I know its a different state, but im sure some type of due process is in any state regarding dogs, cops lie, twist laws, no way they can order a dog killed just like that after the fact with no due process.
I'm sorry tony has derailed your thread, and I'm sorrier that you had to lose your pet.
You've got to keep it realistic though. The law does not afford rights to animals (well...they do, but not house-pets). Call a couple of local attorneys in the morning.
And my actual advice on this thread? Take everything tonynewman says and throw it out of the window. He knows as much about the law as I do about the mating habits of Galapagos penguins.
I looked at the link and as Dogmatique mentioned, it was from a law journal with case law from all over the country..my error there.. but that's really not what the OP needs.
There may be a due process in the OP's locale but without knowing the specific town or county (animals are usually governed at the local level) we don't know what that is.
OP should discuss with a local atty.
You should have called a lawyer and gotten a temporary injunction to allow a hearing. I do however agree if the dog mauled the cat to death, it is only a matter of time until a baby or small child he feels is threatening his home gets killed or mauled.
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.
What bothers me about all this is that a sheriff's deputy just knocks on the door and says I'm going to take your dog and kill him without any authorization or order from a judge. Don't they need a warrant to seize someone's property inside the house where there is no eminent threat?
As things progressed, though, he did leave without the dog.
As Taxing Matters indicates, the deputy's exact words are significant to whether or not you have a potential claim.
This was not a vet you chose? Are you saying that you were instructed by the Sheriff to take the dog to a specific vet by a specific time? If so, were you told at any time that you would be charged or billed for the service?Quoting rmh8400
It's difficult to say what would have happened had the deputy taken the dog. However, as the deputy did not take the dog, any legal requirements that might have followed from the dog's being taken into possession would not have been triggered.Quoting rmh8400
You admit that the dog killed the cat. You have not indicated that the deputy in fact entered your home or conducted any sort of search.
I agree with that interpretation. The statute addresses a dog that is actually disturbing domestic animals, and it would be a real stretch to try to extend it to a later context in which the dog is no longer disturbing animals..
But it does mean that the due process requirements that would have been triggered, had the dog been taken into police custody with the police asserting legal authority to euthanize the dog, were not triggered. The case becomes more complicated and, as you have indicated, the deputy's exact words are important to any analysis.
The deputy is allowed to bluff and, as no search or seizure occurred, it's not clear that the deputy would have engaged in any sort of search or seizure had the homeowner denied him entry. Had he attempted to seize the dog he presumably would have done so on the basis that it was a dangerous animal that posed risk to the public; but it's very possible that he would have sought a warrant.
The Sheriff's general authority is set forth in SDCL Sec. 7-12-29:
There is no question but that, under that statute, a sheriff's department is not supposed to destroy an animal it takes into its possession without a formal determination of the animal's dangerousness. I see no definition of what constitutes a "formal determination" but I think it reasonably follows that the requirement would have been for an independent hearing, likely before a judge or magistrate.Quoting SDCL Sec. 7-12-29. Taking and holding animal suspected of being dangerous--Formal determination--Disposal of dangerous animal.