United States News
See other United States News Articles
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: 2803
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."
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
#1. To: Deckard (#0)
Moral: if you're gonna smoke pot in Detroit, don't have an unlicensed dog. Or perhaps: If you don't want your dog shot in Detroit, don't smoke pot.
Or perhaps: Don't live in Detroit ( Detoilet )
Si vis pacem, para bellum Rebellion to tyrants is obedience to God. Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt I am concerned for the security of our great nation; not so much because of any threat from without, but because of the insidious forces working from within." -- General Douglas MacArthur
The Phrygian Stables need cleaning.
Do I have to say it? A Code violation does not come into the purview of law enforcement. It is at most a civil matter and the fines must be adjudicated in a lengthy and expensive process with the costs being born only by he who brings suit. With that said, I have never licensed my pets, and will never license my pet. I take him to the doctor, he has his vaccinations, but I WILL NOT SUBMIT to a licensing fee every 6 months X eternity.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Pot possession is not a code violation. The issue was whether the alleged owner could sue for the killing of the dogs. As the dogs were not licensed, he was not the lawful owner, therefore he had no legal right to sue for damages. It's your choice. The legal consequence is that you are not the lawful owner of the property (pets) and cannot sue for injury to, or death of, "your" pets.
That sounds like a leap to me. Is your living room couch licensed? If not, are you therefore not it's lawful owner? Can the state sever a person's right of ownership to property by creating a license? I think the judge's logic is flawed.
Is your living room couch licensed? Is an unlicensed couch unlawful to possess? If you possess something which is unlawful to possess, it is contraband and you are not the lawful owner. "Contraband any property the possession or transportation of which is illegal." Law Dioctionary, 2nd ed., Steven H. Gifis "Legal owner. One who is recognized and held responsible by by the law as the owner of property." Black's Law Dictionary, 6th ed. During the civil war, the U.S.A. seized Confederate slaves as contraband. The only place you are going to contest a government action is a government court. They might have a conflict of interest but the dogs were held out to be contraband. They are not severing a right to legal ownership if said right never inhered. He was never recognized by the law as the owner. The Federal court judge wrote:
I guess it is a good thing I don't live in Michigan. Are you aware that the Dem/communist party has a wet dream about requiring people to get licenses to give birth to and raise children.?
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
You failed to address my point. If the state requires no license to possess a living room couch, then your possessing one you acquired legally is considered legal and lawful ownership, and you cannot be deprived of it without violating the 4th Amendment. Then one day, the state decides to require a license to own a couch. You don't have one and let's say that in spite of your best efforts, you cannot obtain one. A license is, after all, a legal privilege. The police then raid your house and destroy your couch. You sue, but the court rules: So we go from point A where you had constitutional protection to your legal property of a couch, to point B where owning the same couch is a state privilege. In the process, the state succeeded in depriving you of what was a constitutional right via enactment of a statute that is inferior to that same constitutionally protected right. If the woman is in violation of possessing unlicensed dogs, she could/should be held accountable for that violation, but that does not mean the dogs are not her property. To argue she was not the owner of the dogs because the were not licensed does open a can of worms if, say, in the future another owner's unlicensed dogs attacked a neighbor. This same ruling would mandate that the dog's owner would not be legally liable for injury because the dogs were not licensed, and therefore, not legally owned by any person. Would this same judge accept that argument in such a case even when, without dispute, there was no question who the [illegal] owner of the dog was?
Good post. You should handle the appeal, or at least advise them.
So if I don't get my dog registered and it bites you. I'm not obligated to pay because I don't own it. Lol.
You are right, that point did pass from eyes directly to round file. I agree though with your assessment. Logic does not apply in the "Candyland" world of 2017 America. Example, a Hawaiian judge making federal policy in clear violation of the chain of command enshrined in the US Constitution. What next? A staff Sgt in Pensacola Florida giving orders to troops in Afghanistan? Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Sorry animal lovers but animals are not humans. Animals have no right to the protections of the constitution! Animals are property of the humans. This does not mean animals can not be protected by law on basic rights of humanity.
