Martino Recchia v. City of La Dept. Animal Svcs. , 889 F.3d 553 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTINO RECCHIA, No. 13-57002
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-07468-
DDP-MRW
CITY OF LOS ANGELES DEPARTMENT
OF ANIMAL SERVICES, North Central
Animal Care Center; RODRIGUEZ, OPINION
ACO, (Activity No. A11-031309), in
her individual capacity; R.
WEEKLEY, ACO, (ID No. 0999082)
in his individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted December 6, 2017
Pasadena, California
Filed May 1, 2018
2 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Raner C. Collins, * Chief District Judge.
Opinion by Judge Gould
SUMMARY **
Constitutional Law
In an action concerning the warrantless seizure of
Martino Recchia's twenty birds and euthanization of all but
two of the birds, the panel (1) affirmed the district court’s
summary judgment on Recchia’s Fourteenth Amendment
claim against Los Angeles Department of Animal Control
officers and state law claims as to all defendants; and
(2) vacated summary judgment on Fourth Amendment
claims against the officers and constitutional claims against
the City of Los Angeles.
Concerning Recchia’s claim that the Officers violated
his Fourth Amendment rights, the panel held that there was
a genuine factual dispute about whether Recchia’s healthy-
looking birds posed any meaningful risk to the other birds or
humans at the time they were seized. The panel affirmed the
dismissal in part as to the seizure of the birds that appeared
sick, but vacated and remanded in part as to the seizure of
any birds that were wholly healthy in outward appearance.
*
The Honorable Raner C. Collins, Chief United States District
Judge for the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 3
The panel instructed the district court on remand to consider
in the first instance whether the Officers were entitled to
qualified immunity for any potential constitutional violation.
Concerning Recchia’s claim that the Officers violated
his Fourteenth Amendment procedural due process rights by
denying him a hearing before taking and destroying his
healthy-looking birds, the panel held that to the extent that
Recchia argued that he was denied a meaningful post-seizure
hearing due to the euthanization of the birds, the district
court properly granted summary judgment to the Officers
because neither of the Officers was involved in the decision
to euthanize the birds. The panel further held that the
Officers did not violate Recchia’s procedural due process
rights when they seized his birds without a pre-seizure
hearing because California Penal Code § 597.1 provided for
adequate process. The panel noted that it did not matter
whether Recchia’s birds were properly seized under the
statute or whether there was an emergency.
The panel vacated summary judgment in favor of the
City on Recchia’s constitutional claims. The panel
instructed the district court on remand to consider whether
to grant Recchia permission to amend his complaint under
Fed. R. Civ. P. 15 and 16 to assert his theory of municipal
liability.
The panel affirmed the district court’s summary
judgment to defendants on Recchia’s state tort law claims
based on events tied to the seizure of the birds. The panel
held that discretionary immunity shielded the defendants
from liability.
4 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
COUNSEL
Matthew B. Summers (argued) and Michael Shipley,
Kirkland & Ellis, Los Angeles, California, for Plaintiff-
Appellant.
Matthew A. Scherb (argued), Deputy City Attorney; Blithe
S. Bock, Assistant City Attorney; Michael N. Feuer, City
Attorney; Office of the City Attorney, Los Angeles,
California; for Defendants-Appellees.
OPINION
GOULD, Circuit Judge:
After two Los Angeles Department of Animal Control
Officers (the “Officers”) discovered that Martino Recchia
was keeping twenty birds in boxes and cages on the sidewalk
where he lived, the Officers seized the birds without a
warrant. Before a hearing was held on the seizure, a City of
Los Angeles (the “City”) veterinarian euthanized all but two
of the birds. Recchia then sued the City and the Officers
(collectively, “Defendants”), bringing claims for violations
of the Fourth Amendment and Fourteenth Amendment, as
well as claims for state law tort violations. Recchia also
asserted a claim for municipal lability against the City on the
constitutional claims pursuant to Monell v. Department of
Social Services of City of New York, 436 U.S. 658 (1978),
and against the City on the state law claims based on
California Government Code § 815.2. The district court
granted summary judgment for the Defendants on all claims.
