Fido is Contraband: No Property Interest In Unlicensed Pets

Holy hell was that vacation just what the doctor ordered.  I mean, the doctor didn’t order it. My office did. Because I’ve been going full bore for a few years now without the chance to unwind for a bit, and I was starting to have the burnout effects cropping up all over.  Still and all, I’m back now, and that means it’s time to bring everything up to date, doesn’t it?  So, for the first (belated) Lawyers & Liquor post back from the mountains of Tennessee and my revelry in the numerous distilleries bordering a great national park, we’ll be lighthearted.

Like, you know, how a court recently ruled your unlicensed dog can probably be shot by the cops without violating the Fourth Amendment.

Just some really light stuff.

Okay, a while back I did a three part series on how the law treats animals as property.  You may remember that series, and if you don’t, well, fuck you. Go. Read. Them. Because that whole concept, that pets are essentially property, is a little essential to today’s discussion surrounding the recently decided Smith, et. al. v. City of Detroit, et. al. coming out of the United States District Court for the Eastern District of Michigan, Southern Division.  And when I say recently, I mean like…last week.

Alright, so…here be the facts as they have been judicially determined and stated in the order you’ll find up there.On January 14, 2016 a “strike team” of Detroit cops raided a suspected drug house.  The drug house was inhabited by squatters and their three pitbulls.  The cops got a search warrant after buying some dank bud from the residents.  After “breaching the door,” a fancy legal term for “kicking it the fuck in,” the cops were told by the resident that she would “secure the dogs” and shoved two of them, including a pregnant pit, into the basement.  A third was already in the bathroom at the time with the door shut.  I want to take a moment and note that after putting the dogs in the basement, the resident, Smith, put a goddamn stove in front of the basement door.

Unfortunately, the dogs got out, and much like the impact the Baha Men had on the music scene of 2000, the result was tragic.

One of the dogs pretty much immediately got out of the basement and, according to the police, tried to charge the officers.  The cops shot that dog from three feet away.  The other dog, who was growling and barking, opened the bathroom door but got stuck.  The police then shot that dog.  It was wounded but not dead until another officer came by and (mercifully) finished the pup off.  The officers then went into the basement and, according to them, were charged by and had to shoot the last dog.

HOLY SHIT, THAT’S HORRIBLE.

Now, look, I want to say something before I keep it up here, because all of that sounds really bad: We don’t know what happened in the house that day.  The dog owner disputes all of this, but the dog owner was also illegally squatting in a home where drugs were definitely fucking found after all of these events took place.  The police may be exaggerating, or the owner may be, I don’t know and frankly for the purposes of today’s post I don’t really care.  I don’t care because today’s post isn’t about the use of force, or how police conduct drug raids like goddamn Seal Team Six at times. It’s about the Fourth Amendment.  You know that one.  That’s the one that says the police can’t just take your shit.

By the way, yes, “killing your dog” constitutes as “taking your shit.” You might even say it’s the ultimate form of seizure.  Thank god, that was at least settled by Brown v. Battle Creek Police Department, 844 F.3d 556 (6th Cir. 2016), which said:

[T]here is a constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized.

Brown 844 F.3d at 567.

The legal translation is “The cops cannot just shoot your fucking dog without violating your Constitutional rights.”

This is what led Smith and party to sue the cops under 42 U.S.C. section 1983, the Federal law that authorizes civil actions when the government infringes on your goddamn constitutional rights.  You can imagine the fucking payday that was coming to hold those cops responsible for this shit, considering that dog owners have a constitutionally protected interest in not having Rover “Irreversibly Seized,” to put the whole thing euphemistically.

THANK GOD.

Unless you’re in Detroit and your dog is unlicensed.

FUCKING WHAT?

You heard me.  Are Fido’s tags up to date?

YOU HAVE TO BE SHITTING ME.

Nope.  Alright, let’s be really clear on the Fourth Amendment:  As we established when I was telling the giant animal people about hotel rooms a while back, it protects “people, not property.” So what it’s really protecting is the interests of people in their property without protecting the property itself. How we in the legal world phrase this is, depending on whether we’re under the “search” or “seizure” part of the Fourth Amendment, is a question of whether a person has a legitimate expectation of privacy or a legitimate property interest in the thing.  The latter applies to seizure, the former to searches.

I READ SOME OF THAT OPINION. THE COURT SAID THE PLAINTIFF WAS THE OWNER. HOW IS THAT NOT LEGITIMATE?

Well…alright.

