. The Supreme Court has not defined the
level of precedent required to render a right " clearly
established." 

n. 32 ("we need not
define here the circumstances under which the state of the
law should be evaluated by reference to the opinions of this
Court, of the Courts of Appeals, or of the local District.").

Several courts, and most importantly the Third Circuit,
have held that non-binding precedent does not make a
right "clearly established." See Doe v. Delie, 

(3d Cir. July 19, 2001) (holding that district court
decisions did not render a right clearly established in the
Third Circuit); Hansen v. Soldenwagner, 

, 578
n. 6 (11th Cir. 1994) (concluding that "the case law of one
other circuit cannot settle the law in this circuit to the
point of it being `clearly established.' "); Knight v. Mills, 

, 668 (1st Cir. 1987) (holding that decisions by two
other circuits cannot create clearly established law when
the Supreme Court had reserved the issue); Ohio Civ. Serv.
Employees Ass'n v. Seiter, 

, 1177 (6th Cir.
1988) (concluding that decisions of other circuits clearly
establish the law only if they "both point unmistakably to
the unconstitutionality of the conduct complained of and
[are] so clearly foreshadowed by applicable direct authority

                               30
as to leave no doubt in the mind of a reasonable officer that
his conduct, if challenged on constitutional grounds, would
be found wanting.").

In Doe v. Delie, 

(3d Cir. July 19, 2001),
which found a constitutional right of privacy of a prison
inmate's medical information (a decision which I
questioned, see 

, dissenting), but then
appropriately found that there was no clearly established
right that was violated (a decision with which I agreed), we
held that neither state nor out-of-circuit precedents could
satisfy the clearly established element of the immunity
doctrine. We did so because there was no authority to
which we could look in any jurisdiction, including our own,
whereby a prison official would understand that by
prescribing a medication so that others might hear the
prescription, the prisoner's right to privacy had been
violated. Just so here, where even if the Brown's claimed
constitutional right was confirmed, the majority opinion has
not substantiated that it would have been apparent to a
reasonable officer -- in the circumstances present when the
Brown's Rottweiler confronted Eberly -- that shooting the
Rottweiler would be unlawful.

Indeed, the only decisional law in our sister circuits is
decisional law by the Eighth Circuit (Lesher) and by the
Ninth Circuit (Fuller) involving dogs seized within the
property of their respective owners -- a far cry from an
unleashed dog on the public street out of its owners'
control. These cases do not render the law clearly
established in either the Eighth or Ninth Circuits, to say
nothing of my own Circuit -- the Third. Thus Officer Eberly
is entitled to qualified immunity.

In Lesher v. Reed, 

, 150 (8th Cir. 1994), the
government officials "removed [plaintiffs'] dog from their
home." Similarly, in Fuller v. Vines, 

(9th Cir.
1994), the police officers killed plaintiffs' dog in the
plaintiff 's yard. In neither case were the dogs running free
and uncontrolled and in neither case was there a
perception of a threat to the public safety. Here, in
contrast, the Browns' Rottweiler was outside their control,
outside the Browns' property, and unleashed and barking

                               31
on the public street giving every appearance of a threat to
public safety.

Officer Eberly saw the Browns' Rottweiler running free
without a leash obstructing traffic on Madison Avenue in
Muhlenberg. Eberly parked his police car, exited, walked
toward the dog and clapped his hands and called to her.
The Rottweiler then barked at Eberly. One witness,
Christopher Grim, testified that the Rottweiler"was getting
ugly with the officer. . . . It was showing its teeth and
barking and growling and it had -- it was po[i]sed, back
end dip position . . . . I don't know if you've ever noticed
when dogs get really like wild or violent they come and they
bear down on their back legs in kind of a striking-type
thing." A-432. Eberly testified:

       The dog at that point, as it came around the back[of
       a parked car], came towards me, barking and growling
       and, again, put his feet forward and took a stance and
       took like a, he was protecting, whatever, stance. At
       that point the dog went back on his hind legs and
       came forward off his hind legs, and it looked like the
       dog was going to attack me from how he sprang
       forward. At that time I though he was coming for me.
       When he came off his back legs and came towards me,
       I raised my weapon and fired.

A-396-97; see also Eberly's Testimony, A-406 (explaining
that "she rocked back and forth on her hind legs and
started to come forward. It looked like, from my experience,
this dog was lunging and going to attack me."). Eberly shot
five times, hitting the Rottweiler three or four times.3

Even disregarding Eberly's and Grim's testimony, and
viewing the facts, as I must, in the light most favorable to
_________________________________________________________________

3. In a later part of this dissent, I have criticized the majority for
having
relied upon the testimony of Russell Yoder, which does not satisfy the
requirements of Fed. R. Evid. 804(b)(1) and which is therefore
inadmissible hearsay. It may well be that Grim's testimony suffers from
the same failing, in which case I should not consider it any more than
Yoder's testimony. Accordingly, I have disregarded not only Grim's
testimony, but also the testimony of Officer Eberly, since we are bound
on summary judgment to view all of the evidence and to credit all of the
inferences in favor of the plaintiffs.

