Appellate Case: 23-3091 Document: 010111062673 Date Filed: 06/10/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 10, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SCOTT JOHNSON; HARLENE HOYT;
COVEY FIND KENNEL, LLC,
Plaintiffs - Appellants,
v. No. 23-3091
JUSTIN SMITH, D.V.M., in his official
capacity as Animal Health Commissioner
at the Kansas Department of Agriculture,
Defendant - Appellee.
------------------------------
THE BUCKEYE INSTITUTE; PACIFIC
LEGAL FOUNDATION; NEW CIVIL
LIBERTIES ALLIANCE; KANSAS PET
ADVOCATES,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:22-CV-01243-KHV-ADM)
_________________________________
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.
Appellate Case: 23-3091 Document: 010111062673 Date Filed: 06/10/2024 Page: 2
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 Kan. Stat.
Ann. (K.S.A.) § 47-1709(b). They also claim that their constitutional right to travel is
infringed by a statutory requirement that they make the premises available for inspection
within 30 minutes of the arrival of an inspector. See id. § 47-1721(d)(1). The United
States District Court for the District of Kansas dismissed their complaint for failure to
state a claim, and they appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm
the dismissal of their right-to-travel claim but remand for further proceedings to
determine whether Mr. Johnson’s business is closely regulated and, if so, whether
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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
imposes licensing requirements, see K.S.A. §§ 47-1701–1737 and directs the Animal
Health Commissioner of the Kansas Department of Agriculture (the Commissioner) to
adopt rules and regulations for licensees regarding, among other things, reasonable
treatment of animals, inspections of licensed premises, and recordkeeping, see id. § 47-
1712(a); id. § 47-1701(i) (defining Commissioner).
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,” id. § 47-1701(p); see id. § 47-1723(a); (2) an animal-distributor
license is required for anyone who is “engaged in the business of buying for resale dogs
or cats,” id. § 47-1701(z), (aa); see id. § 47-1702; (3) a pet-shop-operator license is
required for anyone who operates premises where animals are sold at retail, see id. § 47-
1701(t), (u); id. § 47-1703; (4) a pound or animal-shelter license is required for anyone
except a licensed veterinarian who operates a facility used to “house, contain, impound or
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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,” id. § 47-1701(g); see id. § 47-1704(a); (5) a research-facility license is
required for anyone who operates “any place, laboratory or institution, except an
elementary school, secondary school, college or university, at which any scientific test,
experiment or investigation involving the use of any living animal is carried out,
conducted or attempted,” id. § 47-1701(w); see id. § 47-1720; (6) a hobby-breeder license
is required for anyone who operates “premises where all or part of three, four or five
litters of dogs or cats, or both, are produced for sale or sold, offered or maintained for
sale per license year,” if the total number of dogs and cats sold, offered, or maintained for
sale is less than 30, id. § 47-1701(m), (n); see id. § 47-1719; (7) an animal-breeder
license is required for anyone who operates premises “where all or part of six or more
litters of dogs or cats, or both, or 30 or more dogs or cats, or both, are sold, or offered or
maintained for sale, primarily at wholesale for resale to another,” id. § 47-1701(e), (f);
see id. § 47-1733; and (8) a retail-breeder license is required for anyone who operates
premises “where all or part of six or more litters or 30 or more dogs or cats, or both, are
sold, or offered or maintained for sale, primarily at retail and not for resale to another,”
id. § 47-1701(ff), (gg); see id. § 47-1736.
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
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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 id. Ch. 151 §§ 2, 5, 19.
A number of regulations promulgated under the Act apply generally across
licensees, such as those relating to record keeping, see Kan. Admin. Regs. (K.A.R.) § 9-
18-7, and certain standards for the housing, handling, and caretaking of animals, see id.
§§ 9-18-10–9-18-15, 9-18-17–9-18-22, 9-18-31.
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), 7 U.S.C §§ 2131–60. See K.S.A. § 47-1712(b); K.A.R.
§ 9-18-24. Roughly speaking, the AWA requires licenses for those engaged in interstate
commerce, other than common carriers, who sell or transport animals for use as a pet, for
research, or for exhibition, see 7 U.S.C. §§ 2132, 2134, and requires certain other
businesses engaged in the animal trade to register with the Secretary of Agriculture, see
id. §§ 2132, 2136. The chief purpose of the AWA is to ensure humane treatment of
animals by those holding or transporting them, see id. § 2131, and it authorizes the
Secretary of Agriculture to promulgate rules to effectuate this purpose, see id. § 2151.
Other restrictions under the Act apply to some types of licensees but not others.
See e.g. K.S.A. § 47-1711 (prohibiting animal-control officers from obtaining an animal-
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distributor, animal-breeder, retail-breeder, hobby-breeder, or pet-shop-operator license);
K.A.R. § 9-18-16 (requiring that sexually intact adult animals not be housed with
sexually intact animals of the opposite sex within an animal shelter, rescue network, or
pet-animal foster home); id. § 9-18-25 (prohibiting the sale or gift of certain animals by
pet shops); id. § 9-18-30 (restricting tethering of animals at boarding or training kennels).
Annual fees for the various licenses range from $125 to $600. See id. § 9-18-6.
All licensees are subject to inspection. First, an applicant must pass an initial
inspection of its premises. See K.S.A. § 47-1709(a). “The application for a license shall
conclusively be deemed to be the consent of the applicant to the right of entry and
inspection of the premises.” Id. Notice “need not be given” before inspection. Id.
