dissenting.
T 33 We granted certiorari in this case on the following questlon (which we reframed): "Whether the government's willful use of a police dog that turned and attacked a nearby non-resisting untargeted suspect was a 'seizure' achieved 'through means intentionally applied."" The majority purports to narrowly resolve this case but offers up a broad proposition instead. After exploring the procedural setting in which the question we actually took emerged, it essentially holds that an actionable seizure under 42 U.S.C. § 1988 (2014) occurs only when a K-9 "find and bite" dog manages to find and bite a specifically targeted person-namely the precise person (or persons) at whom the handler intended to. direct the dog. But it is not the handler's intention about precisely whom the *609dog should find and bite that counts. Rather, under Brower v. County of Inyo, 489 U.S. 593, 595-98, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), there is a seizure whenever the government intentionally deploys an instrumentality to terminate a person's freedom of movement and, by the chosen means, a person's freedom of movement is actually terminated. < Under this test, Sebastian was seized. Because the majority's conclusion misapprehends the relevant intent for determining whether a seizure occurred, I respectfully dissent.
¶ 34 It is unquestionably true that a plann— tiff has no cognizable Fourth Amendment seizure claim unless "there is a governmental termination of freedom of movement through means intentionally applied." Id. at 596-97, 109 S.Ct., 1378 (emphasis in original), In other words, violation of the Fourth Amendment requires a state actor to intentionally acquire physical control of a person. Id. at 596, 109 S.Ct. 1378.
85 The test for intent in this context is objective and is satisfied when any person is stopped by an instrumentality set in motion or put in place in order to achieve a seizure. Id. at 596, 599, 109 S.Ct. 1378. Brower involved a police roadblock-an éighteen-wheeler set up around the bend of a highway-intended to stop the fleeing suspect Brower. Id. at 594, 109 S.Ct. 1378. Brower was killed when the car he was driving crashed into the barrier, id., and the U.S. Supreme Court unanimously agreed that he was "seized," id. at 599, 109 S.Ct. 1378; id. at 600, 109 S.Ct. 1378 (Stevens, J., concurring in the judgment). The Court explained that the police employed the roadblock to stop Brow-er and that the "very instrumentality" they put in place accomplished that purpose. Id. at 599, 109 S.Ct. 1378 (majority opinion).
1 36 The majority's analysis today suggests that if another driver had smashed into the barrier he would not have been seized because the police only meant to target Brower. But Justice Scalia's majority opinion was explicit: "A seizure occurs even when an unintended person or thing is the object of the detention or taking" so long as the detention or taking is "willful." Id. at 596, 109 S.Ct. 1378, Therefore, the capture of an innocent bystander is a seizure as long -as the police (1) acted through means intentionally applied and (2) desired for a seizure, any seizure, to occur. See id. at 596-97, 109 S.Ct. 1378.
137 The majority finds Sebastian's allegation to be an inadequate legal conclusion because ultimately it was the dog who failed to distinguish between those who fled and Sebastian who stayed. See maj. op. ¶ 25. But blaming the dog seems an odd way to resolve the matter when it was law enforcement who made the decision to deploy the dog, This brings to mind the adage that it's a poor craftsman who blames his tools. Surely, law enforcement has sufficient accountability for the inherent characteristiecs-the nature-of the tool it decided to use here that this pleading is facially adequate, even as viewed through the prigm of C.R.C.P. 60(b)(1), as the plaintiff struggles to resuscitate his case.
138 When police deploy a find and bite dog, they do so realizing that the dog might choose to deviate from the intended target. Careful deployment can make it more likely that the dog will bite only the specific target, though, in the end, even a well-trained dog remains an autonomous creature capable of acting on its independent intelligence. In this sense, dogs are radically different from other tools police use to subdue recalcitrant suspects. A nightstick has no mind of its own, And projectiles generally go where they're aimed. But dogs can stray.
"39 Recognizing this distinction, the panel below sought to fashion a rule sensitive to the nature of the instrumentality used. It concluded that we may infer an officer's intention to seize whomever the dog encounters within some spatial limitation, Therefore, it subscribed to the view that a law enforcement officer who intentionally deploys a dog to seize someone intends to seize anyone in "the space" where the dog is released. Sebastian v. Douglas Cty., 2013 COA 132, ¶¶ 24-29, - P.3d -.
¶40 But what exactly 'is the space? And how would parties apply such a nebulous concept in a principled fashion across a broad array of factual seenarios going forward? Sebastian alleges that he was approximately *610ten feet from the boys as they hopped the fence and Deputy Black loosed the dog, but the division below concluded Sebastian was not in the relevant space. The court. of appeals explained he was "not located in the direction," i.e., in the path of, the dog because "the dog had to turn to see Sebastian in the car." Id. at ¶ 28. Fastening a directional component to the spatial analysis, however, defeats its purpose. The dog isn't fired off in a straight line, The benefit of a dog as a tool of seizure is its ability to improvise, to turn and track in response to new developments, to hunt, Spatial analysis is an attempt to grapple with the dog's an-tonomy Sometimes the dog's choices align with the handler's goals. Sometimes not. But "the space" doesn't matter because what is critical is the intentional release of the dog. From there, if the dog finds someone and bites him, the seizure is complete.
