Monday, May 21, 2018

Recchia v. L.A. Dep't of Animal Svcs (9th Cir. - May 1, 2018)

What I remember about my first-year property class in law school largely surrounds issues involving wild animals.  Who owns them, blah blah blah.  I distinctly remember thinking that this seemed to be an immensely non-practical way to begin law school.  Who really cares who owns a particular fox?!  Given that there aren't a lot of wild foxes running around San Diego -- or (at the time) Cambridge -- it was difficult for me to perceive any practical value in learning the detailed rules about who can own a wild animal running around.

Clearly, I was wrong.

This Ninth Circuit opinion is about the Fourth Amendment validity of a seizure in which the L.A. Department of Animal Services impounded a dozen or so pigeons that a homeless person kept in cages on the street and then euthanized them because they were in really bad shape.  (For example:  "One pigeon had a baseball-sized tumor protruding from its abdomen and extensive feather loss. Another pigeon had tremors and continually walked in circles. Another pigeon had a shriveled, non-functional right eye. Still another pigeon had contorted legs, feather loss, and could not walk or fly. Some birds had wobbling necks or necks in unusual positions. Several birds were missing toes or toenails, or had very long toenails that were curled in circles.")

The constitutional issues are interesting for sure.  But there's a particular footnote that I thought to be especially fascinating.  And that took me back to those halcyon days of Property.

The text of the opinion says:  "Defendants have agreed for the purposes of this appeal that Recchia had a property interest in his pigeons."  At which point Judge Gould drops the following footnote:

"Specifically, defendants have agreed “[f]or the purposes of this appeal, there is no dispute there can be some property interest in pigeons.” Accordingly, here we treat Recchia as having a property interests in the pigeons. However, in a case where the issue was properly raised for decision, there would be a substantial issue whether a person can have a property interest in wild animals such as pigeons, raccoons, or coyotes, to name a few. See Bilida v. McCleod, 211 F.3d 166, 173 (1st Cir. 2000); see also Cal. Fish & Game Code § 2000 (prohibiting the taking of a wild bird except as provided for in the California Fish and Game Code)."

Dude!  It's like it's 1989 and I'm back in Mary Ann Glendon's Property class.

Good times.