Living room couch can not maul someone or get out and harm others. Animals have no constitutional rights, period. If so animals could sue their owners/master/care taker/whatever for not taking care of them as they deem necessary. ;)
Animals are property, not a problem. Human beings have property rights. Those rights do not exist BECAUSE of government. They exist as a natural right with government is instituted to PROTECT.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
That is inconsequential to the point being made. The premise of my point is the question of what extent the state can convert a constitutionally protected right to own a piece of property into a licensed privilege. This is not about animals suing, but rather the owner of the animals suing. The question is simply whether the animals were the lawful property of the owner, whether licensed or unlicensed.
Then one day, the state decides to require a license to own a couch. You don't have one and let's say that in spite of your best efforts, you cannot obtain one. Let's make it a gun. You are the lawful owner. Either you lose your right to possess a gun (e.g., you acquire a State permit for marijuana; or you pick up a felony conviction), or the gun law changes so the particular gun is illegal to possess. When the law says that something is unlawful to possess, you cannot be the lawful owner of that thing. When the law specifies you need a license to own or possess something, if you do not get the license, you are not the lawful owner. If you are unable to obtain a gun license, despite your best efforts to obtain one, you may not possess a gun. You cannot sue for compensation for the loss of something that was unlawfully in your possession. If you rob a bank and bring the booty home and your neighbor helps himself to it, you cannot sue to get the money back. You cannot sue anybody to get paid for the loss of something that did not lawfully belong to you. That is what the Federal court ruled.
What's scary is that too many people think the way you do. I don't need permission from the government to own a gun, a cat, a dog or a horse. I haven't licensed my mountain bike - I bought and paid for it. It's MINE, no matter what you and the other black-robed fascists say. You statists never stop trying to infringe on our rights, do you? Oh, no. You were in unlawful possession of the dog. A dog under your supervision bites me, but I shoot the valuable unlicensed but prize winning purebred poodle, I can sue you but you cannot sue for the value of the purebred poodle. If you took in a wolf cub and raised it, and let it loose to bite or kill people, you would not be the legal owner, but you would be legally liable for your actions. You could be a dog walker with no ownership whatever. You let a dog loose and it bites someone, your actions make you liable for the resulting injury. If I shoot the dog, you cannot sue me for the value of the dog. Due to your negligence, the owner could sue you for the value of the dog.
What is really scary is people like you who claim to know what others think. I wrote what the law and the court said. I did not state any personal opinion of agreement or disagreement with the law. If you do not like the law, change it. I do not care if you license your crap or not. Under the prevailing law, you do so at your own risk.
Human beings have no property rights in property which is unlawfully possessed. They merely possess contraband. If the government seizes your illegal drugs and you get off due to an unlawful seizure, you do not get your illegal drugs back.
There is no constitutional right to possess something which is unlawful to possess. There is no legal ownership of something unlawfully possessed. You have a right to keep and bear arms. If you unlawfully possess a prohibited shotgun with a prohibitively short barrel, you have no property right in that weapon. The government can seize it as contraband and provide no compensation. You have a right to own a gun in accordance with applicable laws and regulations. You have a right to own a motor vehicle. You do not have a right to drive it without a properly issued and valid license.
https://en.wikipedia.org/wiki/Natural_and_legal_rights Legal rights are the ones that can be enforced it courts of law. Natural rights are the subject of philosophers. Your legal rights, under the Constitution are in Amendment 5, that you will not "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Your so-called natural rights may be argued in your philosophy class. The laws of the legal system may be argued in court. Pursuant to due process, they may lawfully take away your property.
Let me know when fderal judges not wearing a collar and license can be shot on sight. That should provoke some good ideas.
