Wind them up, give them a little power, watch them…kill?

 

NO KILL!So all over the nation the no-kill movement is growing and growing and growing.  Building momentum. More and more people are getting involved, not accepting the status quo (that they “have to die, there are no other options“), and putting an end to the killing in their neighborhoods.  BSL is being fought, kill shelters are frowned upon, TNR is supported and good is conquering evil.

Each day, each week, each month, we hear more and more success stories. We learn more about the good that people are doing and we watch as the “evil-doers” are verbally and legally attacked by their community for their killing. People flooding meetings to standing-room-only status, bringing law suits against their shelters, and standing up for what is right and good.  No longer backing down, but fighting to save lives. The “bad” is no longer covered up, but put out there with the press covering it, blogs light up across the internet with “do you believe this?? SIGN THIS PETITION”.

We rejoice that you are no longer tolerating it.
Good for you.

However it still seems that tiny people with small minds and with a wee bit of “power” are out there abusing it and trying to use it to do harm. Old-style shelter directors, animal hating animal control officers, town officials, co-op board members that seem to have nothing better to do than to continue to try to kill animals that their own communities want to protect and save.

On Tuesday we will be going to court to fight just such a situation.  Let me tell you about it.

kimmie2Kimmee was a dog that we rescued from the CACC the morning she was scheduled to die for a URI (upper respiratory infection).

Kimmie was quiet, and shy and scared.  We took her in and with five days of antibiotics she was fine.  Ready to go into a home.  She was so timid and quiet that she became a volunteer, staff and kid favorite.  The children here would warm up to her, perhaps recognizing in her the things in themselves that they once conquered.  Volunteers eagerly walked this beautiful dog and staff spent extra time winning her over and helping her past her shyness.

Along came a couple that fell in love with her, and took her home.  For eleven months she lived with them.  She spent time with neighbors, children, at the dog park, in a dog day camp when they went away.  Everyone who came in contact with her stated the same thing. “Shy, but very sweet”.  No one had any aggression issues with her.  She never even lifted a lip at anyone.

But this week, something terrible happened.  A TV repairman came into the home and he leaned over to kiss her face.  Kimmee (now called Kaylee) responded by biting him. It was not a nip, it was a bite and the man needed stitches to repair his torn lip.  The owners returned Kimmee to us and explained what happened.  Everyone was surprised, including them.  Eleven months, not a problem.  The entire time she was here, never a problem.  Now she reacted to a situation that was scary for her and she bit someone.  We are not excusing this bite.  We are not saying that Kimmee is faultless. We feel terrible for this poor man – that had his face bitten in such a manner!  We feel terrible for the owners that had to return a dog they loved.  A bite is never something to scoff at and never something to not respect and take seriously.

kimmie3

But here is where the story goes bad.
The Animal Control Officer of Goshen, Laureen Sandstrom, has decided that Kimmee is a “Dangerous Dog”.  She is trying to stop us from ever allowing Kimmee to be adopted again. I called her and she was adamant.  I explained that according to New York State Law, she has no legal case to declare Kimmee a “Dangerous Dog” according to the NYS Dangerous Dog law.  She sarcastically told me that she has done this “tons of times before”. On Tuesday we will go to court to fight this.  Not only for Kimmee, but for all the dogs out there that this woman is declaring “dangerous”.  First let me explain the law to you to show you why this woman doesn’t even have a legal case. She is a woman that was given a tiny bit of power and instead of using it to help animals and protect their lives, she has tried to use it to harm them. She doesn’t even KNOW the law that she is trying to use against Kimmee.  Can you believe it?  She is trying to invoke DANGEROUS DOG Laws on Kimmee, but she doesn’t even know the law.  Let’s take a look, shall we?

