Wednesday, January 13, 2016
Sunday, August 12, 2012
Email from me July 27, 2012
to
Shiawassee County Sheriff
Sheriff Braidwood called me, left message, I called him, left message, he called and I picked up the same time as my answering machine started to record. He said "Shut that thing off" lol ....What's he gonna say that can't be recorded? Nothin'...He said, "When is your birthday?" and I said, "Go to hell." lol Then he just turns on the charm and smoothes everything over. This is a young guy he's just trying to do his job yada yada yada ........... I might have bought it all until I saw the young guy's wild report...
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Where is my date of birth on his report that he needed so badly that he had to insult an harangue me over it?
and include on his report that I "became very confrontational".?
I suppose any future calls he will be accompanied by a SWAT team.............
to
Shiawassee County Sheriff
George Braidwood
Yesterday, Thursday, July 26, 2012, sheriff’s deputy knocked on my door. I was on the phone at the time. I put calls on speakerphone and hook the cordless phone on the collar of my shirt. I told my caller there was a sheriff’s deputy at the door and she was going to let me go. I told her, “NO, you stay on the line.”
It was the animal control officer (ACO) who had a few things to say:
“ I’ve had a report of dogs barking along Bennington Rd. I didn’t realize you were this close to Bennington Rd. They heard the dogs across the field. Even if they were barking there is nothing I can do about it. I know your dogs are fine. The lady that was here when I did the inspection…………
What was your name? What is your birthdate?”
OK, there was some back and forth in there.
I said, “I know there is nothing you can do. Why didn’t you tell them to mind their own damn business, or move back to the city if they don’t like country sounds.
I know my dogs are fine. I don’t need you to tell me my dogs are fine.
My name is Kay Lorraine, you don’t need my birthdate.”
ACO, “I need it for my report. It is probably already in the system. But what is it?”
I said, “3/9, you don’t need the year” ACO, “1953”, Me, “That’s close enough”
ACO, “What is it?” Me, “You don’t need that”
He was getting a bit perturbed. ACO, “You should be glad that I’m checking on the welfare of your animals. If you were a decent person you would tell me. Nobody else has a problem. A girl told me hers just a little bit ago. She was 16.”
Me, “She’s too young to have a problem with it. What are ya gonna do? Arrest me because I won’t tell you my birthdate? I’m not a decent person.”
ACO, “I’m just gonna leave it at that and leave.”
Fine by me, near as I can tell he had no business knocking on my door anyway. There is nothing he can do about dogs barking. He don’t even know if it was my dogs barking. “Along Bennington Rd covers quite a bit of territory and we are a quarter mile from Bennington Rd. “Across a field”, also covers quite a bit of territory. Across what field? From where?
So how did it get to he was“checking on the welfare of my animals”? That’s bullshit. He already said he knew my animals were fine. Now, I don’t kiss his ass and he is “checking on the welfare of my animals” and I’m not a decent person. Bullshit, bullshit. I’m thinking this was nothing but a harassment call and I’m sure he could be out catching a dog running loose somewhere.
I spoke with one of my neighbors“along Bennington Rd”. This officer didn’t stop at their house. So , I’m just an easy mark for him? He knows I have dogs and even if it is a bit of a stretch to say I’m located “along Bennington Rd”, that is close enough for him to knock on my door over something he can’t do anything about even if it was my dogs.
Whoever called in could “hear the dogs across the field”. There are probably only two people that could ever possibly hear my dogs “across a field”. I know they did not make any such call. This guy not very smart about locating the source of such barking, but then………….I’m an easy target. If he thinks I am a willing an eager easy mark for any and all dog complaints in this corner of the county, he just better think again. That I will not be. He had no business being here at all. I know you have at least one decent detective on the force that should have been able to figure out any such barking did not come from my house. Who cares……….nothing to be done about it anyway. So I chalk it up to just another harassment I must endure? No, I don’t think so. He can stay off this property. I’ll have to put up my sign again. The one that says “No Trespassing and Unauthorized land use fee $5000 per day per person.”
His lame excuse does not warrant anything anywhere close to “probable cause”. He had probable cause to approach and question the houses along Bennington Rd. Maybe, he really didn’t, since there is no law about dogs barking across a field, he had nothing! I don’t think he even talked to anyone along Bennington Rd. We are at least a quarter mile from Bennington Rd. His ruse about “checking on the welfare of my animals” was just that, a ruse made up out of thin air. My dogs don’t need him checking on their welfare.
