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.

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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

Page 2 Appellate Case: 23-3091 Document: 010111062673 Date Filed: 06/10/2024 Page: 3

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