[ SHOWGSD-L ] ACF FEDERAL COMPLAINT CALIFORNIA SB 861
- From: "noroda" <noroda@xxxxxxxx>
- To: "GSDSHOWList" <showgsd-l@xxxxxxxxxxxxx>
- Date: Wed, 29 Mar 2006 22:33:40 -0800
Forwarded with permission.
Rosemarie Davis
Sent: Wednesday, March 29, 2006 9:30 PM
Subject: [AntelopeValleyDogFanciers] ACF FEDERAL COMPLAINT CALIFORNIA SB 861
Subject: ACF FEDERAL COMPLAINT CALIFORNIA SB 861
WE ASK YOU TO FORWARD THIS EMAIL TO ALL YOUR EMAIL LISTS
From: AMERICAN CANINE FOUNDATION
To: THE DOG FANCY, RESCUES AND DOG REGISTRIES
Yesterday and today ACF lawyers filed a 9 count federal complaint against
the state of California for passing SB 861 which calls for mandatory spay
and neuter of specific breeds and breeding permits that can allow animal
control to control your breeding of purebred dogs.
ACF has three lawyers Greg Kohler (pit bull owner) , Jeff Shaver (Rottweiler
owner) and Carol Chan(pit bull owner) representing ACF.
ACF is claiming California sided with PETA and other radical extreme animal
rights organizations and completely ignored canine experts. ACF has made it
known that PETA wants the end to domestic pet ownership and its addressed in
the federal complaint
This is the most powerfull federal legislation to ever come about over the
issues of breed specific legislation and we believe we have a strong chance
to prevail.
WE NEED TO SUPPORT OF THE DOG FANCY AND DOG REGISTRIES
Without your support we can't fight this case giving it 100%
No matter where you live SB861 can affect you if its not stopped, other
states will adopt it in the future.
Spay and neuter of dogs will not reduce the populations in shelters, for one
thing a dog lives 12 years and the majority of dogs impounded are not there
because of being intact. SB861 is not going to reduce shelter numbers, its
supported by PETA and its intent is to exterminate dogs of all breeds to end
domestic pet ownership.
ACF REPRESENTS YOU THE RESPONSIBLE DOG OWNER AND YOUR RIGHTS !!!
This case is being litigated for all the Dog Fancy in California, the United
Kennel Club, American Kennel Club, American Dog Breeders Association and all
responsible dog owners to ensure purebred dogs continue to exist and our
rights are not taken from us. This lawsuit is to stop animal control
agencies in California from requiring you to turn over your pedigrees for
approval before you are allowed to reproduce canines.
SUPPORT THE LEGAL ACTION IN THE STATE OF CALIFORNIA AGAINST SB 861
Send you donations to:
ACF
23969 NE State Rte 3
Suite G101
Belfair Wa. 98528
or pay pal at legislation2003@xxxxxxxxxxx
ACF's new website at americancaninefoundationlaw.com will be published today
at 5:00 pm PST !
C McCammon
ACF
Gregory J. Kohler - SBN 144063
ALBERS, BARNES & KOHLER, LLP
1401 Commercial Way, Suite 220
Bakersfield, CA 93309
Telephone:(661) 716-3900
Facsimile: (661) 716-3899
Carolyn Chan - SBN 147978
2701 Del Paso Rd
Ste. 130-#373
Sacramento, CA 95835
Attorneys for Plaintiff,
AMERICAN CANINE FOUNDATION
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Docket No. ____
AMERICAN CANINE FOUNDATION, ) CASE NO.
)
Plaintiff, )
) COMPLAINT FOR
vs. ) DECLARATORY RELIEF
)
STATE OF CALIFORNIA, )
BILL LOCKYER in his capacity )
as Attorney General )
and DOES 1 to 50, inclusive, )
)
Defendants. )
______________________________)
Plaintiff, American Canine Foundation (ACF) hereby alleges as follows:
JURISDICTION AND VENUE
1. Plaintiff, American Canine Foundation brings this action to seek a
declaratory judgment against the State of California concerning the
constitutionality and validity of California Senate Bill 861, now codified
in California Food and Agricultural Code Section 31683 and California Health
and Safety Code Sections 122330 and 122331. These statutes will hereafter
be referred to collectively as SB 861.