Well, if he were a decent officer of the law he would do some better detective work and not go around harassing people for no good reason.
I trust you to make sure there will be no such further harassment.
Sheriff Braidwood called me, left message, I called him, left message, he called and I picked up the same time as my answering machine started to record. He said "Shut that thing off" lol ....What's he gonna say that can't be recorded? Nothin'...He said, "When is your birthday?" and I said, "Go to hell." lol Then he just turns on the charm and smoothes everything over. This is a young guy he's just trying to do his job yada yada yada ........... I might have bought it all until I saw the young guy's wild report...
Then I decided to FOIA and see just what ended up on his reports and how he spent his day, since he wasted a lot of it on something he should not have bothered with. He doesn't respond to calls about cats, there are no state laws or county ordinances about cats, nor is there for barking dogs. A complete and total non-issue. AND, come to think of it, even if there were any kind of law or ordinance about barking dogs, who is paying for him to be chasing down barking dogs? The Dog Law of 1919 says the dog license fee may be set sufficient to cover the cost of administering the Dog Law of 1919....and it doesn't say anything about barking dogs.
Interesting................This is the FOIA as the FOIA COORDINATER forwarded it to the Sheriff's dept..
You can click on these copies and that will enlarge them enough to make them just barely legible..
click on them again and it will make them full page.
You can click on these copies and that will enlarge them enough to make them just barely legible..
click on them again and it will make them full page.
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Customary letter accompanying response to FOIA.
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Basic Event Listing - apparently this was all the calls for animal control this day
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911 Event Report
Ah - the complaint
Location: 100 W Bennington Rd
from the complainer at 350 W Bennington Rd
who also mentions dogs on Cook Rd and he is not sure if they are neglected or not.
Well, can't say I can blame all the asshole part of it on the aco.
Sure I can, apparently he didn't even question this guy and he later told me he knew my dogs were fine. Seems like that knowledge should have put some suspicion on this jerk. Nope, he just trotted right on over to my house. I haven't figured out what he did around 100 W Bennington. He kinda blows past that in his report.
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OMG - he can pick up a stray dog! That is the first I have KNOWN that to happen. All I hear is people telling me they call AC and get no response and if they do get a response it is to say they won't be running about trying to catch anything.
Aw yes, now here is the "Field Contact" report at my house. It kinda resembles what was said when he was here, "kinda".
He never mentioned anything about 100 W. Bennington when he was here and this report only says he arrived in the area of 100 W Bennington/S. Cook Rd.
He never mentioned anyone had made statements about whether the dogs were neglected.
He never mentioned a complainant had pointed in the direction of my house - across a field.
I never stated I was the only one in the area with dogs.
He did not "advise" me about any complaint.
If he had no suspicion, why was he here?
I refused to give him my full date of birth. I was not confrontational about it, not even close.
He became extremely 'annoyed' that I would not give him my full date of birth.
First he used examples, then insults. I gave him month/day. He guessed 1953, I said that was close enough. Then he insisted I give him the year. I refused. Then he went to his examples and insults.........again. He said, "If you were a decent person you would tell me. I need that for my report." I told him I wasn't a decent person and still refused to tell him. He finally said he would get it off the records and left. No doubt there is more I should say, but I will leave it at that.............
Where is my date of birth on his report that he needed so badly that he had to insult an harangue me over it?
and include on his report that I "became very confrontational".?
I suppose any future calls he will be accompanied by a SWAT team.............
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So, I emailed Sheriff Braidwood, again
So, I FOIA’d your animal control officer’s reports for July 26, 2012.
There is an Event Report, Event ID 2012-031821
Location 100 W Bennington Rd/S Cook Rd
Caller: Garrett Rood
350 W Bennington Rd
Notes: Include dogs who own dogs down on cook rd that bark so loud that his dogs are barking…etc
Not sure if the dogs are neglected or why they are barking all the time
There is an attachment that says “ANIMAL COMPLAINT at 100 W BENNINGTON RD
Ok, that barely resembles what your ACO told me when he was standing at my door. First off he needs to learn how to speak English. “Somebody complained about dogs barking along Bennington Rd.”
Is what he said. What is the truth. “Somebody along Bennington Rd complained about dogs barking at !00 W Bennington Rd and also on Cook Rd.”
That“somebody” who complained just happens to be the home where they have had a dog tied to a dog house 24/7/365 for years. The original one may have died and maybe he has a new one. Talk about a neglected dog…………..people are disgusting.
