Animal Law Cases by Florida Attorney

Mr. Kray is apparently commended by the ABA Animal Law Committee ..we noticed that on the ABA Law Committee, at least 4-5 of them are AR people. Meaning, they like to push AR laws.

The ABA House of Delegates recommends that there should be no breed discrimination in canine laws, and that the behavior (not the breed) should determine the factual basis; in other words, claiming a “pitbull” is an inherently dangerous dog just because of its breed would not be allowed. [It is a fact that in some states, dogs are characterized as inherently dangerous by breed, some are banned, and some are automatically NOT allowed to be owned in that jurisdiction.]

ACCEPTANCE: EXCELLENCE IN THE ADVANCEMENT OF ANIMAL LAW By: Fred Kray

…. I have been blessed to watch animal law grow from a small niche to a real force in the legal world. I was a charter member of the Animal Law Committee in Florida, and last year we were able to form a section. Some of my colleagues now teach animal law in law schools around the country. It has been very satisfying to see animal law grow and be a part of it.

And when you are actually involved in it, you understand how gratifying it is. For example, a dog has been wrongfully declared dangerous and faces death. You are there with your client and the court rules that the dog is not dangerous and can go home. Your client bursts into tears. If they could pay you 10 million dollars, they would. The feeling you get from that—I’ve tried some substantial civil cases on both sides— there is nothing that can compare with winning a case when you are on the side of justice. Winning a breed discrimination case where the judge rules that the law is unconstitutional and that the dog can go home—there is nothing to which to compare those outcomes. It is satisfying in itself.

That is what has always driven my desire to work on animal law cases. How did I get into animal law? I get asked that question by many lawyers. It happened quite by accident. I was sitting at home going through the mail and in comes a letter from which contains a ticket for having an unlicensed dog. There is a fax number to respond, so I fax a letter to that number, keeping the receipt, advising them that my dog has passed away and requesting that they void the ticket.

The next thing I get in the mail is a notice for trial. The courthouse is an hour and half away, so I clear my schedule and go down to county court for trial. As a trial lawyer, I always like to get the feel of the court, so I ask the bailiff, “What’s it like here in this court?” He looks at me with a grimace, and says “we haven’t had a not guilty in this court for five years. There was a seventy-year old lady here last week and her dog died a day after the license was due, and they fined her anyway. She was crying over the death of her dog, it was terrible.” I said, “Stick around; I think I have a pretty good case.”

The case was called, the animal control officer was sitting behind his computer and rattled off that I had a dog, it was not licensed as required on the due date, and I was therefore guilty. The judge looked at me and said, “What do you have to say about that?” I said, “Well first, I’d like to ask the animal control officer some questions.” The judge looked as if this was something that was happening for the first time. The animal control officer looked the same way. I asked the officer, “You don’t have any personal knowledge of any of the things you just testified to do you?” He said, “Yes, they are right here on the computer.”

I said, “That’s not personal knowledge, you didn’t input that information did you?” “No.” “You’ve never met me?” “No.” “No officer has ever confirmed that I even have the dog that is listed in your computer?” “No.” “You’ve never talked to me?” “No.” “Did you get my fax?” “No, that’s not my department.” “Is the fax number on the ticket correct?” “Yes.” “What is the point of having me fax my information to a number that you never look at?” “It’s not my department.” “Well let me ask you this does a dead dog need a license?” “Well, that depends.” “No, let’s say we have a dead dog here in the courtroom, right now, does it need a license?” “Well…..” “Judge could we have a yes or no answer?” “No.”

So I reach into my bag and bring out my dog’s ashes, which are in a hermetically sealed box showing the dog’s name, date of death, and cremation date. “Judge, I’m here to testify that my dog died on the date shown on that hermitically sealed box of ashes, that the box has not been tampered with in any way and is in the same condition as when I received it, that those are my dog’s ashes, and therefore my dog did not need to be licensed at the time the ticket was issued.” The judge looked at the animal control officer with the smallest of grins, and said, “I think he’s got you there.”  ** Our note–OK–this is funny but hardly earth shattering.

The officer went ballistic. I’m going to appeal; you’ve tampered with the ashes; I want a copy of the ashes!” He stormed off to the copy machine. I looked at the judge, and said, “Between us, I am a trial lawyer. There is nothing to appeal. It’s a factual determination and he has nothing to refute it. What is he going to appeal?” The judge looked at me and said, with a wave of his hand, “Don’t worry about him, he’s just mad because he lost.” As I left the courtroom, I looked over at the bailiff who was smiling and he gave me the thumbs up sign. The case was obviously never appealed.

The most exciting case of my life was an animal law case. I was a civil trial lawyer and tried some substantial matters, but the most exciting case I ever had was the case of the stolen Great Dane. We had filed a writ of replevin, which I had never heard of since law school, and got a break order to break into the house where the stolen dog was thought to be located.

