US ConstitutionA critical legal decision for pet owners was filed on October 2nd last week by Federal Court regarding controversial Louisville, KY animal care and control ordinances brought into practise within the past couple of years.  This court case was filed and fought by the Louisville Kennel Club against the Louisville/Jefferson County Metro Government, on behalf of the pet owners of Louisville and across the United States, given the Constitutional nature of the lawsuit.  The most critical aspect of this judgement is that, as a constitutional Federal Court decision, it is relevent and may be cited as precedent across the US instead of only within Kentucky.*

The Louisville ordinances were used as a springboard for similar legislation that has been passed or is pending across the US.  This has lead to significant speculation that the Humane Society of the United States (HSUS) was heavily involved in the drafting of this legislation; especially since the HSUS regularly announces its involvement in the drafting in legislation across the US and dedicates significant resources to legislation and legal action

Therefore, perhaps the legal experts at the HSUS and legislators everywhere should take note that the following sections of the Louisville ordinances have been struck down as unconstitutional with immediate injunction against enforcement under the Fourteenth Amendment’s Equal Protection and Due Process clauses:

  • Enclosures for unaltered dogs require approval of the Director of Animal Services in writing:  “There being no apparent reason why the owners of unaltered dogs should be treated differently than the owners of their neutered counterparts, the written approval requirement lacks a rational basis and is unconstitutional”
  • Confiscation of Victimized Animal (Section 91.101):  Significant analysis is dedicated to this portion of the decision (pgs 16 -20) and should be considered important reading for any animal owner.  The critical portions of the decision on this section include:
    • “As (LKC) argue, pet owners clearly have a property interest in their animals. See Besws v. Bracken County Fiscal Court, 210 S.W.3d177,180 (Ky.2006) (recognizing that dogs are personal property)  This interest is not absolute and is subject to regulation by state and municipal governments. Id.  Nonetheless, the government is not permitted to deprive an animal owner of his property without due process of law.
    • “the portion of 91.101 that would permanently deprive a pet owner of his property, absent a finding of guilt, is unconstitutional

Three sections were found to be problematic by the court through express authorization of seizure of animals without requirement for a warrant:

  • Section 91.073(D) dealing with potential violation of tethering laws.
  • Section 91.094(A) dealing with suspected animal cruelty
  • Section 91.101(A) which states “Any animal found involved in a violation of any portion of this section may be confiscated by any Animal Control Officer or any peace officer and held in a humane manner”

In court, Metro was noted it “vehemently disclaims the idea that it authorizes warrantless searches”.  Metro further acknowledged the Fourth Amendment as acting as an independent check on Animal Control Officers. (although there are a number of animal owners in Louisville who might equally ‘vehemently’ disagree with that position)   The subsequent analysis by the court is entertaining, at minimum, noting as follows below:

  • “This is, of course, a wise position to take; to the extent that an ordinance authorizes searches or seizures of a sort not sanctioned by the Constitution, it must be unconstitutional.  That is merely to state a truism, but as the Court has in essence been asked only to affirm that the Fourth Amendment applies to searches contemplated by the above-quoted sections, there is little else to say.”

The foresight of including this information in the decision is admirable, as it puts the observation in the record that these sections indeed violate the Constitution if applied as written should Metro Animal Control Officers decide to do so in the future, as they have been alleged to have done so in the past.

The direct ramifications of this case are immense, much more so that most realize.  This is one of the first of the Section 1983 federal suits launched in response to trampling of animal owners’ constitutional rights.  The Hawaii lawsuit by Norman Pang is another.  There are many more on the horizon and rightfully so.  The State of Indiana might want to take note.

Copyright 2009 by Erica Saunders

All rights reserved

*Restated for clarity and technical legal accuracy

15 Responses to “Unconstitutional in Louisville, Kentucky and Everywhere Else”

  1. YesBiscuit! says:

    I wonder if MSN groups will continue to push for legislation at will, hoping to get the courts to rule in their favor down the road.

