Animals C.L.U.B.- Freedom
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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.
National Animal Identification System (NAIS) threatens animal's lives. All of them. (Part 1 of 3).
The National Animal Identification System (NAIS) is promoted as pro-health, but actually NAIS threatens animal's lives.
NAIS is a 48 hour tracking system to CULL (KILL) you're animals and the farmers and ranchers. All of them.
27 May 08
By Animals C.L.U.B.- Freedom Investigative Reporters as follows:
Pamela M. Stoeklen-Olson
www.triplelranchtraining.tk/
Animalid.biz Equine Investigative Reporter
Chris O'Connell
Hat Creek Ranch
Minnesota
Animalid.biz Equine Investigative Reporter
Dean A. Ayers
Lead Investigative Reporter
NationalDogPress.com Headline News ©
USDA claims NAIS is voluntary while 4-H states it is mandatory
If you've visited your local feed dealer or veterinarian recently, or read any of the dozens of livestock or poultry magazines targeted at small farmers, you probably already know what NAIS stands for. The National Animal Identification System is arguably the most hated federal program in rural America. The plan, released in draft form in April 2005 by the U.S. Department of Agriculture (USDA), proposed sweeping changes in the way animals are managed on small farms and homesteads. It called for registration of livestock premises and individual animals in national databases, and for tracking animal movements.
The USDA draft called for all places where even a single livestock animal is held (farm, back yard, veterinarian office, fairground and slaughterhouse) to be given a unique seven-digit number and registered in a national database, along with its Global Positioning System coordinates and the name, phone number and address of the owner. It further proposed that every livestock animal (including cows, horses, llamas, pigs, sheep, goats, ducks, geese, turkeys and chickens) be individually registered and tagged with a 15-digit number, via a Radio Frequency Identification Device (RFID), often called a chip. An exception would be made for animals raised as a group for their entire life cycle and never separated (such as birds or hogs in confinement settings), which could be assigned a group or lot number. Last, the draft proposed that the movements of any animal leaving the home place would have to be reported to the national database within 48 hours.
The USDA draft plan stated that the program would be mandatory, phased in over several years. However, eventually the USDA proclaimed that the program would be voluntary at the federal level. This reversal came after an unprecedented outpouring of opposition from farmers and livestock owners across the country. Many opponents are linking the USDA change of heart as a tactical move in favor of a more subtle method to make everyone comply with NAIS, via mandatory requirements at the state, organizational, and business levels of mandatory compliance. A true example of this is that this month (May 2008) in Southwestern Iowa, kids in Iowa 4-H have been informed that they can no longer participate in 4-H with their horses, or other animals, unless their parents register their property containing the horses with the NAIS. This was reported 'first hand' by the Iowa 4-H victim's father, to Dean A. Ayers, Lead Investigative Reporter, NationalDogPress.com Headline News © service.
Nationally, horse owners were upset at the thought of having to report every trail ride. Backyard poultry raisers wondered where in a baby chick is the best place to implant an RFID ID chip, and why should they even have to comply as an individual owner not business person. Small farmers, cattle and equine ranchers are worried about how they could afford the RFID chips, monitors, software and reporting systems necessary to comply. In actuality, under NAIS, if you ever, at any time, fail to properly and timely report any movement of your animals, off your premises, at that point and forever in the future of that failing, you are essentially in violation of a Federal regulation and essentially, can be treated as a criminal for not reporting your pig's movement off your own property, even if it only just escaped it's holding pen.
Under NAIS, let me summarize that again, so you really get it . You fail to properly and timely report an animal movement off your property to NAIS, you become a criminal in violation of a federal regulation.
NAIS Going to make Farmers into Criminals
Pamela M. Olson, Equine Investigative Reporter, stated the following: A few days ago I had a veterinarian come out to Triple L Ranch (to treat a horse that needed his care), he is an Elder Gentlemen, and I asked him what he thought about the NAIS. He replied, We don't want that here in MN. (Vet from northwest MN). I was pleased to hear this. However even though this program invades our Constitutional Rights I am not sure anything can be done to stop the federal government from making states comply and conform. To what they, the Government is calling a needed implementation, to control the spread of disease.
In reality, I believe, this to be the Governments way of controlling the last of the free farming industry in this country, our family farms, our hobby farming, and self-sustainable farmers (these are usually the farmers that bring food to your farmers market). What the USDA and the NAIS is really going to do is make criminals out of the small farmers, the folks that make up your farmer markets, the people you buy your farm fresh eggs from, the farmer down the road that you may buy a half a beef from. If the farmer can't afford to comply with NAIS they will be made into legitimate criminals (unless they sell off their way of life) even though their constitutional rights are being invaded.
