In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐3415
JACOB SAATHOFF, KATHY SAATHOFF,
and KELSEY MARKOU,
Plaintiffs‐Appellants,
v.
ANDRE DAVIS,
Defendant‐Appellee.
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:13‐cv‐02253‐CSB‐EIL— Colin S. Bruce, Judge.
ARGUED MAY 20, 2016 — DECIDED JUNE 20, 2016
Before FLAUM and MANION, Circuit Judges, and ALONSO,
District Judge.*
ALONSO, District Judge. After Champaign, Illinois police
officer Andre Davis shot and killed their dog, plaintiffs‐
*
Of the Northern District of Illinois, sitting by designation.
2 No. 15‐3415
appellants, Jacob Saathoff, Kathy Saathoff, and Kelsey Markou,
sued Davis and the City of Champaign under 42 U.S.C. § 1983
for violating their Fourth Amendment rights. The § 1983 claim
against Davis was tried to a jury, which returned a verdict for
Davis. The district court entered judgment on the verdict.
Plaintiffs appeal from that judgment, which we affirm.
FACTUAL BACKGROUND
Jacob and Kathy Saathoff are husband and wife. Markou is
Kathy’s daughter and Jacob’s stepdaughter. The Saathoffs and
Markou owned a chocolate‐colored labrador retriever named
“Dog.” On the evening of November 17, 2012, Markou, who
was eighteen years old, was walking Dog in the family’s
neighborhood in Champaign. Dog was wearing a fabric collar
underneath a metal “choker” collar that provided better
control. His leash was attached to the choker collar.
By about 5:20 p.m., Markou and Dog were within about a
half‐block of home after having followed their usual route.
Meanwhile, Tyrone Jones, who lived in the neighborhood and
was walking to a friend’s house, had spied a gray and white pit
bull running loose in the area. Jones did not recognize the dog,
so he stopped at several houses on the way to his friend’s to
see if anyone else recognized it. No one did. Jones was sitting
on his friend’s front steps and could see Markou and Dog
when they approached the intersection of John Street and
Crescent Drive. When Markou and Dog began to head south
on Crescent, the pit bull spied them from across the street and
ran toward them. Once the pit bull reached them, the two dogs
sniffed each other briefly, and then, without warning or
No. 15‐3415 3
provocation, the pit bull lunged at Dog’s neck. Dog began to
defend himself, and the dogs were soon locked in a fight.
Jones ran across the street to help Markou. Jones and
Markou tried to separate the dogs by kicking at them and
using a tree branch, but they were unsuccessful. At Jones’s
suggestion, Markou dropped Dog’s leash so that Dog could
more freely defend himself. Three juveniles arrived on the
scene and were watching the dogfight. Before long, Jones
asked Markou if she wanted someone to call the police to get
help. Markou agreed, and someone called the police and
reported the dog attack.
At the time, Officer Davis was in his squad car on the way
to a call about a residential burglary. The police dispatcher
reported over the radio that a vicious pit bull was attacking
another dog near the corner of John and Crescent. Davis
testified at trial that the dispatcher also said that one dog was
“almost dead.” Davis’s route took him past the corner of John
and Crescent, and someone in the group of people watching
the dogfight flagged him down, so Davis pulled over and
trained his spotlight on the dogs.
When Davis got out of his car, he asked what was going on.
Markou, who was or had been crying, identified herself as the
owner of the dog that was being attacked. The juveniles, who
were standing farther away from the dogs than were Markou
and Jones, were yelling. Markou told Davis that her dog was
the brown lab, had collars and a leash, and was being attacked.
Jones testified that he also told Davis that Markou’s dog was
the brown lab and the stray dog was gray and white.
4 No. 15‐3415
Davis testified at trial that his first impression was that the
dogs were both “dark color.” He has a form of colorblindness
that makes it difficult for him to distinguish between certain
colors, including between gray and brown. Although Davis
acknowledged that the colorblindness has had some effect on
his daily life and his abilities to act as a police officer, as of the
time of trial he had not informed his employer of his condition.
