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Dog1

by Dog1 on 25 June 2017 - 23:06

Dear German Shepherd friends,

Many of you are aware of my current situation and I am taking this opportunity to express my sincere appreciation to my supporters for their support while I progress through this situation. I would like to share the circumstances and events as no one is immune to the process I am currently facing. I hope through continued awareness, the laws, individual rights, and application of the laws can be brought out into the open.

First let me address the condition of my dogs. I am licensed in the State of West Virginia for 30 dogs. Twenty seven dogs, 5 puppies and one cat were seized from my property on May 24th. The State has determined through their inspection and the testimony of their veterinarian, all animals are in satisfactory condition with a question about one. This being a 13 year old dog with with a mass. With regard to one dog claimed to be eaten because dogs were hungry; the States evidence shows the dogs were fed within 24 hours of discovery.

All facts stated here are actual events and circumstances surrounding the actual proceedings. Nothing stated is anything other than fact that is recoverable from case documents.

I had arranged for a couple to stay at my residence/kennel and care for the dogs while I was going out of town. These people were familiar with the dogs and had previously cared for them. On the evening of May 19th I received a text the people were unhappy and demanded more money. I informed them we would settle upon my return which was done the evening of the 21st. On that day and by the employees’ own testimony while they were “ticked off’ at me, the employee photographed and videoed conditions that showed the employee had not been performing the work for which they were paid as evidence of the conditions by which the animals were living. The employee admitted to not performing the work for which they were paid.

This evidence and a statement was filed as a complaint on May 23rd in the Randolph County, WV Sheriff’s Office. The following day a warrant was issued by the Magistrate to seize all the animals on the property. This warrant was issued solely based on the information in the complaint. The State did no investigation into the accuracy or conditions the facility was being operated in.

The morning of the 24th two Sheriff Deputies, Animal Control Officer, representatives from the humane society and vehicles sufficient to transport arrived. The warrant was served, the owner objected as there was no investigation, cure opportunity. The owner asked if the evidence had been gathered legally. The response from the deputy was; he didn’t know but he was there to seize the animals. The animals were then loaded into the vehicles and the ACO, Deputies had an opportunity to inspect the premises.

The complaint references; most of the rooms were covered in feces on the first floor. One the first floor there are 21 rooms. Dogs inhabit 4. In the 4 rooms one 14x14 was clean. One 12x12 had about a golf ball amount of hair, one 14x16 had a pile consisting of two stools. The puppies were in pens. There were 4 7 week old puppies that had 2 and a small poop overnight and one 9 week old puppy in a 5x5 had 3 poops on paper overnight. These conditions are what the State claims:

• Three is a number that represents most of 21.

• In a total area of approx. 600sf., an area of 5sf. is covering the area. This condition was stated as being a major factor in seizing the animals.



The charges were violation of WVC 61-8-19, Cruelty to animals and WVC 7-10-4 was attached as to the code that applies to the seizure of animals.
I responded that day and requested a hearing. According to the code I was entitled to a hearing within 10 working days. In this hearing the ownership of the animals would be determined. If there was not sufficient evidence a crime was committed, the animals would be returned to me. If there was evidence, the animals would become the property of the ACO. If the State determined the property belonged to the ACO, the owner can appeal if a cash bond is posted.
The bond amount is set at 9,900.00 per month. An amount currently in contention as in excess of that allowed by law.

The hearing was set for June 6th and upon arrival the owner was arrested for 4 misdemeanor counts of criminal cruelty. This event orchestrated in advance of the hearing, obstructed the owners right to the hearing, thus preventing the possible return of the owners property. Once the charges were released the news was picked up and subsequent articles published. These articles misrepresented the facts in the case and contain unverified statement presented as verified statements.

In addition bail was set as 10,000 cash only to be presented in person by family member or close friend.

At this point the State had seized property, business, released false information, disrupted the owners income stream, all without the owner being able to present any information on his behalf. The owner had suffered the consequences without ever had a chance to prove innocence.

For those wanting to examine the law; Reference WVC 61-8-19, WVC 19-20-26, WVC 7-10-4.

Through the manipulation of the circumstances, the State removed my ability to recover my property in the time allowed by law. In addition, they required a cash bond for my release which consumed a large quantity of resource. They held puppies and dogs that were go to new homes which removed income.

The Constitution provides legal representation in criminal matters. This is a civil matter. No representation is provided. The state removed my ability to obtain representation by their actions prior to the hearing. I am now forced to represent myself in this matter.

This brings us to the case currently in progress. We are halfway through the trial and the state has presented no evidence other than the tainted evidence provided by the disgruntled employee the conditions were anything other than satisfactory at the time the animals were seized. I’m faced with a difficult set of circumstances here. One, I’m representing myself at a time where the amount involved exceeds the limit of the court I am in. Two I have been advised of the following.

• The judge presiding is the same judge that issued the warrant. He recused himself to prevent conflict as he had seen the evidence, but was ordered to preside over the case.
• I had a right to trial by jury.
• I had a right to have the matter heard in Circuit Court.

All very good reasons to motion the court to change the hearing. I wanted to exercise at least one of the options but was facing the bond issue. The 9,900 bond was being set that day regardless. Once the bond is set the clock starts ticking. I would have 5 days to post the bond or forfeit the dogs. If I did not accept the terms, the case would be delayed beyond the time to present the bond and the dogs would be lost without any evidence being presented or a fight.

Stop right here and think real hard about what happened. All this and I have yet to present the first piece of evidence. Just before the hearing, the prosecuting attorney offered to forgo the hearing, not drop charges but just forgo the hearing if; I surrendered the dogs.

What would YOU have done under the circumstances? If you said yes and accepted the deal. The state would have legally taken everything and you would never have had an opportunity to defend yourself. The State had used their power to maneuver you into a compromising position that caused you to loose your property.

