This is a brief bibliography of forfeiture case law. Key legal terms and concepts are used. Please keep in mind, this is not an extensive study, but will provide a glimpse into how some of these legal controversies have been handled in a court of law. The applications of various doctrines may vary from state to state.
Bibliography of Animal Forfeiture Case Law
U.S. Code
TITLE 42 CHAPTER 21 § 1983.
Civil action for deprivation of rights Section 1983 Defense. 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 (Post deprivation cases), 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 officer’s 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. Fourteenth Amendment, Constitution of the United States. No State shall deprive any person of life, liberty, or property, without due process of law. If yes, was the right clearly established? Would it be clear to a reasonable officer that his or her conduct was unlawful in the situation he or she confronted?
Qualified Immunity Test. Saucier v. Katz, 533 U.S. 194 (2001) The officer's conduct must violate a clearly established federal constitutional right or statutory right.
The officer's subjective intent is never relevant under a Fourth Amendment analysis so long as an objective basis for a seizure exists. "Pubic officials are permitted to claim on appeal that their actions were objectively reasonable in light of their knowledge at the time of the incident." Mueller v. Tinkham, 162 F.3d 1999 (8th Cir. 1998) Put another way Officers are entitled to qualified immunity from suit for actions that are objectively reasonable in light of clearly established law that the facts known by the officer at the time of his or her actions. Parratt v. Taylor, 451 U.S. 527 (1981). The destruction of property by the state constitutes a deprivation. If State employees' conduct is random and unauthorized, it cannot be challenged under a Section 1983 claim. Parratt is not applicable if the State accords its employees broad power and little guidance regarding deprivation actions. Zinermon v. Burch, 494 U.S. 113 (1990) The Zinermon principle Rule 59(e) Motion and Orders. The motion seeks to alter or amend a judgment.
NORTH CAROLINA Altman v. City of High Point 330 F.3d 194 C.A.4 (N.C. 2003)
This is a lengthy case involving qualified immunity regarding the shooting and killing of dogs by ACOs. Under applicable statutes, dogs were not allow to run at large and they must wear tags. Four dog shooting incidents are described involving agents Moxley and Perdue. There is also a lengthy discussion about dogs being classified as property or as effects for legal purposes. There is a convoluted logic regarding the Robles case. Robles v. Prince George's County, Maryland. 308 F.3d 437 (4th Cir 2002) --- Despite the officers' utterly indefensible behavior, we nevertheless awarded them qualified immunity.
The Qualified Immunity test deals with whether a reasonable official would understand, at that moment, if he was violating an apparent federal right. The North Carolina court was very hesitant to include dogs as property that are protected under the Fourth Amendment. The majority of state courts have defined shooting a dog as a seizure of property. This court reversed and remanded the case to find for defendants Oxley and Perdue. They argued that the officer's acted in accordance with the law and were due qualified immunity. However, this case had a very strong dissent, written by Judge Gregory, that is well worth reading. The dogs at issue were objects of warrantless seizures. He thought that the majority was confused by the application of the qualified immunity test. It should also be noted that Moxley had a documented history of fabricating reports to justify his actions. In fact he was skeptical of both Moxley's and Perdue's accounts. They both had a history of deceit and ill motives. Perdue testified during the "Frey account" that the animals were large dogs, weighing 45 to 50 pounds, and together formed a menacing and dangerous pack. In reality, these dogs were puppies that weighed only 15 to 20 lbs each. According to the High Point Police Department rules, "Nonsworn personnel shall not carry firearms in the performance of their duties." General Order 3.13. ACOs were not sworn police officers at the time of these shootings. Even if they were allowed, the regulations state, "Officers are not to discharge a firearm…" Since this case, High Point Police have amended their regulations. Nevertheless, "firearms are considered a last resort in the event of immediate danger to the officer, another person, or an animal."
IOWA Andrews v. City of West Branch Iowa No. 05-1188 (8th Cir. Jul. 27, 2006) There were calls about a large black dog running loose. Jana Andrews had let her dog, Riker, out into their fenced backyard to relieve itself. She was standing on her back patio a few feet away when Police Chief, Dan Knight shot him. He fired two shots before he realized he had the wrong dog -- then fired a third shot to put Riker out of his misery. Riker was not wearing his collar and tags at the time, but was current on his distemper and rabies boosters.