· How will the implementation of the NAIS affect the backyard farmers. Many questions still exist that the USDA have not adequately answered.
Today the Equine Owner must have a coggins test to take your horse off your property (that is even if you are taking them to the state park that may be 1 miles from your home). Some states require a Brand Inspection (purpose is to show ownership of the horse in case of theft) on all horses on your property or off your property (brand inspections are not expensive and are equal to that of a city dog license). States that will require a Brand Inspection Certificate are states that have or at one time had open range laws in place. Some states require that any horse on your property must have a current coggins test.
All states require a health certificate to move your horse across the border and even some states require a State Veterinarian number to allow the horse into the state this is at no cost to the owner and really just states where the horse is dropped off at.
Pamela M. Olson continues stating, for example if I am having my mare breed in IL I have to call the State Veterinarian Office and get a 'number' for my horse that has nothing to do with the NAIS. This has been going on for years and costs me nothing. It is in place in case there is an epidemic in the state. Things like this have been in place for many years and are adequate in tracking equine. There is more to the NAIS than meets the eye and I will try to help you understand what they the government is doing to make innocent farmers into criminals.
· If the NAIS is made law how can they expect compliance from the small time farmer? If you can't comply you will have to sell off your animals to those that can comply.
Pamela M. Olson believes this is big industry, at their best, as they want you to buy your beef at the grocery store and also want control over the market {I am sure you have all checked out the price of a steak at the local grocery store recently}. The NAIS has nothing to do with epidemic control, as we already know there are epidemic controls already in place and they have been doing the job for years here in the US.
Who is going to cover this cost for the animal rescues (who are over flowing with animals and have minimal funds), and for the small farmers who maintains pigs, chickens, goats, and sheep on their farms for self-sustainable farming and to feed their neighbors in farming communities?
Who is going to cover the cost of this implementation of this program when they coming knocking on your door?
What about the costs of record keeping, vet cost, cost of the RFID chipping device, and the computer programs needed to comply?
And the Veterinarian costs will be two times a year due to the fact that the vet will have to give all shots and what if they included your worming regime in the program and make that vet mandatory than you pay for more charges? Can you afford more than one horse?
NAIS Article Continues - Part 2 of 3
· For the equine owner the NAIS is coming through the back door of the registriesPamela M. Olson states, the NAIS will require registered horses to be put right into the NAIS registry data-base (no choice, no voluntary program). You can write your registry and demand that your horse not be included in the NAIS list but if it is mandatory to the registry I don't see how you can be excluded. But if you register a horse this year you may want to include such a letter with the registration, you may down the road end up getting into a class action lawsuit down the road against the NAIS and Registries. The only way to insure you are not automatically registered with the NAIS is to not register your horse with the horse registry or ask your registry if they do this prior to registering your horse. If enough people complain or make a stand against the registries together we may make a difference. .So call your equine or animal registries and ask them not to sell out to the NAIS program. According to the AHA (Arabian Horse Association 2007) they are already seeing the number of registered horses drop. This trend will continue in all registries as people fight to keep out of the government's NAIS program.
· I believe the NAIS is not a program to maintain a system for reducing an epidemic
These epidemic identification programs have been in place for years regarding animals for human consumption through the USDA, but NAIS appears to me, to be a program that wants to know who has what animal, on their property, and gives the government the ability to track and tax horses that have been sold. As this happens they will turn the horse market into a black market and horse farmers into criminals who can't afford to comply with regulations put upon us by federal to state legislation. (It is just like when the federal government back some 27 years ago when they were told the states would lose their highway funding if they don't raise the drinking age to 21 and I believe most if not all states complied.)
· Who is going to pay for the RFID chips (Radio Frequency Identification Device) in the animal's skin to be in accordance with the NAIS regulations
Pamela M. Olson goes on stating, as of recent I am aware the NAIS is going to exclude birds kept in the same flock all their lives to have these chips. Here is the problem: I raise chickens and I let some be born on my farm and I also purchase chicks. If the chicks I purchase from other farms are coming to me with RFID chips I don't want them. So I have to raise my own chicks but what if I give a few chicks to the neighbor for their hobby farm? Do I have to chip my chicks before I give them to my neighbor?
