Dog seizures by Humane Society may violate the Fourth Amendment

This man sued the local humane society for the seizure and death of his dogs. The Court of Appeals says the plaintiff has a Fourth Amendment case, and the case is remanded for discovery.

The case is Newsome v. Bogan, a summary order issued on February 28. The threshold issue is whether the humane society can be sued for civil rights violations. Normally, private actors cannot be sued under the Constitution. But the Second Circuit has already held that the local SPCA can be sued under Section 1983. That case was Fabricant v. French, 691 F.3d 193 (2d Cir. 2012). The Court in Fabricant said the SPCA "were state actors “when they conducted the search of Fabrikant’s house and the seizure of the dogs.” When that case returned to the Court of Appeals, it held that "“in taking custody of the dogs and making decisions about their proper maintenance and care, the SPCA officials were simply following up on the initial seizure of the dogs, which concededly was state action,” and thus there was “a sufficiently close nexus between the State and the challenged action.” That nexus could occur where “the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, [or] the entity has been delegated a public function by the state.” This was an important holding, as it expanded the classes of defendants in Section 1983 litigation.

The Fabricant case helps Newsome, who also pleads state action by alleging that Humane Society employee Plyter "had participated in the seizure of the dogs from Newsome’s home, and when doing so, Plyter was acting in concert with the state," as "Plyter informed Newsome that the Lyons Police Department had instructed Plyter to consider the dogs abandoned and not release them to Newsome."

Since the unreasonable seizure and removal or killing of an animal violates the Fourth Amendment, the Court of Appeals asks whether plaintiff properly pleads such a violation. He does. The Court reasons:

There is no question that the intrusion here was severe “given the emotional attachment between a dog and an owner.” The governmental interest, on the other hand, appears to have been relatively weak. According to the amended complaint, at least one of the dogs was enclosed in a crate and not obviously capable of interfering with officer safety. There was also no apparent concern with destruction of evidence, as the relevant evidence had been collected from Newsome’s home on a prior occasion. Plyter’s after-the-fact statement that the dogs were aggressive and abandoned does not alter our conclusion. The amended complaint states that Plyter initially told Newsome he could come claim the dogs before calling back to tell him that the dogs were abandoned and aggressive. This backtracking supports the inference that these reasons were pretextual.
The death of the dogs may also violate the Fourth Amendment because the Humane Society, which had the dogs in custody, had no interest in protecting the public from dangerous dogs; they were not wandering loose on the streets.