Then he has a “Field Contact” at 4244 S Cook RD (that would be me) Case # 2012-00360
I don’t see where he contacted anyone at 100 W Bennington Rd.
I certainly did not state I was the only one with dogs in the area. I don’t know that, unless you want to consider “the area” as being the 5-10 acres around my house, maybe as much as a ¼ mile around my house. Kind of a long ways away for anyone to be complaining about any barking. I also consider “the area” to be more than just these sections of land.
I refused to give him my birthdate, but I certainly did not “become confrontational”, let alone “very confrontational”. I don’t much appreciate that stupid lie. Did I ever tell you how much I hate liars?
At the beginning he said he knew my dogs were fine. I told him I knew they were fine and I didn’t need him to tell me that.
He kept insisting, haranguing, insulting me in an attempt to bully me into giving him my birthdate, he needed it for his report, he guessed he could get it off previous records. That didn’t work so he puts in his report that I became very confrontational. That’s a lie. Plain and simple.
Guess what? He left the “PERSON INFORMATION”section of the report form blank. Guess he didn’t need my birth date so much after all. So why did he get so ugly about it? Did I mention I hate liars?
He has been busy with the fair and I haven't heard back from him, yet.
Don't really care whether I do or not.
Friday, December 30, 2011
59) Important Win for Dog Breeders
December 2011
Important Win for Dog Breeders
Louisville Bulldog Owners Win in Federal Appeals CourtIn November, the United States Sixth Circuit Court of Appeals published its decision in the case of O’Neill v. Louisville/ Jefferson County Metro Government. The court�s decision in favor of the O’Neills signals an important win for both the O’Neills and for dog owners across the country.
Read the opinion here: http://www.ca6.uscourts.gov/opinions.pdf/11a0287p-06.pdf
THE FACTS
In 2008, James and Angela O’Neill bred their Bulldogs for the first and only time, and advertised some of their 11 puppies for sale in the local newspaper. Posing as potential puppy buyers, two undercover agents of Louisville Metro Animal Services answered the ad and were invited into the O’Neill’s home to see the puppies.
They left the home, but returned almost immediately with several uniformed Animal Services officers and demanded to see their breeder’s license. Without a warrant or the O’Neill’s permission, in fact, over their specific objection the officers immediately entered the O’Neill’s home and took all of the dogs to the Animal Services facility, claiming they were operating an unlicensed kennel. The following day, the O’Neills were able to recover their dogs after paying over $1,000, and only after each dog was microchipped and the adult dogs were neutered and spayed. The O’Neills sued in federal court, but all of their claims were dismissed. They appealed their case to the Federal Sixth Circuit Court of Appeals, which decided several important issues in their favor.
THE DECISION
In writing for the court, Judge Ronald Lee Gilman, who was joined by Judge Raymond Kethledge and Judge Thomas Ludington in the opinion, made several key decisions in favor of the O’Neills.
First, Judge Gilman found that the O’Neills were not operating a Class A kennel out of their home, as the lower court ruled, and were therefore not required to obtain a breeder’s license to sell their litter of puppies.
(Additionally, because it found that the district court wrongly determined that the O’Neills were operating an unlicensed kennel, the appellate court held that the state law claims for trespass, conversion, and outrage were erroneously dismissed.)
Second, the court noted that Metro Animal Services was not able to rely on the consent initially given to the undercover agents for the later entry into the O’Neill’s home. To enter a person’s home, government agencies usually need to secure a warrant or receive the homeowner’s consent to enter. The court therefore deemed the action a violation of the O’Neill’s Fourth Amendment right against unreasonable search and seizure.
Third, Judge Gilman wrote that Metro Animal Services never gave the O’Neills proper notice during the invasion and seizure as to what provisions of the animal control ordinance they reportedly violated.
Proper notice, usually in the form of a citation along with a chance to contest the citation, is required by both federal and state procedural due process laws.
Therefore, the court held that Metro Animal Services violated the O’Neill’s procedural due process rights.
Judge Gilman, however, also affirmed the lower court’s dismissal of several of the O’Neill’s arguments, including their substantive due process and equal protection claims.
THE IMPACTThe case is far from over. It has been remanded to the District Court for further proceedings in line with the appellate court’s decision, and an appeal can be sought.
Additionally, the direct impact of the case as valid law is limited only to the geographic limits of Sixth Circuit of the federal appellate court system, which covers Kentucky, Michigan, Ohio, and Tennessee.
