Doggie Due Process: The Saga of "Tut-Tut," "Bandit," "Boo Boo," and "Sadie"

Doggie Due Process:The Saga of "Tut-Tut," "Bandit," "Boo Boo," and "Sadie" Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir.(N.C.) 2003)

Why Should We Care About Animal Control? • http://www.225batonrouge.com/news/2007/jul/31/biting-back/ • ER Visits • Rabies, Intestinal parasites, lots of dog shit issues • What does animal control do? • What do you do with all the bad/sick/unwanted dogs? • What do animal rights folks want? • Do they want to pay for it?

Doggie Facts • What is a dog "at large" • Why were the animal control officers called? • Describe the interaction between the dogs and the officers • What happened to the dogs? • What would have happened had they been people? • What due process was provided? • How did plaintiff characterize the act in legal terms?

42 USC § 1983. Civil action for deprivation of rights • Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ...

State Action • Who is the state actor? • What is the relationship to the state? • Why were civil rights acts passed? • What sort of color of state action was Congress thinking about? • Is the city a political subdivision of the state, i.e., is the city covered by the 11th Amendment? • Why does this matter?

The Constitutional Violation • Is 1983 just a substitute for tort laws? • What type of violation is necessary for a 1983 claim? • What kind of torts might qualify? • Whose rights were violated in this case? • What is the constitutional claim, i.e., what part of the constitution has been violated?

Dog Law in History

Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 701 (1897) • "[P]roperty in dogs is of an imperfect or qualified nature, and [ ] they stand, as it were, between animals ferae naturae, in which until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete."

Nicchia v. People of State of New York, 254 U.S. 228, 230 (1920) • "Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right."

Jones v. Craddock, 187 S.E. 558, 559 (N.C. 1936) • "Even in the days of Blackstone, while it was declared that property in a dog was 'base property,' it was nevertheless asserted that such property was sufficient to maintain a civil action for its loss.").

Is this Like Conversion? • "The present action by the plaintiffs, though brought under a federal statute pursuant to a constitutional amendment, is not in nature unlike a common-law action for trover based on the officers' conversion of their dogs. In this way, the plaintiffs clearly assert a right with an analog at common law, a fact which strongly suggests that, at least to this extent, dogs would have been protected as "effects" within the meaning of the Fourth Amendment at common law.

The Role of Dogs in Modern Day Society • Has the historic view of dogs changed? • Do some people pay for dogs? • Do some people confuse dogs with relatives? • What did the Katrina evacuation tell us about dogs? • Should the constitutional view of dogs evolve as well? • Did this court find dogs to be 4th Amendment effects? • What type of property does the court hold the dog to be? • What would they think of this in San Francisco?

Is Killing a Dog a Seizure? • If the dog is property, what is the effect of killing the dog? • Does the state need to take possession of property to seize it? • What is the test: is killing a dog a seizure of a dog?

Is this Seizure a Taking? • What is a taking under the constitution? • What must the government do if it takes property? • If killing the dog was justified, must the government pay for the value of the dog? • Why not? • What if the killing was not justified?

Qualified Immunity: Harlow v. Fitzgerald, 457 U.S. 800 (1982) • The Court ruled that government officials performing discretionary functions should be protected from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would be aware. • Those who are plainly incompetent or who knowingly violate the law cannot invoke qualified immunity.

The Policy Rationale for Qualified Immunity • Why is qualified immunity necessary for governmental action? • What would be a Mathews analysis? • Does litigation only cost when the defendant loses? • Why is there a strong policy for summary judgment in 1st amendment news cases? • Who has to pay the damages if the officers get qualified immunity but did improperly kill the dog?

Standards for Qualified Immunity • ...the Fourth Circuit considered whether police officers who bound a defenseless man to a pole with flex cuffs at three in the morning in a deserted parking lot and then abandoned him, all with admittedly no legitimate law enforcement purpose, were entitled to qualified immunity. (Robles v. Prince George's County, Maryland, 302 F.3d 262 (4th Cir. 2002)) • What did the Robles court find? • What does this tell us about the standard for qualified immunity?

Do the Officers Get Qualified Immunity? • Assume that it is ultimately found that the dog was improperly destroyed and that damages are owed. • Were the officers acting reasonably in their belief that they had the right to shoot the dogs? • Finally, city ordinance provides that"[i]t shall be lawful for the animal control specialist or police officers of the city to tranquilize or kill any dog at large within the city which cannot safely be taken up and impounded."

The Dissent on Standard of Proof • The dissent reminds the majority that they are supposed to be looking on the plaintiff's allegations as true for the purposes of the motion. • What is plaintiff's story about the dogs? • Can the plaintiff rebut the dogs being a large? • Can you believe their claims the dogs were harmless? • What personal history does he point to that he sees as discrediting the officers? • Do we know if this is excessive?

The Dissent on Qualified Immunity • ...an officer violates clearly established federal law" when he shoots and kills an individual's family pet when that pet presented no danger and when nonlethal methods of capture would have been successful." • Where does he find this law? • Does the majority agree? • Is that alone evidence to support qualified immunity?

What is the Right Question?What would Atticus Finch have Done? • Even if you believe the plaintiff's story, were the dogs at large as defined by the statute? • Was there evidence that they were menacing people? • Given this information, was it clearly unconstitutional to kill them, rather than using non-deadly means to subdue them? • If this is not clear, then defendants get qualified immunity.

42 USC 1983 Closer to Home • http://lawprofessors.typepad.com/legal_profession/2008/12/fifth-circuit-u.html • Before the United States Supreme Court right now. • Must prove more than negligence: • The court found this: "was not the unanticipated action of a single rogue prosecutor" • Must show standard of the department

Doggie Due Process: The Saga of "Tut-Tut," "Bandit," "Boo Boo," and "Sadie"