We affirm in part on issues including dismissal of the
Fourteenth Amendment due process claim against the
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 5
Officers and dismissal of the state law claims. But on the
Fourth Amendment claim challenging the seizure of
Recchia’s birds, we vacate and remand because we conclude
that genuine disputes of material fact now preclude summary
judgment on the question of whether there was a
constitutional violation. We instruct the district court to
consider in the first instance whether the Officers are
nonetheless entitled to qualified immunity because any
constitutional violation was not clearly established at the
time it was committed. We also vacate summary judgment
on the Fourteenth Amendment claim against the City and
instruct the district court to consider in the first instance
whether Recchia should be allowed to add a new theory of
Monell liability at this juncture.
I
In late 2011, Martino Recchia was homeless and living
on the streets of Los Angeles with his twenty pet birds.
Eighteen of the birds were pigeons and Recchia also had a
crow and a seagull. Recchia kept these birds in twelve to
fourteen cardboard boxes and cages, which were covered
with blankets and towels.
On November 3, 2011, Los Angeles County Animal
Control Officer Robert Weekley came to investigate
Recchia’s campsite in response to complaints about a
homeless man with birds. Officer Weekley told Recchia that
he was going to look through Recchia’s boxes and
containers. Recchia agreed to the inspection and admitted to
the Officer that he was keeping some pigeons and a crow in
the boxes.
Officer Weekley then looked through the boxes. Los
Angeles County Animal Control Officer Yvonne Rodriguez
soon arrived to assist him. All the birds had food and water.
6 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
However, the birds were maintained in areas too small for
them to be able to fly around, the newspaper lining the floors
was wet, and the cages and boxes were covered with feces. 1
Several birds were in dire physical condition. 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. Many birds
had overgrown beaks. Recchia states that he rescued many
of these birds and kept them in the same or better condition
than that in which he had found them. However, it cannot
be doubted on this record that many of the birds were
deformed, distressed or diseased. On the other hand, eight
of the pigeons showed no signs of injury or disease, and
outwardly appeared to be healthy.
Officer Rodriguez photographed the birds and their
living conditions, while Officer Weekley spoke with
Recchia. Officer Weekley told Recchia that he was going to
impound all of the sick or injured birds, and asked Recchia
if there was somewhere Recchia could take the pigeons
without visible injuries or illnesses to get them off the street.
Recchia told Officer Weekley that he had a friend in the
Silverlake neighborhood of Los Angeles and that he could
1
Recchia argues that the birds were housed in better or different
conditions than described by the Defendants. But we credit the photos
taken of the birds at Recchia’s campsite because the validity of those
photos is uncontested. See Scott v. Harris, 550 U.S. 372, 380–81 (2007)
(holding that a videotape of undisputed validity should be treated as
providing undisputed facts at summary judgment).
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 7
take the birds to that friend’s house. However, Recchia
could not provide his friend’s name or address.
Officer Weekley then decided to impound all of the
birds, given that Recchia could not verify that the friend’s
home in Silverlake would meet the municipal code
requirement that unpermitted wild birds must be housed at
least 50 feet from the bird owner’s dwelling and 150 feet
from all other dwellings. See LAMC §§ 53.59, 53.71.
Officer Weekley was also concerned, given the lack of detail
Recchia had provided, that the birds would remain in squalor
on the public sidewalk if left with Recchia. And Officer
Weekley did not think that Recchia could adequately care
for the birds.
The Animal Control Officers then impounded the birds. 2
Recchia was also given a “Post-Seizure Hearing Notice,”
which informed him that he had ten days to request a post-
seizure hearing.
The Animal Control Officers then took the birds to the
North Central Care Center (the “Care Center”). The next
day, a city veterinarian, Dr. Steven Feldman, examined the
birds. He determined that the crow and the seagull should
be sent to wildlife rescue organizations. But he decided all
of the pigeons needed to be euthanized: He determined that
many of the birds had serious and incurable illnesses,
2
During the impoundment process, Recchia and Officer Weekley
got into an argument, and Officer Weekley contends this escalated into
an attempt by Recchia to punch him in the back of the head. Recchia
states he merely attempted to tap Officer Weekley on the shoulder, and
that Officer Weekley responded by attempting to wrestle Recchia to the
ground. In any event, the Los Angeles Police Department was called,
and police officers detained Recchia while the Animal Control Officers
finished impounding the birds. Recchia was then released.
