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Title: Federal Judge Rules Unlicensed Dogs Aren't Protected By Fourth Amendment
Source:
Reason
URL Source: http://reason.com/blog/2017/08/03/f ... dge-rules-unlicensed-dogs-aren
Published: Aug 3, 2017
Author: C.J. Ciaramella
Post Date: 2017-08-04 10:11:12 by Deckard
Keywords: None
Views: 2824
Comments: 39
A federal judge ruled Wednesday that a Michigan woman has no basis to sue the Detroit Police Department (DPD) for shooting her three dogs because they were not properly licensed. U.S. District Court Judge George Caram Steeh dismissed a federal civil rights lawsuit filed by Detroit resident Nikita Smith last last year after a marijuana raid by Detroit police left her three dogs shot to death. The ruling is the first time a federal court has considered the question of whether an unlicensed pet—in violation of city or state code—is protected property under the Fourth Amendment. Federal courts have established that pets are protected from unreasonable seizures (read: killing) by police, but the city of Detroit argued in a motion in March that Smith's dogs, because they were unlicensed, were "contraband" for the purposes of the Fourth Amendment, meaning she had no legitimate property interest in them and therefore no basis to sue the officers or department. In his Wednesday opinion Steeh agreed. "The Court is aware that this conclusion may not sit well with dog owners and animal lovers in general," the judge wrote. "The reason for any unease stems from the fact that while pet owners consider their pets to be family members, the law considers pets to be property." "The requirements of the Michigan Dog Law and the Detroit City Code, including that all dogs be current with their rabies vaccines, exist to safeguard the public from dangerous animals," he continued. "When a person owns a dog that is unlicensed, in the eyes of the law it is no different than owning any other type of illegal property or contraband. Without any legitimate possessory interest in the dogs, there can be no violation of the Fourth Amendment." And without any Fourth Amendment violation, Steeh continued, there is no basis for a civil rights claim against the city. Steeh also ruled that Smith's suit would have been dismissed even if she had a cognizable property interest in the dogs, finding that the animals presented an imminent threat to the officers. Smith's lawsuit characterized the Detroit police officers who raided her house as a "dog death squad." She claimed officers shot one of her pets through a closed bathroom door. Graphic photos from the raid on Smith's house showed the dog lying dead in a blood-soaked bathroom. Smith's case is only one of several lawsuits that have been filed against the DPD for dog shootings over the past two years. The city of Detroit settled one of those suits for $100,000 after dash cam video showed an officer shooting a man's dog while it was chained to a fence. It was also one of three lawsuits against DPD for shooting dogs during marijuana raids. The most recent was filed in June after DPD officers allegedly shot a couple's dogs while the animals were behind a backyard fence. A Reason investigation last year found the DPD's Major Violators Unit, which conducts drug raids in the city, has a track record of leaving dead dogs in its wake. One officer had shot 39 dogs over the course of his career before the raid on Smith's house, according to public records. That officer is now up to 73 kills, according to the most recent records obtained by Reason. Two other officers involved in the Smith raid testified during the trial that they had shot "fewer than 20" and "at least 19" dogs over the course of their careers. The court's opinion notes that the "police officers conducting the search had not received any specific training on how to handle animal encounters during raids." The ruling also noted that Detroit police supervisors found that the shooting of Smith's dogs by officers were all justified. "However, as in many other cases, the ratifying officers did so without speaking to the officers about what had transpired," the court wrote. Reason's review of "destruction of animal" reports filed by Detroit police officers did not find a single instance where a supervisor found that a dog shooting was unjustified. Detroit police obtained a search warrant for Smith's residence after receiving a tip that marijuana was being sold out of it. Police confiscated 25 grams of marijuana as a result of the raid, and Smith was charged with a misdemeanor. However, the case against her was later dismissed when officers failed to appear at her court hearing. Neither an attorney for Smith nor the Detroit Police Department were immediately available for comment. Poster Comment: Police confiscated 25 grams of marijuana as a result of the raid... Less than one ounce.Nikita Smith sued the Detroit police after they shot her three dogs on a pot raid. A judge ruled the dogs were "contraband."
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Begin Trace Mode for Comment # 28.
