October 10, 2005
When animals attack
Last week, I had some correspondence with a local attorney named Bruce Moldovan, whose firm is representing a dog owner in a lawsuit against the city of Houston. It's an interesting case, and as I'm a dog owner myself, I thought I'd write about it.
The case is Pam Wilson v. City of Houston, et al., Cause number 2005-61295, in the 281st District Court, Harris County, Texas. The facts are pretty simple. The plaintiff, Pam Wilson, has two dogs and works at home with an employee. She has a sign on her property that reads “Do not Enter – Please Ring Bell – Beware of Dog”. A courier, whom I'll call C, coming to her house to pick up a package, ignored the sign, entered her front yard through a closed gate, and knocked on the door. The employee answered the door, and both dogs ran into the yard when he did so. As C departed, he claimed to be bitten by one of the dogs. He showed his leg to the employee, who reported seeing no signs of any injury.
Later, C called the Bureau of Animal Regulation and Care (“BARC”) and complained of the alleged dog bite. No formal complaint was filed, no formal statement taken, no affidavit made nor requested. He simply made a call and said he'd been bitten. At this point, Houston City ordinance 6-17 (a) (PDF) takes over. It's a scanned-in printed page, so I can't copy and paste text from it, but what it says is that any animal that is alleged to have attacked someone "shall be impounded at once" and held for ten days to ensure that it doesn't have rabies. Upon its eventual release, Section 6.17-1 calls for the dog to be permanently tattooed with an identification number, so that any repeat offenders can be quickly determined.
What's the big deal about that? Compare to the relevant state law:
§ 822.0421. DETERMINATION THAT DOG IS DANGEROUS.
(a) If a person reports an incident described by
Section 822.041(2), the animal control authority may investigate
the incident. If, after receiving the sworn statements of any
witnesses, the animal control authority determines the dog is a
dangerous dog, it shall notify the owner of that fact.
(b) An owner, not later than the 15th day after the date the
owner is notified that a dog owned by the owner is a dangerous dog,
may appeal the determination of the animal control authority to a
justice, county, or municipal court of competent jurisdiction. An
owner may appeal the decision of the justice, county, or municipal
court in the same manner as appeal for other cases from the justice,
county, or municipal court.
Emphasis mine. The state requires a sworn statement in order to remove and confine a dog. It also allows for the dog's owner to appeal the confinement order to an appropriate court. The City of Houston will seize a dog based on an anonymous phone call, and makes no provision for any kind of appeal. Needless to say, I find that pretty alarming.
Based on that, the lawsuit seeks to overturn Houston's law. In addition to the lack of any kind of due process, the lawsuit claims that the confiscation and tattooing of the dogs represents a violation of the taking clause of the state constitution. From a copy of the plaintiff's petition that Moldovan emailed to me:
For well over a century, the state of Texas has considered dogs to be property protected from unconstitutional takings and condemnation without affording the owner due process of law. See Lynn v. State, 33 Tex. Crim. 153, 25 S.W. 779 (1894) (noting, with specific respect to an owner’s dog, “That towns, cities, or even the legislature, has not the authority to authorize the wholesale destruction of property, without due process of law, we think, is not open to discussion in this state.”). Id. at 780. In enacting provisions relevant to dogs that are a danger to persons in the Texas Health and Safety Code, the Texas Legislature clearly envisioned dog owners being afforded basic notions of due process.
The petition then cites the Texas statute that I highlighted earlier. What's curious about all this is that the Houston statutes were enacted in 1968. How, I asked Moldovan, is it that no one has successfully sued over it before? His best guess is that any time someone had threatened to do so in the past, the city simply gave them their dogs back, thus removing the incentive. In this case, Ms. Wilson did get her dog back in time for them all to evacuate for Hurricane Rita - the city agreed to let her "home quarantine" the dogs while the suit was pending. In turn, she did not seek an immediate restraining order on enforcement of the statute, so the status quo is still in place for now.
The city has not yet filed an answer to this lawsuit - one is not yet due - so that's where things stand now. I'll be keeping an eye on this case and will report back as it progresses through the system.
Posted by Charles Kuffner on October 10, 2005 to Legal matters
Relampago spent several nights in doggie jail in Berkeley, CA under remarkably similar circumstances (uninvited garbage man inside the gate, roommate saw the whole thing, no discernable injury). Fortunately, the Berkeley municipal code has a distinction between "provoked" and "non-provoked" and Relampago's incident was ruled "provoked" so he doesn't have a strike against him.
