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Animal Control Beware
Dog Seizure Due Process
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 following:
- 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).
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 have 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 the Hearing: Filing 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.”).
Overriding the Decision - 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 bullmastiff 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.
Minimum Standards of Due Process for the Hearing
It is now also clear that hearings must meet certain minimum standards. Informal reviews that animal control agencies frequently provide upon the dog owner’s 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 Director’s 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.
Challenges to the 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.
There are some significant problems with dangerous dog laws and euthanasia execution solutions.
1. They do not reduce the number of dog bites. By focusing on the after-effects of a bite, these laws do not take any measures to prevent bites. In theory, the risk of punishment is a motivation to change behavior. But most dog owners do not believe their dogs to be dangerous. So the perception is that these laws are for other dogs, problem dogs, but not their dog. Then, when a bite occurs, that particular owner may face additional liability, but his friends and neighbors will not change their habits regarding their own dogs.
2. The laws do not take into account the severity of the incident. Most dangerous dog laws cover a huge range of behavior from "threatening displays" to actual bites. 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 undersocialized, aggressive dog who bites a child on the face. Are these equal? Under many dangerous dog laws, they are.
What it comes down to is this.
Dangerous dog laws are a feel-good attempt to show the community that they are taking action.
Article LINK:
http://IowaCongress.org/
ar_outrage.html
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Postings are provided to give readers information and are not intended as legal advice.
All individuals are urged to contact licensed attorneys in their states regarding specific legal issues.
'ALERT' for Mills County, Iowa Animal Owners; New Dog Taxation and Control Ordinance in Force, "Under the Table" from the Public
NationalDogPress.com Headline News ©
'ALERT' for Mills County, Iowa Animal Owners
New
Animal Care and Control Ordinance for Mills County, Iowa
MILLS COUNTY, Iowa, June 28 (NationalDogPress.com) --
UPDATED: 2 July 09
On 28 June 09, this Lead Investigative Reporter was personally contacted by an individual who requested anonymity and advised the following about animal control in Mills County, Iowa:
On this same date, a neighbor was visited by an officer with the Mills County Sheriff Department regarding a complaint of a dog at large chasing a horse. Upon contact with the neighbor the deputy (not named) allegedly informed the neighbor that any dog running loose off the property had better be licensed per a new animal ordinance in Mills County or the Deputy could issue a citation for dogs at large and confiscate them, sending them to the "ARF" animal rescue shelter. The Deputy allegedly continued stating, “a dog license would have to be purchased from the ‘ARF’ animal shelter”.
The person requesting anonymity advised this Investigator they were unaware of any such ordinance or of any animal shelter in Mills County, and this was the first they had heard of it from the neighbor or Deputy Sheriff. This Investigator was asked to investigate whether Mills County, Iowa in deed has this type of ordinance or animal shelter in force now.
Upon receiving this information, this Investigative Reporter conducted an inquiry into the validity of this ordinance complaint and the following information was disclosed. A review of the following official Mills County, Iowa web site http://www.millscoia.us/announcements.htm does in fact identify a newly proposed animal care and control ordinance dated from 2008 in PDF format.
The last update to the proposed animal control ordinance appears to be 2 June 2008 and it appears to be unsigned or approved in the PDF document. However, the proposal notification on the Mills County, Iowa web site dated 28 June 2009, reflects this animal control proposal is renewed and is now a current animal care and control county ordinance proposal.
You can read the entire animal care and control proposal of 16 pages for Mills County, Iowa at the following link:
http://www.millscoia.us/publicnotices_announcements/Ordinance08-03_AnimalCareandControl.pdf
The complainant who spoke to this Investigative Reporter stated the following about this new animal control information 'coming to light' in Mills County, Iowa:
"It could happen any time," they said. "I'll just be surprised if it doesn't."
Further Investigative inquiries are being conducted to obtain more up to date information on the status of this proposed animal care and control ordinance posted on Mills County, Iowa web site as of 28 June 09.
Stay tuned. This appears to be proposed "under the table" from the county citizen public's view.
UPDATE: 2 July 09
Telephone interviews have verified this ordinance for Mills County (of all unincorporated areas) of the county, is "approved" and "in force" as of 1 March 09.
Welcome to Mills County, Iowa... dog and cat taxation 'without' representation, and animal control tyranny of confiscation, seizure or euthanasia "WITHOUT" legal "Due Process" constitutionally applied in this ordinance.
© NationalDogPress.com Headline News
by Dean A. Ayers
Lead Investigative Reporter
NationalDogPress.com
Email: Dogpressorg@aol.com
Director, Animals C.L.U.B.- Freedom National Organization
"The truth is rarely pure and never simple."
