- Created on 05 August 2010
- Last Updated on 17 March 2014
- Written by Fred M. KRay
- Hits: 1806
Forfeiture Due Process Applies to Euthanasia cases
The concept of forfeiture is crucial in defending a dangerous dog case. In any case where a dog faces euthanasia, it is clear that the government is forfeiting your property. This impacts:
1. The burden of proof which becomes clear and convincing instead of a preponderance;
2. Government has the burden of proof;
3. The type of hearing necessitated - swift and adversarial (as opposed to informal without time limit);
a. De novo determination as to whether probable cause exists to maintain action and if continued seizure of property least restrictvie alternative;
b. Entitlement to a jury trial for final determination of forfeiture (In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433 (Fla 1986).
In Oliver v. Clay County (click on the link to read the full legal argument) I argued that the seizure of Pip and Lily was a forfeiture since the penalty was euthanasia. The County Attorney agreed. This is not an argument that the Florida forfeiture statutes apply to a dangerous dog case, but that the procedural due process cases that diminish the power of the goverment to seize property without justification are applicable.
Applicable Case Law
City of Miami v. Wellman, 976 So.2d 22 (3rd DCA 2008) - In forfeiture cases regarding impounded vehicles, due process requires clear and convincing evidence standard, notice to owners of the vehicles who were not at the scene of the impoundment, and an innocent owner defense. The court cited with approval Department of Law Enforcement v. Real Property, 588 So.2d 957 (S.Ct. 1991).
Brinkley v. County of Flagler, 769 So.2d 468 (5th DCA 2000) - The court held that a proceeding under Florida's anti-cruelty to take Brinkley's animals amounted to a forfeiture requiring clear and convincing evidence.
Department of Law Enforcement v. Real Property, 588 So.2d 957 (S.Ct. 1991) - The Supreme Court of Florida upheld the Florida Contraband and Forfeiture Act by construing it to require minimal due process requirements. Forfeitures are harsh and not favored in law or equity. The court traces the history of due process and states that the Act can stand so long as the state protects its interests in a narrowly tailored way. The court found that property interests are a fundamental substantive right under the Florida Constitution that require notice and an opportunity to be heard when interfered with by the government. Seizure of personal property by the government only if an adversarial preliminary hearing is made available as soon as possible after seizure. The preliminary hearing requires a de novo determination as whether probable cause exists to maintain the forfeiture action and to determine whether continued seizure of the property is the least restrictive means warranted by the circumstances to protect against disposal of the property pending final disposition. The government has the burden of proof and it is clear and convincing.