Once an operator becomes licensed, officials may conduct routine inspections “at
reasonable times with the owner or owner’s representative present.” Id. § 47-1709(b).
Acceptance of a license “shall conclusively be deemed to be . . . consent” to such
searches. Id. Although the Act once permitted inspectors to give prior notice of routine
inspections, a 2018 amendment provides that prior notice of inspection “shall not be
given.” Id. (current provision); see 2018 Kans. Laws Ch. 55 § 5 (amendment).
Refusing inspection “shall be grounds for suspension or revocation of the license.”
K.S.A. § 47-1709(b). And 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 id. § 47-1721(d)(1). If an inspector is denied access
to the premises, the Commissioner “may apply to any court of competent jurisdiction for
an administrative search warrant authorizing access to such location for such purposes.
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Upon such application and a showing of cause therefore, the court shall issue the search
warrant for the purposes requested.” Id. § 47-1709(k). A violation of the Act or its
regulations constitutes a class A nonperson misdemeanor, see id. § 47-1715(a), and the
Commissioner, upon finding a violation, may impose a civil penalty not exceeding
$1,000 or require attendance at an educational course, see id. § 47-1707(a).
We now turn to considering whether the Kansas statute violates the Fourth
Amendment.
II. 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).
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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
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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.
Not long after those opinions, however, the Supreme Court recognized
exceptions to the general rule when inspections infringed little on reasonable
expectations of privacy and requiring warrants would frustrate the legitimate
purposes of the regulatory scheme or would serve little purpose in light of the
statutory constraints on inspections. See Colonnade Catering Corp. v. United States,
397 U.S. 72 (1970); United States v. Biswell,
406 U.S. 311 (1972); Marshall v.
Barlow’s, Inc.,
436 U.S. 307 (1978); Donovan v. Dewey,
452 U.S. 594 (1981); New
York v. Burger,
482 U.S. 691 (1987). Warrantless inspections of certain businesses or
industries are constitutionally permissible when the regulatory regime authorizing the
inspections passes a two-part test. First, the business or industry to be inspected must
be “closely regulated.” Burger,
482 U.S. at 700. Then, the regime must satisfy three
additional criteria (generally referred to as the Burger criteria) for warrantless inspections
to be reasonable under the Fourth Amendment: (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
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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
1
We reject Plaintiffs’ argument that the exception to the warrant requirement
for closely regulated industries is unavailable “[w]hen the home is involved.” Aplt.
Br. at 17. When “the home is converted into a commercial center to which outsiders
are invited for purposes of transacting unlawful business, that business is entitled to
no greater sanctity than if it were carried on in a store, a garage, a car, or on the
street.” Lewis v. United States, 385 U.S. 206, 211 (1966). Thus, courts have
permitted warrantless administrative searches of homes in which closely regulated
businesses were operated. See Rush v. Obledo,
756 F.2d 713, 723 (9th Cir. 1985)
(closely-regulated-industry exception to warrant requirement extended to day-care
facilities run out of a provider’s residence); United States v. Cerri,
753 F.2d 61, 64 (7th
Cir. 1985) (rejecting Fourth Amendment challenge to a warrantless administrative search
of a gun dealer’s home because “[w]hen used as a place of business, the home has the
same status under the Fourth Amendment as any other place of business”).
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broke the lock and entered, removing liquor bottles suspected of being illegally
refilled. See id. The catering business sued to recover the liquor bottles and suppress
them as evidence. See
id. at 72.
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.
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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
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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, he does so with
the knowledge that his business records, firearms, and ammunition will be subject to
effective inspection.” Id. Finally, because every dealer annually receives a copy of
the laws “that describe his obligations and define the inspector’s authority[,] [t]he
dealer is not left to wonder about the purposes of the inspector or the limits of his
task,”
id. (citation omitted), a concern raised in Camara in support of a warrant
requirement, see 387 U.S. at 532.
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.
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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
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“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.
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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. 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. at 600.
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.”
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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 help but be aware that he will be subject to
effective inspection.”
Id. (internal quotation marks omitted). The statute required
“inspection of all mines and specifically define[d] the frequency of inspection,” and
all standards that mines were required to comply with were specifically set forth by
the FMSHA or the regulations promulgated under it.
Id. at 603–04. “Thus, rather than
leaving the frequency and purpose of inspections to the unchecked discretion of
Government officers, the Act establishe[d] a predictable and guided federal
regulatory presence. . . . [T]he operator of a mine is not left to wonder about the
purposes of the inspector or the limits of his task.”
Id. at 604 (internal quotation
marks omitted). And the Court noted that the FMSHA accommodated “any special
privacy concerns that a specific mine operator might have,” by prohibiting forcible
entries and instead requiring the government to obtain an injunction against future
refusals if refused entry, thus providing an adequate forum to address such concerns.
Id.
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
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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 New York Vehicle & Traffic Law § 415-a5, and the
owner did not object. See Burger,
482 U.S. at 695. The officers copied down the
vehicle-identification numbers of vehicles and vehicle parts in the junkyard and
determined that the owner was in possession of stolen vehicles and parts. See
id. The
owner was charged with possession of stolen property and moved to suppress
evidence obtained from the inspection. See
id. at 695–96.
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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, on business
documents, and “on vehicles and parts that pass through [the] business.”
