Barking dogs, seizures and the Fourth Amendment

There is no deprivation of liberty under the Fourth Amendment if you’re served with a pre-arraignment, non-felony summons requiring nothing more than a court appearance. That’s the holding of the Second Circuit in a case arising from a dog that was barking its head off.

The case is Burg v. Gosselin, decided on January 7. Prior to this court ruling, the Court of Appeals had never taken up the issue of whether a non-felony summons requiring a later court appearance was a “seizure” under the Constitution. While the federal courts recognize that restrictive conditions of pretrial release on a felony charge constitute a Fourth Amendment seizure, the question here is whether that policy applies for less serious offenses. Taking the lead from other Circuit courts, the Second Circuit (Jacobs, Leval and Daniels [D.J.]), sides with the government on this one and dismisses the Section 1983 case.

It all started when the dog control officer in East Hampton, Connecticut, issued Burg a summons requiring her to appear in court at a later time. The summons invoked a Connecticut law which says you cannot own or harbor a dog that barks excessively or creates a disturbance or is “a source of annoyance to any sick person residing in the immediate vicinity.” Burg sued the dog control officer under Section 1983, claiming the summons was a seizure under the Fourth Amendment.

Some district court cases sided with plaintiffs like Burg. Those cases are now overruled. While the Second Circuit held in Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) that future court appearances and significant travel restrictions as a condition of post-arraignment release constitute a “seizure,” this case isn’t Murphy. Rather, “this summons does no more than require Burg to appear in court on a single occasion, and operates to effectuate due process. There is no restriction in travel, which mattered in Murphy. Moreover, in Murphy, there were eight court appearances, not the single appearance required by the summons issued by Gosselin. … Finally, Burg’s alleged offense was an infraction, and the summons thus does not impose the burdens … that are imposed when ‘a person faces serious criminal charges.’”