Members of the Denver-based federal appeals court heard arguments on Wednesday about whether a Loveland police officer violated a couple’s constitutional rights by shooting their puppy in the head and torso.

In November 2023, U.S. District Court Senior Judge Raymond P. Moore declined to grant Officer Mathew Grashorn qualified immunity, which shields government employees from lawsuits unless they violate a person’s clear legal rights. Moore found that a jury could look at the evidence and decide Grashorn acted unreasonably or, alternatively, that he opened fire on the dog because he was in danger. Therefore, Moore set the case for a jury trial to sort out the facts.

However, Grashorn appealed to the U.S. Court of Appeals for the 10th Circuit, maintaining there was no clear directive that he would violate the Constitution by shooting an approaching puppy in the head. During oral arguments before a three-judge appellate panel, some members were skeptical they should shield Grashorn from trial.

“How this fact pattern plays out is pretty commonplace, whether it be a postal worker or Amazon delivery or DoorDash or just walking your dog in your neighborhood,” said Judge Richard E.N. Federico. “Dogs who are clearly pets of someone, oftentimes unleashed, will run up upon people. What doesn’t seem to happen, more commonly, is those dogs are shot to death.”

He wondered why Grashorn believed a 2016 decision from the 10th Circuit was unclear, even though it established police can commit a constitutional violation by killing people’s pet dogs.

“It doesn’t allow officers to just shoot dogs to death who run up upon them,” Federico added.

The sequence of events, as captured on Grashorn’s body-worn camera, was undisputed. Wendy Love and Jay Hamm were delivering firewood for their business on the evening of June 29, 2019, when they stopped in the parking lot of a commercial building. It was a Saturday and there were no other people in the vicinity, so Love and Hamm let their dogs out of their truck to stretch while Hamm made repairs to some equipment.

The owner of the building at 995 N. Wilson Ave. saw the couple on his surveillance feed and called Loveland police to investigate. After Grashorn parked several yards away from Love and Hamm, the footage showed Bubba, a 16-year-old dog, get up from the pavement and begin running toward Grashorn. The officer immediately pointed his gun at Bubba, and Love and Hamm called for Bubba to return.

Although Bubba turned around before reaching Grashorn, Herkimer, a 14-month-old puppy who had been resting in the couple’s truck, came outside at the commotion. Herkimer also ran toward Grashorn, and the officer shot him in the head and in the torso.

“Get back to the truck,” Grashorn screamed at Love when she tearfully approached her wounded puppy. 

“Please let me see him,” Love wailed, and Grashorn again ordered her back to the truck. Love nonetheless cradled Herkimer, while Grashorn warned Love, “He will bite you, he’s hurt.” The video did not depict Herkimer biting anyone.

“You’re not gonna be able to help him,” Grashorn continued to yell at the couple.

Although Herkimer survived the shooting, his owners euthanized him afterward.

Love and Hamm sued Grashorn, alleging an unlawful seizure under the Fourth Amendment. In turn, Grashorn asserted qualified immunity and asked Moore to resolve the case in his favor without a trial.

Moore concluded a jury could reach different conclusions about the reasonableness of Grashorn’s conduct and he declined to end the case outright.

Grashorn appealed to the 10th Circuit, arguing Moore’s analysis was legally faulty. Grashorn’s lawyer shifted blame for the shooting onto the plaintiffs and wrote 14 times that Grashorn had only three seconds to react to Herkimer.

“You have to look at this in the context of an officer doing his job,” Jonathan Eddy, the lawyer for Grashorn, argued to the 10th Circuit panel. “This officer was called to a trespassing call —”

“Which is a real minor infraction at most, right?” interjected Federico. “He instantly draws a gun. If we’re looking again at reasonableness, why reach for your firearm so quickly?”

“We agree this is a tragic incident. He regrets his actions,” said Eddy. “But at the same time, you have to put the officer’s safety in the moment against the plaintiffs’ somewhat-compromised property interest in their dog because they were, in fact, trespassing.”

Judge Scott M. Matheson Jr. wondered whether the panel could even review Moore’s conclusion that a jury should decide the danger Herkimer posed to Grashorn, given the appeals court’s obligation to address legal issues.

“That doesn’t strike me as a pure legal issue,” said Matheson. “‘Is there danger or is there not danger’?’

Sarah Schielke, the lawyer for the plaintiffs, argued court decisions across the country have made clear that a dog needs to pose a threat to warrant deadly force. Even if Herkimer was moving toward Grashorn, she said none of the hallmarks of an aggressive dog were present.

“The mere presence of teeth on a dog, that’s not enough to just say you can gun down the dog,” Schielke said.

The case is Love et al. v. Grashorn.