A disturbing recent case from Arkansas illustrates the importance of having a visible identification tag on your pet even if it is microchipped, and why animal shelters must be diligent about scanning every stray animal brought in.
Although the case isn’t local, it addresses issues that most animal shelters and rescues regularly face when taking in stray animals as well as issues of concern to owners whose pets could become lost.
We’ve all heard heartbreaking stories about pets that have gotten loose, been impounded by animal control, and tragically euthanized before their owners could claim them.
Thankfully, this is not one of those stories. But it still turned out sad for Darryl Lunon, owner of “Bibi,” a young female German Shepherd allegedly possessing world championship lineage. In February 2017, Bibi was picked up and taken to North Little Rock Animal Shelter by a county animal control officer who, for whatever reason, didn’t bother to scan her for a microchip even though local law required it and the shelter had a microchip reader. After a five-day hold, Bibi was spayed and placed for adoption.
Whether or not Bibi had a tag is disputed. Lunon insists that she did, but the impounding officer claimed not to have seen one on Bibi’s collar. What is not in dispute is that Bibi was microchipped as Lunon’s dog.
One of the most maddening things about this case is that Bibi’s owner seemed to have done everything you’re supposed to do when your pet goes missing. He posted flyers around the neighborhood, announced it on social media, and contacted animal control authorities including the North Little Rock shelter which in fact had Bibi, and was twice told (erroneously) that the shelter was holding no German Shepherds.
To add insult to injury, once he finally found out what happened to his dog, Lunon had to go to court to recover Bibi from her new “owner.”
Lunon sued Pulaski County and Little Rock animal control, the North Little Rock shelter, and the individual employees involved for depriving him of his due process rights and the loss of Bibi’s considerable breeding value. He alleged the county and city failed to train their employees to comply with procedures requiring them to scan Bibi for an embedded microchip that would have revealed him as her owner.
Because pets are considered personal property under the law, most pet owners invoke unconstitutional deprivation of property without due process in actions taken against public entities. Due process requires advance notice and an opportunity to be heard before a pet can be taken by the state.
Public employee immunity
One of the most infuriating things for people, like me, who are involved in or who follow law related to companion animals, is the doctrine of qualified immunity. Qualified immunity shields municipal employees such as police officers and animal control personnel from civil legal consequences resulting from actions they take in carrying out their jobs, even if those actions result in unjustified harm or death to someone’s pet.
This is why cops can, and often do, shoot people’s dogs on sight when they enter someone’s property even if the reason they’re entering has nothing to do with the dog, and even if the dog is just innocently sitting there looking at them. As long as they claim they did it to protect their own safety, they usually get away with it.
Another thing that is frustrating for us? Appeals courts that regularly overturn lower court decisions that find in favor of the rights of pets and their owners. Which is what happened here, when the Eighth Circuit Court of Appeals overruled the district court’s finding that Lunon might have a protected property interest that was violated by the collective actions of all the parties acting in their individual capacities, and ruled that the public actors involved did not violate his constitutional rights (Lunon v. Botsford, et al.)
“We agree with the Supreme Court of Arkansas that affirmative pre-deprivation notice is not constitutionally required in this situation, 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.
Numerous [court] decisions involving stray dogs have reached the same conclusion.”
Eighth Circuit panel
But here’s the thing: The law required shelter staff to check for microchips—which Bibi had—but they failed to do so. Further, they wrongly informed her owner when he called that they were holding no German Shepherds. This smacks of gross incompetence at multiple levels, at least if Lunon’s side of the story is taken as true.
Why have these laws on the books if there are no consequences for failing to follow them? Hell, why do we microchip our pets at all?
If that part of the law did not exist, then I might concede that Lunon had no case.
Basically, what it boils down to (at least in Arkansas as well as many other places) is that even though your pet is your property and you have a constitutional right to be heard before the state deprives you of it, you have no legal recourse whatsoever if state actors fail to follow simple, statutorily required steps for ascertaining that your property belongs to you.
Even worse, the court implied that Lunon sort of deserved it all for allowing his dog to escape in the first place:
“A dog owner’s protected property interest wanes if [his] pet escapes. [Quoting Fourth Circuit] Dog owners forfeit many of their possessory interests when they allow their dogs to run at large, unleashed, uncontrolled, and unsupervised, for at that point the dog ceases to become simply a personal effect and takes on the nature of a public nuisance.”
I don’t know the circumstances that led to Bibi’s getting out and being discovered in a neighbor’s garage, and I don’t condone allowing your dog to roam free around the neighborhood. But dogs (and cats, let’s be honest) do sometimes slip away despite their owner’s best efforts, so we shouldn’t rush to condemn each and every one of their owners as irresponsible. Even though there are plenty of irresponsible owners out there, to be sure.
Yes, this case could have been so much more tragic. Bibi still got to live and be ultimately reunited with her owner. I know that being unable to profitably breed a "champion" purebred dog is not exactly a predicament that sparks outrage in many of us. But imagine if someone’s beloved pet had been put down in the same situation. I wonder if the court might have ruled differently. Probably not. Judges are, after all, public officials, and it’s my observation that public officials tend to err on the side of protecting each other.
Then there is the overlooked "victim" in this case: the innocent, unsuspecting adopter who thought he was rescuing an actual homeless dog and trusted the shelter.
At least one of the judges on the three-judge Eighth Circuit panel questioned whether Lunon might not have a valid argument when it came to the microchip scanning issue:
"Although Lunon’s private interest is diminished by the fact that he allowed his dog to run stray, other [ ] factors are more favorable to his claim: the evident risk of erroneous deprivation, the seemingly high value of scanning for a microchip to identify an owner who could be notified, and the relatively modest burden that scanning for a microchip with a readily available scanner would entail.”
Eighth Circuit Judge Colloton
I like to hope that when these legal cases involving companion animals don’t turn out favorably for pets and their owners, at least something is learned by all the parties involved so such things don’t happen again.