It may be used only persuasively throughout the rest of the country.
However, the importance of this holding cannot be overstated, especially for dog breeders. As reports of overzealous enforcement of animal control laws have become more prevalent, the O’Neill decision should serve as a reminder that it is the right of people to be secure in their private property from illegal law enforcement actions.
The American Kennel Club congratulates the O’Neills and everyone associated with their case on this important victory.
For more information, contact AKC’s Government Relations Department at (919) 816-3720, or e-mail mailto:doglaw%40akc.org.
Thursday, November 18, 2010
58) Pinheads - AGAIN
BOC 11/18/2010
2011 Budget public hearing
Animal Control reduced budget and
closing shelter
2011 Budget public hearing
Animal Control reduced budget and
closing shelter
a1
Humane Society-Marlene Fick
Kay Lorraine-Lauro
Kay Lorraine-Lauro
a2
Cindy Livingston
Cindy a little off base at the end. Four of these commissioners will not be coming back for another term. Two quit, two were voted out.
b1
b2
b3
b4
b5
Monday, February 08, 2010
57) Illegal v. Unconstitutional Laws--New Development in Louisville KY
Illegal v. Unconstitutional Laws--New Development in Louisville KY
Sunday, February 7, 2010 8:25 PM
From: "Elizabeth Brinkley"
On October 1st of 2009, federal Judge Charles Simpson ruled in the case of Louisville Kennel Club et al v. Metro Louisville/Jefferso n County KY that the section of the Metro Animal Ordinance which allowed for a forfeiture bond was unconstitutional because it had the potential to deprive an innocent person of their property (pets) through the mechanism of not being able to post a cash bond rather than by being found guilty in a court of law. In fact, they could be stripped of their property/animals BEFORE going to court, much less found guilty of anything.
Judge Simpson found this to be so egregious, that he issued a PERMANENT INJUNCTION against it ever being carried out.
Now, this law was reviewed inumerable times BEFORE it was enacted. The last page of the law even bears the nice big seal and signature of then-County Attorney (and now state judge), Irv Maze saying it was all hunkey-dory by him and passed his department's legal 'sniff test'.
However, that's just standard procedure. In truth, while County Atty's can advise Councils that a law they want to pass is unconstitutional or could be rendered invalid due to some other legal challenge, they have no authority to prohibit Councils from passing legislation that is faulty. Add to that the fact that most folks elected to local (and even state) legislatures have NO legal training and are not required to know or understand anything about law and you have the ingredients for what passes today as 'leadership' in America.
But what happens when not even the County Attorney is aware of (or cares) that a proposed ordinance is unconstitutional or faulty?
Since Simpson's decision came out, Metro Council has been scrambling to fix the current ordinance (which had several other problems beyond the forfeiture bond issue). They've gone through a couple of drafts on this, and the most recent one came out of the County Atty's office just this week. And it contained... forfeiture wording!
When the key Council person contacted Bill Warner, the County Atty who has been redrafting the ordinance to ask why in the name of God it still had a forfeiture provision, Mr. Warner told him it was 'Because Pam Rogers (Kentucky's HSUS representative) wants it in there.'
HELLO! Who elected Pam Rogers to office? Where did Pam Rogers attend law school to be put in a position to give LEGAL ADVICE to a County Atty on how to craft a law that will affect all taxpayers in this county? And, wasn't it this same woman who insisted on the forfeiture wording in the original ordinance to begin with, which resulted in the county being sued and having to shell out a large amount of moolah to the plaintiffs?
When the Metro Council member pointed out to Warner "That provision will only affect poor people" ATTORNEY Warner replied, "So what?".
Can they pass an amended version of the ordinance that is still not constitutional? Yes. Will the new law be legal? Yes. Until it's challenged in court.
In the meantime, even though they might pass a revised law that includes forfeiture, Simpson's permanent injunction remains in place. Could the new law be used against someone? Yes. But the moment it is and we find out about it, the County will be found in contempt of court and that particular bond will be declared null and void by Simpson. Let's just hope that in the meantime, nobody loses their pet because of how much the HSUS 'cares' for animals.
Permission to x-post
Barbara Haines
Sunday, February 7, 2010 8:25 PM
From: "Elizabeth Brinkley"
On October 1st of 2009, federal Judge Charles Simpson ruled in the case of Louisville Kennel Club et al v. Metro Louisville/Jefferso n County KY that the section of the Metro Animal Ordinance which allowed for a forfeiture bond was unconstitutional because it had the potential to deprive an innocent person of their property (pets) through the mechanism of not being able to post a cash bond rather than by being found guilty in a court of law. In fact, they could be stripped of their property/animals BEFORE going to court, much less found guilty of anything.