Id. at 704–
05. It noted 38 similar statutes in other States. See
id. at 698 n.11, 705. Although it
acknowledged that the automobile-junkyard statute had been enacted less than 10
years before the challenged inspection (and the inspection provision had been in
effect for only three years), it said that the need for regulation had been recent since
“automobile junkyards and vehicle dismantlers have not been in existence very long,”
and it observed that the “automobile-junkyard business . . . is simply a new branch of
an industry that has existed, and has been closely regulated, for many years”—
general junkyards and secondhand shops.
Id. at 705–06. Indeed, “warrantless
inspection provisions for junk shops have been a part of the law of the City of New York
and of Brooklyn for at least 140 years.”
Id. at 707 (internal quotation marks omitted).
The Court concluded that because the automobile-junkyard business was closely
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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,”
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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
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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
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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), did not impose
any standards constraining officer discretion on which hotels to search and when, and
was therefore not a constitutionally adequate substitute for a warrant, see
id. at 427–
28.
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
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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
2
Patel’s consideration of the fact that hotels do not pose an inherent risk departed
from the “previous common assumption” that whether an industry is closely regulated
does not have to do with the risk of harm it poses but with the reasonable expectations of
those who enter the industry. 5 Wayne R. LaFave, Search & Seizure: A Treatise on the
Fourth Amendment § 10.2(a), at 55 (6th ed. 2022). Since Patel, other circuits have
grappled with the extent to which an industry’s danger is relevant to whether it is closely
regulated. The Fifth, Sixth, and Seventh Circuits view it as just a factor, see Mexican Gulf
Fishing Co. v. U.S. Dep’t of Com., 60 F.4th 956, 967–68 (5th Cir. 2023); Liberty Coins,
LLC v. Goodman,
880 F.3d 274, 284 (6th Cir. 2018); Owner-Operator Indep. Drivers
Ass’n v. U.S. Dep’t of Transp.,
840 F.3d 879, 893–94 (7th Cir. 2016), while the Eighth
Circuit seems to view it as a requirement, see Calzone v. Olson,
931 F.3d 722, 724 (8th
Cir. 2019) (“But in the case of commercial property that is involved in a closely regulated
industry whose operation poses a clear and significant risk to the public welfare, the
property owner has a reduced expectation of privacy . . . .” (citation and internal
quotation marks omitted)).
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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).
Finally, Plaintiffs’ opening brief contends that the district court erred by
“apply[ing] the pervasively regulated industry exception—premised on reduced
expectations of privacy—to [their] property-based physical intrusion claims.” Aplt.
Br. at 33 (citation omitted). According to Plaintiffs, recent Supreme Court decisions
suggest that when there has been a physical intrusion, there is a search regardless of
whether there has been an invasion of a reasonable expectation of privacy. See
Florida v. Jardines, 569 U.S. 1, 5–6 (2013); United States v. Jones,
565 U.S. 400,
406–11 (2012). But the cases invoking the closely-regulated-industry exception have
never suggested that the inspections at issue were not searches. They have simply
held that the searches are reasonable in part because of the lesser reasonable
expectation of privacy in that context. In any event, and more importantly, Patel gave
no hint of a revised approach to regulatory inspections resulting from the Court’s
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recent Fourth Amendment trespass jurisprudence. We therefore analyze the issue here
in conformance with controlling precedent.
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.
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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). See
id. at 605–06. The Court was
not persuaded, noting that although history is a factor, it is not “the only criterion” for
whether a warrantless inspection regime is permissible. Id. at 606. It pointed out that the
record did not support any distinction between the government interest in regulating stone
quarries and the government interest in regulating mining generally:
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
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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
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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 by government authorities to be sure that the animals are being
properly cared for. But when it comes to Mr. Johnson’s kennel, there are already third
parties with a strong interest in the treatment of the animals. Indeed, the owners of the
animals housed in Mr. Johnson’s kennel have a much stronger, and more personal,
interest than any government inspector. If he fails to take good care of the dogs in his
kennel, his business is in jeopardy.
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
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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
Animal Welfare Act, regulate other categories of pet-animal businesses without
regulating boarding or training kennels. From what we can determine, 34 States have
statutes regulating pet-animal businesses but only 20 States regulate boarding or training
kennels and only 9 of those States permit unannounced warrantless inspections beyond
those for initial licensure or in response to a complaint.4 This absence of similar
regulation of boarding or training kennels in other jurisdictions is relevant for at least two
reasons. It raises questions about the need for such regulation, and it raises questions
about the reasonable expectations of privacy of someone engaged in such activity. We
think it clear that the analysis required under the closely-regulated-industry exception to
the warrant requirement must be significantly different for boarding or training kennels
than for other types of kennels that have traditionally been regulated more, and more
3
The government points to Plaintiffs’ allegation that CFK houses and trains
some dogs for “years on end” or even their “entire lives,” apparently to suggest that
owners do not hold training kennels accountable. Aplee. Br. at 24 (quoting Aplt.
App., Vol. I at 17) (internal quotation marks omitted). But there is at least an equally
strong inference that the dog owners have great faith in Mr. Johnson’s care of their
pets.
4
See infra, at 35 n.5.
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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
the inspection provision itself, see Patel, 576 U.S. at 425 (“The City wisely refrains from
arguing that [the ordinance including the provision authorizing warrantless inspections]
itself renders hotels closely regulated.”), except to note that it is of fairly recent vintage.
