Wednesday, February 02, 2005

Municipality not liable under section 1983 for euthanasia of 80 dogs and a bunch of cats

In Bogart v. Chapell, the Fourth Circuit in an opinion by Judge King, joined by District Judge Flanagan from North Carolina, with Judge Williams dissenting, held that the South Carolina plaintiff had no procedural due process claim for the destruction of her property interest in her overcrowded bunch of cats and dogs without some kind of pre-deprivation hearing, because the loss was the result of random and unauthorized activity, as it was contrary to state law, and the government affords the plaintiff a post-deprivation remedy in the form of some kind of money damages claim.

Judge Williams dissented, claiming that the outcome was determined by two prior Fourth Circuit opinions involving the Parratt/Hudson/Zinermon line of cases dealing with the question of what is random and unauthorized.

I think Judge Williams has got the better of it, although it would be nice if the defendants could say, oops, this was unauthorized, so we can't be liable. Perhaps I am confusing Parratt with the requirements of Monell, for custom, policy, or practice, but I don't think in either issue can the locality inevitably defend by claiming we have a policy against constitutional violations.

No comments: