SCOTT JOHNSON; HARLENE HOYT; COVEY FIND KENNEL, LLC, Plaintiffs - Appellants, v. JUSTIN SMITH, D.V.M., in his official capacity as Animal Health Commissioner at the Kansas Department of Agriculture, Defendant - Appellee.
No. 23-3091
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
June 10, 2024
PUBLISH
FILED June 10, 2024 Christopher M. Wolpert Clerk of Court
THE BUCKEYE INSTITUTE; PACIFIC LEGAL FOUNDATION; NEW CIVIL LIBERTIES ALLIANCE; KANSAS PET ADVOCATES, Amici Curiae.
Samuel G. MacRoberts, Jeffrey S. Shaw, Kansas Justice Institute, Overland Park, Kansas, for Appellants.
Anthony J. Powell, Kurtis K. Wiard, Office of Attorney General Kris W. Kobach, Topeka, Kansas, for Appellee.
David C. Tryon and Alex M. Certo, The Buckeye Institute, Columbus, Ohio; filed a brief on behalf of Appellants, for Amicus Curiae The Buckeye Institute.
Daniel T. Woislaw, Alexander J. Smith, Pacific Legal Foundation, Sacramento, California; filed a brief on behalf of Appellants, for Amicus Curiae Pacific Legal Foundation.
Markham S. Chenoweth, New Civil Liberties Alliance, Washington, D.C.; filed a brief on behalf of Appellants, for Amicus Curiae New Civil Liberties Alliance.
Sheila Martinsen, Kansas Pet Advocates, Leawood State, Kansas (joined by Jason Petropoulos, Latham & Watkins LLP, New York, New York and Brittany M.J. Record, Latham & Watkins LLP, Washington, D.C.); filed a brief on behalf of Appellee, for Amicus Curiae Kansas Pet Advocates.
Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.
HARTZ, Circuit Judge.
Seeking declaratory and injunctive relief, Plaintiffs Scott Johnson and his wife Harlene Hoyt raise a Fourth Amendment challenge to the constitutionality of a Kansas statute that permits warrantless inspections of their homestead, where Mr. Johnson owns and operates a business that houses and trains bird dogs for their owners. See
warrantless inspections are reasonable under the Fourth Amendment (as applied to the States under the Fourteenth Amendment).
We first describe the Kansas statute at issue and summarize the controlling Fourth Amendment law before applying that law to the Kansas statute. We then briefly explain why the statute does not violate Plaintiffs’ right to travel.
I. THE KANSAS PET ANIMAL ACT
The Kansas Pet Animal Act (the Act) regulates those who house pet animals. It
The Act distinguishes eight different types of licensees: (1) a boarding- or training-kennel-operator license is required for anyone, except a licensed veterinarian, “who operates an establishment where four or more dogs or cats, or both, are maintained in any one week during the license year for boarding, training or similar purposes for a fee or compensation,”
harbor any seized stray, homeless, relinquished or abandoned animal or a person who acts as an animal rescuer, or who collects and cares for unwanted animals or offers them for adoption,”
The Act has expanded its reach over time. As originally enacted in 1972, it covered only animal “dealers,” pet-shop operators, pounds or animal shelters, and research facilities. 1972 Kan. Sess. Laws Ch. 201 §§ 2–5. In 1991 the Act was amended to include kennel operators, see 1991 Kan. Sess. Laws Ch. 152 §§ 21, 22 (defining kennel
operator as “any person who operates an establishment where animals are maintained for boarding or similar purposes for a fee or compensation“), and a 1996 amendment clarified that those who maintain dogs for training purposes (such as Mr. Johnson) are included in that definition, see 1996 Kan. Sess. Laws Ch. 151 § 6. Animal breeders, retail breeders, and hobby breeders were also added in 1996. See
A number of regulations promulgated under the Act apply generally across licensees, such as those relating to record keeping, see
But in other respects the various types of licensees are treated differently. For example, animal breeders and animal distributors are exempted from many housing and caretaking standards because they already have to comply with federal regulations under the Animal Welfare Act (AWA),
Other restrictions under the Act apply to some types of licensees but not others. See e.g.
distributor, animal-breeder, retail-breeder, hobby-breeder, or pet-shop-operator license);
All licensees are subject to inspection. First, an applicant must pass an initial inspection of its premises. See
Once an operator becomes licensed, officials may conduct routine inspections “at reasonable times with the owner or owner‘s representative present.”
Refusing inspection “shall be grounds for suspension or revocation of the license.”
Upon such application and a showing of cause therefore, the court shall issue the search warrant for the purposes requested.”
