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Omaha, Nebraska Becoming the Dog Death Sentence Capital of the USA?

27 May 09

- Commentary -

By Dean A. Ayers
Lead Investigative Reporter
NationalDogPress.com Headline News ©

As an Investigative Reporter, I was contacted by a known person or reliable character, who owns dogs, as to the following information regarding Animal Control Enforcement in the Douglas County and Omaha. Ne. judicial court system…

1. A witness provided this reporter with a ‘first hand’ account of observing many animal control court cases recently in the Omaha, NE courts. An overview of the judgments were observed to be “Death” Sentences of immediate euthanasia of the dogs involved for various animal control offenses, on a regular and ongoing basis of decisions in the Douglas County, and Omaha, Ne court system.

2. Having spoken to people claiming to be working in the Nebraska Humane Society, they claim that essentially NO DOG is being ‘put to sleep” (also called being “euthanized”) by the Nebraska Humane Society, yet the ‘cats’ are being euthanized at a high rate.

3. In summary of the witness testimony received to date, the alleged employees of the Nebraska Humane Society would give the public the appearance of a ‘no kill’ type of dog environment in Omaha, NE., when in truth, the vast amount of judicial punishment for a vast majority of animal control offenses in Douglas County, NE, and Omaha, Ne is as follows:

Dog “EXECUTION” by euthanasia ordered to be carried out immediately by the Judge!

My question as a Lead Investigative Reporter in Omaha, Nebraska is as follows:

Why are the Judges in the Douglas County, Omaha, Nebraska court system violating the Constitutional Law upheld by the Supreme Court and other Dog Law Cases in unlawfully ordering the euthanasia of a dog without lawful ‘DUE PROCESS’ as follows?

My evidence to support my above question to the Omaha, Ne. judicial system is as follows:

1). Dog’s life has ‘intrinsic value,’ New York judge finds.

Article Source Link:

http://www.thefreelibrary.com/Dog’s+life+has+’intrinsic+value,’+New+York+judge+finds.-a018875469

Finding that a dog “is somewhere between a person and personal property,” a New York trial court said a pet owner whose dog died following unauthorized surgery may seek damages beyond the purchase price of the animal.

In 1989, Herbert Erwin took his five-year-old registered mastiff to the Animal Medical Center in the Bronx for treatment of an infected callus on the dog” leg. The veterinarian told Erwin the callus could be surgically removed or it could be treated by draining it. Erwin opted for the latter, explicitly rejecting surgical treatment, according to court documents.

Erwin left his dog with the veterinarian for treatment. Instead of draining the sore, the veterinarian anesthetized the dog and surgically removed the callus. The dog died the next day due to complications from the anesthesia.

The dog owner asked another veterinarian in the office to perform an autopsy, and he asked that the dog’s body be retained so he could collect it. No autopsy was performed, however, and the body had been disposed of by the time Erwin came to pick it up.

Erwin sued the veterinary practice for negligence, breach of warranty, and loss of companionship. He also sought emotional distress damages since the veterinarian failed to perform the autopsy and disposed of the body despite his wishes. (Erwin v. Animal Medical Center, No. 2603/95B (N.Y. Civ. Ct. Aug. 21, 1996).)

Bronx County Civil Judge Karen Smith threw out all but the negligence claims. No trial date was set to resolve them.

Smith ruled that New York’s warranty statute applies to “goods,” not rendered services and that loss of companionship and emotional distress damages cannot be claimed for the loss of personal property, which a dog is considered under New York law.

On the negligence claims, the defendant argued that, if damages are awarded, they must be limited to the fair market value of the dog. The court disagreed, citing previous cases where a pet’s “intrinsic value” may be considered.

“[A dog] is not an inanimate thing that just receives affection; it also returns it,” the court wrote, citing Corso v. Crawford, 97 Misc. 2d 530 (N.Y., Queens County Civ. Ct. 1979).