2. Jurisdiction over this lawsuit is vested pursuant to 28 U.S.C § 1331,
which provides jurisdiction of all civil actions arising under the
constitution and laws of the United States, 28 U.S.C § 1343 which provides
redress for deprivations under color of State law or ordinances, secured by
the Constitution of the United States, and 28 U.S.C § 1367 under the
principles of supplemental jurisdiction. Jurisdiction also arises under 42
U.S.C. 1981, 42 U.S.C. 1982, 42 U.S.C. 1983 and 42 U.S.C. 1988. Plaintiff
seeks declaratory judgment pursuant to 28 U.S.C. 2201 and 2202. SB 861 also
violates the California State Constitution.
3. The action for declaratory relief is authorized by 28 U.S.C §§ 2201 &
2202 in conjunction with Federal Rules of Civil Procedure, Rule 57.
4.This court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 for
Plaintiff's state law claims arising under the California Constitution,
statutes and common law because Plaintiff's claims are so related to the
claims within the court's original jurisdiction that they form part of the
same case or controversy under Article 3 of the United States Constitution.
5. Venue is proper in the United States District Court for the Eastern
District of California pursuant to 28 U.S.C §1391(b) because SB 861 applies
to the entire State of California and further a substantial part of the
events or omissions giving rise to the claim occurred in this district,
including but not limited to the lobbying for SB 861, political activity
related thereto and the signing of the bill.
PARTIES
6. Plaintiff, American Canine Foundation is an organization based in the
State of Washington, and has active members that are residents in the State
of California. The American Canine Foundation is an interested party to
these proceedings due to the legal issues presented in this action involving
its members' rights and the protection of Constitutional rights and
property.
7. The State of California is the entity that enacted SB 861. Bill Lockyer
is the California Attorney General, who is the chief law officer of the
state pursuant to California Constitution, Article 5 Section 13.
STATEMENT OF FACTS AND RELEVANT ALLEGATIONS
8. California State Governor Arnold Schwarzenegger signed SB 861 on October
7, 2005. This law went into effect on January 1, 2006. SB 861 amended
Section 31683 of the California Food and Agricultural Code (FAC section
31683) and added Sections 122330 and 122331 of the California Health and
Safety Code (HSC sections 122330 and 122331.)
9.FAC section 31683 is part of Chapter 9 of Division 14 of the Food and
Agricultural Code, a series of twenty-eight (28) statutes designed to
regulate vicious and potentially dangerous dogs, and the owners who fail to
contain or control them. In the very first section of Chapter 9 (FAC
section 31601) the Legislature acknowledged that the number and severity of
dog attacks "are attributable to the failure of owners to register, confine,
and properly control vicious and potentially dangerous dogs." This Chapter
was completely devoid of discrimination against any dog breeds or mixed
breeds; in fact as originally drafted, FAC section 31683 specifically stated
that regulating dogs in a manner specific as to breed was not allowed under
California law.
10. FAC section 31683 now reads as follows:
Nothing in this chapter shall be construed to prevent a city or county from
adopting or enforcing its own program for the control of potentially
dangerous or vicious dogs that may incorporate all, part, or none of this
chapter, or that may punish a violation of this chapter as a misdemeanor or
may impose a more restrictive program to control potentially dangerous or
vicious dogs. Except as provided in Section 122331 of the Health and Safety
Code, no program regulating any dog shall be specific as to breed.
11.SB 861 changed FAC section 31683's anti-discrimination law, and now
specifically authorizes discrimination against certain dog breeds under HSC
section 122331, which reads as follows:
(a) Cities and counties may enact dog breed-specific ordinances pertaining
only to mandatory spay or neuter programs and breeding requirements,
provided that no specific dog breed, or mixed dog breed, shall be declared
potentially dangerous or vicious under those ordinances [Emphasis added.]
(b) Jurisdictions that implement programs described in subdivision (a) shall
measure the effect of those programs by compiling statistical information on
dog bites. The information shall, at a minimum, identify dog bites by
severity, the breed of the dog involved, whether the dog was altered, and
whether the breed of dog was subject to a program established pursuant to
subdivision (a). These statistics shall be submitted quarterly to the State
Public Health Veterinarian.
12.In Health and Safety Code section 122330 the Legislature declares the
stated intent behind SB 861:
The Legislature finds and declares the following:
(a) Uncontrolled and irresponsible breeding of animals contributes to pet
overpopulation, inhumane treatment of animals, mass euthanasia at local
shelters, and escalating costs for animal care and control; this
irresponsible breeding also contributes to the production of defective
animals that present a public
safety risk.
(b) Though no specific breed of dog is inherently dangerous or vicious, the
growing pet overpopulation and lack of regulation of animal breeding
practices necessitates a repeal of the ban on breed-specific solutions and a
more immediate alternative to existing laws.