#28. To: Deckard, jeremiad, Vicomte13, Stoner, Pinguinite, Anthem, A K A Stone, rlk (#0)
Smith v. Detroit, Doc 27, Order Granting Defendant's Motion for Summary Judgment at pp. 13-20 I. Plaintiffs’ Fourth Amendment Interest in Their Dogs Defendants argue that because Smith and Thomas failed to license their dogs, which is a misdemeanor violation of City and State law, the dogs were “contraband” and therefore not protected by the Fourth Amendment. Defendants also argue that Smith had no interest in the dogs because Thomas was the sole owner. In response, Plaintiffs argue: (1) Defendants waived the affirmative defense of “license” when they failed to include it in their pleadings, per Federal Rule of Civil Procedure 8(c); (2) both Thomas and Smith had possessory interests in the dogs; and (3) there is no exception to the Fourth Amendment for unlicensed dogs. A. Defendants did not waive their affirmative defense Plaintiffs contend that Defendants waived their affirmative defense of “unlicensed dog” when they did not include it in their answer to the complaint. Federal Rule of Civil Procedure 8(c) provides that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense,” and specifically enumerates “license” as an affirmative defense. However, the failure to plead an affirmative defense does not necessarily result in waiver. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993). The purpose of Rule 8(c) is to provide the opposing party notice of an affirmative defense, and a chance to rebut it. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350 (1971). As long as an affirmative defense is raised within a reasonable time and does not prejudice Plaintiffs’ ability to respond, it is not waived. Moore, 992 F.2d at 1445-46. Defendants did not waive their affirmative defense because their failure to raise it did not prejudice Plaintiffs’ ability to respond. Even before the onset of litigation, Plaintiffs knew that their dogs were not licensed. Additionally, Plaintiffs had sufficient opportunity to answer this motion. Because Defendants’ failure to comply with Rule 8(c) has caused no prejudice, they are permitted to amend their answer to assert it. B. Smith and Thomas are both “owners” of the dogs The Michigan Dog Law of 1919 defines a dog’s “owner” as “every person having a right of property in the dog, and every person who keeps or harbors the dog or has it in his care, and every person who permits the dog to remain on or about any premises occupied by him.” M.C.L.A. § 287.261(2)(c). Smith testified that she co-owned, harbored, and cared for the dogs. Police reports corroborate the fact that the dogs were killed on premises that Smith and Thomas occupied together. Therefore, Smith and Thomas both constitute owners with possessory interests in the three dogs. C. Plaintiffs did not have a legitimate possessory interest in their unlicensed dogs The Sixth Circuit has held that dogs are property, and as a general proposition the unreasonable seizure of that property violates the Fourth Amendment. Brown v. Battle Creek Police Department, 844 F.3d 556, 566 (6th Cir. 2016). However, the Supreme Court has held that there is no legitimate property interest in contraband protected by the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 408 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Contraband is defined as “[a]ny property that is illegal to produce or possess.” Contraband, West’s Encyclopedia of American Law (2d ed. 2008). Thus, property that is illegal to produce or possess is not protected by the Fourth Amendment. United States v. Janik, 723 F.2d 537, 547 (7th Cir. 1983). In both the City of Detroit and the State of Michigan, it is a criminal misdemeanor offense to possess unlicensed dogs. According to the Michigan Dog Law of 1919, it is “unlawful for any person to own any dog 6 months old or over, unless the dog is licensed.” M.C.L.A. § 287.262. Failing to license a dog constitutes a misdemeanor offense that is punishable by imprisonment in the county jail for up to three months, a fine between ten and one hundred dollars, or both a fine and imprisonment. M.C.L.A. § 287.286. The Michigan Dog Law designates unlicensed dogs as public nuisances. M.C.L.A. § 287.277. Markedly, “[n]othing in [the Michigan Dog Law] shall be construed to prevent the owner of a licensed dog from recovery, by action at law, from any police officer or other person, the value of any dog illegally killed by such police officer or other person.” M.C.L.A. § 287.287 (emphasis added). The Michigan Dog Law also authorizes individuals, including law enforcement, to kill a dog attacking humans. M.C.L.A. § 287.279. Following this authorization, the statute provides, “[e]xcept as provided in this section, it shall be unlawful for any person, other than a law enforcement officer, to kill or injure or attempt to kill or injure any dog which bears a license tag for the current year.” Id. In both cases, the statute specifically refers to recovery for licensed dogs. On the other hand, the Michigan Dog Law does not simply authorize officers to seize unlicensed dogs. In 2014, M.C.L.A. § 287.277 was specifically amended to remove a provision that required the sheriff to locate and kill all unlicensed dogs. 2014 Mich. Legis. Serv. 32 (H.B. 4168) (West). Following this amendment, prosecutors must commence proceedings against the owners of unlicensed dogs before they are seized. M.C.L.A. § 287.277. The Michigan Dog Law of 1919 does require due process including notice and a show cause hearing before unlicensed dogs may be killed for lacking a license. M.C.L.A. § 287.286a. Of course this