                               32
the Browns, Eberly's actions were objectively reasonable. It
is uncontested that the dog was a Rottweiler,4 that it was
unleashed and uncontrolled, and that it had been barking.
_________________________________________________________________

4. Surprisingly, the majority opinion has failed to inform the reader
about the characteristics and nature of a Rottweiler that should be taken
into consideration in assessing the reasonableness of Eberly's actions.
While the record does not disclose this information, we can take judicial
notice of these traits from the American Kennel Club's descriptions
(www.akc.org) and the American Rottweiler Club's"Introducing the
Rottweiler" (www.amrottclub.org).

The American Rottweiler Club describes a Rottweiler as "a robust,
powerful and loyal breed. . . . He is an outstanding companion and
guard but ownership of a Rottweiler carries much greater than average
legal and moral responsibilities, due to traits possessed by this breed,
their size and strength. . . . Males range from 24" to 27" at the shoulder
and 95-135 lbs in weight. Females are somewhat smaller, 22" to 25" tall
and 80 to 100 lbs."

"The Rottweiler is very strong for its size. It has been used in Europe
to pull carts and retains the compact musculature desirable in a draft
animal. A full grown adult can easily knock a human off his feet. . . .
Obedience training is a must because of the animal's size and strength;
you must be able to maintain complete control of your animal at all
times. . . . [Aggressiveness] varies with the individual dog to some
degree,
although all have a strong territorial instinct and will defend their
master's home, car and property from intruders. Rottweilers have also
been known to bully or bluff their owners or other people, a trait that is
most disconcerting. . . . Although the Rottweiler does not usually bite
without provocation, even being cornered and held by one of these dogs
is a very unnerving experience for meter men, delivery persons or
neighbors wandering into the yard while the owner is absent." American
Rottweiler Club, "Introducing the Rottweiler."

The American Kennel Club states, "[t]he ideal Rottweiler is a medium
large, robust and powerful dog. . . . His compact and substantial build
denotes great strength, agility and endurance. Dogs are characteristically
more massive throughout with larger frame and heavier bone than
bitches. . . . Dogs [range from] 24 inches to 27 inches. Bitches [range
from] 22 inches to 25 inches."

Although it is sad to learn of the death or injury of any pet, I cannot
overlook the apprehension that an individual -- particularly a police
officer, who has a duty to protect and ensure the safety of the public --
may have when faced with an unleashed, uncontrolled, barking
Rottweiler.

                               33
Nothing in the record establishes the majority's conclusions
that Eberly knew the family to whom the dog belonged, that
the Browns owned the dog and lived in an adjacent house,
or that the Browns were available to take the Rottweiler in
custody. Nor can the record be read to show that Eberly
shot the Rottweiler without any provocation. See Maj. Op.
at 4. Moreover, Eberly's testimony that he heard and saw
no one before shooting is also not disputed. Contrary to the
majority's statement of facts, Ms. Brown's testimony
concerning when and what she shouted to Eberly is both
ambiguous and equivocal. She did not state that when the
officer reached for his gun, she shouted "That's my dog,
don't shoot!" Maj. Op. at 4. Rather, referring to what Ms.
Brown herself testified to, these are the operative facts:

       Q: So you saw his right arm move and you yelled
       something?

       A: Yes.

       Q: What did you yell?

       A: At that point I'm not exactly sure what I yelled. I
       know once he started shooting I know what I
       yelled. I just started screaming.

       . . .

       Q: You don't know what you yelled?

       A: I believe it was, "That's my dog," but I'm not
       positive.

       . . .

       Q: As you sit here today, do you know what you
       yelled?

       A: I don't know in order. I know that words must have
       come out of my mouth, but I don't know for certain
       what I said.

A-104-06 (emphasis added).

Because Ms. Brown   did not know what she said and
when she said it,   reliance cannot be had on her testimony
as related in the   majority opinion. All we can glean from the
record is that at   some point in time after Eberly fired at the

                                 34
Rottweiler, she started screaming. But we cannot know
what she said and at what point she claimed the Rottweiler
as hers. Moreover, in light of the record which I have just
reproduced above, it cannot be said that Eberly heard
anything until after he had fired his weapon.5

In particular, I stress that the majority's conclusion that
Ms. Brown claimed ownership of the dog prior to the
shooting -- because it depends so heavily on Yoder's
testimony -- is flawed and inaccurate. Let me explain why.

