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A federal appellate court has reinstated Fourth Amendment and procedural due process claims brought by a dog-owning couple in Louisville, Ky., based on a warrantless seizure, without consent, of their dogs by an animal services agency. On Nov. 8, a unanimous panel of the U.S. Court of Appeals for the 6th Circuit ruled in favor of two constitutional claims brought by James and Angela O’Neill, reversed a designation of their home as an unlicensed “Class A kennel” and remanded the case to the Western District of Kentucky. In October 2008, two undercover officers of the Louisville Metro Animal Services agents went to the O’Neills’ home, claiming to be interested in buying one of their seven American bulldog puppies. The O’Neills invited them in and allowed them to look at the puppies. Shortly after they left, uniformed officers of the agency came to their home, along with the undercover pair, and demanded to see a breeder’s license. When James O’Neill said they didn’t have one because he didn’t think they needed one, the agents, without a warrant or their consent, entered their home and impounded the O’Neill’s nine bulldogs, including the seven puppies, on the ground that the O’Neills were running an unlicensed Class A kennel in violation of the municipal animal-control ordinance. The O’Neills had bred their bulldogs for the first and only time that year, and agency officials saw their puppy advertisement in the Louisville Courier-Journal. After seizing the dogs, the agency implanted microchips in all the dogs and had the adult dogs neutered and spayed. Gilles Meloche, at the time the director of the agency, offered the O’Neills a $1,020.95 deal to get their dogs back, which they paid. The O’Neills sued the county government, Louisville Metro Animal Services, Meloche, two other named animal services employees and unknown defendants in October 2009. District Judge John G. Heyburn II dismissed their case in May 2010. “This is perhaps the dog-gonest case ever to reach a federal appellate court,” wrote Circuit Judge Ronald Lee Gilman in O’Neill v. Louisville/Jefferson County Metro Government. Judge Raymond Kethledge and Eastern District of Michigan District Judge Thomas Ludington, who sat on the panel by designation, joined him. The 6th Circuit reversed three of Heyburn’s rulings: his dismissal of their Fourth Amendment claim stemming from the animal officers’ second entry into their home, his dismissal of their procedural due process claim and his designation of their home as an unlicensed Class A kennel. Gilman wrote that the second entry into the O’Neill’s home is distinguished from other cases in which backup officers quickly entered a residence to make an arrest after undercover officers left the premises. “Applying the consent-once-removed doctrine to the [animal] officers’ second entry, where no arrest was intended, would go well beyond the confines of this limited doctrine, which has yet to be adopted by the Supreme Court,” Gilman wrote. On the procedural due process claim, Gilman wrote that the O’Neills were entitled to written notice of their alleged violations of the county animal-control ordinance. “Meloche’s confrontation with the O’Neills…was not reasonably calculated to apprise the O’Neills of the allegations against them or of the procedures available to present their objections,” he said. “The circumstances as here alleged have an under-the-table, improper air about them….The animal agency director’s “confrontation with the O’Neills has the feel of a pseudo-shakedown that is not at all akin to a plea agreement, as the defendants would have us believe.” On his finding that the O’Neills were not operating a Class A kennel, Gilman relied on the Louisville animal-control and land-use ordinances. The “non-commercial kennel” definition in the land-use ordinance “refers to a ‘residence,’ and specifically states that selling up to three litters of puppies per year does not make the residence a commercial kennel,’ ” Gilman wrote. He also found that “ the common meaning of the words ‘establishment,’ ‘so constructed,’ and ‘primary purpose,’ the context in which these words and the term ‘Class A kennel’ are used in the Louisville Metro ordinances, and the inconsistent positions of [the agency] all lead to the inexorable conclusion that the O’Neills were not in fact operating a Class A kennel. They thus had no obligation to obtain a breeder’s license in order to sell their single litter of puppies.” The 6th Circuit also vacated the lower court’s dismissal of the O’Neills’ state-law tort claims for trespass, conversion and outrage. “The district court determined that the state-law tort claims…were not viable under Kentucky law because the O’Neills were operating a Class A kennel without a license.” Gilman wrote. “Because we have concluded, based on the alleged facts, that the O’Neills were not operating a Class A kennel, we vacate the district court’s ruling on the state-law claims.” But Gillman also affirmed Heyburn’s dismissal of the O’Neills’ Fourth Amendment claim based on the undercover animal services agents’ initial entry into their house and their substantive due process and equal protection claims. On the initial home entry constitutional claim, Gilman wrote that there was no Fourth Amendment search because “the O’Neills opened a portion of their home to the public when they invited those who responded to their newspaper ad to come and look at the puppies.” He concluded that the “the O’Neills are simply barking up the wrong tree” by arguing that the animal officers’ should be barred from subterfuge, in this case posing as puppy shoppers, to gain access to their home. On the substantive due process and equal protection claims, Gilman rejected the O’Neill’s argument that the county has “no rational basis for requiring the alteration of impounded, unaltered adult dogs but not the alteration of impounded, altered adult dogs.” Gilman wrote that the county “has a completely rational basis not to require the alteration of already altered dogs,” because it is physically impossible. The Jefferson County Attorney’s Office, which represented the government defendants, declined to comment because there are several issues yet to be decided in the case, said spokesperson Bill Patteson. Jon Fleischaker, a Louisville partner at Dinsmore & Shohl who represented the O’Neills, said, “This was an egregious case of a violation of the constitutional rights of citizens.” “This is not about animal rights; this is about the rights of citizens to be secure in their homes,” Fleischaker said. “Not to have searches without warrants and to be trong-rmed by public officials into paying basically a bribe to get their property back that had been improperly seized by the police.” Sheri Qualters can be contacted at [email protected].

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