Wrongful Seizure of Property. Moved from State court to utilize the Section 1983 defense. They also sought state remedy based on 14th Amendment violations and tort law recovery. Under the plain meaning of the city ordinance and police animal patrol policy, a dog in an enclosed fence is not at large. Knight did not have animal control jurisdiction over Riker at the time of the shooting. Also under Iowa code, is a provision that peace officers may kill a dog that is not wearing a collar with rabies vaccination tag attached. Only such dogs are deemed property. Further, the discharging of a firearm at an animal should be considered a last resort and then only when conditions are safe to do so. A dog is considered property for Fourth Amendment purposes. Lesher, 12 F.3d at 150-51 - "A seizure of property occurs when there is some meaningful interference with a person's possessory interests in that property." Issue: Was this (warrantless) seizure reasonable under the circumstances?
The appellate court stated that a reasonable jury could find Knight acted unreasonably when he seized and killed Riker. Knight's claim of Qualified Immunity. He did not attempt to communicate with anyone in the Andrews home. He did not request back up or a tranquilizer dart gun. The dog exhibited no aggression at the time (he was urinating when shot). This case was remanded for a jury trial. State court awarded the Andrews summary judgment but precluded any claim of a constitutional violation, concluding that Knight's actions were lawful under state code.
OKLAHOMA Bewley v. City of Duncan 149 F.3d 1190
Bewley, appeals pro se claiming the conduct by defendants violated his civil rights. His Doberman Pinscher died as the result of being shot with a tranquilizer dart. A neighbor reported that the dog was loose and menacing people. ACOs tried without success to catch the dog in a pole noose. It barred its teeth and charged at the officers and they darted it. The dog went into the house through a broken door. A dog hit with this tranquilizer must receive veterinary attention quickly. Officer Harris, authorized by superiors, entered the house to retrieve the dog. Neighbors who call in complaints and citizen reports are not considered state actors. "In order to hold a private individual liable under section 1983 for constitutional violation requiring state action, a plaintiff must show … that the individual's conduct is fairly attributable to the state." Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996) Defendant's conduct must rise to the level of state action. A Section 1983 may be maintained against a defendant if it can be shown that a private person conspired with a person acting under color of state law. Conclusory allegations of conspiracy are insufficient. Warrantless entry is available for some limited purposes. The officer's actions were justified for the purpose of protecting themselves and the public. They entered the house only to try and save the dog's life. Judicial rulings along almost never constitute grounds for recusal. The court tore apart Bewley's pro se causes of actions, partly because they were disjointed and so poorly pled. It is better to win one or two well stated claims than to try and "throw the book" at "city hall."
RHODE ISLAND Bilida v. McCleod 41 F. Supp. 2d 142 (D.R.I. 1999) Section 1983 case. Bilida rescued and orphaned raccoon and raised her as a pet for seven years until it was seized and destroyed. A Warwick police officer entered Bilida's backyard in response to a security alarm signal and saw the raccoon. He called the city's ACO, then left. Within the hour, the ACOs came to Blida's home and asked to see her permit from the Department of Environmental Management, required under RI law for possession of raccoons and other animal species. Bilida did not have a permit. The Department sent two officers to seize the raccoon (they had no warrant). Bilida struggled with them but they took the raccoon and promised her that it would not be killed. A state public health veterinarian said it must be euthanized and tested for rabies according to a protocol, which was adopted in response to a supposed epidemic of raccoon rabies moving up the east coast in the early 1990's. Bilidia lost. See case for details. The court could not create constitutional protection for objects that the state has declared illegal to possess. 41 F. Supp. 2d at 151. SOUTH CAROLINA Bogart v. Chappell United States 396 F.3d 548 (4th Cir., 2005)
Bogart appeals from district court's summary judgment on her Section 1983 due process claim regarding euthanization of more than 200 dogs and cats seized from her property. She argued Deprivation without a hearing. Note: A deprivation cannot be challenged under Section 1983 if the employees' conduct was random and unauthorized. Bogart participated in animal rescue activities via various South Carolina volunteer organizations including the Carolina Castaways. She adopted dogs and cats from shelters where they would otherwise be euthanized. After "numerous" complaints, local Veterinarian Robbie Chappell met with Bogart to counsel her about her animals. Deputy Mabry smelled a strong animal odor and heard many barking dogs while driving by Bogart's property. He requested a search warrant which resulted in the seizure of many animals. Mabry knew that Dr. Chappell intended to immediately euthanize some of the animals, but did not share that information with the judge who issued the warrant. Chappell advised Lester Terry, supervisor of York County Animal Control, to have a lot of trucks ready. Chappell claimed that the animals taken from Bogart's property were diseased and needed to be euthanized anyway, even though he had not closely examined the animals. Mabry handcuffed her and escorted her to a patrol car. She was arrested for ill treatment of animals. 82 dogs and 129 cats were seized and removed. All but 2 of the dogs and some of the cats had been euthanized by the following morning. Bogart was allowed to take the 2 dogs and only five cats.