The Act first authorized warrantless inspections of animal dealers, pounds, animal
shelters, pet shops, and research facilities when the Act was passed in 1972, see 1972
Kan. Sess. Laws Ch. 201 § 9, and it began applying to kennels that maintained animals
“for boarding or similar purposes” almost 20 years later, 1991 Kan. Sess. Laws Ch. 152
§§ 21, 22. The 33 years that boarding or training kennels have been subject to warrantless
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searches is not entitled to particular weight when compared to the timeframes for
industries that the Supreme Court has found closely regulated in light of historic
regulation. See Burger, 482 U.S. at 707 (“[W]arrantless inspection provisions for junk
shops have been a part of the law of the City of New York and of Brooklyn for at least
140 years.”); Colonnade Catering,
397 U.S. at 75 (noting the “long history of the
regulation of the liquor industry during pre-Fourth Amendment days”). Although the
Court has indicated that history is less important when dealing with a “new or emerging”
industry, like nuclear power, that poses “enormous potential safety and health problems,”
Dewey,
452 U.S. at 606; see also Biswell,
406 U.S. at 315 (“Federal regulation of the
interstate traffic in firearms is not as deeply rooted in history as is governmental control
of the liquor industry, but close scrutiny of this traffic is undeniably of central importance
to federal efforts to prevent violent crime . . . .”), nothing in the complaint provides
reason to think that the boarding- or training-kennel industry was either new or emerging
in 1991 or poses significant safety risks. Thus, the industry’s lack of a long tradition of
regulation is an important factor arguing against its characterization as closely regulated.
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 K.A.R. §§ 9-18-
10–9-18-13, cleaning, sanitization, and pest control, see id. § 9-18-14, separating certain
animals, see id. §§ 9-18-15–9-18-16, feeding and watering, see id. § 9-18-17,
contingency plans in the event of an emergency or natural disaster, see id. § 9-18-18,
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employee supervision, see id. § 9-18-19, veterinary care, see id. § 9-18-21, exercise, see
id. § 9-18-22, tethering animals, see id. § 9-18-30, and euthanizing animals, see id. § 9-
18-31. True, “the sheer quantity of pages of statutory material is not dispositive.” Burger,
482 U.S. at 705 n.16. Patel described as a “hodgepodge” the regulations that required
hotels to “maintain a license, collect taxes, conspicuously post their rates, and meet
certain sanitary standards,” rejecting the proposition that they created “a comprehensive
scheme of regulation that distinguishes hotels from numerous other businesses.”
576 U.S.
at 425. Here, in contrast, the regulations are more narrowly directed at a limited number
of businesses, which tends to weigh in favor of finding that the industry is closely
regulated.
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 that it has imposed extensive regulations targeting a specific class of
businesses. The issue is the extent to which the regulations necessarily require intrusion
on privacy. See Burger,
482 U.S. at 701 (the closely-regulated-industry “doctrine is
essentially defined by the pervasiveness and regularity of the federal regulation and the
effect of such regulation upon an owner’s expectation of privacy” (internal quotation
marks omitted)). We must therefore ask whether the existence of the regulations
governing training or boarding kennels clearly inform those in the industry that they will
be subject to unannounced warrantless inspections. On that issue, we can find guidance in
the experience of other jurisdictions, which we now examine.
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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 AWA
and the fact that the majority of States have statutes regulating “‘either commercial
breeders or kennel operators.’” Aplee. Br. at 20–21 (quoting Ann Wooster, Annotation,
State and Local Regulation of Operation of Dog Breeding and Kennel Facilities,
77
A.L.R.6th 393 (2012), which does not cite any specific state statutes). A closer look at
these statutes, however, reveals that they would not put Plaintiffs on notice that their
property will be subject to unannounced warrantless inspections.
First, consider the most pervasive law on the subject, the AWA. The scope of that
statute has expanded over time. Congress passed the AWA in 1966, see Pub. L. No. 89-
544, 80 Stat. 350 (1966), to address concerns about dealers that sold (often stolen)
animals to research laboratories and subjected them to inhumane conditions, and the lack
of adequate care provided in the research laboratories themselves, see S. Rep. 89–1281
(1966) (Conf. Rep.). A 1970 amendment expanded coverage to include those who
transport, buy, or sell animals for exhibition or use as pets, see
Pub. L. No. 91-579, 84
Stat. 1560 § 3 (1970) (defining dealer). But it has never imposed requirements on
boarding or training kennels, such as Mr. Johnson’s. It therefore could hardly warn such
business owners that their property will be subject to warrantless inspections.
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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 operators
5
Fourteen States have regulatory regimes targeting dog breeders, sellers, or
shelters but not boarding or training kennels. See Ark. Code Ann § 4-97-102; Del.
Code. Ann. tit. 16, §§ 3042F(a)(2), (3) (requiring retail dog outlets to obtain a retail
dog outlet license but permitting a person who maintains a kennel where more than
four dogs are kept to obtain a kennel license), 3043F (authorizing inspections of
facilities for which a license is sought or obtained); Ind. Code Ann. § 15-21-2-1;
Nev. Rev. Stat. §§ 574.210–574.510 (imposing requirements on “breeders,”
“operators,” and “retailers and dealers”), 574.290 (defining operator as a “cattery,
kennel or commercial establishment engaged in the business of selling animals” or an
animal shelter);
N.H. Rev. Stat. Ann. § 437:3 (license required for pet vendors);
N.Y.
