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Thursday, July 21, 2016

Do Animal Rights Trump Their Guardians' Fourth Amendment Protections?

Today, the Supreme Court of Oregon decided State v. Newcomb, an interesting animal neglect/Fourth Amendment case, which raises interesting questions about sentience, ownership, poverty, and state intervention.

The Facts

Newcomb's neighbor complained to the police that Newcomb was neglecting and starving her dog, Juno. A police officer arrived at Newcomb's house and saw Juno "in a near-emaciated condition", with "no fat on his body", "eating at random things in the yard, and * * * trying to vomit", but "nothing was coming up." The officer inquired as to the dog's condition, and Newcomb explained that she had run out of food for the dog, which she bought in small quantities. The officer took custody of Juno and brought him to the Humane Society, where he was found to be in deplorable physical condition due to starvation. The vet took a [warrantless] blood sample--which is at the heart of the controversy here--which found that Juno had no underlying condition explaining his emaciated state except malnutrition.

Newcomb was charged with second-degree animal neglect and moved to suppress the evidence. She claimed the officer had no probable cause to seize Juno. More interestingly, she claimed that, since the dog is no more than property in the eyes of the law--"no different than a folder or a stereo or a vehicle or a boot"--the blood sample was an unreasonable Fourth Amendment search, which violated Newcomb's expectation of privacy. The fact-finding court denied the motion and Newcomb was convicted. At the Oregon Court of Appeals, the decision was reversed with regard to the blood sample. The Supreme Court unanimously reversed, finding for the State and affirming the conviction.

The Decision

The Court reiterated the importance of Fourth Amendment protections in people's "... effects", and proceeded to ask whether it mattered that the "effect" in question was a living animal, rather than an inanimate piece of property. Under Oregon law, dogs are explicitly said to be personal property; but is Juno akin to a search in an opaque container, the contents of which requires probable cause and a warrant? The Court reasoned that not all property was the same for Fourth Amendment purposes, and that the extent of protection of property may be sensitive to the nature of the property, the defendant's relationship to the property, and the circumstances of the government's intrusion into said property.

Relying on State v. Fessenden/Dicke, the Court held that animals are a distinct form of property, worth of protection. The extensive animal welfare legislation is evidence of this intent. These laws reflect the understanding the animals are sentient beings, capable of feeling pain, and while the law does not place them on a par with humans--allowing for their killing and for medical research--it does create special norms.

In the context of humans' Fourth Amendment rights in their nonhuman animal companions, the Court looks to social norms and conventions. For example, if someone walks their dog off-leash down the street, and a well-meaning third party pets the dog, there is no Fourth Amendment violation. However, if said third party suddenly uses a syringe to take a blood sample from the dog--even for the purpose of important research--that would fall outside convention to the point of violating the dog's human's expectation of privacy. 

In this case, Juno's removal from the defendant's dominion was done for the purpose of protecting Juno, who was emaciated and dry-heaving. The vet drew the blood sample for the legitimate purpose of Juno's medical treatment. Juno's blood was part of him--he was not a vessel for the defendant in which to hide things. As the prosecutor said, inside Juno was "more dog".

The limitations Oregon law places on ownership and possessory rights in animals mean that the defendant had no Fourth Amendment rights to override her duty to provide minimal care for the dog. 

Fourth Amendment Thoughts

The takeaway from Newcomb can be read narrowly or broadly. Narrowly, it applies to animals, in situations in which the seizure of the sample is taken primarily for medical reasons. But what happens if things are more complicated? Our local SPCA vet, who treated one of our cats in the summer, told us that, not infrequently, the clinic finds traces of meth in pets (this happens with heroin as well). That this is absolutely horrifying should go without saying (and what an indicator of human as well as animal tragedy). But I wonder: If the vet suspects the animal to have been drugged with meth--which is, of course, an issue of animal welfare, but also an issue clearly involving the owner's criminality--does that change the Fourth Amendment balance?

Moreover: Does the finding that not all "effects" are created alike apply just to animals, or to other distinctions between different "effects"? For example, does ecological damage to plants/trees in one's territory merit more intrusion than damage to non-organic property? I lean toward the idea that, in creating these boundaries, the guideline should be sentience: as many vegan thinkers (including Sherry Colb, Peter Singer, and others) suggest, it makes sense to draw this boundary in the place of the existence of a central nervous system. The Oregon Court did not have the opportunity (and probably the inclination) in this case to go as far as those of us who find animal exploitation for consumption to be a serious moral atrocity, but the rationale--being sentient, feeling suffering--holds true for this context as well.