Davis walked in a semicircle around the dogs and saw that
one dog was on top of the other, the dog on top seemed larger
and more aggressive, and the dog on the bottom had a white
belly. (Markou, however, testified that although Dog was taller
than the pit bull, one dog was not on top of the other.) No one
saw any wounds or blood on either dog. The dogs were
focused only on each other and did not appear to pose any
immediate threat to the people present. Davis testified that he
went through a “mental checklist” of his options because in his
experience, pit bulls fight to the death. (He had responded to
two calls in the past that involved pit bulls fighting.) Davis
considered that the police department was undergoing a shift
change at the time; in his estimation, animal control officers
would take fifteen minutes to arrive if called; he had a metal
baton, but would risk getting bitten and did not know what to
do with the pit bull if he was able to get the dogs separated; he
did not have a catch pole, which was back at the station; and in
his experience, oleoresin capsicum (OC) spray does not work
on fighting dogs. Davis also worried that the pit bull might
turn on the persons present.
After walking partway around the dogs, Davis stood a few
feet away from them, drew his service weapon, made sure no
person was standing behind them, and shot at the dog that in
No. 15‐3415 5
his view was the aggressive dog, the one “on top.” The dogs
did not separate, so Davis fired a second shot a few seconds
later. The dogs separated. Dog began limping toward Markou,
who cried out that Davis had shot her dog. Davis testified that
he could not believe that he had shot the wrong dog. In Jones’s
opinion, Davis looked “confused.”
Davis then aimed his gun at the pit bull, which had started
to move away from the scene, and fired four more times. The
pit bull trotted across the street. Davis followed and fired a
seventh and final shot at the pit bull when it reached the
intersection of John and Crescent and headed east. He lost
sight of the pit bull and returned to Markou’s side while using
his radio to call a supervisor and animal control. Davis’s
supervisor, Sergeant Matthew Crane, arrived at the scene
within a few minutes. Within ten to fifteen minutes, perhaps
less, an animal control officer arrived. That officer captured the
pit bull and took it to the animal control facility. Dog died as a
result of the gunshot wound.
When Davis left the scene, he returned to the police station
and wrote a report about the incident, which was admitted into
evidence at trial. From the time Davis had arrived at the scene
to the time he fired the seventh shot, about two minutes
elapsed. Markou testified that thirty to forty seconds elapsed
between the time Davis arrived and the time he began shoot‐
ing.
PROCEDURAL HISTORY
On November 8, 2013, plaintiffs filed their complaint
against the City and Davis. Seeking damages under 42 U.S.C.
§ 1983, they alleged that Davis’s actions in shooting and killing
6 No. 15‐3415
Dog constituted an unconstitutional seizure of their property.
Against Davis, they sought damages for conversion of their
property, and Markou sought damages for intentional inflic‐
tion of emotional distress. Plaintiffs also sought damages and
injunctive relief for violation of the Illinois Humane Care for
Animals Act, and they brought Monell and respondeat superior
claims against the City.
Defendants moved for summary judgment on all of plain‐
tiffs’ claims. Plaintiffs cross‐moved for summary judgment as
to liability on all of their claims. In a written opinion issued on
May 18, 2015, the district court granted the City’s motion in
full, granted Davis’s motion as to plaintiffs’ state‐law claims
and denied it as to the § 1983 claim, and denied plaintiffs’
motion for summary judgment.
On the § 1983 claim against Davis, the case proceeded to a
three‐day jury trial in July 2015. The parties agreed that the
shooting of Dog constituted a seizure; the only issue at trial
was whether Davis’s conduct was reasonable. On July 9, 2015,
the jury found in favor of Davis and against plaintiffs, and the
district court entered judgment on the verdict the same day.
Plaintiffs then filed a motion for a new trial, which the
district court denied. Plaintiffs filed a timely notice of appeal.
No. 15‐3415 7
DISCUSSION
Plaintiffs raise three issues on appeal.1 First, they contend
that the district court erred in concluding that Davis had not
committed any discovery violations and erred in denying their
motion for a new trial that was based upon those alleged
violations. Second, plaintiffs argue that the court erred in
refusing their proffered jury instruction on the Fourth Amend‐
ment reasonableness analysis. Third, plaintiffs assert that the
jury’s verdict went against the manifest weight of the evidence.
A. Alleged Discovery Violations
We review a district court’s discovery determinations and
denial of a motion for new trial for an abuse of discretion.
EEOC v. AutoZone, Inc., 707 F.3d 824, 832 (7th Cir. 2013). Where
an alleged error of admission of evidence occurred during a
trial, we will grant a new trial only if the error had a substan‐
tial influence over the jury and the result reached was inconsis‐
tent with substantial justice. Farfaras v. Citizens Bank & Trust of
Chi., 433 F.3d 558, 564 (7th Cir. 2006).
