Metropolitan News-Enterprise

Monday, May 14, 2001

Page 9

Cases on Dogs Raise Constitutional Questions


(Sixth in a series on dogs and the courts.)

Cases involving dogs on occasion entail issues of federal constitutional dimension. Below is a run-down on some such cases, arising here in California.

The Court of Appeal’s ruling in Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163 is summed up in the first two sentences of the opinion:

"This appeal presents the question of whether animal control officers can lawfully enter a home, absent a warrant or consent, to seize and impound the homeowner’s dog for violation of a leash law. We hold that the Fourth Amendment of the United States Constitution precludes such conduct."

The opinion was penned by then-Justice William Masterson (since retired) of this district’s Div. One.

The case involved a beagle named Toby whom a dog-catcher spotted running loose. Another dog-catcher then saw him running home. The pair, accompanied by Pasadena police, entered Toby’s home through an open door and seized the dog.

The homeowners, Nicholas and Virginia Conway, paid a $500 fine for violating the leash law and got Toby back. They then brought suit under 42 USC §1984 for violation of their federal civil rights. Los Angeles Superior Court Judge Coleman A. Swart granted summary judgment in favor of the defendants, the Pasadena Humane Society (with which the city contracts for animal control services), the city, and one of the Humane Society’s dog-catchers.

The Court of Appeal reversed. Masterson observed that there were no exigent circumstances justifying the warrantless entry.

The justice said although both Government Code section 53074 and a Pasadena ordinance authorized the seizure of dogs who had been running loose and returned home, without mentioning a need to obtain a warrant for entering the homes, such a requirement must be read into those laws.

"We do not read these enactments as dispensing with the Fourth Amendment’s requirement that an official entry into a home be justified by a warrant, consent, or exigent circumstances," he wrote, remarking: " ‘A statute does not trump the Constitution.’ "

The jurist interjected:

"[W]e note the comments made by the Conways’ attorney at the oral argument before the trial court: ‘The facts of this case, your Honor, are both humorous [and] ridiculous but also outrageous and kind of scary.’ No doubt, a civil rights suit about the impounding of an animal—especially a dog that often runs afoul of the City’s leash law—may seem ridiculous. Further, the City argues that the police should be commended, not made the subject of a suit, for protecting the Conway home from a possible burglar. On the other hand, many citizens would probably express concern about the Humane Society’s practice of entering a home without a warrant or consent for the sole purpose of impounding a pet seen running at large."

Earlier in 1996, another Court of Appeal division in this district condemned the warrantless seizure of a dog.

In In re Quackenbush, 41 Cal.App.4th 1301, Justice Arthur Gilbert (now the presiding justice) wrote for Div. Six in saying:

"Under former Health and Safety Code section 1924 (now section 121710) it is a misdemeanor to fail to produce on demand of a local health officer an animal that has bitten or otherwise exposed a person to rabies. We hold the section does not dispense with the Fourth Amendment requirement for obtaining a search warrant in all cases. We affirm the judgment granting defendant’s writ of habeas corpus."

The facts in the case were that an animal control officer learned that a dog (not named in the opinion) had bitten someone. He came to the home of Daniel and Beverly Quackenbush to see the dog, who was temporarily staying with them, and he determined it was safe to quarantine the dog on the premises for 10 days, rather than taking the dog into custody. Beverly Quackenbush signed an agreement to keep the dog there for the 10-day period, and let the authorities know immediately if the dog ran away, got sick, or died.

The control officer was later told by a supervisor that the dog couldn’t be quarantined at the Quackenbush’s home since they didn’t own the dog. He returned to the house and demanded that the dog be turned over to him. Daniel Quackenbush refused, telling him he needed a warrant. The upshot was that Quackenbush was arrested and charged with two misdemeanors and the dog was seized.

Santa Barbara County Judge Rodney S. Melville granted a writ of habeas corpus, barring a trial of Quackenbush in the Municipal Court. The Court of Appeal affirmed.

