Dog Owner “due process” is not contained in
current Animal Law – The Questions and Answers
Due process is ‘not’ provided to dog owners in animal control ordinances before government authorities remove or euthanize their dogs from private property.
By Dean A. Ayers
Lead Investigative Reporter
28 May 13
How Does Due Process Apply to Dog Seizure/Euthanasia Cases?
Despite the fact that animals are still considered property in all legal jurisdictions today, due process, whether rooted in the federal or state constitutions, extends to life, liberty, or property. The more complicated issue, however, is how much process is due?
The Supreme Court has promulgated a four prong test to determine this. In each situation, a court must weigh:
-the private interest affected by the official action
-the risk of an erroneous deprivation of that interest through the procedures used,
-the probable value of additional procedural safeguards, and
-the government interest involved.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Does Due process requires the opportunity to be heard at a meaningful time and in a meaningful manner?
Rabon v. City of Seattle (Rabon II), 107 Wash.App. 734, 743 (2001) (citing Mathews, 424 U.S. at 333). Thus, when individuals can show they will suffer irreparable harm from a post-deprivation hearing, courts has recognized that a pre-deprivation hearing is necessary. In the case of orders to euthanize pets, many courts have considered the loss to the pet owner as irreparable.
Before any court hearing can dog owners file a Petition for a Preliminary Injunction?
Dog owners should file a petition for an injunction to delay the killing of the dog until they have had the chance to be heard in court (For an actual example, see Petition for Preliminary and Permanent Injunction in the case of Wilson v. City of St. Louis (1990), which involved a Pit Bull named "Max" who was impounded and classified as dangerous because he allegedly killed the neighbor’s dog. The Circuit Court found that the plaintiff would suffer irreparable harm if the preliminary injunction was not granted and enjoined the city from killing or otherwise harming Max. The court ordered the city to release Max and change his dangerous designation to potentially dangerous.)
Is there any way of overriding a bad decision by a petition for a writ of Mandamus?
Due process includes more than just going through the motions of a hearing. In fact, even after hearings have been granted, decisions can be challenged as a prejudicial abuse of discretion that is not based on findings of fact or law. (This is what the owners of Boo, a bull mastiff who allegedly bit a child, argued in Williams v. Orange County Animal Control (1996)). In this case, owners should file a Petition for a Writ of Mandamus, a judicial remedy issued by a superior court to compel a government officer to do or forbear from doing a specific act, to delay the euthanasia order until the appeal can be heard. This writ of mandamus applies in any situation in which the euthanasia should be stayed, including scenarios in which an original hearing was never given.
What are the minimum standards of Due Process for a hearing for dog owners?
It is now also clear that hearings must meet certain minimum standards. Informal reviews that animal control agencies frequently provide upon the dog owners request often do not fulfill these requirements, because the decision-maker may not be qualified to render the judgment or may not be impartial if he also made the original decision to euthanize the dog. For example, in Phillips v San Luis Obispo County Dept., 228 Cal.Rptr. 101 Cal.App. (2 Dist., 1986), the owners of Missy, a black lab known to have a bad habit of biting children, contested the city’s decision to euthanize her. The amicus brief filed by Joyce Tischler of the Animal Legal Defense Fund pointed out the Municipal Codes at issue did not provide for the Animal Regulation Directors orders to be reviewed by the Chief Sanitarian of the County Health Department or the supervising environmental health officer, the two individuals who presided over the first and second hearings.
Are there any challenges to the animal ordinance itself?
In fact, many city ordinances are flawed in that they fail to specify that owners are entitled to hearings before their pets are euthanized. These municipal codes can be challenged as unconstitutional and, even if the city already granted hearings that met minimum due process standards, the decision to euthanize the pet would still have to be overturned. Otherwise, whether dog owners generally would receive due process would be at the whim of the animal control agency, and the city could avoid having to correct its municipal codes simply by voluntarily giving all dog owners a hearing. The court of appeals in Missy's case agreed, concluding that the ordinances here are unconstitutional for failure to provide for notice and a hearing either before or after the seizure of an uncontrollable biting or vicious dog.
