This case -- sent to us by Eric Goldman -- touches on a lot of subject matter covered frequently at Techdirt: dead dogs, police officers, the First Amendment, and qualified immunity. Yet the narrative isn't quite what's expected given the elements. And the court's conclusions, while disappointing, are likely the correct application of the law.
Here's the background to the case, as recounted in the federal court decision [PDF]:
Plaintiffs John and Brittany Knudsen, a married couple, reside in Spring Hill, Kansas. Plaintiffs owned a Great Dane dog named Nala. On March 29, 2020, Nala got out of plaintiffs’ house. Defendant Mark Cantrell and his wife, Jessica, were walking their dogs near plaintiffs’ house and Nala approached them. Defendant Cantrell shot Nala with a firearm. Nala loped, grievously wounded, toward plaintiffs’ property, and John Knudsen saw that Nala had sustained a gunshot wound. John Knudsen took Nala to the emergency veterinarian, where plaintiffs chose to have Nala humanely euthanized.
Not everyone walking their dog would carry a gun and/or be willing to shoot another dog just because the dog approached them. There's a reason Mark Cantrell might have deployed "shoot first" tactics: he was an Olathe, Kansas police officer.
The shooting was reported to the Spring Hill Police Department by the Knudsens. Officer Shaun Whitesell handled the call and took the Knudsens' statements. The original report listed the Knudsens as the victim of a potential crime (the shooting of their dog) and Officer Cantrell (who was off-duty at the time) as the suspect. Later, Officer Whitesell "changed the report to reflect that Cantrell was the victim."
Over the next couple of weeks, the Knudsens tried to obtain copies of the reports and witness statements. The Spring Hill PD refused to hand them over. Officer Whitesell informed the couple that "Cantrell would likely not be charged."
The Knudsens took their complaints to social media.
Plaintiffs posted information about the incident publicly on Facebook on April 15, 2020. “The Facebook post described the events[,] . . . identified Cantrell as the shooter, and identified that he was a police officer for the Olathe, Kansas Police Department[.]” The Facebook post went viral.
Soon after this, Cantrell called the Spring Hill PD to complain about the post, stating that he had received a "threat from a person unrelated to the Plaintiffs." This led to another set of unfortunate statements and events.
Defendant Whitesell responded to defendant Cantrell’s call and met with defendant Cantrell and his wife. The Cantrells wanted plaintiffs charged. Whitesell told the Cantrells that plaintiffs “would be ticketed for harassment and/or witness intimidation.” Later, Whitesell visited plaintiffs’ home and discussed the Facebook post with plaintiff Brittany Knudsen. Whitesell told Brittany Knudsen the post was “causing problems, and told her it should be taken down.”
Every action here was wrong. If threats had been made against Cantrell, the only criminal suspect would be the person making the threats. Officer Whitesell could have simply informed the Knudsens that their post had resulted in threats being made against Cantrell and allowed them to make a decision about taking the post down. What he shouldn't have done is tell another officer he would attempt to issue a criminal citation and definitely should not have instructed the couple to take the post down.
That led to this lawsuit, which alleges First Amendment violations by Officer Whitesell and brings some state law claims (conversion, assault) against the off-duty officer who shot the couple's dog. The court says it only has jurisdiction over the First Amendment allegations against Officer Whitesell.
Whitesell argued he should be awarded qualified immunity because it was not clearly established that demanding someone take down a social media post violated rights. The court, after much discussion, agrees with Officer Whitesell.
While it should be fairly obvious police interactions over social media posts contain a multitude of First Amendment implications, the speech targeted by Officer Whitesell's actions did not actually target him. It discussed the actions of another police officer, one who was off-duty at the time he shot the Knudsens' dog.
[P]laintiffs try to characterize their speech as criticism “of both the City of Spring Hill as well as Defendant Cantrell, an officer for the Olathe, Kansas police department.” Plaintiffs assert that “[s]peech, challenge, and criticism directed at police is . . . [a] clearly established” right. (citing Hill, 482 U.S. at 461). But this characterization doesn’t match the circumstances of this case. Plaintiffs don’t allege that they criticized the police in their Facebook post. Instead, plaintiffs’ post criticized defendant Cantrell for off-duty actions unrelated to his employment with the Olathe Police Department. Critically, the post doesn’t criticize the alleged retaliator: defendant Whitesell. [...] Even if one construes plaintiffs’ post as criticism of defendant Cantrell’s actions as a police officer, the alleged retaliation is several degrees removed from that criticism.
The court also notes that the Knudsens seemingly had no complaint about Officer Whitesell or the Spring Hill Police Department, directly quoting a statement made by the couple about their local PD:
“Responding Spring Hill Officers and the entire Spring Hill PD have been nothing but amazing during this whole situation. They have been sympathetic to our loss, and have continually checked in on us to be sure we are holding up. This is how a police department should be, and I am proud to have these officers protecting our community. But unfortunately their hands are tied[.]”
That mismatch between public and private action means Officer Whitesell can't be sued for handling this poorly.
Here, plaintiffs spoke about Cantrell in his capacity as a private citizen, then that speech resulted in a complaint by Cantrell, and then the Spring Hill police department dispatched defendant Whitesell to plaintiffs’ home, where the alleged retaliation took place. Yet, plaintiffs rely on cases where the police retaliated against plaintiffs for speech directed at police officers. [...] These cases don’t match plaintiffs’ allegations. Plaintiffs allege that their speech was directed at another police officer and defendant Whitesell responded to a complaint from that police officer, not the speech itself.
That's the correct call in this case. Officer Whitesell probably shouldn't have told the couple to take down the post, but he was responding to a reported threat allegedly related to the post, rather than discussing the contents of the post itself. Whether Officer Whitesell would have performed these actions in response to a reported threat from a regular resident (rather than another police officer) can be debated, but it likely can't be proven one way or the other. And, in either case, it wouldn't change the outcome of this case.
That just leaves the state law claims against the off-duty officer and I would imagine those are just as unlikely to succeed. It's one thing when someone enters another person's property and assaults their pet. It's quite another when the pet is loose and is approaching someone in a public area like a sidewalk. Chances are, the state court will find no violation of law in Cantrell's actions, even if they appear to be an overreaction to the perceived threat -- which at this time was nothing more than an unchained dog (albeit a large one).
This sucks for the Knudsens but sometimes bad things happen and there's no one that can be held legally responsible for an unfortunate series of events.
stLouIST