We now turn to considering whether the Kansas statute violates the Fourth Amendment.
The great majority of disputes under the Fourth Amendment concern investigations of crime. But for more than 50 years the Supreme Court has recognized that regulatory inspections are also constrained by that Amendment.
In Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 525–26 (1967), a San Francisco public-health housing inspector was making a routine annual inspection of an apartment building when the building manager informed him that the ground-floor tenant, Roland Camara, was using a portion of the floor as a personal residence, contrary to the occupancy permit for the building. The inspector confronted Camara and demanded that he be permitted to conduct an inspection. See id. at 526. Camara refused because the inspector did not have a search warrant. See id. City officials made several more attempts to make Camara comply with a local ordinance permitting warrantless inspections of any building by authorized city employees “at reasonable times . . . to perform any duty imposed upon them by the Municipal Code.” Id. (internal quotation marks omitted).
When ultimately a criminal complaint was filed against Camara, he filed a petition for writ of prohibition, which was reviewed by the United States Supreme Court. See id. at 527. The Court held that a warrantless search would violate the Fourth Amendment. See id. at 527–28. It reasoned that warrantless administrative searches “lack the traditional safeguards which the Fourth Amendment guarantees to the individual.” id. at 534. Without a warrant, “the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector‘s power to search, and no way of knowing whether the inspector himself is acting under proper authorization.” id. at 532. But the Court declined to impose a requirement that warrants may be issued only upon probable cause to believe a particular dwelling contains a violation of the code. See id. at 534. Rather, probable cause to issue a warrant “must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.” Id. at 538. Such standards may be based simply on the “passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area” and need not “depend upon specific knowledge of the condition of the particular dwelling.” Id. The court recognized, however, that warrantless inspections may be appropriate in an emergency. See id. at 539.
In the companion case of See v. City of Seattle, 387 U.S. 541, 542–43 (1967), the Court held that the principles in Camara extend to fire-code inspections of commercial premises that are not private dwellings. In See the owner of a commercial
warehouse sought reversal of his conviction for refusing to permit a fire-department representative to enter and inspect his warehouse without a warrant. See id. at 541. The Court saw “no justification for so relaxing Fourth Amendment safeguards where the official inspection is intended to aid enforcement of laws prescribing minimum physical standards for commercial premises.” id. at 543. “The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” Id.
scheme“; and (3) “the statute‘s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.” Id. (brackets and internal quotation marks omitted).1
Although the pre-Burger cases did not explicitly apply the test, they illustrate what its components mean and how they might be applied. We address each case in turn.
A. Burger and its Predecessors
In Colonnade Catering a catering business was licensed to serve alcoholic beverages in New York and was subject to federal tax obligations on liquor dealers. See 397 U.S. at 72. A federal agent for the Alcohol and Tobacco Tax Division of the Internal Revenue Service was a guest at a party at the business and noted a possible tax violation. See id. at 72–73. Federal agents later visited the premises and asked the president of the business to open a locked liquor storeroom, but he refused. See id. at 73. When he asked whether the agents had a search warrant, they said that they did not need one. See id. The president still refused to unlock the storeroom, so an agent
broke the lock and entered, removing liquor bottles suspected of being illegally refilled. See id. The catering business sued to recover the liquor
The Supreme Court considered “the long history of the regulation of the liquor industry during pre-Fourth Amendment days,” including laws in England and the colonies permitting warrantless inspections of liquor businesses. Id. at 75. And it observed that in 1791 (the year the Fourth Amendment was ratified) Congress imposed a liquor excise tax and permitted federal officials to enforce the tax by inspecting distillers and liquor importers without a warrant. See id. The Court concluded that “Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand,” and that “[t]he general rule laid down in See v. City of Seattle . . . is therefore not applicable here.” Id. at 76. Although the Court upheld the right to conduct a warrantless inspection, it said that the applicable statute did not authorize the forcible entry; it only made it an offense, punishable by fine, to refuse entry. See id. at 77.
In Biswell a policeman and a Federal Treasury agent visited the business of a pawn-shop operator federally licensed to deal in sporting weapons, inspected his books, and requested entry into a locked gun storeroom. See 406 U.S. at 312. When the operator asked whether the agent had a warrant, the agent responded that he did not need one because the inspection was authorized by law. See id. The operator, submitting to the assertion of authority, unlocked the storeroom, where the agent found and seized two sawed-off rifles that the operator was not licensed to possess.
See id. The operator appealed his conviction of dealing in firearms without having paid the required special occupational tax. See id. at 312–13.
