Burden of Proof-Forfeiture

Burden of Proof

gavel

(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. 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.

 

Burden of Proof

Burden of Proof

gavel

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.

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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