O'Neill v. Louisville/Jefferson County Metro Government

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0287p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Plaintiffs-Appellants, -

JAMES O’NEILL and ANGELA O’NEILL,

-

-

-

No. 10-5699

v.

,

>

-

-

LOUISVILLE/JEFFERSON COUNTY METRO

-

GOVERNMENT; LOUISVILLE METRO ANIMAL

-

SERVICES; GILLES MELOCHE, in his

individual and official capacities; WAYNE -

-

-

ZELINSKY, in his individual and official

-

capacities; TERRY PENDLETON, in her

-

individual and official capacities; and

UNKNOWN DEFENDANTS, John and/or Jane -

-

Defendants-Appellees. -

Does, in his/her/their individual capacities,

-

N

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 09-00871—John G. Heyburn II, District Judge.

Argued: October 14, 2011

Decided and Filed: November 8, 2011

Before: GILMAN and KETHLEDGE, Circuit Judges; LUDINGTON, District

Judge.*

_________________

COUNSEL

ARGUED: Michael C. Merrick, DINSMORE & SHOHL LLP, Louisville, Kentucky,

for Appellants. Lisa A. Schweickart, JEFFERSON COUNTY ATTORNEY’S OFFICE,

Louisville, Kentucky, for Appellees. ON BRIEF: Michael C. Merrick, Jon L.

Fleischaker, R. Kenyon Meyer, DINSMORE & SHOHL LLP, Louisville, Kentucky, for

Appellants. William T. Warner, JEFFERSON COUNTY ATTORNEY’S OFFICE,

Louisville, Kentucky, for Appellees.

_________________

*

The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 2

Metro Gov’t et al.

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. This is perhaps the dog-gonest case

ever to reach a federal appellate court. In October 2008, several uniformed officers of

the Louisville Metro Animal Services (LMAS) intruded into the O’Neills’ home without

a warrant and without consent, confiscated the O’Neills’ two adult dogs and the dogs’

litter of seven puppies, neutered and spayed the adult dogs and implanted microchips in

all nine animals, and then required the O’Neills to pay over $1,000 to retrieve them, all

without any formal charges ever being lodged against the O’Neills.

The district court dismissed all of the O’Neills’ constitutional and state-law

claims arising out of this incident, concluding that the O’Neills were operating an

unlicensed Class A kennel in violation of the City’s animal-control ordinance, and that

none of their constitutional or state-law claims had merit. For the reasons set forth

below, we reinstate the majority of the O’Neills’ claims and remand the case for further

proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

The facts set forth below are based solely on the allegations in the O’Neills’

complaint because the case never proceeded beyond the pleadings stage. These facts

reveal that the O’Neills, after breeding their adult American bulldogs to each other for

the first and only time, welcomed eleven puppies into their home on September 4, 2008.

The O’Neills advertised these puppies for sale in the Louisville Courier-Journal. By

October 30, 2008, they had sold four of the puppies and were scheduled to meet a pair

of potential buyers that day who, unbeknownst to the O’Neills, were two female

undercover LMAS officers.

When the undercover officers arrived, the O’Neills invited the officers into their

home and allowed them to look at the puppies. The women then stepped outside after

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 3

Metro Gov’t et al.

telling the O’Neills that they were going to discuss whether they wanted to purchase a

puppy. A moment later, upon hearing a knock, James O’Neill opened the door to find

several uniformed LMAS officers on his front step accompanying the purported buyers.

The LMAS officers demanded to see the O’Neills’ “breeder’s license.” James informed

them that he did not have a breeder’s license, nor did he think that one was required.

The LMAS officers told him that they could confiscate all the dogs because the O’Neills

did not have a breeder’s license and, further, that if more than one dog were unlicensed,

then LMAS could seize all the animals on the premises. Neither of the O’Neills’ adult

dogs were in fact licensed. Without a warrant or the consent of the O’Neills (in fact,

over their specific objection), the LMAS officers immediately entered the O’Neills’

home and took all the dogs to the LMAS facility.

