In Recchia v. Los Angeles Department of Animal Services, published May 1, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part the summary judgment in favor of the defendant city and its defendant animal welfare officers in a lawsuit a homeless man brought challenging the seizure and destruction of his pet birds. Animal welfare officers discovered that the plaintiff had multiple pigeons, a crow and a seagull in cages and cardboard boxes. Many of the pigeons appeared in distress; others were healthy. The officers planned to seize the diseased birds. When the plaintiff allegedly failed to provide a plan for housing the healthy birds that would comply with city law, the officers seized those birds as well. They gave the plaintiff a notice for a post-seizure hearing. A veterinarian determined that all of the pigeons should be euthanized. The plaintiff found out at the hearing that the birds had been destroyed. The district court determined that the seizure without a warrant was proper under the Fourth Amendment, due to exigent circumstances; that the plaintiff had failed to show any policy that would render the city liable; and that the plaintiff had failed to show wrongful conduct under state law.
The 9th Circuit ruled that public officers have the right under the Fourth Amendment to seize diseased, dangerous, or endangered animals without first securing a warrant. But it found an issue of fact on whether exigent circumstances permitted the officers to seize the healthy birds without a warrant, under the circumstances. It remanded that issue, and also instructed the district court on remand to determine whether the officers were entitled to qualified immunity and whether any policy of the city contributed to the seizure of the healthy birds. The court affirmed summary judgment on the plaintiff's Fourteenth Amendment due process claim that he was entitled to a pre-seizure hearing. The officers seized the birds under the procedure set forth in Penal Code section 597.1, which permits officers to seize animals without pre-seizure process if the officers have reasonable ground to believe prompt action is necessary to protect the health or safety of the animal or others. The issue was therefore whether the statute provided a procedure that met the requirements of due process. Although pet owners' interests in pets are stronger than interests in inanimate objects, the government also has a strong interest in protecting animals and others. The statute therefore provided sufficient due process by providing for a post-seizure hearing. Finally, the officers were entitled to discretionary immunity under state law. They exercised their discretion in determining the animals should be seized under the statute.
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