
Quoting
Taxing Matters
There is, interestingly enough, apparently no case law regarding the application of SD statute § 40-34-1 that makes lawful the killing of a dog that is “found chasing, worrying, injuring, or killing poultry or domestic animals.” Certainly that section would shield a person from prosecution for killing a dog during the actual episode of chasing, worrying, etc. But when the attack is well over and the dog is no longer an imminent risk to any domestic animal I have my doubts that this statute would be of much help to the person who killed the dog. More significantly when it comes to the government killing the dog, the statute must be read in conjunction with the Fifth Amendment’s guarantee of due process prior to the government depriving a person of his property, and dogs are considered property under the law. The Fifth Amendment applies to state and local governments via the 14th Amendment. Here, had the police officer shot the dog sometime after the actual attack was over and at at time when the dog is not posing an immediate threat to any person or domestic animal without first giving the owner any chance at due process I think it likely that the courts would say the dog owner’s Constitutional rights had been violated. The issue here will be one of balancing the need to take prompt action to protect the public versus the right to due process the dog owner has under the Constitution. The less immediate the threat, the less likely it is that state can justify prompt destruction of the dog without affording the owner some kind of hearing or other court review first. So the exact facts of this are very important. If you wish to pursue the matter, consult some SD attorneys who practice is the area of civil rights claims and see what they have to say. The main problem that I see here that there is a possibility that what you pay a lawyer to litigate this might well exceed what you’d win, even if the court might award the payment of some of the attorney's fees to you. That’s something you’d want to discuss with the lawyer if the lawyer says you have a good claim on the merits.