The next morning, the O’Neills went to the LMAS facility to retrieve their two

adult dogs and seven remaining puppies. LMAS staff informed the O’Neills that before

the nine dogs could go home, the adult dogs had to be altered (i.e., spayed or neutered),

all nine had to have identification microchips inserted under their skin, and the O’Neills

had to purchase a breeder’s license. The O’Neills objected, arguing that the adult dogs

should not be altered because they had been unlawfully impounded. LMAS Director

Gilles Meloche asserted in response that he had “created” the animal-control ordinance

in the Louisville/Jefferson County Metro Government Code of Ordinances, and the

ordinance gave him the right to impound the dogs and alter them prior to release.

Meloche then proposed a deal. Instead of fining the O’Neills up to $3,000 and/or

arresting them, Meloche told the O’Neills that if they paid $1,020.95 on the spot, then

they could take their animals home.

The O’Neills paid the $1,020.95 for the immediate release of their dogs. But

they were never provided with written notice of any alleged violations of the animal-

control ordinance in connection with the impoundment. All nine dogs were released to

the O’Neills after receiving microchips and unnecessary vaccinations, and the two adult

dogs were altered. Moreover, during their short stay at the LMAS facility, the dogs

contracted various infections that required expensive veterinary treatment. Following

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 4

Metro Gov’t et al.

the return of the dogs, the O’Neills sold the remaining seven puppies for less than their

normal market value.

B. Procedural background

The O’Neills’ initial complaint, brought under 42 U.S.C. § 1983, alleged that

their Fourth Amendment rights were violated by the warrantless search of their home

and the seizure of their nine dogs (Count I), and that their right to procedural due process

was violated by the failure of LMAS to provide meaningful notice of, or an opportunity

to be heard on, the charges against them (Count II). They later moved to amend their

complaint to add § 1983 claims for a substantive due process violation (Count III) and

an equal protection violation (Count IV), as well as supplemental state-law tort claims

for trespass (Count V), conversion (Count VI), and outrage (Count VII). The district

court granted the motion to amend in part, allowing the new § 1983 claims but holding

in abeyance its ruling on the state-law claims.

Pursuant to Rules 12(b)(1), 12(b)(6), and 12(c) of the Federal Rules of Civil

Procedure, the defendants moved to dismiss all the claims against them. They also

sought to remove LMAS as a party on the basis that it was not an entity that could be

separately sued. Although the O’Neills agreed that the claims against LMAS should be

dropped, they opposed any other change. The district court nevertheless dismissed every

claim, even the state-law claims that it had not yet permitted to be added to the

complaint, holding that none of the O’Neills’ claims were viable. This timely appeal

followed.

II. ANALYSIS

A. Standard of review

We review de novo the dismissal of a complaint under Rule 12 of the Federal

Rules of Civil Procedure. Mixon v. State of Ohio, 193 F.3d 389, 399-400 (6th Cir.

1999). The district court’s interpretation of a local ordinance is also subject to de novo

review. Fifth Column, LLC v. Vill. of Valley View, No. 98-3963, 2000 WL 799785, at

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 5

Metro Gov’t et al.

*5 (6th Cir. June 13, 2000) (unpublished opinion). We must “construe the complaint in

the light most favorable to the [O’Neills]” and accept all the factual allegations

contained therein as true. See Mixon, 193 F.3d at 400.

B. Class A kennel issue

The threshold issue in this case is whether the O’Neills were in fact operating a

“Class A kennel” during the brief period of time that they had the puppies for sale. As

defined in the animal-control ordinance, a Class A kennel is “[a]ny establishment where

dogs and/or puppies . . . are kept for the primary purpose of breeding, buying, or selling

such animals and which establishment is so constructed that the dogs[ and/or] puppies

. . . cannot stray therefrom.” Louisville/Jefferson Cnty. Metro Gov’t, Ky., Code of

Ordinances (LMCO) § 91.001. Whether the O’Neills’ home is a Class A kennel,

therefore, initially turns on whether their home is appropriately considered an

“establishment.”

