Jurors could find Officer Mathew Grashorn acted unreasonably by shooting a puppy who had come over to see him, Judge Raymond Moore concluded

A jury will decide whether a Loveland police officer violated a couple’s constitutional rights when he shot their puppy in the head and torso, after a federal judge decided against granting immunity last week.

Officer Mathew Grashorn had pulled up in an empty parking lot on a weekend to find Wendy Love and Jay Hamm parked with their dogs. The animals trotted toward Grashorn when he exited his vehicle, but the younger dog, 14-month-old Herkimer, did not immediately turn around when called. Grashorn quickly shot him twice.

Although Grashorn invoked qualified immunity, which shields government officials from liability unless they violate a person’s clear constitutional rights, U.S. District Court Senior Judge Raymond P. Moore concluded jurors should have their say about the reasonableness of Grashorn’s conduct.

“Although a reasonable jury could decide that Herkimer posed a danger to Defendant,” he wrote in a Nov. 15 order, “it could also decide that he did not pose an immediate danger. Because there is sufficient evidence of the latter, this factor weighs in Plaintiffs’ favor.”

The sequence of events, as captured on Grashorn’s body-worn camera, was undisputed. Love and 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, 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, Grashorn had paralyzed him and his owners were forced to euthanize him after they could not afford sugery.

Love and Hamm sued Grashorn, alleging an unlawful seizure under the Fourth Amendment. Moore declined to dismiss their claim last year, but Grashorn then filed a motion for summary judgment — asking Moore to resolve the case without a trial if the key, undisputed facts showed he acted reasonably.

Large swaths of Grashorn’s filings were dedicated to blaming Love and Hamm for the encounter, and his lawyers emphasized nearly two dozen times that Grashorn only had “a mere three seconds” to react to a puppy coming to see him.

“Plaintiffs were trespassing and Officer Grashorn was merely doing his job,” wrote attorneys Jonathan M. Abramson and Yulia Nikolaevskaya. “Officer Grashorn believed his well-being was in danger and he did not have to wait to find out if Herkimer really intended to bite Officer Grashorn’s leg.”

Love and Hamm countered that no reasonable person would have believed it was necessary to use deadly force on a puppy when there were other options available to Grashorn, like stepping back into his patrol car.

“There was no urgency to do anything to Herkimer. It was a garden variety dog encounter. Herkimer was trotting up to greet Grashorn in the manner that Grashorn admitted any friendly dog would,” wrote attorney Sarah Schielke.

Moore considered multiple factors in deciding whether to resolve the case in Grashorn’s favor. He acknowledged Herkimer looked like a pit bull, which could have reasonably caused Grashorn concern. But Herkimer was in the presence of his owners and non-lethal options were available.

Most importantly, Moore could not say whether Herkimer posed a danger. Because a jury could find Grashorn’s reaction was unreasonable, Moore green-lit the case for trial.

At the same time, he dismissed Love and Hamm’s related claim against Grashorn under Colorado’s 2020 police accountability law. Grashorn argued the law was inapplicable to him because the legislature enacted it after he shot Herkimer, and the plaintiffs did not contest that.

A jury trial is scheduled for November 2024.

The case is Love et al. v. Grashorn.