Whilst I’m researching for my next article on why, even if we can’t revive the Fourth Amendment, we shouldn’t put the last few syllables of it through the shredder, I thought I’d write about something a little lighter.

Since I have a preliminary hearing tomorrow and need to finish prepping, I wanted to find something I could claw my way through in less than 15 minutes.

Okay, not really.  I mean, on the one hand, it’s lighter: I don’t have to do any significant research.  And it’s true it shouldn’t take me much longer to write this than 15 minutes.  On the other hand, it’s another story that shows just how much of a mess we’re really in.

I could go all Perry Mason with this one and use the title, “The Case of the Felonious Feline,” but people in Perry Mason’s day seldom concerned themselves with such trivialities.  Besides, when Professor Hill’s cat was accused of chasing neighbor Elizabeth Eisenbach’s cat down the street during a game of Kick the Kitty while the Professor was on vacation, it only resulted in misdemeanor charges against the Professor.

Or I could have titled it “The Case of the Fat Cat,” since the Professor’s cat — who answers to the name of “Cameron” when it’s not playing Spank the Kitty — is apparently an overweight, 8-year-old house cat.  A little young for “The Case of the Spinster Sphinx” and, besides, I don’t know Cameron’s gender.  “The Case of the Crazy Caterwauler” doesn’t work, either, since there was no accusation of caterwauling, although I’ve yet to see a cat fight that didn’t include some.

As much fun as it was trying to come up with a title, the truth is that the case further demonstrates why there’s a need to put limits on the government.  As you all know, that’s a subject that is near and dear to my heart.

The City of Kalamazoo, Michigan, apparently has some fairly weird laws on the books regarding animals.  For example, it is apparently a misdemeanor — not an infraction, but a misdemeanor with a real criminal record and a real jail sentence as a potential punishment — not that a simple thing like a criminal record could ever impact anyone’s ability to get a job or a professional license — a misdemeanor to own a cat that fights with other cats.  In addition to making it apparently illegal to have a cat that fights with other cats, Kalamazoo also charges owning a dog that barks as a misdemeanor.

It’s not entirely clear, but I believe to be a legislator in Kalamazoo, you first have to prove you flunked biology.  Or maybe you just have to swear you’ve never seen a cat or a dog and once in awhile you have to press a case that proves it.

Come to think of it, I live next to a neighbor whose dog used to bark 24/7.  Maybe this isn’t such a bad idea after all….

Seriously, though — no, I really mean it this time — the crime goes like this:  Apparently, Cameron the cat was chasing another cat, William.  William got scratched up, as sometimes happens when two cats fight one another.  Just how badly William was hurt isn’t totally clear to me, but badly enough to involve a vet.  Someone called animal control.  It might have been William’s owner; it might have been the vet.  That also isn’t clear.

What is clear is that a little less than a month later, Cameron’s owner, an associate professor of anthropology and environmental studies (so you see what an evil person she is!), was charged with harboring a dangerous animal.

The uproar over the charges — or maybe over the attack — got pretty silly.  As one person writing to the editor of the paper put it:

Okay, here are the facts so far as we know it: William was outside and minding his own business, when attacked by another cat who may, or may not be, Cameron. Cameron was then charged through his owner, Ms Hill, by Williams’ owner, Ms Eisenbach. William was again outside minding his own business, and was then run over by a car, two weeks later. Ms Eisenbach then asserted that Camaron was also the perpertrator of that crime, until Ms Hill pointed out that a) Camaron had been inside since the first incident, and b) Camaron does not drive. NOW it’s been asserted that Ms Hill waited patiently in her car for two weeks for William to be let outside again, so that she could then run him over in the street in a vicious circle of revenge. It has also been pointed out that the former city attorney lives next to the dearly departed William, and that HE ALSO DRIVES. What started out as a simple case of a cat who likes to pee outside, has now turned into a case of ANIMAL CRUELTY and MURDER. Stay tuned to this story, it may go to CNN at any moment.

As this comment states, some of the comments were quite silly.  It’s amazing to see that some people had no problem at all with the fact that owning a cat that got into a fight with another cat could result in misdemeanor charges.  In this midst of a national recession with numerous governments arguing that they can barely sustain the most basic of services (including jails), these noble citizens saw nothing untoward with their prosecutors preparing for a trial over a cat fight.

After all, one cat fighting with another is such a rare event.

There’s just so much that’s wrong with this case, I don’t really know where to start.  So I’ll just let another of the comments from one of the stories do it for me:

Okay, so the MLive jury has spoken, the majority don’t believe cats should go outside! Let’s step back from this for a minute. Is this law reasonable as written? How many cat fights does it take for the city attorney to deem one’s feline as a repeat offender and worthy of prosecution? Hello, this law was intended for animals with the propensity to attack humans and cause great bodily harm- not for felines who tend to have hissing matches and cause fur to fly with a neighbor cat. It seems to me that it’s not what you know, but who you know that can make the difference here. If your neighbor is the former city attorney and makes a call for you down to his former workplace, your neighbor and her cat can be threatened with prosecution.

Abuse of discretion, abuse of discretion, abuse of discretion.  And  a little arbitrary misuse of power.

Oh, well.  As long as the owner’s cat doesn’t get into any more fights this summer, her case will be dismissed.

So I guess all’s well that ends well.