Agric. & Mkts. Law §§ 403 (license required for pet dealers), 421 (license required
for animal shelters);
Ohio Rev. Code Ann. §§ 956.04, 956.05, 956.21 (requiring highvolume breeders, dog brokers, and pet stores to obtain a license); Okla. Stat. Ann. tit.
4 § 30.4;
Tenn. Comp. R. & Regs. 1200-33-01-.04;
Tex. Occ. Code Ann.
§ 802.101(a);
Vt. Stat. Ann. tit. 20, § 3681;
Wash. Rev. Code Ann. § 16.52.310
(imposing requirements on persons with custody of “more than 10 dogs with intact
sexual organs” but exempting boarding facilities);
W. Va. Code Ann. § 19-20-26;
Wis. Stat. Ann. § 173.41(2).
Three States impose regulations on boarding or training kennels but do not impose
an inspection regime for these kennels. See Cal. Health & Safety Code §§ 122381–
122385 (imposing requirements on pet-boarding facilities); Reference – California Law:
Pet Boarding Facilities, Effective January 1, 2017 (2016 SB 945, Senator William
Monning), The Animal Council,
https://www.theanimalcouncil.com/files/California_Pet_Boarding_Law_Reference_2017.
pdf [https://perma.cc/42CK-DN5C] (“There is no state oversight or regulatory authority.
Rather, enforcement is at the discretion of local authorities in the context of other local
ordinances and state laws that may apply.”); compare Minn. Stat. Ann §§ 346.35–346.44
(imposing requirements on animal-boarding facilities without an inspection provision),
with Minn. Stat. Ann. §§ 347.37 (authorizing inspections of kennels and dealers), 347.31
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(defining kennel as a place “whereupon dogs or cats are kept, congregated, or confined, if
the dogs or cats were obtained from municipalities, pounds, auctions, or by advertising
for unwanted dogs or cats, or dogs or cats strayed, abandoned, or stolen”); compare Or.
Admin. R. 603-015-0025–603-015-0060 (imposing requirements on boarding kennels
without an inspection provision), with
Or. Admin. R. 603-015-0075–603-015-0110
(imposing requirements on animal-rescue entities including an inspection provision,
Or.
Admin. R. 603-015-0095).
Six States that regulate boarding or training kennels require prior notice of an
inspection or permit inspection only upon initial licensing or a complaint. See Md. Code
Ann., Crim. Law § 10-616(b) (requiring prior notice of inspections of kennels where
more than 25 dogs are kept);
Mich. Comp. Laws Ann. § 287.270 (authorizing initial
inspection for licensure of boarding kennels); N.J. Stat Ann. §§ 4:19-15.1 (defining
kennel to include any establishment “boarding or selling dogs or breeding dogs”),
4:19-15.8(a) (requiring kennels to obtain licenses); Guidelines for Municipal
Licensure of Animal Facilities, New Jersey Department of Health,
https://www.nj.gov/health/vph/documents/guidelines_for_municipal_licensure_of_an
imal_facilities.pdf [https://perma.cc/6X5J-WW2U] (“Prior to issuance of a license,
local health department staff shall inspect the facility.”); N.C. Gen. Stat. §§ 19A-28
(requiring licensure for boarding kennels under animal-welfare statute), 19A-25
(authorizing inspections of all reports of violations of the statute); R.I. Gen. Laws
Ann. §§ 4-19-15 (authorizing inspections for purposes of enforcing animal-care
statute), 4-19-6(a) (requiring kennels to obtain a license under animal-care statute), § 4-
19-2(19) (defining kennel to include establishments where animals are sheltered in return
for a fee); 250 R.I. Code R. § 40-05-4.1 (permitting inspections for licensure or in
response to a complaint);
Va. Code Ann. § 3.2-6564(A) (authorizing inspections of
boarding establishments upon receiving a complaint of a suspected violation).
Two States that regulate boarding or training kennels require officials to obtain
consent or an administrative warrant rather than requiring businesses to consent as a
condition of their license. See Colo. Rev. Stat. Ann. §§ 35-80-104 (requiring licensure
to operate a pet-animal facility), 35-80-102(11) (defining pet animal facility to
include a place keeping pet animals for boarding), 35-80-110(3) (authorizing access to
the premises of licensees upon consent or an administrative warrant);
Iowa Code
§§ 162.5A (requiring boarding kennels to obtain a state license), 162.10B (permitting
inspections of state licensees upon consent or an administrative warrant).
