Suppose you're walking your pooch "Kaiser" in the local dog park. Another owner is walking his dog "Odin" in the same park. Off-leash Odin attacks you and Kaiser, unfortunately killing Kaiser.
Those bastards took Kaiser, my property! A total wipeout Lucas taking (after all, you plainly have been 100% deprived of both the use and value of poor Kaiser, who is no more).
So you sue. But who do you sue? The owner of the miscreant Odin? Nope, not a state actor, no power of eminent domain. So not liable for a taking. How about Odin himself? After all, courts are entertaining lawsuits by ape plaintiffs, so why not dogs as defendants? Nope, besides the standing problem, like his master, Odin isn't a state actor and does not have the power of eminent domain.
How about the animal shelter, because it is operated by the county? Genius!
Thus, your federal takings complaint alleges the Fairfax County Animal Shelter (from where the owner adopted Odin months earlier) didn't warn him that Odin was a bad dog and had a "violent history." And FCAS is an arm of the government. Creative!
Nope, held the U.S. District Court. And in McCabe v. Fairfax Cty. Animal Shelter, No. 19-1583 (Mar. 31, 2020), in an unpublished per curiam opinion, the U.S. Court of Appeals for the Fourth Circuit affirmed.
The court agreed with the District Court that although FCAS is a part of a government entity, Virginia law does not render FCAS subject to suit. OK, how about I substitute the County itself, argued the plaintiff. The County can be sued under Virginia law, and it is a "person" under section 1983.
Not so fast, concluded the Fourth Circuit, even if you get the right defendant, you complaint doesn't allege a valid takings claim:
McCabe’s theory of liability was grounded on his allegation that FCAS failed to disclose Odin’s violent history in order to facilitate his adoption, as part of a broader policy of knowingly adopting out dangerous dogs. However, Odin was neither in FCAS’s possession nor under its control at the time of the attack, which occurred almost six months after Odin’s adoption. Odin’s owner made the decision to have Odin off-leash in a public area. Accepting McCabe’s well-pled allegations as true, there has been no actual government interference with his property. See Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 329-30 (4th Cir. 2005). Therefore, although we grant McCabe’s motion to exceed the length limitation for his informal brief, we affirm the district court’s order.
Slip op. at 4.
Seems like every dog has its day, except poor Kaiser (at least not for a takings claim).
McCabe v. Fairfax Cty. Animal Shelter, No. 19-1583 (4th Cir. Mar. 31, 2020) (unpub.)
