Category Archives: Court Cases

Salina, Kansas, family fights for their dogs

A single working mother in Salina, Kansas, is in trouble with the city after her two dogs got escaped the yard and were picked up by animal control.

Jo Ann Morgan has two dogs that officials claim fall under the breed ban that Salina maintains.  Morgan stated that she sees “pit bulls” everyday in the community and had been unaware of the ban until obtaining her first dog.

The first dog, Celeste, was obtained not knowing there was a ban in place.  When the family asked a friend about a good vet in town, they then became aware of the ban.  Soon after, the second dog, Maicee, came to the family because of the ban.  The dog was owned by a boyfriend and girlfriend who had domestic issues.  At one point the girlfriend had threatened to call animal control on the dog for being a banned type as revenge.  The dog was taken in by Morgan, in what was supposed to be a temporary situation.

The dogs escaped the yard when the gate to their yard was left open after a trash pick up.  It was not noticed the gate was left open until the next morning, when the dogs were let out as the family got ready for their day.  A few minutes after they got out, on the morning of October 23rd, Morgan discovered the yard was empty and immediately began looking for the dogs.

They were picked up by animal control in a nearby parking lot.  It was later discovered, on a lost pets page for the community, that someone had spotted the dogs and was urging people to pick them up before animal control got them.

After searching for sometime, Morgan contacted the shelter, where she was told the dogs cannot be released because they are banned and that she would be charged.  Morgan also told that if she signed over the rights to Celeste and Maicee to the shelter, the prosecutor would drop the charges for harboring dangerous dogs.  Salina law declares “pit bulls” dangerous by appearance only, so any person caught with a banned type is charged with harboring a dangerous dog.  Celeste and Maicee had not harmed anyone.  Morgan asked if the dogs would be killed if signed over and was told that is the case.  She refused to sign over the dogs and was given a summons for the possession of two dangerous dogs.

Celeste and Maicee are currently being held as evidence and there are multiple criminal charges against Morgan.  Though Morgan is seeking legal representation, it is an expensive proposition for a case of this nature.

Salina has a bad track record with their handling of these sorts of cases.  Few, if any, confiscated dogs make it out of the shelter alive.  There was the story of Lucey, from 2010, who was taken as a banned dog and released after a DNA test showed she was a pure through and through mixed breed.  Officials came back on that family, saying the DNA tests are not reliable after the vet responsible for breed identification, Dr. Atherton, got a DNA test on his own dog and didn’t like the results.

Dr. Atherton is notorious for bad identification practices, and has, in at least one case, identified a pure breed dog (not a banned breed) as banned because of the dog’s teeth structure.

Morgan would love to get Celeste and Maicee back home but the odds of that are extremely slim.  The best hope right now is for the dogs to be placed in rescue.  When asked about it, Morgan was told that they do not release “pit bulls” to residents of other towns because of the “legal liability” of doing so.

The council is not open to discussing the issue.  Morgan attended a meeting and was told she would need to make a formal paper petition of registered voters and file specific forms in order for the council to consider the issue.

At this time, there is a Christmas card campaign for Celeste and Maicee, as well as one other confiscated dog.  The families are asking for cards to be sent, individually, to Celeste Morgan, Maicee Morgan and Remi Phillips, care of Salina Animal Shelter, 329 North 2nd Street, Salina, KS, 67401.  The families are asking that the messages in the cards be ones of support only and not directed at shelter staff in anyway.  The idea behind the campaign is to subtly let people know that the dogs are cared about without engaging in any animosity or vitriol.

For those who want to help more, there is a fundraiser being held to cover legal fees.  The odds that there will be a fair trial in municipal court are slim.  Appeals are expensive and funds must be raised in order for there to be any chance of Celeste and Maicee being about to get out of the shelter alive.

Link to fundraiser: www.youcaring.com/other/don-t-let-salina-ks-murder-these-dogs/267665

Link to Facebook page: www.facebook.com/pages/Repeal-BSL-in-Salina-Kansas/548568511945846

Link to Twitter: twitter.com/RepealBSL

Pawtucket Rhode Island loses battle to keep ban

When Rhode Island legislators passed a law that prohibits municipalities from enacting any breed discriminatory laws, Pawtucket officials balked.  They claimed that the law only addressed future laws, and did not apply to them because Pawtucket’s breed ban was in effect before the passage of the state law.  As a result, they continued to enforce the ban after the state law had been passed.

A man by the name of Albert Alix stepped up to take on Pawtucket’s ban.   Alix was cited under the ban after his dog, Chubs, escaped his yard.  There was no bite incident.

In late 2013, a case was filed in court, challenging Pawtucket’s ban, with The Defenders of Animals and Alix as co-plaintiffs.  The city maintained the position that they were allowed to keep their ban because the state law wasn’t expressly retroactive, while Alix’s attorney, Mark Morse, stated that the ban was invalid because of the state law.