Thursday night at 10 p.m., we went to a staging area with four police cars and special police versed in the use of deadly force. They have their walkie-talkies and their google map and then they drove to the scene, lights blazing, counting down on the walkie-talkies – “we are breaking in in 4-3-2-1-now!” My client and I had to go along to identify the Great Dane. My adrenaline was pumping like never before or since. A man comes out of the house. All of the neighbors are now outside watching, and asking what is going on.

The policeman says, “we are here to secure the Great Dane.” The man replies that no Great Dane is there. The policeman says, “I’m sure you realize we can’t take your word for that.” “Where is your search warrant?” The officer provides the break order. The policeman says, “We can do this the easy way or the hard way. We have the battering ram and we can break down every door in your house looking for the dog, or you can bring the dog out now.” The dog was brought outside in the next few minutes.  ** This might be funny to some attorneys but for crim defense attorneys–not earth shaking. It’s a dog.

I’ve spent the last five years specializing in breed discriminatory legislation, or what you would all consider pit bull bans. I do so because it is inherently unfair to punish a dog for the way it looks when there is no way to determine scientifically from visual identification a dog’s breed. And it is a fascinating subject. You learn about canine DNA, the history of breeds, visual identification, and constitutional law.**PD Note: [We have posted DNA article; it is not as easy as it sounds and in most cases, is not generally admissible to prove breed…]

I was involved in a case where an animal control officer identified a dog as pit bull. Pit bull is not a breed, by the way. The way the officer made his identification was to carry around an encyclopedia of dogs and compare the picture in the book with the dog he was seeing. We hired an expert, Victoria Voith, who made a photo array of dogs whose DNA was known, but looked like pit bulls.   We showed them to the officer, who got more and more nervous as the identification went on. We then decided to show him the dog he identified in the case as a pit bull. When asked about the dog that was the subject of the litigation in deposition, the officer said he didn’t know what breed it was. The case settled the next day.

In the last case that I handled, a Fire Chief identified the dog. However, the applicable statute called for an animal control officer to do so. In the event of a dispute, the statute required a DNA test. The city would not provide the results of the DNA test, but through a FOIA request, we found that the DNA was 50 American Staffordshire Terrier. Part of the statutory definition required the dog to be “predominantly of the American Staffordshire breed.” Fifty-percent is not “predominant.”

We filed a 1983 action in Federal Court in Louisiana. We went to Lake Charles, Louisiana to argue it. When we got to the court room, it was pretty crowded. I asked the bailiff, “How long do we have to argue this case?” He said, “2 hours.” To be able to argue a pit bull ban in Federal Court for two hours—Who would have ever thought?

It was the best court experience I have had in my life. At the end of oral argument, the judge granted our preliminary injunction and allowed the dog to go home. She said that she thought their visual identification was “hocus pocus” and that at the very least, somebody from Animal Control should be required to make such an identification. Further, she held that “predominant” was more that 50%. She went on to say that if you wanted to interfere with property rights, you had to provide due process.

These words and this outcome was all we could have hoped for. I am hoping that by creating a national network of animal law lawyers through the ABA Animal Law Committee, we can increase each lawyer’s ability to discuss and brainstorm his or her cases with experienced practitioners. Every individual lawyer does not need to reinvent the wheel when he or she has the ability to call or email someone who has familiarity with the matter on which they are working. In this way, we can better provide animals with the stewardship that they so richly deserve. Thank you.

Mr. Kray recently co-authored with Adam Karp, Esq. “Defending Against Dangerous Dog Classifications”, 128 Am. Jur. Proof of Facts 3d 291 (2012). Kray also has successfully litigated and overturned breed discriminatory ordinances in Federal Court pursuant to §1983 in both Moses Lake, Wash., and New Llano, La.

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***Our opinion on this— the cases he spoke about were fine. BUT what he probably doesn’t realize because he doesn’t live in California, or doesn’t know what Animal Rights people really are —- is that the majority of animal law people attorneys— are almost ALL on the animal rights side. HSUS, PETA, Best Friends, ASPCA–they ALL want no animals used at all. ***and altho we may be wrong, years ago it was our understanding that the DNA available for canine testing was basically limited to the AKC breeds for which such evidence has been gathered for years; for hybrid dogs, the DNA ‘testing’ available at that time was not considered scientific enough to be used in court; and at that same time, DNA testing was attempted on alleged American Staffordshire Terriers–and the results (from purebred lines) did not pan out correctly. We have not kept up with all of the advances in DNA testing, but will check it out and update if we find differently.

*** J Forensic Sci. 2009 Jul;54(4):829-40. doi: 10.1111/j.1556-4029.2009.01080.x. Epub 2009 May 26.

Canine population data generated from a multiplex STR kit for use in forensic casework.

Kanthaswamy S1, Tom BK, Mattila AM, Johnston E, Dayton M, Kinaga J, Erickson BJ, Halverson J, Fantin D, DeNise S, Kou A, Malladi V, Satkoski J, Budowle B, Smith DG, Koskinen MT.