The Supreme Court held that the warrantless inspection did not violate the Fourth Amendment, given the important government interests served by warrantless inspections of firearms dealers and their limited infringement on dealers’ reasonable expectations of privacy. See id. at 315–16. The Court acknowledged that federal regulation of firearms is “not as deeply rooted in history as is governmental control of the liquor industry.” Id. at 315. But relying on congressional findings, it said that “close scrutiny of [interstate firearm] traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders.” Id. It said that “inspection is a crucial part of the regulatory scheme, since it assures that weapons are distributed through regular channels and in a traceable manner and makes possible the prevention of sales to undesirable customers and the detection of the origin of particular firearms.” Id. at 315–16. Unlike See, in which “the mission of the inspection system was to discover and correct violations of the building code, conditions that were relatively difficult to conceal or to correct in a short time,” warrantless inspections were necessary in this context. Id. at 316. “Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible.” Id. Further, the Court said that the
warrantless searches in this context “pose only limited threats to the dealer‘s justifiable expectations of privacy,” because “[w]hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license,
In Barlow‘s an Occupational Safety and Health Act (OSHA) inspector entered the customer-service area of an electrical- and plumbing-installation business. See 436 U.S. at 309. The inspector informed the general manager that he wanted to conduct a search of the working areas of the business. See id. at 309–10. The search was authorized by OSHA, which permitted inspectors to conduct a warrantless search of the work area of any business within its jurisdiction for safety violations. See id. at 309. After the inspector said that he had not received a complaint and did not have a search warrant, the general manager refused to admit him. See id. at 310. The government obtained an order from a federal district court compelling the business to admit the inspector. See id. But a three-judge district court held that warrantless inspections authorized by OSHA violated the Fourth Amendment. See id.
The Supreme Court agreed. It distinguished Colonnade Catering and Biswell on the ground that they “represent responses to relatively unique circumstances.” Id.
at 313. “Certain industries,” such as liquor and firearms, it said, “have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise. . . . [W]hen an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.” Id. (citation omitted). The Court rejected the government‘s argument that the installation business was closely regulated because it was subject to the same general minimum-wage and maximum-hours laws that all businesses engaged in interstate commerce are subject to, observing that “the degree of federal involvement in employee working circumstances has never been of the order of specificity and pervasiveness that OSHA mandates.” Id. at 314.
The Court also rejected the government‘s argument that warrantless inspections were necessary to “preserve the advantages of surprise,” because businesses could correct their violations “during the interval between an inspector‘s initial request to search a plant and his procuring a warrant following the owner‘s refusal of permission.” Id. at 316. While acknowledging that OSHA “regulates a myriad of safety details that may be amenable to speedy alteration or disguise,” the Court noted that “warrants may be issued ex parte and executed without delay and without prior notice, thereby preserving the element of surprise,” and, since “the great majority of businessmen can be expected in normal course to consent to inspection without warrant,” it was unconvinced that a warrant requirement would “impose serious burdens on the inspection system or the courts.” Id. Moreover, given the modified probable-cause standard for administrative search warrants, the Court
“doubt[ed] that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions.” Id. at 321. Finally, the Court rejected the government‘s argument that the “incremental protections afforded the employer‘s privacy by a warrant” were only “marginal.” Id. at 322. It described the statutory authorization as “devolv[ing] almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.” Id. at 323. “A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” Id.
In Dewey a federal mine inspector attempted to inspect stone quarries to determine whether violations uncovered during a prior inspection had been corrected. See 452 U.S. at 597. The inspection was authorized by the Federal Mine Safety and Health Act (FMSHA), which permitted inspectors “to inspect underground mines at least four times per year and surface mines at least twice a year and to make followup inspections to determine whether previously discovered violations have been corrected,” granted them a “right of entry” into mines, and did not permit advance notice of inspections. Id. at 596 (internal quotation marks omitted). After the mine owner‘s president refused to permit the inspection unless the inspector obtained a warrant, the government filed a civil action to enjoin him from refusing to permit warrantless inspections. See id. at 597.
The Supreme Court held that warrantless inspections under the FMSHA were reasonable under the Fourth Amendment. See id. at 596. It described the governing law as follows: “Inspections of commercial property may be unreasonable if they are not authorized by law or are unnecessary for the furtherance of federal interests.” Id. at 599. And “warrantless inspections of commercial property may be constitutionally objectionable if their occurrence is so random, infrequent, or unpredictable that the owner has no real expectation that his property will from time to time be inspected by government officials.” Id. at 600. On the other hand, “a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Id.
