McHUGH, Circuit Judge.
Kent and Tonya Mayfield, proceeding pro se, brought this action against Deputy Jim Bethards under 42 U.S.C. § 1983, claiming he violated their Fourth and Fourteenth Amendment rights by killing their pet dog. Deputy Bethards raised a qualified-immunity defense and moved to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court denied his motion and Deputy Bethards appeals. We affirm.
The Mayfields claim Deputies Clark and Bethards violated their Fourth Amendment rights by entering their property without a warrant with the intention of killing their two dogs, firing upon both dogs, and killing one of them.
The deputies then unsuccessfully searched for Suka behind the house, where she had disappeared into a wooded section of the Mayfields' property. The Complaint further alleges that upon returning to the front yard, the deputies first moved Majka's body in an apparent attempt to obscure that she had been shot on the Mayfields' property and then tried to hide her body in a row of trees.
Deputies Clark and Bethards raised a qualified-immunity defense and moved to dismiss the Complaint under Rule 12(b)(6) for failure to state a claim. See Fed. R.
Deputy Bethards filed a timely appeal. We affirm the district court's decision.
The denial of a Rule 12(b)(6) motion to dismiss on qualified-immunity grounds is an appealable final order if it turns on an issue of law. Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("[T]his Court has been careful to say that a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a `final decision' within the meaning of [28 U.S.C.] § 1291."); Keith v. Koerner, 707 F.3d 1185, 1187 (10th Cir. 2013). The district court found the Mayfields had sufficiently alleged a violation of their clearly established rights. Whether a plaintiff has sufficiently "alleged a violation of his clearly established constitutional rights to overcome [the defendant's] defense of qualified immunity is an issue of law reviewable on interlocutory appeal." Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). Accordingly, we exercise jurisdiction pursuant to § 1291 to review the district court's order denying Deputy Bethards's qualified immunity defense. See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Keith, 707 F.3d at 1187.
III. Standard of Review and Relevant Law
We review the denial of a motion to dismiss "de novo, applying the same standards as the district court." Keith, 707 F.3d at 1187. To survive a motion to dismiss, a complaint must allege facts that, if true, "state a claim to relief that is plausible on its face." Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013) (internal quotation marks omitted). A claim is facially plausible when the allegations give rise to a reasonable inference that the defendant is liable. Id. In reviewing a motion to dismiss, we accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Brown, 662 F.3d at 1162. And because the Mayfields appear pro se, we liberally construe their pleadings. Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013).
Qualified immunity protects government officials from suit for civil damages if their conduct does not violate clearly established statutory or constitutional rights. Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). When a defendant raises a qualified immunity defense, the court must dismiss the action unless the plaintiff shows that (1) the defendant violated a statutory or constitutional right, and (2) the right was clearly established at the time of the violation. See id. The court may address these requirements in any order. Wilson, 715 F.3d at 852.
A. The complaint states a plausible violation of the Mayfields' Fourth Amendment rights.
The Fourth Amendment protects "[t]he right of the people to be secure
Although the Fourth Amendment uses the word "effects," the Supreme Court has long equated that term with personal property.
"A `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Killing a dog meaningfully and permanently interferes with the owner's possessory interest. It therefore constitutes a violation of the owner's Fourth Amendment rights absent a warrant or some exception to the warrant requirement.
Deputy Bethards argues that, even if the Fourth Amendment applies, killing Majka was reasonable because he thought she had attacked livestock and he believed Kansas law allows anyone to kill a dog reported to have done so. But Deputy Bethards's explanation for killing Majka is found in his police report, not the Mayfields' Complaint. At this stage of the proceedings, our review is limited to the Complaint and any documents it incorporates. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
Although the Complaint does not incorporate Deputy Bethards's police report, it incorporates a letter from the Mayfields to Sheriff Walton in which they dispute as a
We agree with the district court that these allegations state a plausible claim for violation of the Mayfields' Fourth Amendment rights, even considering the Kansas statute relied on by Deputy Bethards. Section 47-646 of the Kansas Statutes allows "any person at any time to kill any dog which may be found injuring or attempting to injure any livestock." Kan. Stat. Ann. § 47-646. According to Deputy Bethards, the Kansas Supreme Court in McDonald v. Bauman, 199 Kan. 628, 433 P.2d 437 (1967), interpreted this statute to permit a person not only to kill an offending dog caught in the act of injuring or attempting to injure livestock, but also to pursue and kill the dog after it has returned to its owner's land. But that case cannot be read as broadly as Deputy Bethards suggests.
