MCCLUSKEY LAW OFFICE is a criminal defense law office dedicated to protecting the rights of individuals charged with crimes.  M. E. McCluskey, Esq. is available to represent clients charged with  FELONIES and or MISDEMEANORS in Arvada, Aurora, Bennett, Beyers, Boulder, Breckenridge, Brighton, Broomfield, Castle Rock, Centennial, Cherry Creek, Denver, Edgewater, Engelwood, Federal Heights, Fort Collins, Fort Lupton, Fort Morgan Greeley, Greenwood Village, Frederick, Highlands Ranch, Kiowa, Lakewood, Lakeside, Littleton, Lochbuie, Lodo, Longmont, Louisville, Loveland, Northglenn, Parker, Platteville, Sheridan, Strasburg, Thornton, Telluride, Vail, Watkins, Westminster, Wheat Ridge, Windsor, Front Range communities and ADAMS, ARAPAHOE, BOULDER, BROOMFIELD, CLEAR CREEK, DENVER, DOUGLAS, EL PASO, GILPIN, JEFFERSON, LARIMER, and WELD counties.

ANIMAL CRUELTY- Case Law 2016

From: Michigan State University
Animal Legal & Historical Center

​Owner of animal rescue shelter & dog grooming services was arrested and charged with 13 counts of animal cruelty in Illinois.  Police officers then searched the owner's business premises.  Owner was found not guilty on all counts by an Illinois judge.  Owner then filed claims under § 1983 for false arrest and illegal searches in violation of the Fourth Amendment and under Illinois law for malicious prosecution and intentional infliction of emotional distress.  The judge's opinion follows below:

Opinion
Sykes, Circuit Judge.
*1 Vaughn Neita was arrested and charged with multiple counts of animal cruelty and neglect under Illinois law after surrendering two dogs to Chicago's Department of Animal Care and Control. An Illinois judge found him not guilty on all counts. Neita maintains that the officials who arrested and prosecuted him had no basis to do so; he brought this suit for damages under 42 U.S.C. § 1983 and Illinois law. The district court dismissed Neita's federal claims for failure to state a claim and declined to exercise supplemental jurisdiction over the state-law claims. Because the allegations in Neita's complaint are sufficient to state claims for false arrest and illegal searches in violation of the Fourth Amendment, we reverse.

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COLORADO STATE LAW

C.R.S. 18-9-204.5 (2016)  Dangerous dog means any dog that inflicts serious bodily injury upon or causes the death of a person or domestic animal; or demonstrates tendencies that would cause a reasonable person to believe that the dog may inflict bodily or serious bodily injury upon or cause the death of any person or domestic animal; (emphasis added)
(3) (a) A person commits ownership of a dangerous dog if such person owns, possesses, harbors, keeps, has a financial or property interest in, or has custody or control over a dangerous dog.
(b) Any owner who violates paragraph (a) of this subsection (3) whose dog inflicts bodily injury upon any person commits a class 3 misdemeanor. Any owner involved in a second or subsequent violation under this paragraph (b) commits a class 2 misdemeanor.
(c) Any owner who violates paragraph (a) of this subsection (3) whose dog inflicts serious bodily injury to a person commits a class 1 misdemeanor. Any owner involved in a second or subsequent violation under this paragraph (c) commits a class 6 felony.
(d) Any owner who violates paragraph (a) of this subsection (3) whose dog causes the death of a person commits a class 5 felony.
(e) (I) Any owner who violates paragraph (a) of this subsection (3) whose dog injures or causes the death of any domestic animal commits a class 3 misdemeanor.
(II) Any owner of a dog that is involved in a second or subsequent violation under this paragraph (e) commits a class 2 misdemeanor. The minimum fine specified in section 18-1.3-501 for a class 2 misdemeanor shall be mandatory.

Some of the affirmative defenses to a charge ownership of a dangerous include :

(D) That, at the time of the attack by the dangerous dog which causes injury to or the death of a person, the victim of the attack was committing or attempting to commit a criminal offense, other than a petty offense, against a person on the owner's property or the property itself and the attack began, but did not necessarily end, upon such property; 
(E) That the person who was the victim of the attack by the dangerous dog tormented, provoked, abused, or inflicted injury upon the dog in such an extreme manner which resulted in the attack.

MUNICIPAL ORDINANCE VIOLATIONS​​     -    ​​Denver Municipal Ordinance 

Under Denver’s Ordinance Sec. 8-55, pit bull breeds (American Pit Bull Terrier, American Staffordshire Terrier, or Staffordshire Bull Terrier) are banned in the City and County of Denver.

In Colorado, dogs are accorded qualified property status, Thiele v. City & County of Denver, 135 Colo. 442, 447, 312 P.2d 786, 789 (1957), and are, thus, subject to the proper exercise of police power for the protection of the public's health, safety, and welfare. Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079 (1879). 

The United States Supreme Court has held that a state can deprive a citizen of property when such deprivation is justified as a legitimate exercise of police power. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); Sentell v. New Orleans & Carrollton R.R., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169 (1897). 

Pit bull type dogs are defined as any dog displaying the majority of physical traits of any one or more of the above breeds, or any dog exhibiting those distinguishing (physical) characteristics, which substantially conform to the standards established by American Kennel Club or United Kennel Club.
If your dog is impounded by Denver Animal Protection as an illegal pit bull, American Pit Bull Terrier, Staffordshire terrier or Staffordshire bull terrier, it will be brought to the Denver Animal Shelter for an official breed evaluation. Animal Control Office conduct the breed evaluation.  The evaluation by the Animal Control Officer can be challenged.  