Here’s the actual statute:
http://www.animallaw.info/statutes/stusnyagri_mkts_121.htm

1. Laureen, the Animal Control Officer can’t make the complaint. She didn’t witness the bite. The guy who was bitten has to:

Any person who witnesses an attack or threatened attack, or in the case of
a minor, an adult acting on behalf of such minor, may make a complaint of
an attack or threatened attack upon a person, companion animal, farm
animal as defined in subdivision twenty-four of section one hundred eight
of this article, or a domestic animal as defined in subdivision seven of
section one hundred eight of this article to a dog control officer or
police officer of the appropriate municipality.

By the way, she also has to ticket someone – the owners of the dog, before going to court.  No ticket has ever been issued!  Hmm.  Starting to wonder if the Animal Control officer of Goshen even KNOWS the law!  Are they given any training at all?

2. IF the guy who was bitten makes the complaint, THEN she can initiate the proceedings herself (but so far he hasn’t and she already told us we have a court date and time – um, based on what? He hasn’t made any complaint yet! Did she illegally file all the paperwork before she had a complaint?):

Such officer shall immediately inform the complainant of his right to
commence a proceeding as provided in subdivision two of this section and,
if there is reason to believe the dog is a dangerous dog, the officer
shall forthwith commence such proceeding himself.

3. Jurisdiction clearly resides with the municipal judge. That’s awesome for us. That means Laureen, the ACO officer has no authority at all. And it means that some board member, or town clerk can’t do it either. It has to be done by a sitting judge. Hopefully HE knows the law!.

Any person who witnesses an attack or threatened attack, or in the case of
a minor, an adult acting on behalf of such minor, may, and any dog control
officer or police officer as provided in subdivision one of this section
shall, make a complaint under oath or affirmation to any municipal judge
or justice of such attack or threatened attack.

4. The first thing that happens is that the justice has to decide if there is probable cause to believe the dog is dangerous under the law. In this case that is VERY shaky, but of course just like you can sue anyone you want, with our without reason, a judge can make a ruling and then it would be up to us to defend our side under law.

If he believes there is probable cause, Laureen has no jurisdiction in Wallkill – the town we are in, and the dog was legally surrendered to US. So now they have to get the Wallkill Animal Control Officer to try to seize the dog. We’re still not clear if a town judge can compel an officer of another town to do something, though it does look like the law says he can.

Thereupon, the judge or justice shall immediately determine if there is
probable cause to believe the dog is a dangerous dog and, if so, shall
issue an order to any dog control officer, peace officer, acting pursuant
to his special duties, or police officer directing such officer to
immediately seize such dog and hold the same pending judicial
determination as provided in this section.

5. Then there has to be a hearing within 5 days, and the “owner” needs to get 2 days notice. Burden of proof is on the person who makes the complaint to prove the dog is a dangerous dog.

Whether or not the judge or justice finds there is probable cause for such
seizure, he shall, within five days and upon written notice of not less
than two days to the owner of the dog, hold a hearing on the complaint.
The petitioner shall have the burden at such hearing to prove the dog is a
“dangerous dog” by clear and convincing evidence.

6. If the judge believes the dog is dangerous he has to spay/neuter the dog, chip the dog, and can do one or more of the following:

If satisfied that the dog is a dangerous dog, the judge or justice shall
then order neutering or spaying of the dog, microchipping of the dog and
one or more of the following as deemed appropriate under the circumstances
and as deemed necessary for the protection of the public:

Have the dog evaluated at the owner’s expense.
Confine the dog.
Restrain the dog in public
Muzzle the dog in public
Order that liability insurance be in force at all times.

kimmie4

7. Here’s the most important part. In order to kill or permanently confine the dog, at least one of the following special circumstances has to be true:

a) the dog, without justification, attacked a person causing serious
physical injury or death;

[NYS Penal Law section 10.0 defines “Serious physical injury” as physical
injury which creates a substantial risk of death, or which causes death or
serious and protracted disfigurement, protracted impairment of health or
protracted loss or impairment of the function of any bodily organ.]

Don’t see it here.

(b) the dog has a known vicious propensity as evidenced by a previous
unjustified attack on a person, which caused serious physical injury or
death.

No, we don’t have THAT here either.

(c) the dog, without justification, caused serious physical injury or
death to a companion animal, farm animal or domestic animal.