Only nine States (less than half of the States that regulate training or boarding
kennels) have statutes that appear to authorize warrantless inspections without notice of
boarding or training kennels beyond those for initial licensure or in response to a
complaint. See Ariz. Rev. Stat Ann. §§ 11-1009(F) (requiring a person who operates a
kennel that houses more than 20 dogs to allow inspections as a condition of receiving a
permit), 11-1001(8) (defining kennel as an area in which a person keeps five or more
dogs); Conn. Gen. Stat. Ann. §§ 22-344(g) (authorizing inspections of commercial
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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 Ariz. Rev. Stat Ann. § 11-
1009(F)), far from the three-quarters of the States that had statutes authorizing the
warrantless inspections upheld in Burger. See 482 U.S. at 705, 698 n.11 (citing 38 state
statutes). Nor is there a long historical tradition of conducting warrantless inspections,
with only three of those nine States having statutes dating before 1980.6
kennels “at any time”), 22-327(3) (defining commercial kennel as “a place
maintained for boarding or grooming dogs or cats”); Ga. Code. Ann. §§ 4-11-9
(authorizing inspections of kennels “at any time”), 4-11-2(5) (defining kennel to include
establishments where dogs are “maintained for boarding, holding, training, or similar
purposes for a fee or compensation.”); 225 Ill. Comp. Stat. Ann. 605/18 (authorizing
inspections of licensees), 605/3 (requiring kennel operators to obtain licenses), 605/2
(defining kennel operator to include persons who operate an establishment where dogs
are maintained for boarding or training); Ill. Admin Code tit. 8, § 25.100 (licensees
consent to investigations at “reasonable business hours”); Me. Stat. tit. 7 § 3936(1)
(authorizing inspectors to enter boarding kennels “at any reasonable time”); Mass. Gen.
Laws Ann. ch. 140, §§ 137C (authorizing inspections of kennels “at any time”), 136A
(defining kennel to include boarding or training kennels);
Mo. Ann. Stat. §§ 273.331
(requiring inspections of licensees at least once a year), 273.327 (requiring boarding
kennels to obtain licenses);
Neb. Rev. Stat. Ann. §§ 54-628 (authorizing inspections of
licensees once in a 24 month period), 54-627 (requiring boarding kennels to obtain a
license);
23 Neb. Admin. Code § 006.02C (inspections may be unannounced); Pa. Stat.
and Cons. Stat. §§ 459-218(a) (requiring inspections of licensed kennels at least twice per
year), 459-206(a) (requiring boarding kennels to obtain licenses).
Finally, we note that three of the above-described state statutes specifically
exclude kennels that train hunting dogs. See Ariz. Rev. Stat Ann. § 11-1009(F); Md.
Code Ann., Crim. Law § 10-616(b); N.C. Gen. Stat. § 19A-39. This tends to further
show that Plaintiffs could not expect that Mr. Johnson’s kennel would be subject to
unannounced warrantless searches.
6
Of the nine state statutes with provisions authorizing these types of inspections,
six of those provisions were enacted either after or within 10 years of when Kansas began
regulating boarding or training kennels in 1991. See 2009 Ariz. Legis. Serv. Ch. 151
§ 2; 1986 Ga. Laws Ch. 11, at 633; 1987 Me. Laws Ch. 383, at 525; 1992 Mo. Legis.
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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, see Zadeh, 928
F.3d at 465—do not suggest that the boarding- or training-kennel industry is closely
regulated. Although Kansas has an extensive regulatory scheme that applies to boarding
or training kennels, such kennels have not been closely regulated historically or by a
large number of other jurisdictions and the record does not show that they are inherently
dangerous. Thus, we cannot say that those who operate boarding or training kennels
“cannot help but be aware that [their] property will be subject to periodic inspections
Serv. S.B. 636 § 2; 2000 Neb. Laws L.B. 825 § 4; Pennsylvania Dog Law, Act of Dec.
7, 1982, P.L. 784, No. 225 § 218. Three States—Connecticut, Illinois, and
Massachusetts—have imposed this type of inspection regime for decades longer than
Kansas. Connecticut enacted a statute in 1931 permitting inspection “at any time” of any
kennel in which dogs “are boarded for hire or kept for sale.” 1931 Conn. Acts. Ch. 110, at
147. Illinois enacted a statute permitting inspections of pet-shop operators and dog
dealers in 1965, 8 Ill. Comp. Stat. § 318 (1965), and included kennel operators—which
it defined to include establishments where dogs are maintained for boarding or training
purposes—in 1973, 8 Ill. Comp. Stat. §§ 302, 303, 318 (1973). And Massachusetts
enacted a statute permitting inspections of kennels—which it defined to include dogs
maintained for boarding or training purposes—in 1934. 1934 Mass. Acts Ch. 320, at 401,
403.
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undertaken for specific purposes,” Burger, 482 U.S. at 705 n.16 (internal quotation
marks omitted), although we recognize that further factual development on remand may
establish otherwise.
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.
7
For an inspection program to satisfy the third requirement, the law “must
advise the owner of the commercial premises that the search is being made pursuant
to the law and has a properly defined scope, and it must limit the discretion of the
inspecting officers.” Burger, 482 U.S. at 703. The Kansas regulations provide that an
inspection “shall” be conducted every 15 to 24 months if the premises passed its
three most recent inspections; every 9 to 18 months if it passed its two most recent
inspections; and every 3 to 12 months if it failed either of its two most recent
inspections. K.A.R. § 9-18-9(b). In addition, inspections “may” be conducted “under
any of the following circumstances”: (1) “A violation was found in a previous
inspection.” (2) “A complaint is filed regarding the premises.” (3) “The ownership of
the premises changed in the previous year.” And (4) “The license for the premises
was not renewed in a timely manner.” Id. § 9-18-9(c). Inspections may take place
only on Monday through Friday between 7:00 AM and 7:00 PM, see id. § 9-18-9(d),
and licensees may specify their preferred times for inspection (inspectors “attempt to
accommodate” these hours but “cannot guarantee” inspection during preferred
hours), Aplt. App., Vol. I at 181 (licensing form asking preferred hours for
inspection). Despite Plaintiffs’ argument that the government’s own handbook shows
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Regarding the first requirement, the government argues that it has a “substantial
interest in protecting animals from cruel and inhumane conditions.” Aplee. Br. at 28. But
concern for animal welfare is not enough. In Burger the Supreme Court did not stop its
analysis of this requirement after stating that stolen cars are a big problem; it further
noted that automobile junkyards are a significant contributor to the problem and that it
was reasonable to think that regulating them would reduce theft. See 482 U.S. at 708–09;
see also Biswell, 406 U.S. at 315 (“Federal regulation of the interstate traffic in
firearms . . . is undeniably of central importance to federal efforts to prevent violent crime
that inspectors’ discretion is not at all limited, the handbook gives them discretion
only to choose when to conduct an inspection within the intervals set forth by K.A.R.
