[Moderator's note: Anonymous poster "D.S." sent this along and asked that
it be posted in several installments. But in view of the recent seizure
of the Michigan ferret, it's appropriate to post it all now.
By the way, I understand there is much activity to try to save Kodo and I'm
sure we will be updated on the situation soon. I hope the news will be
good, but it's still very much uncertain. BIG]
Randy Sellers is the chair of the American Ferret Association's Legislative
& Legal Affairs Committee, he lives in Minnesota with his wife and ferrets.
This is distributed with his permission. (And I sincerely hope BIG, with
your blessing as well.) [DS]
This may come as quite a shock to the majority of public health and animal
control officials in this country but even ferret owners have basic
constitutional rights! "Of course they do," they will respond. Just not
when it comes to ferret ownership. Lately as I have been in contact with
ferret groups across the country I am being constantly bombarded with horror
stories of the abuses these pet owners are subjected to. This, coupled with
people saying that there's nothing they can do because they live in fear
that their pets will be seized and destroyed, has pushed me over the edge.
I cannot accept people living in fear of governmental retributions which
they are clearly and expressly protected against.
Before I talk about constitutional protections and how they effect you and
your pet(s) I want to remind you not to treat public health and animal
control as the enemy. Beginning from an adversarial or combative posture is
usually not the way to create open communication or cooperation. Remember,
the vast majority of these people are not evil. They are well-meaning,
dedicated individuals who, based on what they beleive to be true, are doing
what they feel are in the best interest of the public good. The problem
lies not with these people, but with the information (or lack thereof) that
they are operating under. On my desk I have a quote, "Never attribute to
Malice any act which can easily be explained by Stupidity" or in this case
ignorance. Keep this in mind when dealing with these people and know the
difference. Then there are those individuals who really are evil. But I'll
deal with them in a later article. Right now let's focus on the issues.
The fundamental rights I see most often abused are: Right to ownership of
private property - Search and Seizure protections - Due process of law -
Compensation for private property taken for public use.
I will address each of these individually (probably with a great deal of
overlap). But first I want to, once again, preach on a seemingly favorite
topic of mine. Know the rules! I cannot emphasize just how important this
is. Find out the laws, ordinances and public health rules governing ferrets
that affect you. Don't just call and ask. Have a copy of the actual law
sent to you. Many times these people are operating under their
interpretation of what the law says or under a policy or rule which does not
carry the force of law. Policies and recommendations are wonderful
guidelines, but it is what's in written law that they are REQUIRED to follow.
['Justice For All' by R. Sellers
*Right to Ownership of Private Property* Pt. 1]
The idea that livestock, pets and other domestic creatures are considered to
be privately held property in the eyes of the law is a concept which goes
back to English Common Law and predates our own constitution. The idea is
that wild animals are the property of the King (government) and are managed
in trust for the welfare of the common people. Domestic animals including
livestock, working animals, and pets are privately owned. The government
can regulate the use of private property so long as those regulations do not
infringe upon the owner's rights to use his property. Ferrets, being a
domestic animal and, depending on how you classify them, a pet or a working
animal are private property. As such they are subject only to regulation
and are not, as many government officials believe, the State's to do with as
they please. Often the argument will be used that the government has the
freedom to classify ferrets any way they want and because they classify them
as "non-domestic" these protections don't apply. To answer this we need to
look at another basic principle of law. A government cannot pass a law
which contradicts natural law. In other words the State of California
(sorry Randy couldnot let the chance slip away) cannot pass a law which
states that as of January 1, 1999 all water in the state will be required to
run uphill and then expect to prosecute tickets against people whose water
will not cooperate. By the same token just calling a ferret a wild animal
will not invalidate the hundreds of pages of scientific data which says it
is domestic. As I have told many a city attorney, "You can call a
refrigerator a helicopter all you want. But let's see you get it off the
ground." Stay tuned for part 3 "Search and Seizure Prtections" by R.
Sellers [DS]
[Part 2]
Once we have established that pets are private property we move on to the
subject of search and seizure. One of the most frustrating things I deal
with is the fear ferret owners have that animal control will come to their
door, seize and destroy their pets. Animal control and public health
officers encoursge that belief. Most believe they actually have that
authority. Again because they believe they are protecting the public
welfare. This fear is directly responsible for paralyzing legalization
efforts in many ferret free zones. Let's look at the facts. I have
reviewed a lot of laws and ordinances. I have never seen possession of a
prohibited animal ranked any higher than a misdemeanor, which carries a fine
of up to $700-1000 and/or a jail sentence of up to 6 months to a year. Most
are usually a petit misdemeanor, which carries a fine only. In either case,
unless the law is specifically written in such a way as to allow for the
impounding of the property, the actions of the government through its
representatives (animal control and public health) are limited to issueing a
citation. This is done because only a court of law can deprive you of your
property legally. Animal control may order you to get rid of the animal but
this is mostly an idle threat because the most they can LEGALLY do if you
refuse is to write you a ticket and possibly impound the pet until the court
decides your case. Given the overwhelming data contradicting the "wild"
status of the ferret it is unlikely the Court will levy a heavy penalty even
if you are found guilty. Whether or not they have the authority to impound
and what the limitations of their actions are things you need to find out.
This is why I harp on people to get copies of the law and become familiar
with it. Another point is that if animal control comes knocking at your
door to check to see if you are harboring ferrets, ask for a search warrant.
You have the constitutionally guaranteed right to not have your home
(office, barn, toolshed, etc.) searched without being presented with a
proper warrant stating what exactly yhey are looking for, where they are
going to look, AND why they have probable cause to believe they will find
-what they are looking for -where they are looking. You also must be given
time to read this document and to determine if it is valid. Exercising this
right (or any other) cannot be held against you. The argument "It was
obvious he was hiding something, otherwise why wouldn't he let us search?"