“To interpret a state or municipal ordinance, federal courts look to see whether

state courts have spoken on the issue.” Gaughan v. City of Cleveland, 212 F. App’x 405,

409 (6th Cir. 2007). Here, we have found no Kentucky court interpreting the term

“Class A kennel” as defined in LMCO § 91.001. Where no state court has interpreted

the term at issue, “federal courts will look to the words of the ordinance itself, the

interpretations the state court has given to analogous statutes, and perhaps to some

degree, the interpretation of the statute given by those charged with enforcing it” to

determine the meaning of the ordinance. Gaughan, 212 F. App’x at 409-10 (brackets,

ellipsis, and internal quotation marks omitted).

The district court determined that the O’Neills’ home was an “establishment”

primarily because the 1994 edition of Webster’s II New Riverside University Dictionary

defines the word loosely as “a business firm, club, institution, or residence.” Id. at 444.

We respectfully disagree with the court’s conclusion.

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 6

Metro Gov’t et al.

To start with, the word “establishment” is defined in the more precise Black’s

Law Dictionary (9th ed. 2009) as “[a]n institution or place of business.” This definition

accords with common parlance, since a private residence is not typically referred to as

an “establishment.” Nor has any Kentucky court so applied the word.

Furthermore, words undefined in a statute or ordinance should be interpreted

according to their common meaning and in reference to the context in which they appear.

See Lichtenstein v. Barbanel, 322 S.W.3d 27, 35 (Ky. 2010) (“[Kentucky courts] will

read the statute as a whole, and with other parts of the law of the Commonwealth, to

ensure that [the] interpretation is logical in context.”). The context here concerns the

conditions applicable to those who operate Class A kennels. Section 91.023 of the

ordinance requires that Class A kennels be subject to “periodic inspections of public

areas . . . during such entity’s business hours.” LMCO § 91.023(C). Class A kennels

must also contain indoor enclosures “constructed of an impervious material,” with floors

made of “metal, fiberglass, [or] concrete or covered throughout with a minimum of three

inches of gravel” “for each animal housed.” LMCO §§ 91.120(B), 91.123(B). These

requirements make sense as applied to a full-time commercial kennel, but not to a private

residence where two family pets are bred for a single litter of puppies.

In addition, the definition of a Class A kennel includes only such establishments

“so constructed that dogs, puppies, cats and kittens cannot stray therefrom.” LMCO

§ 91.001. The district court concluded without explanation that the O’Neills’ home is

such a place. But this reading makes the clause superfluous, an outcome that should be

avoided when interpreting an ordinance. See Spencer v. Estate of Spencer, 313 S.W.3d

534, 544 (Ky. 2010) (rejecting an interpretation of a statute that would make some of its

provisions “redundant and superfluous”). Specifically, there is no indication in the

record that the O’Neills’ home contained any special features to contain pets or prevent

their escape. If their home is deemed to be “so constructed” as to prevent animals from

straying therefrom, then virtually every structure in Louisville would satisfy this

condition.

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 7

Metro Gov’t et al.

Also relevant is the definition of “commercial” versus “non-commercial” kennels

in the Louisville land-use ordinances. The key language for a “commercial kennel” is

materially the same as for a “Class A kennel” in the animal-control ordinance, both using

the word “establishment.” Compare Louisville/Jefferson Cnty. Metro Gov’t, Ky., Land

Dev. Code ch. 1, pt. 2 (defining a “commercial kennel” as “[a]ny lot, structure, premises,

or establishment . . . where dogs and/ or puppies . . . are kept for the primary purpose of

breeding, buying, [or] selling . . .”), with LMCO § 91.001 (as quoted above in the first

paragraph of this Part B.).

The “non-commercial kennel” definition, on the other hand, refers to a

“residence,” and specifically states that selling up to three litters of puppies per year does

not make the residence a “commercial kennel.” Louisville/Jefferson Cnty. Metro Gov’t,

Ky., Land Dev. Code ch. 1, pt. 2. Given this distinction, we see no reason to interpret

the definition of a Class A kennel as encompassing what the term “commercial kennel”

does not—namely, a private residence where two family pets are bred for a single litter

of puppies.

