In Re Peanut: New York Family Moves to Sue State Over the Killing of Beloved Squirrel

Peanut the Squirrel is back . . . at least in court.

The rodent has achieved fame in the last couple of months, which few animals short of Rin Tin Tin have reached. He is certainly the most famous of his genus since Rocket “Rocky” J. Squirrel. After Mark Longo and Daniela Bittner posted cute pictures of Peanut on social media as their companion and friend, New York officials from the Department of Environmental Conservation (DEC) raided their home on Oct. 30 and seized both Peanut and a raccoon pet named Fred. They proceeded to euthanize both animals. Now the family is lawyering up.

Peanut’s killing outraged the nation and even became part of the presidential campaign as an example of out-of-control bureaucrats and thoughtless enforcement actions. Some defended the action. Washington Post columnist and MSNBC contributor Jen Rubin even posted that “The Maga squirrel deserved to die.”

Many even joked that Peanut’s ghost taunted Vice President Kamala Harris at her concession speech at Howard University. To protect such families in the future, a new law called the P’Nut Law has been introduced.

Many in the public saw the state’s action as unnecessary and excessive. Longo said he had taken the squirrel in after witnessing Peanut’s mother being hit by a car. When the squirrel refused to return to the wild, they adopted him as a pet in their home in rural Pine City, near the Pennsylvania border.

Peanut then became an internet sensation. Later, an Instagram page dedicated to him gained more than one million followers.

Longo and his wife established the animal sanctuary, called “P’Nut’s Freedom Farm,” last year, inspired by the squirrel.

Peanut even appeared in my torts class this term, posthumously, of course. He was part of a lesson on the classification of wild versus domestic animals for the purpose of animal liability. Domesticated animals like dogs are generally subject to a negligence standard absent a known vicious propensity. Wild animals are subject to a strict liability standard for any bites or injuries.

Even though Peanut was a pet, he was still considered a wild animal in New York, both by statute and common law.

The family, however, still believes that killing Peanut and Fred was unnecessary. They have now filed a notice of claim against the state for violating the couple’s rights by taking the animals, invasion of privacy, and trespass, among other claims.

The state will have the advantage on all of these claims despite the general condemnation for its actions or methods. The state insists that Peanut was killed to test it for rabies after it bit an officer, according to the New York Post. It has also previously stated the policy against such pet ownership on the website of the New York Department of Environmental Conservation:

“Inappropriate care given to young wildlife often results in abnormal attachment to humans. After release, some return to places where people live, only to be attacked by domestic animals or to be hit by cars. Some become nuisances getting into stored food, trash cans or dwellings. And some may be thrust as unwelcome intruders into the home range of another member of their species.”

Under Section 11-0512 of New York’s Environmental Conservation Law,

1. It shall be prohibited for any person to:

a. knowingly possess, harbor, sell, barter, transfer, exchange or import any wild animal for use as a pet in New York state, except as provided in subdivision three of this section; or

Section 2 does have exceptions for zoos, research centers, and other categories, but none would fit this family. They would not qualify as a “wildlife sanctuary” under subdivision thirty-two of section 11-0103.

The family is expressing doubts over that account and accusing the government of the “fabrication of evidence.” They note that trained officers should have been able to handle such animals safely and that none of this was necessary in the first place. Nora Constance Marino told Fox

“[i]t appears as though there were multiple constitutional law violations here — or at the very least, there are many questions as to why the government chose the actions that they chose. Entering someone’s house and searching it is such an extreme violation of that person’s right to privacy, and that’s why we have a Fourth Amendment, to protect us from unreasonable searches and seizures.

Likewise, there are many questions as to why Peanut and Fred were killed. There was no reason, whatsoever, to believe that either animal had rabies, and killing the animals was outside the scope of the warrant. My clients have suffered greatly and continue to suffer, from what appears to be egregious government conduct. Government wields great power, and if left unchecked, can have disastrous results for citizens.  That’s what makes our United States Constitution so precious, and it needs to be honored.”

I appreciate the effort, but Marino has what Peanut would call a tough nut to crack legally. The state will argue that the housing of wild animals presents a threat to not just the family but any visitors of bites and even disease. The courts will be reluctant to make an exception for individual pets like Peanut.

Marino, however, is wisely focusing on more technical issues on the scope of the warrant and the means used for the seizure. Again, however, there is an ample level of discretion afforded to public officials in carrying out such tasks if the warrant is valid. One question is whether the family can make any proprietary or personal claim to ownership of the squirrel. Most states prohibit the possession of wild animals as pets absent a permit or special status.

Of course, if they can make it through a motion to dismiss, the family might be able to get discovery on what occurred behind the scenes that led up to the killing of both animals. It is not clear why Fred was also euthanized, but the state may claim that it was precautionary given the fear of rabies in Peanut. However, Peanut did not appear to have rabies, and the state law allows for quarantine and observation as an alternative to euthanasia in some circumstances.

Obviously, the cost of litigation is unlikely to be small peanuts. However, there is a GoFundMe site in the memory of Peanut and Fred.