Qualified immunity has been stretched to cover a wide variety of rights violations, law enforcement misconduct, and excessive force deployments. Every so often, a federal court will refuse to extend this courtesy to sued officers, but these decisions are relative rarities.Every so often, officers engage in such egregious violations that no court is willing to give them a pass on their bad behavior. This case [PDF], handled by the Sixth Circuit Court of Appeals, is one of those. It details a case where officers went out to put someone in protective custody and ended up killing some random person's dog. In between, officers went to the wrong address and entered a house without a warrant. Here's how it started:
On November 20, 2014, a probate judge had ordered a man named Donte Cox to report to Allegiance Health Hospital, as he had failed to pick up his prescribed medication. If Cox did not appear at Allegiance Health, the order stated that police officers would take Cox into protective custody and transport him to the hospital. When Cox failed to appear, the Jackson Police Department dispatched Officers Matthew Peters and Lewis Costley to look for Cox at several addresses in Jackson, including 511 South Blackstone Street and 513 South Blackstone Street. Cox did not live at 513 South Blackstone Street in 2014, and it is unclear from the record whether Cox had ever lived at either Blackstone address.
The info the officers had was, at best, terrible. It gave them the power to approach a bunch of different residences but no knowledge whatsoever about what they were expected to find… other than someone who hadn't picked up a prescription.So, the two officers approached the first set of addresses, located across from each other. Both addresses were clearly marked on the exterior doors which made it clear these were two different units. Officer Costley did his job correctly.
Costley went to the door labeled “511,” and Peters went to the door labeled “513.” Costley knocked on the door at 511 Blackstone, waited, and did not receive a response, so he did not enter the residence.
Officer Peters did not.
Peters, in contrast, approached the door at 513 Blackstone and walked inside without knocking or ringing the doorbell.
And he admitted all of this while testifying:
Peters admits he had no search warrant, no consent to enter the home, and no exigent circumstances that would have permitted him to enter the home absent a warrant or consent.
Instead, he tried to excuse his behavior by claiming he had no idea what address numbers on front doors signify.
Peters contends that the front screen door was slightly ajar and there was no solid door behind the screen door, so he presumed that the door led to a common front entry for multiple apartments, despite his acknowledgement that only one house number— 513—was listed next to the door.
The people inside 513 knew it was not a "common front entry." So, they had no idea who was letting themselves into their residence. Their dog noticed the intruder, who did not identify himself as a police officer immediately. Not that it would have mattered to the family's dog, which only knew Officer Peters was not someone he recognized and was in a house he didn't belong in. The dog responded to the rapidly-evolving situation like any dog would: he ran in the direction of the intruder and growled.
Standing inside the foyer, Peters knocked on the interior wall of the apartment. After the knock, the audio recording from Peters’s body microphone captures Harris yelling from the living room, “Who the f–ck is it?” (Peters Audio at 1:39.) Peters responds, “Police.” (Id. at 1:42.) Right after Harris yells and Peters responds, the audio recording captures the sound of Kane running and growling for four seconds. (Id. at 1:43–1:47.) Peters then contends that he said, “Get your f–cking dog,” but Harris contends that he could not hear Peters saying anything to him. (Peters Dep., R. 45-7, PageID 594.) The audio recording captures Peters saying “. . . [expletive] dog,” but the recording quality makes it difficult to discern the full quote or how loudly Peters was speaking. (Peters Audio at 1:47–1:48.) Kane continues to make noise, though it is unclear whether the sound is running, growling, or some combination of the two. Within two seconds of Peters saying “[expletive] dog,” the audio recording captures him shooting and killing Kane.
This six seconds is the point of the dispute. The dog's owner claims he tried to run down the stairs to get his dog but the officer killed the dog before he could get there. Officer Peters -- who had already engaged in a warrantless entry -- claimed the dog ran downstairs and began "growling, snarling, and biting at my feet and ankles" within this six-second period. He also claims he yelled for someone to get the dog and "kicked at it" before he decided to shoot it. The audio recording does not appear to contain this yell for assistance.Officer Peters also claimed the dog's owner only came part of the way down the stairs before stopping and yelling at the officer, rather than attempting to get the dog.