Another weakness in the defendants’ attempt to apply the Class A kennel

definition to a private residence is the requirement that the “primary purpose” for

keeping the animals be for sale or breeding. Here, the O’Neills had two adult American

bulldogs as long-term family pets that they bred on a one-time basis. No one can

reasonably argue on the facts as alleged that the O’Neills’ primary purpose for keeping

the adult dogs was to breed them, and they certainly were not for sale. True enough, the

litter of puppies was for sale, but the “are kept” language in the ordinance implies a

long-term operation applicable to a commercial kennel, not to a private residence where

a single litter of puppies are put up for sale over a period of a few weeks or less. The

O’Neills correctly point out that if the district court’s interpretation were accepted, then

as soon as they sold all the puppies, their home would cease to be a Class A kennel

despite the continuing presence of their two adult dogs. To have an establishment’s

“primary purpose” turn on such a circumstance strikes us as inconsistent with the

wording of the ordinance as a whole.

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 8

Metro Gov’t et al.

We also find significant the fact that LMAS itself had never before applied the

Class A kennel designation to a private residence. In a 2008 renewal-notice letter

addressed to currently licensed Class A kennel and cattery operators, LMAS Lieutenant

Ann Camp stated that “[t]he Class A Kennel/Cattery License is for establishments whose

primary purpose is buying, breeding or selling dogs, ferrets, and/or cats.” (Emphasis

added.) This shows that, in the same year as the events in question, LMAS was focusing

on the primary purpose of the establishment as the key factor in the ordinance’s

application. Reading the ordinance this way, it clearly excludes a private residence like

the O’Neills’. This interpretation also contradicts the defendants’ current argument that

the ordinance applies to a range of establishments so long as the primary purpose for

which the dogs or puppies “are kept” is buying, breeding, or selling. We find

unpersuasive the defendants’ attempt to disregard LMAS’s prior inconsistent position.

In sum, the common meaning of the words “establishment,” “so constructed,”

and “primary purpose,” the context in which these words and the term “Class A kennel”

are used in the Louisville Metro ordinances, and the inconsistent positions of LMAS all

lead to the inexorable conclusion that the O’Neills were not in fact operating a Class A

kennel. They thus had no obligation to obtain a breeder’s license in order to sell their

single litter of puppies.

C. Fourth Amendment claim

The district court also determined that there was no Fourth Amendment violation

by the LMAS officers. It based its ruling on the consent of the O’Neills to the

undercover agents’ first entry into the O’Neills’ home, and on the doctrine of consent-

once-removed to justify the warrantless second entry by the uniformed officers. But the

court’s decision was premised on its earlier determination that the O’Neills were

illegally operating a Class A kennel in their home. Without this foundation, the court’s

Fourth Amendment analysis becomes quite shaky. The court itself recognized the

linkage, stating: “Plaintiffs assert that they were not operating a Class A kennel and,

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 9

Metro Gov’t et al.

therefore, were not required to obtain any license prior to selling their puppies. If

Plaintiffs[’] interpretation is correct, then their claims may be viable.”

1. Initial entry by undercover LMAS officers

The district court held that the first entry was constitutional because the O’Neills

consented to the entry by inviting the two undercover LMAS officers into their home to

inspect the puppies. Warrantless searches and seizures within a home are “per se

unreasonable[,] subject only to a few specifically established and well-delineated

exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (ellipsis and internal

quotation marks omitted). One such exception occurs where the search or seizure is

conducted with the consent of the home’s lawful occupants. Id.

Although we agree that the first entry was constitutional, we do so on a different

ground than the one articulated by the district court. The district court determined that

the search was constitutional because the O’Neills consented to it. But we conclude, as

did the Supreme Court in Maryland v. Macon, 472 U.S. 463 (1985), under analogous

circumstances, that no Fourth Amendment search even occurred. In Macon, undercover

officers entered a store to buy illegal magazines, and the Supreme Court ruled that the

officers’ entry was not a search under the Fourth Amendment because “entering the

bookstore and examining the wares that were intentionally exposed to all who frequent

the place of business did not infringe a legitimate expectation of privacy.” Id. at 469.