There was no "due process" in destroying my property (dogs). The Judge is an power mad government ball licker.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
No process was due. The dogs were contraband and you had no legitimate posessory interest. "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." Smith v. Detroit, Order granting Motion for Summary Judgment at 19-20. You may rail at the judge, but you still had no case for compensation. In Smith v. Detroit, the Court found no legal basis on which to proceed to trial and dismissed the case on a motion for summary judgment. The facts of the case, as stated in the court Order Granting Defendant's Motion for Summary Judgment, indicate that the alleged facts in the yellow journalism article are bollocks. - - - - - - - - - - - - - - - - - - - - Nikita Smith and Kevin Thomas were squatting at the residence with three unlicensed dogs, two Pit Bulls and a Rottweiler. The cops were there lawfully serving a valid search warrant pursuant to neighbor complaints of drug dealing at the residence. 25.8 grams of marijuana was found. Kevin Thomas was not present during the execution of the search warrant. Nikita Smith was present when the warrant was served to search for illegal drugs. She "secured" the two Pit Bulls in the basement and the Rottweiler in a bathroom. "According to Smith, by the time she walked back to the living room, the officers were entering the house and Debo had escaped from the basement. “The first thing after I put the dogs up, my dog Debo . . . pushed the stove, and next thing you know he is standing beside me with the officers…" Order granting Motion for Summary Judgment at 6. The Michigan Dog Law of 1919 "only specifies that damages can be recovered for licensed dogs that are illegally killed." Order granting Motion for Summary Judgment at 19.
Smith v. Detroit, Doc 27, Order Granting Defendant's Motion for Summary Judgment at pp. 3-11 This case arises out of a drug raid conducted on January 14, 2016 at 18488 Sussex, Detroit, MI. Plaintiffs, Smith and Thomas, began squatting at this residence (the “residence”) shortly after Thanksgiving in 2015. They were accompanied by three unlicensed dogs: “Debo,” a nine-year-old Pit Bull; “Smoke,” a seven-year-old Rottweiler; and “Mama,” an ironically named seventeen-month-old pregnant Pit Bull. Before Thomas started dating Smith, he purchased Debo for $600. (Thomas Dep. at 13). Additionally, he paid around $200 for Smoke. (Id.). The record does not indicate how much Thomas paid for Mama. In January 2016, neighbors lodged complaints to the narcotics hotline that Smith and Thomas were occupying, and selling marijuana out of, the residence. (Wawrzyniak Dep. at 8-9). Officer Wawrzyniak then oversaw the controlled purchase of marijuana by a confidential informant at the residence on January 11, 2016. (Id.). Officer Wawrzyniak asked the informant whether there were any dogs in the residence, to which the informant replied that he “thought he heard a small dog.” (Id. at 14). On January 12, 2016, police obtained a warrant to search the residence for narcotics. Officers Gaines, Howell, Morrison, Paul and Wawrzyniak, and Sergeant Harris arrived at the residence to execute the search warrant on January 14, 2016. The officers conducted a quick briefing immediately before the raid, during which Officer Wawrzyniak discussed the residence’s location, the controlled purchase that had taken place there, described the seller, and told everyone that an informant had indicated that there might be a small dog inside the residence. (Morrison Dep. at 30; Gaines Dep. at 10; Wawrzyniak Dep. at 16). At his deposition, Officer Wawrzyniak described the plans the officers had in case they were confronted by dogs at the residence: “The first two guys that walks through that door with the long guns and if they can kick [the small dogs] out of the way and they proceed to run to a corner, fine, but if they come back to attack then you just have to eliminate that threat so no one gets bit.” (Wawrzyniak Dep. at 16-17). When asked whether the only two options