Amicus Curiae To Spare the Life of the Dog Jasper from Bite Hold, First in History by a Paralegal or Attorney

I have written the first Amicus Curiae to a Court of Law in History to release a dog from bite hold to the professional animal entity that wishes to save his life.  It  will be submitted  today to Judge Kirkpatrick. 

Also, the First Governor’s Pardon in History was requested by on-line petition to Governor Justice in West Virginia to spare the life of the precious dog, Jasper from bite hold.  (Another dog was spared by pardon of a governor in New Jersey in 1994 for a dog but not by petition (certainly not on-line!), by special request of the family!).

No. ______________________

In the Tenth Judicial Circuit

 Raleigh County Sheriff Department/Houck Family

Raleigh County Humane Society

 

BRIEF OF AMICI CURIAE

STATE OF

WEST VIRGINIA

 ____________________________

  

Kathryn F. Riviello, pro se

New York Animal Rights Alliance America

 

QUESTION PRESENTED

Whether, for purposes of adhering to the Dangerous Dog Laws of the state of West Virgina, a dog named Jasper should be killed for a crime committed two years prior with unsubstantiated claims that the dog was not provoked.

INTEREST OF AMICUS CURIAE

Amicus Curiae –  Amicus has significant interest in this case since it has been ruled by a higher court  that the Raleigh County Humane Society would have no standing after two years of professional care and guardianship.  The Supreme Court ruled that the Sheriff, specifically Sheriff Van Meter of Raleigh County would be the “owner” since the original owner at the time of the questionable incident with documented injuries “signed the dog over” to the Sheriff’s Department.  This decision punishes the Raleigh County Humane Society unfairly in that they are the party that should truly be considered the real party, i.e., the actual loving guardians of the sentient creature dog named Jasper.  The veterinary care, the activities of daily living, the visitation by the Board and visitors to the facility including children and trainers have been within the sovereign right of the Raleigh County Humane Society for two years.  These past two years are more than exorbitant to prove beyond a shadow of a doubt that their guardianship of the dog Jasper would be in the dog’s best interest, in a life-saving measure that cannot be quantified.  The Board of Directors of the Raleigh County Humane Society actively practices in the relevant field.  Their expertise and assistance has proven to be an invaluable tool in the society to whom they serve.

Amicus is a paralegal in dog bite matters, professional animal rescuer, and an animal control facility private agency investigator, and holds that this nonprofit entity has duly served this precious dog Jasper well and should continue to do so, as well as has served the community at large regarding all of their companion animal responsibilities, to the general public and the contracted municipalities.

If the Supreme Court ruling should stand regarding the Raleigh County Humane Society’s lack of standing in the matter of Jasper’s precious life, the spirit of ethical and moral animal welfare laws will be distorted to punish this true real party and Amicus.

ARGUMENT

This Case calls on the Court to affirm that the Dangerous Dog laws of the State of West Virginia were never intended, and should not be distorted, to interfere in the professional responsibilities and duties of companion animal guardianship within the realm of good morals and ethics in the best interest of animals.  When States have in the past formulated their Dangerous Dog laws, the intent has been protect the interests of public health, while also serving the constitutional rights of the guardian.  However, we have entered into new territory when the Oregon Supreme Court ruled in 2016 that a “dog is not mere property”  (State v. Newcomb).  “Reflected in those and other laws that govern ownership and treatment of animals is the recognition that animals ‘are sentient beings capable of experiencing pain, stress and fear,’” the court wrote in the unanimous opinion and therefore “dominion” of animals has “nuanced contours.”  Therefore it cannot be possible in a court of law that there is room for appeasement of victims or vindictiveness that a precious dog such as Jasper be killed when there is no other satisfactory legal argument to justify same.