Similarly, the O’Neills opened a portion of their home to the public when they invited

those who responded to their newspaper ad to come and look at the puppies.

Importantly, the O’Neills do not allege that the undercover LMAS officers intruded into

their home any more than permitted or any more than any other person who responded

to the ad.

The O’Neills nevertheless argue that the undercover LMAS officers’ use of a

subterfuge to enter their home should be prohibited. But the O’Neills assumed the risk

that some of those who visited their home might not have a genuine interest in

purchasing the puppies. See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 10

Metro Gov’t et al.

person knowingly exposes to the public, even in his own home or office, is not a subject

of Fourth Amendment protection.”). On this issue, the O’Neills are simply barking up

the wrong tree.

2. Second entry by uniformed LMAS officers

We find more merit to the O’Neills’ Fourth Amendment argument regarding the

second entry. In concluding that the LMAS officers could constitutionally reenter the

O’Neills’ home without a warrant, the district court relied on the consent-once-removed

doctrine. This doctrine allows government agents to

enter a suspect’s premises to arrest the suspect without a warrant if

[undercover agents]: 1) entered at the express invitation of someone with

authority to consent; 2) at that point established the existence of probable

cause to effectuate an arrest or search; and 3) immediately summoned

help from other officers.

United States v. Yoon, 398 F.3d 802, 806 (6th Cir. 2005) (emphasis added) (applying the

doctrine to the sale of illegal drugs). The O’Neills argue that this doctrine does not

apply in the present case, where the undercover officers left the premises and then

attempted to make a second entry. This court has previously held that, under the

consent-once-removed doctrine, an undercover agent or informant in a suspect’s home

may signal to agents outside to come in and effectuate an arrest. Id.; United States v.

Romero, 452 F.3d 610, 618-19 (6th Cir. 2006). But this court has not extended the

doctrine to cover reentry after the undercover agent or informant has left the premises,

or where there is no intent to effectuate an arrest, and we decline to do so here.

The defendants urge us to follow the Seventh Circuit’s line of cases extending

the consent-once-removed doctrine to the warrantless entry of backup officers where the

undercover agent or informant, who initially entered by consent, exited moments before

the backup officers entered. See United States v. Akinsanya, 53 F.3d 852, 855-56 (7th

Cir. 1995) (holding that DEA agents may enter moments after, or at the same time as,

the informant exited because they were “immediately summoned” by the informant);

United States v. Diaz, 814 F.2d 454, 459 (7th Cir. 1987) (holding that initial consent was

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 11

Metro Gov’t et al.

not withdrawn where the undercover officer “momentarily stepped out to obtain help

from other officers [located in the room across the hall] in making the arrest”).

Akinsanya and Diaz, however, do not stand for the general proposition that

achieving “one consensual entry” permits “law enforcement agents [to] thereafter enter

and exit a home at will.” Diaz, 814 F.2d at 459. Both were drug cases in which the

purpose of the undercover agent’s or informant’s exit was to immediately summon

officers to help effectuate an arrest. See Akinsanya, 53 F.3d at 855-56; Diaz, 814 F.2d

at 459. Those circumstances distinguish Akinsanya and Diaz from this case, where the

backup LMAS officers did not—after the undercover officers exited—rush in to help

effectuate an arrest. They instead knocked on the O’Neills’ door to request proof of a

“breeder’s license,” carried on a discussion with the O’Neills about the need for such a

license, and entered only after the O’Neills specifically objected to their coming into the

residence.