No, don’t have that here either.

8. If the dog is deemed “dangerous” the owner has 30 days to appeal in County Court. So if they sentence the dog to death they have to wait 30 days to kill her. Pets Alive would appeal to county court in this case.

The owner of a dog found to be a “dangerous dog” pursuant to this section
may appeal such determination, and/or the court’s order concerning
disposition of the dog to the court having jurisdiction to hear civil
appeals in the county where the “dangerous dog” finding was made. The
owner shall commence such appeal by filing a notice of appeal with the
appropriate court within thirty days of the final order pursuant to this
section. Court rules governing civil appeals in the appropriate
jurisdiction shall govern the appeal of a determination under this
section.

9. If the judge orders death there is an AUTOMATIC stay with the appeal. Anything else has to be motioned for:

Upon filing a notice of appeal from an order of humane euthanasia pursuant
to this section, such order shall be automatically stayed pending final
determination of any appeal. In all other circumstances, the owner of the
dog may make application to the court to issue a stay of disposition
pending determination of the appeal.

10. Nothing else applies except we find this really cool:

A dog shall not be declared dangerous if the court determines the conduct
of the dog (a) was justified because the threat, injury or damage was
sustained by a person who at the time was committing a crime or offense
upon the owner or custodian of the dog or upon the property of the owner
or custodian of the dog; (b) was justified because the injured, threatened
or killed person was tormenting, abusing, assaulting or physically
threatening the dog or its offspring, or has in the past tormented,
abused, assaulted or physically threatened the dog or its offspring; (c)
was justified because the dog was responding to pain or injury, or was
protecting itself, its owner, custodian, or a member of its household, its
kennels or its offspring; or was justified because the injured, threatened
or killed companion animal, farm animal or domestic animal was attacking
or threatening to attack the dog or its offspring. Testimony of a
certified applied behaviorist, a board certified veterinary behaviorist,
or another recognized expert shall be relevant to the court’s
determination as to whether the dog’s behavior was justified pursuant to
the provisions of this subdivision.

We think we could easily argue that the dog THOUGHT she was protecting her family. We also think it’s cool that the law carves out exemptions for dogs doing their duty.

As luck would have it, Pets Alive just happened to have one of the nation’s premier experts in dog training, and behavior, at our sanctuary this week.  Pat Whitacre, lead trainer at the Best Friends Animal Society (one of the nation’s LARGEST organizations) has more degrees next to his name than most doctors, tons of experience, and even starred in a TV show on National Geographic.  He was on “vacation” at Pets Alive, volunteering.  We asked him to do a behavior assessment for Kimmee.

Guess how she did?
Great! The assessment is geared to get reactions.  Dogs that will bite, will be tempted into it during some of these tests.  While he found her shy, and anxious during some of the tests, she never resorted to biting as a response.  I won’t post the whole assessment but here is the summary (which we will present in court):

Summary: Kimmie is a dog who lacks confidence when faced with unfamiliar people or situations. Her bite in the home showed that the right/wrong conditions can produce an aggressive reaction. However, during a wide variety of conditions during this assessment she showed no aggressive behavior. Her history and today’s behavior do not indicate that she is aggressive by nature nor is she easily provoked into using dangerous behavior.
That being said, responsible pet owners should not put their pets or visitors in situations the pets cannot handle well. In Kimmie’s case, her comfort in a crate, provides a convenient solution for providing safety for all involved during potentially stressful circumstances.

5d527c454213ba34faf4c3000e106f8cWe also contacted the Day Camp that Kimmee used to stay at when her owners went away.  He expressed surprise.  Said Kimmee was always shy but had never shown a single aggressive moment and came in contact with many people at the facility and played with as many as 40 other dogs.

So here is a case where a dog has never had a single negative incident on her portfolio, and one bite in her entire life illicits a knee-jerk reaction from this seemingly uneducated animal control officer to see that Kimmee is forever prevented from going to another home again, as long as she lives, or is euthanized.

