Horses, Cats, Dogs+Seizure Appeals, and Fallout

One of the attorney contributors to Pet Defense blog is representing owners in 2 So Cal cases, both re seizure of animals. http://animallawattorneycalifornia.com/

One case involves the post seizure hearing (hearing officer found no warrant and no exigency) and the other involves the seizure of about 30 horses/animals  near the Vista, CA area, over 15 months ago, now being pursued as a Felony, PC597b,  most likely because not brought forward within a year as a misdemeanor.  Also, attorney’s law student just passed the State Bar and he may work on cases as assistant in research.  In regard to legal help concerning illegal seizure, be careful only to find an attorney who has handled criminal defense cases, and is familiar with animal rights and their errant methods.

As for civil cases, find an attorney that has done temporary restraining orders or preliminary injunctions and some criminal cases preferably; in many cases, bankruptcy may enter the picture and in CA, the animal abuse laws will likely be the moving code. The Federal 12(b)(6) is the normal dismissal used, for failure to state a claim. Feds don’t like to entertain cases if they do not have to do so, and they dismiss cases much faster than State Courts. Their first priority is to get rid of the case where possible.  Further, issues within 1983 cases involving seizures can be very difficult due to conflicts in the law. And if suing different parties, be very aware that animal groups will likely file what is known as ANTI SLAPP cases, claiming that the Plaintiff is trying to stifle the opponents’ con law rights to free speech. For example, claiming that activists met with city, county or other officials such as board of supes, or other elected personnel, without inviting the opponent, is not an illegal action. If conspiracy is proven, that is a different story.  HSUS people always meet with legislators and other governmental employees. In fact, they could possibly be construed as lobbying for the most part, even tho a 501(c)(3).

Horse Case Acquittal

The Lassen horse owner that was completely acquitted on all counts of neglect-abuse in Lassen County is weighing his options against the banks who claim they can buy out his property rights from the bankruptcy filed when owner’s horses were stolen without due process.

Cat Case Appeal

In Oakland, the State Bar is claiming that the attorney often called the cat lady from Oakland, [who obtained a precedent ruling with the IRS, allowing volunteers who spend their own money on non profit animals, to deduct those costs from their taxes AND this was reported in world news, including Forbes and the Wall Street Journal…], and who is self represented— was told by the State Bar that she could not practice as an ATTORNEY because she was found guilty on one count of neglect (out of 90 or so feral cats) claiming that this conviction meant moral turpitude? –the cat lady attorney has appealed all of the rulings in Federal Court.

The fact is that the local animal shelter could not find fault with her care of the animals, so they essentially used the cat lady’s cleaner as a secret snitch, who then took pictures of the house inside when he failed to clean it (he was hired to do the cleaning, then purposely didn’t do it, but went in the house to take pictures for AC?) Just as an example, the cat lady wrote off between 12-14k in one year, re care of cats. She also did hospice care for ferals.  Her first trial was a hung jury. It is estimated after 2 trials on the issue, over $300,000 of government time wax expended.

We have reviewed quite a bit of the evidence in that case and believe that the cat lady was correct, the seizure was premeditated and not legal as carried out. Further, it appeared to have been contrived after the IRS case came out, which apparently caused one or some of the feral cat rescues to be investigated.  All of the involved parties sued by the cat lady (and there are many) hired separate counsel to all respond to the allegations, and Federal Judge misapplied the standard used to amend (by denying cat lady the right, essentially…) Federal discovery rules are different than state, and we expect to see that the discovery if obtained, will support cat lady’s position in at least some of the issues; at least some of the issues bear on the problematic  Heck v Humphrey and Wallace v Kato.

http://writ.news.findlaw.com/commentary/20070409_wasserman.html

http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1441&context=shlr

http://dritoday.org/post/Seventh-Circuit-Finds-Heck-v-Humphrey-Does-Not-Bar-Two-Section-1983-claims.aspx

…”[O]n appeal, the plaintiff first argued that his excessive-force claim against the shooting officer was compatible with his conviction for two reasons. First: the shooting officer shot at his car before he sped off in a manner that, according to the conviction, was reckless. Second: because he pleaded no contest under North Carolina v. Alford, 400 U.S. 25 (1970), he did not admit to reckless driving.
The Seventh Circuit observed that the plaintiff’s Alford plea did not nullify the Heck bar or its application to reckless driving. Like any plea, an Alford plea resulted in a conviction to which Heck applies. Moreover, under Heck, the plaintiff could not pursue any claim that would necessarily imply the invalidity of his conviction. The plaintiff was convicted of recklessly endangering others by speeding away from the officer, and an officer may reasonably use deadly force when a suspect poses a threat of serious physical harm, either to the officer or to others. Thus, Heck would bar any allegation that the shooting officer used excessive force after the plaintiff began driving recklessly under the state statute of his conviction.
But the Seventh Circuit found that Heck did not bar the plaintiff’s claim against the shooting officer because, construing his allegations liberally, he was alleging that the shooting officer used deadly force before the reckless driving that led to his conviction. The plaintiff alleged that the shooting officer fired at him as he slowly drove past the shooting officer, before he sped away.
The Seventh Circuit ruled that Heck does not bar that claim because, if it did, then resistance that did not jeopardize safety, such as the low-speed driving that the plaintiff described, would invite the police to inflict any reaction or retribution they choose. The Seventh Circuit cautioned, though, that the plaintiff survived Heck only if, as his complaint implied, the conviction was for conduct that occurred after the shooting.
In any case, the Seventh Circuit found there had been no seizure under the Fourth Amendment because if, as the plaintiff contended, he sped away after the officer fired the second shot, then he was not seized by that force because he was not stopped by the very instrumentality set in motion or put in place to achieve that result. However, because the plaintiff alleged that the officer shot at his slowly moving car, not to enforce a government interest, but to kill him, the Seventh Circuit found that the allegations stated a Fourteenth Amendment claim.

 

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