Case dismissed against city, officers in dog shooting

By: Kristyne E. Demske | St. Clair Shores Sentinel | Published January 12, 2016

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ST. CLAIR SHORES — More than two years after a mixed-breed dog who allegedly lunged at police officers was shot by an officer, a federal district court judge has ruled that a lawsuit against the city of St. Clair Shores and the officers involved will be dismissed.

The complaint, filed July 15, 2014, in the U.S. District Court for the eastern district of Michigan by Brittany Preston, the owner of Lexie the dog, named the city of St. Clair Shores, police officers David Jacquemain and Jeremy Moskwa, as well as Animal Control Officer Tom Massey as defendants. 

U.S. District Court Judge Stephen Murphy issued an order granting summary judgment in the case Dec. 31. The court concluded that, even when looking at the facts in a light most favorable to Preston, there was not enough evidence to decide in her favor, so the case was dismissed with prejudice. 

Police were called to the area of Yale and Princeton streets multiple times in the early morning hours of Nov. 22, 2013, for reports of a dog running loose in the area. When police were called again after 7 a.m. by a woman who said the dog had charged at her, officers ended up shooting the dog after it allegedly charged one of the officers.

According to the order, the officers discussed what to do with the dog, which was pacing and growling on the front porch of Tom Warunek — the grandfather of the dog’s owner, Preston — and tried to convince Warunek to take the dog inside the house. Warunek first denied knowing the dog, then agreed to let it in after officers said they could send the animal control officer to the home after he came into work around 8 a.m. 

The order states that five people, including three neighbors, witnessed the event and had consistent stories, testifying that the dog jumped off the porch, put its head down and charged 5 feet toward the officers, stopped, then lunged at an officer. The two officers each fired two shots at the dog.

That testimony meant that there was not enough legal basis for Preston’s claim, the judge wrote, adding that the Constitution does not require police to allow themselves to be hurt by a vicious dog left outside to roam the neighborhood.

City Attorney Robert Ihrie said that the city was “gratified” by the court’s decision.

“While we are generally sympathetic to anyone who loses a pet, we are gratified that the courts, after thoroughly analyzing the facts, determined that the police officers acted appropriately under the circumstances and concluded that no liability should attach to the city or the officers,” Ihrie said. 

Preston’s attorney, Christopher Olson, of Royal Oak, vehemently disagreed, calling the decision “erroneous.”

On a motion for summary disposition or judgment, the court must construe the facts in a light most favorable to the plaintiff, Olson said. 

“It didn’t do that. It found facts against my client,” he said. “The court ignored, didn’t mention anywhere ... a witness said that this little dog did not attack the police. That single fact alone is sufficient.”

The order states that after the officers shot the dog, one officer asked his sergeant if he saw the dog charge, and the sergeant responded “absolutely.” After that, according to the order, Warunek said, “What the (expletive) ... shooting it right in front of me?” The sergeant pointed out that the dog had attacked the officers, and Warunek said, “I don’t think so. You guys ought to go on TV.”

Olson said he only had to introduce one fact that raised a question in order to have a motion for summary judgment dismissed, and Warunek’s comments were that fact. 

“The only non-police witness that was just as close to the (shooting) ... said, ‘I don’t think the dog attacked them’ and said ‘I think you guys ought to go on TV,’ so this is ridiculous,” Olson said. 

He said they plan to appeal the case to the U.S. Court of Appeals for the 6th Circuit in Cincinnati.

“We’ll win and we’ll be back,” he said. “He ignored our witness who said the dog didn’t attack the cops. 

“I am surprised at the result because I generally respect federal judges; I think they generally follow the law. I think that didn’t happen here. Tom Warunek’s testimony that the dog did not attack police is sufficient to render this opinion erroneous.”

Ihrie, however, called the opinion “well-reasoned.”

“The opinion was thorough, well-reasoned, and I will allow it to speak for itself,” he said. 

By March of 2014, discipline for the officers involved in the shooting had been carried out. Massey was suspended for a month without pay and had no duties for a month, and the two other officers were disciplined with regard to the incident. According to the March 3, 2014, City Council report, one was counseled on his comments, and the other had a letter of discipline entered into his file regarding his control of the scene.

Since that time, the city has also begun an Animal Care and Welfare Committee to discuss, advise and research matters pertaining to the welfare of domesticated and wild animals in the city as directed by city administration. 

Macomb County Animal Control was contracted to take over the city of St. Clair Shores’ animal control services in September 2014.

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