8 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
including symptoms of various bacterial or viral diseases,
and that it was likely that even those birds without outward
signs of illness carried pathogens. However, Dr. Feldman
did not perform blood tests on the birds because the Care
Center had a policy of not testing birds for illness unless it
was a matter of public health importance. And he
determined that the present circumstances did not rise to that
threshold.
On November 7, 2011, four days after the seizure,
Recchia filed a request for a post-seizure hearing. The
hearing was held the next day. The hearing officer found
that the seizure was justified under California Penal Code
§ 597.1(a)(1), which requires officers to seize animals kept
in public spaces without proper care and attention if the
officers have a “reasonable” belief that “very prompt” action
is required to protect the health and safety of the animal or
others. At this hearing, Recchia learned for the first time that
all of his pigeons had been euthanized.
Recchia then sued the Animal Control Officers and the
Los Angeles Department of Animal Services, pro se,
alleging Fourth and Fourteenth Amendment violations under
42 U.S.C. § 1983, including a Monell claim against the
Department of Animal Services, 3 and state tort law claims
for conversion, negligent infliction of emotional distress,
and intentional infliction of emotional distress.
The district court adopted the magistrate judge’s report
and recommendation and granted summary judgment to the
Defendants. Through the report and recommendation, the
3
The district court treated the naming of the Department of Animal
Services as though Recchia had named the City, which Defendants have
not contested.
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 9
district court noted that Recchia had offered no medical or
veterinary evidence as to the birds’ condition. It stated that
exigent circumstances justified the seizure and destruction
of the birds, and so found no violation of Recchia’s
constitutional rights. The district court granted summary
judgment to the City, finding Recchia had failed to show
there was any City policy that had led the Animal Control
Officers to act in a manner that injured Recchia. Finally, the
court granted summary judgment to the Defendants on
Recchia’s state tort law claims, holding that there was no
evidence that the Defendants had acted wrongfully. Finding
for the Defendants on other grounds, the district court did
not reach the Defendants’ qualified immunity defense or
their other affirmative defenses. Recchia appeals.
II
We have jurisdiction under 28 U.S.C. § 1291. We
review a district court’s grant of summary judgment de novo.
Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir. 2004).
In evaluating a summary judgment ruling, we view the
evidence in the light most favorable to the nonmoving party,
and assess “whether there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law.” Id.III
The Fourth Amendment protects, among other things, a
person’s right not to have their property unreasonably seized
by the government. United States v. Place, 462 U.S. 696,
700 (1983). Homeless people living on the street enjoy the
protection of the Fourth Amendment. Lavan v. City of L.A.,
693 F.3d 1022, 1029 (9th Cir. 2012). And Defendants have
agreed for the purposes of this appeal that Recchia had a
10 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
property interest in his pigeons. 4 The seizure of a homeless
person’s property implicates important Fourth Amendment
concerns.
Recchia argues that in seizing his birds without a
warrant, the Officers violated his Fourth Amendment rights.
At oral argument and in his briefing on appeal, Recchia
argued only that the seizure of his healthy birds was a
violation of his constitutional rights, although in his
complaint Recchia sought damages for the seizure of all of
his birds.
“Because warrantless searches and seizures are per se
unreasonable, the government bears the burden of showing
that a warrantless search or seizure falls within an exception
to the Fourth Amendment’s warrant requirement.” United
States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012).
The defendants here invoke the exigent or emergency
circumstances exception to justify the seizure. The exigent
circumstances exception allows warrantless searches and
seizures when an emergency leaves police insufficient time
to seek a warrant. See Birchfield v. North Dakota, 136 S. Ct.
2160, 2173 (2016). Under this exception, for example, the
police need not wait to get a warrant if there is an urgent need
4
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).
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 11
to provide aid or if there is concern evidence might be
destroyed in the time it would take to get a warrant. Id.In evaluating whether the circumstances justified an
official in acting without a warrant, we review the “totality
of the circumstances.” McNeely, 569 U.S. at 151. Here, the
City argues that the seizure was justified because the birds
were being held in unsanitary conditions, and it was
“untenable” for both the birds’ health and for the health of
other animals and the public for the birds to remain on the
street in those conditions. Recchia argues that any public
health threat was too speculative to justify seizing the birds,
and that Officer Weekley’s initial willingness to allow
Recchia to take the healthy birds to a friend’s house
demonstrates that there was no emergency.