Author information

 Abstract

Canine biological specimens are often part of the physical evidence from crime scenes. Until now, there have been no validated canine-specific forensic reagent kits available. A multiplex genotyping system, comprising 18 short tandem repeats (STRs) and a sex-linked zinc finger locus for gender determination, was developed for generating population genetic data assessing the weight of canine forensic DNA profiles. Allele frequencies were estimated for 236 pedigreed and 431 mixed breed dogs residing in the U.S. Average random match probability is 1 in 2 x 10(33) using the regional database and 1 in 4 x 10(39) using the breed dataset. Each pedigreed population was genetically distinct and could be differentiated from the mixed breed dog population but genetic variation was not significantly correlated with geographic transition. Results herein support the use of the allele frequency data with the canine STR multiplex for conveying the significance of identity testing for forensic casework, parentage testing, and breed assignments.

PMID:
19486242
DOI:
10.1111/j.1556-4029.2009.01080.x
[Indexed for MEDLINE]

AND FROM 2011:   https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3118728/

Current animal forensic DNA methods and resources are not as developed as in human forensics. Of chief concern is the lack of an accredited and comprehensive Quality Assurance System (5) for animal forensic DNA testing including:

1. Quality assurance program for the systematic actions needed to demonstrate the service meets specified requirements of quality;

2. Quality control (including day-to-day operational techniques and activities to fulfill requirements for quality, a quality manual that states the policy, quality system and practices of the laboratory, and tests to measure proficiency in both technical skills and knowledge of the analysts);

3. Standard operating protocols or SOPs (for preservation and chain of custody of animal biological evidence, methods, materials, equipment and analytical procedures, and casework documentation, reporting and testimony) geared toward animal forensic laboratories.

In the US, trial court system non-human DNA evidence is not accorded the same weight as human DNA evidence and is not frequently considered as :admissible.”

Furthermore, DNA analysis of animal evidence is as expensive and time-consuming as human DNA identification, therefore animal forensic tests are typically reserved for cases in which other forms of identification have failed or are being disputed.

The technical inability to obtain meaningful information about the source of canine hair or other biological samples without resorting to specialized laboratories has also contributed to why such evidence has not being utilized to its full potential in civil and criminal investigations (6). Moreover, expertise and interest in government forensic laboratories in using animal DNA, including analysis of canine biological evidence, is still lacking.

Since 1996, DNA-based investigations involving a variety of domestic and wildlife species including cattle, horses, bears, and canines have been conducted at University of California (UC), Davis. Typical forensic cases UC Davis has been involved in can be categorized into three distinct types: 1) when the animal is the victim such as in dog abuse, theft, or killing of dogs, and dog fighting cases; 2) when the animal is a suspect, for example when a dog attacks or mauls humans or other animals; 3) when the animal is a passive witness to a crime, such as when dog hair is used to link a suspect or perpetrator to the crime scene or victim. Such cases can include arson, homicide, rape, burglary, etc (2,7,8).

The importance of forensic analysis of animal DNA at UC Davis is reflected in the range of submitting agencies/clients that include attorneys (3 cases), law enforcement or other government agencies (11 cases), private individuals (7 cases), and human medical doctors or doctors of veterinary medicine (11 cases). Cases were submitted from 15 different states in the US – Oregon (2 cases), California (7 cases), Florida (1 case), Wisconsin (3 cases), North Carolina (1 case), Kentucky (1 case), New York (4 cases), Michigan (1 case), Virginia (3 cases), Maryland (1 case), Utah (1 case), Louisiana (1 case), Alabama (2 cases), Colorado (2 cases), and Alaska (1 case). An additional case from Bermuda further demonstrates the importance of animal forensics outside of the USA. These cases have not been reported elsewhere.

http://legal.pblnn.com/images/Grantcountypleadings/criscuoloamendedcomplaint.pdf   [this is the lawsuit from Moses Lake, Washington which shows Karp’s name on the lawsuit]

Kray is author of the website www.pitbulletinlegalnews.com.

Fred M. Kray Explains Why South Bend, Indiana, Dangerous Dog Law Is Unconstitutional

Analysissouthbend

Pit Bulletin Legal News’s Fred M. Kray, Esq., gave a Powerpoint presentation to the South Bend, Indiana, Animal Control Special Committee about the unconstitutionality of their dangerous dog law. The law singles out only the American Pit Bull Terrier (APBT) as a regulated breed by declaring it a dangerous dog. There is no statutory guidance on how APBT identifications take place, and the city attorney was unable to provide any specifics on the subject. The statute does not provide any due process safeguards, such a notice of hearing, right to counsel, burden of proof, burden of going forward, and has no appeal from the first tier fact finding.

Mr. Kray also shared that Breed Discriminatory Legislation (BDL) has never worked and that all mainstream professional and animal welfare groups are against BDL. He also pointed out that the United Kennel Club’s breed standards were not created to determine whether a dog is a member of a particular breed (in fact the UKC is strenuously opposed to the use of its breed standards for visual identification).

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