Says It Would Cost $23,855 to Produce Bite Data
Is This Any Way to Run Animal Control?
As we previously reported, PBLN sent a FOIA request to Boston Animal Control (BAC) which can be read in it's entirety here. The Director of Boston Animal Control, Mark Giannangelo, in his response to the FOIA request, required $308.00 to identify the materials responsive to the request, and objected to producing the name of the victims of dog bites due to privacy concerns.
Bite Data Had Been Requested One Year Earlier,
That Request Remains Unanswered
The interesting thing about the response of BAC, was that a similar request had been made a year before, as can be seen here, and at that time BAC demanded $476.80 to identify what amounted to the same data. As of the date of this article, the previous request by Donna Bishop has still not been fulfilled. You have to wonder how this bite data, which has allegedly already been sent to Ron Consalvo (as attested to in his radio interviews) needs any identification, and costs over $700.00 to identify.
Judge Patricia Minaldi entered a preliminary injunction against the Town of New Llano's pit bull ban on Tuesday, which prevents enforcement of the ordinance until the case reaches resolution. The judge also ruled the dog at the center of the dispute, Mazzy, could go home with some restrictions after being kenneled out of town. The lawsuit was filed in the United States District Court for the Western District of Louisiana, Lake Charles Division by Christine and Victor Nelson, who challenged the constitutionality of New Llano's pit bull ban
The hearing took place in Judge Minaldi's courtroom, and the case was argued by both sides for over an hour. Fred M. Kray, arguing for plaintiffs, started out his argument by pointing out that Lousiana's state dangerous dog law requires a muncipal court filing, notice of hearing, hearing, rules of evidence and appeal. This process is mandated for dogs that have bitten or acted aggressively. The New Llano ordinance allows none of these protections for dogs that have done no wrong except to look like a pit bull to the New Llano fire chief. Kray also moved to strike citation to statistics cited by the Town in there brief from dogsbite.org. He questioned how cutting and pasting from a website on the internet could be used as precedent without peer review, data or any way to know the accuracy of such statistics. He pointed the court to the peer reviewed article Co-occurence of potentially preventable factors in 256 dog-bite related fatalities in the United States (2000-2009) as a more complete and accurate picture of the reasons dogs bite-breed not being one of them.
The ordinance was also vague, Kray argued, because it gave two different definitions of pit bull, which conflicted and would not allow a person of ordinary intelligence to know that they owned a banned dog. It was pointed out that under the "predominant" definition, Mazzy would not be a banned dog under the ordinance.
Finally, it was pointed out that the requirement of paying $200 for a DNA test violated due process, because people who could not afford the test would end up with their dog banned, even if it was not a pit bull as defined under the ordinance.
The Town argued that the ban was needed and had rational basis to public safety. A small town should not be held to the standard of visual identification in Miami (where Cardelle was decided), which has more resources. The Town did not dispute that the Nelsons were suffering irreparable harm. They argued that since the payment of $200 for the DNA test was refundable, it was not unconstitutional.
The Town asserted that they could ban pit bulls even if there were no evidence of pit bull bites. The Town asked the rhetorical question, why should we have to wait for there to be a mauling before we ban pit bulls? We want to be proactive. The Town had difficulty explaining how the definition which included the term "predominant" would ban Mazzy, since she was only 50% pit bull based on the DNA test. They also had difficulty explaining how the term "any" pit bull was applied in the ordinance.
This is a thumbnail sketch of the hearing, and when the transcript becomes available, we will post it so the entire argument can be revealed.
At the end of the hearing, the judge ruled from the bench granting Plaintiffs' Motion for Preliminary Injunction. What this does is prevent the town from enforcing the ban during the pendency of the litigation. She allowed Mazzy to go home, under the condition she be held as a pit bull that had been grandfathered in under the ordinance.
Kray, one of the two attorneys representing the Nelsons, was extremely happy with the ruling. "It's extremely difficult to prevail on a Motion for Preliminary Injunction. This ruling allows Mazzy to finally go home with her family and ensures that other dogs will not be put in a position where they are wrongfully banned and their owners have no way to defend the pit bull classification."
"Although this is a temporary ruling until the case can be fully adjudicated, I am so happy that Mazzy can be at home during the rest of the litigation," said Stacy Palowsky, who also represents the Nelsons. Most pleased were the Nelsons, who now can bring their dog home after nine months of boarding.
A lawsuit challenging the constitutionality of New Llano's Pit Bull ban was filed this week in the United States District Court for the Western District of Louisiana, Lake Charles Division. The lawsuit alleges that New Llano's Ordinance 4 of 2013 is unconstitutional because, among other things, it allows the Town to seize and identify a “pit bull” without any type of hearing. Even though Louisiana law provides that an owned dog is personal property, under the New Llano law, there is no procedure in which the Town is required to prove it has the right to seize a dog, nor is there any way to legally defend against the Town's designation of a dog as a pit bull.
The case is brought on behalf of New Llano residents Christina and Victor Nelson who adopted their dog mixed-breed dog, Mazzy, from a shelter in Indiana in 2011. Victor Nelson is in the military, so the Nelsons moved to New Llano in September 2013 when he was stationed at Ft. Polk. According to the suit, the Nelsons found out about the ban when having their water turned on. They then agreed to a DNA test based on a promise by the Mayor that if Mazzy was found to be a pit bull under the ordinance, she would be grandfathered in so she would not be banned from New Llano. After the DNA test, Christina Nelson received a call from the Town saying Mazzy was banned because she was allegedly an American Staffordshire Terrier. But when Mrs. Nelson asked for the results of the DNA test, she was told she would have to subpoena them. Mrs. Nelson’s request for an order banning Mazzy was also rebuffed. Instead, she was told the Ordinance was the order of removal. The Nelsons have been fighting with the Town for months now about the banning of Mazzy and have been forced to board their dog outside the Town limits since October of last year.
The Nelsons are represented by Stacy R. Palowsky of Madisonville, Louisiana, and Fred M. Kray of Gainesville, Florida. Mr. Kray stated: "The State of Louisiana in dealing with dangerous dogs, provides a full panoply of due process rights, including a hearing, notice of hearing, a judge, right of cross examination, the right to introduce evidence and rules of evidence. And that is for dogs that have bitten someone or acted aggressively. In Christina's case, she received none of these protections, and Mazzy has been banned from the community even though Mazzy has never harmed anyone or acted aggressively."
The Town has 21 days to respond to the complaint.
The complaint in its entirety, can be read here.