There is no question about whether the emergency
exception can be applied to animal workers who seize an
animal in a true emergency setting. For example, if animal
workers in an urban setting confront an obviously diseased
or ill animal living in foul conditions that may be causing or
compounding the animal’s suffering, whether a bird or a dog
or a cat, those workers have the right to seize the animal
without getting a warrant. There is little preexisting judicial
precedent on this subject. But, in the Sixth Circuit case of
United Pet Supply, Inc. v. City of Chattanooga, 768 F.3d 464(6th Cir. 2014), animal control workers were confronted
with a situation where a pet store owner had maintained
premises so hot and so unventilated that a puppy had died.
Id. at 473–75. In that context, the court held that the workers
could seize animals from the pet store without a warrant. Id.
at 490.
Other obvious examples come to mind. For example, if
workers saw a dog foaming at the mouth, they would not
have to pause to get a warrant before trying to get the dog
12 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
off the street because of the risks of a rabid dog biting
another animal or a person. Though less dramatic, there are
similar issues with diseased cats or birds. There will always
be the problem that if a diseased animal with a
communicable disease is allowed to mingle with other
animals, it may transmit disease to them. A disease can
spread quickly, maybe as fast as lightning, leaving human
health care or animal control workers with only a limited
ability to control it. Officers concerned with human or
animal safety should not have to pause to obtain a warrant if
they are reasonably concerned that a significant spread of
illness might be caused by an infected animal. Similarly, if
health inspection workers see evidence of rodent infestation
in a restaurant, they need not pause to get a warrant before
taking corrective action to protect the public.
If all the birds maintained by Recchia had been
unhealthy or sick in appearance, we think their entire seizure
would pose no significant constitutional issue, and clearly
would not offend the Fourth Amendment because of the
scope of the emergency exception to the warrant requirement
and the need to seize the birds to end their suffering and
prevent transmission of illness. However, the crux of the
problem here is that not all of the birds appeared to be sick,
in fact eight birds appeared outwardly healthy. And so we
are confronted with a factual issue about whether the exigent
circumstances exception applies as to the seizure of the
healthy-looking birds kept by Recchia in this case.
On the one hand, as to considerations suggesting there
was no urgent need to seize the birds, there was substantial
evidence that the healthy looking birds should have been no
cause for concern. Officer Weekley’s initial willingness to
leave the healthy birds with Recchia, if Recchia could
relocate them in a way that complied with municipal law,
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 13
counsels against finding that an emergency existed here. See
Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1295 (9th Cir.
2007) (holding that an official’s initial determination there
was no need for a seizure “militates against a finding of
exigency.”).
Although the City argues that Dr. Feldman’s conclusion
that the birds potentially carried disease demonstrates that
there was a grave risk that required the birds’ seizure, we
note that Dr. Feldman explained that if birds “may be
harboring a potentially dangerous human contagious disease
or may be exhibiting signs indicative of an epidemic,” “the
Care Centers will then incur the expense of performing
blood work and lab tests” on the birds. But here Dr. Feldman
“did not feel that the pathology manifested in [Recchia’s]
pigeons was of a most serious caliber to warrant that.” Also,
in assessing reasonableness, we look at what was known to
the officers at the time of seizure. United States v. Licata,
761 F.2d 537, 543 (9th Cir. 1985). Here, at that time, the
Officers did not have the benefit of Dr. Feldman’s opinion
and there is no evidence that the Officers knew facts
supporting the view that the healthy-looking pigeons carried
a disease that was dangerous to humans, such as avian
influenza or bubonic plague, or carried a pathogen that might
lead to an epidemic in the Los Angeles bird population. 5
5
Further, there is no evidence concerning how long it would have
taken for the Officers to obtain a warrant or concerning the likelihood
that the birds that looked healthy would have transmitted any illness in
that time. And the veterinarian did not examine and euthanize the birds
until the day after they were seized. This demonstrates that there was at
least some time for the Officers to get a warrant before a medical
inspection of the birds could or needed to be made. We also conclude it
was relevant that it was not possible to hold the birds in quarantine at the
Care Center, meaning that people and animals were exposed to the birds
14 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
On the other hand, as to considerations suggesting a
degree of urgency, there was evidence from which a jury
might have determined that all the birds posed some hazard
or were in immediate danger justifying a seizure. We
observe that the birds were kept in living spaces inadequate
for them to fly, spaces that were dirty and covered with feces.
