Padi-waggin: the tail of one dog's journey from death row to legislative inspiration for dog bite due process.

• Author: Eschenfelder, Robert
• Position: Florida

This article describes how the confluence of a local government dog bite citation, community concern, a dog-owning legislator, and a circuit judge allowed a dog owner to save his dog and ensure future dog owners would be afforded a more traditional due process appeal prior to their dog's being sentenced to die for seriously injuring a human.

The Backstory

It has been said that there are "dog people" and "cat people." However, for those who undertake the profession of veterinarian, it seems the love of all animals flows through their veins. And so it was that a local Manatee County veterinarian one day was brought a dog that had been badly abused and left with a far too small collar embedded into his neck.

The veterinarian carefully removed the collar, and began nursing the dog back to health. While his goal was to see the dog adopted, no one seemed interested. And, thus, it came to pass that the veterinarian came to see the dog as part of his family. He named the dog Padi. Life was good for Padi with his new family. He hung out at the veterinarian's office, visited with the other animals awaiting treatment, and occasionally interacted with the humans who visited, too. That may be where the story ended. Except, it wasn't.

The Incident

On June 4, 2015, the veterinarian's teen daughter wanted to hang out with her friend. However, her friend was caring for a four-year-old boy at the time. Eventually, the three converged on the veterinarian's office. The teens chatted; the boy began trying to play with Padi, who was not familiar with the boy. Dog toys were tossed; Padi went under a desk, and the boy followed. While no one saw the actual event, the boy came from under the desk screaming and Padi had bitten a portion of his ear off.

The boy was eventually transported to the emergency room for stitches. Future reconstructive surgery was indicated by the treating physician as likely needed. The Manatee County Sheriff's Office and Manatee County Animal Services Division responded to the veterinarian's office, and thereafter gathered evidence and took investigatory affidavits. One fact was clearly undisputed: Padi had caused a laceration to the boy's ear requiring stitches and potentially reconstructive surgery. This single fact would launch a one-year legal saga.

The Dog Death Penalty Statute Circa 2015

Pursuant to F.S. [section] 767.13(2) (2015), if a dog caused "severe injury to or death of" a human, the dog "shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time or held for 10 business days after the owner is given written notification [of the right to request an administrative hearing], and thereafter destroyed in an expeditious and humane manner." In turn, "severe injury" was defined by F.S. [section] 767.11(3) (2015) as "any physical injury that results in broken bones, multiple bites, or disfiguring lacerations requiring sutures or reconstructive surgery." (1)

A key point, when the incident occurred, F.S. [section] 767.13(2) did not contain within its body any provision for the owner of a dog found by an animal control authority to have inflicted severe injury or death on a human, to prove that the dog's actions were due to "mitigating" circumstances, such as whether the severe injury was sustained by a person who, at the time, was unlawfully on the property or, while lawfully on the property, was tormenting, abusing, or assaulting the dog or its owner or a family member, or if the dog was protecting or defending a human being within the immediate vicinity of the dog from an unjustified attack or assault.

The local "animal control authority," as defined by F.S. Ch. 767, Manatee County Animal Services Division issued a final notice of violation of F.S. [section] 767.13(2) on June 18, 2015. Pursuant to the right that had been set forth in that statute to administratively appeal a violation notice, Padi's owner had the right to appear before a county administrative hearing officer. Within the requisite time listed in the notice, Padi's owner invoked that right.

The Quasi-Judicial Hearing

In the lead up to the administrative hearing, Padi's owner asserted that his dog had been "cornered" by the boy, that his dog bit the boy as a defensive act, and that in spite of the wording of the statute, someone who faces the destruction of their property (particularly their pet dog) for having inflicted a severe injury or death upon a human should be permitted to demonstrate mitigating circumstances so as to justify the dog's actions. The owner was particularly keen on raising defenses for his dog's actions given the fact that the investigatory materials and testimony from Padi's trainer and others could support an argument that Padi did not have a history of aggression.

The county's enforcement staff disagreed with this position. They interpreted and applied the statute as a self-contained mandate, taking the position that the statute's wording plainly read as not allowing such justification defenses. The staff noted that the legislature clearly knew how to allow for such justification defenses concerning similar animal laws, as it did when it provided for them in F.S. [section] 767.11 (2015) defining a "dangerous dog." Unfortunately for Padi's owner, during the administrative hearing, the hearing officer declined to hear any "affirmative defense" or mitigating testimony concerning the bite, agreeing with the county's interpretation of the statute. At the hearing's conclusion, the matter was taken under advisement. But with the facts as to a bite and resulting laceration requiring stiches and reconstructive surgery clearly present, "humane destruction" seemed a likely outcome of the eventual disposition of the appeal.

The 2015 Statute Comes Under Fire

Manatee County, as is the case in many communities around the world, has a significant number of citizens who care very deeply about the welfare of domestic animals. With the modern tool of social media at their disposal, soon many local citizens were appearing before the county commission each meeting advocating for Padi, and communications were pouring in from other states and counties doing the same.

On Tuesday, July 28, 2015, the Manatee County Commission formally expressed its policy disagreement with F.S. [section] 767.13(2), in that it did not permit an owner of a dog, which had inflicted severe injury or death on a human, to offer evidence of affirmative defenses when contesting a F.S. [section] 767.13(2) violation notice. On that day, the commission voted to ask the legislature to amend F.S. [section] 767.13(2) (2015) to allow for such defenses.

Pursuant to this official action, a delegation from the county visited with its local representative, Greg Steube. While Truman almost certainly did not utter the phrase "if you want a friend in Washington, get a dog," after receiving a briefing on the topic, Rep. Steube agreed to be a friend to dogs in Tallahassee and file a bill to change the law to afford dog owners the ability, when their dogs did inflict serious injury upon a human, the right to offer mitigating circumstances as to why their dogs acted in such a manner. While Rep. Steube agreed to carry Manatee County's legislative request to the legislature, this did not provide relief for the looming disposition of Padi's still-pending case. For that, the county and Padi's owner turned to the courts.

Every Dog Has its Day; Padi's Was in Court

As noted earlier, under the 2015 version of F.S. [section] 767.13(2), the county's animal services staff interpreted it as requiring confiscation and "humane destruction" of a dog if it was established that the dog did, in fact, inflict "severe injury or death" to a human. While F.S. [section] 767.13(2) had been applied within the state for some time, after researching the law prior to the beginning of the hearing process, the county could find no published controlling authority that addressed the underlying constitutionality of the statute. Yet Padi's owner, many citizens, and indeed the county's lawyers, expressed concern that the...