The Court began its analysis of the FMSHA with the prerequisites that it viewed as undisputed: “As an initial matter, there is a substantial federal interest in improving the health and safety conditions in the Nation‘s underground and surface mines. In enacting the statute, Congress was plainly aware that the mining industry is among the most hazardous in the country . . . .” Id. at 602. Second, “Congress in this case could reasonably determine that a system of warrantless inspections was necessary if the law is to be properly enforced and inspection made effective. In designing an inspection program, Congress expressly recognized that a warrant requirement could significantly frustrate effective enforcement of the Act.”
Id. at 602–03 (citation and internal quotation marks omitted).
It then addressed “the only real issue before us“—“whether the statute‘s inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant.” Id. at 603. The Court held that it did: Regulation under the FMSHA is “sufficiently pervasive and defined that the owner of [a mine] cannot
The Court also rejected the operator‘s argument that warrantless inspections of stone quarries specifically are unconstitutional because stone quarries did not come under federal regulation until 1966 and therefore lacked a “long tradition of
government regulation.” Id. at 605 (internal quotation marks omitted). It explained that “it is the pervasiveness and regularity of the federal regulation that ultimately determines whether a warrant is necessary to render an inspection program reasonable under the Fourth Amendment.” Id. at 606. While the “duration of a particular regulatory scheme will often be an important factor in determining whether it is sufficiently pervasive,” making that the exclusive criterion would create “absurd results,” since emerging industries that pose serious health and safety risks, such as the nuclear-power industry, could never be made subject to warrantless inspections. Id.
Finally, in Burger the Supreme Court articulated the current legal framework for applying the closely-regulated-industry exception. New York City police officers entered an automobile junkyard and asked to see the owner‘s license to operate a vehicle-dismantling business and the record of automobiles and automobile parts in his possession. See 482 U.S. at 693–95 & n.3. The owner replied that he had neither a license nor such a record. See id. at 695. The officers announced their intention to conduct an inspection under
The Court reviewed its four precedents recognizing an exception to the warrant requirement for administrative searches of “commercial property employed in ‘closely regulated’ industries,” id. at 700, and held that the junkyard at issue was in such an industry, see id. at 703–04. It pointed to the extensive requirements imposed by New York‘s statute regulating automobile junkyards (which was enforceable by criminal penalties), including that the operator needed to obtain a license, needed to maintain records of the acquisition and disposition of vehicles and their parts and make the inventory and records available for inspection, and needed to display the business registration number on the business premises,
regulated, “an operator of a junkyard engaging in vehicle dismantling has a reduced expectation of privacy.” Id.
The next issue for the Court was whether warrantless-search authority was reasonable for this closely regulated industry. It drew from its four precedents that warrantless inspections of closely regulated businesses are reasonable only if the following three criteria are met: (1) “[T]here must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made“; (2) “the warrantless inspections must be necessary to further the regulatory scheme“; and (3) “the statute‘s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.” Id. at 702–03 (brackets and internal quotation marks omitted). It determined that each of those criteria was satisfied.
In determining that the first criterion was satisfied the Court pointed to a serious problem (motor-vehicle theft) that was tied to the regulated industry (automobile junkyards) and would likely be ameliorated by regulating the industry (by reducing the market for stolen vehicles and their parts). The Court relied on legislative statements and reports as support for the proposition that New York had a “substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry.” Id. at 708. And it said that the State could rationally believe that “regulation of the vehicle-dismantling industry reasonably serves the State‘s substantial interest in eradicating automobile theft,”
citing evidence that the industry provides “the major market for stolen vehicles and vehicle parts.” Id. at 709.
As for the second criterion—the need for warrantless inspections—the Court said that because “stolen cars and parts often pass quickly through an automobile junkyard, frequent and unannounced inspections are necessary in order to detect them.” Id. at 710 (internal quotation marks omitted). And the third criterion—that the statute provided a constitutionally adequate substitute for a warrant—was satisfied because the state law informed operators of automobile junkyards that inspections will be made on a regular basis by police officers, notified them of how to comply with the statute, permitted inspections only during “regular and usual business hours,” and “narrowly defined” the scope of permissible searches to include only records and vehicles or vehicle parts subject to record-keeping requirements. Id. at 711–12 (internal quotation marks omitted).