According to psychologist and leading canine researcher, Stanley Coren,  Ph.D., of the University of British Columbia,  and several behavioral measures, Coren says dogs’ mental abilities are close to a human child age 2 to 2.5 years.  The intelligence of various types of dogs does differ and the dog’s breed determines some of these differences, Coren says. “There are three types of dog intelligence: instinctive (what the dog is bred to do), adaptive (how well the dog learns from its environment to solve problems) and working and obedience (the equivalent of ‘school learning’).”  It is respectfully submitted to this Court that the research and observations of this particular precious dog Jasper have not been quantified, examined, analyzed and studied to any degree so as to determine the propensity of the dog’s behavior into the future.  The Raleigh County Humane Society has testified that their trainer has evaluated the precious dog Jasper and no aggression whatsoever has been displayed, this after numerous behavioral studies meant to actually invoke aggression but no such behavior has been witnessed over the past two years of guardianship at their facility.  Therefore one might draw the conclusion that the circumstances surrounding the incident regarding the children and the dog were reported erroneously.  It is this very behavior over these past two years that should serve as evidence that the incident in question was not proven beyond a shadow of a doubt that the precious dog Jasper indeed was not provoked.  From state to state across these United States, no dog is held accountable for their actions when provoked and a death sentence should never be adjudicated when the circumstances might have reflected provocation.

In the decision, the Supreme Court departed from these well-established principles in stating that the Raleigh County Humane Society lacked standing as a viable entity to continue guardianship, after having proven responsible guardianship over two years.  This should not be the interpretation of the law.  Furthermore the Raleigh County Humane Society has had possession of the precious dog Jasper with complete control while the Sheriff Department has only possessed constructive possession, which would only be made possible by a transfer of guardianship by the Court.  That transfer of guardianship can only be viewed as ethical and moral if it was done in the best interest of the precious dog Jasper, and certainly to kill a dog that has exemplified stellar temperament with all manner of persons while in the guardianship of the Raleigh County Humane Society would not be this precious dog’s best interest.

The decision of the Supreme Court approach to standing for the Raleigh County Humane Society must be rejected because it conflicts with Dangerous Dog laws in the State of West Virginia which allows an entity to possess a dangerous dog with adherence to specific compliance, and would be an egregious infringement upon the life, liberty and pursuit of happiness in the best interests of the precious dog Jasper and the Raleigh County Humane Society to continue their successful and mutually desired relationship.  The Supreme Court however did not even arguably implicate, let alone proscribe, the actual killing of the precious dog Jasper and simply limited their unanimous decision to the standing of the Sheriff Department to whom the prior guardian of the dog Jasper transferred.  This Court then is the sole decision maker in its judgment as to whether the precious dog Jasper lives or dies.

In a prior Amicus’ brief  of injunctive relief (Zois, Riviello v. City of Des Moines 2016) it was successfully argued that an injunctive relief should be heard by the Court filed past the deadline because a dog equaled the life of a child, which was the only exception to filing late.   The Court proceeded to hear the case and to the issue of standing between the Amicus and an unexpected real party.

The Raleigh County Humane Society has specialized knowledge that the “lay public”, “career bureaucrats”, and political legislators lack (California Dental Ass’n v. FTC , 526 U.S. 756, 772 (1999).   It is to this expertise, knowledge and experience that should override a law enforcement agency, such as the Sheriff that claims constructive possession, with the audacious request for ability to seize and kill the precious dog Jasper.  A decision by the Court to render such a horrific and tragic judgment would shatter the view of equality and fairness under the law.

In the State of West Virginia, consider the following:

• 19-20-20. Keeping vicious dogs; humane officers may kill such dogs

Except as provided in section twenty-one of this article, no person shall own, keep or harbor any dog known by him to be vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle. Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.

Acts 1981, c. 70.

• 19-20-21. License fee for keeping vicious or dangerous dog

Any person who keeps a dog which is generally considered to be vicious, for the purpose of protection, shall acquire a special license therefor from the county assessor. The assessor shall charge ten dollars for such license. Such license shall be required in addition to the license required under section two of this article. The keeper or owner shall properly secure such dog in such a manner so as to prevent injury to a person who lawfully passes through or enters upon the property of the keeper or owner. Nothing contained in this section shall constitute a defense to any action for personal injury, wrongful death or damage to property.

According to 19-20-20, “the judge may authorize the humane officer to cause such dog to be killed.”  This Court, by law, possesses the complete adjudicative powers to allow the precious dog Jasper to not only live out his life but to live out his life to the fullest manner with outgoing care and concern by a body of individuals with the experience, knowledge and compassion and set the standard for yet another municipality, as is sweeping the United States Courts, that animals are sentient beings and deserve the Court to rule in their best interest.  It is acknowledged by Amicus that best interests are traditionally assigned to children but as is obvious to this Court or should be, the best interests of the precious dog Jasper should entail all circumstances surrounding the Dangerous Dog designation, which does not in and of itself extend itself to the extinguishment of his precious life.

