Doggie Due Process

1
Doggie Due Process

• The Saga of "Tut-Tut," "Bandit," "Boo Boo," and
  "Sadie"

2
Altman v. City of High Point, N.C., 330 F.3d 194
(4th Cir.(N.C.) 2003)

• What is a dog "at large"
• What happened to plaintiff's dog?
• Where was this done?
• Why was this done?
• What due process was provided?
• How did plaintiff characterize the act in legal
  terms?

3
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 officers judicial capacity, injunctive
  relief shall not be granted unless a declaratory
  decree was violated or declaratory relief was
  unavailable. For the purposes of this section,
  any Act of Congress applicable exclusively to the
  District of Columbia shall be considered to be a
  statute of the District of Columbia.

4
State Action

• Who is the state actor?
• What is the relationship to the state?
• Is the city a political subdivision of the state,
  i.e., is the city covered by the 11th Amendment?
• Why does this matter?

5
The Constitutional Violation

• Is 1983 just a substitute for tort laws?
• We will talk about tort claims acts next class
• 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?

6
Dog Law in History

• 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."
• Sentell v. New Orleans C.R. Co., 166 U.S. 698,
  701 (1897)
• "Property 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."

7
The Characterization of a Dog by Later Courts

• 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?

8
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?

9
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 is the killing was not justified?

10
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.

11
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?

12
Robles v. Prince George's County, Maryland, 302
F.3d 262 (4th Cir. 2002)

• ...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.
• What did the Robles court find?
• What does this tell us about the standard for
  qualified immunity?

13
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?

14
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?

15
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?

16
What is the Right Question?

• 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.