B. Patel
Nearly three decades after Burger, the Supreme Court again addressed the closely-regulated-industry exception in City of Los Angeles v. Patel, 576 U.S. 409 (2015), this time emphasizing the limits to the exception. Motel operators sued the City of Los Angeles challenging the constitutionality of a provision of the municipal code compelling “every operator of a hotel to keep a record containing specified information concerning guests and to make this record available to any officer of the Los Angeles Police Department for inspection on demand.” Id. at 412 (brackets and internal quotation marks omitted). The Court held that hotel operators could not be compelled to make their guests registries available to the police without being “afforded an opportunity to have a neutral decisionmaker review an officer‘s demand to search the registry before he or she faces penalties for failing to comply.” Id. at 421.
The Court said that “[t]o classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule.” Id. at 424–25. It explained that hotels are not a closely regulated industry because, as in Barlow‘s, requirements that hotels “maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards” do not “establish a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses” and “that puts hotel owners on notice that their property will be subject to periodic inspections undertaken for specific purposes.” Id. at 425 (internal quotation marks omitted). “If such general regulations were sufficient to invoke the closely regulated industry exception,” wrote the Court, “it would be hard to imagine a type of business that would not qualify.” Id. The Court compared those regulations “to the widely applicable minimum wage and maximum hour rules that the Court rejected as a basis for deeming the entirety of American interstate commerce to be closely regulated in Barlow‘s.” Id. (internal quotation marks omitted). The Court was unpersuaded by the City‘s citation to historical regulations that treated hotels as public accommodations because “laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches.” Id. at 426.
Moreover, the Court found that two of Burger‘s criteria for a search of a closely regulated business to be reasonable were not satisfied. (It assumed that the substantial-government-interest requirement was satisfied.) See id. Following Barlow‘s, it saw no reason to think that a warrant requirement would undermine searches of hotel registries “by giving operators a chance to falsify their records.” Id. at 427. The Court noted that officers could conduct surprise inspections through ex parte warrants, and registries could be guarded pending a hearing on a motion to quash. See id. Although the dissent claimed that such procedures would be overly burdensome given the large number of hotels in the City, the Court said that there was “no basis to believe that resort to such measures will be needed,” since the City cited no evidence that hotel operators would regularly refuse to cooperate. Id.; see id. at 422. In addition, the inspection provision, which required every hotel operator to make the records “available to any officer of the Los Angeles Police Department for inspection on demand,” id. at 412 (internal quotation marks omitted),
We highlight two important features of the Court‘s application of the closely-regulated-business doctrine in Patel. First, the Court explicitly declined to consider the intrusiveness of the specific inspection provision under challenge in deciding whether the businesses had a reasonable expectation of privacy, saying that “[t]he City wisely refrains from arguing that [the challenged regulation] itself renders hotels closely regulated.” Id. at 425. Otherwise, the inspection provision would be self-justifying. See Free Speech Coal., Inc. v. Att‘y Gen., 825 F.3d 149, 170 (3d Cir. 2016) (“We are doubtful that the Government can create the reduced expectation of privacy of a closely regulated industry to justify warrantless inspections by simply mandating those inspections, particularly where that industry existed long before the regulation‘s enactment.“).
Second, the Court observed that every industry that it had held to be closely regulated was one that would pose a threat to public welfare if left unregulated. Unlike those industries, “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare.” Patel, 576 U.S. at 424. The Court said that the absence of such a threat argued against hotels being considered closely regulated. See id.2
We would add, however, that by the same token, as the Court observed in Dewey, the existence of such a threat to the public welfare can also argue in the other direction. If the new industry presents a substantial new threat (such as the nuclear-power industry), it could still be considered closely regulated despite the absence of any history specific to the industry. See Dewey, 452 U.S. at 606. The rationale for considering the dangerousness of an industry to support or reject its characterization as closely regulated would seem to be that in determining whether a business owner can reasonably expect privacy, those who engage in dangerous activities can more likely expect to be subject to intrusive regulation and inspection.
We conclude from Patel and its precursors, particularly Burger, that the relevant factors for determining whether an industry is closely regulated are the history of warrantless inspections in the industry, the extensiveness and intrusiveness of the regulatory scheme, whether other jurisdictions impose similar regulatory schemes, and “whether the industry would pose a threat to the public welfare if left unregulated.” Zadeh v. Robinson, 928 F.3d 457, 465 (5th Cir. 2019).
We now turn to the specific challenges made by Plaintiffs to warrantless inspections under the Kansas Pet Animal Act.
