This article appeared in the June 2017 issue of the Georgia's Cities newspaper.
After suffering from brain freeze and writer’s block just days before my deadline, and on the verge of writing some mundane offering on the differences between ministerial and discretionary acts—Boom! Just when you think you heard it all, something new just crash lands into my inbox; a case about a K-9 named Draco. A case in which Draco, among some humans and a county, get sued. Oh, yes he did…
Jones v. Fransen (and among others, K-9 Draco, in his individual capacity) Case No. 16-10715 (11th Cir. May 19, 2017)
Randall Kevin Jones went to his ex-girlfriend’s apartment in Gwinnett County and walked out carrying a television. The ex-girlfriend called 911, and officers responded. Jones fled. Other officers arrived, including Officer Scott Fransen and police canine Draco.
Jones fled into a ravine thick with vegetation and boulders. Officer Fransen warned Jones to come out and give it up, or he would release Draco to search for him. Jones did not follow Fransen’s orders, and in went Draco.
Just after Draco was released, one officer spotted Jones, who was not moving, at the bottom of the ravine. But Draco was already upon him, and took hold of Jones’ arm and wouldn’t let go, even after Fransen arrived.
After review, medical professionals determined that Jones’ arm was left permanently disfigured and of limited future use due to Draco. As a result, Jones, clearly thinking the actions of law enforcement was draconian, sued everyone he could think of including Draco the dog.
The essence of the case involves superb discussion and analysis on jurisdictional and qualified immunity issues, none of which we will address here, because Draco is far more interesting. The first thing the court did is disqualify Draco from being sued because he was not a “person,” which is the statutory qualifier for those who can be sued under state and federal law (Yes, in the law, corporations are indeed “persons.”).
In determining that Draco did not qualify as a person, the court actually found circuit precedent from a 34-year-old case involving the city of Augusta. In that case, the Eleventh Circuit declined to hear a claim that a cat’s right to free speech was infringed because a cat “cannot be considered a person.” Then came the best part, the court took the mental exercise of going even further, analyzing what would happen if Draco were to be considered a person. Here is the text, which I will leave you with:
[E]ven setting aside the issues of service on a dog and a dog’s retention of legal representation, and even assuming that Draco can qualify as a “State officer or employee” under Georgia law, how could we reasonably apply Georgia’s concept of official immunity? How would we determine whether the dog was acting in a discretionary or ministerial capacity when it bit the plaintiff? If it were acting in a discretionary capacity, how would we discern whether it had a “deliberate intention to do wrong”? And if it were acting in a ministerial capacity and were somehow liable, could the individually liable dog be expected as a practical matter to pay damages? And if so, how?
In the end, the court granted official immunity to the officers and, as for Draco, they let sleeping dogs lie and held that Draco simply could not be sued.