The remaining cats were euthanized later that day. Besides the Section 1983 claim (seizure without deprivation hearing), Bogart also filed a claim for the tort of outrage. Bogart filed a 59(e) Motion asserting new evidence - a York County Animal Control policy that granted ACOs the discretion to dispose of sick or injured. Under various provisions of SC animal cruelty statutes, law enforcement officers and humane society agents who seize animals are required to care for them pending the outcome of civil or criminal court proceedings. The court may rule that the owner is fit to have custody of the animal and that they be returned. Or, if convicted of charges, the owner's ownership/custody privileges are forfeit. Only then is the officer or agent authorized to make humane disposition, which includes the option of euthanization. Where a deprivation of property is the result of a state employee's random and unauthorized act, the Constitution requires only adequate postdeprivation tort remedies and not a predeprivation hearing.
See Zinermon and Parratt Dr. Chappell was not a "state actor" SC Section 47-1-150(F): "The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of an animal as provided for in this section shall provide for the animal until either: (1) The owner is adjudged by the court tot be able to provide adequately for, and have custody of, the animal, in which case the animal shall be returned to the owner upon payment for the care and provision of the animal while in the agent's or officer's custody; or (2) The animal is turned over to the officer or agent as provided in Section 47-1-170 [providing for the owner's forfeiture of the animal upon conviction on an animal cruelty charge] and a humane disposition of the animal is made."
The Court concluded that the Defendants' conduct in immediately euthanizing Bogart's animals was random and unauthorized and the State could not have foreseen that the Defendants would contravene state law and ignore established procedures. SC Postdeprivation tort remedies were adequate to compensate Bogart for her losses. They held that Bogart's procedural due process claim was precluded by the Parratt/Hudson [Hudson - intentional deprivations of property] doctrine. Summary judgment was awarded the Defendants because Plaintiff's due process claim under the Parratt/Hudson doctrine (holding state officials accountable for their abuse) failed. South Carolina affords a meaningful post deprivation remedy for the loss of animals. In this case, the Defendants did not have the authority under SC statutes to destroy Bogart's animals. Bogart did not show that the "Policy" was in place when her dogs and cats were seized or that Officer Terry relied on it. Though the Court affirmed the district court by a lengthy exercise in pretzel logic, Circuit Court Williams heartily dissented and correctly summed up the entire matter in one sentence, "Bogart, undisputedly received no pre-deprivation process at all."
PENNSYLVANIA Brown v. Muhlenberg Tp. United States Court of Appeals for the Third Circuit 269 F.3d 205 (3rd Cir. 2001)
Civil rights action regarding shooting of a pet dog. Police officer Robert Eberly is the alleged constitutional tortfeasor. The Brown's pet Rottweiler was placed in their fenced yard while they were in the process of getting ready for a move. Immi wore a bright pink collar with rabies tag, microchip tag, ID tag, a Rottwieler's lifetime license although they had not secured a dog license for her. The Browns did not realize the latch on the back gate had failed, and Immi wandered out of the yard. Officer Eberly was passing in his patrol car when he saw the dog. He parked his car and walked over to the dog. He was 10 - 12 feet from Immi when Kim Brown saw them facing one another from a window in their house. She screamed, "That's my dog, don't shoot!" Eberly then fired five shots at Immi. After the first shot, Immi tried to crawl away and he shot her four more times. Immi lived with the Brown's pre-school aged children and had never been violent or aggressive toward anyone.