III. APPLICATION TO THE KANSAS PET ANIMAL ACT
Plaintiffs complain that warrantless inspections under the Kansas Pet Animal Act violate the Fourth Amendment as applied to Mr. Johnson‘s training kennel. Our review of the district court‘s ruling on a motion to dismiss is de novo, “accepting all well-pleaded allegations of the complaint as true and considering them in the light most favorable to the nonmoving party.” Big Cats of Serenity Springs, Inc. v. Rhodes (Big Cats), 843 F.3d 853, 858 (10th Cir. 2016) (brackets and internal quotation marks omitted).
A. Defining the Industry
In disputing whether Mr. Johnson‘s business is part of a closely regulated industry, the parties disagree on how to categorize that business. Plaintiffs alleged that Mr. Johnson holds a “training kennel license.” Aplt. App., Vol. I at 29. They argue that his business is the “training and handling of hunting dogs,” which, they say, is not closely regulated, Aplt. Br. at 22, and that the warrantless inspection regime does not satisfy the Burger criteria as applied to that industry. The government argues that there is no meaningful difference between the various types of businesses that house animals and are governed by the Act. It therefore relies on authority supporting warrantless searches under other statutes regulating businesses that house animals.
We agree with the government insofar as it is saying that we should not exempt a business from a reasonable regulatory scheme simply because it may have some idiosyncratic feature that could argue against some aspect of the scheme. In reviewing challenges to a warrantless-inspection regime, courts have on occasion declined to adopt the challenger‘s categorization of its business as belonging to a distinct subset of the regulated industry. For example, the Supreme Court rejected a Fourth Amendment challenge “as applied” to sub-industry in Dewey, 452 U.S. at 605–06. The stone-quarry operator contended that it should not be subject to an inspection regime that applied to underground and surface mines. See id. at 596–97. But the only distinction the operator drew between stone quarries and general mining was that stone quarries had only recently come under regulation (15 years before the decision).
Although Congress did not make explicit reference to stone quarries in these findings, stone quarries were deliberately included within the scope of the statute. Since the Mine Safety and Health Act . . . is narrowly and explicitly directed at inherently dangerous industrial activity, the inclusion of stone quarries in the statute is presumptively equivalent to a finding that the stone quarrying industry is inherently dangerous.
Id. at 602 n.7.
Similarly, in Calzone v. Olson, 931 F.3d 722, 724 (8th Cir. 2019), a dump-truck operator challenged a statute authorizing warrantless inspections of “commercial motor vehicles.” The operator argued that he was not part of the closely regulated commercial-trucking industry because his dump truck, which was used only “in association with his ranch,” was exempt from most regulations. Id. at 725–26. The court ruled that he was within the closely regulated industry because he was still “subject to a broad range of regulations that include height, weight, and length restrictions, licensing standards, state-conducted inspection requirements, and safety standards,” and that the state had “a substantial interest in ensuring the safety of the motorists on its highways and in minimizing damage to the highways from overweight vehicles, and that interest does not dissipate simply because [the operator]‘s commercial activity is on behalf of his own ranch rather than for hire.” Id. at 726 (citation and internal quotation marks omitted). It therefore determined that the statute satisfied the Burger criteria as applied to him. See id. at 726–27.
On the other hand, a sub-industry challenge may succeed when the challenger can show that the sub-industry is significantly different from the general industry with respect to features that are relevant to inspections. Because the closely-regulated-industry exception “is narrow,” “courts must not define the industry at issue at too high a level of generality.” Mexican Gulf Fishing Co. v. U.S. Dep‘t of Com., 60 F.4th 956, 968 (5th Cir. 2023). In that case the Fifth Circuit reversed the district court, which held that a regulation requiring charter boats to install a monitoring system that transmits GPS location to the government did not violate the Fourth Amendment because the “general fishing industry is closely regulated.” Id. The Fifth Circuit, stating that the GPS-locator requirement “appears to be a search,” id. at 967, decided that the charter-boat fishing industry, as opposed to the fishing industry in general, was the relevant industry because “federal statutes and regulations distinguish between fishing and charter-boat fishing” and “the record shows there are significant differences between the charter-boat fishing industry and the general commercial fishing industry,” such as evidence that charter-boat fishing makes up a minute percentage of overall fishing, id. at 969. The suggestion that overfishing by the fishing industry would pose a threat to public welfare if left unregulated did not show that charter boats were part of a closely regulated industry. See id. at 970.