Plaintiffs argue that the district court erred in allowing
Davis to do the following at trial: 1) testify that he heard the
police dispatcher say that one dog was “almost dead”; 2)
expand upon his police report by testifying that he considered
several factors in a “mental checklist” prior to using his gun,
including the fact that a shift change was imminent, and that
1
Plaintiffs raise an additional issue pertaining to the district court’s grant
of summary judgment in favor of the City, but it is in play only if this court
vacates the judgment against Davis. Because we affirm that judgment, we
need not address plaintiffs’ fourth issue.
8 No. 15‐3415
he rejected options like using his baton or OC spray or waiting
for someone to bring a catch pole; and 3) call his report an
incomplete summary and contradict what he said therein
about what he was able to see (the dogs’ colors) when he
pulled up in his vehicle. According to plaintiffs, because Davis
had not previously disclosed this information by supplement‐
ing his discovery responses, it was an abuse of discretion for
the trial court not to bar this evidence.
Plaintiffs cite two of their interrogatories to Davis. In the
first (#7), they asked: “Describe in Your own words the
Incident, starting from the dispatch call that sent You to the
Incident and ending with your last involvement in any way
Related to the Incident (whether that last involvement was
writing a report, discussing the Incident with a supervisor,
etc.), except only for Your communications with Your attor‐
neys concerning This Litigation. Include with the description
Your explanation for each action You took, and state and
describe as precisely and exactly as You can what each person
said.” Davis responded by stating that his recollection of the
incident was contained in his police report, which had been
produced. In the second interrogatory (#10), plaintiffs asked
Davis: “Identify all facts upon which You have based Your
Answer, or have otherwise relied upon, in making the denials
of the allegations of the following paragraphs of the Com‐
plaint: 41, 42, 43, and 44.” Those paragraphs of the complaint
alleged that Davis’s conduct was objectively unreasonable and
intentional or reckless. In his response, Davis stated that all
such facts were contained in his police report. Davis did not
mention in the report that he knew about any statement by the
dispatcher that one dog was “almost dead,” nor did he
No. 15‐3415 9
mention going through a mental checklist of his options prior
to the shooting. He also did not testify about these matters at
his deposition. At trial, Davis acknowledged it was only
during discussions with counsel while preparing for trial when
he first recalled hearing the dispatcher’s statement. Davis also
testified at trial that his police report was an incomplete
summary of the incident.
In plaintiffs’ view, Davis’s failure to disclose this informa‐
tion was unjustified and prejudicial. They argue that the
information came as a “complete surprise,” the timing pre‐
cluded them from developing or offering countervailing
evidence, and the jury verdict was the result of the “surprise
evidence.” Plaintiffs say that had they received timely notifica‐
tion of the information, they could have obtained and offered
a recording or transcript of the actual dispatch, if available, or
the dispatcher’s or other officers’ testimony about what was
said; presented evidence to contradict Davis’s assertions about
a shift change and the catch pole; challenged Davis’s assertions
about the pitfalls of using OC spray; and asked Sergeant Crane
about these matters had he not already testified.
Federal Rule of Civil Procedure 26(e)(1)(A) provides that a
party who has made a disclosure or responded to an interroga‐
tory must supplement or correct his disclosure or response “in
a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not other‐
wise been made known to the other parties during the discov‐
ery process or in writing.” Federal Rule of Civil Procedure
37(c)(1), titled “Failure to Disclose or Supplement,” provides:
“If a party fails to provide information or identify a witness as
10 No. 15‐3415
required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence … at a trial,
unless the failure was substantially justified or is harmless.” In
addition to or instead of this sanction, the court may order the
payment of expenses caused by the party’s failure, inform the
jury of the failure, and impose other sanctions.
When plaintiffs objected to Davis’s testimony at trial and
requested “appropriate sanctions,” the district court denied the
motion, finding that there was no surprise and noting that trial
testimony can sometimes involve matters, even important
ones, that were not explored during depositions. The court
further remarked that plaintiffs’ counsel had impeached Davis
and would have the opportunity to impeach him again by
pointing out that during his deposition, he had failed to
mention some of the matters about which he was now testify‐
ing. Later, in its ruling on plaintiffs’ motion for a new trial, the
district court concluded that there was no discovery violation
because the subject matter of Davis’s challenged testimony had
been disclosed during discovery, and at trial Davis merely
added details to his previously‐disclosed narrative. The court
reiterated its prior observation, both before and during trial,
that plaintiffs’ view of discovery is “unrealistic.”