“Legitimate Property Interest” in this case, and in the case of everything that has to do with an alleged unlawful seizure of property, requires that the person own the property and that the property be of a sort where they can expect the law to protect that interest.  It’s really sort of an analogy to the “reasonable expectation of privacy” that controls other search and seizure cases here.  We here in the legal talking world call this the “Katz Test,” named after a Supreme Court case called Katz v. United States, where there are two basic prongs we gotta look at:

  1. Has the person who owns that property shown they actually expected it to be treated as theirs?
  2. Is that expectation one society as a whole is willing to accept as objectively reasonable?

Why?  Well, you can’t claim you expect the Fourth Amendment to apply to shit that ain’t yours, and you can’t expect it to apply  to shit that society isn’t going to agree as a whole should be protected.

You can’t legitimately own illegal shit.

LOOK ASSHOLE, SHE WAS THE OWNER AND THEY’RE DOGS. ARE YOU SAYING SOCIETY ISN’T WILLING TO ACCEPT DOGS AS BEING PROTECTED?

No, I already addressed that shit. Scroll up.  The Sixth Circuit, where Michigan is, has explicitly held people have a subjective and objective expectation of legitimate property and privacy rights in their pets.

BUT YOU SAID…

Their legally owned pets.

SHE PAID FOR THEM.

Yeah, but she didn’t license them.

….

Cool, so, quick fact:  Under a neat-o Supreme Court Case called United States v. Jacobsen, 466 U.S. 109 (1984), you actually can’t claim a legitimate expectation of privacy in something that is illegal in nature. It isn’t because you can’t own something illegal, but rather because society is not prepared to accept that your expectation to the Fourth Amendment protection of an illegal object is reasonable.  You may have a reasonable expectation of privacy in your home, for example, but you do not have a reasonable expectation that the police can’t interfere with your property interest in the 25 kilos of cocaine located therein.

In essence, where your property is illegal, you don’t have an expectation of privacy in it or an expectation your ownership can’t be interfered with.  We call this the Contraband Exception to the Fourth Amendment, and it’s the same exception that underlies that whole “plain sight doctrine” thing that says the police can always seize something that is in plain sight and plainly illegal in nature.

YOU CAN’T TELL A DOG IS UNLICENSED JUST BY LOOKING AT IT.

Doesn’t matter here, at fucking all.  The claim was for 42 U.S.C. 1983 violations, meaning the question is whether or not the Plaintiff deserves to be compensated for the police interference with the possessory rights under the Fourth Amendment. The answer is “You don’t have possessory rights in illegal shit, so you can’t be compensated for the loss of illegal shit.”  Were the dogs like…taken as evidence in a criminal proceeding, we’d be dealing with a whole different ball of wax and maybe the dogs could be suppressed (but not fucking likely).  Here, though, we’re talking about a civil claim that entirely hinges on whether or not someone can claim a constitutional right in illegal property.

THEY WERE FUCKING DOGS, MAN.

Unlicensed dogs.  And that’s important, because here by not licensing their dogs the Plaintiff had taken something that could be protected by law, the dogs themselves, and turned them into something that cannot be protected by law.  Unlicensed dogs are inherently illegal in Michigan, and therefore you cannot legitimately own them

And that’s what this case is really about when you strip down the sentiment and shit attached to it: can you ignore the requirements of the law that you register certain types of property, and then claim the you’re entitled to renumeration when that property is seized.  The answer is, and always has been, no.

THAT’S COLD HEARTED.

No, you know what’s cold hearted?  Cause it’s real talk time.

What’s cold-hearted is not being willing to spend the $45 fucking dollars it would have taken to license those three dogs, despite apparently living rent free and having a booming side business selling narcotics out of your home.  Because that’s what it would have cost to get them licensed: $45.00.

SO IF YOU CAN’T AFFORD A LICENSE IT’S ALRIGHT FOR THE COPS TO JUST SHOOT YOUR DOG.

Take it up with SCOTUS.

…Look, up until 2014 a county sheriff in Michigan had a duty to take and kill unlicensed animals. It was written in the fucking law.

I’m not arguing it’s okay. It may have been okay, though,  because the police can protect themselves if attacked by a dog.  I’m just saying that in this instance, right here, the owner can’t sue the cops because they weren’t following the legal obligations that go along with owning these animals and they’d rendered their dogs absolutely contraband as a result.

So license your fucking dogs.  And don’t deal drugs out of your home.

MAN…

I want to go on to say something else: This only disposed of the Fourth Amendment question. It did not dispose of the tort claims against the police…though those were also disposed of on a different question (Was the action of the police under the circumstances reasonable).

I mean, guys, I’m not a big proponent of dog killing. I own dogs, I like my dogs. But I am a proponent of making sure that you legally own your property and making sure you guys understand that the Fourth Amendment has limitations to it.  I also enjoy responsible pet ownership.

So take this as me popping back in to say you should own your pets legally, or there can be lessened protection for them at law.  Because the Fourth Amendment doesn’t protect illegal shit.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.