Here, Plaintiffs contend that Mr. Johnson‘s business should be distinguished from kennels operated by breeders, distributors, and pet shops. Those other kennels may need to be stringently inspected
At this stage of the proceeding we must credit the allegation in the complaint that “training kennels and their operations are substantially, completely, and markedly different from other animal-related operations like animal breeding, animal distribution, and pet shop sales for a number of reasons, not the least of which is that dog owners already hold trainers and handlers accountable.” Aplt. App., Vol. I at 38.3 And there is substantial evidence that this distinction is widely recognized. As we have observed, Kansas treats these types of kennels as a distinct category of business, requiring them to obtain boarding- or training-kennel licenses rather than any of the other types of licenses created by the Act. And statutes in a number of jurisdictions, including the federal
intrusively. Thus, we limit our Fourth Amendment analysis to the industry of boarding or training kennels.
B. Whether Boarding or Training Kennels Are Closely Regulated
Applying the above law, we cannot say that the information available on the government‘s motion to dismiss establishes that the boarding- or training-kennel industry qualifies for the “narrow exception” to the warrant requirement for closely regulated businesses. Patel, 576 U.S. at 424. After considering the history of the inspection regime, the extent of regulations on boarding or training kennels, regulation by other jurisdictions, and the risk to public welfare, we do not think we can infer at this stage of the proceedings that Plaintiffs “cannot help but be aware that [their] property will be subject to periodic inspections undertaken for specific purposes.” Burger, 482 U.S. at 705 n.16 (internal quotation marks omitted).
To begin with, as previously noted, in conducting our analysis we do not look at
Still, “the number of regulations certainly is a factor in the determination whether a particular business is ‘closely regulated.‘” Burger, 482 U.S. at 705 n.16. The Kansas Commissioner has promulgated detailed regulations under the Act regarding the handling and care of animals. The regulations impose standards for housing, see
As Patel stated, however, laws regulating an industry (such as “laws obligating inns to provide suitable lodging to all paying guests“) “are not the same as laws subjecting [an industry] to warrantless searches.” Id. at 426. The government must show more than just
An industry is more likely to be considered closely regulated if the federal government or the great majority of States have adopted similar inspection regimes. See Burger, 482 U.S. at 705; id. at 698 n.11; V-1 Oil Co. v. Wyoming Dep‘t of Env‘t Quality, 902 F.2d 1482, 1486 (10th Cir. 1990) (upholding warrantless inspection of underground gasoline storage tanks after considering federal regulations as showing that gasoline dealers are pervasively regulated). The government relies on the federal
First, consider the most pervasive law on the subject, the
Nor does regulation by other States suggest that boarding- or training-kennel operators are on notice that their property is subject to unannounced warrantless inspections. Although we have identified 34 States with regulatory schemes targeting pet-animal businesses, those who operate boarding or training kennels appear to be subject to unannounced warrantless inspections (beyond those for initial licensure or in response to a complaint) in only nine of those States.5 Boarding- or training-kennel
therefore could expect similar inspections in less than a fifth of the States (and Plaintiffs could expect similar inspections in only eight States, because Arizona‘s statute specifically excludes kennels that train hunting dogs, see
Finally, we note that three of the above-described state statutes specifically exclude kennels that train hunting dogs. See
Finally, we note that Plaintiffs have alleged that “[d]og training and handling isn‘t an intrinsically or inherently dangerous activity” and that, unlike other businesses that house dogs, dog owners “hold trainers and handlers accountable.” Aplt. App., Vol. I at 38. The government has not argued otherwise, nor could it at this stage of the proceeding in which we must take Plaintiffs’ allegations as true.
In sum, the relevant factors—the history of warrantless searches in the industry, the extensiveness of the regulatory scheme, whether other jurisdictions impose similar regulatory schemes, and the inherent danger presented by the industry,
C. Burger Criteria
Even if Mr. Johnson‘s kennel is part of a closely regulated industry, warrantless inspections are not justified unless all three Burger criteria are satisfied. As set forth above, for warrantless searches of a closely regulated industry to be reasonable under the Fourth Amendment, the regulatory scheme must be informed by a substantial government interest, warrantless inspections must be necessary to further the regulatory scheme, and the warrantless inspection regime must provide a constitutionally adequate substitute for a warrant. See Patel, 576 U.S. at 426. We will assume that the third criterion has been satisfied7 and focus only on the first two.