Judge Simpson found this to be so egregious, that he issued a PERMANENT INJUNCTION against it ever being carried out.
Now, this law was reviewed inumerable times BEFORE it was enacted. The last page of the law even bears the nice big seal and signature of then-County Attorney (and now state judge), Irv Maze saying it was all hunkey-dory by him and passed his department's legal 'sniff test'.
However, that's just standard procedure. In truth, while County Atty's can advise Councils that a law they want to pass is unconstitutional or could be rendered invalid due to some other legal challenge, they have no authority to prohibit Councils from passing legislation that is faulty. Add to that the fact that most folks elected to local (and even state) legislatures have NO legal training and are not required to know or understand anything about law and you have the ingredients for what passes today as 'leadership' in America.
But what happens when not even the County Attorney is aware of (or cares) that a proposed ordinance is unconstitutional or faulty?
Since Simpson's decision came out, Metro Council has been scrambling to fix the current ordinance (which had several other problems beyond the forfeiture bond issue). They've gone through a couple of drafts on this, and the most recent one came out of the County Atty's office just this week. And it contained... forfeiture wording!
When the key Council person contacted Bill Warner, the County Atty who has been redrafting the ordinance to ask why in the name of God it still had a forfeiture provision, Mr. Warner told him it was 'Because Pam Rogers (Kentucky's HSUS representative) wants it in there.'
HELLO! Who elected Pam Rogers to office? Where did Pam Rogers attend law school to be put in a position to give LEGAL ADVICE to a County Atty on how to craft a law that will affect all taxpayers in this county? And, wasn't it this same woman who insisted on the forfeiture wording in the original ordinance to begin with, which resulted in the county being sued and having to shell out a large amount of moolah to the plaintiffs?
When the Metro Council member pointed out to Warner "That provision will only affect poor people" ATTORNEY Warner replied, "So what?".
Can they pass an amended version of the ordinance that is still not constitutional? Yes. Will the new law be legal? Yes. Until it's challenged in court.
In the meantime, even though they might pass a revised law that includes forfeiture, Simpson's permanent injunction remains in place. Could the new law be used against someone? Yes. But the moment it is and we find out about it, the County will be found in contempt of court and that particular bond will be declared null and void by Simpson. Let's just hope that in the meantime, nobody loses their pet because of how much the HSUS 'cares' for animals.
Permission to x-post
Barbara Haines
Thursday, October 08, 2009
56) Due Process - Louisville
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
THE LOUISVILLE KENNEL CLUB, INC., ET AL. PLAINTIFF
v. CIVIL ACTION NO. 3:07-CV-230-S
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT DEFENDANTS
ORDER
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
THE LOUISVILLE KENNEL CLUB, INC., ET AL. PLAINTIFF
v. CIVIL ACTION NO. 3:07-CV-230-S
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT DEFENDANTS
ORDER
For the reasons stated in the Memorandum Opinion entered this date, IT IS HEREBY
ORDERED AND ADJUDGED:
2. Section 91.101 of the Louisville/Jefferson County Metro Government Code of Ordinances is declared unconstitutional insofar as it threatens to deprive pet owners of their property rights without a finding of guilt. Plaintiffs’ motion for summary judgment (DN 20) is GRANTED in this respect, and Metro’s motion for summary judgment (DN 27) is DENIED to the same extent. Metro is hereby enjoined from enforcing § 91.101 in the manner just described.
1 Ordinance No. 290, Series 2007, “An Ordinance Amending Chapter 91 of the Louisville/Jefferson County Metro Government Code of Ordinances (“Code”) Pertaining to Unaltered Dogs, the Waiver of Metro Animal Service
Fees Due to Financial Hardship, and the Quarantine of Animals (Amended by Substitution).” The Court will refer to this legislation as “the ordinance.”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
THE LOUISVILLE KENNEL CLUB, INC., ET AL. PLAINTIFF
v. CIVIL ACTION NO. 3:07-CV-230-S
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT DEFENDANTS
MEMORANDUM OPINION
………edited out other sections and only included those that apply to this….
One provision allegedly requires forfeiture of certain pets without adequate “procedural” Due Process. A fourth set of provisions, it is argued, authorize illegal warrantless searches and seizures of pet owners’ homes and property
………edited out other sections and only included those that apply to this….