The LMAS officers in fact never intended to effectuate an arrest in this case. Yet

the doctrine of consent-once-removed is “based upon the theory that, because an

undercover agent or informant who establishes probable cause to arrest the suspect may

in fact arrest him then and there, he should be entitled to call in the agents with whom

he is working to assist in the arrest.” Yoon, 398 F.3d at 809-10 (Kennedy, J.,

concurring). Only then may officers “seize anything in plain view and . . . conduct a

protective sweep, but they may not conduct a general search without first satisfying the

ordinary requirements of consent, a warrant, or exigent circumstances, which excuse the

failure to obtain a warrant.” Id. at 806 n.1 (internal quotation marks omitted).

Applying the consent-once-removed doctrine to the LMAS officers’ second

entry, where no arrest was intended, would go well beyond the confines of this limited

doctrine, which has yet to be adopted by the Supreme Court. See Pearson v. Callahan,

555 U.S. 223, 243-44 (2009) (declining to rule on whether the consent-once-removed

doctrine is constitutional by instead resolving the issue of qualified immunity on the

basis that no clearly established law was violated). We therefore conclude that the

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 12

Metro Gov’t et al.

O’Neills have sufficiently pleaded a Fourth Amendment violation based on the second

warrantless entry.

D. Procedural due process claim

In their second § 1983 claim, the O’Neills allege that they were never “provided

with proper notice of any alleged violation of law or of any legal process for challenging

the seizure and alteration of their animals by LMAS.” They argue that this lack of notice

violated their Fourteenth Amendment right to procedural due process. The district court

concluded that there was no procedural due process violation because the dogs were

legally impounded and LMAS was entitled to alter the impounded, unlicensed dogs. To

the contrary, we have concluded in Part II.B. above that the LMAS officers had no

legitimate basis for impounding the dogs. We are also of the opinion that even if the

impoundment had been legal, the O’Neills would still have properly alleged a violation

of their right to procedural due process.

“In order to establish a procedural due process claim, a plaintiff must show that

(1) he had a life, liberty, or property interest protected by the Due Process Clause; (2) he

was deprived of this protected interest; and (3) the state did not afford him adequate

procedural rights prior to depriving him of the property interest.” Waeschle v. Dragovic,

576 F.3d 539, 544 (6th Cir. 2009) (internal quotation marks omitted). The O’Neills

assert that they have satisfied the first two elements of their procedural due process claim

because they were deprived of their money and the ability to breed their dogs in the

future (due to their pets having been altered during the impoundment) without the due

process of law. The defendants do not dispute that the O’Neills have a protected

property interest at stake or that they were deprived of that interest. “[T]here can be no

dispute that an animal owner has a substantial interest in maintaining his rights in a

seized animal. . . . Animal owners [ ] have a substantial interest in their ‘mere’ pets.”

Siebert v. Severino, 256 F.3d 648, 660 (7th Cir. 2001) (internal quotation marks

omitted); see also Louisville Kennel Club, Inc. v. Louisville/Jefferson Cnty. Metro Gov’t,

No. 3:07-CV-230-S, 2009 WL 3210690, at *10 (W.D. Ky. Oct. 2, 2009) (unpublished

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 13

Metro Gov’t et al.

opinion) (interpreting other sections of the LMCO chapter on animals to hold that “pet

owners clearly have a property interest in their animals” and that “the government is not

permitted to deprive an animal owner of his property without due process of law”).

The only element of the due process claim that remains at issue on appeal is

whether, given the property interest at stake, the O’Neills were afforded the procedural

process that they were due. They argue that, at a minimum, they were entitled to receive

written notice of their purported violations of the LMCO animal-control ordinance. We

agree.

“Due process requires notice of the charges and a meaningful opportunity to

contest the evidence.” Morrison v. Warren, 375 F.3d 468, 473 (6th Cir. 2004). “Notice,

of course, is one of the most fundamental aspects of due process.” Flaim v. Med. Coll.

of Ohio, 418 F.3d 629, 638 (6th Cir. 2005). Yet the only notice that the O’Neills were

given of the charges or evidence against them was the brief conversation that they had

with LMAS Director Gilles Meloche. At that time Meloche offered his proposed deal,

but he never informed the O’Neills of the sections of the ordinance that they had

allegedly violated.

