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.’”

Dogs are Fourth Amendment "effects," so the government can"t just shoot them without expecting to pay

According to a recent story on CBS6, an animal control officer in Charles City County, Virginia killed an 18-month-old yellow labrador, Axel, while investigating a neighbor’s complaint. Officer Franklin Bates arrived at Sharon McGein’s home with her neighbor’s 17-year old son, whom Axel had reportedly chased and tried to bite. The teenage neighbor identified Axel as the dog that chased him. Accounts differ as to what happened next. Maybe the dog charged the officer; maybe the officer provoked the dog to bark menacingly. But there is no maybe about what reportedly happened next. Officer Bates shot Axel three times in the face. The dog died.

The County Administrator and the State Police are reportedly investigating whether to file charges.

This incident may also give rise to civil liability. In Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003), the Fourth Circuit held that dogs are “effects” protected by the Fourth Amendment against unreasonable seizure. Because shooting and killing a dog is a “seizure” of the dog, the dog’s owner can sue the shooter (and other government defendants as well) under § 1983.

Whether such a suit would succeed depends heavily on the facts of the shooting. In Altman, for example, the panel majority held that the animal control officers were protected by qualified immunity. But that was largely because the dogs “were running at large, uncontrolled and with no owner looking on.” That does not appear to be the case here. And the Altman decision will be treated as having put the government on notice of the potential for liability. Should the case be litigated, the key question will be this: Did Axel pose an imminent danger that justified the officer’s use of deadly force?

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