Calm Down Everybody!Posted by Scott Heiser, Director of ALDF's Criminal Justice Program on October 7, 2009
The impact of the Federal District Court’s (Western District of Kentucky) memorandum opinion in Louisville Kennel Club v. Louisville/Jefferson County Metro Government isn’t as bad as you might think from reading the web traffic on this case.
Kentucky is, as most animal lawyers know, a “challenging” state given the dearth of procedural tools commonly available to investigators and prosecutors working animal cruelty cases in other states. Noticeably absent from Kentucky’s Revised Statutes are some very basic tools like: (1) a statutory duty for law enforcement to investigate and arrest in animal cruelty cases; (2) the option to require the offender to post a pre-conviction bond sufficient to cover the costs of caring for the abused animals (including forfeiture of the animals if the offender elects not to post the bond); or the right for those who care for abused animals to enjoy the benefits of a basic lien (e.g., possessory chattel lien) to secure the payment of funds expended to rehabilitate the abused animal, not to mention the right to enforce the lien by foreclosure.
Some of these omissions at the state level were recognized and remedied by Louisville/Jefferson County Metro Government (Metro) when it codified a host of local ordinances applicable to cases occurring within the jurisdiction of the Metro Government. In a recent case filed by a kennel club challenging these ordinances on a host of constitutional grounds, the Metro Government prevailed on 15 of 17 different attacks mounted by the plaintiffs. In fact, the only two issues upon which Metro did not prevail were: (1) an equal protection argument related to the ordinance’s requirement that the Director of Metro Animal Services give written approval of enclosures used to confine intact dogs but not so for spayed/neutered dogs (and this incongruity was a point conceded by Metro’s attorneys) and (2) a due process challenge to the pre-conviction bonding and forfeiture rule found in Title 9, Chapter 91, Section 101 of the Metro code. It is this § 91.101 ruling that has some folks worked into a lather. Fear not…
After reading the Louisville opinion, it is painfully clear that the trial court was unimpressed with the level of advocacy advanced by Metro on the § 91.101 issue, given that the court commented that Metro failed to cite the leading due process case. Specifically, the court noted that, “The government does not articulate any interest whatsoever in its brief–it does not even cite Mathews [v. Eldridge, 424 U.S. 319 (1976), arguably the leading case, setting forth the rubric for analyzing a procedural due process challenge]–and the Court is unwilling to fabricate one. Consequently, we must hold that the portion of § 91.101 that would permanently deprive a pet owner of his property, absent a finding of guilt, is unconstitutional.”
One thing is for certain here: this ruling from the federal trial court DOES NOT void pre-conviction bonding and forfeiture statutes. Rather, the court held that Metro had failed to make a clear and articulate record on why § 91.101 passed muster under Mathews v. Eldridge. An entire body of pre-conviction forfeiture law remains completely unaddressed and unaltered by this case.
Here’s a sampling of just a few cases that the Louisville court did not address:
- Dusenbery v. United States, 534 US 161, (2003) (petitioner received constitutionally adequate notice of the forfeiture proceeding against him when the FBI mailed a certified letter to the prison where he was an inmate, even though the prison regulations at the time required prison staff, not the petitioner, to sign for the notice);
- Bennis v. Michigan, 516 US 442 (1996) (a court order forfeiting a jointly owned vehicle without making any provision for the interest of the innocent co-owner did not violate either Due Process or the federal Takings Clause);
- United States v. Good Real Property, 510 US 43 (1993) (unless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture);
- Florida v. White, 526 US 559 (1999) (where probable cause existed to believe that an automobile was subject to forfeiture because of previous use in drug trafficking, the 4th Amendment did not require police officers to obtain a warrant before seizing the vehicle from a public place; evidence discovered during a post-seizure inventory was admissible in a subsequent criminal trial);
- United States v. Ursery, 518 US 267 (1996) (in rem civil forfeitures of the instrumentalities and proceeds of criminal activity were not criminal in nature and did not constitute punishment under the 5th Amend. double jeopardy clause).
Of course, for all those who are prone to mistakenly espouse the “innocent until proven guilty” presumption in arguing against any form of pre-conviction forfeiture, I feel compelled to remind my dear readers of Bell v. Wolfish, 441 US 520 (1979), where the Supreme Court made it clear that this has to be one of the most misunderstood and misapplied presumptions in the history of U.S. jurisprudence:
The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial. Taylor v. Kentucky, 436 U.S. 478, 485 (1978); see Estelle v. Williams, 425 U.S. 501 (1976); In re Winship, 397 U.S. 358 (1970); 9 J. Wigmore, Evidence 2511 (3d ed. 1940). It is "an inaccurate, shorthand description of the right of the accused to `remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; . . .’ an `assumption’ that is indulged in the absence of contrary evidence." Taylor v. Kentucky, supra, at 484 n. 12. Without question, the presumption of innocence plays an important role in our criminal justice system. "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453 (1895). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.
The same logic applies to in rem civil forfeiture cases (be they animal cruelty cases, nuisance impound cases, or proceeds/instrumentalities of the offense cases, including civil RICO forfeitures).
With a fair opportunity to a pre-forfeiture hearing, and assuming the record is clear that there is probable cause (i.e., “more likely than not” or proof by a preponderance of the evidence for you civil litigators) that the seized animals have been the victims of abuse or neglect inflicted by the defendant, assuming the defendant is unwilling to post a cost-of-care bond which would cover the rehabilitation and care of the live “evidence” in the criminal case, then title should pass to those who are willing to provide care. This is a far more efficient process than clogging the docket with a subsequent quantum meruit case, and it has nothing to do with a finding of “guilty” or “not guilty,” where the burden of proof is much higher than in any civil context. Harkin back to law school and that civil procedure lecture on collateral estoppel… Or, perhaps not.
Nevertheless, a presumption of innocence at trial has nothing to do with whether that same offender, on a showing of probable cause that he or she has abused animals, should be required to post a cost-of-care bond or face loss of title to those abused animals if he or she is unwilling to pay for their care, amounts that he would presumably pay anyway if he were properly caring for the animals himself were they still in his custody before trial.
Let me know if you have questions or if ALDF can be of any help should you get into a due process case challenging a pre-conviction bonding/forfeiture case.