The defendants now assert that the puppies were impounded pursuant to LMCO

§ 91.027(E) and the adult dogs pursuant to LMCO § 91.070(D). LMCO § 91.027(E)

provides that, “[i]n addition to a citation issued to the owner, any animal sold or offered

for sale in violation of this section may be impounded by [L]MAS.” Id. This language

necessarily implies that a citation is required to impound the puppies, but none was in

fact issued.

As for the adult dogs, LMCO § 91.070(D) provides that “[a]ny animal

deliberately used to facilitate an act that is illegal under federal, state, or metro law shall

be impounded,” but is silent as to any citation requirements. Id. The section on the

issuance of citations and violation notices, however, provides as follows:

In addition to, or in lieu of impounding an animal for any violation of this

chapter, any Animal Control Officer . . . may issue a citation to the owner

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 14

Metro Gov’t et al.

of such animal specifying the section or sections of this chapter so

violated and identifying the specific nature of the violation. Such citation

shall impose upon the owner the obligation of appearance to answer the

charges specified in the citation . . . at the time and place indicated on the

citation.

LMCO § 91.073(A). If an officer decides to issue a violation notice in lieu of a citation,

that notice must “stipulate a compliance date and associated fee and late fee, as well as

a waiver provision providing that the person to whom the violation notice is issued

waives all rights to protest such violation and waives all rights to a hearing on the issues

relating to that violation.” LMCO § 91.073(B). LMCO § 91.074(D) further provides

that a violation notice must

(1) Be in writing;

(2) Include a statement of the violation or violations and why the

notice is being issued;

(3) Inform the offender of the right to appeal;

(4) Include a statement that a determination of violation shall be final

unless appealed in accordance with this chapter; and

(5) Include a statement of penalties provided for the violation(s).

Id.

Meloche’s confrontation with the O’Neills lacked all the elements required by

LMCO §§ 91.073(A)-(B) and 91.074(D)—sections of an ordinance that Meloche claims

he created—and was not reasonably calculated to apprise the O’Neills of the allegations

against them or of the procedures available to present their objections. See United States

v. Baker, 807 F.2d 1315, 1323-24 (6th Cir. 1986) (holding that notice was not

constitutionally adequate where the clear-cut statutory procedures for notification were

not followed); cf. Herrada v. City of Detroit, 275 F.3d 553, 557 (6th Cir. 2001) (holding

that a parking citation provided adequate notice where it was “reasonably calculated to

inform the vehicle owners of the allegations against them and the procedures available

to obtain a hearing to contest the allegations”).

Furthermore, the circumstances as here alleged have an under-the-table, improper

air about them. No one is accusing Meloche of personally pocketing the money for his

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 15

Metro Gov’t et al.

own gain, but his confrontation with the O’Neills has the feel of a pseudo-shakedown

that is not at all akin to a plea agreement, as the defendants would have us believe. If

it were a plea agreement, what charges were the O’Neills pleading guilty to? At least

as alleged, no notification was provided to the O’Neills and no record of this transaction,

or of the alleged violations, was made with any court.

Meloche also threatened the O’Neills with the possibility of arrest if they did not

accept his “deal.” This threat suggests that the O’Neills were facing not only civil

offenses, but criminal charges as well. But the procedural due process required in the

context of a criminal proceeding is “considerably greater” than in a civil proceeding.

Herrada, 275 F.3d at 559. “[A] guilty plea [to a crime] occurs after a formal charge has

been issued, whereas a citation is only the allegation of a civil infraction,” id. at 559-60,

and “is involuntary where the defendant lacks knowledge of an element of the offense

required for conviction and therefore does not understand the nature of the charge

against him . . . ,” United States v. Layne, 192 F.3d 556, 577 (6th Cir. 1999). Clearly,

the O’Neills were not made aware of the charges and/or violations that they were

purportedly subject to, much less the elements of any of those offenses. The O’Neills

should at the very least have had some document memorializing the agreement with

Meloche so that, in the event charges were later brought against them, they would have

the ability to plead res judicata.

