AC Shoots dog in Face–Not a Pitbull Dog, No Charges Filed

http://wtvr.com/2012/12/28/animal-control-officer-who-shot-dog-wont-face-charges/

CHARLES CITY COUNTY, Va. (WTVR) — A special prosecutor has decided not to pursue charges against an animal control officer who shot a family’s dog in Charles City County.

The news comes after state police completed their investigation, at the request of the Charles City County Sheriff’s Office, into the actions of Frank Bates, the animal control officer who shot an 18-month-old lab named Axel in the face.

Virginia State Police’s Sergeant Thomas J. Molnar released new information about the agency’s investigation Friday. Molnar said in a news release that Bates was called to the 14000 block of Glebe Lane on Nov. 1 after a woman called and said her 17 year-old son had been chased by the dog after getting off the bus. 

…Whether the dog had actually “chased” the 17yr old or not– could be very important.

The reason we mention it was not a pitbull is because most people figure any dog shot (especially in the face) would be a pitbull, because that is the type of stories that media news features.   This dog was only 18months old and was supposed to be trained as a therapy dog…..IF the dog was running at large (which is not proven by the facts in the news) and IF the dog was menacing, then that evidence could be a key factor.

“The dog’s owner, Sharon McGeein tells CBS 6 she is disappointed by the outcome of the investigation, and plans to sue Bates and the county in civil court.  “He took away our 4th amendment right for killing our dog…He also violated Virginia state law which says if you kill a companion animal, it’s actually a felony…unless it actively attacks something or someone,” McGeein said.   She says Axel, was supposed to be trained as a therapy dog, and that labs don’t attack people.” [If in fact Axel did try to attack the officer, Axel would not be a very good therapy dog is our bet.]

What do we see wrong (if anything) in this owner’s statement?  It is true that the killing of an animal which is a pet can be the deprivation of property, depending on how it was done. For example in Richmond, CA  when police officer shot the blue pitbull that was not doing anything, that case because a huge precedent in case law, in CA Federal Court.  However this officer says the dog was being aggressive to him. (Obviously if the dog was not provoked and the officer shot it that would be one thing) The story does not explain how or why the dog was aggressive and had the owner kept the dog on a leash when the officer arrived, perhaps it would have been a different story.

Looking at the statement “labs don’t attack people”, well, generally speaking probably most labs don’t attack people, but that doesn’t mean this dog couldn’t have done so. In CA when a person has to take defensive action from an animal’s behavior, that is usually considered as a sign that the animal was exhibiting physical behavior of potential harm or nearly immediate harm. However, that is affected by whether the person who is taking the defensive action, knows the behaviors of canines in general. Many people do not know the physical behavior of canines at all, and might believe a dog was going to jump and attack, when it was just jumping.

The facts of the news report say that the AC officer was walking away from the dog and then we assume something happened and he shot the dog in the face. It’s fairly difficult to turn around and shoot a dog that is moving directly in the face unless it’s fairly close, we would imagine. and it’s doubtful that AC officers are shooting dogs at close range very often.

As for whether Virginia state law says that if you kill a companion animal it’s a felony unless it is actively attacking, it’s pretty obvious that the AC guy is saying the dog was actively trying to attack him, but he killed the dog before it got him?  If this owner obtains an attorney that can show the AC division of this county has a habit of doing this, such as in their animal control employee handbook, which may say that officers may shoot to kill when any animal causes officer to take a defensive position, or where there is evidence that AC has a protocol which covers such scenarios, and advises to kill the animal rather than just stop it, that would be one thing. However if there is no evidence of any known practice of engaging in such action as a protol of some type, it is rather unlikely that the government agency could be liable simply because it employed the officer.

However, if it was proven that the result of inadequate training or other policies reflect a deliberate indifference to the constitutional rights of persons with whom the employees come into contact, then maybe, but it would require a causal connection between the action or inaction of the municipality and the resulting injury. Lawsuits under 42 U.S.C. 1983 are complex, and usually difficult.  There are an inordinate number of specific hurdles, and exceptions, as well as many potential pitfalls, not to mention the costs in legal hours. Absolute immunity, qualified immunity, are all potential hurdles.

Suing the government agency (animal control) or a contracted agency, or a municipality,  for property loss under a 4th amendment claim is difficult. The pitbull case mentioned above took nearly 7 years. The right to be vindicated is not the value of the dog, but rather the illegal action of deprivation of property. The agencies and the government usually always have insurance, so insurance defense attorneys are going to be in the picture. Insurance defense attorneys are probably some of the most difficult attorneys to oppose since they make a living by papering people to death. (That is the main way that large firms win cases— the opposition has trouble keeping up, plus it drives up the costs of litigation immensely.)

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