Justice O'Connor: "This Is A Case About A Wolf Named Duchess"

I wouldn't ordinarily write about the Fourth Circuit's opinion yesterday in Walker v. Prince George's County, Maryland., The Walker case doesn't have anything at all to do with business litigation. But two things make the case remarkable.

The first is that the opinion was written by U.S. Supreme Court Justice Sandra Day O'Connor, sitting by designation on the Fourth Circuit. The second is the opinion's irresistible opening line: "This is a case about a wolf named Duchess." You would expect a line like that from a Jack London story, not the Fourth Circuit.

Justice O'Connor faced this constitutional dilemma: Walker owned a wolf, or something like a wolf. That's illegal in Prince George's County. Walker's sister ratted him out to the County's Animal Management Division for illegal wolf possession. An animal control officer went to Walker's house, saw Duchess, identified her as a wolf based on eighteen years of animal control experience, and impounded the animal.

Walker asserted that his wolf had been taken away from him in violation of his Fourth Amendment rights. Walker had a license for Duchess, obtained based on his veterinarian's mistaken identification of the wolf as an Alaskan Malamute.  (We've all made that mistake). Walker argued that the animal control officer was obligated to inquire as to the legality of his possession before seizing the wolf.

As Walker put it, "the seizure of an animal may be reasonable for purposes of the Fourth Amendment only when an official has first determined whether the animal is being lawfully possessed."

The issue for the Fourth Circuit was whether the officer was entitled to qualified immunity. That issue turned on whether the asserted obligation to check Duchess's registration before the impoundment was "clearly established."  Justice O'Connor said it wasn't:

the ordinance upon which appellants rely says nothing about the lawful procedure for the seizure of a wolf. That a wolf may lawfully be possessed does not mean that the lawfulness of its possession must be verified as a prerequisite to its seizure when that seizure is necessary to protect the public safety or otherwise. . . . [A]ppellants have failed to point us to any authority that even suggests the existence of their purported Fourth Amendment right.

The Court also dealt with a Monell claim against the County, by which Walker asserted that the County had a policy and custom of illegal wolf seizure. Justice O'Connor termed the allegations of the complaint to be "threadbare," and dismissed the claim against the County based on the Supreme Court's recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). 

The Iqbal case, which I wrote about in June, has been called "the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts."  The Walker decision is the first mention of Iqbal by the Fourth Circuit in a published opinion, though it was cited last month in an unpublished opinion, Shonk v. Fountain Power Boats, in which the Court affirmed the grant of a motion to dismiss.

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