Federal Court Judge: Unlicensed Dogs are "Contraband" & Not Protected by the Fourth Amendment
Earlier this month, United States District Court Judge George Caram Steeh III dismissed a lawsuit filed in 2016 by Nikita Smith and Kevin Thomas, whose dogs were killed by police during a violent raid reportedly organized to seize a small amount of marijuana. Of the three dogs owned by Ms Smith that police killed during the raid, one was a pregnant female; a second dog was shot dead through a closed door.
Lawsuits filed by victims of police violence are rarely successful, even in cases where claims of egregious officer misconduct are reinforced by conclusive evidence and witness testimony. Police are even less likely to be held accountable in criminal courts in the very rare occasions when their colleagues in the prosecutor's office bring charges against them, while internal discipline in law enforcement agencies across the country has been made almost impossible by decades of Police Union negotiations and lobbying in addition to an entrenched culture of "Us vs Them" that leads police management to defend the most indefensible behaviour from their officers.
Even in the current environment of extraordinary deference, Judge Steeh's decision in Smith & Thomas v. City of Detroit, et al stands out as a withering blow against a nascent grassroots movement seeking to hold police accountable for unnecessary violence. Steeh dismissal followed a motion for summary judgement issued by the City of Detroit. In that motion, Detroit City lawyers argued that because Ms Smith had failed to purchase a $10-$15 dog license from Detroit Animal Care and Control, her dogs were "contraband" in which Smith had no 4th amendment interest. Following this logic, the City of Detroit could conceivably seize and kill any unlicensed dog over four months old within the City limits it wanted to under a wide variety of circumstances, and the owners of those dogs would have no legal recourse to prevent it or obtain recompense. Whether or not the dogs presented any form of threat to the police who raided Ms Smith's home was irrelevant; as contraband, the dogs could be taken and/or destroyed just as police might seize a kilo of cocaine or an illegal explosive.
The sole requirement for a City of Detroit dog license, other than the $10-$15 registration fee, is a valid proof of rabies vaccination. As the Puppycide Database Project has previously established, rabies is essentially unheard of among dogs in the United States. Despite the fact that the risk of rabies infection is astronomical has not stopped police officers from using the fear of rabies to justify the use of lethal force against pet dogs.
Judge Steeh's opinion affirmed the claims made in Detroit's motion.
To understand how a court could reach this incredible decision, it is necessary to understand the legal theories under which US courts handle claims related to animals. Unlike human beings, animals have no formal, enumerated rights within the American legal system. While some laws, such as the Animal Welfare Act of 1966, establish minimum standards of care for animals in a variety of circumstances, these standards are treated as regulations for the agencies that the laws are applied to (such as zoos, research labs, animal shelters, etc); they do not establish rights for animals. The most basic rights extended to human beings under English common law - rights to life, liberty and property - are not extended to animals. It is, generally speaking, not a crime to "humanely" kill an animal. It is not a crime to steal a bone from a dog or a banana from a monkey. Outside of well-defined nature preserves and parks, animals are not at liberty to travel freely - simply existing outside of a nature preserve is typically legal justification to seize, incarcerate and (after a minimum 5 day waiting period) kill an animal. And of course, animals can be owned both by corporations and private individuals.
Some, such as Utilitarian ethicist Peter Singer, have argued at length on behalf of extending animals well-defined legal rights. There was even a recent legal case that attempted to accomplish this by filing a habeas corpus petition on behalf of a chimpanzee. For most Americans, however, the idea of rights being extended to animals is absurd on its face; Americans eat more meat than nearly any other country in the world, after all. However, many Americans who might wish to continue to see cows and chickens factory farmed would find it inconceivable to kill a pet dog or cat. The fact is that few have thought deeply or seriously about what a rational approach to our society's treatment of animal's might look like. The result has been a schizophrenic series of overlapping and conflicting laws, regulations, social mores and unspoken moral codes that govern how we interact with animals.
When it comes to the shooting of pets by law enforcement, the law typically treats pets not as a thinking, feeling and living entity but as simple property. In the eyes of the law, a dog has more in common than a bookshelf or an end table than a human being. For many years, this determination has lead courts to decide that in the event that police illegally kill an animal, the owner of that animal is entitled only to the purchase price of this animal. Courts do not assign any value to emotional damages, for example, in the cases of property seizure. It's just an object, so there is nothing to be upset about.