III. Procedural Due Process
Plaintiffs claim that § 91.101 of the ordinance threatens a citizen’s right to a fair hearing before being deprived of property. Before delving into the governing jurisprudence, we think it wise to determine how the ordinance operates.
As with other sections of the ordinance in question, § 91.101 seems to be the victim of hasty drafting. Entitled “Confiscation of Victimized Animal,” its purpose is to allow the authorities to take possession of an animal that has been the victim of any of several forms of inhumane treatment.
These include (inter alia) failure to provide necessities, abandonment, mutilation, and “exhibition fighting.” Section 91.101(A) provides that an animal found involved in a violation of any of these prohibitions may be confiscated by an animal control officer, evidently for its protection.
Once an animal has been confiscated, subsection (B) provides for a hearing before a judge. That judge is to determine whether probable cause existed for the confiscation. If so, the owner must post a $450 bond within 24 hours to cover the cost of 30 days’ boarding and veterinary care for the animal, which remains in the city’s possession. A new bond must be posted every 30 days, and failure to do so results in immediate forfeiture of the animal. The ordinance does not say what happens if no probable cause is found, but the implication of the bond and forfeiture provisions, coupled with general background notions of justice, must be that absent probable cause the animal is to be returned to its owner.
Section 91.101(B)(1) goes on to provide that upon a plea or finding of guilt, the animal’s owner becomes responsible for all costs created by the impoundment. (That is, any bond he has posted is not returned, and he must pay any outstanding amount due.) Further, the animal in question becomes property of the city. If the accused is found innocent, subsection (B)(2) provides that any posted bond is to be returned to the owner. The ordinance does not explicitly provide for return of a seized animal if its owner is found to be innocent. Again, however, context leads the Court to conclude that returning the animal on a finding of innocence must have been the Metro Council’s intent. There is, first, the obvious fact that this is the just result of such an adjudication. In addition, it makes little sense for the government to return the posted bond—leaving it on the hook for all the animal’s expenses up to the acquittal—and then to hold onto the animal at its own further expense.
Finally, the last sentence of subsection (B)(1) states: “Upon conviction, all animals not forfeited pursuant to subsection (B) herein above shall become the property of the Metro Government.” This implies that, prior to conviction, ownership of the animal does not change. After an acquittal, then, the original owner retains his rights, and the city has no further basis for holding the animal.
The construction offered above solves two problems with § 91.101, allowing for the return of a confiscated animal upon a finding of either no probable cause or innocence (if the bond has been duly paid). But a third problem lingers. It is undoubtedly the case that the ordinance mandates permanent forfeiture of a seized animal if the judge finds probable cause and the owner fails to timely post the appropriate bond. This provision is evidently meant to ensure that the owner of a confiscated dog has an interest in posting the bond: If he could refuse to do so and then wait for an adjudication of guilt, he might never have to post before getting the dog back (if he is found innocent), or he might lose his ownership of the dog (if he is found guilty) and thus any incentive to pay the past-due boarding and veterinary costs. The result is that a person whose dog has been confiscated, and against whom there is probable cause that he violated one of the humane treatment requirements, will lose his dog permanently unless he posts bond, even if he is ultimately found innocent of the underlying charge. This possibility presents a legitimate due process claim.
Claims under the “procedural” arm of the Due Process Clause are governed by the balancing framework set up by Mathews v. Eldridge, 424 U.S. 319 (1976). Determining how much process is due in a given case involves consideration of three factors:
(1) “the private interest that will be affected by the official action”;
(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”;and
(3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335.
As plaintiffs argue, pet owners clearly have a property interest in their animals. See Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 180 (Ky. 2006) (recognizing that dogs are personal property). This interest is not absolute and is subject to regulation by state and municipal governments. Id. Nonetheless, the government is not permitted to deprive an animal owner of his property without due process of law. The question is not whether process is due, but rather how much is required.
We therefore inquire into the second prong of the Mathews test. As the procedure stands, the risk of erroneous deprivation of this property interest is significant. It is perfectly possible for a judge to find probable cause that a person has committed an offense, but for that person later to befound innocent. Under the scheme set up in § 91.101, if such a person was unable to put up $450 immediately upon the probable cause finding, his pet is forfeit and he has no apparent recourse for its recovery, even if he is ultimately found innocent of the underlying charge. There is thus a high risk of erroneous deprivation, which some sort of additional hearing, appeal, or late-payment process could remedy. Moreover, the government has little interest in keeping ownership of pets belonging to innocent citizens. Presumably most of the animals kept under this ordinance have to be euthanized, lest the burden of boarding and caring for them grow too high. The government does not articulate any interest whatsoever in its brief—it does not even cite Mathews—and the Court is unwilling to fabricate one. Consequently we must hold that the portion of § 91.101 that would permanently deprive a pet owner of his property, absent a finding of guilt, is unconstitutional.