§ 9-18-9. See Aplt. App., Vol. I at 83 (“Inspectors may use discretion regarding the
elapsed time before they return to a facility within the correlating rating inspection
range schedule.”).
The regulations also define the scope of searches. Inspectors are authorized to
enter the place of business, examine and make copies of required records, “inspect
premises and animals as . . . necessary to enforce” the Act and its regulations,
document conditions and areas of noncompliance, and “use a room, table, or other
facilities necessary for the examination of the records and inspection.” K.A.R. § 9-
18-8.
The Act therefore advises businesses when searches are made pursuant to law
and are within the proper scope. And it limits officers’ discretion over executing
searches at least as much as the search provision that was upheld in Burger, which
permitted inspections during “regular and usual business hours,” and defined the
scope of searches to include records and vehicles or vehicle parts on the premises that
are subject to record-keeping requirements. Burger, 482 U.S. at 711–12. Also, similar
to the inspection provision that was upheld in Dewey, it limits inspectors’ discretion
by requiring inspections of all licensees and defines their frequency. See 452 U.S. at
604. Finally, it is easily distinguishable from the inspection provision that was struck
down in Patel, which required hotels to make their records available to any police
officer for inspection on demand without imposing any limit on the officers’
discretion regarding when or how frequently those inspections could occur. See
576
U.S. at 412.
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and to assist the States in regulating the firearms traffic within their borders.”). What is
needed to satisfy this requirement is a substantial interest in enacting the regulations.
There must be reason to think that public welfare will be damaged without government
supervision of the industry at issue. In short, there must be factual support for the
proposition that regulating boarding or training kennels would advance animal welfare.8
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
8
We recognize that courts occasionally give only perfunctory attention to this
requirement. But it appears that the requirement was not disputed in those cases. For
example, in Big Cats this court “assume[d]” that “[t]he government has a substantial
interest in animal safety and welfare,” which the plaintiff did not contest in that case. 843
F.3d at 866; see also, e.g., Killgore v. City of S. El Monte,
3 F.4th 1186, 1192 (9th Cir.
2021) (stating that “there is no question that curtailing prostitution and human
trafficking is a substantial government interest” without discussing how regulating
massage establishments furthers that interest). And we do not foreclose the
possibility that sometimes (although not in this case) the connection could be made
simply by common sense.
9
In any event, the authorities cited by the government do not show a need for
regulation of the boarding- or training-kennel industry. It cites a Kansas statute that
criminalizes animal cruelty but at most that law establishes a public interest in preventing
animal cruelty; it applies to anyone and is not targeted at any industry in particular. See
K.S.A. § 21-6412. Also, the government cites several cases finding government interests
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Turning to the requirement that warrantless searches be necessary, the government
asserts that many potential violations of the Act can be “quickly concealed.” Aplee. Br. at
30. Although recognizing that the Act authorizes obtaining an administrative warrant if
the business denies an inspector access to the premises, see K.S.A. § 47-1709(k), the
government contends that this process is ineffective because “an administrative warrant
may be sought only after the licensee has learned his premises are going to be inspected,
giving him time to conceal violations.” Aplee. Br. at 32. We are not persuaded.
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., K.A.R. §§ 9-18-10(a)(1) (requiring structurally
in regulating the handling of animals, but none deals with boarding or training kennels.
See Pro. Dog Breeders Advisory Council v. Wolff, No. 1:CV-09-0258, 2009 WL
2948527, at *9 (M.D. Pa. Sept. 11, 2009) (dog-breeding industry); Kerr v. Kimmell,
740 F. Supp. 1525, 1527–29 (D. Kan. 1990) (animal breeders); Cory v. Graybill,
149
P. 417, 417–18 (Kan. 1915) (considering the livestock sanitary commissioner’s
authority to order killing of cattle that tested positive for tuberculosis); State v. Marsh,
823 P.2d 823, 827–28 (Kan. App. 1991) (“puppy mills”).
The government did present a news article with its briefs in district court, but
it related to puppy mills, not boarding kennels. In its appellate brief the government
also cites an academic article about the mistreatment of hunting dogs; but the article
says nothing about commercial kennels. It complains about owners who have starved
or abandoned dogs that they feel they cannot afford to maintain, hardly likely
clientele for a training kennel. See Jamie B. Walker, Hunting a Home: The
Abandonment and Neglect of Hunting Dogs, Exigence, no. 1, 2018, art. 5. And it
cites two additional news articles. One of them appears to concern a boarding kennel
where two dogs were killed in a fight between them, but the report does not indicate
whether the fight could have been prevented by compliance with the regulations.
Finally, at oral argument the government mentioned testimony before the Kansas
Senate Committee on Agriculture and Natural Resources. But this testimony was not
presented in the government’s briefing to this court or in its pleading before the
district court. We therefore decline to review it.