for dealing with dogs were to “either shoot or kick away,” Officer Wawrzyniak responded “absolutely,” and that the police “have no other tool to deal with a dog.” (Id. at 17). Upon arriving at the residence, the police officers gathered on the front porch, knocked and announced their presence, and announced several times that they had a search warrant. (Morrison Dep. at 27). Before breaching the door, police officers heard the dogs barking. (Gaines Dep. at 8, 13; Wawrzyniak Dep. at 29). According to Officer Gaines, the police did not change their plans when they became aware of the three dogs because they were concerned that Smith would flush narcotics down the drain if they delayed conducting the search. (Gaines Dep. at 16). Smith contends that when she saw the officers in front of her house and the dogs started barking, she called out that she was going to secure the dogs. (Smith Dep. at 20-21). She then put Debo and Mama in the basement and pushed the stove in front of the stairs leading down to the basement. Smoke was already in the bathroom behind a closed door. Dog 1: Officers Morrison and Gaines shoot Debo near the entrance to the home According to Smith, by the time she walked back to the living room, the officers were entering the house and Debo had escaped from the basement. “The first thing after I put the dogs up, my dog Debo . . . pushed the stove, and next thing you know he is standing beside me with the officers…He got out the – barricade, came to where I was at, stood there beside me, as the police officer was standing there with the guns already pointed, so as soon as that happened they – he shot him right next to me, right by my feet.” (Id. at 28). As Smith described the situation, Debo was sitting or standing next to her when the officers shot at least three or four rounds, hitting Debo in the head (Id. at 28-29). Officer Morrison was the first police officer to enter the residence. (Morrison Dep. at 37-38). He testified that upon entering the residence, he immediately encountered Debo, a “vicious” grey Pit Bull. (Id. at 33-34). Officer Gaines said, “[t]he dog was immediately charging, trying to come out and attack us.” (Gaines Dep. at 16). Officer Morrison expressed concern that retreating would put the other officers, who were on the porch behind him, at risk. (Morrison Dep. at 39-40). He was also concerned that if the dog was able to reach him, he would get mauled. (Id.). Officer Morrison fired one shot low, down at Debo’s legs, because Smith was standing behind the dog. (Id. at 33-34, 38). Debo was approximately three feet away from Smith when Officer Morrison shot him. (Id. at 40). Officer Morrison says that Smith then asked the officers if she could “put the dog up.” (Morrison Dep. at 43). Smith took Debo through the dining room, into the kitchen. (Gaines Dep. at 20; Diagram, Position No. 6). Officer Gaines, who could see Smith holding Debo in the kitchen, claims that Smith lost control of Debo, who then charged at him. (Gaines Dep. at 21-22, 25-26). Officer Morrison testified that Debo charged through the dining room into the doorway between the living room and dining room. (Morrison Dep. at 38). Officer Gaines fired at least seven rounds at Debo. (Gaines Dep. at 51). Debo died next to Smith, in the doorway between the dining and living rooms. (Smith Dep. at 28-32). Dog 2: Officers Morrison, Gaines and Paul shoot Smoke in the bathroom The police officers continued to clear the residence. After hearing barking from the bathroom, Officer Morrison cracked the door open to check whether any people were inside with the dog. (Morrison Dep. at 53-54). Officer Morrison did not see any people in the bathroom, so he closed the door. (Id. at 54-56). However, Officer Morrison did see Smoke in the bathroom, whom he described as a “vicious” dog that was “growling and exhibiting a posture or other indicators that a [sic] imminent attack is probably going to occur.” (Id. at 64). Smith disputed this description, and said that Smoke was not barking. (Smith Dep. at 39). Officers Morrison, Gaines, and Howell all testified that