It seems likely that § 91.101 is poorly drafted and does not properly represent the intent of its authors. However, this Court is not in the business of authoring or revising legislation. As a remedy for the constitutional failing just described, the Court will therefore enter an injunction against enforcement of the ordinance in the manner just described. Applications of § 91.101 that do not infringe the constitutional right to due process of law may continue.
Saturday, October 03, 2009
55) WOW and YAY - YAY - YAY FINALLY
Another big animal seizure. This one in Houston.
http://www.click2houston.com/news/21164605/detail.html?dsq=18446644#comment-18446644
The way it works.
1. Somebody says the animals are in deplorable conditions, abused, neglected.
2. The SPCA (or whoever) confiscates ALL the animals
3. They charge the owner for the "care" of the animals (that would be whatever care they deem necessary - only in some instances they have neglected to continue the treatment the animal was already on - under the direction of a vet)
4. There is some time delay in getting to court.
5. There is a whole lot of time delay if the person pleads not guilty and goes to trial
6. In some places the judge can order the animals disposed of before a trial
7. Should a person win in a trial they might get some of their animals back, not likely all, and guaranteed any they do get back will be so damaged as to be unrecognizable.
8. The person would have to pay for the "care" of the animals before they could get them back. Apparently these people providing the "care" can charge whatever they like and run up ridiculous vet bills, as well. $213,000 in Houston, mostly for rodents.
Nobody can afford that, and yes, it does work the same for children.
It isn't enough that the government has to run how children are raised, now they have found a new victim. People who raise animals.
But this news came today.
WOW!
Well, guess that just may be the way it used to work.
WOW! This is the greatest thing since sliced bread!
--- On Sat, 10/3/09, goodthingimrich barbarajhaines@ wrote:
This past Friday, very late in the day, the federal judge finally issued his decision in the case of Louisville Kennel Club, et al vs. Metro Government.
The final ruling ran to over 20 pages and will have sweeping impact on a national level as well as here in Louisville, which was always part of our strategy. Below is the notice from LKC President, Donna Herzig, which clarifies some of the decision:
"This is a great decision. Judge Simpson found that the determination between altered and unaltered dogs is without merit and therefore the requirement of inspection of enclosures for unaltered dogs by Animal Control is unconstitutional.
"He additionally found that dogs are personal property [under the 14th Amendment to the US Constititution] , and the requirement of a seizure bond (where you must post a bond upon a showing of probable cause and if you cannot post the bond your animals become the property of the state, city etc.)is unconstitutional and a finding of guilt must occur before a court can take your property.
"The judge issued an injunction prohibiting the city from enforcing these provisions.
"With respect to the Fourth Amendment issue, the Court dismissed it because the city agreed with us. However, the Court spent a lot of time discussing the Fourth Amendment and stated that notwithstanding the ordinance seeming to allow for seizure without a warrant for tethering violations, for some cruelty issues and for any violation of the ordinance (a provision used by Meloche to seize animals for violations of his alleged Class A requirements) the Court reasoned that no ordinance provision nullifies a warrant requirement so as to those seizures LMAS must obtain a warrant prior to seizure.
"Moreover, while the Court did not strike down many of the definitions, it could have just left it at that. Instead the Court went point by point and clarified the statute as to what was permissible and what wasn't .
"Notwithstanding the story in the Courier Journal--I am not sure that they read the same opinion--we had a major victory on the issues that matter on a national basis.
"While Judge Simpson did not deal with the state issue, the veterinary issue which was the most important one, was addressed by a recent change in the state law which makes veterinary records confidential and does not permit release of them unless a court order is issued or the owner gives consent in writing.
"Since we prevailed on our Sec. 1983 issues, we will file next week for attorney's fees which are mandatory under the statute. We are hopeful that we will receive a substantial reimbursement. "
A big 'Thank you!' to every individual and every club that donated to our legal fund. This has been a great victory on the most substantive issues possible, and opens the door to citizens everywhere being able to sue for damages against similar ordinances.