Unreasonable Seizure A Fourth Amendment "seizure" of personal property occurs when "there is some meaningful interference with an individual's possessory interests in that property." Destroying property interferes with an individual's possessory interest in that property. In Pennsylvania statute, "all dogs are … declared to be personal property and subjects of theft." See U.S. v. Jacobson 466 U.S. 109, 113 (1984) Officer Eberly argued that an unlicensed dog under PA law is an abandoned dog. This argument didn't hold up. Further, where a pet is found at large, the state has an interest in restraining it so it will pose no danger to people or property. Qualified immunity would absolve Officer Eberly form liability. The state's killing of a person's dog without a public interest justification is a Fourth Amendment violation. Fuller, 36 F.3d at 68; Lesher v. Reed, 12 F.3d148, 150-51 (8th Cir. 1994)
Test: Eberly must show that a reasonable officer with the information possessed at the time could have believed his conduct was lawful. In other words, Eberly had to demonstrate he acted reasonably under those particular circumstances. Put another way, it would have been apparent to a reasonable officer that shooting Immi would be unlawful. The Browns argued that the Muhlenberg police officers received no formal dog handling training. That Eberly shot Immi five times without any justification That two police chiefs were responsible for Eberly's constitutional torts (a supervisory liability claim under Sample v. Diecks, 885 F. 2d 1099, 1118 (3d Cir. 1989)
That Chief Flanagan must have been aware of Officer Eberly's practice of using excessive force against animals and nevertheless failed to take appropriate disciplinary action. Eberly did acknowledge during his deposition that he had killed dogs on four prior occasions during his 16 year career Kim Brown also claimed intentional (implies malicious intent) infliction of emotional distress due to observing the slaughter of her beloved pet The dog barked at the police officer. It was on the street, unleashed and not in control of the owner. In PA, a police officer may kill any dog found running at large. The dog growled and barked at Eberly and looked as if she were about to lunge and spring forward.. It gave every appearance it was a threat to human safety. (The AKC provided information on the breed. This stated they are known to bully or bluff their owners or others but generally do not bite without provocation.)
The Circuit Judge wrote that "although it is sad to learn of the death or injury of any pet, I cannot overlook the apprehension that… a police officer, who has a duty to protect and ensure the safety of the public -- may have when faced with an unleashed, uncontrolled, barking Rottweiler." The witness testimony was heard at a Commission Hearing and this court stated it was not bound by it. Conclusion: Eberly's conduct as a police officer was appropriate and met the reasonability test. He did not intentionally inflict emotional distress on Kim Brown.
TEXAS Chambers v. Justice Court Precinct One --- S.W.3d ----, 2006 WL 1792842 (Tex.App.-Dallas)
A justice court (with special but limited jurisdiction over forfeiture of animals in alleged cruelty cases) divested an animal owner of over 100 animals and ordered that they be given to a nonprofit organization. (Dallas Society for the Prevention of Cruelty to Animals d/b/a SPCA of Texas) The owner sought review of the forfeiture in district court. The D.C. dismissed appellant's suit for lack of jurisdiction. Under the Texas Code, an owner may only appeal if the justice court orders the animal to be sold at public auction. Chapter 821 of the Texas Health and safety Code.
OKLAHOMA Haragan v. City of Waurika 127 F. 3d 1109, 1997 10 cir. 1194
Free Speech; Whistleblowing Plaintiff appeals stating his evidence was sufficient to show his speech to the new media involved a matter of public concern. Haragan was Police Chief of Waurika until his termination in 1993. Combs was appointed the new City Manager. Haragan refused to fire the old ACO, who died in August 1993, for fear of a lawsuit . Haragan and the new officer went to inspect the pound and discovered 18 - 20 dogs and newborn puppies that had been shot. The dead dogs were thrown into a hole by two men who turned out to be the city manager's son and a city employee. Haragan believed he'd witnessed a crime and called the Assistant D.A., spoke with the mayor, met with a Humane Society representative and was interviewed by several news stations. This case spells out the Four step analysis of whether a public employee's claim that his or her termination violated protected speech rights.