Peters contends that, after he yelled, Harris appeared at the top of the stairway, ran a third of the way down the stairs, and started yelling at Peters, though the audio recording does not capture Harris yelling at this point.
And more inconsistencies:
After the shooting, the audio recording captures Harris saying, “Why you shoot my dog, man?” (Peters Audio at 1:52.) Peters says, “He was [expletive] biting me, man.” (Id. at 1:53.) But when deposed, Peters admitted that Kane never bit him. There, he testified that Kane was “biting at [him],” but Kane “did not make physical contact with [his] leg.” (Peters Dep., R. 45-7, PageID 592, 595.)
The family sued over the warrantless entry and the killing of their dog. The district court denied immunity on all counts. So does the Appeals Court, which finds much of what the officer did unreasonable, and suggests a jury might have trouble reconciling his actions with the Fourth Amendment.
Peters contends that when he entered through an unlocked door in a multi-occupant building, he believed that the door would lead to a foyer from which he could access the doors to multiple interior units. In his deposition, Peters testified that, in Jackson, “[t]here are countless large homes with multiple apartments inside of that large building most of which you have to go into to get to the individual apartments, be it one, two, three, A, B, C,” and, in his experience, the address markings on the exterior of such buildings would not always indicate that there were multiple units inside. (Peters Dep., R. 45-7, PageID 594.) But Peters also agreed that he had received no information from dispatch indicating that such subunits existed in this apartment, and that he was not asked to look for an individual in 513A, B, or C—he was simply told that Cox might be at 511 or 513 South Blackstone Street, each of which had its own door and address marking on the exterior of the home. The fact that some houses in Jackson have this design does not preclude a jury from finding that Peters was unreasonable in assuming that this house had such a feature.The photographs of the home’s exterior further undermine the reasonableness of Peters’s belief: the clear address markings, individual mailboxes at each door, and the doorbell outside of the door marked 513 cut against the idea that this front door led to a common area rather than the entryway of an individual’s home.[...]Because there is a genuine dispute of material fact regarding whether Peters’s belief that he had not entered the plaintiffs’ home when he walked through their doorway was reasonable, we affirm the denial of qualified immunity as to this claim.
The same goes for his decision to shoot the family's dog. Peters tried two arguments to get out of being held responsible for this shooting. Neither of them work.
Despite this court’s holding in Brown, Peters argues that the right at issue was not clearly established for two reasons, neither of which is convincing. First, Peters argued that Brown was issued in 2016, which is later-in-time than the conduct at issue and therefore cannot suffice to clearly establish the law. This argument misreads Brown, where we unequivocally stated that the “constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized . . . was clearly established in 2013.” Brown, 844 F.3d at 566–67. Because the right was clearly established in 2013, it was also clearly established when Peters shot Kane on November 28, 2014.
It's pretty bad when you can't even cite precedent right. It's worse when the precedent you cite undercuts your argument. But Peters' other argument is somehow even worse than this citation failure.
Second, Peters argues that he could not have been expected to anticipate our recognition in Smith v. City of Detroit, 751 F. App’x 691, 692 (6th Cir. 2018) that unlicensed dogs are property under the Fourth Amendment. Had Peters argued that he shot Kane because he believed Kane was unlicensed and that Harris and Richards had no property interest in an unlicensed dog, this argument might have some force. But Peters gives no indication that he knew or even considered whether Kane was unlicensed at the time of the shooting. [...] Thus, Peters’s ability to anticipate this court’s ruling in Smith has no bearing on whether Peters should reasonably have known that his actions were unconstitutional.
Be more reasonable, says the court. None of your arguments are at this point. Back it goes to the district court to do a few more rounds of motions and testimony to clear up the disputed narratives. Given the testimony Officer Peters has already handed out, it seems unlikely he'll be able to talk a jury into taking his side. This is going to end up costing taxpayers some money, even though the officer is now officially liable for his actions.
