We have our doubts on this case and now do not believe that the challenge will primarily focus on the code which allows for seizure (although we are fairly sure that if it did, it would be published, as in a published case…) but would focus on damages (losses)..
When property is seized under the penal code for claimed animal abuse or neglect, there is an attached abandonment feature. In order to preserve your rights, you have to PAY the entity that took your property, some money!! Then if you fail to PAY that money–you lose ownership of your property! It is FAR more complicated than that, but that’s the basic premise. Basically this means it is forfeiture.
Also, your property is simply taken from you while they raid your house. They are never held accountable for what they take out of your house? Only in the Hell’s angel Case out of Santa Clara when the raiding officers went hog wild, were the government agents held to task for their actions. They also killed at least one dog, and they were in trouble for that also. The total payout for group and individuals, etc. was close to $2million. (We talked to attorney Snell years ago re the case.)
The newer case we are talking about does involve a seizure, and of the cases we have seen in the past, this particular case is unlike any other case, because it has specific facts which prove nearly all of the stuff we have been writing about since 2008….. nine long years….. however, its focus will not likely be on the seizure law, but on the alleged results.
Although it is true that we have won a post seizure case in North Hollywood, the owner in Hollywood chose not to file a tort claim or a lawsuit. The seizure law in California and the California Penal Code as written could be tested facially or as applied (for constitutional law purposes..) See http://rationalwiki.org/wiki/As-applied_challenge
We are aware that well known attorney Mr. Wagman (Bay area) pitched a useless claim to the state court earlier this year which, according to him, justified a seizure based only on the law as written–which meant (according to Wagman) –that IF a warrant was used, no due process is required, and no post seizure hearing is given? That conclusion is not only flawed, it’s plain ludicrous and goes against the entire nature of due process.
Wagman’s explanation of how due process is not required simply because a warrant was used is silly, since if no charges are filed against owners, they have no remedy to use in order to gain possession of the seized property taken by errant humane officers? At least they likely can’t use PC1538.5 because they are not “defendants” (because they haven’t been charged with a crime by the District Attorney…) The owners (non-defendants) might have to resort to some extraordinary remedy but in this case, it seems they did not… Thus the humane society that seized all of the animals, simply kept or sold the animals and gained the money from the sales.
Wagman further claimed that such law was used in published cases which shows that the law is valid and that if anything, the Legislature would be at fault if the code section was not sound. Although Wagman is wrong, that apparently is not to be the main focus if the case goes forward. Disappointing. Extremely disappointing. But not a surprise.