IOWA McClendon v. Story County 312 F. Supp 2d 1146
McClendon claimed that Defendant's (ACOs McCaskey and Rogers) seized items not identified in the search warrant. This case is a good study of Qualified Immunity. Numerous complaints and reports of animal neglect were made to various animal welfare agencies including the Story County animal control department. The ACOs obtained permission to inspect the McClendon property and found signs of serious illness. McLendon was the sold person caring for a heard of 37+ horses and ascertained she did not have the equipment and supplies to properly care for the animals. Over the next five weeks, the ACOs made additional visits and found the conditions unchanged. A livestock inspector for the Iowa Department of Agriculture and a DVN also inspected the herd with McLendon's assent. One of the ACOs applied for a search warrant and the DVN wrote a letter in support of it. Iowa Code Sec. 717.2A requires consultation with a licenses veterinarian prior to seizure.
During the search, two dead horses were found. McClendon admitted she removed the most infirm horses to keep them from being seized. McClendon alleges that because she "hid" those horses, the ACOs punished her by seizing the entire herd. (motivated by pretext, for instance, to investigate hunches) She said that all of the horses seized did not fit the description in the warrant, that is "any horses . . . that are sick and immediate need of critical care." Further the warrant did not identify the exact number of horses to be seized. McClendon argues that the vet's letters focus upon removal of some horses although the warrant is more broadly worded. McClendon maintains she removed the sickly horses but implies the rest were healthy. There was a dissent from Judge Melloy who believed the district court properly denied qualified immunity to the ACOs. Were the remaining horses outside the scope of the warrant? Would a reasonable officer know the seizure of the remaining horses was unlawful? Twenty-three horses were identified by the vets as being sick and in immediate need of care, but all the horses were seized.
WISCONSIN Porter v. Diblasio 93 F. 3d 301 (7th Cir. 1996)
Porter left 9 thoroughbred racehorses in the care of Lulling while he lived in Alaska. Lulling allegedly neglected the horses. DiBlasio, a Dane County H.S. officer and several Dan County deputies seized 11 horses at Lulling's farm, including Porter's 9 horses. Also seized were his ownership papers regarding these 9 horses. Dane County officials did not notify Porter of the seizure although he learned of it from Lulling. He called DiBlasio the week after the seizure and demanded the return of his horses. DiBlasio informed him he must pay restitution within 5 days and take the horses to a different farm or they would be placed for adoption. Lulling was charged with several counts of neglect; Porter was not.
Assistant Dane County DA wrote 2 letters to Lulling's attorney informing her she was required to pay boarding charges for the horses of $10, 568.67 within 5 days, or they will be treated as strays according to state statute. The county never notified Porter directly that his horses would be treated as strays. Five days after the 2nd letter, the humane society terminated Porter's ownership rights and prepared to adopt them out. Porter was not provided notice of the impending termination, nor was he provided an opportunity for a hearing to challenge the legality of the seizure or reasonableness of the boarding charges.
** Eight of Porter's horses were adopted for nominal sums. The adopters included DiBlasio, DiBlasio's daughter and the veterinarian who was to testify regarding the neglect of the animals. One of Porter's horses died with in the Humane Society's care, prior to adoption. D.A. Paul Humphrey filed a motion that Porter failed to state a viable due process claim. So did DiBlasio. The district court granted Humphrey's motion to dismiss and said he was given all the process he was due. Porter filed a motion for reconsideration (Rule 12(c). Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56) and argued substantive due process based on the Takings Clause of the Fifth Amendment.
The court denied the motion. Summary judgment was entered in favor of Dane County and DiBlasio, in her capacity as a Dane County employee (via the Humane Society). Under Wisconsin statutes, humane officers are vested with the powers of police officers or constables within their counties or municipalities. A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to relief. Porter's Section 1983 complaint alleges three Constitutional violations. The alleged procedural due process was the only one to state a claim upon which relief could be granted.
