October 16, 2018

Do You Have a Right of Property in an Unlicensed Dog?

Smith, et. al. v. City of Detroit, Michigan, et al.

If you fail to license your dog, is it still your dog? That was the question before the United States Court of Appeals for the Sixth Circuit decided on October 15, 2018.

Plaintiffs Nikita Smith and Kevin Thomas filed a civil lawsuit against the City of Detroit (through the Detroit Police Department and six police officers) for the shooting death of their three dogs. The City of Detroit argued that Plaintiffs Smith and Thomas forfeited their property right (to sue the City for any damages incurred for the death of their dogs, which are property under the law) when they failed to license each of the dogs with the City of Detroit. Surprisingly, the district court agreed and held that unlicensed dogs were “contraband” and therefore plaintiffs could not sue to recover any damages. But Smith and Thomas appealed that decision and here we are.

The original district court opinion of owners not having an interest in unlicensed dogs was a scary thought for pet owners, animal shelters, and animal lawyers across the country. Did an animal shelter have to return a pet to an owner if the owner hadn’t licensed the pet? If you lost your unlicensed dog and someone else found it, did you even have a right to get your dog back from the person who found it? Could a city prosecute someone for owning an animal and failing to provide care for it if the animal was unlicensed and therefore contraband?

These issues were compounded by the abysmal licensing compliance rate nationwide. Pet licensing firms working with municipalities on licensing compliance say the average municipality has pet licensing compliance of 8-10%. That means 90% of pet owners don’t license their pets and would have no interest in their animals had the district court’s opinion been affirmed.

FACTS

Foregoing the gruesome details of what happened when Detroit police executed a search warrant for selling marijuana, three dogs, Debo, Smoke, and Mama (who was pregnant with 7 puppies) were shot and killed. Debo was shot seven times, not far from Ms. Smith in the living room. Smoke was shot several times through a bathroom door. Mama was secured in the basement and when officers opened the basement door, they allege she charged them and they shot and killed her.

The officers recovered a little over 2 grams of marijuana from the residence.

One officer described the plan to deal with the dog(s): “[T]he first two guys . . . walks [sic] through that door with the long guns and if they can kick [the dogs] out of the way and they proceed to run to a corner, fine, but if they come back to attack then you just have to eliminate that threat so no one gets bit.” However, in San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005), the court held that the Fourth Amendment “forbids the killing of a person’s dog...when that destruction is unnecessary—i.e., when less intrusive, or less destructive alternatives exist.” The opinion goes on; “. . . a reasonable officer should have known that to create a plan to enter the perimeter of a person’s property, knowing all the while about the presence of dogs on the property, without considering a method for subduing the dogs besides killing them, would violate the Fourth Amendment.”

But whether or not there was reasonableness or the officers’ actions violated the Fourth Amendment was not the issue for the Sixth Circuit.

OPINION

The only issue argued on appeal was whether or not the dogs were “contraband” because they were unlicensed. The district court’s rationale can be summed up as: Michigan law and Detroit city code require your dog is licensed; if it is not licensed, you could receive a criminal citation; and if it is a crime to have an unlicensed dog, then an unlicensed dog is “contraband.”

However, the Sixth Circuit held that because there is a procedural due process for citations issued for unlicensed dogs, owners have a possessory/property interest in their dogs. Basically, if dogs were contraband like some drugs, there would not be a fine and the ability to possess the dog after the fine is paid and the dog is licensed, the dog would just be killed (e.g. the drugs would be destroyed). Additionally, the Sixth Circuit held that unlicensed dogs are not illegal contraband, but rather more like any other personal property that a governmental agency requires to be licensed like a boat or a car. “Just as the police cannot destroy every unlicensed car or gun on the spot, they cannot kill every unlicensed dog on the spot.”

The case is now back in district court and will be heard on the substantive part of the civil lawsuit.

Unrelated to the question to the court on having a property interest in an unlicensed dog, it is noteworthy that the Smith case is only one of several lawsuits that have been filed against the Detroit Police Department for dog shootings over the past two years. A recent report and discovery in the Smith case found one Detroit Police Officer in the Smith case shot at least 69 dogs, the other at least 39 in their reportable careers. Moreover, in a different case, the City of Detroit settled for $100,000 after dash cam video showed an officer shooting a man's dog while it was chained to a fence. A report also found that in a third case, Detroit Police Officers allegedly shot a couple's dogs while the animals were behind a backyard fence.

This article is for general informational and educational use and does not constitute legal advice. Since laws change over time, it's possible some language within this article may become out of date. Reading this blog does not create an attorney-client relationship, nor is it intended to be or should be construed as any form of advertising or solicitation to perform legal services.