T 41 The majority rests on the K-9's failure to distinguish and thereby gives the dog too little eredit and too much power. The dog's job is to find and to bite, and if it manages to do both, it has had a successful day. If the dog deviates from the officer's intended quarry and bites the wrong person, that does not overrule the officer's intention to deploy the dog in the first place. It is the selection and deployment of the dog as the instrumentality to effect a seizure that matters. But, for the majority, that holds true only if the dog sticks to the plan. While the dog in this case may have gone off seript in biting Sebastian, "(tlhe dog is not a defendant in this suit nor could it be." Andrade v. City of Burlingame, 847 F.Supp. 760, 764 (N.D.Cal.1994).
142 Ultimately, the faulty premise supporting today's majority opinion, as well as the opinion of the panel below, is that an actionable seizure requires the intent to acquire physical control over a specific target ora target within some specific space, as opposed to simply releasing the dog with the intent that the dog find and bite any person in any space. Adbering to Brower, I find this more generalized intent sufficient for determining whether there is a seizure.
€ 43 The majority seeks to distinguish the prominent K-9 cases from around the country by noting that many of them simply involved mistaken identity-law enforcement sent the dog to find and bite a. bad guy, only to discover that the bad guy (e.g., a burglar) was really a good guy (e.g., a homeowner). The majority seems to accept that these cases involved seizures because, even though the dog attacked an innocent person, it was at least the person whom the officer intended the dog to attack, A requirement that the person bitten be the person targeted leaves random, innocent bystanders-those whose seizure by police dogs is the least reasonable-with no Fourth Amendment claim be-couse of their status as bystanders. This is not the proper test,
44A recent decision from the Northern District of California is instructive on this point, In McKay v. City of Hayward, 949 F.Supp.2d 971, 975-76 (N.D. Cal. 2013), police officers used a police dog to track a suspect. The dog guided the officers to an eight-foot-high concrete wall, One of the officers then chose to lift the dog over the wall and lower it without warning into the backyard of a residence. The dog mauled an elderly, innocent homeowner who later died from complications related to his injuries. The homeowner's children alleged that the state actors had violated the homeowner's right to be free from unreasonable seizures. In denying the state's motion for summary judgment, the court found that there was a seizure because of the "intentional deployment of a police dog trained to track and bite a person." Id. at 979. "That [the homeowner] was not the robber or the target of the search does not matter." Id. (emphasis added).
145 To similar effect is Garcia v. City of Sacramento, No. 10-cv-00826-JAM-KJN, 2010 WL 3521954 (E.D. Cal. Sept. 8, 2010). Garcia was an innocent bystander attacked by a K-9 that was supposed to be pursuing a fleeing suspect. Id. at *1,. Because the police "consciously deployed [the dog] to search for and subdue [the suspect]," Garcia's complaint stated a Fourth Amendment-based claim under section 1983. Id. at *2. The court noted that although the dog attacked the wrong person, the police clearly had the intent to use the dog to terminate an individ*611ual's freedom of movement. Id. That was enough for a seizure. Id.
[ 46 This doesn't mean that anytime a K-9 bites someone there is a basis for a lawsuit. Some cases involve dogs not trained to find and bite, such as scent-tracking dogs. E.g., Dennis v. Town of Loudon, No. 11-cv-302-JL, 2012 WL 4324932, at *1, *5 (D.N.H. Sept. 20, 2012) (holding no seizure occurred where a dog, tracking the scent of another person, bit Dennis in the woods because the dog was not deployed "with the intention of gaining control of Dennis or anyone else" (emphasis added)). Other cases involve dogs that simply escape their handlers. E.g., Andrade, 847 F.Supp. at 762, 764-65 (granting the defendants' motion for summary judgment where the dog bit two girls after escaping the squad car's rear compartment and jumping out of the. driver's open door). Absent a handler's command to seize, there can be no meaningful argument that there has been an intentional termination of freedom of movement.
147 Here, however, there is nothing to suggest the dog's release was accidental (e.g., due to escape). On the contrary, it is undis: puted that the deputy intentionally employed his K-9 to find and bite someone. The deputy intended to release the dog. He intended for the dog to chase and seize the suspects from the ear. Therefore, he intended a gov-ernmentally sanctioned seizure and frtended for his dog to be the instrumentality for that seizure, The dog did its part by terminating a person's freedom of movement. (And not just any person-someone from the car.) Although it may be true that Deputy Black did not intend to seize Sebastian in particular, that is irrelevant.
* 48 Of course, the threshold question of seizure is just one.component. of a meritori- - ous Fourth Amendment claim. Whether releasing the dog finder these cireumstances constituted an unreasonable use of force is a separate issue 'not before us. See McKay, 949 F.Supp.2d at 983 ("Using a police dog . is not a per se use of excessive force. Rather, a plaintiff must show that it was clearly established that, under the cireum-stances, the use of the police dog was unlawful." (citation omitted)). Thus, to recognize what happened to Sebastian as the seizure that it was does not impose liability on the county or any of its officers. The use of K-9s and other non-lethal tools can help police perform their critical duties while also protecting citizens from more deadly forms of state power, but whether Sebastian's section 1983 claim is meritorious-itself just one factor in the C.R.C.P. 60(b) analysis under Goodman Associates, LLC v. WP Mountain Properties, LLC, 222 P.3d 310 (Colo.2010)is not within the scope of the issue on which we granted certiorari review.
© For all these reasons, I respectfully dissent.
I am authorized to state that JUSTICE MARQUEZ joins in this dissent. /