Extra-Legal Issues 1: Poverty, Animals, and Protectionism

It's not difficult to read between the lines in Newcomb, even though the Court doesn't really do that. Newcomb said to the police officer that she fed the dog WinCo food bought in small packages. WinCo is a low-grade kibble that sells in bulk at Costco, chock-full of grains, chemicals, and artificial fillers. It's telling that the defendant did not buy the kibble in bulk, but rather in small packages: poor people can't afford to spend on bulk and reap the savings, which is true for every product. As Yesim Orhun and Mike Palazzolo found in a study based on Nielsen data, frugality is hard to afford. 

Hastings is located in San Francisco's Tenderloin neighborhood, which is a window into the lives of people ravaged by extreme poverty. We frequently see folks who live in the streets with pets, which almost always seem groomed, well-fed, and very much loved. But since homeless people's lives, by their very nature, are exposed to the eyes of strangers, the ability to detect animal welfare and neglect is heightened, to the point that the police might intervene more frequently than when it gets reports of neglect in houses. Obviously, Newcomb was not homeless. But the reason she provided for the dog's emaciated condition is very telling, and might also explain the police's zealousness in following up on the complaint.

Don't get me wrong: I think the court's decision is 100% correct. The rights of an animal that is mistreated should trump the "ownership" rights of whoever owns him or her, regardless of social class. But I think it does raise questions as to whether we enforce these laws equitably, and whether we should develop means to report and expose animal abuse and neglect in other settings.

Extra-Legal Issues 2: The Ethics of Regarding Animals as Property

Newcomb has been hailed by the Animal Legal Defense Fund as a "win for all animals" (I just got an email from them; if you'd like to support their important work on Oregon law and elsewhere, click here.) But it does little to shake the solid foundation of animal status as property in U.S. law. Which begs the question: if the only way to guarantee the safety and well-being of companion animals, under a property law scheme, is to relax a bit the definition of property--namely, to regard them as a "special category of property"--does that raise a question as to the ethics of animal ownership at all?

In Run, Spot, Run: The Ethics of Keeping Pets, bioethicist Jessica Pierce challenges the welfarist and anthropocentric views supporting pet keeping, raising the question whether pet ownership, in itself, is ethical, and if so, whether some species should never be kept as pets. Individual animals' lives are saved through the framework of ownership, but they are also curtailed; which of the two factors should guide our legal regime? And, assuming that some domestic animals would not exist if we weren't raising them to serve us--as consumer products or as company--is it ethical to keep their status as it is to propagate the species? The debate over ecocentrism and biocentrism comes to mind. 

The Oregon Supreme Court decided this case correctly within the existing legal framework. But it is up to us to question the logic of this framework, or to imagine alternative frameworks in which sentient beings do not belong in the property category.

Posted by Hadar Aviram on July 21, 2016 at 01:28 PM | Permalink

Comments

She usually taunts me by holding a toy in her mouth, believing I want her toy as much as she does! I definitely should try and teach this to her as well haha! Thanks for the information!

Posted by: Tips and Tricks | Dec 20, 2020 5:09:11 AM

Prof. Colb (also at her blog) has wrote about this case as well:

https://verdict.justia.com/2016/08/17/taking-blood-dog-search-dogs-owner
http://www.dorfonlaw.org/2016/08/companion-animals-light-way.html

Given her (and her husband's) writings, I was looking forward to her comments.

I also wonder what happened to Juno and "what happened" is something I repeatedly wonder when reading these cases. I quickly looked and this account says Juno was adopted: http://www.oregonhumane.org/supreme-court-victory-pets/

Posted by: Joe | Aug 19, 2016 11:40:32 AM

I would love to know, John. I hope he found a good, loving home.

Posted by: Hadar Aviram | Aug 19, 2016 12:19:36 AM

Hi all,

Thanks for posting this. May I introduce myself? I am a 2015 FAR applicant at AALS. My own thoughts on the Newcomb case are posted at www.otrompkescommentaries.blogspot.com

In a nutshell, I think the Newcomb case, though poignant, is less powerful than other Oregon precedents, especially Nix I.

Does anybody happen to know what happened to Juno (the dog)?

John

Posted by: John Otrompke | Aug 18, 2016 11:35:14 PM

Interesting stuff.

"looks to social norms and conventions"

Important point and an example of how constitutional law applies current norms and knowledge in various ways.