A Superior Court judge has ruled in favor of Alix.  The judge found that the state law does supersede Pawtucket’s ban.  This means that, at this time, Pawtucket is no longer allowed to enforce their ban.  This also means that there is a precedent set against any other municipality that would attempt to continue enforcement of a breed discriminatory law.  If this ruling stands, it clarifies the state law so that it is clear that no breed discriminatory laws are allowed, regardless of when they were enacted.

It is interesting to note that Pawtucket attempted to have a grandfather clause included in the prohibition on breed discriminatory laws during the Senate committee hearings, but the grandfather clause was rejected.  This speaks to the intent of the law and legislators.  Had they intended to allow existing ordinances to be maintained, they would have expressly included the grandfather clause.  This was not the only way Pawtucket officials attempted to keep their ban.  They also tried an e-mail campaign to defeat the state law prohibiting BDL while the bill was moving through the legislative process.  That was unsuccessful as well.  The contention at the time was that reversal of the ban would make their community un-safe.

The city does have the option to appeal the decision.  At this time, the cities attorneys are waiting to see the written order, and a transcript of the proceedings before deciding whether or not to appeal.  Pawtucket was the only city to try and keep their breed discriminatory law, with active enforcement, after the state prohibition was passed.

Lawsuit filed to challenge the legality of Pawtucket RI’s breed ban

Earlier this year legislation was passed in Rhode Island that prohibits any municipality from enacting a breed discriminatory law.

Pawtucket is one of the places in Rhode Island with a breed discriminatory law.  A ban on pit bulls and dogs resembling pit bulls, was enacted in 1994.   As is typical with places that have long-standing breed bans with entrenched officials, Pawtucket has been lauding the success of their ban for sometime.  However, a simple google search brings plenty of results of dog related issues.  Even officials assertion that bites by targeted dogs have been reduced is questionable considering that with a ban there should be no attacks by targeted dogs and many people have dogs that are labeled as other mixes instead of being put under the legislative catch-all “pit bull.”

Any attacks go to the fact that there are those in the community who do not operate control over their dogs, and those that do.  The ones who do not, get attention.  The ones who do, slide under the radar living peacefully with their targeted dogs.

As soon as the bill began making the rounds, officials from Pawtucket went on the offensive.

During the passage of this legislation officials from Pawtucket tried to derail the process in several ways.  They tried, unsuccessfully, to have the bill voted down.  They tried, unsuccessfully, to amend the bill to include a grandfather clause that would allow municipalities with existing laws to keep them and, finally, they tried a plea to the Governor to not sign the bill into law, which was also unsuccessful.

The legislation passed comfortably and the Governor then signed it.

The failed attempt to include a grandfather clause is particularly interesting.  Pawtucket is now arguing that the legislation does not affect places with breed discriminatory laws already in place.  If it was the intent of the law makers to allow places to keep existing breed discriminatory laws, the grandfather clause amendment would have been accepted.  However, the legislation as worded does not specify if it is retroactive, leaving the issue open to litigation.

One resident is now challenging the assertion that Pawtucket is within their rights to keep their ban.  A suit has been filed on behalf of Albert Alix, who was issued a citation for a violation of the ban after the dog, Chubs, escaped the yard.  There was no bite that occurred.

It is the city’s position that, because the law does not say that it is retroactive, they are allowed to keep their ban.  Officials have admitted that the legislation is not clear and that their ban is open to legal challenge.

Mark Morse, the lawyer representing Alix and Defenders of Animals, a local animal welfare group,  stated in an interview that the suit asks the court to declare the city ordinance invalid because it is inconsistent with the new state law the prohibits breed discrimination.

This case will clarify the law, unless legislators address the issue before then.

Either way, we will be watching the case carefully and updating as needed.

Clay Alabama agrees to not enforce breed ban

Clay Alabama officials have agreed, under the advice of their attorney and under the threat of a lawsuit, to not enforce their breed ban.

An injunction and lawsuit alleging many constitutional violations was filed on July 30th.  The first hearing was set for the 19th of August.  This hearing has been postponed pending an agreement that was struck between the lawyers representing both sides.

In the agreement, the city of Clay has agreed to not enforce their ban and to make arrangements to meet the concerns addressed in the lawsuit.  A time frame for action to be taken has been set for September 15th.  A status report must be given by that date.

From the Clay agreement,  “the parties are in agreement to Work cooperatively in an effort to reach a mutually satisfactory resolution to the claim involved herein.”

This means that both the city officials and attorneys will be working together to redraft the ordinance in a way that will satisfy all the parties involved.

This does not mean that the ban is repealed at this time or that the fight is over in Clay.  The possibility for the lawsuit to move forward is still there, should officials not be willing to remove all breed discriminatory aspects of the ordinance.