Keep in mind that the state law is meant to apply in Jasper County and Wise County as well as Harris County. Also, unless I am misremembering, Houston is a home-rule municipality with the authority to adopt its own laws.
The takings argument fails because controlling dogs is clearly a valid and traditional use of the City's police power.
Still, the due process argument may have some merit.
Richard "Racehorse" Haynes, Walter A. Boyd, III, and I are the attorneys for plaintiff Pam Wilson. Jeb, they're taking without due process, let alone without just compensation. But the bottom line is the entire "automatic quarantine" procedure is fundamentally flawed and violative of due processs because the City doesn't require any formal statement from a complainant. Someone can literally phone in a "bite" complaint about a neighbor's barking dog that's keeping him up at night, and he presumably doesn't even have to give his real name, nor does he have to describe the animal. And the neighbor won't get her dog (or dogs, if she has more than one) back until it is permanently tattooed.
Note that whether anyone was injured is irrelevant; what is relevant is that nobody filed a sworn complaint. All we're asking for is that the City afford minimal due process to dog owners and make a bite/scratch/attack complainant actually be a "complainant" and fill out a sworn complaint just like any other complainant would do (and as is called for by the relevant Texas state statute). If I'm going to have your dog quarantined and tattooed, I should at least have to swear to the veracity of my complaint.
If you disagree with me, I'll call BARC and have your dogs forcibly taken away and tattoed (just kidding, but it makes my point).
I need a call from someone who knows more about this. I am attorney dealing with a similar situation. 210-223-5800. Or, email me and I'll call you back. Thanks!
My husband and I had a nightmare with BARC over Christmas and New Year's. Our dog Jack was locked up for 10 days and tattooed, and like the above case, no sworn complaint was filed. I am interested in finding a lawyer to talk to about our case. Please email me with any contacts. Thanks.
Our dog is being taken into quarantine even though he has all his shots. The "law" is based on the "suspicion that the animal has rabies". With shots why is there any reason to suspect this? Wouldn't it be better to force the owners to remediate the dog? We have a witness that said the our dog did not come near the "victim". I don't see how the county can take away our property, not to mention a member of our family, without any recourse or due process. The Animal Control officer was decent about this, but she did not even check to see if our dogs had shots. I wasn't overtly given the name of the accuser or a copy of any complaint. We are just being forced to quarantine within 24 hours with no way to fight it. Houston is infamous for these kinds of assaults on civil liberties.
I have no reason to believe the "victim" has any hostile intent at this time, but I am still deeply disturbed that there is no due process for the confiscation of my property, again much less a family member. Unfortunately, I wonder if there was due process if people would make life even more difficult for the dog if anyone used it and lost. Thats the way it seems to work some times.
Somebody please contact me about this. I would like to help fight these stupid "laws".
I had a similar situation a couple years ago.
The burden of proof is definitely on the dog owner that the dog DIDN'T do anything.
The accuser can say about anything they want and even if it is PROVEN they aren't being truthful they will most likely still win. Been there done that--even have the (copious) court documentation to prove it.
In my case, the justice of the peace required my dog leave the county or be destroyed--a remedy not even allowed under law. The accuser didn't even think it was necessary to see a doctor for any "injury".
So if your dog is accused of being "dangerous" falsely or not:
1). The judge will most likely find for the accuser. Why take a chance--it's just a dog. Besides a judge who is perceived as being tough on dangerous dogs is more likely to be re-elected.
2.)Your insurance company WILL settle--it's cheaper who cares whether the dog really did it? Besides, they can always raise your rates and force you to get rid of the dog so there is no further risk for them.
3.)Finding a lawyer to represent you that has experience in dog related issues will be difficult (if not impossible). There is much more money to be made suing the dog owner.
The Houston City Statutes apply to dogs who bite or attack. It is not intended for dogs who ALLEGEDLY bite or atteck. BARC came over and investigated my neighbor and concluded that their dogs could not have possibly have gotten out of their back yard, but they took the dogs anyway - which is against the City Code. I am thinking of suing BARC for not following the City Code. I'm meeting with our City Councilwoman tomorrow - who is in favor of BARC. We need to force our government to follow it's own laws! You're right, the U.S. Constitution guarantees that we will not lose our property without due process of law!