Dangerous/Vicious Dog Issues
Protecting Stray Animals
Public Policy: Food
DANGEROUS/VICIOUS DOG ISSUES
De Guzman v. City of Fremont (2016 - present)
Evans & Page represents a woman whose dog was declared "vicious" by an admistrative hearing officer conducted by the City of Fremont; the hearing officer ordered that the dog be euthanized.
After extensive research via public records requests, Evans & Page discovered that the hearing officer was never appointed by the City Manager -- as required by Code. Further, the hearing officer engaged in ex parte communications with the City Attorney's office before the hearing, expressing legal opinions on the admissibility of evidence at the upcoming hearing and meeting the deputy City Attorney for lunch hours before the hearing. Evans & Page also discovered that the City is not following a proper rotation of hearing officers.
Evans & Page filed a petition for writ of mandate, and a hearing is upcoming.
PROTECTING STRAY ANIMALS
Purifoy, et al. v. Howell, et al. (2006 - present)
This case was the first and only lawsuit in California to interpret California's Hayden Act, which sets the holding period for stray animals. The lawsuit resulted in a published appellate opinion, and a second non-published appellate opinion--both of which were in Evans & Page's favor and overturned trial court orders.
The lawsuit was the result of Contra Costa County's policy of counting "business days" in a manner that resulted in animals being held much shorter before being disposed of; plaintiffs advocated for a method of counting "business days" that gave animals a longer holding period, in order for the animals to find new homes or have their original parents locate them. The plaintiffs were taxpayers, and an individual whose dog Contra Costa held for too short of a period. Contra Costa defended their definition of "business days" by citing to the practice of shelters throughout California.
In 2008, both sides filed motions for summary judgment, and the trial court granted the County's motion, holding that "business days" means "any day that the County is open for business." Plaintiffs argued that the ordinary and common usage of "business days" meant Monday - Friday, not including holidays. The Hayden Act did not have a definition specified. Plaintiffs appealed the trial court ruling, and in 2010, the First District Court of Appeal issued a published opinion agreeing with Evans & Page's position, and thereby upholding the intent of the Hayden Act and providing animals with longer lives before being disposed of.
The case returned to the trial court for futher proceedings and Evans & Page moved for attorneys' fees under California's private attorney general doctrine (Cal. Code of Civ. Proc. section 1021.5). In late 2012, the trial court denied Evans & Page attorneys' fees. In 2013, Evans & Page appealed the ruling to the First District Court of Appeal. The Court of Appeal issued an appellate opinion overturning the trial court's order and holding that Evans & Page's lawsuit: (i) vindicated an important right, (ii) conferred a significant benefit on the general public, and (iii) dealt with a novel legal issue. The County sought reconsideration from the appellate court, and it was denied. The County filed a petition for review with the Supreme Court of California, and it was denied. In 2014, the case returned to the trial court to resolve the issue of attorneys' fees.
Evans & Page appealed the trial court's ruling on the amount of fees, and the ruling is on appeal with the First District Court of Appeal, and the matter is fully briefed.
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Potter, et al. v. Dicharry, et al. (2014 - present)
In 2014, Evans & Page filed suit on behalf of a couple that had their home raided and dog shot by police executing a search warrant. The suit was against individual officers and the City of Red Bluff under 42 United States Code section 1983, based on Fourth Amendment property right violations. Although police were aware of the couple's dog before entry, they made no efforts to plan for managing the dog upon entry, besides charging through the door with guns drawn and shooting the dog. Mr. Potter witnessed police shoot his dog just feet from him, and then was forced to remain on the ground next to his murdered friend bleeding-out.
At least one of the officers agreed that prior to entry he felt the plan was too dangerous, but his protest was overridden by senior officers. Additionally, the facts show that the police did not give a satisfactory "knock and announce" warning before opening the couple's front door, which prevented the couple from moving their dog to another room or otherwise tethering the dog in a safe area.
One of the police officers moved for summary judgment after the close of discovery on the theory that he acted reasonably and was entitled to qualified immunity. The court disagreed, and held that the facts demonstrate (in the light most favorable to plaintiffs) that plaintiffs were subject to a Fourth Amendment violation, the "knock and announce" did not occur, and defendant's did not act logically or reasonably. Shortly after the court's ruling, that particular officer settled the case with plaintiffs.
The case also concerns the City of Red Bluff's unconstitutional conduct -- and policy -- of seizing property while executing a search warrant. Although police are allowed to seize property that has been detailed in a search warrant, or property that is patently illegal or evidence of criminal behavior, that is not what occurred in this case. Officers seized a bicycle, a chainsaw, a paintball gun, basically any item that the couple could not prove they owned; even though none of these items were specified in the warrant or patently unlawful. Besides the unlawful seizure, the City of Red Bluff has a policy of not returning this type of property unless the prior possessor can prove ownership.
So, the result is that the officers entered the house without a warrant for the property, seized the property, and then will not return it without a proof of ownership. This methodology turns constitutional property rights upside down, requiring the possessor of property to prove ownership or else the police will seize it, and sell it or keep it for departmental use (which is what occured in this case).
This case is set for a jury trial in February 2017 in the Eastern District Federal Court in California
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PUBLIC POLICY: FOOD
PCRM, et al. v. Vilsack, et al. (2016 - present)
Some of our cases involve food production and/or food consumption, either of which intertwine the public interest concerns of animals used in food production and human health.
In January 2016, Evans & Page filed suit on behalf of Physicians Committee for Responsible Medicine against the USDA and the US Dept. of Health and Human Services, concerning the creation and adoption of the Dietary Guidelines for Americans. The case is based on defendants' violation of the Federal Advisory Committee Act ("FACA"). Defendants formed the 2015 Dietary Guidelines Advisory Committee ("DGAC"). In February 2015, the DGAC announced, in a widely publicized advisory report submitted to Defendants, that cholesterol is no longer a nutrient of concern for overconsumption. In stark contrast with the positions taken by the Food and Drug Administration, the Institute of Medicine, and previous Dietary Guidelines, and contrary to decades of unbiased scientific research, the new advisory report declared that available evidence shows no appreciable relationship between consumption of dietary cholesterol and serum cholesterol.
Defendants allowed the DGAC to ignore the findings from decades of independent research and instead rely on recent studies funded by the federal egg promotion program administered by USDA and the views of DGAC members whose institutions received substantial egg industry funding. As mandated by USDA, these studies were directed towards increasing the general demand for eggs, egg products, and related products to the end that the marketing and utilization of such products would be encouraged, expanded, improved, or made more acceptable. 7 C.F.R. 1250.341(a)(b). Defendants also appointed four members to the DGAC who have held positions with an institution that requested and received funds from USDA's egg promotion program for the sole purpose of overturning Defendants' recommended limits on dietary cholesterol intake. As a result, the DGAC's recommendations on dietary cholesterol, and Defendants' subsequent recommendations in the Dietary Guidelines, are inappropriately influenced by the appointing authority or by any special interest, in violation of FACA.
In June 2016, defendants filed a motion to dismiss with a hearing date in August 2016; the matter is fully brief by both sides.
1. Section 1983 is entitled “Civil
action for deprivation of rights” and it states:
Every person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.