In McDonald, the defendant shot a dog he caught attacking his hogs, chased the dog to its home, and then shot the dog several more times. Id. at 439. The dog survived and its owner sued to recover the veterinarian expenses incurred in treating the gunshot wounds. Id. at 439-40. After the jury returned a verdict in favor of the defendant, the dog owner appealed. Id. at 440-41. The Kansas Supreme Court affirmed, holding that section 47-646 allows a person to shoot a trespassing dog "which he finds on his premises injuring or attempting to injure" livestock "either at the time the dog is found in the act ... or within a reasonable time thereafter," which includes "the right within such reasonable time, if necessary, to pursue such dog after it has left his premises, and to shoot ... such dog off his premises."
B. It was clearly established that pet dogs are subject to Fourth Amendment protection.
Deputy Bethards next argues that, even if dogs are subject to Fourth Amendment protection, the law was not clearly established because there was no Supreme Court or Tenth Circuit case on point. Again, we disagree.
A right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Pauly v. White, 814 F.3d 1060, 1074 (10th Cir. 2016) (internal quotation marks omitted). This generally requires a Supreme Court or Tenth Circuit decision on point or a weight of authority from other courts. See Thomas, 765 F.3d at 1194. The question is not whether there is a prior case with precisely the same facts, but "whether the law put officials on fair notice that the described conduct was unconstitutional." Pauly, 814 F.3d at 1075 (internal quotation marks omitted). And we have cautioned that defining a right too narrowly risks making recovery against a public official virtually impossible because only "those rare cases in which a precedential case existed which was `on all fours' factually with the case at bar" would abrogate qualified immunity. Melton v. City of Okla. City, 879 F.2d 706, 729 n.37 (10th Cir. 1989) (internal quotation marks omitted), modified in part on other grounds on reh'g, 928 F.2d 920 (10th Cir. 1991) (en banc).
Nevertheless, Deputy Bethards contends the general rule prohibiting the warrantless seizure of personal property lacks the necessary specificity to provide adequate notice that his conduct violated the Mayfields' constitutional rights. But well before Deputy Bethards killed Majka, this court had analyzed seizures of cattle and horses under the Fourth Amendment. See Campbell v. City of Spencer, 682 F.3d 1278, 1280, 1285 (10th Cir. 2012) (horses); Stanko v. Maher, 419 F.3d 1107, 1112-15 (10th Cir. 2005) (cattle); DiCesare v. Stuart, 12 F.3d 973, 977-78 (10th Cir. 1993) (horses).
But even assuming more specificity is needed, the clear weight of authority from other jurisdictions provided Deputy Bethards adequate notice that the conduct here implicated the Mayfields' Fourth Amendment rights. See Thomas, 765 F.3d at 1194 (stating that a right is clearly established "if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains" (internal quotation marks omitted)). Indeed, seven federal circuits had addressed the issue prior to Detective Bethards's conduct, each holding that killing a pet dog is a Fourth Amendment seizure. See Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) ("Every circuit that has considered the issue has held that the killing of a companion dog constitutes a `seizure' within the meaning of the Fourth Amendment."); see also Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d. Cir. 2013); Maldonado v. Fontanes, 568 F.3d 263, 270-71 (1st Cir. 2009); Andrews v. City of W. Branch, 454 F.3d 914, 918 (8th Cir. 2006); San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005); Altman v. City of High Point, 330 F.3d 194, 203, 205 (4th Cir. 2003); Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3d Cir. 2001).
We therefore hold that when Deputy Bethards seized the Mayfields' personal property by killing their pet dog Majka in 2014, it was clear his actions would violate the Fourth Amendment absent a warrant "particularly describing the ... things to be seized," U.S. Const. amend. IV, or circumstances justifying an exception to the warrant requirement, see G.M. Leasing Corp., 429 U.S. at 358 & n.21, 97 S.Ct. 619 (discussing exceptions to warrant requirement). For the reasons previously explained, the circumstances alleged in the Complaint do not establish an exception to the warrant requirement as a matter of law. Accordingly, the Complaint plausibly states a claim that survives a qualified immunity defense.
The Mayfields' Complaint asserts facts sufficient to show a violation of their clearly established Fourth Amendment rights. We therefore affirm the district court's order denying Deputy Bethards's motion to dismiss.