And she claims she has done this “tons of times before”.  I’m glad she tangled with us now, and not some poor, distraught animal owner who didn’t know the law, or their rights.  I think now she has to be stopped and she has to be educated and she has to make decisions that are based in the best interest of the animal AND the person who has been bitten.  At no juncture do we take this bite as something to act flippantly over, or something that is not a terrible incident.  At no point do we think Kimmee should be adopted into a home with little children running about and lots of noise and commotion.  But that isn’t the situation here.  The situation here is that they want her confined forever, or killed.  Is that the right response to a dog that has been perfect her whole life and had ONE incident?

Absolutely not.

kimmie1So we are happy to be the voice for Kimmee and we are glad to be.  The difference is that we KNOW the law and no longer will Laureen, the ACO, be allowed to walk over people and take away their dogs to be killed. We are sorry that she is so close minded.  When we tried to call her to explain this she didn’t want to hear it.  She didn’t even want to discuss it – just “see you in court”.  Yes Laureen, we will see you in court.  Please bring your best lawyers, because THIS is one dog you will not be sticking a needle into or forcing to spend her life with a muzzle on, and in a cement run.  THIS dog will be protected by Pets Alive.

Know your rights too.  What if YOUR dog bit someone.  Do you have to surrender the dog to Animal Control?  NO!  Do you have to sign her over to be euthanized?  NO! Can they take your dog from you without a court hearing?  NO.  Can your neighbors demand your dog be removed or euthanized if their child was bitten?  No. Learn the law.  Don’t ever give your dog up without a fight.

So we are very prepared for Tuesday. Wish us, and Kimmie, good luck. We need to stop Laureen from doing this anymore.  Here, she isn’t tangling with a home owner that is scared, upset and nervous.  Now she is dealing with us, and we aren’t going to lay down and go quietly.  We never do when the life of an animal hangs in the balance.

Ready?  Let’s roll.

What can you do?
Contact Justice Thomas Cione: nyawadira@gmail.com845-294-6477 – ask him to rule on the side of Kaylee (Kimmee) on Tuesday – a dog that has had only one negative incident her entire life. Please remind him that we like the job he has been doing so far for Goshen, and that he is running for re-election. Politely remind him that our community cares about our animals, and wants him to care, as well. Please ask him to re-familiarize himself with the Dangerous Dog Laws of New York State.  (Be courteous and polite at ALL times!)
Town of Goshen website:  http://www.townofgoshen.org

NOTE: THE COURT DATE HAS BEEN CHANGED TO OCTOBER 26.
PLEASE CONTINUE TO SEND LETTERS.
Contact Justice Thomas Cione nyawadira@gmail.com & courteously request he dismiss this case. He will decide about dismissal THIS week.
We are unclear if that is correct email for the justice, so please also fax your letter to him at: 845-294-4456, or call 845-294-6477

You can also contact the town supervisor. Tell him to stop wasting taxpayer dollars on this case. Ask him to drop the case fax: 845-294-6542

Update #2:
On October 26th we went back to court. The case was DISMISSED on a technicality. The ACO officer filed all the paperwork in the name of the dogs previous owners. I told her months ago this made no sense, as WE owned the dog now but she did it that way anyway. This came back to bite her in the butt as the judge advised that even if he ruled in her favor, he would have to instruct the previous owners to surrender the dog, which they would just respond that they didn’t OWN the dog and had no legal ability to surrender her. So in this time that we have had with her, Kimmee has lived with other dogs, been walked by children, men, woman and all sorts of volunteers, been dressed up in Halloween costumes and so on. She is NOT an aggressive dog. In fact there is tremendous doubt now that she actually even BIT the guy. More on that later. So the update is that the ACO refiled all the paperwork against Kimmee, but some other changes happened between the time the case was dismissed and the ACO refiled. More on that soon, and pictures to come.

– See more at: http://petsalive.com/blog/2011/09/25/wind-them-up-give-them-a-little-power-watch-them-kill/#sthash.pIbwAwzk.dpuf

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