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Posted on 12/09/2009 in Your Dog, Your Rights.

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United States v Stevens
United States v Stevens is the federal case from the United States Court of Appeals, Third Circuit, that was granted certiorari by the Supreme Court. Oral arguments were heard by the Supreme Court on October 6. Robert Stevens had been convicted under 18 USC § 48, which criminalizes creating, selling, or possessing depictions of animal cruelty. Stevens was charged for selling three videos; 2 of dog fighting footage and one of dogs being trained to catch and subdue wild hogs (which also contained a 3 minute dog fight clip.) Stevens was convicted in federal court, but it was later overturned by a federal appeals court, on the basis that the statute he was convicted under is an unconstitutional infringement on free speech.

It appears, from the lines of questioning, that the justices may find the law to be too broad and should have been more narrowly tailored to target the ‘speech’ it was intended for: namely so-called crush videos. Ironically, only three people have been prosecuted under the law. None of those prosecuted were marketing crush videos. The government argued that Congress had written the law to exempt hunting, journalistic, educational, and other classifications from the law. However, Justice Scalia pointed out that most hunting videos are watched for entertainment and no exemption exists for those hunting videos that are sold in places where that particular form of hunting depicted is illegal. Many hypotheticals were proposed, from depictions of bull fighting to fox hunting to gladiator contests. When questioned specifically about gladiator contests, the attorney for the government suggested it would “fall under the historical exemption.” The government had no real answer and argued the law should be interpreted on a case-by-case basis.

It was also noted that Stevens’ sentence for selling videos containing dog fighting scenes was 14 months longer than Michael Vick’s sentence for actually fighting dogs. A final ruling on the case is expected in the spring.

Should the Supreme Court decide to uphold the statute, it could have a drastically chilling effect on marketers of videos that seem to fall into the gray area, such as certain hunting videos or other dog activities. There may be an increase in prosecutions, thereby curbing potentially innocent video production for fear of future prosecution. However, it appears from the justice’s questions that they are fearful to make a new class of unprotected speech, and they will hopefully find that the statute is unconstitutional.

Louisville Kennel Club, Inc., et al. v Louisville/Jefferson County Metro Government

This case was filed by the Louisville Kennel Club and others (pet-owner’s groups, pet-related businesses, veterinarians, and individual pet owners) to challenge the strict dog ordinance enacted by the Louisville/Jefferson County Metro Government (hereinafter referred to as ‘Metro’.) Many sections of the code were challenged, and the law suit has been ongoing for a few years. While many of the challenges were denied, the LKC won on two major points.

First, the ordinance requires that unaltered dogs are to be maintained in “a proper enclosure as defined in this chapter; and as approved by the Director in writing.” While the ordinance clearly delineates enclosure requirements for altered dogs, owners of intact dogs must get their enclosures approved in writing. LKC claimed this violated Equal Protection and Due Process for intact dog owners. The court found because the class of people affected, intact dog owners, are not part of a protected class such as race, gender, etc., and dog ownership is not a fundamental right such as voting, then the appropriate review for the code is rational basis. This is the least stringent review when a court reviews constitutional issues. The court looks at the law and examines “whether a rational relationship exists between the terms of the ordinance and a legitimate governmental purpose.” In other words, what purpose does the law serve, and how does the law further that purpose? Metro made no real effort to justify a legitimate government interest in requiring owners of intact dogs to get their enclosures approved in writing. Because Metro could provide no real reason for treating intact dogs differently than altered dogs with regards to enclosures, the court found that this particular section of the ordinance lacked any rational basis, was therefore unconstitutional, and has been overturned.

The second challenge that LKC won was against the section of the ordinance for confiscation. This section allows for confiscation and possession of an animal for inhumane treatment, and LKC claimed that it threatened a citizen’s right to a fair hearing before deprivation of property. Under the ordinance, authorities could seize an animal because of suspected inhumane treatment. Next, the owner would be given a probable cause hearing, to decide if there is enough probable cause to charge the owner. If probable cause is found, the owner has 24 hours to pay a $450 bond to cover 30 days care for the city keeping the animal. Failure to pay the bond results in immediate forfeiture of the animal. If the hearing for inhumane treatment does not commence within 30 days, the owner would have to pay another $450 bond for the next 30 days. The ordinance does not explicitly state what would happen if no probable cause is found, but it appears the animal would be returned to the owner. Upon a finding of guilt, the owner is responsible for all costs of impoundment and the animal becomes property of the city. If innocent, the bonds are refunded to the owner; however, the ordinance does not provide for return of the animal.

The problem with the ordinance is the situation where a person has a dog confiscated, probable cause is found, but the owner cannot afford the bond. If the owner is later found innocent, they will still lose the dog because they could not pay the bond. Dogs are defined as property under the law, and as such property owners are owed due process. The court found that there is a high risk of wrongful deprivation of property because of the required bond. It was suggested that the section could be remedied by an additional hearing, an appeals process, or a late payment process. The government has little interest in holding pets belonging to innocent citizens. The court ultimately found that because the section could permanently deprive a pet owner of property without a finding of guilt, it’s unconstitutional. However, instead of throwing the whole section out, the court held that a correct application of the ordinance will stand, but an injunction will apply when someone is found innocent but could not pay.

This case is significant because it sets a precedent for challenges of similar laws in other cities. While it’s disappointing the court did not overturn the entire confiscation section of the Louisville ordinance, it sets the stage to get seizure bond laws overturned in other cities. Seizure bonds have become the newest tool being used by animal rights groups to get a foothold in municipalities in order to enact mandatory spay/neuter laws, breeding laws, and other infringements on dog owner rights. Now that this particular application of a seizure bond law has been held unconstitutional, municipalities will be more cautious about enacting seizure bond laws.