Overview
 A person who is
injured by a dog should not testify at a "dangerous dog hearing"
unless she is represented by an attorney who is entitled to fully participate
in the proceedings, an experienced lawyer presides over the hearing,
and the attorney defending the dog is confined to producing evidence
about the dog's suitability.
The victim should not communicate with animal control authorities
until her lawyer reviews the city and county ordinances, obtains the
department's committment as to which laws and procedures they will
be following, and is satisfied that the issues addressed below will
be resolved fairly.
Furthermore, the victim should not release
all hospital or other medical records for use in such hearings.
If the
governing city or county ordinance does not protect the victim's rights,
and if the attorney for the dog owner refuses to cooperate, then the
victim should be advised that she should not participate. (This advice
assumes that the animal control department does not have subpena power;
if it does, then the subpena must be obeyed but the victim's attorney
should advise the victim as to its bounds.)
City,
county and state lawmakers need to revise existing dangerous dog laws
and dog court procedures so that the dog owner's right of due process
does not eclipse the victim's right of privacy, her right to seek
compensation under the rules of fairness of our civil justice system,
and the public's right to streets that are safe from killer dogs.
Background
All states have
statutes that pertain to dangerous dogs, and most states allow counties
and cities to enact local laws that govern dogs and their owners. There
are literally three sets of laws that govern dangerous dogs in many
places. For example, California has a dangerous dog law, Los Angeles
County has its own, and the City of Los Angeles has another.
From city to city,
these laws are not uniform. For example, in some places it is illegal
for a dog to attack another dog, while in others it is not. In September
2004, a pit bull on a busy Manhatten street bit off the head of a Chihuahua,
and the animal control authorities correctly announced that there was
nothing they could do; New York was one of the states that did not make
it illegal for a dog to maul another dog (until after that incident
was publicized).
The dangerous dog
laws are enforced in proceedings that some refer to as "dog court."
These hearings, like the laws they apply, are far from uniform from
county to county, state to state. The hearing officers are sometimes
experienced lawyers, but at other times are animal control officers
with no legal training. The victim might or might not have the right
to counsel. The legal issues depend on the state's concept of due process,
and the city or county's dangerous dog ordinance, leash law, running
at large law, trespass law, and possibly other laws; there is no uniformity.
The prosecutor might be the victim, the victim's lawyer, an animal control
officer, or a city attorney. The consequences might or might not include
a fine, a prohibition against owning dogs in the future, euthenasia,
signage around the house, keeping the dog in a cage, muzzling it in
public, tatooing it, or a number of other things.
How
it works
In one California
county, for example, the dangerous dog ordinance of the county is enforced
in a hearing in which one county animal control officer acts as prosecutor,
and another officer from the same office serves as the judge. Neither
is required to have any legal training that is specific to adversarial
hearings. In a case involving a seriously and permanently injured victim,
the deficiencies of this system resulted in manifest unfairness.
In that case, a
pit bull had run onto public property and partially severed a young
mother's arm; both of her left forearm bones were snapped and pulled
apart, leaving her arm dangling by the muscle. A defense attorney showed
up to represent the dog owners at the ensuing "dog court"
hearing, but made no secret of the fact that he was there NOT in defense
of the dog but to prepare to defend against the victim's civil claim
(which was not yet filed).
A travesty ensued
in which the hearing officer permitted the lawyer to ask far-ranging
questions of the victim which had literally nothing to do with the dog.
The animal control department "prosecutor" also gave the defense
attorney the victim's entire medical chart, with the medical history
and everything else inside it. The lawyer presented absolutely no evidence
regarding the dog. The dog was of no concern to him; his assignment
was to make sure that the victim got no compensation.
When the victim's
attorney objected at various times, the hearing officer demanded that
he remain silent, would not consider or comment on his objections, and
literally threatened to eject him from the room.
The victim, who
had three surgeries since being attacked, left the hearing with the
feeling that she was under attack once again.
What's
missing from "dog court" rules of procedure
In "dog courts"
throughout the United States, the victim's rights are potentially compromised
because the governing ordinances are missing certain essential provisions,
and the hearing officers do not know how to conduct a fair hearing.
For that reason, the victim needs a lawyer who must determine which
laws the animal control department intends to enforce (those of the
state, county or city), and then evaluate whether the applicable rules
are fair to the victim. Attention should be focused on the following
points:
- A defense attorney
in "dog court" should be required to make an "offer
of proof" before cross-examining any witness, especially the
victim, or introducing a particular item of evidence.
- The "judge"
should be required to rule on whether the questioning or evidence
is closely related to the issues raised by the dangerous dog law.
In making each ruling, the "judge" should apply a balancing
test that weighs the probative value of the evidence against the victim's
right of privacy and right to be free of harassment. If the questioning
fails to pass any of these tests, it should not be allowed.
- The victim must
be permitted to have legal representation at the hearing, including
the active participation of the victim's lawyer.
- The victim's
attorney must be permitted to voice objections, call and question
witnesses, introduce evidence, cross examine defense witnesses, and
make opening and closing statements.
- The victim's
attorney should receive copies of all notices, correspondence and
documents pertaining to the case and the defense, and a copy of the
department's final decision.
Alternatively, the
victim should be allowed to submit a declaration under penalty of perjury,
with exhibits such as photographs of the injuries. The dog owner obviously
would not be entitled to cross-examine but of course could present opposing
evidence.
Furthermore, the
city or county ordinance must protect the victim's privacy. In the above
described case, the animal control department gave the defense lawyer
the victim's entire medical file. The ostensible purpose was so that
he could see the evidence that established the degree of bodily injury.
However, the victim's medical history and the details of her injury
and treatment were hardly required to assess the severity of the damage
done to her arm -- it was hanging off.
There was no reason
for the animal control department to get the victim's signature on a
medical records release, or to give her medical file to the defense
lawyer. By federal law, the victim was entitled to a right of privacy
with respect to the information there. Even in a civil case, the defense
is not allowed to get any records it pleases. This is a loophole in
how the case is processed there and elsewere throughout the United States.
The ordinance could have stated that the hearing officer could base
his decision on testimony, photographs or any other reasonable evidence,
short of having the victim at the proceeding and giving her medical
chart to the defense lawyer.
Conclusion
Because "dog
court" procedures frequently do not protect the dog bite victim,
she should not communicate with animal control authorities until her
lawyer reviews the city and county ordinances, obtains the department's
committment as to which laws and procedures they will be following,
and is satisfied that the issues addressed above will be resolved fairly.
City, county and state lawmakers need to revise existing dangerous dog
laws and dog court procedures so that the dog owner's right of due process
does not eclipse the victim's right of privacy, her right to seek compensation
under the rules of fairness of our civil justice system, and the public's
right to streets that are safe from killer dogs.
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