Because of the confluence of the questionable circumstances under which this

“deal” allegedly occurred, we conclude that the lack of notice was unconstitutional. The

O’Neills, therefore, have adequately pleaded a procedural due process violation.

E. Substantive due process and equal protection claims

As for the O’Neills’ other two Fourteenth Amendment claims, however, we agree

with the district court that they are without merit. In both their substantive due process

and equal protection claims, the O’Neills argue that there is no rational basis for

requiring the alteration of impounded, unaltered adult dogs but not the alteration of

impounded, altered adult dogs. This argument is based on the O’Neills’ strained reading

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 16

Metro Gov’t et al.

of Louisville Kennel Club v. Louisville/Jefferson County Metro Government, No. 3:07-

CV-230-S, 2009 WL 3210690 (W.D. Ky. Oct. 2, 2009) (unpublished opinion), in which

the Kennel Club challenged LMCO § 91.022(A)(1) on substantive due process and equal

protection grounds. That now-defunct section of the animal-control ordinance required

the owners of unaltered dogs, but not the owners of altered dogs, to obtain written

approval of enclosures for their dogs. Id. at *8. Admitting that there was no defensible

reason for that provision’s distinction between unaltered and altered dogs, the municipal

government conceded that the requirement was “a redundant nullity.” Id. The court

decided that because the municipality “renounced the value of the section,” there was

indeed no rational basis for the provision and declared it unconstitutional. Id.

But this limited holding does not, as the O’Neills argue, establish that any

distinction between the owners of unaltered and altered dogs is without a rational basis.

In reality, the Louisville/Jefferson County Metro Government has a completely rational

basis not to require the alteration of already altered dogs: the alteration of already

spayed or neutered dogs is physically impossible. Accordingly, we conclude that these

claims were correctly dismissed.

F. State-law claims

The district court determined that the state-law tort claims of trespass,

conversion, and outrage were not viable under Kentucky law because the O’Neills were

operating a Class A kennel without a license. Because we have concluded, based on the

alleged facts, that the O’Neills were not operating a Class A kennel, we vacate the

district court’s ruling on the state-law claims and remand them for reconsideration in

light of our contrary decision on the Class A kennel issue.

G. Qualified immunity

Although the district court concluded that there was “no need . . . to consider”

the qualified-immunity defense in light of its determination that no constitutional

violations had occurred, it went on to state that there was no caselaw clearly establishing

No. 10-5699 O’Neill et al. v. Louisville/Jefferson Cnty. Page 17

Metro Gov’t et al.

the alleged unconstitutionality of the individual LMAS officers’ actions. This latter

ruling was unnecessary to the court’s decision on this issue and thus dicta. See United

States v. McMurray, 653 F.3d 367, 375-76 (6th Cir. 2011) (concluding that statements

in a prior opinion were dicta because they were not necessary to the outcome of the

case). Given that we are reversing the court’s rulings on the Class A kennel issue, the

consent-once-removed doctrine, and procedural due process issue, the court’s analysis

of the O’Neills’ Fourth Amendment and procedural due process claims will necessarily

change, as will its determination of what law was or was not clearly established. We

accordingly remand the qualified-immunity issue to the district court for further

proceedings in light of our opinion.

III. CONCLUSION

For all of the reasons set forth above, we:

A. AFFIRM the dismissal of the portion of the Fourth Amendment claim that arises

out of the undercover LMAS agents’ initial entry into the O’Neills’ home;

B. AFFIRM the dismissal of the O’Neills’ substantive due process and equal

protection claims;

C. REVERSE the application of the Class A kennel designation to the O’Neills’

home;

D. REVERSE the dismissal of the portion of the Fourth Amendment claim that

arises out of the LMAS officers’ second entry into the O’Neills’ home;

E. REVERSE the dismissal of the procedural due process claim;

F. VACATE the dismissal of the O’Neills’ state-law claims and the district court’s

dicta regarding the grant of qualified immunity to the individual defendants; and

G. REMAND the case for further proceedings on items D, E, and F in a manner

consistent with this opinion.