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 and Dean is also a Lead Investigative Reporter for the NationalDogPress.com Headline News ©, and DogPress.org news press services.
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Legal Disclaimer: The information, articles, or links (posted, embedded or otherwise) to the above postings are provided to give readers more information on general dog-related or associated subjects and are not intended as legal advice. All individuals are urged to contact licensed attorneys in their states regarding specific legal issues.
Copyright © 2006-2009, Animals C.L.U.B.- Freedom National Organization, All Rights Reserved
H3N8 Fatal Canine Flu 'ALERT' for All Dog Owners in All States
Dogs have no natural immunity to the virus, virtually every animal exposed will be infected.
United States, July 2, 2009 (NationalDogPress.com) --
This is a reemerging pathogen in 2009 of a potentially dangerous canine flu called H3N8, and there is very little information to make predictions about it's potential spread through the USA at this time. And it appears that the fatality rate is between 1 and 10 percent.
This deadly H3N8 canine flu has been making family domestic dogs and also racing greyhounds ill in the USA. It is known by experts to have jumped from horses in a “very rare event,” say scientists.
Dogs have no natural immunity to the virus, and virtually every animal exposed will be infected. About 80 percent of dogs that are infected with the virus will develop some symptoms, the symptoms are often mistaken for “kennel cough,” a common canine illness that is caused by the bordetella bronchiseptica bacteria.
Both diseases can cause coughing and gagging for up to three weeks, but dogs with canine flu may have fevers as high as 106 degrees and runny noses. A few will develop pneumonia, which is sometimes fatal. Antibiotics and fluid cut the pneumonia fatality rate. The virus is an H3N8 flu closely related to an equine flu strain. It is not related to a typical human flu or to the H5N1 avian flu.
Experts said there are no known cases of the canine flu infecting humans. The risk of that is low. Local veterinary health experts agree.
Still, the reaction for canine's getting this flu can be acute.
But with the human flu season and fears about the recent pandemic human flu scares in the media there is much confusion among some dog-owners who have heard of this canine flu disease.
Just because there is currently a lack of the H3N8 canine flu cases in your city, county and state areas, is no reason for dog people to overreact, or under react to visible symptoms of a dog coughing. It also means dog owners and vets should be aware its out there in the USA, and could strike any area of the USA at any time in the near future.
© NationalDogPress.com Headline News
by Dean A. Ayers
Lead Investigative Reporter
NationalDogPress.com
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A Dog Gone Thankful View of Our Life’s Troubles
A Dog Gone Thankful View of Our Life’s Troubles
By Dean A. Ayers
Director
Animals C.L.U.B.- Freedom National Organization
http://AnimalsClubFreedom.us/
Unlike the dog, are you thankful for everything in your life?
How often do you find yourself depressed because of today’s economic problems, just trying to keep up with the ever rising money problems in our society and home or business budgets? Have you found some sordid comfort in moping about… mulling over your problems? Are you troubled and discontent that your spouse or soul mate does not treat you as you wish? That your wealth is spent, or left to others? Do you complain that your health is broken, or that you are not as well as you should be? Do you pity yourself that you have no true friends? Or that you have too many enemies? Do you envy the prosperous, and grieve that you do not have as nice a home, or such and such a plaything, or cannot go on here or there at your pleasure due to high gas prices? Do you murmur that you have not been given due credit for your labor and sacrifice? Are you in the path of potential incoming hurricanes?
Are you thankful for everything in your life? Are you thankful for your troubles, frustrations, unfulfilled expectations, you fill in the blank? I think it is easy to be thankful for the good things in our lives, but not the difficult things.
In order to comprehend the meaning of this article, you need to start off by reading the following Bible passage to understand your life. 1 Thessalonians 5:16-18 says: Be joyful always; pray continually; give thanks in all circumstances, for this is God’s will for you in Christ Jesus.
As with other people in life, the past few years in my life have been extremely difficult. There is no need to go into all the specifics. Through the difficulties I have learned more about God and Christ's faithfulness and care for me. I have come to God and Christ as a little child and saying, “Please, help me by giving me the strength to learn the answers in life you want me to learn.” I don’t have the answers. When I focus on prayer with God and Christ instead of myself I become renewed and refreshed.