And Dr. Feldman was concerned that even the healthy birds
might have pathogens or viruses that might spread to other
birds in the wild—although it is unclear what sort of illness
they might have had, as Dr. Feldman appears to have just
generally listed illnesses that may afflict birds without any
analysis to show how Recchia’s birds’ symptoms linked
them to those illnesses. Further, Officer Weekly did not
think Recchia was capable of caring for the birds.
Because of these competing lines of evidence, we hold
that there is a genuine factual dispute about whether the
healthy-looking birds posed any meaningful risk to other
birds or humans at the time they were seized. Therefore,
although we affirm the dismissal in part as to the seizure of
the birds that appeared sick, we vacate and remand in part as
to the seizure of any birds that were wholly healthy in
outward appearance.
On remand, we instruct the district court to consider in
the first instance whether the Officers are entitled to
qualified immunity for any potential constitutional violation
because it was not “clearly established” at the time of the
seizure that the warrantless seizure of the birds could be a
violation of Recchia’s constitutional rights. See San Jose
and whatever theoretical pathogens they may have been carrying for
some time after the seizure. Again, this could lead a jury to conclude
that there was no emergency.
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 15
Charter of Hells Angels Motorcycle Club v. City of San Jose,
402 F.3d 962, 971 (9th Cir. 2005).
IV
Recchia also argues that the Officers violated his
Fourteenth Amendment procedural due process rights by
denying him a hearing before taking and destroying his
outwardly healthy-looking birds. Recchia appears to be
challenging the denial of both a pre- and a post-seizure
hearing. However, Recchia alleges a Fourteenth
Amendment violation against only the Officers, not the
veterinarian. To the extent that Recchia argues he was
denied a meaningful post-seizure hearing due to the
euthanization of the birds, the district court properly granted
summary judgment to the Officers because neither of the
Officers was involved in the decision to euthanize the birds.
Accordingly, the relevant question is whether the Officers
violated Recchia’s Fourteenth Amendment procedural due
process rights because they seized Recchia’s birds without a
pre-seizure hearing.
Again, the parties agree, for purposes of this appeal, that
Recchia had a property interest in his birds. Once a court
has determined that there is a protected interest at stake, the
court “must apply the three-part balancing test established in
Mathews v. Eldridge, 424 U.S. 319 (1979), to determine
‘whether a pre-deprivation hearing is required and what
specific procedures must be employed at that hearing given
the particularities of the deprivation.’” See Yagman v.
Garcetti, 852 F.3d 859, 864 (9th Cir. 2017) (quoting
Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015).
Accordingly, we apply the Mathews test to determine if
Recchia’s rights were violated by the absence of a pre-
deprivation hearing. The Mathews factors are: “(1) the
private interest affected; (2) the risk of erroneous deprivation
16 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
through the procedures used, and the value of additional
procedural safeguards; and (3) the government’s interest,
including the burdens of additional procedural
requirements.” Id. 6
“[T]he relevant inquiry is not whether [Recchia] should
have been [afforded a hearing] in this particular case, but
whether the statutory procedure itself is incapable of
affording due process.” Soranno’s Gasco, Inc. v. Morgan,
874 F.2d 1310, 1318 (9th Cir. 1989) (citing Hodel v. Va.
Surface Mining & Reclamation Ass’n, 452 U.S. 264, 302
(1981)). Recchia’s birds were seized under the auspices of
California Penal Code § 597.1(a)(1), which provides for the
immediate seizure of animals where “[a]ny peace officer,
humane society officer, or animal control officer” has
“reasonable grounds to believe that very prompt action is
required to protect the health or safety of the animal or the
6
Defendants argue that because exigent circumstances justified
seizing the birds, Recchia was not entitled to a pre-seizure hearing. We
agree that where exigent or emergency circumstances justify a
warrantless seizure there will be no need to have a hearing before a
seizure. See United States v. James Daniel Good Real Prop., 510 U.S.
43, 62 (1993) (“Unless exigent circumstances are present, the Due
Process Clause requires the Government to afford notice and a
meaningful opportunity to be heard before seizing real property subject
to civil forfeiture.”). However, we have determined that the warrantless
seizure was not, on the record presented at summary judgment, justified
by exigent circumstances. And so the Defendants’ argument on this
point is not persuasive.