Smoke then opened the closed bathroom door by himself. (Gaines Dep. at 15, 33-34; Morrison Dep. at 61; Howell Dep. at 29). According to Officer Gaines, “[t]he dog opened the door. It was amazing. I was amazed. I was literally amazed.” (Gaines Dep. at 33). Officer Howell said that she was worried a person was in the bathroom when she heard the doorknob jiggle, before seeing that the dog had opened it. (Howell Dep. at 29). None of the police reports or documents reference Smoke opening the bathroom door. (Wawrzyniak Dep. at 27-28). Officers Morrison and Gaines testified that after opening the bathroom door, Smoke became trapped between the inward-opening door and the vanity in the bathroom. (Morrison Dep. at 61; Gaines Dep. at 36, 40). They say they shot Smoke before he could break free through the partially opened door. (Morrison Dep. at 62; Gaines Dep. at 15). Later, Officer Paul entered the bathroom and shot Smoke, who had already been mortally wounded, to stop his suffering. (Paul Dep. at 15). Smith testified that the police officers discussed whether or not to shoot the dog in the bathroom before shooting through the door. (Smith Dep. at 37-41). According to Smith, Smoke was not attacking or expressing aggression toward the police. (Id. at 52-53). Although Smith testified that she had seen the police officers fire multiple shots through the closed bathroom door, she used the word “probably” multiple times when describing the police officers’ actions. (Id. at 38, 52). When asked what she meant by ‘probably,’ Smith responded “Well, I didn’t actually - you know, I seen when they did what they did, but I didn’t see when they – whoa, what am I saying?” (Id. at 38). Officer Morrison expressed concerns that if the police officers did not shoot Smoke, he would have escaped the bathroom area and entered the living room. (Morrison Dep. at 63-64). If Smoke entered the living room, Smith and the police officers would have been in each other’s lines of fire, rendering them defenseless against the dog. (Id.). Officer Morrison also testified that Smith said she “did not know how to handle” and “couldn’t control” Smoke because “it wasn’t her dog.” (Id. at 111-112). Dog 3: Officer Paul shoots Mama on the staircase to the basement Police officers continued clearing the residence. While Officers Paul and Wawrzyniak were at the top of the staircase leading to the basement, Mama began charging up the stairs. (Paul Dep. at 8; Wawrzyniak Dep. at 46-47). Officer Paul testified that Mama showed her teeth and expressed an aggressive disposition. (Paul Dep. at 10). Mama climbed the stairs three to five feet, and was between ten and twenty feet away from Officer Paul when he shot and killed her. (Id. at 9-10). No narcotics or people were found in the basement. (Id. at 13). Smith saw police officers descend into the basement, where Mama was located, but did not see what happened in the basement and did not see the police officers shoot Mama. (Smith Dep. at 34-36). Officers found 25.8 grams of marijuana in the residence. Smith was arrested and charged with a misdemeanor violation of Detroit’s marijuana law. However, Smith’s charges were dismissed when the police officers did not appear in court to testify against her. Supervisors later ratified the police officers’ conduct, concluding that the shootings were all justified. However, as in many other cases, the ratifying officers did so without speaking to the officers about what had transpired. The police officers conducting the search had not received any specific training on how to handle animal encounters during raids. (Wawrzyniak Dep. at 65). Officer Morrison testified that he had shot thirtynine dogs before shooting Debo and Smoke. (Morrison Dep. at 67). A Destruction of Animal Report (“DOA Report”) indicates that as of July 11, 2016 he had shot at least sixty-nine animals. (DOA Report, at 1). Officer Gaines testified that he has killed fewer than twenty dogs. (Gaines Dep. at 52). Officer Ryan has shot at least nineteen animals. (DOA Report, at 5).
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.
