Orlando—Refusal to Give Dogs to AC a Crime?

Orlando Animal Control at your Door to Impound your Dog—Is Refusal to Give the Dog to Animal Control a Crime? Identification and Photo Line Up Issues

The Hewlings Case

catchpoleThere is a long held belief in the legal community that Animal Control officers do not have the power to enter your house without a warrant or seize your dog without your consent.  The way the Animal Control officers act, and what they say, do not convey this lack of authority.  In fact, my experience is just the opposite. The Hewlings case is a perfect example of pugnacious animal control behavior.  The facts of the Hewlings case are covered here. The link provided is to a lawyer website.  However, the lawyer handling the case, Michael Kest, has since left that firm to open his own. He can be reached at   This email address is being protected from spambots. You need JavaScript enabled to view it. .

We'll get to the case in minute. My thoughts on "What To Do When Animal Control Comes Knocking," have been similar to the instructions written by attorney George Eigenhauser in an article with the same name, which can be read in its entirety here. I encourage you to read it.

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Identification

Improper and Prejudicial Photo Identification

In every case I have ever seen or been involved in where identification of the dog is an issue, it has been done improperly.  After receiving a description or descriptions of a dog, they find the dog they think it must be, take its picture, and ask the victim "Is this the dog?"

There is no attempt at fairness.  There is no attempt to have a proper photo line up.  There is no warning that the dog involved may not be shown.  The victim is shown one photo, and asked if that is the dog that was involved.  In criminal law, there are requirements for a photo lineup. There must be similar individuals.  You cannot show all white people and one black person if the perpetrator is alleged to be black. You cannot say that the perpetrator is definitely contained in the photo line up.  These are due process rights that have evolved over years of experience with bad eyewitness identifications.

Yet in every dangerous dog case, identifications are made from one photo.  I have not seen a reported case where such an identification has even been challenged. 

It is clear to me, that most people would have a very hard time specifically identifying dogs within the same breed. I think animal control knows this, and is quite content to have a one photo lineup. 

If you are lucky enough to get a case before a photo identification is made, I would not allow my client to participate until the same safeguards used in criminal law are used by animal control. If an improper photo lineup has been used, I would object to it. 

And if you are forced to trial in such a case, I would bring in a dog that looked liked the one involved in the case (but is not the dog involved in the case), and ask the victim to identify it. It is possible the judge would not allow the dog to attend (in some jurisdictions, the dog is specifically excluded from trial).  In that case, take dogs of the same breed or likeness, create a proper photo lineup, and see if the victim can identify the correct dog. If not, move for dismissal.

You've got to use common sense though.  If you own a great dane, for example, and it is the only one within miles of the incident. it is unlikely that the above tactics would help.  You've got to know the dogs in the neighborhood and surrounding area.  If there are dogs nearby that look like the one involved, you have a better chance of sucess.

More on the criminal case law requirements will be posted shortly.

Dangerous Dog Law

Helping to defend our best friends. Dangerous Dog Law (DDL) focuses on the legal defense of allegedly dangerous dogs. DDL is a member of the Pit Bulletin Legal News Network.

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