specific provision does not apply to the facts of the instant case, where the officers did not shoot the dogs because they were unlicensed. Rather, the officers shot the dogs for posing an imminent threat to their safety and were not even aware that the dogs were unlicensed. Detroit City Code § 6-2-1(a) similarly provides that it is unlawful to “own, harbor, keep, or shelter” an unlicensed dog that is over fourth months old. Detroit City Code § 6-2-1(c) provides that the Animal Control Division “is authorized to impound, sell, euthanize, or dispose of any unlicensed dog consistent with the Michigan Dog Law of 1919.” Violating this city code constitutes a misdemeanor offense, and is punishable by a fine of up to five hundred dollars, or up to ninety days in jail, or both a fine and imprisonment, for each violated ordinance. Detroit City Code § 6-2-12. Notably, there is no prior case that explicitly designates unlicensed dogs as contraband or provides that there is no legitimate possessory interest that can be protected by the Fourth Amendment in an unlicensed dog. However, this argument was discussed in the dicta of Pena v. Village of Maywood, 2016 WL 1019487 (N.D. Illinois). Near the end of the opinion, which denied cross motions for summary judgment, the court stated: Id. at *9-10. In Janik, the Seventh Circuit held that the plaintiff did not have a legitimate possessory interest protected by the Fourth Amendment in an unregistered disassembled submachine gun, which police had seized without a warrant. Janik, 723 F.2d at 547. However, if Janik had obtained a license for his weapon, he would have retained a possessory interest in it. The reasoning from Janik extends to the case at hand. Two Pit Bulls and a Rottweiler present a danger to the public similar to an unregistered gun. The Michigan Dog Law explicitly designates unlicensed dogs as public nuisances. M.C.L.A. § 287.277. Additionally, the Dog Law only specifies that damages can be recovered for licensed dogs that are illegally killed. M.C.L.A. § 287.287. Had Thomas and Smith licensed their dogs, the police may have had advance notice that they existed. Thomas and Smith committed a misdemeanor violation of both the Michigan Dog Law of 1919 and the Detroit City Code by not licensing their dogs. Consequently, the dogs fit within the definition of contraband, and Plaintiffs do not enjoy a legitimate possessory interest protected by the Fourth Amendment under the particular facts of this case. D. Claims based on Fourth Amendment violations are dismissed The Court is aware that this conclusion may not sit well with dog owners and animal lovers in general. The reason for any unease stems from the fact that while pet owners consider their pets to be family members, the law considers pets to be property. The requirements of the Michigan Dog Law and the Detroit City Code, including that all dogs be current with their rabies vaccines, exist to safeguard the public from dangerous animals. When a person owns a dog that is unlicensed, in the eyes of the law it is no different than owning any other type of illegal property or contraband. Without any legitimate possessory interest in the dogs, there can be no violation of the Fourth Amendment. Without any constitutional violation, Plaintiffs have no basis for a 42 U.S.C. § 1983 action against the individual Police Officers and Sergeant, as well as against the City of Detroit. Because this is an issue of first impression, the court will continue to analyze defendants’ other arguments as if plaintiffs did have a legitimate possessory interest in the dogs protected by the Fourth Amendment. II. Claims against Officers Wawrzyniak and Howell, and Sergeant Harris Before evaluating the reasonability of a seizure, the court must determine whether a Fourth Amendment seizure has occurred. Adams v. City of Auburn Hills, 336 F.3d 515, 519 (6th Cir. 2003). Because Officer Wawrzyniak, Officer Howell, and Sergeant Harris did not fire their weapons or harm the dogs, they did not seize the dogs. Consequently, the § 1983 claims for illegal seizure of the dogs and the state claims of conversion and intentional infliction of emotional distress against Wawrzyniak, Howell, and Harris are dismissed.
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This leads to another nagging question left unresolved by the parties’ submissions. As already noted, the Penas had not licensed, registered, or neutered their pit bull, violating three city ordinances…One cannot help but wonder whether the Penas have any legitimate possessory interest in the animal that would be the basis of a Fourth Amendment violation in the first place. See, e.g., Allen v. Pennsylvania Soc. for Prevention of Cruelty to Animals, 488 F.Supp.2d 450, 466 (M.D.Pa.2007) (“…the property was contraband and that Allen could have no legitimate property interest in the animals. Without a constitutionally protected property interest in the animals, Allen cannot claim that their prolonged seizure also violated the Fourth Amendment.”); see also Illinois v. Caballes, 543 U.S. 405, 408 (2005) (“…any interest in possessing contraband cannot be deemed ‘legitimate”); United States v. Goodwin, 449 F.3d 766, 770 (7th Cir. 2006) (no legally protected interest in contraband); United States v. Janik, 723 F.2d 537, 547 (7th Cir. 1983) (no lawful property interest in unregistered gun). Moreover, if the Penas had followed the law rather than flout it and registered their pit bull, law enforcement might have had notice of the dangerous animal on the premises and acted differently.
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