- Category: Identification
- Created on 22 March 2011
- Last Updated on 20 March 2014
- Written by Fred M. Kray
- Hits: 8830
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
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.
I thought Mr. Eishauser was correct on all counts. If animal control came to my house, I would require a warrant to enter and search, or even take a picture of my dog (until a proper photo line-up was guaranteed). If they wanted to seize my dog, I would require a court order. This would necessitate a description of the probable cause for the search or seizure, and a judge would have to sign off on it.
A neighbor filed a complaint alleging that three “Jack Russell” dogs from Hewlings’ address charged her, circled her and growled, then bit and badly injured her dog. Hewlings acknowledges that while her small Jack Russell-mixed dog Lilah approached the other dog and inflicted a small bite wound, the dog owned by the complainant was on her property, and neither of her other two dogs, which are actually former service-dog Black Labrador Retrievers, came near the dog. Even the neighbor who filed the complaint acknowledged that the third dog was not involved.
Hewlings takes issue with the fact that Orange County Animal Services attempted to impound all three dogs indefinitely while they performed a Dangerous Dog Investigation, based solely on the neighbor's complaint without a thorough investigation or hearing. Hewlings did not want to give her dogs to AC because she feared that they would contract potentially fatal diseases and therefore proposed placing them in an Osceola County facility instead.
Orange County Animal Services denied her request to use the Osceola facility, deemed her an uncooperative owner and sent an Orange County Sheriff's officer to her house. She was cited with five infractions and fined over $1100. Employees from Orange County Animal Services also threatened her arrest.
I am not, nor I have I ever been, a criminal lawyer. In my discussions with Mr. Kest, he advised that the infractions Hewlings was charged with were not crimes, but civil infractions. Such infractions can be prosecuted by the State attorney in the name of the State of Florida or, by the County in what amounts to a civil case. Both require a preponderance of evidence standard. Orange County apparently filed the initial infractions under the authority of the State of Florida, but not under the power of the State Attorney. Confused? Who wouldn't be?
Kest filed several pleadings on behalf of Hewlings:
- Complaint for Injunctive and Declaratory Relief - sets out the facts with affidavits and exhibits - must read it for the full flavor of the actions of Animal Control.
- Motion for Temporary Injunction - asking the court to prevent further harassing Hewlings.
- Motion to Dismiss Citations for lack of discovery - asking for dismissal for failure to provide discovery in the case under the State of Florida aegis.
- Motion to Dismiss Citations - based on probable cause not being contained in the citation, and an illegal attempt to take the dog without a hearing or due process. Kest rightly points out that under the pertinent ordinance, there is no timeframe for the investigation to conclude. Thus, the county in Hewlings was still investigating the case three months after the attempted initial seizure, and no dangerous dog hearing set.
Kest also argues that the Florida Dangerous Dog Law does not permit Orange County Animal Services to harass and abuse their power in the course of an investigation. He points to the threats by multiple Orange County Animal Services employees that Hewlings would be arrested “even though they were well aware they had no such power."
A lot has happened since the initial pleading were filed. Apparently Orange County Animal Control asked Hewlings for photos of her dogs for a photo line up. She sent them 20 pictures of dogs and told them that the three dogs involved were within the twenty photos provided. (Great idea, as it prevents AC from just using the three and ensures there is some kind of fair photo lineup.)
First and foremost, the dangerous dog hearing was held without Mrs. Hewlings or counsel, because Orange County Animal Control failed to mail the notice to the correct address. Even without a defense, the dog was declared not dangerous! The letter from Animal Control finding that the dog was not dangerous based on the complaintant being unable to identify the dog from the photos provided by Hewlings can be read here. It can be argued that photo line ups for dogs should be conducted just as they are for people. However, I think giving animal control 20 pictures and telling them the three dog involved are contained in the packet is a elegant solution to the photo line up problem.
Before the hearing on the citations for failure to give the dog to animal control, the county dropped the charges.
However, they refiled civil infractions for failure to cooperate with respect to the photo lineup. Still pending are charges for owning a dog who causes a serious injury (even though the dangerous dog hearing exonerated the dog) and allowing the dogs to be at large.
This would be just another case of Animal Control officers improperly pressuring an owner to give up his or her dog, except charges were actually filed in a court proceeding. It would seem much like a SLAPP suit. That is, whether Hewlings wins or not, she still will have to hire and pay an attorney and go through the court system to prevail. Dropping charges, filing new charges, seems to me like a way to avoid having a judge rule on what are clearly bogus proceedings. The actions of Orange County Animal Control and the whole citation process seems way out of proportion to the facts of the case. At worst a dog got a puncture wound. There was not even what I would consider a severe injury. Why all of the citations? Either there is something underneath all this we don't know or animal control is out to make an example of Hewlings. Or it could be as simple as the fact that animal control does not like anyone rocking their boat, and if you do, they will extract a pound of flesh from you for doing so.
In any case, what a total waste of the taxpayers money. Shame on Orange County. Hats off to Mr. Kest and Hewlings for sticking with it.