Defendants also argue that the seizure was proper simply because it
was authorized under California law. But the language of California
statutes cannot adjust downwards the minimum process due under the
Constitution. Accordingly, we proceed through the Mathews analysis to
determine whether a pre-deprivation hearing was required.
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 17
health or safety of others.” Accordingly, the relevant
question is whether § 597.1 provides for adequate process,
in light of the interests it serves, not whether this particular
seizure was proper.
The first Mathews factor is the private interest at stake.
Here the interest at stake is an animal or pet owner’s property
interest in their animals and in having the pets or animals
with them. 7 Given the emotional attachment between an
owner and his or her pet, a pet owner’s possessory interest
in a pet is stronger than a person’s interest in an inanimate
object. See San Jose Charter of Hells Angels Motorcycle
Club, 402 F.3d at 975. 8
Second, the risk of erroneous deprivation here appears
fairly low, generally. Animal Welfare Officers are executing
the seizure and so have some expertise in the factors that
would warrant such a seizure. See United Pet Supply, Inc.,
768 F.3d at 486 (“[T]he risk of an erroneous deprivation was
low due to the participation of trained animal-welfare
officers in the seizure, and there is little value to additional
procedural safeguards.”). The statute also authorizes peace
officers to execute seizures, which does weigh somewhat
against the expertise argument. But it appears that generally
7
We reach no holding here as to whether or not Recchia’s pigeons
are properly characterized as pets, and we observe that California Fish &
Game Code § 2000 (prohibiting the taking of a wild bird except as
provided for in the California Fish and Game Code) would seem to
suggest otherwise, despite the parties’ agreement for purpose of the
appeal that Recchia had a property interest in the pigeons.
8
As to the pre-seizure hearing, the fact that the animals were
euthanized is not relevant to the analysis, as the euthanization goes to the
issue of a post-deprivation hearing.
18 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
these seizures will be executed by persons with training in
animal welfare and health assessment.
Finally, and we find dispositively here, there is a strong
general governmental interest in being able to seize animals
that may be in imminent danger of harm due to their living
conditions, may carry pathogens harmful to humans or other
animals, or may otherwise threaten public safety without
first needing to have a hearing on the subject. See id. at 487;
see also Hodel, 452 U.S. at 300 (“Protection of the health
and safety of the public is a paramount governmental interest
which justifies summary administrative action.”). 9
It does not matter whether Recchia’s pigeons were
properly seized under the statute or whether there was an
emergency here. See Hodel, 452 U.S. at 302 (“The relevant
inquiry is not whether a cessation order should have been
issued in a particular case, but whether the statutory
procedure itself is incapable of affording due process.”);
Soranno’s Gasco, Inc., 874 F.2d at 1318 (“We reject
Gasco’s argument that due process was violated because no
immediate threat to public health was involved in this
particular situation.”). For the purposes of the Fourteenth
Amendment analysis, we are not assessing whether this
particular seizure was proper, but instead whether the statute
provides due process. See Hodel, 452 U.S. at 302. We hold
9
Additionally, the statute entitles an animal owner to a post-
deprivation hearing, allowing the animal owner to challenge the seizure
and attempt to regain the animal while the suspected public safety threat
is neutralized. See Cal. Penal Code § 597.1(f). The presence of some
opportunity to challenge the seizure further supports the conclusion that
this statute does not violate due process. See Hodel, 452 U.S. at 302–03.
Of course, Recchia’s post-seizure hearing could do him no good here
because his birds were already dead, but that issue is not now properly
before us.
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 19
that it does and so affirm the district court’s grant of
summary judgment on the Fourteenth Amendment claim as
to the Officers.
V
Recchia asserts that the district court should not have
granted summary judgment on the Monell claim because the
City’s policy of not requiring blood tests before euthanizing
birds led to a violation of Recchia’s constitutional rights.
Defendants argue that Recchia waived this argument
because he did not raise it to the district court. Recchia
tacitly concedes that this is true. However, he asks us to
exercise our discretion to allow this new argument,
contending that the Defendants will not be prejudiced by
allowing him to raise this new theory and that it would cause
manifest injustice to refuse to hear his new argument on the
Monell claim.