Here is an interesting scenario and true to my farm: We have on our farm 27 horses (most are rescues [we are a private rescue], someone dropped off 11 pigs in the middle of the night, and the other day dropped off another dozen, we have chickens (29). I am increasing my flock to 100 in order to keep up to the orders I have just to feed my community because the cost of food is so high. (I don't make a living off them but they feed us and they feed the neighbors and I make enough to purchase the feed.) Between two families here we also have 5 dogs, and two cats (that got out and took off for the woods). I have no idea how I could afford to have all my animals chipped and have the vet give all the shots to them. Right now they get shots we give them ourselves. If I had to pay the vet to give all the shots it would be impossible for me to do what I am doing. Horses need immunization shots and if they make it mandatory that only vets can give the shots and they are no longer available to me at the local Farm Store my horses won't get their shots. We buy our beef from a farmer down the road and we don't pay very much for our beef but if the farmer has to RFID chip all his cows and report everything he will be forced to sell out, so he is not a criminal and we will be forced to buy our meat at the local grocery store from cows who have been feed in feedlots not out on green pasture and corn.
Who can afford to spend the money to chip dogs and cats that can get out of the house and run away or get hit by a car. I can see the need for this to find them if they are a show animal. But for a regular pet? Will pets only become something for the rich and not for people of all walks of life? Will we have to form a Reservation or move to the Reservations to be able to own our animals without Government control?
· What are the Humane Societies going to do when the adoption prices go higher?
The price to adopt a dog or a cat at this time is outrageous so can you imagine what the cost will be when you have to cover the cost of RFID chipping the animal. Will pets be excluded from the NAIS? As of yet NO, they are included.
· So will non-profits be excluded from NAIS? Will the Private Rescues also receive exclusion?
Since the closure of the USA slaughter plants the Equine Rescue Farms are over ran with animals for many of them there is no funding available to comply to the NAIS regulations. There are an abundance of private rescues opening up with people paying for the care out of their modest income if they are required to comply what will happen with the horses; the rescues are already full to capacity.
And there will be a lot of horse owners who have 2 or more horses that they will be trying to find homes for because they will not be able to comply to the rules and if they can't sell the horses do to the low horse market and people in fear of purchasing do to the fear of the NAIS Program. Has anyone thought about what will happen to these animals?
Well the owners will become criminals by not complying with the NAIS regulations set forth. I have already heard of people letting their horses go on public lands. There will be more of this if NAIS comes into being or LAW.
Pamela M. Olson declares, "Our Constitutional Rights being invaded."
FIRST AMENDMENT: The First Amendment of the Bill of Rights guarantees Americans the right to the free exercise of religion. Many Christians cannot comply with the NAIS because it violates the free exercise of their religious beliefs. For example, the Old Order Amish believe they are prohibited from registering their farms or animals in the proposed program due to scriptural prohibitions. Others simply hold that NAIS violates their personal beliefs-you do not need to belong to an established religion to exercise your first amendment rights.
FOURTH AMENDMENT: The Fourth Amendment guarantees the right to privacy and security against unreasonable searches and seizures.
The requirement of households and small farms that own animals to register the premises so that the Department can subject these premises to satellite surveillance is a clear violation of the Fourth Amendment and the right to come on ones property and seize animals that do not comply is in strict violation of our rights.
FIFTH AMENDMENT: The Fifth Amendment guarantees protection against the loss of life, liberty or private property without due process of law. The NAIS allows the Department of Agriculture to seize privately owned animals without due process.
FOURTEENTH AMENDMENT: No State shall make or enforce any law which shall abridge the privileges or immunities of US citizens nor deprive them of life, liberty or property without due process of law. Much of the "authority" for NAIS will come through legislation on the state level. That is being pushed down their throat by the Federal Government Entities.
Pamela M. Olson sums up her investigative reporting on NAIS as follows:
The most important part of this report is that the Government is going to make criminals out of Good Law Obeying Citizens.
The farmers are the threads that hold this country together in small communities and they are trying to take this right away from us. I have recently been trying to give pigs away to other farmers and the replies I have gotten one that really stuck out in my mind was a lady who replied she would love to take a couple she had pigs for 20 years however with the fear of the NAIS around the corner, she doesn't dare get anymore farm animals. She said, with what she has read, she fears having to sell the farm to comply with all the regulations of the NAIS. This made me realize how scared people really are and has put me in a situation of trying to figure whether I have to switch to a nonprofit or stay a private entity. Turning non-profit to me makes me feel like I am selling my soul to the Government but I feel I am being pushed into a corner and is the only way I am going to keep my way of life.
For the horses on my property do not belong to me, they do not belong to the Government they belong to God and I am but there Caretaker and we do that the Triple L Way with Lots of Love and Laughter and will care for any horse or farm animal that is dropped off on our farm and thank the Lord for them.
However in the eyes of the Government I will be a criminal because we will not comply and give up our Constitutional Rights without a Fight for Freedom in America.
( NAIS Article Part 3 is located below)...
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