The interrogatories on which plaintiffs rely were not tightly
focused. They were better suited for a deposition, so it is
understandable that Davis simply pointed to his police report
to answer them. During discovery, plaintiffs were given the
police dispatcher’s log stating that a pit bull was attacking
another dog and “the dog is almost dead.” Nothing prevented
plaintiffs from seeking a recording or transcript of the dis‐
patcher’s actual statements over the radio. Plaintiffs’ counsel
No. 15‐3415 11
asked Davis at his deposition about what he had heard the
dispatcher say, but failed to ask him if he had heard that
specific statement. (In fact, counsel asked Crane about it but,
inexplicably, did not ask Davis.) As for Davis’s thought
process, that is not the kind of information one would expect
to find in a police report, and plaintiff’s counsel had the
opportunity to explore that topic at Davis’s deposition but
barely skimmed the surface. Counsel asked Davis about his
shift, but not about shift changes, and did not ask about all of
Davis’s options. For instance, plaintiffs’ counsel was aware that
Davis carried OC spray, and could have asked more questions
about that. Plaintiffs were provided in discovery all the
information they needed to ask Davis the right questions
before trial.
In any event, even if Davis had violated Rule 26 by failing
to supplement his discovery responses, the failure was
harmless. Davis’s trial testimony was not materially different
from what he had disclosed in discovery, and to the extent he
contradicted his previous testimony or his report, plaintiffs had
the opportunity to, and did, impeach him. Furthermore, there
was no reason why plaintiffs could not have recalled Sergeant
Crane to ask him about the other aspects of Davis’s testimony.
As the district court aptly observed, Davis’s discovery
responses were not a script that he was bound to recite
verbatim at trial. The court did not abuse its discretion in
denying plaintiffs’ motions for sanctions and for a new trial.
B. Jury Instruction on Reasonableness of the Seizure
We review challenges to jury instructions de novo and
afford the district court “‘substantial discretion with respect to
12 No. 15‐3415
the precise wording of instructions so long as the final result,
read as a whole, completely and correctly states the law.’”
Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 433 (7th Cir. 2009)
(quoting United States v. Gibson, 530 F.3d 606, 609 (7th Cir.
2008)). “When it comes to potentially confusing or misleading
instructions, the reviewing court is to first ask if the correct
message was conveyed to the jury reasonably well.” Id.
(internal quotation marks omitted). “This inquiry is done by
examining the instructions as a whole, in a common sense
manner, avoiding nitpicking. If the instructions fail in this
regard, a new trial is appropriate only if the instruction
prejudiced the complaining party.” Id. (citation omitted).
The killing of a companion dog constitutes a “seizure”
within the meaning of the Fourth Amendment. Viilo v. Eyre,
547 F.3d 707, 710 (7th Cir. 2008) (citing Altman v. City of High
Point, N.C., 330 F.3d 194, 204‐05 (4th Cir. 2003); Brown v.
Muhlenberg Twp., 269 F.3d 205, 210‐11 (3d Cir. 2001); Lesher v.
Reed, 12 F.3d 148, 150 (8th Cir. 1994); and Fuller v. Vines, 36 F.3d
65, 68 (9th Cir. 1994), overruled on other grounds by Robinson v.
Solano Cty., 278 F.3d 1007, 1013 (9th Cir. 2002)). Therefore,
Officer Davis’s actions were constitutional only if reasonable.
See id. (citing United States v. Place, 462 U.S. 696, 703 (1983)).
The district court gave the following jury instruction
regarding reasonableness:
You must decide whether Defendant’s seizure was
unreasonable from the perspective of a reasonable
officer facing the same circumstances that Defen‐
dant faced. You must make this decision based on
what Defendant knew at the time of the incident,
not based on what you know now. In deciding
No. 15‐3415 13
whether Defendant’s seizure was unreasonable,
you must not consider whether Defendant’s inten‐
tions were good or bad.
In performing his job, an officer can use force that
is reasonably necessary under the circumstances.
This instruction was based largely on Seventh Circuit
Pattern Jury Instruction 7.09. The jury was also instructed that
the term “seizure” referred to the shooting of the dog.
Plaintiffs argue that the court’s instruction insufficiently
stated the law because it did not guide the jury in assessing
reasonableness in the context of the shooting of a household
pet. They submit that the court erred in rejecting their pro‐
posed addition to the instruction, drawn from Viilo, 547 F.3d at
710: “[U]se of deadly force against a household pet is reason‐
able only if the pet poses an immediate danger and the use of
force is unavoidable.”