"Here the People concede that the Fourth Amendment applies to the seizure of the dog from Quackenbush’s house," Gilbert wrote in his opinion for the majority. "Nevertheless, the People contend that under former section 1924 Quackenbush was required to turn the dog over to Officer Wagner without a warrant. The contention is untenable."

Gilbert explained:

"There is no doubt that exigent circumstances may justify a warrantless seizure....Here, however, neither the Legislature, nor the State Department of Public Health, nor the local officer has found every dog bite to give rise to such exigent circumstances that a seizure of the dog is deemed necessary....It is only when an animal has rabies or exhibits the clinical symptoms of rabies that isolation in a pound, veterinary hospital or other adequate facility is required."

If Quackenbush had refused to produce the dog when the animal control officer first showed up, a seizure would have been warranted, Gilbert said, so that a determination could be made if the dog had rabies. But once an assessment was made that it was safe to leave the dog at the Quackenbush’s home, any follow-up efforts to take the dog from there had to be supported by a warrant, he said.

"The People accuse Quackenbush of distorting the issue," Gilbert related. "They assert he has converted a demand that he turn over a dog belonging to another into a warrantless attempt to search his home.

"Even if Officer Wagner did not want to search Quackenbush’s home, it is uncontested that Officer Wagner wanted to seize the dog. The Fourth Amendment protects against unreasonable seizures of property even in the absence of a search."

Justice Kenneth Yegan dissented, saying that Quackenbush had an adequate remedy at law in the form of an appeal from a conviction. He added:

"The judiciary should not lightly second-guess animal control authorities. We so indicated in Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 379: ‘It is obvious that summary seizure of dogs must be permitted when of immediate danger to the public, as for example when the dog is vicious or rabid.’ Had the dog run away from the Quackenbush residence, bitten other children, and infected them with rabies, it would be difficult to explain why Quackenbush’s Fourth Amendment rights took precedence over public health and safety. A dog with rabies does not wait for a dispassionate magistrate to issue a search warrant."

What Yegan misses is that the officer did not come to the Quackenbush’s home on the second occasion to seize the dog for fear that he or she was "vicious or rabid" or out of concern that the dog might run away and bite someone else. The animal control officer came there to seize the dog based on the pronouncement of some bureaucrat in the Office of Dog-Catcher that a dog could not be quarantined in the home of someone who was not the owner. Yegan seeks to alter the facts to reach a result—something he has done on other occasion (as I’m personally, painfully aware).

In 1994, the Ninth U.S. Circuit Court of Appeals reversed a summary judgment in favor of a police officer in the City of Richmond (near San Francisco) who killed a family’s dog.

The officer (identified only as "Officer Vines" without setting forth the defendant’s first name) came onto the plaintiffs’ property; the family dog, Champ, got up; Vines fatally shot him as one of the occupants pled for the pet’s life.

Ninth Circuit Proctor Hug Jr. said that U.S. District Judge Marilyn Hall Patel of the Northern District of California erred in refusing to allow the plaintiffs to amend the complaint to allege an illegal search and seizure. He wrote:

"The killing of the dog is a destruction recognized as a seizure under the Fourth Amendment, and thus, the district court abused its discretion when it denied the Fullers’ motion to amend on the grounds that the shooting of the dog was not a cognizable claim under the Fourth Amendment."

That case is Fuller v. Vines, 36 F.3d 65. It was followed by an unpublished memorandum decision of a three-judge panel in Fuller v. Vines (1997) U.S. App. Lexis 17199. There, the court reversed a grant of summary judgment in favor of Officer Vines and Officer Peixoto. (The latter was mentioned in the 1994 opinion but not in connection with causing the dog’s death.)