Perhaps because the stories we routinely do on Nintendo doing the Nintendo come out at a clip somewhat spread out, and perhaps because the ultimate reality is that Nintendo's Nintendo-ing is legally something it is allowed to do, I believe the wider world really doesn't understand just how much cool stuff the public is deprived of. If you don't know what I'm talking about, some percentage of Nintendo's rabid fanbase likes to try to do cool stuff with Nintendo properties as an expression of their fandom. This means creating interesting new games, or trying to get Nintendo classics to work on laughably aged hardware just for funsies. Or celebrating Nintendo game soundtracks. The point is that fans do fan things, right up until Nintendo's lawyers come calling and shut it all down as copyright infringement.Again, just so we're absolutely clear: Nintendo can do this. But it doesn't have to. Plenty of other gaming companies have carved out space and methods by which they can still protect their intellectual property but allow fans to make fan creations. Nintendo refuses to do this and the result is that we lose the opportunity to see and have cool stuff. One example of this was a group in Australia's attempt to get the original Donkey Kong game working using only some recent tools Facebook provided.
Created by developer ‘bberak’, this React Native version of Donkey Kong isn’t an emulation, it was created from the ground up for iOS and Android and documented in a detailed post on Hackernoon in April 2018. Perhaps a little unusually, given the risks associated with stepping on Nintendo’s toes lately, the original repo – which was now been taken down – basically acknowledges that parts of the project may infringe copyright. The game’s code may have been created independently but the visual and audio assets are undoubtedly Nintendo’s. And the repo happily pointed to the company behind the project too.“Copyright Notice: All content, artwork, sounds, characters and graphics are the property of Nintendo of America Inc, its affiliates and/or subsidiaries,” the repo read.
React Native was created by Facebook to allow developers to make new and better stuff for mobile OS. It's no surprise that someone explored the platform by trying to develop a decades old classic game for it, if only just to see what the platform could do. This is classic nerd stuff.Sadly, the copyright notice on the repo didn't do what the developer thought it might do and Nintendo DMCA'd the project anyway. Instead of figuring out some way to celebrate this effort and make it legit, the whole thing just goes away. That sucks.And I imagine the exact same thing is about to happen to another very cool project that is just dripping with nostalgia. An animator who has worked in the gaming industry for years, Jesus Lopez, is creating a brand new Mario game with his kids... and styling the entire thing after the Super Mario Bros. Super Show! of the 80s.
The fan game is being developed by Jesus Lopez, an animator who has worked on various video games including The Simpsons Tapped Out, Ducktales Remastered and Shantae 1/2 Genie Hero. He is working alongside his two young children, who are helping with artwork and programming. He has been working on the project for nearly three years.YouTuber SwankyBox recently contacted Lopez and uploaded a video showcasing new footage of the game, behind the scenes documents and early artwork.
Here's the video, which shows gameplay footage. If you were a fan of the show when it came out, as I was, you'll be struck by just how amazing it looks.But if you're anything like me, your first thought on seeing this coolness was something like, "We're never going to get to see this completed, because Nintendo will nuke it." And I'm not the only one. Sites entirely dedicated to Nintendo fandom are also predicting this project's demise.
The project is a long way from completion, and if Nintendo's track record is anything to go by, we imagine this will be available for a day or two before lawyers' letters are sent. It's a position Nintendo must maintain if it wants to protect its IP from more nefarious types of infringement, but we do hope we get to try this out one day.
The shame of it is how resigned to all of this we've become. Nintendo somehow gets a PR pass when it comes to its overly aggressive IP enforcement. While it's within its rights to kill off these kinds of projects, nothing stops the company from working with fans to both allow and legitimize them instead. The explosion of good will and fan expression that could occur would make Nintendo quite possibly the king of fandoms.Instead, we just lose the chance to have nice things.