Smith v. Detroit, Doc 27, Order Granting Defendant's Motion for Summary Judgment at pp. 26-28: Based on this particular set of facts, the Detroit Police Department’s plan did not violate the Fourth Amendment. The police were only aware that a “small dog” might be present, and by the time they discovered that there were three large and vicious dogs, they could not change their plans. Because the plan did not violate the Fourth Amendment, the court must evaluate whether each dog posed an imminent threat to police officers when they shot it. 1. Mama: dog shot in stairway to the basement Claims based on Officer Paul shooting Mama are the simplest to dismiss. In order to survive summary judgment, there must be a “discrepancy between the dog owner’s version of events and the officers’ testimony” that goes “directly to whether the dog was an imminent threat to the safety of the officers.” Brown, 844 F.3d at 571 (citing Robinson v. Pezzat, 818 F.3d 1, 11 (D.C. Cir. 2016), in which the court reversed summary judgment in favor of the defendants because the plaintiff’s testimony that the dog did not attack the officers sufficiently established a genuine issue of material fact as to whether the shooting was objectively reasonable). The facts in this case are strikingly similar to Brown, where the plaintiffs presented no evidence that contradicted the officers’ testimony that they shot a wounded dog that had barked at them from the bottom of a staircase because the dog was preventing them from safely entering and sweeping the basement. 844 F.3d at 570. In Brown, police also shot a second dog that was standing and barking in the center of the basement, and shot the second dog again after it ran to the corner of the basement. Id. In the case at hand, Plaintiffs concededly present no evidence rebutting the police officers’ claims that the dog they shot was charging up the stairs against them. As in Brown, the dog also obstructed their ability to clear the basement for both drugs and people. Thus, there is no material dispute as to whether Mama presented an imminent threat to Officer Paul, who was not unreasonable in shooting it. 2. Debo: dog shot in entryway and between living room and dining room There is an issue of fact, conceded by Defendants, whether Debo posed an imminent threat to the safety of the officers when Officer Morrison shot Debo near the entrance of the residence. On the one hand, Officers Morrison and Gaines testified Debo immediately charged them as they entered the house, while Smith testified Debo was standing next to her. This issue of material fact goes directly to the question of whether Debo posed an imminent threat to the officers entering the house such that Officer Morrison was reasonable in shooting the dog. However, the testimony is undisputed that after Smith took Debo into the kitchen to secure the dog, Debo escaped from her hold and charged the officers. There is no issue of material fact that when Officer Gaines shot and killed Debo in the doorway between the dining and living room, Debo posed an imminent threat to the safety of the officers. Officer Gaines was not unreasonable in shooting Debo. 3. Smoke: dog shot in the bathroom Although Defendants may be able to establish that there is no issue of material fact that Smoke presented an imminent threat, counsel conceded the issue at oral argument, so we do not address it here.
Smith v. Detroit, Doc 27, Order Granting Defendant's Motion for Summary Judgment: At pg. 32: “Conversion is any distinct act of dominion wrongly exerted over another’s personal property in denial of or inconsistent with his rights therein.” Thoma v. Tracy Motor Sales, Inc., 104 N.W.2d 360, 362 (Mich. 1960). There is no liability for the actor if he or she is privileged to dispose of the chattel. Id.; Preston, 2015 WL 12516687, at *10. In Preston, the plaintiff’s dog was not properly licensed. 2015 WL 12516687, at *10. This court held that “the officers were privileged to dispose of the dog in accordance with their duty to enforce State laws and City ordinances regarding pet licensing.” Id. Unlike Preston, the dogs in this case were not roaming outdoors, and the police were unaware they were not licensed. However, because the dogs were not licensed, Plaintiffs had no legitimate interest in them. The Michigan Dog Law of 1919 specifically provides that people can recover for when their licensed dogs are unlawfully killed.
Thankfully the day will come when all lawyers will be rounded up and summarily executed along with their father Lucifer. Mankind will finally be able to live in peace. JMO .
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
And the day will come when you are a defendant and demand your right to an attorney. Or, perhaps you will be a crime victim and there will be no prosecutors. Or you may want to litigate something as a complainant, but there are no judges or courts. Might as well do away with cops too. Anybody arrested would just do eternity waiting for a trial with no courts.
Shooting this number of dogs is not a matter of necessity, but is entirly a matter of sadistic sport practiced by dangerous aggressive bullying psychopaths. It should be viewed as such and punished as such.
Well, there's a buttered and oiled slippery ramp of law for you.
