http://www.dangerousdoglaw.com

Burden of Proof

Preponderance of the evidence

(Classification will not result in euthanasia)

In cases where the dog is not going to be euthanized as a result of a dangerous dog classification, it appears that the burden of proof is a "preponderance of the evidence."  Mansour v. King, 128 P.3d 1241 (Wash. App. 2006).  This is the lowest standard of proof used in civil cases where the only interest is payment of a money judgment.  It is the "more likely than not" burden.

I believe the standard ought to be higher.  Not beyond a reasonable doubt which is used in criminal cases.  But the clear and convincing standard which is considered an intermediate standard.  It was this standard that was argued in the Appellant's brief in Mansour, although not adopted by the court in its opinion.  The argument, which could not be presented any better, is taken from the Mansour brief:

Mr. Mansour's property interest in a companion canine with whom he cohabits and treats as a family member or child is of some moment, particularly given the evolving status of animals in society and under the law. Extraordinary is the risk of erroneous deprivation in banishing a beloved family member on pains of euthanasia and criminal misdemeanor charges. Although the interest of the Defendants in protecting the public safety from allegedly vicious dogs  is of course legitimate, it is the magnitude of the penalty...and its potential irreversibility (in the event of euthanasia) that outweighs the slightly increased burden imposed on the government by curing any skimping on due process.....The intermediate standard of clear, cogent, unequivical and convincing evidence applies where  more than mere money judgment and less than a generic criminal proceeding outcome is at stake......"There may be merit to the argument that a person's relationship with a dog deserves more protection than a person's relationship with, say, a car." Rabon v. Seattle, 107 Wash. App. 734, 744 (2001)......When facing the execution or forced exile of a beloved family member, or the severe emotional dislocation experienced by an animal's guardian based on these threats, the standard and burden of proof should reflect the gravity of the deprivation.

The "clear and convincing" standard should be argued in every case.

It should also be made clear to the fact finder that the burden of persuasion is on the government, and they have to prove every element required in the ordinance.

In Florida, that would include the issue of provocation.  The defendant does not have to prove the dog was provoked. The government must prove the attack was unprovoked.