Wednesday, May 2, 2018

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Ninth Circuit:

Action by Homeless Man Over Seizure of Healthy-Looking Birds May Proceed

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday reversed summary judgment in favor of the City of Los Angeles in connection with the warrantless seizure from a homeless man of pet birds that appeared healthy, while affirming summary judgment with reference to birds that were visibly sick.

Animal control officers seized 20 birds—18 pigeons, one crow and a seagull—with all of the pigeons subsequently being euthanized. The birds were kept by plaintiff Martino Recchia in cramped spaces in boxes and cages on a sidewalk.

The city contended that exigent circumstances justified the warrantless seizure.

District Judge Dean D. Pregerson granted summary judgment as to Recchia’s claims both on Fourteenth Amendment due process grounds and under the Fourth Amendment’s ban on unreasonable searches and seizures.

Gould’s Opinion

Writing for a three-judge panel, Circuit Judge Ronald M. Gould agreed that there was no affront to due process, but declared:

“If all the birds maintained by Recchia had been unhealthy or sick in appearance, we think their entire seizure would pose no significant constitutional issue, and clearly would not offend the Fourth Amendment because of the scope of the emergency exception to the warrant requirement and the need to seize the birds to end then suffering and prevent transmission of illness. However, the crux of the problem here is that not all of the birds appeared to be sick, in fact eight birds appeared outwardly healthy. And so we are confronted with a factual issue about whether the exigent circumstances exception applies as to the seizure of the healthy-looking birds kept by Recchia in this case.”

Gould said there was substantial evidence suggesting that the apparently healthy birds should have been of no concern. On the other hand, he noted, there was the opinion of a city veterinarian that the pigeons that appeared healthy could have been carrying disease.

Case Remanded

“Because of these competing lines of evidence, we hold that there is a genuine factual dispute about whether the healthy-looking birds posed any meaningful risk to other buds or humans at the time they were seized,” Gould wrote “Therefore, although we affirm the dismissal in part as to the seizure of the birds that appeared sick, we vacate and remand in part as to the seizure of any birds that were wholly healthy in outward appearance.”

He added:

“On remand, we instruct the district court to consider in the first instance whether the Officers are entitled to qualified immunity for any potential constitutional violation because it was not ‘clearly established’ at the time of the seizure that the warrantless seizure of the birds could be a violation of Recchia’s constitutional rights.”

The case is Recchia v. Los Angeles Department of Animal Services, No. 13-57002.