If it were not for lawyers, the world would be a vastly better place. I for one could never afford a lawyer, and the ones appointed spend their lives talking people into taking plea deals. The laws would be simply written, easily interpreted, and strictly targeted to actual person against person crimes instead of the State v so and so. I hired a lawyer once, he took my money and didn't do anything positive. He actually walked out of court and left me alone against the judge and State attorneys looking to force me into signing a Promissory note for a debt that I proved to have paid. You can guess it was a child support case, and it cost me about $28K for the bill, and $5K for the attorney. I stiffed him on some of that bill. The Judge actually acted in the interest of the DSHS attorneys, telling me that I would be thrown in jail if I did not sign a paper waiving my rights to continue filing for forgiveness of debt. My wife had gotten onto Welfare claiming to be getting no child support, while at the same time getting child support. Guess who had to pay twice?
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
The Lincoln administration seized the Confederate slaves as contraband and the freedmen were called contrabands. It has been a very flexible and elastic concept for a century or two.
Of course, with no lawyers, there would be no need for courts or cops. Absent courts or cops, there would be no need for a legislature or regulatory agency. Indeed, you can just bring back the king. But there are no person against person crimes. All crimes are against the state. Person against person civil offenses are torts. People sue people for damages. A lawyer, once having taken a case, cannot just excuse himself. You may have fired him, or he may have obtained leave from the court to be excused. You had to inform the court that you were proceeding on your own. My definition of proof of payment would be the canceled checks, for the required amount, bearing the endorsing signature. Your idea of proof may vary. Evidently, your idea of proof and the court's idea of proof differed. One does not file for forgiveness of a debt one can prove has been paid. Filing for forgiveness admits of the existence of the debt. It appears the judge advised that you had Option A or Option B, but that Option C, delay based on a request for forgiveness was not available. One cannot escape required support payments by filing for forgiveness of a debt. Perhaps you insisted that your attorney argue about forgiveness to the court and he refused and was excused from the case.
The Lincoln administration was correct in doing so, because human beings were being held as slaves by the American system, and that system needed to be unravelled to get rid of that. . The Detroit cops are not right to be shooting dogs through doors and justifying it by the lack of dog licenses.
The law is an ass. Which is why it's so odd that Americans make such a fetish out of it.
#2. To: Vicomte13 (#1)
#3. To: Stoner (#2)
#4. To: Deckard (#0)
#5. To: jeremiad, Deckard (#4)
Do I have to say it? A Code violation does not come into the purview of law enforcement.
I have never licensed my pets, and will never license my pet.
#6. To: nolu chan (#5)
As the dogs were not licensed, he was not the lawful owner,
#7. To: Pinguinite (#6)
That sounds like a leap to me.
Can the state sever a person's right of ownership to property by creating a license?
"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."
#8. To: nolu chan (#7)
#9. To: nolu chan (#7)
When a person owns a couch 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 couch, there can be no violation of the Fourth Amendment."
#10. To: Pinguinite (#9)
#11. To: nolu chan (#7)
#12. To: Pinguinite (#9)
#13. To: Deckard (#0)
#14. To: Pinguinite, nolu chan (#9)
If the state requires no license to possess a living room couch, then your possessing one you acquired legally is considered legal and lawful ownership, and you cannot be deprived of it without violating the 4th Amendment.
#15. To: Justified (#13)
#16. To: Justified (#14)
Living room couch can not maul someone or get out and harm others.
Animals have no constitutional rights, period. If so animals could sue ...
#17. To: Pinguinite (#9)
If the state requires no license to possess a living room couch, then your possessing one you acquired legally is considered legal and lawful ownership, and you cannot be deprived of it without violating the 4th Amendment.
#18. To: nolu chan (#17)
If you are unable to obtain a gun license, despite your best efforts to obtain one, you may not possess a gun.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#19. To: A K A Stone (#11)
So if I don't get my dog registered and it bites you. I'm not obligated to pay because I don't own it.
#20. To: Deckard (#18)
What's scary is that too many people think the way you do.