Springville Alabama was also looking into a possible breed ban and have postponed discussions at this time.  It remains to be seen what effect this will have on the situation in Springville.

We will update accordingly as the process continues or you can follow what is happening in Clay by visiting Fight BSL in Clay at http://fightbslinclay.org/home.html.

Clay Alabama residents file a motion for injunction against breed ban

The first step has been made to challenge Clay Alabama’s recently passed breed ban in court.

A motion for preliminary injunction has been filed to stop the enforcement of the ban.  Resident’s have until August 3rd to register their dogs.  This would mark the beginning of enforcement of the ban.

The full text of the motion can be viewed here.

The complaint alleges that the ban was passed in violation of Alabama’s open meeting laws.  Under that law, officials must give interested parties a certain amount of time to be able to participate in the process.  Since the ordinance was brought forward and passed in one meeting, and was drafted sometime in the 5 days between the spurring incident and the ordinances passage, it appears that this is a direct violation of that law.

Other allegations are that the 14th Amendment to the Constitution is violated regarding due process, a deprivation of property, use and enjoyment of said property for several different reasons and a violation of the 5th and 6th Amendments to the Constitution for several reasons.  The irrebuttable presumption portion of the ordinance, discussed below, being one of them.  Overall the complaint is well worth the read.  The details of the complaint are extremely comprehensive.

Efforts to raise funds were focused on the date of registration in the hopes that enough money could be raised to prevent residents from having to register their dogs.  The issue is difficult because once a person registers their dog there is then a irrebuttable presumption that the dog is a “pit bull” regardless of whether or not the dog actually is.  Once the dog is registered, residents would not be able to contest the designation in the future, say if they get a DNA test or other evidence comes up that shows that dog is not a pit bull.

Municipal breed discriminatory laws have never been challenged in Alabama.  The timing of the injunction is very apt, coming on the heels of a recommendation from the City Attorney to change the law to be breed neutral.  There has been no action so far to do so.  Only talk, and some residents have talked about opposition from certain officials to going breed neutral.  The Mayor has said that he wants to expand the law to include more breeds but not all breeds.  He mentions “11 breeds” restricted by insurance companies in a recent article.

In a separate article the Council cites a lack of legal challenge to Center Point Alabama’s ordinance.  “The council made mention of Center Point’s ordinance, a five-year old ordinance that bans pit bulls, and that city not having legal issues with residents in that time.”

The Council will now learn the hard way how expensive it can be to violate people’s rights.  Hopefully, they will do the right thing to avoid litigation and repeal the ban.

You can view the filing papers for the Clay Alabama injunction here.

If anyone would like to contribute to the legal fund there is a fundraiser here.

Previous alerts:

http://stopbsl.org/2013/07/16/clay-alabama-residents-mounting-legal-challenge-to-ban/

http://stopbsl.org/2013/06/03/clay-alabama-passes-pit-bull-ban/

Maryland Legislature Proposes Bill to Reverse Solesky Decision

The Maryland legislature has proposed a bill that would reverse the Solesky v. Tracey Court of Appeals’ ruling finding pit bulls “inherently dangerous.” The bill is breed neutral, and it doesn’t hold landlords liable for tenant dog attacks. The reality is that the Solesky decision has resulted in landlords refusing to rent to pit bull owners.

The bill limits liability, allows owners to prove there was no prior evidence of violent behavior, and allows for defense of the animal’s behavior.

A hearing will be held on HB78 on January 30, 2013.

The Senate companion bill, SB160, has not yet been set for a hearing, but it looks to be in line to be heard at or around the same date as the House bill.

If approved, the bill will pass as emergency legislation and take effect immediately.

MARYLAND RESIDENTS: Please reach out to your respective legislators and encourage them to support the compromise bill which would reverse the Maryland Court of Appeals’ ruling and return the state to the law as it existed before the Court’s ruling.

Residents of Maryland can find their legislators here.

We have discussed the twisted legal journey of  Solesky v. Tracey in depth here. As soon as we can get a copy of the bill, we will publish and analyze it here on StopBSL. Stay tuned.

 

MANCHESTER, MISSOURI – Board of Aldermen Repeal Pit Bull Ban with Unanimous Vote

We reported in August that a Manchester resident had filed a suit against the City of Manchester on the grounds of violation of her constitutional rights because she had received at least four citations because of her dog.

Last night, the Board of Aldermen voted unanimously to repeal the cities pit bull ordinance, adopting instead a non-breed specific dangerous dog law.

According to City Manager, Andy Hixson, the revision to the existing ordinance removed the term ‘pit bull’.  The changes are effective immediately and all vicious dog designations will be determined by the individual dogs behavior rather than breed or appearance.