(c) It is therefore the intent of the Legislature in enacting this chapter
to permit cities and counties to take appropriate action aimed at
eliminating uncontrolled and irresponsible breeding of animals.
13.Cities and counties in California have passed or are getting ready to
pass ordinances based on SB 861; this includes but is not limited to the
city and county of San Francisco, Contra Costa County, Los Angeles County
and Sacramento County. Under the authority provided by SB 861, as
specifically contemplated by Defendant, State of California, specific breeds
of dog, mixed breed dogs and their owners are now targeted for
discrimination. "Pit bulls," a widely misunderstood and misused label, and
their owners are the victims of this discrimination in San Francisco. Under
Ordinance Number 268-05 it is now a misdemeanor to own any of the following
dogs (with only limited exceptions) if they have not been spayed or
neutered: a) The American Pit Bull Terrier; b) The American Staffordshire
Terrier; c) The Staffordshire Bull Terrier; or d) Any dog displaying the
physical traits of any one or more of the above breeds; or e) Any dog
exhibiting those distinguishing characteristics that conform to the
standards established by the American Kennel Club ("AKC") or United Kennel
Club ("UKC"). This broad sweeping, vague language applies to a wide variety
of dogs, both purebred and mixed.
14.Despite the convoluted and contradictory wording of SB 861, the
legislative history and language establish that the true intent behind this
law was to single out breeds or categories of canines (e.g. "pit bulls" in
San Francisco) and clump them together as potentially dangerous or vicious
without regard to science, logic, or any semblance of reason and without any
consideration at all for the individual temperament of any dog unfortunate
enough to be subject to this discriminatory law.
15.There is no scientific evidence that any breed of dog is inherently
dangerous. This was proven in the State of Ohio in the case of City of
Toledo v. Tellings, a case that Plaintiff helped bring to trial. In that
case, the Ohio Court of Appeals for the Sixth District concluded that pit
bulls are not inherently dangerous or vicious and struck down ordinances
that discriminated against pit bulls as unconstitutional on three grounds.
16.The concept of forced surgical castration or hysterectomies of canines
was and is supported by the radical animal rights group People for the
Ethical Treatment of Animals (PETA). PETA, an organization with known
terrorist links, an organization that has reportedly killed over 10,000 dogs
and cats at its Virginia based "shelter," and an organization that is
dedicated to eliminating pets, worked very hard to help pass SB 861.
17.Standing in staunch opposition to SB 861 were Plaintiff, American Canine
Foundation, major dog registries, professional canine behaviorists, dog
owners, dog-related businesses, well-known scientific groups involved with
canines and others. Defendant, the State of California, sided with the
animal rights groups, including PETA and ignored SB 861's opponents.
18.SB 861 does not provide for any appeal process, and as a direct and
foreseeable result, cities and counties either have not or will not provide
for a constitutionally sound appellate process. For example, in San
Francisco, a "staff member" of the San Francisco Animal Care and Control
("SFACC") will make the determination of whether a person owns a pit bull.
The only "appeal" from that staff member's decision is an appeal to the
"Director [of SFACC] "or his/her designee." That person's decision "is
final," even if it is completely erroneous.
19. SB861 is in direct conflict with the Animal Welfare Act (AWA) found in
7 U.S.C § 2131 and the rules promulgated by the Secretary of Agriculture
regarding breeding of dogs. SB 861 is also unconstitutional under both the
Federal and California Constitution as more fully alleged in this complaint.
FIRST CLAIM OF RELIEF
FEDERAL ANIMAL WELFARE ACT PREEMPTS SB861 APPLICATION
20. The factual allegations in the foregoing paragraphs are incorporated by
reference.
21. The Animal Welfare Act (AWA) authorizes the Secretary of Agriculture to
establish standards regarding the handling, housing, and transportation of
animals. These requirements provide rules regarding the licensing and
registration of dealers, exhibitors and animal research facilities. (7.
U.S.C. 2131 et seq.). Section 2.1(a)(3)(iii) titled Requirements and
Application Exemption from Licensing exempts licensing for breeders who have
a minimal number of dogs breeding.
22. SB861 and its application is in direct conflict with federal law
because its application would allow municipalities to engage in mandatory
spaying and neutering programs while the AWA rules allow for the breeding of
minimal numbers of dogs without requiring licensing. The AWA further allows
federal licensing of certain breeders. SB 861 and its broad empowerment of
municipalities is in direct conflict with the AWA.
