http://www.dangerousdoglaw.com

Burden of Proof

(Classification results in euthanasia)
Forfeiture
Clear and convincing standard

In cases where a dangerous dog classification will result in euthanasia, the government is essentially involved in a forfeiture of property. As argued in Oliver v. Clay County on behalf of "Pip" and "Liliy:"

Due process rights attach to dog ownership. Pasco v. Riehl, 620 So 2d. 229 (Fla. 2nd DCA 1993), affirmed 635 So. 2d 17 (Fla. 1994). Accordingly, Pip and Lily are Petitioner's property which under the law may not be taken from her without providing her procedural and substantive due process. Further, the government's permanent deprivation of Petitioner's property interest in Pip and Lily is a forfeiture.See Brinkley v. County of Flagler, 769 So 2d 469 (Fla. 5th DCA 2000). "[B]ecause section 828.073 contemplates the loss of an unfit owner's right to possession or custody of his or her animal due to the neglect or mistreatment of that animal, we find that an action brought pursuant to this section constitutes a forfeiture action and is protected by the Fourth Amendment." While Brinkley, 769 So. 2d 469, involved seizure of neglected animals, the permanent, and in this case uncompensated property deprivation imposed upon Petitioner in this matter is just as drastic.

Judge Collins final order states that the County had "sufficiently proven that Pip and Lily attacked and caused severe injured to Ms. Hosinger, and therefore, should be euthanized." Judge Collins' order does not reveal how substantial he considered the County's burden of proof to be, however, the government's burden in forfeiture proceedings is clear and convincing evidence. Dept. of Law Enforcement v. Real Property, 588 So 2de 957 (Fla. 1991), City of Miami v. Wellman, 976 So 2d 22 (Fla. 3rd DCA 2008). 

If you are faced with euthanasia as a result of a dangerous dog classification, you must argue this higher standard of proof and emphasize that the government has the burden of persuasion as well.