The majority opinion in its extensive footnote 5, in an
effort to bolster its conclusion that Eberly knew that the
Rottweiler's owner was available and anxious to take
custody, unfortunately recites testimony which was not
available for consideration by the District Court. It is by no
means available for consideration by us, and should not be
relied upon in the majority opinion because the testimony
of Russell Yoder was taken in connection with a Civil
Service Commission Hearing, and is inadmissible into
evidence under Fed. R. Evid. 804(b)(1).

That Rule requires such testimony, in order to be
admissible as an exception to the hearsay rule, to be
accompanied by proof (1) that the declarant -- in this case
Yoder -- was unavailable to testify, (2) that the testimony
was taken at a hearing, deposition, civil action or
proceeding, and (3) that the party against whom the
testimony is now offered -- in this case Eberly-- had an
opportunity to test the testimony by examination. New
Jersey Turnpike Authority v. PPG Industries, Inc. , 

, 110 (3d Cir. 1999); Kirk v. Raymark Industries, Inc., 

, 164-65 (3d Cir. 1995).

Here, Yoder's testimony was taken before a Civil Service
Commission with nothing appearing in the record to
establish his availability or unavailability in the instant
proceeding, nor can we tell from the record, by which we
are bound, whether the Commission Hearing -- not a court
_________________________________________________________________

5. Although in the qualified immunity summary judgment context we
could not rely upon Eberly's testimony if it was disputed, here no one
can contest Eberly's statement made in his deposition that "[a]fter the
shooting, that's when I heard voices."

                               35
proceeding -- satisfied the other elements of the Rule so as
to permit consideration in this summary judgment
proceeding. See New Jersey 

. Nor
is the majority opinion's explanation and its citations to
Williams v. Borough of West Chester, Pennsylvania , 

, 466 n. 12 (3d Cir. 1990) and Celotex Corp. v.
Catrett, 

, 324 (1986) an answer to Yoder's
unavailability. Williams, referring to Celotex, is no more
than dictum, while Celotex refers only to appropriate
admissible affidavits or depositions, neither of which appear
in the instant record other than through Yoder's
administrative testimony. Hence by any evidentiary test,
Yoder's prior testimony before an administrative tribunal
was not admissible for consideration here because Yoder
must be considered "available" on this record where it is
undisputed that there is no finding to that effect.

Indeed, the District Court judge did not, so far as I can
tell, rely on that evidence in any particular and it has only
been resurrected by the majority on this appeal so as to
shore up its conclusion that Eberly should be liable. It
would have been an abuse of discretion for the District
Court to have admitted and considered this testimony
without a finding of unavailability, see Kirk , 61 F.3d at 165,
and the burden of proof of unavailability, as well as the
other elements of Rule 804(b)(1), rests upon the proponents
of the testimony -- here, the Browns. An examination of the
record reveals that it is completely silent as to Yoder's
availability. Hence, it is inappropriate -- indeed it is error
-- for the majority to rely on inadmissible hearsay
testimony whose reliability has not been tested. Without
Yoder's testimony -- testimony which the majority opinion
relies upon so heavily -- the majority's conclusion simply
cannot stand.

V

It is crystal clear to me that even in the face of a Fourth
Amendment violation, which as I have noted may be
problematical, see 

, Eberly's conduct as a police
officer in discharge of his statutory duty was not only
appropriate but no clearly established constitutional right
stemming from the occurrence of his shooting the Browns'

                               36
dog would or could have been known to any reasonable
person. Unfortunately, the majority opinion has not seen fit
to announce a standard for clearly established doctrine in
the context of qualified immunity, and by failing to do so,
it obviously could not relate the actions of Officer Eberly to
an unarticulated standard. Thus, by this failure, it has
abdicated this Court's responsibility to balance"the
interests in vindication of citizens' constitutional rights and
in public officials' effective performance of their duties."

(internal quotations omitted),
and has made it impossible for officials within our
jurisdiction to reasonably anticipate when their conduct
may give rise to liability for damages.

Because I cannot join such an opinion which disregards
the content of an acknowledged doctrine, I would affirm, in
its entirety, the District Court's judgment of May 22, 2000
which granted summary judgment for Officer Eberly and
the other named defendants.6 To the extent that the
majority holds otherwise, I respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

6. For largely the same reasons discussed above, I would also hold -- as
I stated earlier -- that Eberly's conduct, based solely on the record
supporting the Browns' position, could not constitute an intentional
infliction of emotional distress.

                               37