Summary judgment was awarded by Senior Judge Laughlin Waters of the Central District of California, sitting as a judge of the North District. Waters concluded that in 1991, when the dog was slain, it had not yet clearly been established that killing a dog constituted a "seizure." That proposition, the Ninth Circuit said, had been established in 1984—and reminded Waters that it pointed that out in Fuller I. It said:

"As we stated in Fuller I, ‘The destruction of property is ‘meaningful interference’ constituting a seizure under the Fourth Amendment….’ Fuller I, 36 F.3d at 68 (citing United States v. Jacobsen, 466 U.S. 109, 124-25, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). Shooting and killing a dog clearly constitutes ‘destruction’ of that dog. In 1991 it was apparent in light of preexisting law that shooting and killing a dog constituted a seizure within the meaning of the Fourth Amendment. The district court thus erred in entering summary judgment for the officers."

What is a shame is that the Fullers had a need to proceed under a federal constitutional claim centering on the seizure of "property." That claim was predicated on Champ’s status as an owned "thing." Given the strong emotional attachment people have, universally, for their dogs, the Fullers ought to have been able to proceed under a purely state action for emotional distress based on the killing of a cherished constituent of their family. Such a cause of action is not available.

Though James Fuller Jr. and James Fuller Sr. personally witnessed the killing of Champ, liability to bystanders is restricted under Thing v. La Chusa (1989) 48 Cal.3d 644 to those who are "closely related to the injury victim." Much as there is, in a loose sense, a strong kinship between humans and dogs, any links in the family trees of any given homo sapien and dog obviously predate recorded times.

A cause of action would now be recognized under state law that was not available when the Fullers litigated their claim, though it is predicated on the dog’s status as personalty. In Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464. Div. One of the Fourth Court of Appeal, in an opinion by Justice Patricia Benke, announced that "damages for emotional distress growing out of a defendant’s conversion of personal property are recoverable." Benke noted, with approval, the Oregon Supreme Court’s acceptance in Fredeen v. Stride (1974) 269 Or. 369 of a cause of action against a veterinarian for emotional distress based on the conversion of the plaintiff’s dog.

Wrongfully killing dogs constitutes a conversion. The Court of Appeal so held in Kane v. County of San Diego (1969) 2 Cal. App. 3d 550. There, a San Diego animal shelter destroyed 28 greyhounds on the day they were brought in by a non-owner, rather than waiting 72 hours, as required by law. A judgment against the county for conversion was upheld.

"This is a death penalty case," a Court of Appeal opinion by Arthur Gilbert began. It continued: "We reverse. Missy, a female black Labrador, shall live, and ‘go out in the midday sun.’ "

Writing for Div. Six, Gilbert announced in Phillips v. San Luis Obispo County Dept. Etc. Regulation (1986) 183 Cal. App. 3d 372 that an ordinance permitting the destruction of a dog without a noticed hearing even if the dog’s owner requests one is unconstitutional. He went on to explain:

"Procedural due process imposes constraints on governmental decisions depriving individuals of liberty or property interests....Principles of due process apply to all takings of non de minimus property, including such disparate objects as farm animals..., a motorcycle engine...a tortoise...or a newsrack....We think that dogs, being personal property and having economic value, are also included within its reach....Aside from their economic value, however, ‘ is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt’..., unless the animal is a cat, to which many people have equally strong attachments, but will reluctantly agree that the word ‘owner’ is inappropriate. (See also Eliot, Old Possum’s Book of Practical Cats (1939).)"

The immediate return of Missy—who had bitten a child who had wandered into the yard—was ordered.

Gilbert made note at the outset of the opinion:

"We resist the temptation that grabbed hold of our colleagues who have written dog opinions, and will not try to dig up appropriate sobriquets. You will not read about ‘unmuzzled liberty.’ Nor will you consider an argument ‘dogmatically asserted,’ or cringe with ‘we con-cur.’ (In re Ackerman (1907) 6 Cal.App. 5.) We will not subject you to phrases such as ‘barking up the wrong tree.’ (Romero v. County of Santa Clara (1970) 3 Cal.App.3d 700, 704.) We disavow doggerel."

Copyright 2001, Metropolitan News Company

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