Tuesday, May 20, 2003

Another dog story - dogs are "property" under Fourth Amendment, but shooting them was reasonable

In Altman v. City of High Point, the Fourth Circuit held in an opinion by Judge Luttig, joined by Judge Williams, that dogs are property protected by the Fourth Amendment, but in the circumstances of the case, the shooting of the dogs by an animal control officer was reasonable and did not violate the rights of their owners. Judge Gregory concurred on the dogs as property holding, but dissented on the majority's reading of the merits.

There is a lengthy dialogue about qualified immunity here, and I don't see how Judge Gregory can be right. He concludes that three cases from other circuits make the law so clear that the defendants were not entitled to qualified immunity. Judge Luttig says those cases are distinguishable, but more importantly, they are not from the Fourth Circuit, and still more importantly, this is not a case where the law is clear even without any cases - unlike the famous example from Judge Edith Jones from the Sixth(?) Circuit, who said that no case law is required for a reasonable social worker to know that he or she may not sell children into slavery.

Judge Luttig and Judge Gregory had pretty diverse views of what the Constitution required in this case, which should mean that Judge Gregory's side loses, because that ambiguity in the law is what makes the qualified immunity defense.

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