--Barbara Haines
******
I must get a copy of that decision..and I will post it everywhere!
http://www.click2houston.com/news/21164605/detail.html?dsq=18446644#comment-18446644
The way it works.
1. Somebody says the animals are in deplorable conditions, abused, neglected.
2. The SPCA (or whoever) confiscates ALL the animals
3. They charge the owner for the "care" of the animals (that would be whatever care they deem necessary - only in some instances they have neglected to continue the treatment the animal was already on - under the direction of a vet)
4. There is some time delay in getting to court.
5. There is a whole lot of time delay if the person pleads not guilty and goes to trial
6. In some places the judge can order the animals disposed of before a trial
7. Should a person win in a trial they might get some of their animals back, not likely all, and guaranteed any they do get back will be so damaged as to be unrecognizable.
8. The person would have to pay for the "care" of the animals before they could get them back. Apparently these people providing the "care" can charge whatever they like and run up ridiculous vet bills, as well. $213,000 in Houston, mostly for rodents.
Nobody can afford that, and yes, it does work the same for children.
It isn't enough that the government has to run how children are raised, now they have found a new victim. People who raise animals.
But this news came today.
WOW!
Well, guess that just may be the way it used to work.
WOW! This is the greatest thing since sliced bread!
--- On Sat, 10/3/09, goodthingimrich barbarajhaines@ wrote:
This past Friday, very late in the day, the federal judge finally issued his decision in the case of Louisville Kennel Club, et al vs. Metro Government.
The final ruling ran to over 20 pages and will have sweeping impact on a national level as well as here in Louisville, which was always part of our strategy. Below is the notice from LKC President, Donna Herzig, which clarifies some of the decision:
"This is a great decision. Judge Simpson found that the determination between altered and unaltered dogs is without merit and therefore the requirement of inspection of enclosures for unaltered dogs by Animal Control is unconstitutional.
"He additionally found that dogs are personal property [under the 14th Amendment to the US Constititution] , and the requirement of a seizure bond (where you must post a bond upon a showing of probable cause and if you cannot post the bond your animals become the property of the state, city etc.)is unconstitutional and a finding of guilt must occur before a court can take your property.
"The judge issued an injunction prohibiting the city from enforcing these provisions.
"With respect to the Fourth Amendment issue, the Court dismissed it because the city agreed with us. However, the Court spent a lot of time discussing the Fourth Amendment and stated that notwithstanding the ordinance seeming to allow for seizure without a warrant for tethering violations, for some cruelty issues and for any violation of the ordinance (a provision used by Meloche to seize animals for violations of his alleged Class A requirements) the Court reasoned that no ordinance provision nullifies a warrant requirement so as to those seizures LMAS must obtain a warrant prior to seizure.
"Moreover, while the Court did not strike down many of the definitions, it could have just left it at that. Instead the Court went point by point and clarified the statute as to what was permissible and what wasn't .
"Notwithstanding the story in the Courier Journal--I am not sure that they read the same opinion--we had a major victory on the issues that matter on a national basis.
"While Judge Simpson did not deal with the state issue, the veterinary issue which was the most important one, was addressed by a recent change in the state law which makes veterinary records confidential and does not permit release of them unless a court order is issued or the owner gives consent in writing.
"Since we prevailed on our Sec. 1983 issues, we will file next week for attorney's fees which are mandatory under the statute. We are hopeful that we will receive a substantial reimbursement. "
A big 'Thank you!' to every individual and every club that donated to our legal fund. This has been a great victory on the most substantive issues possible, and opens the door to citizens everywhere being able to sue for damages against similar ordinances.
--Barbara Haines
******
I must get a copy of that decision..and I will post it everywhere!
The AKC already posted it for me.
http://www.akc.org/pdfs/canine_legislation/LKC_Metro_Govt_100509.pdf
hmmmmmm, copy and paste the link, I'll figure it out one of these days.
This means: ( I think.)
1. There must be probable cause to get a warrant to search for and seize your animals. (no change)
2. No up front bond to care for the animals seized.
3. No charge to take care of animals until a finding of guilty.
4. Anyone who has had animals so seized and charges for care assessed before a finding of guilt may.
…….A. Sue the organization that seized the animals
…….B. Sue the individuals that seized the animals individually.
There are a lot of potential lawsuits out there.
This is not the same as a decision handed down by the Supreme Court, but it does lend substantial credence to any lawsuit.
I hope people who have suffered through this go for it.
There is no statute of limitation on this issue.
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