Here, Plaintiffs have alleged that there is no sufficient government interest justifying the regulation of boarding or training kennels, because dog training and handling is not dangerous, and training kennels are accountable to dog owners. This makes sense because the dogs that Mr. Johnson houses and trains are owned by customers who have an interest in maintaining each dog‘s health and would likely take their business elsewhere if their dogs were mistreated. There may be contrary evidence establishing a real need to police such kennels, but such evidence is not available on a motion to dismiss for failure to state a claim.9
The necessity of warrantless searches is not apparent from the face of the Kansas regulations. To begin with, we note that a number of violations would be very difficult to quickly correct or conceal. See, e.g.,
To be sure, violations of some requirements could be more readily detected through surprise inspections—such as requirements that licensees must regularly clean all enclosures, food and water receptacles, and surfaces with which animals come into contact, see
Moreover, to establish that warrantless searches are necessary, the government
In short, dismissal of Plaintiffs’ Fourth Amendment claim was improper because Plaintiffs’ complaint (unsurprisingly) does not establish that the closely-regulated-industry exception applies and the Burger factors are satisfied. This conclusion also requires reversal of the dismissal of Plaintiffs’ claim that the Kansas Pet Animal Act unconstitutionally conditions issuance of a license on waiving Fourth Amendment rights. The government does not dispute that dismissal of Plaintiffs’ unconstitutional-conditions claim cannot be affirmed unless dismissal of their Fourth Amendment claim was proper. Its argument was only that there had been no Fourth Amendment violation. See Aplee. Br. at 45 (“If no constitutional rights have been jeopardized, no claim for unconstitutional conditions can be sustained.” (brackets and internal quotation marks omitted)); 5 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 10.2(c), at 60 (6th ed. 2022) (“[T]he right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee‘s submission to a condition prescribed by the state which is hostile to the provisions of the federal Constitution.” (internal quotation marks omitted)).
III. RIGHT TO TRAVEL
The Act provides that the failure of an owner or licensee, or a designated representative, to make the premises available for inspection within 30 minutes of the inspector‘s arrival results in a $200 no-contact fee. See
Mr. Johnson regularly travels “throughout the Midwest, and sometimes beyond” to attend competitive events for dogs. Aplt. App., Vol. I at 18. Ms. Hoyt sometimes accompanies him on these trips. When Plaintiffs are both gone at the same time, Mr. Johnson has someone assist with caretaking responsibilities at the homestead.
The “constitutional right to travel from one State to another is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489, 498 (1999) (internal quotation marks omitted). Its protections include “the right of a citizen of one State to enter and to leave another State.” Id. at 500. Plaintiffs assert their claim under the Fourteenth Amendment‘s Due Process and Privileges or Immunities Clauses. But because of the “unquestioned historic acceptance of the principle of free interstate migration,” the Supreme Court has “not felt impelled” to locate it “definitively in any particular constitutional provision.” Att‘y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 902 (1986). We therefore reject Plaintiffs’ argument that the two clauses require distinct analysis and that the government waived any objection to their Privileges or Immunities claim by not mentioning that clause in its motion to dismiss. See Maehr v. U.S. Dep‘t of State, 5 F.4th 1100, 1118 n.2 (10th Cir. 2021) (per curiam), cert. denied, 142 S. Ct. 1123 (2022) (“The textual source of the right of interstate travel is not material here. For our purposes, it is sufficient that the right is ‘fundamental,’ and restrictions on it are subject to strict scrutiny.” (citations omitted)).
The right to interstate travel is “not unlimited.” Abdi v. Wray, 942 F.3d 1019, 1029 (10th Cir. 2019). “[G]overnment conduct that does not directly and substantially ‘impair the exercise of the right to free interstate movement’ does not amount to a constitutional violation.” Id. at 1030 (quoting Saenz, 526 U.S. at 501). In Abdi a citizen‘s placement on the Selectee List subjected him to enhanced security screening at airports. Even though this imposed a burden on him and on one occasion prevented him from boarding a plane, resulting in a two-day delay in his travel, his constitutional rights were not violated. See id. at 1023, 1030–31. We explained that he had “not alleged that his delays substantially exceed those experienced by many air travelers nor preclude his ability to travel.” Id. at 1031.
Here, the regulations do not impose burdens beyond those commonly borne by owners of businesses who travel away from the locations of their businesses. If the owner leaves the business unattended, the business may lose potential customers who stop by to inquire about the products or services offered, may miss deliveries of essential products, and may not be able to deal adequately with unexpected misfortune, such as fire, flood, or security breaches. Plaintiffs complain that Mr. Johnson prefers not to designate a representative other than Ms. Hoyt to allow government inspections; but the consequences of his refusal to designate an agent are not different in kind from those that would result if he declined to hire someone to take care of his business or property in his absence. There is nothing special about the resulting burden on his interest in traveling.10
IV. CONCLUSION
We REVERSE the judgment below as to Plaintiffs’ Fourth Amendment and Fourth Amendment unconstitutional-conditions claims. We AFFIRM the dismissal of Plaintiffs’ right-to-travel claim.