Procedural Due Process Analysis Is a plaintiff deprived of a Constitutionally protected interest in life, liberty or property? If so, by what process did the deprivation occur? Porter's ownership interest in the nine horses is a protected property interest under the Fourteenth Amendment. Logan, 455 U.S. at 434, 102 S. Ct. at 1156 "The State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement. Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729, 738 (1975) "Due process requires some kind of notice and … some kind of hearing. A predeprivation hearing is not required in all circumstances, however. For example, where the state must of a necessity act quickly. Or where the degree of the deprivation is not serious When the availability of a common law tort remedy may satisfy due process, see Zinermon, 494 U.S. at 128, 110 S. Ct. at 984.
The Mathews Test is often used to determine what kind of process is required. Mathews v. Eldridge. 424 U.S. 319 (1976), 424 U.S. 319 1. There can be no dispute than an animal owner has a substantial interest in maintaining his rights in a seized animal, whether monetary or in the form of companionship. 2. In this case, there must be a risk that the owner will suffer a permanent and wrongful deprivation of his rights under a system that provides only a 5-day redemption period. 3. Requiring that the county provide notice and opportunity for a hearing prior to terminating an owner's interest is not a significant burden. Was it the county's custom or policy not to provide an owner with notice or an opportunity for a hearing prior to terminating the owner's property interest in animals and disposing of them? The court concluded that Wisconsin must provide an owner notice and opportunity for a hearing before terminating an individual's interest in seized animals. Under Wisconsin statute, a person whose property was seized with or without a warrant may petition for its return in the circuit court for the county in which the property was seized. The court disagreed with the district court's conclusion that DiBlasio and Humprhey's failure to provide Porter with the requisite process was "random and unauthorized.
Was the conduct of DiBlasio and Humphrey predictable? Yes. They did just what their second letter stated - they would terminate ownership rights, treat the animals as strays and put them up for adoption. Porter's second Claim for Relief" alleged a conspiracy between DiBlasio and Humphrey. The Constitution forbids a taking that is carried out for no other reason than to confer a private benefit on a particular private party. However, takings which fulfill a legitimate public use requirement do not fall under the same standard. Case was remanded to the district court with judge's opinion regarding the county's failure to provide Porter with due process prior to his deprivation.
MAINE Tripp v. Cole No. 04-2588 (First cir. 2005)
Chief Tripp observed a dog at large and called the town's ACO. A summons was issued to the owner. The dog owner repeatedly called the town manager, Cole, to complain about the summons. Cole asked Tripp to dismiss the summons, but he would not. Eventually he was terminated from his job. He argues it was all due to not dropping the charges against this certain dog owner. This case focuses on Whistleblower Retaliation and "protected activities." After an in depth analysis, the court concluded that Tripp's speech did not address a "matter of public concern."
Wall v. City of Brookfield 406 F. 3d 458 (7th Cir. 2005)
Frivolous Nuisance litigation. Two 95 lb Dobermans constantly at large and frightening neighbors. Plaintiff rec'd 9 citations for violations that forbids people to allow their dogs to run wild. Meritless case.
MEDIA Berger v Hanlon No. 9635251v3 11/04/99 119 S. Ct. 1706 (1999)
Federal agents searched the ranch of Paul and Erma Berger in 1993. They acted pursuant to a search warrant and also pursuant to a written contract with CNN/Turner Broadcasting System that would allow the media to film and record the search for two of their environmental television shows "Earth Matters" and "Network Earth." It was alleged that Berger deliberately poisoned eagles and the government wanted publicity. Berger was convicted on one misdemeanor count for using a pesticide in a manner inconsistent with its labeling. He was acquitted of three felony counts of the killing of at least one eagle.
A Bivens Claim - Violation of Fourth Amendment and Immunity The Bergers sued both the media and the federal agents under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for the violation of their constitutional rights.