SECOND CLAIM OF RELIEF
SB861 VIOLATES FEDERAL AND STATE RIGHTS
TO PROCEDURAL DUE PROCESS
23. The factual allegations in the foregoing paragraphs are incorporated by
reference.
24. The Fourteenth Amendment requires states to provide due process to
citizens and non-citizens within its jurisdiction. The Fourteenth Amendment
also binds the Bill of Rights to the States. This Amendment states in part
that "no state shall make or enforce any law which shall...deprive any
person of life, liberty or property without due process of law..."
25.SB 861 violates procedural due process because the law allows for
citizens to be subjected to criminal sanctions and loss of their property
(often beloved family dogs) without a true right of appeal. SB 861 as
applied can result in the killing of family pets, immediately, if the pet's
owner does not comply with the government's forced sterilization order.
26.Further, the necessary proof to convict under this provision would
require proof beyond a reasonable doubt, which is impossible in application
because neither animal control nor law enforcement can identify specific
breeds beyond a reasonable doubt; this will lead to arbitrary and
discriminatory criminal charges against dog owners.
27.SB861 violates the Federal and California Constitutions, which prohibit
unreasonable searches and seizures because its application allows
municipalities such as San Francisco to arbitrarily inspect the premises of
a licensed dog owner to make sure that the standards required to receive a
permit are met.
\ \ \
\ \ \
\ \ \
THIRD CLAIM OF RELIEF
SB 861 VIOLATES FEDERAL AND STATE RIGHTS
TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
28.SB 861 violates substantive due process and equal protection because it
is breed specific and no breed of canine is inherently dangerous or vicious.
SB 861 has and will continue to bring about arbitrary, unreasonable and
discriminatory law enforcement and it serves no legitimate government
purpose. The means the government adopts must be suitable to the ends in
view, they must be impartial in operation and not unduly oppressive upon
individuals, must have a real and substantial relation to their purpose, and
must not interfere with private rights beyond the necessities of the
situation.
29.Where a statute is challenged on nonprocedural grounds as violative of
due process, the test is whether there is some fair, just and reasonable
connection between the statute and the promotion of the health, comfort,
safety and welfare of society. SB 861 will not promote any of these
governmental goals, it serves no legitimate governmental purpose and should
be struck down as unconstitutional.
FOURTH CLAIM OF RELIEF
SB861 AND ITS APPLICATION CONSTITUTES AN EX POST FACTO LAW
30. The factual allegations in the foregoing paragraphs are incorporated by
reference.
31. The United States Constitution Article I, §§ 9 and 10, prevents the
federal and state governments from enacting ex post facto laws.
32.SB 861 as amended allows municipalities to criminalize dog owners who
have not spayed or neutered their dogs, or owners who have not complied with
any number of other rules, requirements or regulations imposed on them by
municipalities pursuant to the broad grant of power and authority provided
by SB 861.
33. SB 861 is an ex post facto law because it imposes penalties for an act
committed before the law was passed and that was legal at the time without
allowing an exemption for dogs that were purchased or owned prior to the
law's implementation.
FIFTH CLAIM OF RELIEF
SB 861 VIOLATES CALIFORNIA'S CONSTITUTION
34. The factual allegations in the foregoing paragraphs are incorporated by
reference.
35. California Constitution Section 1 states that "All people are by nature
free and independent and have inalienable rights. Among these are enjoying
or defending life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and privacy."
36. SB861 violates the California Constitution Article 1 § 1 because it
allows municipalities to in effect restrict dog owners from possessing
canines capable of reproduction and protecting the inherent value of such
canines, which are considered property.
37. California Constitution Article 1 § 7(a) states that "a person may not
be deprived of life, liberty or property without due process of law or
denied equal protection of the laws."
38. SB861 in its application allows municipalities such as the City of San
Francisco to pass legislation which allow for the destruction of certain
breeds upon the first violation of the statute without due process.
39. SB861 violates California Constitution Article 1 § 9 regarding ex post
facto law because it imposes penalties for an act committed before the law
was passed and that was legal at the time without allowing an exemption for
dogs that were purchased or owned prior to the law's implementation.
40. SB861 violates California Constitution Article 1 Section 13 against
unreasonable searches and seizures because its application allows
municipalities such as San Francisco to arbitrarily inspect the premises of
a licensed dog owner to make sure that the standards required to receive a
permit are met.
