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That, essentially, is the question before the Massachusetts Supreme Court in the case of  COMMONWEALTH vs. HEATHER M. DUNCAN, SJC-11373. Oral arguments were held this week.

From published reports and from the extensive court records (including the brief submitted by the Commonwealth, from which the quotes below are taken), it can reasonably be concluded that Heather Duncan’s family, living inside a walled compound, was troubled.

Ms. Duncan, her husband and children had rented an apartment building in Lynn, MA, and were the only occupants of the building. They had built a high privacy fence around the entire perimeter of the property, which was secured with a padlock so that neither the driveway nor the front door was  accessible from the street.

In the front yard, inside the fence, were three dog houses.

By early 2011, Ms. Duncan was estranged from her husband and had sought a protective order. She requested that police accompany her to the home to serve the court order on him.  At the time, the police officers noticed three dogs inside the fence, who seemed thin and unhealthy. In response to their questions, she said the dogs belonged to her and her husband, and that she would take care of them.

About a week later, on January 8, 2011, a cold, windy and snowy day, police were again called to the home, this time by a friend of Heather Duncan’s. The woman reported that she had come by to retrieve a snow shovel, saw no one at home but observed two dead and one live dog inside the fence.

One of the officers sent to the home heard “whimpering and very hoarsely and weakly barking as if it had almost lost its voice; it sounded like an animal in distress.”  By climbing on a snow bank on the neighboring property, the officers were able to look into the fenced yard and observe two dead dogs who “appeared frozen, leashed to the fence, and partially in and outside of their respective doghouses.” The live dog, also leashed, was emaciated and barking. No food or water was in sight.

Because the gate was padlocked, the officers couldn’t knock on the front door to find out if anyone was home. They used sirens, air horn and emergency lights on the police cruiser to try to alert the owner. They searched utility records in an attempt to locate the phone number of the owner, without success.

Unable to rouse anyone in the house, the police, following protocol, called the fire department. Those officials used bolt cutters to remove the padlock securing the fence, so that the police (and later, animal control officers) could enter the yard, rescue the one dog and remove the bodies of the two dead animals. The officer at the scene testified that he took action because two dogs were dead, the weather was extremely inclement, and the third dog was near death, emaciated, and in distress. Another officer said the dog “‘didn’t sound healthy, and it sounded like it needed our help.'”

Ms. Duncan was charged with animal cruelty. She asked the court to throw out the charges, arguing that the government officials’ actions in breaking the lock and entering her property were illegal because they had not first obtained a search warrant from a judge.

The Fourth Amendment to the US Constitution prevents unreasonable searches and seizures, and generally requires that a search warrant be issued by a judge, based on probable cause and which particularly describes the place to be searched and the person or things to be seized.

Over the years, exceptions to the warrant requirement have developed in the law.  For example, police officers may seize evidence that is in “plain view” without getting a warrant. Then there are emergency situations, so-called “exigent circumstances,” in which the officer has a compelling need to take action but has no time to obtain a warrant.

Greatly simplified, the question for the Massachusetts court to decide is whether saving the life of an animal is an “emergency” sufficient to allow police to proceed without first getting a warrant.

The case has attracted national attention among animal lawyers, and amicus curiae (“friend of the court”) briefs in support of the warrantless search have been filed by many national animal advocacy organizations, as well as by various state authorities. The Massachusetts animal control officers association and the Chiefs of Police also support the search.

These Friend of the Court briefs make for fascinating reading.  Because their function is to provide background and policy arguments to support a position, these briefs provide an overview of the issues facing, and the strategies used by, attorneys who wish to use the legal system to improve the lives of animals.

With the caveat that, because the legal system is built on precedents, judges are generally more favorable to arguments based on existing law, here are several  examples of arguments in the case: –    There is a “growing consensus that animals are living beings deserving of protection”   (ASPCA) –    Arguing in the alternative, animals are both a form of life and a form of property to which the emergency exception applies; and that applying the exception to animals protects the health and safety of humans (MA Attorney General) –    The emergency exception should extend to animals because animals are a special class of property that courts and legislatures have deemed worthy of special treatment (HSUS, Best Friends) –    “Massachusetts, always a leader in animal rights, has a strong public policy that expects a police officer to enter private property to render assistance or to prevent serious injury or death to animals.” (MA Chiefs of Police)

You can read the briefs in full at the court’s website. A decision is expected in about 4 months.

Bee Friedlander


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