Most recently, in a landmark case, the court of appeals in Mansour v. King County, 128 P.3d 1241 (Wash.App. Div. 1, 2006) held that due process required even more than offering owners a hearing, ordering that an agency seeking to enforce a removal order must prove both the violation and the remedy it has imposed by a preponderance of the evidence. This is the same standard of proof imposed on the government when it attempts to temporarily remove a child from the custody of his parents. By instituting a burden of proof on the city, the court was essentially finding that the dog must be presumed innocent until the city can prove otherwise. Previously, there had been no standard of proof, and reviewing courts would only look to see if Animal Control had acted arbitrarily or capriciously. Thus, even the most minimal evidence that a dog should be removed would suffice, and owners would bear the burden of proving their pets innocent. Moreover, the court found that due process attached not only for orders to euthanize an animal, but also for orders of removal outside the county (Peter Mansour had been ordered to remove his dog from the county or turn his dog over to the city to be euthanized after his dog was accused of killing a cat).
Finally, the court held that due process required Mansour to have the ability to subpoena records and witnesses in his defense, and that the Notice and Order of Violation had to specify exactly what code provisions had been violated. Merely issuing a brief and concise description of the conditions for finding the violation is insufficient. Mansour was entitled to know ahead of time exactly what the County needed to prove at the Board hearing. If in fact it could not prove that Maxine violated a code provision that supported the removal order, he [Mansour] was entitled to know that in time to move for a dismissal at the Board level. Source Reference: Animal Legal and Historical Center.
Are there some significant problems with animal care, control, and dangerous dog laws and euthanasia execution solutions?
1. They do not reduce the number of neglect, abuse, or dog bite incidents that are legitimate in law. By focusing on the after-effects of the animal complaint of alleged neglect, abuse or a dog bite, these laws do not take any measures to prevent future neglect, abuse, animal care, pet owner control, or prevent dog bites. In theory, the risk of animal care and control ordinance punishment is for a motivation to change behavior. But most dog owners do not believe their dogs to be dangerous or the owners to be abusive or neglectful. So the perception is that these animal care and control laws are for 'other' dogs, problem dogs, but not their dog. Then, when a dog complaint, incident or dog bite allegedly occurs, that particular dog owner may face additional liability, but his/her friends and neighbors will not change their habits regarding their own dogs. These animal care and control laws 'do not' work as a viable solution.
2. The animal laws do not take into account the severity of the incident. Most animal care, control and dangerous dog laws cover a huge range of behavior from "threatening displays" to actual bites to simple care, and control of the dog(s). What this means is that you may be as liable for your goofy social dog rushing out the door and charging gleefully at a neighbor as another owner is for an under socialized, aggressive dog who bites a child on the face. Are these equal? Under many dangerous dog laws, they are. Additionally, animal care and control laws are intentionally 'vague' and 'interpretive' by animal control authorities. Thus the facts of alleged animal care and control, is rarely 'pure' and never 'simple.' And may not even be factually the 'truth' except by a personal (opinion) 'interpretation' of the animal control authority.
What does a lack of “due process” for dog owners come down to?
Dangerous dog laws, and animal care and control laws are a feel-good attempt to show the community that that authorities are taking action, even with a simple animal care or control complaint or a dog bite incident.
Unfortunately these animal laws do not provide any protective effects to change animal - owner behavior, merely punishment after the fact. There are many things that a community can do to prevent dog bites, animal neglect, animal abuse, or other care and control issues, including educating dog owners, parents, rural families or farmers, and citizens how to supervise and when to intervene in kid-and-dog, or dog-and-dog, interactions, teaching dog owners how to socialize and train their dogs with methods that encourage friendly behavior and providing some basic animal education about canine body language so the many misunderstandings we have with dogs each day can be reduced in their care and control issues.
Dog owners need to learn how to defend their dogs from ‘rogue’ Animal Control Authorities before they are confiscated, seized, and euthanized before you (as the dog owner) can obtain Legal Counsel.
