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What Due Process Should be Provided to Dog Owners Before the Government can Remove or Euthanize Their Dogs?
Jennifer Wang (2007)

 

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

1. the private interest affected by the official action
2. the risk of an erroneous deprivation of that interest through the procedures used
3. the probable value of additional procedural safeguards, and
4. 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.”  Id. at 1250. 


 

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Frequently Asked Questions on Local Dog Laws
Rebecca Wisch (2004)

The following questions represent some frequently asked questions dog owners may encounter.  Remember that dog laws not only vary state to state, but also city to city.  These answers are not meant to provide legal advice, but rather to provide a starting point to research an issue in your own jurisdiction.

 

Can a dog control officer enter my house without permission to take my dog?

Generally, any law enforcement officer must have a warrant to enter your home unless there are “exigent circumstances” involved.  Exigent circumstances, or those conditions that necessitate immediate action by law enforcement officials, do not apply to minor infractions, such as violation of a leash law or licensing ordinance.  Further, several states have adopted statutes that exempt local dog control laws as exigent circumstances for purposes of warrantless entry into homes.  For more on this topic, see Detailed Discussion of Dog Impound Laws.

 

My dog escaped and was impounded.  How long do I have to retrieve him

The time a municipality has to hold a dog may be governed by local ordinance or state statute.  Again, this varies from state to state, town to town, but usually the length of time is anywhere from five (5) to seven (7) days.  In some states, the time period may be shorter.  Note that in many states the clock does not begin to run until notice is given to the owner of a licensed dog.  In many cases, unlicensed dogs are considered “loose” or “at large” and may be subject to immediate impoundment or sometimes immediate destruction.  The best situation is to have your dog wear a collar with appropriate license tags.  If your dog escapes, be sure to check local animal control facilities immediately to put them on notice that you will retrieve your dog as soon as possible.  For more on this specific topic, see Detailed Discussion of Dog Impound Laws.

 

Dog control officers killed my dog even though she wasn’t violating any laws.  What recourse do I have?

There are two approaches that have been used when suing officers who have unlawfully killed dogs.  The first approach is to sue the officer for a violation of due process under law.  The second approach involves a claim of an unauthorized “taking” of property (a dog, since dogs are viewed as property under all states’ legal system).  Both of these suits occur as part of a civil right suit under § 1983 of the United States Code.  These lawsuits charge a deprivation of right while an individual was acting under “color of law.”  Essentially, this means an officer denied someone a constitutionally guaranteed right while carrying out his or her job.  Nearly all federal courts have rejected claims based on due process violations.  However, some are willing to consider unauthorized taking claims based on the misconduct of an officer in killing a dog.  The problem is that a person bringing the suit must overcome an officer’s immunity; that is, the protection a person who works for the government has against lawsuits when carrying out his or her duties.  In general, it is difficult for a dog owner to prevail in these suits unless the officer’s action were clearly outside the bounds of his or her job, or the action was egregious in nature.  A person may also sue a person in state court for damages in the loss of a pet.  Again, however, damages are limited to the market value of a pet (usually a low monetary value).  For further discussion on police shooting pets, click here.  For more on officer liability and impoundment or destruction, click here.  Also see the Pet Damages Topic Area in the Web Center.   

  

What happens if my dog gets loose?

The answer to this question depends on whether your dog has a collar and is licensed.  In some states, a loose and unlicensed dog may be subject to immediate destruction.  Most of the time your dog will be impounded immediately if not wearing a licensed.  A few states put a burden on the animal control officer to take reasonable steps to find the owner of a licensed dog.  Generally, a loose dog will be impounded and notice will be sent to the owner if the owner can be determined.  For more on loose dogs, click here.

 

I can no longer care for my dog and fear I must take him to the dog pound.  What will happen to him?

A dog who is voluntarily surrendered to a dog pound faces the fate of all dogs taken to the pound.  If not sold or adopted, a dog will generally be humanely euthanized after a short period of time.  Keep in mind that many states have provisions that provide for the donation or selling of pets to scientific research facilities.  A state may allow the owner of a voluntarily impounded pet to prevent his or her pet from being sold for research.  Short of adoption, the alternative is generally euthanization.  For more on impoundment, click here.

 

A loose dog is chasing my horses and sheep.  What can I do?

Many states provide that dogs who chase livestock or even big game face destruction or impoundment.  Your state may have procedures in place where you can file a formal complaint against the owner of a dog who chases your livestock.  You can also call an animal control officer who may take immediate measures if the dog is still in pursuit of livestock.  Ironically, animals found to be chasing livestock or big game in certain states face much harsher and immediate penalties than those found to be chasing people.  For more on dogs chasing livestock, click here.

 

What happens if I don’t pay my dog license fee?

Dog license fee are generally set by the locality where the dog resides.  States give these municipalities great latitude in setting fees and dog taxes.  In some states, failure to pay license fees not only prevents the issuing of a license, but may also make the dog subject to impoundment.  The best course of action is to talk to local licensing authorities to see if an arrangement can be made for gradual or partial payment.  For more on dog licensing, click here.

 

Can I let my dog run loose?

The answer to this may depend on whether the locality you live in has adopted an ordinance that strictly prohibits dogs at large.  Some states allow localities to adopt measures by a ballot initiative (a proposal on the ballot that voters must pass to become effective).  Other states prohibit any loose dogs by state statute.  The determining factor whether a dog is considered “loose” may be whether it is in the immediate presence of its owner or whether it has on a collar with dog tags.  In any event, a dog running at will should be collared and licensed and within the owner’s presence to prevent impoundment or injury to others.  For more on loose dogs, click here.

 

The laws in my city seem to conflict with the state laws on regarding my dog.  Which laws do I follow?

The question implicates the issue of preemption:  whether a lower local law is “trumped” by a higher state law.  If the two laws do not conflict, there is not a problem and both laws must be followed.  If, however, the lower law tries to regulate something the higher state law already regulates, then the lower law has been preempted.  State laws usually give great deference or authority to local units to regulate dogs.  But laws that deal with complex and far-reaching issues such as rabies quarantines and dangerous dogs may be exclusively up to the state to regulate.  The local government may be able to help you sort out the conflict in laws.  If following the lower law has led to further problems for you or if you feel following the local law may contradict the state law, consult an attorney.  An argument of preemption may help to invalidate a local law that stretches the municipality’s authority to regulate.  For more on preemption, click here.

 

What types of things can a local government regulate with respect to dogs?

A local government is given broad authority to regulate dogs.  This stems from the state’s “police power” or the power to regulate those things affecting the health, safety, and welfare of its citizens.  The state then expressly or impliedly gives this authority to local governments to regulate things affecting dogs and other animals.  Local municipalities are generally in a better position than the state to determine what specific dog laws are needed.  Remember this power is broad and often swift – such measures will almost always be upheld in court if challenged.  These actions do have to meet constitutional standards especially if notice to the owner is required before an action is taken against a dog.  For more on police powers of local and state governments, click here.  For summaries of some state-by-state dog statutes, click here.

 

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