I read the decision. The fact the dog was in possession of the government, possession assumed to be legal for the purposes of the opinion, seemed to me an important point. A basic point -- the opinion noted that the well being of the dog being at risk was not crystal clear. Thus the need of tests. In another case, the basic right to seize an animal itself might be challenged.

The nature of the dog (inside is "just more dog" unlike let's say a storage bin) and the state's responsibility to care for the dog's welfare (a theme in the comments from what I can tell) also stood out for me.

Posted by: Joe | Jul 22, 2016 10:50:57 AM

RQA, perhaps that is what the court is trying to do, although it strikes me as wrong. And note that the court specifically says that it is not relying on the property-based trespass theory of Jones/Jardines. See note 17. Anyway, thanks for the interesting exchange.

Posted by: Orin Kerr | Jul 21, 2016 4:31:33 PM

Prof. Kerr, thanks for the response. My reading is that the court is defining the limits of an owner's property interest (i.e., defining the proverbial bundle of rights) in an "owned" animal, and those limits are products of state law. According to the court, that state law says an owner has no property interest in a dog insofar as the state has to intervene and act to protect the dog's well-being: hence, no invasion and no search. That doesn't seem obviously wrong to me. Given the role of state law in defining property, I'm not sure the quoted language from California v. Greenwood is applicable.

Posted by: RQA | Jul 21, 2016 3:40:02 PM

Also, the Supreme Court's rejection of state law as a basis for shaping the meaning of the Fourth Amendment seems relevant:

*************
Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. We have emphasized instead that the Fourth Amendment analysis must turn on such factors as "our societal understanding that certain areas deserve the most scrupulous protection from government invasion." Oliver v. United States, 466 U.S., at 178 (emphasis added). See also Rakas v. Illinois, 439 U.S. 128, 143 -144, n. 12 (1978). We have already concluded that society as a whole possesses no such understanding [486 U.S. 35, 44] with regard to garbage left for collection at the side of a public street. Respondent's argument is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment. We do not accept this submission.
**********

California v. Greenwood, 486 U.S. 35 (1988).

Posted by: Orin Kerr | Jul 21, 2016 3:20:41 PM

RQA, thanks. If that's the argument, though, isn't it wrong? The state can intervene to do a lot of things, but we don't say that the power to intervene makes physical intrusion into property a non-search. Instead, we normally say that the state's power to intervene may make the search a "reasonable" search. The search analysis itself generally doesn't get into all the contextual questions of why the state was doing what it did or how to balance the interests. That's a reasonableness question, not a search question. In the case of administrative searches, for example, we still say that the act is a search; we don't say that the administrative regime makes the act a non-search. What am I missing?

Posted by: Orin Kerr | Jul 21, 2016 3:04:01 PM

I don't read the decision as finding a search occurred. I think the court's point is that ownership of a dog is subject to the limitation that the state may intervene to protect the dog's well-being; whatever the state then does to provide proper care, be it the drawing of blood or (to give an example of another observational activity that might turn up evidence of criminal conduct) inspection of feces, isn't to be understood as a search of the dog owner's property. (As Prof. Aviram suggests, the same state activity would probably be a search if motivated by an investigation of suspected criminality.) Schmerber's analysis focuses on human dignity and bodily integrity, concerns that seem irrelevant in this context.

Posted by: RQA | Jul 21, 2016 2:53:25 PM

I think the court's analysis borrows quite a bit from the analysis of administrative, suspicionless searches, which involves an examination of government purpose.

Posted by: Hadar Aviram | Jul 21, 2016 2:35:46 PM

ETA: It's possible tor read the op as saying that no "search" occurred, and it's possible to read it as saying that any search was "reasonable." I think the latter conclusion is plausible. and the court should have written the opinion that way. If you read the opinion as resting on a "search" conclusion, then that strikes me as wrong,

Posted by: Orin Kerr | Jul 21, 2016 2:32:02 PM

The Fourth Amendment analysis strikes me as pretty unpersuasive. Blood draws are clearly searches of something/someone, see Schmerber, 384 U. S. 766. A court could argue that a suspect's pets aren't their effects at all, but once you they they are, I don't know how you get around the idea that a search of effects is a Fourth Amendment search. The court also distinguishes the trespass test on the ground that those involved property that was not first seized, but I don't see how that could make a difference. I wouldn't be surprised if the reasonableness analysis could be different for abused pet cases like this, but I think it's still a search.

Posted by: Orin Kerr | Jul 21, 2016 2:27:01 PM

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