More questions and answers we need to ask about “Due Process”.
DUE PROCESS is what is missing from the ordinance of animal laws, which are in force in most jurisdictions today.
1. IF YOU ARE FACED WITH CONFISCATION OR EUTHANASIA ISSUES CURRENTLY OR BEFORE.
It is necessary that you seek counsel from an attorney BEFORE you allow any authority to confiscate your dogs, pets, or animals, and ask the attorney to intervene with authorities to stop the process, based on a review of their animal laws being used, that DO NOT contain DUE PROCESS for the pet owners according to law case precedent established in this article and case law. In this way it is very likely the confiscation can be stopped or overturned, based on an unconstitutional law.
2. HOW OT ESTABLISH "DUE PROCESS" WHEN NOT IN A PRESENT DOG CONFISCATION CASE.
It is necessary to make enough flack or waves, thru getting the word out to your local animal control legislators for the jurisdiction you are in, to make them see the light, that current animal control laws and ordinances are UNCONSTITUTIONAL, as they DO NOT contain the lawful DUE PROCESS established by these case precedents in this article containing the case law establishing the requirements for DUE PROCESS before confiscation or euthanasia. It will take aggressive campaigning and raising the flag to the locals to get a campaign going for animal control law reform in your local town, county, and state. But this needs to be done, to change the law to protect the pet owners from the current level of tyranny without law controls on THEM.
3. MOST NEEDED, BUT COSTLY TO THE POCKET BOOK.
The fastest and most public attention gathering method to change the animal laws to include the DUE PROCESS in this article is to have an attorney file a lawsuit against the jurisdiction, CHALLENGING THE CONSTITUTIONALITY of the animal law currently in force. When you establish thru evidence of the LACK OF DUE PROCESS IN THEIR ANIMAL LAWS, in court in a law suit, the Judge will have no alternative but to OVERTURN the current animal law, and it will be thrown out (the law will be) like the dish water for being Unconstitutional and vague. Thus the animal law is nullified, and no longer in force, at that moment, and the legislators will have to START OVER in creating a new animal law, that INCLUDES the ruling of a need for Constitutional DUE PROCESS included in the local animal law.
4. It is not as simple as just telling an animal control authority, that there is no Due Process.
Animal Control like cops will do ANYTHING they DAMN WELL PLEASED to you, UNTIL, and UNLESS, you OBTAIN AN ATTORNEY, to establish legal precedents to stop them. It ALWAYS comes down to working thru an attorney, BEFORE the pets or animals are confiscated or euthanized. The word needs to spread, that people, need top have A PLAN OF ACTION, and ATTORNEY AT HAND, BEFORE they are ever faced with Animal Control, in order to stop them from tyranny. If Animal Control, knocks on your door, and you refuse them entry. You have only the amount of time, it takes for them to obtain a search and seizure warrant from a judge, and their time to come back to you, in order for YOU TO GET AN ATTORNEY AND START THIS NEGOTIATION PROCESS OD DUE PROCESS, if your animal laws do NOT contain the Proper Due Process in the current Animal Laws (which almost every Animal Law in the nation does NOT have).
5. This is what must be done, by every citizen with a pet, to get DUE PROCESS in their jurisdiction.
First off, GET AN ATTORNEY, to represent you, in each case listed above. Preferably an Attorney at Law WITH some experience in Animal Law.
Nicole Zorn, Club Model, and Dean A. Ayers, Director, Animals Club Freedom Inc.
Dean A. Ayers is a prior United States Air Force Special Agent for the AFOSI. His duties included that of law enforcement specialist, criminal, fraud, and counter-intelligence. He was assigned to felony crimes in federal government, fraud, waste and abuse investigations of the military branches of service, and counter-intelligence in overseas locations. Dean was also a former Texas State Commissioned Alamo State Park Armed Ranger. Dean is currently Director, Animals C.L.U.B.- Freedom National Organization Incorporated (Nonprofit) and Dean is also a Lead Investigative Reporter for the NationalDogPress.us Headline News © and AnimalsClubFreedom.us news press services.