Smith, referring to still other cases, said a jury may also consider the dog’s age, health, breed, training, usefulness, and any special traits of value, such as its guarding ability, when setting damages. “Depreciation,” however, cannot be considered because “a good dog’s value increases rather than fails with age and training,” the court held.

2). Demand ‘Due Process’ Before the Government Can Remove Your Dogs

Friday, May 22, 2009

Demand ‘Due Process’ Before the Government Can Remove Your Dogs

Article Link: http://pets.groups.yahoo.com/group/Animals_Club_Freedom/message/8617

Demand Due Process Before the Animal Control Authorities Can Remove or Euthanize Your Dogs by Tyranny.

Due Process should be provided to Dog Owners Before the Government can remove or Euthanize Their Dogs

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 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 has 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 neighbors 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 owners 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 cities 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 Directors 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 under socialized, 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 we are taking action, even with a goat bite incident.

Unfortunately they do not provide any protective effects, merely punishment after the fact. There are many things this community can do to prevent dog bites, including educating parents, rural families or farmers, and citizens how to supervise and when to intervene in kid-and-dog, or dog-and-coyote, interactions, teaching owners how to socialize and train their dogs with methods that encourage friendly behavior and providing some basic education about canine body language so the many misunderstandings we have with dogs each day can be reduced.

Where’s the ‘outrage’ to save an owner’s alleged ‘innocent’ dog?

This case about this lab dog named Niko who is accused of killing a pet goat in Rowley, MA.is a classic case of a failure in justice for all, as it is alleged by sources of anonymity to this NationalDogPress.com reporter, that there is absolutely no proof, the Animal Control Officer (ACO) was allegedly negligent, and the vet did not follow the proper steps to distinguish between a coyote attack and a dog bite. Additionally, repulsive is the alleged fact (from a source of anonymity), that these Boards of Selectmen are spending 10 minutes with a file and issuing a dog the death sentence, and this should ‘outrage’ those of us who follow the Constitution and regard dogs as more than chattel.

Dog Owner’s Defend Your Dogs from Tyranny by Animal Control Authorities and the judicial systems involving animal control issues and citations.

Dog Owner’s Must Demand Due Process BEFORE, your dogs are Removed or Euthanized by Animal Control Authorities. If not you, then WHO, will defend your dogs from tyranny and death.

© NationalDogPress.com Headline News

Article by Dean A. Ayers
Lead Investigative Reporter
NationalDogPress.com Headline News ©

Posted by CODE: RED - Final Notice at 12:14 AM 0 comments

Labels: Animal Abuse | Animals C.L.U.B.- Freedom |DogPress.org, AnimalsClubFreedom.org, Demand ‘Due Process’ Before the Government Can Remove Your Dogs, IowaCongress.org, NationalDogPress.com

Dean A. Ayers
“The truth is rarely pure and never simple.”

http://AnimalsClubFreedom.us/

“United States Officially Certified Site”

Dean A. Ayers is a prior United States Air Force Special Agent for the AFOSI. His duties included that of law enforcement specialist, criminal, fraud, and counter-intelligence. He was assigned to felony crimes in federal government, fraud, waste and abuse investigations of the military branches of service, and counter-intelligence in overseas locations. Dean was also a former Texas State Commissioned Alamo State Park Armed Ranger.

Dean is currently Director, Animals C.L.U.B.- Freedom National Organization and Dean is also a Lead Investigative Reporter for the NationalDogPress.com Headline News © and DogPress.org news press services.

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Posted by http://DogPress.org/ at 8:40 PM

Labels: Animal Abuse | Animal Cruelty | Animals C.L.U.B.- Freedom | Animal Rights Activists | DogPress.org, Animal Cruelty | NationalDogPress.com, Nebraska, Nebraska Humane Society, Omaha
Posted by Dean A. Ayers at 9:50 PM
Labels: Animal Abuse | Animal Cruelty | Animals C.L.U.B.- Freedom | Animal Rights Activists | DogPress.org, Animal Cruelty | NationalDogPress.com, Nebraska, Nebraska Humane Society, Omaha