Judge Finds Law Poorly Drafted but Generally Constitutional
|October 5, 2009||Posted by russmead under Regulation of Pets||
U.S. District Court Judge Charles R. Simpson, III, has struck down as unconstitutional only two provisions of the Louisville/Jefferson County Metro Government Code. These provisions relate to unaltered dogs and bonding and forfeiture of seized pets. Â Â Â
Plaintiffs which include Louisville Kennel Club as well as other dog owner organizations, pet-related businesses, veterinarians and individuals, brought an action requesting the judge declare unconstitutional a number of Louisville’s new ordinances relating to dangerous or potentially dangerous dogs, unaltered dogs, tethering, animal cruelty, nuisances created by pet owners, and seizure, bonding and forfeiture of animals seized for their own protection. The plaintiffs asked the court to enjoin enforcement of all of these laws.
Basically, these plaintiffs wanted the court to eliminate any restrictions on their ownership of dogs including animal cruelty laws, tethering restrictions, management of dangerous or potentially dangerous dogs, and restrictions for allowing nuisance behavior. These plaintiffs also wanted to hamper law enforcement’s ability to rescue pets treated inhumanely.
The judge didn’t buy it and upheld all of these provisions except two.
The Judge found unconstitutional the ordinance, Â§91.022(A)(1) that requires owners of unaltered dogs to obtain written approval of enclosures. The Court said, "There being no apparent reason why the owners of unaltered dogs should be treated differently than the owners of their neutered counterparts, the written approval requirement lacks a rational basis and is unconstitutional." In fact, the defendant, the Louisville/Jefferson County conceded the provision lacked a legitimate government interest. Â
The judge also found a lack of procedural due process, some sort of hearing and opportunity to be heard, under the ordinance, Â§ 91.101, that "mandates permanent forfeiture of a seized animal if the judge finds probable cause [of inhumane treatment or other violation of the law justifying confiscation of the animal] and the owner fails to timely post the appropriate bond."
Judge Simpson explained, "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."
The judge continued, "It is perfectly possible for a judge to find probable cause that a person has committed an offense, but for that person later to be found innocent. Under the scheme set up in Â§ 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."
The judge noted several times in the opinion that the ordinances were poorly or "hastily" drafted. It is almost certain the government will re-draft this forfeiture provision to allow a hearing of some sort, as the judge has required, before permanently taking away pets whose owners fail to pay the $450 bond and for whom there is probable cause to believe they have violated animal protection laws. The judge upheld the rest of the seizure, bonding and forfeiture provisions.
Of note is that Judge Simpson rejected all of Plaintiffs’ other challenges. Plaintiffs alleged that the following provisions of the ordinance are unconstitutionally vague: the "definitions of â€˜dangerous dog’ and â€˜potentially dangerous dog,’ and the exemptions from these definitions; the requirement of â€˜proper’ enclosures for unaltered dogs; definitions of â€˜nuisance,’ â€˜attack,’ â€˜restraint,’ and â€˜cruelty’; the impoundment provision; and the tethering restrictions.Â
Judge Simpson found none of these provisions is too vague for citizens and law enforcement to know what conduct is prohibited. Go here to find these definitions challenged by plaintiffs, the impoundment provision and tethering restrictions.
The judge found none of these provisions violated the constitution. Judge Simpson also rejected the plaintiffs’ claim it was irrational for the government to require written approval of any sale of a dog deemed dangerous or potentially dangerous.
All of the plaintiffs other claims were also rejected: The judge found no issue under the 4th Amendment’s proscription against unreasonable searches and seizures. The judge rejected the ordinances were preempted by or in violation of Kentucky state law.