Amicus recognizes the following and special exception:

• 19-20D-1. Purpose

The purpose of this article is to protect the public by providing a private cause of action seeking euthanasia of a dog in magistrate court to a person who has been attacked by a dog resulting in personal injuries requiring medical treatment which cost $2,000 or more, or who has been attacked by the dog and the dog had attacked a person causing personal injury which required medical treatment within the previous twelve months.

Credits

Acts 2014, c. 41, eff. June 6, 2014.

• 19-20D-2. Procedure; petition to magistrate court; elements of action; burden of proof; attorney fees; limitation of action

(a) A person seeking relief under this article may apply to the magistrate court in the county where the dog owner resides, or the county where the injury occurred, by verified petition setting forth and affirming the following:

(1) That the owner of the dog resides in the county where the petition is filed or the attack giving rise to the action occurred in the county where the petition is filed;

(2) That the petitioner was:

(A) Attacked by the dog and the attack resulted in personal injuries requiring medical treatment in the amount of $2,000 or more; or

(B) Attacked by the dog and the dog had engaged in a separate attack on a person causing personal injury requiring medical treatment within the previous twelve months; and

(3) That the petitioner did nothing to provoke the dog.

(b) The petition and summons shall be served on the respondent in the manner set forth in Rule 4 of the West Virginia Rules of Civil Procedure.

(c) The petitioner must prove the allegations in the petition by clear and convincing evidence.

(d) The prevailing party is entitled to an award of reasonable attorney fees and costs.

(e) The limitations of the cause of action in this article are as follows:

(1) Relief, other than attorney fees and costs in subsection (d) of this section, is limited to an order directing that the owner of the dog have the dog euthanized; and

(2) The cause of action provided by this article does not establish statutory liability nor does it supplant a common law negligence cause of action.

It is absolutely rare according to Amicus’ studies of relevant scholarly peer-reviewed research that a dog bites a human unprovoked.  It is hereby put forth by Amicus that no matter the injury of the human(s) if the dog was provoked in any manner, the dog shall not be subject to killing.  There were absolutely documented disputes among parties as to the provocation of the precious dog Jasper and the circumstances of events surrounding the injuries that took place.  Therefor, a judgment to render this precious dog Jasper killed cannot be adjudicated in a fair hearing since the law proscribes that the dog be killed “only if the petitioner did nothing to provoke the dog.”  In Amicus’ opinion, it is absurd to believe that the precious dog Jasper did not sustain a degree of provocation by two small children that were unsupervised when the dog was loose and by way of the fact that the precious dog Jasper has been in perfect guardianship with Raleigh County Humane Society for two years bereft of aggressive incident and in fact exemplary in temperament.

CONCLUSION

          The judgment of the Court can only be ethically, morally and legally rendered so as to keep the precious dog Jasper’s best interests in mind and the only obvious option for same would be to remain in the possession of the Raleigh County Humane Society free to live out his natural life with the experienced and compassionate staff that he has come to regard as his family.

Respectfully submitted,

 

Kathryn F. Riviello, pro se

680 Rt 211 E, #3B-234

Middletown, NY  10941

(845) 856-7366

nokillnewyork@gmail.com

 

JANUARY 31, 2017

 

UPDATE:  Judge Kirkpatrick has upheld the decision to murder Jasper.  He is quoted as saying, “I like dogs but I like children better.”  This was not a fair hearing and the very least we will do is file for judicial misconduct.   The dog was provoked and under their law a dog cannot be killed for biting if provoked.  This is fascist, plain and simple – welcome to America.

UPDATE:  2/1/2017:

(1) We have made contact with persons who will be able to ensure that the Governor has reviewed our petition and my amicus to the Court.

(2) We are currently seeking an attorney to file on behalf of the original guardian who was illegally threatened with arrest BEFORE the issue of provocation was even brought to the Court.  She was coerced to surrender her dog Jasper and we are seeking to file an injunctive relief tomorrow 2/2/17.