It doesn't take a kick to the head, or a tornado or hurricane in your neck of the woods to know that we cannot get thru life alone, without God and Christ's help. Now, if you had asked me several years ago did I want these particular difficulties – I would have given you a resounding, NO! I would tell you now I would not trade those difficulties for easy times, because of the precious knowledge and growth that occurred in my relationship with God and Christ. The verse that has been my stronghold is “I will never leave you nor forsake you.” Hebrews 13:5. God and Christ have taught me the only sure thing in this world is his love for me and his overwhelming mercy and grace.
Now, please don’t get the idea that you hear me saying, be a “happy” Christian and say Praise the Lord for whatever is happening in your life. God and Christ do not expect us to pretend everything will always be ok to our satisfaction of life's expectations. But we can bring all our hurts and frustrations to God and Christ thru humble prayer.
Being thankful to God is not optional; it is commanded. "In everything give thanks: for this is the will of God in Christ Jesus concerning you." (1 Thess 5:18) You do well to take stock of your life… and be genuinely thankful.
Additionally, to understand life, there's something to be said for learning from our fellow creatures. The dog has the most positive attitude and the most grateful disposition given by God for us to learn from. Yet on the flip side, Eyor the donkey from Winnie the Pooh, represents the other side of that coin. He always chooses the negative view and if he's ever grateful, it's only when he has to be. "I suppose I should feel thankful for something," he might say once a year on Thanksgiving Day, and then go off and brood the rest of the year.
I would encourage you when you are going through trials and tribulations to ask God and Christ what they have to teach you through this difficult time. I know our first reaction is to just pray, “Lord, get me out of this difficulty”, but I would encourage you to go one step further and say, “What do you have to show me?” How can I trust you when everything is crashing down around me? And most important ask god and Christ, "How can my animals help me get thru these difficult times with some peace of mind."
As a mortal person, or as a Christian, or just as a man or as a woman or as a boy or as a girl, as one who walks upon God and Christ's green earth, who breathes His air, who drinks His water, who enjoys His sunshine and His rain, who sees His earthly light, who sees His spiritual light and truth, who has access to all the riches of heaven because of the boundless mercy and love of God through Jesus Christ, who is even called into the deepest fellowship with the eternal loving God -- from Whom every good and perfect gift comes, be thankful. "O give thanks unto the LORD; for he is good: for his mercy endureth forever." (Psalms 136:1) Yes, yes... give thanks. Even for your peace of mind spending time with your dogs.
Your attitude is everything. Imagine just what creature has the most consistently positive attitude, the most grateful disposition. Did any of you think of a dog? Last night I ran across this reading of "The Thirteen Commandments" (from the Canine Old Testament):
- When family members come home, drop what you're doing and run to greet them.
- Let others know when they have invaded your territory.
- Take naps; stretch before rising.
- Run, romp, and play daily.
- Eat with gusto and concentration.
- Be loyal.
- Never pretend to be something you're not.
- If what you want lies buried, dig until you find it.
- When someone is having a bad day, be silent, sit close, and nuzzle him or her gently.
- Avoid biting when a simple growl will do.
- When you're happy, dance around and wag your entire body.
- No matter how often you are scolded, never pout. Run right back and make friends.
- Delight in the simple joys of taking a long walk.
Unlike the dog, who seems practically unable to be other than positive and grateful, and unlike Eyor who was created by Milne to be the epitome of negative and unappreciative, we humans have a choice of which side of the path we want to walk along (the one that's partly shady or the one that's partly sunny), or which cup we pick to drink from (the one that's half empty or the one that's half full). It's the same path and the same cup. We choose the attitude with which we view our world and animals in our lives.
Gratitude to our Lord for all the trial and tribulations in our life is a very positive attitude. It is one way to begin, or to enhance, our focus on being positive in our lives. It is a path to well-being and peace. And the God given companionship of ownership with our pets and animals gives us peace of mind to get thru our various trials and tribulations.
So take a moment now, and think about what you are thankful for. I do. I thank God and Christ every night, no matter how tired or busy I am before bed, and I thank God and Christ, for my attitude and gratitude in sending all my dogs and animals to me, to give me peace of mind during all the trials of my life that I go thru every single day.
No matter how little money and how few possessions you own, having a dog makes you rich. No man or woman can be condemned for owning a dog. As long as he or she has a dog, he/she has a friend; and the poorer they get, the better friend they have. So look at the world a little differently, while thanking God and Christ every night before bedtime, along with thanking your God for your dog and the little things each day in life. Then you just might realize how much you have in life to be thankful for.
© Animals C.L.U.B.- Freedom National Organization
###
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 and Dean is also a Lead Investigative Reporter for the NationalDogPress.com Headline News ©, DogPress.org, and Animalid.biz news press services.
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