The appeals court held that the federal officers were not entitled to qualified immunity since this was no ordinary search. The search was jointly planned by LE and the media and it was ruled that the media did indeed become "government actors." Furthermore, the media were to document the Berger raid for nonlaw purposes. Four Tests were used to determine when the Media becomes a "government actor": 1. The governmental nexus test, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 499, 453 (1974) 2. The Public Function Test, Jackson v. Metropolitan Edison Co. 3. The State Compulsion Test, Blum v. Yaretzky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 2786 (1982) 4. The Joint Action Test, Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183, 186 (1980) Of significant importance is the fact that there was a contractual commitment between the government and the media which constituted a joint action. The media acted for its own benefit.
This case synopsis found on the internet URL is rather detailed and lengthy. For those of you unfamiliar with the Berger case, you may want to read it in detail. It is quite educational. Details on the above tests are explained in greater legal detail. Paul and Erma Berger owned a 75,000 acre ranch in Montana. At the time of the search both were over 70 years of age. Former employees told the USFWS that they'd seen Mr. Berger poison or shoot eagles a few years earlier. Why did they wait so long to inform the USFWS? Did they have a vengeful motive? At any rate, a contract was made with CNN, a search warrant issued and the rest is history. The Bergers sued for trespass by the media under state law. Bear in mind that this case focuses on Montana state law -- the statutes may very from state to state. However, in the Restatement (Second) of Torts S. 167, consent is an absolute defense to trespass. The district court held that since the government agents via a search warrant had temporary possession and control of the Bergers' land, the Bergers had no possessory interest in the ranch for that period of time.
However, the media entered the Berger's home, a place that the government did not have a warrant to search. Berger did consent to allow one agent's entry into his home, but never consented to the entry of the media, who wore microphones. The agent did not have a warrant to enter the home, had no possession of the home and no authority to give the media consent to enter. The Bergers sued the media for conversion, that is the capture of their images and voices. The district court found that recorded sounds and images cannot be subject to a conversion claim and the appeals court agreed. The Bergers sued under Montana law for emotional distress. See Sacco v. High Country Indep. Press, Inc., 896 P.2d 411, 429 (1995). The appeal court remanded this issue to the district court since this claim was based on an interference with their privacy and property interests. Unfortunately, the Bergers lost their appeal for injunction to prevent the media from broadcasting videos, pictures and sound recordings made during the raid.
CALIFORNIA Brunette v. Humane Society of Ventura 294 F. 3d. 1205
Section 1983 lawsuit that the media violated her Fourth Amendment rights during an illegal search of her property. The district court dismissed her claim because she did not allege fact sufficient to demonstrate that the Media was a state actor. Finding: The Media did not perform any government function or engage in any joint action with the Humane Society of Ventura County. The Media was not a state actor; it was a private spectator, photographing and videotaping the search independently and for its own purposes. The Humane Society was created by special California statute, and it engages in a quasi-public function. Cal. Corp. Code Sec. 14502 Initially the H.S. visited Brunette's ranch (completely fenced with one locked gate and "No Trespass" sign at the entrance).
They issued an administrative Notice of Correction. Later they obtained a search warrant which included the entire residence, outbuildings and vehicles. The warrant authorized the H.S. to seize sick injured or dead animals, medications , all documents regarding treatment of the animals as well as to photograph the premises. Prior to executing the warrant they invited Ojai News and KADY-Channel 6 to accompany the search. KADY declined, but Ojai reporter Tim Dewar drove his own vehicle to the ranch. Before he arrived, the H.S. had already severed Brunett's gate lock and entered the property. They invited DeWar to enter. DeWar rendered no assistance to the H.S. The H.S. seized 40 cats, a Doberman Pinscher and 12 ducklings -- none of which was diseased, injured or deceased. Nevertheless, Dewar wrote numerous articles that were published which impunged Brunette's character and accused her of mistreatment of animals. One editorial suggested she undergo psychiatric evaluation. His articles featured photos of sickly animals, though not all of the animals were owned by Brunette.
