On Sept. 27, 2011, the City of Moses Lake unanimously voted to repeal Ch. 6.06 MLMC, its Hazardous Dog law enacted in 2008, on the eve of a deadline for a dispositive motion to be filed by Nicholas Criscuolo in his federal lawsuit against the City for unconstitutionally declaring his black lab mix, Dymond a part "pit bull," and then failing to provide him with any opportunity to meaningfully contest the unilateral determination by the City's animal control officer (whose formal education was limited to high school and previously working at a potato processing plant).
Mr. Criscuolo alleged that the ordinance, which presumed all dogs that had as an "element" of its breeding so as to be "identifiable" as part American Staffordshire Terrier, American Pit Bull Terrier, Staffordshire Bull Terrier, Rottweiler, or Presa Canario "hazardous" and thereby subject to onerous insurance, restraint, and annual registration fees, failed by both the standard of science in 2011 and the constitutional standard of due process.
As alleged in the complaint:
MLMC 6.06.010(A)(3) fails to publicize the City’s methodologies for determining whether a particular dog “contains an element of the breed ... as to be identifiable as partially of the breed,” fails to quantify what genetic increment constitutes same, and fails to provide fair warning of those circumstances where genetics manifest physically to an ascertainable and sufficient phenotypic degree. Instead, it determines prohibited conduct according to the often-uneducated eye of the regulator, rendering it unconstitutionally vague, overbroad, and underbroad, violating equal protection and privileges & immunities clauses, and denying citizens procedural due process under federal and state constitutional law.
No ascertainable (much less authoritative) source exists for mixed breed standards to which a government official may refer to avoid exercising unbridled, highly subjective discretion in “identifying” a dog as wholly or partially of the prohibited breeds, rendering the statute unconstitutionally vague, overbroad, and underbroad, violating equal protection and privileges & immunities clauses, and lacking procedural due process under federal and state constitutional law.
The state of science in 2011, including AKC and UKC standards themselves, renders purebred and mixed-breed bans such as provided in MLMC 6.06.010(A)(3) not rationally related to any government purpose and certainly not the least restrictive means available to manage dogs proven hazardous by prior, harm-causing, vicious propensity.
MLMC 6.06.060 permits a Community Services Officer or any Police Officer to impound a hazardous dog, in essence authorizing summary seizure even where the dog is not found running at large, vicious, or otherwise violating any other animal control law under Ch. 6.05 MLMC. Instead, dogs perceived to contain an element of the prohibited breed as to be identifiable as partially of the breed, by the purely subjective visual assessment of a CSO or PO, may seize the dog from her owner without any hearing, an ordinance systemically threatening the Fourth Amendment and Art. I, § 7 of the Washington Constitution.
Ch. 6.06 MLMC imposes onerous restraints on “hazardous” dogs through mandatory registration or fine of at least $1000 (as occurred with Criscuolo). Registration requirements include $150 annual fee (MLMC 6.06.040(C)), a proper enclosure (six-sided, locked pen or kennel) to confine the hazardous dog with clearly visible warning signs characterizing the dog on premises as hazardous (MLMC 6.06.040(B)(1)); microchipping (MLMC 6.06.040(B)(2)); spaying or neutering (MLMC 6.06.040(B)(3)); and insurance of at least $250,000 (MLMC 6.06.040(B)(4)). These restraints, when imposed on dogs with no demonstrated history or any allegation of aggression toward animals or humans, but who only face these restrictions due to a perceived, imprecise, methodologically deficient and unpublicized visual identification, violate substantive due process.
On Nov. 9, 2010, the City amended Ch. 6.06 MLMC to provide exemptions to the registration requirement upon proof of Canine Good Citizen (“CGC”) qualification (MLMC 6.06.043); that the dog does not reside in the City (MLMC 6.06.045(A)), that the dog entered the City for a dog show or canine sporting event (MLMC 6.06.045(B)), or who do not remain in the City for longer than 96 consecutive hours (MLMC 6.06.045(C)). Nevertheless, Ch. 6.06 MLMC still offers no opportunity to be heard to contest a city employee’s unilateral determination that a citizen’s dog meets the definition of “hazardous” under MLMC 6.06.010(A)(1-3), patently violating procedural due process under the state and federal constitutions.
The City alleges that the owner of a dog deemed “hazardous” under Ch. 6.06 MLMC may challenge that determination upon receiving a Notice of Violation and Order to Correct or Cease Activity (“N&O”), complete with a minimum fine of $1000 for failure to register a hazardous dog. The owner may challenge the N&O by appealing to the Moses Lake Hearing Examiner. Pursuant to City of Moses Lake Policy and Procedure 2008-01, MLMC 18.80.100(B), Ch. 6.05 MLMC, and Ch. 6.06 MLMC, the owner must pre-pay eight hundred ($800) dollars to have an audience before the Hearing Examiner and pay an additional two hundred ten ($210) dollars per hour for each hour spent by the Hearing Examiner beyond four hours as a condition precedent to “issuance of a final decision by the Hearing Examiner.“ On information and belief, the fee is nonrefundable and nonwaivable, even where the appellant prevails. Such a pay-to-play regime violates the federal and state constitutions, including but not limited to the open courts and due process clauses.
Thankfully, the City took the path of law and science and repealed the ineffective and illegal ordinance in its entirety. Let us hope other progressive and thoughtful jurisdictions follow suit.