“Accio Dismissal!” – 11th Circuit Rules K-9 “Officer” Draco Cannot Be Sued


By: Wayne S. Melnick

Last week, the Eleventh Circuit Court of Appeals took up the plight of Draco – not the wizarding nemesis of a certain lightning-bolt-shaped scared boy, but a Gwinnett County Police Department now-retired Belgain Malinois. In affirming the ruling of the district court granting dismissal to “Officer” Draco, the Eleventh Circuit determined that Georgia law does not provide for negligence liability against dogs.

After Bat-Bogey Hexing the claims made against the human officers (because, let’s face it, those are nowhere near as interesting), the court turned to the question of whether the claims against Draco were viable. As the court noted, if it could not determine that the claims were not viable, then it would have to determine if Draco could claim official immunity and how!

In examining Georgia precedent, the unanimous court quickly determined that the codification of negligence, by its express terms, provides that only a person may be held liable for breaching a legal duty. Even the statutory definition of person (which includes non-people such as corporations, firms, etc.), did not provide any basis for such a claim. In fact, the court was even able to cite to its own precedent interpreting the First Amendment that a cat had no right to free speech because it could not be considered a person.

Finally, the court noted that even if there was any ambiguity about whether a dog could be sued, the creation of such a right would also create an abundance of practical problems such as: how to serve Draco, how Draco could retain legal services (short of Legilimency, of course), how to apply official immunity defenses to Draco for the claims made against him in his individual capacity as a public employee, and if he were found liable, how could he be expected to pay damages?

In the end, the court ruled in favor of Draco as if he had quaffed a potion of Felix Felicis. As for plaintiff’s claims?  They were as dead on appeal as if struck by Avada Kedavra itself.

For any questions, please contact Wayne Melnick at [email protected].