However, this sort of determination of "pets as property" strikes many as misguided. Many cases of "puppycide" involve police shooting pet dogs repeatedly directly in front of young children who could very well treasure that animal as their "best friend". One does not need to be a vegetarian or animal rights activist to believe that such an experience could be incredibly traumatic for a young person. When animals are objects, this trauma has no remunerative value.
Even apart from this type of trauma, it strikes many Americans as incorrect to treat animals as strictly property. Millions upon millions of Americans own either a cat or dog; few of these pet owners treat their furry pals as objects. To the contrary, many pet owners develop close relationships with their pets that are based on the empathic understanding that their pets have their own inner life, their own feelings. It is not necessary to claim that animals must have all of the same rights as human beings to establish that there is more at stake when killing an animal than mere property damage.
One oft-relied upon justification for the treatment of animals as property is that in order for someone to have moral privileges, that someone must have moral duties as well. The ability to conceptualize and act on moral duties requires a capacity for reasoning that animals do not possess. Under this view, higher reasoning provides membership to a sort of "moral club": if you have higher reasoning, you are a member of the "moral club", and you must treat everyone else within the "moral club" as you would wish yourself to be treated. This was the view espoused by the ground-breaking philosopher Immanuel Kant over 100 years ago.
Kant expanded on this position by saying that even though we don't have a moral duty to treat animals well, we should do so anyway, because mistreating animals makes us more likely to mistreat human beings (many of those who quote Kant's position ignore this important addendum). Kant's point here is purely consequential, however: he is saying that the only problem with cruelty to animals is that it might one day lead to cruelty to a human being (modern readers of Kant have pointed to psychological research that has found a correlation between childhood animal cruelty behavior and an adult propensity towards serial murder, among others).
Kant's view on animals is perhaps closest to a coherent summary of the established legal view of animals in the United States available. However, although the argument is rational, it is still lacking. In our culture we can easily point to several groups of individuals that are not capable of rational thought or moral duties that we still believe have rights and that we feel are entitled to moral treatment. Consider individuals who are profoundly mentally handicapped or infants. Not only do all but the most ardent sociopaths feel compelling moral duties to these groups of individuals, it could be argued that we feel a stronger moral duty to these individuals precisely because of their perceived helplessness. In the United States, for example, despite long-standing political anathema toward "welfare" programs, the profoundly mentally handicapped remain eligible to substantial financial assistance from the State. Meanwhile, in several US states (such as Florida), only adults with children are eligible for cash welfare assistance. People across the political spectrum feel a social and personal responsibility for these groups.
If the ability to engage in a rational, moral decision is not relevant to deciding whether a being is entitled to rights, than what is? Peter Singer - who we mentioned earlier - ascribes to a Utilitarian point of view. For Singer and fellow Utilitarians (such as Jeremy Bentham), it is a being's ability to feel pleasure or pain that entitles him, her or it to moral consideration. Alternatively, religious thinkers have attributed a "divine commandment" justification for moral consideration: specified groups are worthy of moral thought because a higher power commands it, or because beings created by God share a divine essence or soul.
The rational basis for morality - if such a basis exists - remains an open question. It is this author's opinion that the most convincing ethical arguments are those that dismantle the justification for amoral behavior (such as the counter-example to the justification offered by Kant robbing animals of moral agent status); positive arguments that seek to find a rational justification for a specific brand of ethical decision-making, even those offered by history's greatest geniuses, leave much to be desired.
Despite the lack of an obvious "solution", the basis for moral agency is still an object worthy of consideration. The innumerable conflicts of modern society demand that we engage in conversation and consideration of moral topics; it is unacceptable to merely throw our hands up and declare the matter hopelessly subjective, or, worse, to provide the most obviously flawed justifications for violence without consequence, as the City of Detroit and Judge George Caram Steeh III have done in the case of Nikita Smith and Kevin Thomas. To use a great quote out of context: we must explore the ethical quandaries that present themselves to us in our treatment of animals fearlessly and without prejudice "not because they are easy, but because they are hard". The same drive to greatness which has allowed us to split atoms and plant flags on the moon ought to drive us to create a society in which we no longer pretend it is necessary to murder a living creature because it might live in the same house as a mildly psychoactive plant.
Puppycide Database Project