The district court rejected plaintiffs’ request to add this
language, and, in its opinion denying plaintiffs’ motion for a
new trial, explained that Viilo is distinguishable and the
requested instruction would have confused the jury. We agree.
Viilo involved police officers’ shooting of one dog at the
owner’s house while the owner was present, not a fight
between two dogs, one of which was evidently a stray, off the
premises of any owner. Plaintiffs’ proposed language does not
fit the facts of this case. The pattern instruction was sufficient
to inform the jury correctly of the applicable law.
C. Manifest Weight of the Evidence
We apply the “abuse of discretion” standard of review to
the district court’s denial of plaintiffs’ motion for a new trial on
14 No. 15‐3415
the basis that the verdict was against the manifest weight of the
evidence. EEOC v. AutoZone, Inc., 809 F.3d 916, 919 (7th Cir.
2016) (citing Lewis, 590 F.3d at 444). We will set aside the
verdict and remand for a new trial only if “‘no rational jury
could have rendered’” it. Id. (quoting Smith v. Wilson, 705 F.3d
674, 677‐78 (7th Cir. 2013)). Under this analysis, we examine
the evidence in the light most favorable to plaintiffs, while
“‘leaving issues of credibility and weight of evidence to the
jury.’” See id. (quoting King v. Harrington, 447 F.3d 531, 534 (7th
Cir. 2006)). “Once the district court applies the correct law, its
discretion is wide and our review deferential.” Whitehead v.
Bond, 680 F.3d 919, 929 (7th Cir. 2012) (brackets omitted)
(quoting Mejia v. Cook Cty., Ill., 650 F.3d 631, 634 (7th Cir.
2011)). The district court “‘is in the best position to evaluate the
evidence and determine whether the verdict was against the
manifest weight; it heard the witnesses testify, saw the evi‐
dence presented, and gained a better appreciation of the
nuances of the case than could be gleaned from a cold, written
record.’” Id. (quoting Mejia, 650 F.3d at 634).
Plaintiffs cite the following undisputed facts in support of
their assertion that the district court abused its discretion in
denying their motion for a new trial: Davis shot Dog less than
a minute after arriving on the scene; he spoke only briefly with
Markou and Jones; he was informed that Markou’s dog was
brown and the pit bull was gray; he knew about his own
colorblindness, that it had been a problem in the past, and that
it could be a problem in the twilight; no person was in immedi‐
ate danger; Davis knew that a number of alternatives to
shooting the dogs existed but rejected them; and after he used
his gun, he called for a supervisor and animal control, who
No. 15‐3415 15
arrived within minutes. Plaintiffs further maintain that it was
“simply unreasonable” for Davis to have behaved as he did.
When it ruled on plaintiffs’ motion for a new trial, the
district court applied the proper standard, citing Mejia, and
reasoned as follows:
At trial, this court had the opportunity to observe
the manner and demeanor of the witnesses who
testified. During their testimony, all three Plaintiffs,
by their body language and choice of words,
showed that they were angry and believed that
they were entitled to substantial damages for the
loss of their dog. It appeared that Plaintiffs’ presen‐
tation of evidence was more focused on damages
than liability. This court wants to be clear that
Plaintiffs did present evidence from which a jury
could have found in their favor. However, in
contrast to the Plaintiffs, Defendant came across on
the witness stand as a very reasonable person who
came into a chaotic, emergency situation and did
what he thought was best at the time. This court
therefore concludes that the jury was presented
with a legally sufficient amount of evidence from
which the jury could reasonably derive its verdict
in favor of Defendant.
We find no fault with this assessment of the evidence at
trial, which also showed that Davis had prior experience with
pit bulls and knew they could be vicious. And the dog in‐
volved in this fight was indeed described as vicious. Davis
offered plausible reasons for rejecting alternative courses of
action, including the risk of danger to the bystanders. Plaintiffs
are adamant that this risk was not “immediate,” but they fail
16 No. 15‐3415
to acknowledge that a vicious dog was involved and the
situation thus could have changed at any moment.
Plaintiffs merely recite the evidence that would have
supported a verdict in their favor and fail to address the
countervailing evidence and the district court’s analysis. Based
on the record, we cannot say that the district court, having
observed the witnesses and assessed their credibility and heard
the rest of the proof at trial, abused its discretion in holding
that the jury verdict was not against the manifest weight of the
evidence.
CONCLUSION
We AFFIRM the judgment of the district court.