6 comments

  1. Pingback: Every day is Caturday | a public defender
  2. Pingback: Every day is Caturday | a public defender
  3. I see that you got into it with Professor Kerr and his deep denial of his pro-prosecutor bias. Professor Kerr tends to make fundamental assumptions about the Fourth Amendment and treat them as axiomatic and beyond dispute. On the basis of these fundamental assumptions he builds mightly edifices of logic which are beautiful to behold, in and of themselves, but undermined by fissures in the foundations. When challenged at his blog, professor Kerr does not want to talk about the fundamentals because (depending upon what day you comment):

    – the fundamentals are a done deal (and everybody important knows that);

    – the fundamentals are an area which do not interest him;

    – discussion of the fundamentals is apt to become passionate, which is scary and renders such discussion inappropriate for law professor types;

    and/or

    – 4A issues are best resolved through battling law review articles and not hegbloggian dialectic.

    Of course, all of that is ridiculous, but Professor Kerr is the best we got in the 4A blogosphere these days, but, so far as I can tell, he is the only real game in town.

    In your case the fundamental he wants to ignore is the warrant requirement. This isn’t the first time he ignores it. To the extent that we can read the tea leaves to divine his opinion on this fundamental issue upon which he deigns not to speak directly (warrant requirement gone, done deal donchaknow), what he thinks is probably something along these lines:

    Warrants were a special and narrow sub-category of 18th century searches and seizures, which had been abused and required a special rule. The other searches and seizures, which were not pursuant to warrant merely needed to be reasonable because these other searches and seizures had not been abused./Kerrmode

    If this is what he thinks (and we may never know), it is clearly incorrect. Look at it this way:

    If the rule was merely against the special form called the “Warrant” then government agents could simply circumvent the probable cause and neutral magistrate requirements and particularity and other implicit requirements of the Warrant clause by calling their Warrant something else. Perhaps a Non-Warrant-Form Permission to Search and Seize. Even if the court somehow deemed a Non-Warrant-Form Permission as a Warrant in substance, but not name, then the government could skip these requirements by simply not providing a writing at all. Even if the Court found an Oral Non-Warrant-Form permission to be a warrant, then the instructions could be made tacit. “Mr. Policeman: I am not forbidding you to attach a GPS device to Prrofessor Kerr’s carriage.”

    Of course this is incorrect. It is a Constitution we are expounding. Warrants were considered to be required for any search or seizure the government agents planned in advance and deliberately in the 18th century. They were not the exception. They were the rule. Otherwise, why would a government agent ever seek a warrant? Under the prosecutor worldview the choice 4A supposedly gives government officials is: (i) you can seize if a magistrate is convinced that you have PC; or (ii) you can search if people who do searches for a living (that is, the police) think is reasonable. However, that is a ridiculous chous to hand government officials. It would not just render the Warrant clause superfluous, but way, way superfluous.

    Thing is, there is some indication that SCOTUS knows this, or at least that they knew it up until 9/11/01. Professor Kerr’s undiscussable axiom, in this case, is not supported in law.

  4. I see that you got into it with Professor Kerr and his deep denial of his pro-prosecutor bias. Professor Kerr tends to make fundamental assumptions about the Fourth Amendment and treat them as axiomatic and beyond dispute. On the basis of these fundamental assumptions he builds mightly edifices of logic which are beautiful to behold, in and of themselves, but undermined by fissures in the foundations. When challenged at his blog, professor Kerr does not want to talk about the fundamentals because (depending upon what day you comment):

    – the fundamentals are a done deal (and everybody important knows that);

    – the fundamentals are an area which do not interest him;

    – discussion of the fundamentals is apt to become passionate, which is scary and renders such discussion inappropriate for law professor types;

    and/or

    – 4A issues are best resolved through battling law review articles and not hegbloggian dialectic.

    Of course, all of that is ridiculous, but Professor Kerr is the best we got in the 4A blogosphere these days, but, so far as I can tell, he is the only real game in town.

    In your case the fundamental he wants to ignore is the warrant requirement. This isn’t the first time he ignores it. To the extent that we can read the tea leaves to divine his opinion on this fundamental issue upon which he deigns not to speak directly (warrant requirement gone, done deal donchaknow), what he thinks is probably something along these lines:

    Warrants were a special and narrow sub-category of 18th century searches and seizures, which had been abused and required a special rule. The other searches and seizures, which were not pursuant to warrant merely needed to be reasonable because these other searches and seizures had not been abused./Kerrmode

    If this is what he thinks (and we may never know), it is clearly incorrect. Look at it this way:

    If the rule was merely against the special form called the “Warrant” then government agents could simply circumvent the probable cause and neutral magistrate requirements and particularity and other implicit requirements of the Warrant clause by calling their Warrant something else. Perhaps a Non-Warrant-Form Permission to Search and Seize. Even if the court somehow deemed a Non-Warrant-Form Permission as a Warrant in substance, but not name, then the government could skip these requirements by simply not providing a writing at all. Even if the Court found an Oral Non-Warrant-Form permission to be a warrant, then the instructions could be made tacit. “Mr. Policeman: I am not forbidding you to attach a GPS device to Prrofessor Kerr’s carriage.”

    Of course this is incorrect. It is a Constitution we are expounding. Warrants were considered to be required for any search or seizure the government agents planned in advance and deliberately in the 18th century. They were not the exception. They were the rule. Otherwise, why would a government agent ever seek a warrant? Under the prosecutor worldview the choice 4A supposedly gives government officials is: (i) you can seize if a magistrate is convinced that you have PC; or (ii) you can search if people who do searches for a living (that is, the police) think is reasonable. However, that is a ridiculous chous to hand government officials. It would not just render the Warrant clause superfluous, but way, way superfluous.

    Thing is, there is some indication that SCOTUS knows this, or at least that they knew it up until 9/11/01. Professor Kerr’s undiscussable axiom, in this case, is not supported in law.

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