"Dangerous Dog" Ordinance is Unconstitutional

Judge: Dog ordinance unconstitutional By Bill Morlin
Staff writer
December 1, 2007
Video reports Watch video: Owners reunited with their
dogs
Spokane's "dangerous dog" ordinance is unconstitutional because it denies
pet owners the right of due process, a Superior Court judge ruled Friday in
a case that may have far-reaching effects.
As a matter of law, the administrative procedures used in the city of
Spokane regarding "dangerous dog" determinations and appeals from those
rulings violate citizens' due process rights, Judge Robert Austin said in
his ruling.
It came in the case of Patty Schoendorf, a 57-year-old resident of the
city's West Central neighborhood. Her dog, a 1½-year-old boxer and golden
Lab mix named Kenny, and her daughter's 4-year-old border collie and black
Lab mix, Tai, were impounded in mid-August by SpokAnimal officers working
under a city animal control contract.
The ruling suggests the City Council now must correct the legal issues
with its "dangerous dog" ordinance and provide more constitutional
protections to citizens whose animals are picked up and destroyed, sometimes
in a matter of days.
In the current system, dogs tagged as "dangerous" by the city and its
contractor, SpokAnimal, are deemed to be that unless the owner can prove
otherwise – flying in the face of the notion of presumed innocence.
City Attorney Jim Craven said he would have a comment after reading the
judge's four-page ruling. It's the latest legal setback for the City
Attorney's Office and the City Council, which recently granted a 26-month
contract extension to SpokAnimal.
Shortly after the judge released his 4-page ruling, Schoendorf, her
daughter, Emily Kaeding, and their attorneys, Cheryl Mitchell and Richard
Lee, raced to SpokAnimal's facility at 710 N. Napa late Friday afternoon for
a tail-wagging reunion with Kenny and Tai.
They are home this weekend after spending more than three months in
solitary confinement while Schoendorf paid $14 a day and hired a team of
attorneys to keep them from being euthanized. She was only allowed two
visits – sticking her fingers through the chain mesh – after the court
intervened.
"I've been praying for this day for so long," Schoendorf said Friday
afternoon, nervously fondling her dog's leash. SpokAnimal officials had her
spend several minutes signing legal papers before the dogs could be
released.
"I think I'm going to give him a steak bone, even though I can't afford
one after all this," Schoendorf said when asked what she would do with her
dog this evening. Tai, who spends days at Schoendorf's home, went to another
home with Kaeding.
They were being held in the public-restricted "dangerous dog" area – sort
of a doggy death row – where dogs labeled dangerous are euthanized within 14
days unless their owners pay $98 in advance, demand a hearing and get a
Superior Court restraining order preventing them from being destroyed.
"Most poor people can't afford to fight the city like this, so they just
lose their dogs," Schoendorf said.
SpokAnimal officers alleged her dogs killed a neighborhood cat in late
July, but Schoendorf says the contract dog catchers grabbed the wrong black
and tan dogs. She said 13 other sets of black and brown dogs live within a
two block radius of her West Central home, but she wasn't given an
opportunity to make that case before a city hearing examiner.
The judge said the city violated Schoendorf's constitutional rights by
taking her property – her dogs – and intending to destroy them after a
hearing where she wasn't allowed to cross-examine or impeach witnesses
involved in the dogs' impoundment.
She also wasn't given access to documents in the city's "dangerous dog"
file and the opportunity to rebut those allegations – another denial of due
process guaranteed by the Constitution.
The judge not only ordered SpokAnimal to immediately release the dogs, he
ordered the city to pay as-yet undetermined legal bills for a team of
attorneys.
"The attorney fees are going to be pretty healthy in this," said attorney
Robert Caruso, who worked with Lee of his firm and Mitchell, who specializes
in animal rights legal issues.
Mitchell said she has "been fighting" with the city and its contract that
allows SpokAnimal to pick up dogs and label them dangerous on the spot, even
if they have returned home, as Kenny and Tai had done after someone opened
the gate at Schoendorf's home.
Her adult son was there Aug. 16 when SpokAnimal control officers said they
had come to pick up two black and brown dogs, tentatively described by an
80-year-old man who witnessed a cat mauled by two dogs in late July. The cat
later died.
"They told my son, 'If you don't give us those dogs, we're going to arrest
you and put you in jail,'" so he went in the house and handed over the two
dogs," Schoendorf said. Her third dog, a golden retriever named Hannah,
escaped attention and remained in the home.
After getting off work that day, Schoendorf went to SpokAnimal and was
told she would have to pay $98 in advance – $7 a day for each dog – to keep
them from being euthanized while she filed an appeal with City Hearing
Examiner Greg Smith.
At the informal hearing, witnesses were not given an oath, Schoendorf
said, and she wasn't given a chance to challenge their version of events,
accusing her dogs of killing the cat. There also were documents given to the
hearing examiner by SpokAnimal that she wasn't allowed to see, she said.
The hearing examiner ruled her pets were "dangerous dogs" and said they
could be returned to Schoendorf and her daughter only if they posted a
$100,000 bond per animal, had them wear muzzles any time they were outside,
and built a special concrete-floor outdoor kennel posted with "dangerous
dogs" signs.
After lining up Mitchell and Caruso's law firm, where she works as a
paralegal, Schoendorf instructed the lawyers to get a restraining order to
prevent SpokAnimal from euthanizing her dogs while she appealed the hearing
examiner's dangerous dog ruling to Superior Court.
Mitchell drafted the legal papers, asking the judge to declare the city's
dangerous dog ordinance – part of the Spokane Municipal Code –
unconstitutional.
"I'm absolutely delighted," Mitchell said of the ruling. "Finally, a judge
has told them – the city and SpokAnimal – they have to have rules and follow
the Constitution."
The judge said dogs clearly are property, so a government agency must
comply with due process provisions of the Constitution when seizing animals.
The judge said the city and SpokAnimal failed to identify a "standard of
proof" – the legal criteria – in labeling dangerous dogs.
"Similarly, in this case, the appellant (Schoendorf) was at no time during
the hearing allowed to cross-examine the witnesses testifying against them,"
Austin said. "In addition, the appellant was not given, prior to the
hearing, certain documents used in the hearing."
Furthermore, the judge said, instead of a presumption of innocence that
accompanies most legal proceedings, the burden of proof shifted to
Schoendorf to prove her dogs weren't the dangerous dogs responsible for the
cat's death.