No justice for Heehaw. Why police won’t be held to account for donkey’s death.

In the early morning hours of August 30, a baby petting zoo donkey named Heehaw was gunned down by a Cedartown, Georgia police officer Trenton Garner in his own pasture.

Reports suggest that Cedartown officers were assisting Polk County Police with locating a missing person. The officers had entered his owner’s property without “permission or warning.” When the baby donkey approached them in the dark, braying — as donkeys tend to do — an officer opened fire.

HeeHaw’s owner, Hannah Israel, has vowed legal action. While such a high-profile case may induce the city to settle, absent a settlement offer, the doctrine of qualified immunity largely puts justice out of reach. But it wasn’t supposed to be this way.

In 1982, contrary to congressional command, the Supreme Court inserted the words “clearly established” into the text of Section 1983 in the Civil Rights Act of 1871. The result is that today, state and local law enforcement officers are immune from civil liability unless the plaintiff can identify precedent with nearly identical facts at a high level of specificity sufficient to put officers on notice that their precise conduct is unconstitutional.

Accordingly, officers who devise novel ways to violate our constitutional rights are rewarded with immunity. Allowing that doctrine to persist is a deliberate policy choice, but it’s one Congress can easily address. What happens when elected representatives refuse to step up to the plate?

How another Georgia case led to this injustice

Back in 2014 on the other side of the state, Coffee County Sheriff’s Deputy Michael Vickers was pursuing a suspect who had wandered into Amy Corbitt’s backyard. When the family dog, Bruce, appeared, Deputy Vickers fired at him without provocation or threat.

His first shot missed, and Bruce retreated under the house. Ten seconds later, Bruce reappeared near his owners, and Vickers fired again — missing the dog, but striking Corbitt’s 10-year-old child lying on the ground just 18 inches away. The bullet tore through the child’s knee, causing severe trauma requiring ongoing orthopedic care.

Corbitt sued Vickers under a federal statute commonly known as Section 1983, which states that any state actor who violates constitutional rights “shall be liable to the party injured.”

The district court properly denied Vickers’ qualified immunity, emphasizing that there was no conceivable safety threat justifying lethal force against the family dog — precisely the scenario with Heehaw.

Mike Fox is a legal fellow with the Cato Institute’s Project on Criminal Justice. (Courtesy)

Back in 2014 on the other side of the state, Coffee County Sheriff’s Deputy Michael Vickers was pursuing a suspect who had wandered into Amy Corbitt’s backyard. When the family dog, Bruce, appeared, Deputy Vickers fired at him without provocation or threat.

His first shot missed, and Bruce retreated under the house. Ten seconds later, Bruce reappeared near his owners, and Vickers fired again — missing the dog, but striking Corbitt’s 10-year-old child lying on the ground just 18 inches away. The bullet tore through the child’s knee, causing severe trauma requiring ongoing orthopedic care.

Corbitt sued Vickers under a federal statute commonly known as Section 1983, which states that any state actor who violates constitutional rights “shall be liable to the party injured.”

The district court properly denied Vickers’ qualified immunity, emphasizing that there was no conceivable safety threat justifying lethal force against the family dog — precisely the scenario with Heehaw.

The U.S. Court of Appeals for the Eleventh Circuit reversed, however, and granted Vickers qualified immunity because the circuit had no precedent indicating that shooting an unthreatening dog but missing and hitting a child violates the Fourth Amendment.

Worse, courts are no longer even required to determine whether the officer’s conduct was unconstitutional if no identical precedent exists. Declining even to decide the constitutional question as the Eleventh Circuit did in Corbitt v. Vickers ensures that the law will not be “clearly established” going forward either.

No precedent for police shooting a braying donkey

This situation is not unique to Georgia or the Eleventh Circuit. In 2013, Fresno, California police officers stole $225,000 worth of cash and rare gold coins.

Such blatant abuse of authority would seem to be one of the most obvious examples of the sort of “unreasonable searches and seizures” prohibited by the Fourth Amendment.

Yet the Ninth Circuit granted the officers qualified immunity, noting that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be liable because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”

Given the unique circumstance surrounding HeeHaw’s killing, it’s highly likely that no prior case involving substantially similar facts exists. Unless the Eleventh Circuit has precedent on the books specifically establishing that shooting a braying donkey in an open pasture while searching for a missing person after midnight is unlawful, the officer who killed Heehaw will benefit from qualified immunity, putting justice out of reach for Hannah Israel.

If qualified immunity means that an officer can escape liability simply because no court has previously considered the precise circumstances in which he violated someone’s rights, then that doctrine will be a license to violate the Constitution indefinitely. Hannah Israel should not need to point to a judicial precedent involving the police killing a donkey in a dark pasture to vindicate her rights.