Dog Process or Due Pupcess? Federal Court Misses Opportunity to Modernize Pet Due Process Jurisprudence: Lunon v. Botsford.

• Author: Hambuchen, Grace

1. INTRODUCTION

   Nicknames such as Boo Bear, Snookums, Sweet Precious Baby, or Cutie Patootie fondly show how owners might typically interact with their pets. (1) With Americans spending approximately $95.7 billion on pets in 2019, (2) the uniform Trust Code expressly allowing trusts to care for deceased owners' pets, (3) and the COVID-19 pandemic bringing a sharp increase in dog adoptions, (4) pets are becoming an ever more significant part of the American family. When a pet escapes or goes missing, most owners desperately want them to return home safely; (5) microchipping is one proactive, reliable option for owners to help ensure they do. (6)

   Additionally, local municipalities recognize the potential microchips offer to quickly find lost pets, (7) and accordingly, frequently require citizens to microchip their pets. (8) However, according to Lunon v. Botsford, a recent decision from the U.S. Court of Appeals for the Eighth Circuit, procedural due process does not require an animal control officer to scan an impounded dog for a microchip, even where a microchip scanner is readily available. (9) This Note reveals the alarming ease with which an owner's protected property interest in their pet can be extinguished and how the court's decision works against the local government interest in efficiently identifying owners of stray animals and keeping stray animal populations under control. Moreover, it argues that the court missed an opportunity to modernize due-process jurisprudence and the law governing pet owners' property interests in light of the United States Supreme Court's decision in Jones v. Flowers} (0)

   Part II of this Note explores the facts and holding of Lunon. Part III provides background on due process generally and the relationship between due process and animals. Part IV then discusses the Eighth Circuit's majority opinion and concurring opinions. Finally, the Part V reviews the impact the present holding has on pet owners' due process rights concerning their pets and on local governments' interest in microchipping pets in their jurisdictions.

2. FACTS AND HOLDING

   In 2016, Darryl Lunon purchased a purebred female German Shephard and named her Bibi Von Sonenberg ("Bibi"). (11) Lunon's vet implanted a microchip with a unique identifying number in Bibi and placed a tattoo of the same identifying number in her ear. (12) Bibi also had a tag on her collar listing her name, Lunon's address, and Lunon's telephone number. (13) Lunon purchased Bibi not only as a companion but also to breed her and sell purebred German Shephard puppies. (14)

   Bibi ran from Lunon's backyard in central Arkansas on February 14, 2017, after being spooked by a thunderstorm. (15) The same day, when Lunon discovered Bibi had escaped, he immediately began looking for her. (16) Lunon searched his neighborhood, spoke with neighbors, posted flyers, posted on social media, and requested a national, regional, and local search using Bibi's microchip information. (17)

   On February 15, 2017, Lunon's neighbor, Will Quinn, discovered Bibi in his garage. (18) Quinn called the Pulaski County Sheriff s Office and, eventually, Pulaski County Sanitation and Animal Services ("PCAS") dispatched the only animal control officer on duty that day, officer Jonathan Dupree. (19) Dupree captured Bibi without incident and noted she had a collar, but he could not locate an identifying tag. (20) Dupree then took Bibi to the North Little Rock Animal Shelter ("NLRAS"), which contracts with Pulaski County to accept stray dogs. (21)

   PCAS Procedure provides:

   It shall be the responsibility of the Animal Service Officer who brings an animal into the North Little Rock Animal Shelter to make a kennel card for the animal. It shall also be the responsibility of this person to scan the animal for an implanted microchip and note it on the kennel card. All animals should be scanned [unless dangerous]. The Microchip Scanner is located above the work table in the kennel and must be returned there after each use! (22) Dupree did not scan Bibi for a microchip, nor did he correctly complete Bibi's kennel card. (23) Dupree left the space for microchip information blank and incorrectly listed Bibi as "male/not sterilized." (24) PCAS policy and a Pulaski County ordinance require PCAS officials to notify the known owner of a captured animal within forty-eight hours of impoundment. (25) However, because Dupree did not find an identifying tag and failed to scan Bibi, he did not discover that Lunon was Bibi's owner. (26)