#21. To: jeremiad, Justified (#15)
Human beings have property rights.
#22. To: Pinguinite, Justified (#16)
The premise of my point is the question of what extent the state can convert a constitutionally protected right to own a piece of property into a licensed privilege.
#23. To: jeremiad, Justified (#15)
Human beings have property rights. Those rights do not exist BECAUSE of government. They exist as a natural right with government is instituted to PROTECT.
Natural and legal rights are two types of rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws). Legal rights are those bestowed onto a person by a given legal system (i.e., rights that can be modified, repealed, and restrained by human laws).
#24. To: Deckard (#0)
Federal Judge Rules Unlicensed Dogs Aren't Protected By Fourth Amendment
#25. To: nolu chan (#23)
#26. To: jeremiad (#25)
There was no "due process" in destroying my property (dogs).
#27. To: Deckard, jeremiad, Vicomte13, Stoner, Pinguinite, Anthem, A K A Stone, rlk (#0)
FACTUAL BACKGROUND
#28. To: Deckard, jeremiad, Vicomte13, Stoner, Pinguinite, Anthem, A K A Stone, rlk (#0)
ANALYSIS
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.
#29. To: Deckard, jeremiad, Vicomte13, Stoner, Pinguinite, Anthem, A K A Stone, rlk (#0)
The ability of the officers in this case to prepare for the dogs falls in between Hells Angels and Brown. While the Detroit Police Department had at least three days to prepare for the dogs, the anonymous informant only told Officer Wawrzyniak that Smith and Thomas possibly had a “small dog.” Additionally, Plaintiffs did not register their dogs, which might have alerted the police that there were dogs in the residence, although the fact that Plaintiffs were squatters diminishes this possibility. According to Officer Gaines, it was too late for police to change their plans when they heard the dogs barking at the door because they were concerned that Smith would flush the narcotics down the drain.
#30. To: Deckard, jeremiad, Vicomte13, Stoner, Pinguinite, Anthem, A K A Stone, rlk (#0)
B. Unlicensed dogs and conversion claims
#31. To: nolu chan (#30)
#32. To: jeremiad (#31)
Thankfully the day will come when all lawyers will be rounded up and summarily executed along with their father Lucifer.
#33. To: nolu chan, all (#27)
Officer Morrison testified that he had shot thirtynine dogs before shooting Debo and Smoke. (Morrison Dep. at 67). A Destruction of Animal Report (“DOA Report”) indicates that as of July 11, 2016 he had shot at least sixty-nine animals. (DOA Report, at 1). Officer Gaines testified that he has killed fewer than twenty dogs. (Gaines Dep. at 52). Officer Ryan has shot at least nineteen animals. (DOA Report, at 5).
#34. To: nolu chan (#30)
#35. To: nolu chan (#32)
#36. To: Vicomte13 (#34)
(Edited)
Well, there's a buttered and oiled slippery ramp of law for you.
#37. To: jeremiad (#35)
If it were not for lawyers, the world would be a vastly better place. I for one could never afford a lawyer, and the ones appointed spend their lives talking people into taking plea deals.
The laws would be simply written, easily interpreted, and strictly targeted to actual person against person crimes instead of the State v so and so.
I hired a lawyer once, he took my money and didn't do anything positive. He actually walked out of court and left me alone against the judge and State attorneys looking to force me into signing a Promissory note for a debt that I proved to have paid. You can guess it was a child support case, and it cost me about $28K for the bill, and $5K for the attorney.
The Judge actually acted in the interest of the DSHS attorneys, telling me that I would be thrown in jail if I did not sign a paper waiving my rights to continue filing for forgiveness of debt.
#38. To: nolu chan (#36)
The Lincoln administration seized the Confederate slaves as contraband and the freedmen were called contrabands. It has been a very flexible and elastic concept for a century or two.
#39. To: jeremiad (#35)
Top • Page Up • Full Thread • Page Down • Bottom/Latest
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]