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sound construction), 9-18-10(d) (requiring electric power), 9-18-10(c)(1) (requiring
surfaces made of materials that can be readily cleaned and sanitized), 9-18-13(d)(1)(A)
(requiring minimum floor space per dog), 9-18-14(c) (requiring management of “pests or
potential hazards so as to promote the health and well-being of the animals”), and 9-18-
17(a)(1) (ensuring that animals are fed “as appropriate to species and age”). And others
would be very hard to establish even in a surprise inspection, such as the requirements
that dogs be fed daily, see id. § 9-18-17(a)(1), and not be tethered for more than two
hours at a time or more than four hours total per day, see id. § 9-18-30. Even if food is
not out when the inspector arrives, how can the inspector know that the dogs were not fed
earlier? Similarly, if a dog is tethered when the inspector arrives, the inspector would not
know how long the dog had been tethered.
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 id. § 9-18-14, provide a sufficient number of food receptacles, and make
sanitary drinking water accessible, see id. § 9-18-17. But if these violations are
significant and chronic—the sort of abuse the law is most concerned about—remedying
them is likely not possible during the time it would take to get a warrant and the effects
on the dogs would be readily apparent. Inspectors could likely detect violations just by
looking at the condition of the dogs. Perhaps the kennel operator could “dispose of” a
sick or injured dog. But that would be much harder for an operator to do when the dogs
are owned by customers than if the business was that of a dog breeder or a pet shop. The
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government has not undermined Plaintiffs’ allegation that “there is little risk that
significant alleged violations could be corrected during the time interval between an
inspector’s initial request to search and procuring a warrant—a mistreated dog doesn’t
quickly recover, for example.” Aplt. App., Vol. I at 38.
Moreover, to establish that warrantless searches are necessary, the government
needs to show more than just that violations could be concealed in the time it takes to
obtain a warrant after a business refuses the inspection. It needs evidence from practice
that the regulations could be effectively enforced only through a regime that relies on
surprise warrantless inspections. In both Barlow’s, 436 U.S. at 316–20, and Patel, 576
U.S. at 427, the Supreme Court placed the burden on the government to show that ex
parte warrants cannot adequately catch violations by uncooperative licensees or that the
frequency of owners refusing to consent to inspection would make it unfeasible to obtain
the number of ex parte warrants necessary to deal with such licensees. See also Free
Speech Coal., 825 F.3d at 153–54, 172 (concluding that warrantless inspections of
records required to be kept by producers of sexually explicit materials were unnecessary
in light of testimony from FBI agents that it is unlikely a producer could assemble the
records on short notice and evidence that one third of inspections had been conducted
after providing prior notice without any reports of fabrication); Liberty Coins, LLC v.
Goodman,
880 F.3d 274, 290 (6th Cir. 2018) (concluding that warrantless inspections
of “[a]ll books, forms, and records” kept by precious-metal dealers were unnecessary in
light of testimony by the State’s chief examiner that only one dealer in three years had
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refused an inspector’s request to look at records). The record before us does not establish
a need for warrantless inspection.
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 K.S.A. § 47-1721(d)(1). Plaintiffs
challenge the district court’s dismissal of their claim that this provision violates their
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fundamental right to travel because they cannot travel more than 30 minutes from the
homestead together without risking the fee.
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. K.A.R. § 9-
18-9(e) provides that if an owner or operator is not routinely available during the
permissible hours of inspection, he shall designate a representative to be present during
an inspection. Mr. Johnson has chosen to designate only Ms. Hoyt as his representative
because he “doesn’t want the people who help him with the dogs to interact with
government inspectors on his behalf.” Aplt. App., Vol. I at 32.
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.
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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
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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
Finally, Plaintiffs contend that they have a fundamental right to intrastate travel as
well. We think the above analysis would dispose of that claim just as it disposes of their
interstate-travel claim. See Maehr, 5 F.4th at 1117 (the direct-and-substantial-
impairment test is applied to any claim that legislative action denies substantive due
process). But in any event this court has held that “the fundamental right to freedom of
movement applies only to interstate travel.” McCraw v. City of Okla. City,
973 F.3d
1057, 1081 (10th Cir. 2020), cert. denied,
141 S. Ct. 1738 (2021) (brackets and internal
quotation marks omitted); see also D.L. v. Unified Sch. Dist. No. 497,
596 F.3d 768, 776
(10th Cir. 2010) (“[T]he constitutional rights at issue apply only to interstate travel, and
the travel that Plaintiffs claim was restricted was intrastate travel.”).
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.
10
Plaintiffs argue that requiring Mr. Johnson to designate a representative
interferes with their right to exclude others from their homestead. They invoke Cedar
Point Nursery v. Hassid, 594 U.S. 139, 149 (2021), in which the Supreme Court held that
a state regulation granting union organizers the right to access an agricultural employer’s
property for up to three hours per day, 120 days per year was a physical taking. But
nothing in the Kansas statute limits Plaintiffs’ right to exclude nongovernmental
personnel from their homestead because Mr. Johnson is permitted to designate anybody
who is 18 years or older and “mentally and physically capable of representing the
licensee in the inspection process.” K.A.R. § 9-18-9(e). The proposed analogy to Cedar
Point strikes us as flawed; but in any event Plaintiffs have not raised a taking claim.
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