   On February 17, 2017, Lunon called PCAS and other officials in North Little Rock to ask whether any officers had seized Bibi or had custody of her. (27) The officials told Lunon they did not have any dogs with the name Bibi or description similar to Bibi's in the shelter. (28) Additionally, Lunon shared Bibi's description with local veterinarians and asked them to look out for female German Shepherds and scan them for a microchip. (29) Per North Little Rock Municipal Code, "[i]f the owner of an impounded dog fails or refuses to reclaim such dog within five days after impoundment, the city animal shelter is hereby authorized to release such dog to a person other than the owner upon the payment of required fees or to humanely euthanize the dog." (30) After a five-day hold, NLRAS put Bibi up for adoption, (31) and on February 24, 2017, Christopher Vance adopted her. (32) As required by the North Little Rock Animal Control, NLRAS sterilized Bibi on February 28, 2017. (33) Vance subsequently gave Bibi to his mother-in-law, Deloris Lovell. (34)

   On March 18, after Quinn saw Lunon's signs for Bibi, he informed Lunon he reported a stray dog in his garage and animal control had seized it. (35) Lunon went to the Pulaski County Sheriff s Office and obtained a copy of the report concerning the incident Quinn described. (36) Lunon then went to PCAS to find Bibi and discovered NLRAS had picked up Bibi but subsequently adopted her out to a new owner. (37)

   On June 19, 2017, Lunon filed a complaint against Vance, Lovell, Pulaski County, and the City of North Little Rock in the Circuit Court of Pulaski County. (38) Lunon asserted claims of negligence for failure to follow proper procedure and requested a writ of replevin directed at Vance and Lovell for the return of Bibi. (39) Judge Mary McGowan heard only the replevin case and ordered Vance and Lovell to return Bibi to Lunon. (40)

   Though Lunon was reunited with Bibi, PCAS and NLRAS had deprived her of any economic value by spaying her. Lunon therefore amended his complaint, adding claims under 42 U.S.C. [section] 1983 for violations of Lunon's procedural due process rights under the Fourteenth Amendment. These claims stemmed from PCAS Director Kathy Botsford's and North Little Rock Animal Control Director David Miles's alleged failure to train persons under their supervision concerning proper intake procedure, which required microchip scanning and owner notification. (41) Lunon also claimed the inadequate training caused to Dupree to deliberately disregard these procedures, inevitably leading to Bibi's sterilization and subsequent adoption. (42) Finally, Lunon alleged Defendants perpetuated a policy of routinely disregarding local ordinances and rules requiring animal services officers to scan every impounded pet for a microchip. (43)

   Defendants removed the case to the United States District Court for the Eastern District of Arkansas, where Dupree, Botsford, and Miles, filed a motion for summary judgment, arguing they were entitled to qualified immunity from Lunon's claims against them in their individual capcaities. (44) The District Court denied the motion, finding genuine issues of material fact and holding that the defendants were not entitled to qualified immunity. (45) Defendants then filed an interlocutory appeal. (46)

   The Court of Appeals held a shelter is not constitutionally required to affirmatively provide notice to an owner when "an animal shelter holds a stray dog for more than five days and then adopts out and spays the dog after the owner fails to file a claim." (47) Because there was no procedural due-process violation, the court held that each defendant was entitled to qualified immunity as a matter of law. (48)

3. LEGAL BACKGROUND

   While the court may have ultimately decided this case on qualified immunity grounds, it serves as a thought-provoking example of modern due process jurisprudence - specifically, the relationship between due process and pets. This Part first provides a general explanation of the Due Process Clause coupled with a discussion of property interests in pets. Second, it explores a parallel due process case, Jones v. Flowers, concerning notice of tax sales. (49)

   1. The Due Process Clause & Pets

      The Fourteenth Amendment contains a due process clause which prohibits the state from depriving any "of life, liberty, or property, without due process of law." (50) This clause is interpreted to provide two types of protection to U.S. citizens: substantive due process and procedural due process. (51) Substantive due process requires the government to have sufficient justification before taking away a person's life, liberty, or property, (52) while procedural due process concerns the process the government must follow before doing so. (53) Typically procedural due process claims arise from disputes regarding the form of hearing or type of notice the government must provide. (54) In bringing a Section 1983 claim, the plaintiff must allege a government official deprived them of the right to due process while following a law, statute, ordinance regulation, custom or usage. (55) Additionally, the United States Supreme Court has consistently held that allegations of negligence cannot support procedural due process claims; (56) the due process guarantee only protects against intentional acts by government officials. (57)

      Procedural due process claims require analysis of two important questions: First...