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SUSS v. ASPCA

May 31, 1993

MALCOLM SUSS, Plaintiff,
v.
AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, ASPCA OFFICER RAMON, ASPCA OFFICER McDONALD, AND THE CITY OF NEW YORK, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case, brought under the Fourth Amendment, involves the need to reconcile human rights with the obligation to protect other species from harm caused by human activity. It also presents the question of whether exercise of sovereign powers of compulsion may be delegated to private entities. *fn1"

 After the discovery that a cat was trapped between closely adjacent walls of two buildings, peace officers of a private organization, the Society for Prevention of Cruelty to Animals ("ASPCA"), determined that saving the feline required breaking through the exterior wall of a building occupied by a corporation owned by plaintiff.

 Without seeking a warrant through personal appearance or by telephone, or attempting to reach the owner of the building, ASPCA personnel secured the assistance of the New York City Fire Department to break through the exterior wall in an unsuccessful attempt to save the cat, which was later destroyed.

 Plaintiff brings this suit alleging violations of federal constitutional rights pursuant to 42 USC § 1983. Defendants have moved to dismiss the complaint or for summary judgment pursuant to Fed.R.Civ.P. 12 and 56.

 I deny the motions insofar as they seek a ruling that no genuine issue of fact exists as to whether or not Fourth and Fourteenth Amendment violations occurred. I deny them without prejudice with regard to (a) responsibility of the individual defendants and the City, and (b) plaintiff's claim for monetary damages, for lack of adequate factual development to permit a ruling at this time. See Mahoney v. Hankin, 844 F.2d 64 (2d Cir. 1988); Goddard v. Urrea, 847 F.2d 765 (11th Cir. 1988).

 The question of qualified immunity has not been fully briefed on the present motions, nor has there been adequate factual development to permit me to determine whether summary judgment should be granted in favor of one or more defendants on that ground. Since I do not regard qualified immunity as being raised by the present motions, defendants may file a separate motion directed to that issue without further leave.

 II

 Legal authority supports reasonable governmental action to protect non-human species from untoward effects of cruel or ill-advised human activity.

 At one time, human activity had a minimal impact on other species and their role in the earth's complex balances. *fn2" With the exponential growth of human technological knowledge, mankind's power to influence the massive cycles of the planet including the role of other species increased dramatically. Awareness of the importance of human actions and their long-term as well as immediate effects for good or ill has now begun to be reflected in our legal and institutional structures. If a single viewpoint can be said to inform the legal aspects of this awareness it is that of responsible stewardship, *fn3" flowing from the basic long-recognized principle that power of whatever kind implies responsibility. *fn4"

 Stewardship has been recognized in affirmative steps to promote environmentally sound technologies *fn5" that will assist in making it possible to preserve habitats important to biological diversity. Apart from such affirmative steps, stewardship requires protective efforts. These include effective enforcement of procedures for preserving environments necessary to support other species, and for precluding undue injury to other species from improper human activity. *fn6" The core concept of prohibition of cruelty to animals is now part of a much broader legal recognition of the need for wise use of human power over diverse forms of nonhuman life.

 These legal requirements flowing from the concept of stewardship are fully consistent with continuing respect for constitutional rights of people, *fn7" although there is no requirement that any single specific action be taken regardless of ill consequences. *fn8" Adherence to principles designed to protect and foster traditionally recognized human rights is also crucial to continued effective species protection, which would hardly be supported were the need to protect species to be construed as authorizing roughshod disregard of constitutional guarantees.

 III

 On August 13, 1991, at approximately 6:00 p.m., the New York City ("NYC") fire department responded to a call that a cat had been trapped between two commercial buildings at 220 E. 138th Street in the Bronx. Efforts to extricate the cat were unsuccessful. The firefighters then made a report to the ASPCA which sent two ASPCA officers, defendants Roman and McDonald, to the scene. Roman and McDonald arrived at about midnight.

 The ASPCA officers determined that in order to rescue the cat they would have to break into the premises of plaintiff Suss's business, Gotham Plastics ("Gotham"), and break through the wall of the commercial building. They did not seek a warrant by telephone or otherwise, but enlisted the assistance of the firefighters to break through.

 A short while after the rescue operation had begun, Suss arrived, and observed that the two ASPCA officers and six firefighters had broken into his building. Within minutes angry words were exchanged. Suss grasped a metal pipe and appeared to seek to use it; a struggle ensued, and ultimately, Suss was restrained and arrested by the ASPCA officers and firefighters. Subsequently, Suss was transported to the 40th Precinct where he was charged with felonious assault, resisting arrest, and a violation of the Agriculture and Markets Law. *fn9"

 IV

 The Fourth Amendment applies to state agencies and those triggering state action by virtue of the due process guarantees of the Fourteenth Amendment; it bars unreasonable seizures and absent special circumstances it requires warrants issued by a neutral magistrate prior to searches or seizures for either administrative or criminal investigative purposes. Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967).

 The ASPCA, although a private entity, was a state actor in this situation because: (1) the ASPCA cannot carry out its statutory mission without governmental assistance and it relies on its contract with the city to operate, (2) its services involve governmental functions and (3) the break-in here was done under an assumption of sovereign powers of compulsion. See Edmonson v. Leesville Concrete Co., 114 L. Ed. 2d 660, 111 S. Ct. 2077, 2083 (1991); Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982); Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); United States v. Price, 383 U.S. 787, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966); United States v. Wiseman, 445 F.2d 792 (2d Cir.), cert. denied 404 U.S. 967, 30 L. Ed. 2d 287, 92 S. Ct. 346 (1971); Howard Gault Co. v. Texas Rural Legal Aid, 848 F.2d 544, 552-57 (5th Cir. 1988).

 In Edmonson v. Leesville, the Court recognized as state action a private party's exercise of specifically delegated public sector authority. Whether conduct constitutes state action under the Fourteenth Amendment or "under color of state law" pursuant to § 1983 presents the same question. See Rendell - Baker v. Kohn, 457 U.S. 830, 838, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1992). Joint interference of state agents and private parties with private rights constitutes state action attributable to both public and private sector participants. See generally, e.g., Soldal v. Cook Cty., 121 L. Ed. 2d 450; 113 S. Ct. 538; 1992 U.S. LEXIS 7835, *9-10 (1992); Georgia v. McCollum, 112 S. Ct. 2348; 120 L. Ed. 2d 33, 1992 U.S. LEXIS 3687, *22 (1992); Lugar, Adickes and Price, supra.

 V

 A seizure for purposes of the Fourth Amendment (applicable here through the Fourteenth Amendment) takes place when "some meaningful interference with an individual's possessory interest in . . . property" occurs. United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984); see Soldal v. Cook County, U.S. , Dkt. No. 91-6516 (Dec. 8, 1992). This would not apply to a marginal trespass such as entry into a private yard to rescue an animal in a tree. Here, by contrast, the ASPCA representatives and the New York City firefighters made forced entry, seized and in fact demolished a wall of a private building. Forced entry into and demolition of the outer wall of a private structure is of particular import. The Fourth Amendment specifically refers to the "right of the people to be secure in their . . . houses," a term applicable to houses used as dwellings or for seeking to make a living.


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