  2. Eric says:

    No! No! The decision is valid only in that District in KY. It can be used as a precedent elsewhere but until it is affirmed by the 6th Circuit Ct of Appeals and the Supreme Ct, it is not applicable elsewhere.

  3. EdenSprings says:

    Couple other things to note:

    1. The decision included two injunctions (no inspections of enclosures and no seizure bonds. Even if the decision is appealed, those injunctions still stand.
    2. There is no statute of limitations under Section 1983 actions.

  4. EdenSprings says:

    Re: Judge Simpson's decision only being valid in Western District. While that is technically true, the situations wherein due process is being denied are so egregious, you will see this decision widely used. Not even a nod to due process in the Indiana tax case or the Houston SPCA ordeal.

    First use will likely be in N. KY on a federal cased filed in Feb. where cruelty was alleged, a Beagle pack seized & all euthanized when $11,000+ bond not met, then cruelty charges immediately dropped.

  5. EdenSprings says:

    Also, under 1983, you get to sue not only the governing body (city/county/state), but also AS INDIVIDUALS anyone who participated in the seizure: the ACOs who took your pets, their supervisor. For good measure you can throw in any GROUP that participated in any way and–indivdually–any of their members who did. Maybe when things get really expensive & embarassing, people will come to their senses.

  6. Tracy says:

    HSUS is going to wear out its welcome with lawmakers. Let's hope it happens sooner than later (we need to inform our local lawmakers every time there is a successful 1983 judgement). They come in and say "write this law, we will help". Then they send in their assistance on "busts", a la Pat Patrick in Arizona. It may take time, but keep an eye on all of the past and present "Humane Law Enforcement" award winners. When these awards are consistently followed 2-5 years later with a 1983 judgement, HSUS should ultimately be recognized for the scourge that they are.

    In fact, all of congress and President Bill Clinton himself are going to take a big hit when the SCOTUS upholds for the defendant in US v. Stevens. That is why HSUS has taken the fight so high…their credibility with lawmakers is totally on the line.

  7. Judy Sumpter says:

    Maybe now the H$U$ will stop backing these stupid laws and go back into the woodwork where they belong!

  8. Phil Eason says:

    People really need to educate themselves about organizations like HSUS and PETA. They give nothing for the care of animals, and any that is taken are immediately killed. They have 0 facilities for animals, they just rob old unsuspected people of money, and spend it trying to pass stupid laws sush as these.

  9. EdenSprings says:

    Curious with all the positive spin by Metro why they are now considering an appeal? Is it because they don't think the citizens of Jefferson County are entitled to their Constitutional Rights, or does it have to do with heavy pressure from a certain A/R group that's sweating bullets over this decision??

  10. stanford harvard says:

    Just the tip of the iceberg! I don't like dog or cockfighting, yet I do believe in a persons rights. We live in a nation that glorifies injury inevitable sports involving juvenile children in public venues, yet have felony laws prohibiting injury inevitable sports involving animals in a private venue. At some point the 14th amendments equal protection clause will be used to challenge the constitutionality of such conflicting laws. That's when you will see the HSUS sweating bullets for sure. Just a thought?

  11. Laura J. says:

    AR is most likely paying for any appeal…..of course under the table or providing an attorney. It would be difficult for them to let this one slip by but don’t think they have a leg to stand on and probably why “Metro” is considering an appeal. Remember AR filed two briefs for this case, they were denied. Be interesting if this comes to be what group of attorneys handle the case. Of course I am sure AR is already thinking of what they can come up with during 2010 for Louisville and if our government officials will buy into it.

  12. Nelson Abdullah says:

    I was advised of this court ruling last night and just finished reading the full 25 page decision. I am bewildered at how anyone can boast a victory for dog owners when the two most important rulings went in favor of the City of Louisville. I am referring to section 1. "Dangerous" and "Potentially Dangerous" Dogs, subsection B and C.

    The case as filed by Plaintiffs apparently never mentioned any facts on the testing of all breeds by the American Temperament Test Society.


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