We may “review an issue not raised nor objected to prior
to appeal if necessary to prevent manifest injustice.” Retail
Flooring Dealers of Am., Inc. v. Beaulieu of Am., LLC,
339 F.3d 1146, 1150 n.5 (9th Cir. 2003). Recchia has been
pro se for much of this litigation and so should be afforded
some leniency from the generally strict rules against raising
issues or theories late.
Because we remand this case, we also instruct the district
court to consider whether to grant Recchia permission to
amend his complaint under Federal Rules of Civil Procedure
15 and 16 to assert this theory of municipal liability. 10 We
vacate summary judgment in favor of the City on Recchia’s
10
We express no view on whether he should prevail on that theory
of municipal liability, which has not been tested in the district court.
20 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
constitutional claims so that the district court can consider
this question.
VI
Recchia asserts state tort law claims based on events tied
to the seizure of the pigeons. Under California law, public
entities are liable for violation of state law only as provided
by statute. Eastburn v. Reg’l Fire Prot. Auth., 31 Cal. 4th
1175, 1183 (2003). California’s Government Code grants
public entities and their employees several immunities,
including discretionary immunity, which Defendants
contend is applicable here.
Discretionary immunity applies to shield a California
public employee, and thereby his or her employer, see Cal.
Gov’t Code § 815.2 (b), from liability for state law violations
when an injury results “from [the employee’s] act or
omission where the act or omission was the result of the
exercise of the discretion vested in [the employee], whether
or not such discretion be abused.” Id. § 820.2. “The
immunity applies even to ‘lousy’ decisions in which the
worker abuses his or her discretion.” Christina C. v. Cty. of
Orange, 220 Cal. App. 4th 1371, 1381 (2013). But “to be
entitled to immunity the state must make a showing that such
a policy decision, consciously balancing risks and
advantages, took place.” Johnson v. State, 69 Cal. 2d 782,
794 n.8 (1968).
Here, the Officers seized the pigeons under California
Penal Code § 597.1(a)(1), which provides, in relevant part,
that “when [an] officer has reasonable grounds to believe
that very prompt action is required to protect the health or
safety of the animal or the health or safety of others, the
officer shall immediately seize the animal.” Recchia argues
that there is nothing discretionary about this statute, as it
RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS. 21
dictates that officers “shall” seize an animal. But Recchia’s
argument entirely misses the point.
To seize the birds in this case, the officers had to first
make a discretionary decision that very prompt action was
required to protect the health or safety of the birds or of
others. In practice, each officer will be making discretionary
decisions about what are “reasonable grounds” to take
prompt action to assess what to do in any given situation.
Because individual officers will be making assessments of
the situation and of the relevant considerations and dangers
in determining the best outcome, as the Officers did here,
deciding whether to seize animals under § 597.1(a)(1)
clearly represents an exercise of discretion. See also
Christina C., 220 Cal. App. 4th at 1381 (finding that social
workers have discretionary immunity for their decisions to
remove children from the children’s homes). We affirm the
district court’s decision to grant summary judgment to
Defendants on Recchia’s state law claims.
VII
We take seriously the health and safety interests raised
by Defendants here. Animals can carry dangerous
pathogens that in some cases can be harmful to humans or to
other species of animals. Whenever government officials
have grounds to think that an animal may transmit a
dangerous disease in the time it might take to get a warrant,
the Fourth Amendment will not block an immediate seizure
of that animal. Nor will officers violate an animal or pet
owner’s constitutional rights where the officers take animals
to protect them from some immediate danger in their living
situation. But here there are disputes of fact about the health
risks that the outwardly healthy-looking birds posed.
22 RECCHIA V. LOS ANGELES DEP’T OF ANIMAL SERVS.
We AFFIRM summary judgment on the Fourteenth
Amendment claim against the Officers and the state law
claims as to all Defendants and VACATE summary
judgment on the Fourth Amendment claims against the
Animal Control Officers and as to Recchia’s constitutional
claims against the City, with instructions to the district court
to consider in the first instance whether the Officers are
entitled to qualified immunity and whether Recchia should
be allowed to amend his complaint to add his new theory of
municipal liability.
AFFIRMED in part; VACATED in part;
REMANDED with instructions.