Chicago looses it's right to keep Pigeons

[Guest]

Court denies appeal by club of city ban

 

By Charles Sheehan

Tribune staff reporter

Published December 24, 2005

A federal appeals court ruling this week clipped the hopes of Chicago pigeon

racers who said a city law banning pet pigeons was unconstitutional.

 

On Thursday, a U.S. Circuit Court of Appeals judge upheld an earlier

District Court court ruling that found the city was within its rights to ban

racing pigeons as pets.

 

Members of one of the nation's oldest racing clubs were crestfallen Friday.

 

The case pitted the property rights of the 70 or so members of Chicago's

pigeon-racing club, the Greater Chicago Combine and Center, against those of

neighbors who complained of scattered feathers, excessive cooing and

droppings.

 

"We're not hurting anybody," said Karl Wollenhaupt, secretary and treasurer

for the group. "This sport has been in existence for hundreds of years, but

the city says these birds are bad, dirty and evil. These are birds of

pedigree."

 

Chicago is the only large American city with a total ban on homing pigeons,

officials with the national American Racing Pigeon Union said.

 

"That's terrible," Executive Director Karen Clifton said. "Chicago is the

only city that has ever put us through this."

 

The organization lobbies on behalf of birders nationwide. Its officials came

to Chicago in 2003 to speak with aldermen and issue information packets on

bird racing.

 

The City Council voted 48-0 to approve the ban, exempting Lincoln Park Zoo

and the zoo at Indian Boundary Park.

 

Other large cities have set limits on the number of birds or have required

screenings to monitor disease, Clifton said.

 

Ald. Thomas Allen (38th) sponsored the ban two years ago, prompted by

complaints that birders attached large lofts to garages and houses on lots

that were only 30 feet by 125 feet.

 

He did not return calls Friday. The city's Law Department was closed Friday.

 

In supporting the earlier court decision, U.S. District Judge Harry

Leinenweber ruled that raising homing pigeons "is not a fundamental right."

 

"While housing pigeons in rural areas, for example, may be a perfectly

unobtrusive endeavor, it is at least conceivable that the feathers,

droppings, odor and noise generated by kept pigeons in tight, urban lots

would be an untenable nuisance to residential neighbors," Leinenweber wrote.

 

A judge placed a stay on a similar case making its way through Cook County

Circuit Court pending the outcome of the federal appeal, meaning there are

other legal routes for the birders to follow, said Lisa Ligas, an attorney

for the bird club.

[Guest shadow]

my deepest sympathys to all chigago pigeon flyers but english flyers will have to hope this does not happen hewre  I have heard rumours of different councils in the Uk starting surveys on their tenants as to the keeping of pigeonns and the nusiance they cause to their neigbours starting in the New Year

[Guest]

Portugese Homing Union has an article on its website designed to stave-off avian flu restrictions. Even with the limitations of mechanical translation, it shows very good PR work, extolls the exemplary hygeine conditions, husbandry and athleticism of the Portugese racing pigeon which places it far above other country's birds, and in a totally different league to its town square cousins. More importantly, it seems to have worked on the public and government, for as far as I can tell, absolutely no AI restriction on pigeons there. Might be a good base to start from, concentrate on and demonstrate the huge gap in husbandry and home hygeine conditions between the street pigeon and the racing pigeon.

[Guest]

Hyacinth, the judge's words 'no right to keep  pigeons'  rings very close to the first line of the Animal Rights Battle Hymn 'no right to own animals'. Yet it is the Authorities themselves who impose ownership of animals on its citizens in all its welfare codes with the specific intention of placing duty of care for the animal upon one person, to the levels of care decided by the welfare code.

 

Reckon your country's own Bill of Rights will incorporate the principles of the Human Rights Act, which says things are very different to what this judge thinks as far as the right to keep companion animals is concerned.  

 

Article 1 of the European Convention on Human Rights provides:

 

"(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

 

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

 

The European Court of Human Rights has indicated that this Article contains three distinct rules :

 

(1) The general principle of peaceful enjoyment of property (first sentence of the first paragraph);

 

(2) The rule that any deprivation of possessions should be subject to certain conditions (second sentence, first paragraph);

 

(3) The principle that States are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose (second paragraph).

 

Peaceful enjoyment of possessions include the right of property (Marckx v Belgium (1979) 2 EHRR 330). "Possessions" are not limited to physical goods.

 

 

Article 8 of the Convention provides as follows:

 

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

 

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

 

Article 8 is one of the most open-ended of the Convention rights, covering a growing number of issues and extending to protect a range of interests that do not fit into other Convention categories. This is partly because neither the Commission nor the Court have attempted any comprehensive definition of Article 8 interests, adapting them to meet changing times.

 

Article 8 contains both negative and positive obligations. The state is under a negative obligation not to interfere with privacy rights, but in addition Strasbourg case law has also extended Art.8 to impose a positive duty to take measures to prevent private parties from interfering with these rights: (1) X (2) Y v the Netherlands (1985)8 EHRR 235.

 

There are four protected interests under Article 8:

(1) private life; (2) home; (3) family;(4) correspondence.

 

Like Articles 9 10 and 11 Article 8 (2) contains specific exceptions to the right guaranteed in the first paragraph. These limitations may only be justified if they are "in accordance with the law" (Articles 9,10 & 11 require measures to be "prescribed by law") and, in all cases, "necessary in a democratic society". The following analysis of these qualifications will apply equally to Articles 9 10 and 11 to follow.

 

In Accordance with the/Prescribed by law

This means three things:

(1) there must be a specific legal rule or regime which authorises the interference;

(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);

(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14).

 

Necessary in a Democratic Society

 

Even if a measure has been taken in pursuit of one of the legitimate interests listed in the second paragraph of Articles 8, 9 10 or 11, the measure must be tested for "necessity." The Court has held that the notion of necessity implies two things:

(1) that an interference corresponds to a pressing social need;

(2) that it is proportionate to the legitimate aim pursued.

 

The Doctrine of Proportionality

 

In order for a measure to be "necessary in a democratic society", it must respond to a "pressing social need" (The Sunday Times v United Kingdom (1979) 2 EHRR 245). This involves the test of proportionality. If a measure has been adopted which infringes an individual’s Convention right in some way, it will not be considered disproportionate if it is restricted in its application and effect, and is duly attended by safeguards in national law so that the individual is not subject to arbitrary treatment (MS v Sweden (1997) 3 BHRC 248).

 

 

 

Article 11 of the Convention provides as follows:

 

"(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

 

(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

 

The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective.

 

 

I believe an appeal court would find that the judge's comments infringe Article 1; His ruling infringes proportionality in Article 8 - one fancier might be a nuisance, but not all fanciers in a city; infringe the rights of the club to pursue its objectives,  Article 11.

 

In addition, in common law, where was the evidence to back up his inference of hazard to public health on a yard basis, never mind on a city-wide scale?

 

[Guest]

 

Reckon your country's own Bill of Rights will incorporate the principles of the Human Rights Act, which says things are very different to what this judge thinks as far as the right to keep companion animals is concerned.  

 

With due respect Buno although I live in America ENGLAND will be my Country to the day I die.

 

You will find things are very different in America where Lawyers rule.

 

Incidentally the whole Chicago dispute was started by a disagreement between neighbours not related to pigeons at all, and one neighbour thought he would get the better hand by contacting a controvertial alderman and making a fuss about his neighbours birds.