SIXTH CLAIM OF RELIEF
THE ENACTMENT OF SB 861 VIOLATES THE
NO TAKING CLAUSE OF THE UNITED STATES CONSTITUTION
41. The factual allegations in the foregoing paragraphs are incorporated by
reference.
42. The Fifth Amendment of the United States Constitution prohibits the
deprivation of life, liberty, or property, without due process of law and
prohibits private property from being taken for public use without just
compensation. The states are bound by the Fifth Amendment as made
applicable to the States through the Due Process Clause of the Fourteenth
Amendment.
43. Many California citizens have large financial and time investments in
training, planning, showing and providing for their dogs. Californians,
including those who participate in the purebred dog shows, and hobby
breeders, will be deprived of their property interests if they are forced to
neuter or sterilize their dogs. Once a breeding dog is surgically altered,
its economic capacity is irreparably lost. This in effect is a taking.
Moreover, an altered dog may not be shown in United Kennel Club, American
Dog Breeders Association or American Kennel Club events. Therefore, owners
of these expensive dogs would lose all rights and opportunities to show the
dog, breed the dog, or further the line of a champion dog due to the
mandatory altering. Hobby breeders that produce reasonably priced,
well-bred dogs would be unable to offer these dogs to the public, which in
turn will cause more defective dogs to be placed into the stream of commerce
as underground breeders and puppy mill dogs take their place.
44.The ultimate goal of those supporting this legislation is the elimination
of specific canine breeds and breeding.
SEVENTH CLAIM OF RELIEF
ENACTMENT OF LAW VIOLATES FEDERAL COMMERCE CLAUSE
45. The factual allegations in the foregoing paragraphs are incorporated by
reference.
46. The United States Constitution Article 1 Section 8, Clause 3 of the
United States Constitution (Commerce Clause) empowers the United States
government to "regulate Commerce with foreign Nations, and among the several
States, and with Indian Tribes."
47. SB 861 substantially affects interstate commerce. The Supreme Court in
United States v. Lopez, 514 U.S. 549 (1995) held that Congress has the power
to regulate the channels of commerce, the instrumentalities of commerce, and
any action that substantially affects interstate commerce.
48. The enactment and application of SB 861 in effect prohibits and
eliminates the flow of business commerce as it relates to the sale of
well-bred canines originating from California to the rest of the United
States. Inasmuch as California is home to many canine kennels and many
well-bred dogs originate from California, shipping canines outside the state
would be adversely and significantly affected, if not eliminated, due to the
mandatory altering of the breed specified.
49. The application of SB 861 would substantially affect interstate and
intrastate travel because affected dog owners could no longer participate in
sanctioned dog events, as many shows and events do not allow canines that
have been altered. 50. Further, each county can enact a completely
different ordinance, which could result in dog owners being in compliance
with the law in one municipality and in violation of it in the next.
EIGHTH CLAIM OF RELIEF
FREEDOM OF CONTRACT
51.The factual allegations in the foregoing paragraphs are incorporated by
reference.
52. The enactment and application of SB 861 infringes on the business of
selling specific breeds of dogs in California and thus to the rest of the
United States.
NINTH CLAIM OF RELIEF
SB 861 IS UNCONSTITUTIONALLY VAGUE
53.SB 861 was so poorly drafted it is impossible for the ordinary citizen to
understand what it purports to do; it is being misused and misinterpreted by
municipalities, and is leading and will continue to lead to unintended and
unfortunate consequences including but not limited to the killing of family
pets, false accusations against those who own breeds that "look like" breeds
targeted pursuant to SB 861, arbitrary arrests and prosecutions of dog
owners as a result of the inability of dog catchers and law enforcement to
identify accurately the targeted breeds.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Assert jurisdiction over this lawsuit;
2. Declare SB 861 unconstitutional, which amended Section 31683 of the
California Food and Agricultural Code and added Sections 12330 and 12331 of
the California Health and Safety Code;
3. Allow Plaintiff to proceed to trial
4. An award in favor of Plaintiff for its damages and future damages,
expenses, costs, fees and other disbursements associated with the filing and
maintenance of this action, including but not limited to reasonable
attorney's fees under 42 U.S.C. 1982, 1983 and 1988 or other applicable law;
5. That the Court exercise continuing jurisdiction during the enforcement of
relief;
6. Any other relief that this Court deems just and proper.
DATED: March ____, 2006 ALBERS, BARNES & KOHLER, LLP
By___________________________
Gregory J. Kohler,
Attorney for Plaintiff,
American Canine Foundation
[Non-text portions of this message have been removed]
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