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