Is not valid (although it has been tried).
It is up to you to demand a warrant and to not allow the search of your
property or the removal of your pet(s) without the proper paperwork. Do not
be BULLIED! Know what the limitations of their authority are and don't let
them go beyond them.
[Part 3, "Due Process of Law," by Randy Sellers.]
Due process of law is a constitutional guarantee which seems to be
overlooked by public health most often when dealing with a bite incident.
Again it is usually in a well-intentioned attempt to resolve the issue of
whether or not to start post-exposure treatment as quickly as possible. The
essence of due process is that no governmental agency can take action
against an individual or his property without taking steps to ensure that
the action is proper. The steps are as follows;
The person has to be informed of the actions being taken against him or his
property. The person has to be given adequate time to prepare a defense.
The person has to be given an opportunity to not only respond to the
allegations against him or his property but also to bring any counter
actions.
The person has to be confronted by the witnesses and evidence used against
him or his property and have the opportunity to examine and refute it.
The case has to be decided by an impartial tribunal.
In dealing with the way public health generally handles a bite incident we
see that they fail to meet most, if not all, of the above criteria. While
the pet owner may be directly or indirectly informed that his pet needs to
be tested for rabies, rarely is told the fact that such testing is fatal to
the pet mentioned. Most pets are destroyed and tested within 24-72 hours of
public health becoming aware of the bite incident. Hardly enough time to
mount any kind of defense. There is rarely any kind of hearing therefore no
chance to be heard or to examine and refute the evidence. They believe the
ferret bit so it is tested. End of story. On those rare occasions when
there is a chance to plead the animal's case it is usually to the public
health officer who has ordered the destruction of the animal. This does not
constitute an impartial hearing. In those cases where the attempt to save
the animal actually reaches a court it is usually done after the animal has
been destroyed and the owner is seeking retribution (see next section). The
public health official will often use the argument that he was invoking
emergency provisions which allow the department to make judgement calls when
the public health is endangered. Pah-leese. Even if the ferret in question
were absolutely rabid, one bite to one individual hardly constitutes an
emergency threat to the entire general public severe enough to warrant
suspending individual constitutional rights. If that is all it takes to
deprive us of our rights why even have them? It is up to you to demand a
hearing and to see to it that the information you present is heard by
someone who will give you a fair, unbiased judgement.
[Part 4, "Compensation for Private Property Taken for Public Use", BY Randy
Sellers. ]
A little known aspect of constitutional law is that of "Eminent Domain."
Eminent Domain states that no government agency (public health or animal
control) can take private property (your pet) from an individual (you) for
public use (rabies testing) without compensating (paying) the owner (you) of
the property (the pet) the fair market value (average replacement cost) of
the property (your pet). Simply put, this is your guarantee that, if your
pet ferret is tested for rabies following a bite incident, the governmental
agency which ordered the testing must pay you the cost of replacing your pet
at a pet store or local breeder. Many state constitutions go even further
and require that the compensation must be paid, or at least agreed upon,
before the property is taken. The bad news is that this is a new concept in
regards to pets that many government officials are unaware of it and you
will have to take them to court to collect it. While it is obvious that the
replacement cost will not begin to compensate you for the loss of your pet,
it is important that you persue this compensation. If for no other reason
than the chilling effect it will have on future testing of pets. The cost
of your ferret may be insignificant to them but what if next time it is a
$600 dog or a$2500 horse. Not to mention a lot of little costs will
eventually add up to a large burden (as we all know from our household
budgets). How many animals do they test a year? It is your right to this
compensation. But only if you pursue it. These are just a few of the
rights that ferret owners are currently being denied. Remember they are not
required to inform you of your rights. It is up to you to know and exercise
them. If you are in doubt as to how to protect yourself seek competent
counsel.
In closing let me remind you that the author of this article is not an
attorney and cannot give legal advice. The information contained here (and
in the afore mentioned 4 Pt. series) is culled from years of experience as
an advocate and working closely with attorneys both in the ferret cmmunity
and other areas. If any attorneys reading this wish to add, correct, or
dispute the information provided, your input is welcome. By the way, if you
are an attorney and are reading this, I assume you are pro-ferret. Why
aren't you actively doing more to help protect the rights of ferret owners?
[DS says THANKS to all who are in CaCaLand and if I could have a wish in
memory of my Digger-doo, Lucky Lucie and Razzy Rascal it would be that more
attorneys' jump on the wagon in the memory of a lost loved pet.]
NOTE: Please feel free to copy and distribute this article to your local
public health, and animal control personnel as well as to maintain copies in
your club library. 'Randy Sellers' says "KNOW THE RULES" I cannot emphasize
just how important this is. FIND OUT THE LAWS, ORDINANCES AND PUBLIC HEALTH
RULES THAT EFFECT YOU. DON'T JUST CALL AND ASK. HAVE A COPY OF THE ACTUAL
LAW SENT TO YOU. For more information or to keep up-dated on ferret events
write the American Ferret Association or become a member. A.F.A.,Inc.
P.O.Box 3986, Fredrick,Md. 21705 or call 301-663-6616 [DS here, I sure hope
each and everyone who has kept up, will make many copies and give them out
everywhere, even send a few to F-Gestapo and the comittee members who vote
against us. It's high time we fight back with every bit of ammo we can get.
Exercise your pets rights every chance you get no matter how long you keep
'em tied up in paper work. Government agencies hate paperwork!] Thanks BIG
for the space and opportunity to spread some valuable info to Californians
VIA FML.
[Posted in FML issue 1923]
|
