Bird Law and the Fourth Amendment

Fictional character Charlie Kelly once said “bird law in this country – it’s not governed by reason.” In an opinion filed May 1, 2018, the Ninth Circuit disagrees, holding that the Fourth Amendment may protect an individual from having his apparently healthy birds seized by the city without a warrant.

In Martino Recchia v City of Los Angeles Department of Animal Services, a homeless individual brought an action against the Department of Animal Services for the confiscation and subsequent euthanization of twenty birds he was keeping as pets. The Ninth Circuit vacated the district court’s grant of summary judgment on plaintiff’s Fourth Amendment claim challenging the seizure of his birds as unconstitutional. (It is worth noting that the Ninth Circuit had its doubts about whether plaintiff actually had a property rights in the birds, but made their decision based on the assumption that he did, since the City had inexplicably conceded that point.)

The case stemmed from the seizure of plaintiff’s birds by Animal Control. While a majority of the birds were apparently sick, it was not disputed that eight of the birds outwardly appeared to be perfectly healthy. Plaintiff ‘s arguments on appeal were based on the government’s seizure, and subsequent euthanization, of the eight healthy birds.

The City of Los Angeles argued on appeal that their warrantless seizure of the healthy birds was allowed by the exigent circumstances doctrine. While the Court noted that the exigent circumstances doctrine unquestionably allowed a warrantless seizure of the visibly sick birds in this case, it was not clear that the same went for the apparently healthy birds.

The facts presented to the court showed that the confiscating officer initially was willing to leave the healthy birds with the plaintiff, but changed his mind when plaintiff could not give him the address of a location where he could take the birds that would comply with the city’s municipal codes. Additionally, the veterinarian who euthanized the birds, although he stated they may be carrying unseen pathogens, did not feel the need to quarantine the birds or test them for contagious diseases.

The Ninth Circuit held that these facts, taken together, could show a lack of exigent circumstances that would render the warrantless seizure unconstitutional. The Ninth Circuit vacated the district court’s grant of summary judgment on that issue, and remanded the case back to the district court for further findings consistent with their opinion.