July 6, 2009
Due process in dog cases
Dog owner Lawrence Kelly had a choice: agree to have his two rottweilers and bulldog euthanized or go through the legal system and let the court decide whether the animals were dangerous.
"New York State law affords owners some due process protection," said attorney Beverly M. Poppell of the New York State Bar Association's Special Committee on Animals and the Law. "They have to be allowed before the court for an evidentiary hearing to see if there was any provocation, and the level of evidence must be clear and convincing."
The state's "dangerous dog law" gives judges latitude in dealing with a dog found to have attacked without provocation. Beyond mandating permanent confinement or euthanasia, a judge can require an owner to obtain liability insurance, neuter or microchip the dog, or have it complete training recommended by a behavioral expert.
State law mandates a 30-day waiting period before a dog is euthanized to allow the owner to file an appeal, unless he or she waives that right.
The law also makes an effort to avoid "breedism." "Any determination as to the propensity of a dog to attack cannot be based on breed," Poppell said. "It has to be based on its actions."
As for Kelly's decision to permit the dogs to be euthanized, Poppell is not surprised. "The problem is that the owner didn't keep the dog confined. And the dog always pays the price."
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