​​The Ordinance has both civil and criminal components. Colo. Dog Fanciers, Inc. v. City & County of Denver, 820 P.2d 644, 647 (Colo.1991) (en banc). As a civil measure, the Ordinance allows officials to impound any pit bull found within the City and County of Denver (“Denver” or “the City”). § 8-55(e); Colo. Dog Fanciers, 820 P.2d at 647. If a dog is seized, an owner has the right to a post-seizure hearing at which Denver must prove by a preponderance of the evidence that the dog is in fact a pit bull. § 8-55(f); Colo. Dog Fanciers, 820 P.2d at 649 (citing Colo.Rev.Stat. § 13-25-127). “If the dog is found to be a pit bull, it will be destroyed unless the owner pays the costs of impoundment and agrees to permanently remove the animal from Denver.” Colo. Dog Fanciers, 820 P.2d at 647 (citing Denver, Colo ., Rev. Mun.Code § 8-55(f)).  
http://www.akc.org/breeds/complete-breed-list.cfm ; United Kennel Club, Full List of UKC Breeds, http://www.ukcdogs.com/WebSite.nsf/WebPages/LrnBreedInfoFullLis



















Dangerous Dog/Potentially Dangerous Dog

Certain home rule municipalities have created "potentially dangerous" dog and "dangerous" dog ordinances.  These ordinances are cited by Animal Control officers when a dog is charged with attacking a person or animal without provocation.

It is an affirmative defense to these charges if the dog was provoked.

 

In some cases, if a dog  has been adjudicated as a potentially dangerous animal and has another incident of attacking a person or animal, the dog can then be charged as a dangerous animal and be at risk of being euthanized.

 

Through negotiations with the city attorney or district attorney, a reasonable plea bargain can often be hammered out.  In other situations, a trial can be set to challenge the evidence and confront the witnesses to the alleged attack that the prosecutor is using to file charges.


Some municipalities have enacted dangerous dog/animal ordinances that are civil infractions and not criminal offenses.  An individual accused of a civil infraction has the right to a trial before a judge, (known as a bench trial) only.  A defendant charged with a criminal offense has the right to a jury of the defendant's peers or the defendant may exercise the right to a bench trial.  Code and ordinance violations that do not impose a penalty of imprisonment are civil infractions and the judge may impose a fine, rather than imprisonment, as a penalty. 

 

MCCLUSKEY LAW OFFICE can provide you with a zealous advocate to defend your constitutional rights as a dog owner, entitled to a due process hearing.​ 

ANIMAL LAW

Potentially Dangerous Animal, Dangerous Animal, Animal Cruelty 

State Court and Municipal Court



​​​In a case where the plaintiff prevailed a ​​​​​​police officer shot and killed plaintiffs' family pet dog, Majka, who was located in an unfenced area on the owner's property.  Witnesses stated the dog was not acting aggressively, nevertheless the police officers entered the owner's property without a warrant and began shooting at the owner's two dogs.  The police officers shot and killed Majka, a Malmute/Husky and pursued the other dog, Such, to the back of the house.  The court determined that such a seizure of the owner's "property" violated the Fourth Amendment of the U.S. Constitution.  The Fourth Amendment of the U.S. constitution requires a warrant based upon probable cause to be issued before a citizen's property can be seized absent circumstances justifying an exception to the warrant requirement.

See United States v. Place, 462 U.S. 696, 700–01, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (“In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.”)


In Fuller v. Vines, 36 F.3d 65, 68, (9th Cir. Cal. 1994) the court stated that ​"'a "seizure" of property occurs, within the meaning of the Fourth Amendment, when "there is some meaningful interference with an individual's possessory interests in that property."', citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

The destruction of property is "meaningful interference" constituting a seizure under the Fourth Amendment, Jacobsen, 466 U.S. at 124-25, 104 S.Ct. at 1662-63; Bonds v. Cox, 20 F.3d 697, 701-02 (6th Cir.1994), because the destruction of property by state officials poses as much of a threat, if not more, to people's right to be "secure ... in their effects" as does the physical taking of them. See Tarpley v. Greene, 684 F.2d 1, 9 (D.C.Cir.1982). The Fullers' amended complaint alleged that the officers' killing of their dog constituted a Fourth Amendment seizure. A dog is an "effect" or "property" which can be seized. See Lesher v. Reed, 12 F.3d 148, 150 (8th Cir.1994).

Warrantless searches and seizures are per se unreasonable under the 4th Amendment of the U.S. Constitution unless falling within an exception to the warrant requirement.  One such exception has been articulated in State of Oregon v. Fessenden, 355 Or. 759 (2014)

Exception to the 4th Amendment's warrant requirement under the U.S. Constitution - imminent harm exception - warrantless search or seizure aimed at providing emergency aid and/or preventing or alleviating suffering:

In State of Oregon v. Fessenden, 355 Or. 759 (2014), the Court of Appeals held that the officer's warrantless entry and seizure were lawful under the emergency aid exception to the warrant requirement of the state of Oregon's constitution.  The court cited State v. Baker, 350 OR 641, 649, 260 P3d 476 (2011), for the proposition that officers may enter property without a warrant if they "'have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist person who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.'" Fessenden, 258 Or App at 640.  The court concluded that animals were included in the class of "persons" that officers may aid without a warrant.

The state of Oregon is one jurisdiction that considers animals to be included as "persons" vs. "livestock" or "property".












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