Brunette won her cased based on the ruling that the H.S. lacked statutory authority to execute search warrants and therefore its search of Brunette's ranch violated the Fourth Amendment. She then filed suit alleging various state law causes of action including violation of her state constitutional rights, trespass, invasion of privacy, conspiracy, conversion and infliction of emotional distress. The media filed a motion to dismiss her complaint and failure to state a claim, which the district court granted. Question: Did a private actor (the media) engage in a state action? See Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) There are three tests which the courts take into consideration. The joint Action Test, The Symbiotic Relationship Test and the Public Functions Test. Joint Action A private party must be a willful participant. See Berger v. Hanlon 129 F.3d 505 for in depth analysis of a clear case of joint action. In this case, CNN participated in a pre-search briefing with the USFWS. They signed a contract with FWS and the raid was jointly planned. The court ruled that in this case, the Humane Society and the Media acted independently. The Media's actions were not "state actions." The warrant authorized videotaping and photographing. Symbiotic Relationship A substantial interdependence must be created, often involving significant financial integration. The private entity cannot be a mere onlooker, but a joint participant. The reporter simply reported and did not help the H.S. with the search or seizure of animals.
Public Function When does private activity become a public function? The Media did not engage in any law enforcement activity, but merely observed. Therefore, the media was not considered a state actor
Stack v. Killian Electronic 1996 FED App. 0305P (6th Cir.) 96 F. 3d 159 (6th Cir. 1996) No. 94-2230
Lydia Stack operates Aid to Animals, a non-profit animal shelter that houses approximately 300 dogs and cats. She maintained a no kill shelter. She brought a 42 Sec. 1983 action, claiming that her rights were violated when her animal shelter was raided. The court affirmed. Michael C. Killian is employee of the Michigan Department of Agriculture and also an employee of the Michigan Anti-Cruelty Society. A news reporter, accompanied by television cameras was present during the search. There was a search warrant prior to search and seizure. 77 animals were seized and euthanized. Stack was arrested and charged with animal cruelty.
Findings: A defendant is NOT entitled to summary judgment unless he or she can show that NO genuine issue exists as to any material fact. Qualified immunity under Section 1983. A cause of action exists when any person deprives an individual of any right, privilege, or immunity secured by the Constitution or federal law. (i.e. The protection of Officials who are sued in their official capacities may be protected by this immunity as long as their conduct does not violate clearly established statutory or Constitutional rights.)
TEST to Qualified Immunity: The Objective Legal Reasonableness of the action. Issue: General Search Warrant and Procedureal Due Process Violations Stack argued a defective warrant and alleged that she was denied the opportunity to contest the seizure before the animals were euthanized. Findings: The defendants did not act unreasonably in executing the search warrant Stack argued that the News media violation to 14th Amendment Right to Privacy violated her Constitutional rights. Holman v. Central Ark. Broadcasting Co., Inc. 610 F.2d 542, 544 (8th Cir. 1979) states that No right to privacy is invaded when state officials allow or facilitate publication of an official act such as an arrest. Avenson v. Zegart, 577 F. Supp 958, 962 (D. Minn. 1984) - Failure of police officers to remove media did not violate plaintiff's 14th Amendment rights.
According to the court, in this case, the police procured a private person to tour plaintiff's home with a camera for "purposes utterly unconnected" with the search warrant they had already executed. A jury must decide whether this "unreasonably exceeded the scope of the warrant." They further stated that summary judgment should not have been granted. Notes: (See this case in its entirety for case law citations) A warrant does not implicitly authorize government officers to invite a private individual to tour plaintiff's home for a mission unrelated to the search authorized by warrant. An agent's invitation to a television crew to broadcast a search violated 14th Amendment rights (but cert. denied in that case) It is a failure of public trust to invite private citizens (Killian and Duncan) whose presence is not necessary to the execution of the warrant to join the search party However, Bills I at 958 F.2d 706 states that "police may constitutionally call upon private citizens to assist them, and where assistance is rendered in aid of a warrant and not for some other purpose, the bounds of reasonableness have not been overstepped."
Amicus Curiae Animal Legal Defense Fund Supreme Court, State of New York Ulster County Index 00-472 Lewis v. AlDiDonna et al
ALDF's amicus curiae, which reads like a law journal article, regarding animal's legal classification as "property." This paper was written to encourage the idea that pet animals should be dealt with legally, as companions and not property.
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Author: Sue Beaulieu. I put these cases together 2007. They are not Shepardized and newer case law researched before their use.