Moving on............

There was something about having never been able to present any evidence on my behalf, having my property, taken, my business taken, my reputation in the dog community ruined, that made me not want to go down without a fight.

Yesterday afternoon I accepted the terms of the fight, even at a disadvantage, as this was the only opportunity available to recover the property stolen from me by the process of law facing the animal community in this country today.

I had filed motions previously in the case.

• First discussion was why there was no response to my Rule 34 request for discovery? I had requested on the 26th to be allowed to have a veterinarian examine the dogs in their current condition to document their condition. I also provided a multi-page list if interrogatories.

The states response was they didn’t notice it. Again my rights had been breached.

• Another motion was a motion to dismiss based on lack of probable cause. The warrant was issued based solely on the tainted evidence taken 5/21 by the disgruntled employee. No investigation to see if any of it was true was undertaken by the State. The criminal warrant states the seizure was based in part by evidence obtained after the warrant was issued.

I am not able to comment on this as the court appears to conclude there was a search warrant issued prior to the seizure. This simply is not the circumstances.

• The next was a motion to dismiss as the State had removed the defendant’s ability to present sufficient defense.

This was a situation where the States witness had contacted animal control and reported my witness for animal cruelty. This tampering/harassment almost eliminated my last witness. As one can imagine, when the charges are cruelty, the situation becomes toxic. There’s something about having your picture in an article that says; Deputies were able to determine a dead dog was fed to other dogs because they were hungry, which knocks a lot of people out of wanting or being willing to help you as there’s always guilt by association. The State had also removed my ability to hire a lawyer and since no representation is provided in civil cases, no representation was obtainable as the funds by this time are not enough to retain council.

The states response was the incident of witness tampering occurred in another state over which they had no jurisdiction.

• I had also filed a motion and made requests again to have a vet look at my dogs. In particular the older one with the mass to see if was anything that needed to be addressed or would be determined to require medical treatment. This request was made by the vet themselves also.

The response was twofold. First the matter would be heard in court. In court the response was, the matter should have been addressed earlier. I’m not sure how much earlier than the day after the dogs were seized they would expect. They did however say I could have a vet look at them now. Now the evidence was altered and 30 days after they were seized.

We have been through a few witnesses and at this point will refrain from discussing testimony and switch the message over to some other circumstances that occur in concert with this type of charge.

A few months ago we saw Paul Upton recover his dogs through a network of support and the ability/commitment/determination/team to fight and win. I say win, Paul got his dogs back but in this type of litigation, no one wins. According to sources, there were over a dozen other kennels raided at that time and all but Paul decided not to fight the system and forfeited their dogs.

The attack on the American Breeder gains momentum.

Behind the American Breeder is our National registry the AKC. Without the pure bred dog, the AKC would not exist. The AKC is in a wonderful position to reach out to their clients and help with the attack on their industry without getting involved. The AKC can easily support their customers and preserve a dying industry in this country that remains the means by which they exist. They could offer assistance in the form of a state by state list of attorneys familiar with and specializing in animal law litigation. They could offer some sort of insurance against such occurrences where entire kennels are confiscated. They could offer literature to advise breeders what the risks are, how to protect themselves, what to do when you are approached, things you can do to protect your rights in the situation.

Sadly the AKC is the first to jump on the bandwagon to assure your demise. Before any evidence is presented, before you have a chance to address any charges. The AKC is there to suspend all privileges until you are proven innocent. You are notified you cannot, own, transfer, sell, co-own, a dog and none of the dogs you are associated with can be either.

Please don’t get this message wrong. This country needs to assure animal rights are enforced and rigorously defended. At the same time municipalities need to understand this is still America and a lot of good men died for the right to be innocent until proven guilty. These municipalities need to look at how they are enforcing the law and not legally maneuver citizens into bankruptcy or losses in excess of that which they can recover from without "due process".

My case resumes Tuesday. To my supporters and to those that believe in the American Justice System, thank you for your support.


Mystere

by Mystere on 26 June 2017 - 02:06

§07-10-WVC 7 - 10 - 4 .htm Does not exist. Legislation affecting this code section may have entered the legislative process.
Note: WV Code updated with legislation passed through the 2016 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.
Bill

Mystere

by Mystere on 26 June 2017 - 02:06

19-20-26. Commercial dog-breeding operations.

(a) As used in this section:

(1) "Advertisement" means any media used to promote the sale of dogs including, but not limited to, the Internet, newspapers, flyers, magazines, radio, television, bulletins and signs.

(2) "Commercial dog breeder" means any person who:

(A) Maintains eleven or more unsterilized dogs over the age of one year for the exclusive purpose of actively breeding;

(B) Is engaged in the business of breeding dogs as household pets for direct or indirect sale or for exchange in return for consideration; and

(C) Commercial dog breeder shall not include:

(i) Any person who keeps or breeds dogs exclusively for the purpose of herding or guarding livestock or farm animals, hunting, tracking or exhibiting in dog shows, performance events or field and obedience trials; and

(ii) With respect to greyhound dogs only, any person who holds an occupational permit from, and has registered a greyhound kennel name with, the West Virginia Racing Commission.

(3) "Class I Commercial Dog Breeder" means a commercial dog breeder that possesses eleven to thirty unsterilized dogs over the age of one year at any one time for the exclusive purpose of actively breeding.

(4) "Class II Commercial Dog Breeder" means a commercial dog breeder that possesses more than thirty unsterilized dogs over the age of one year at any time.

(5) "Housing facility" means a structure in which dogs are kept that provides them with shelter, protection from the elements and protection from temperature extremes.

(6) "Primary enclosure" means a structure that restricts a dog's ability to move in a limited amount of space, such as a room, cage or compartment.

(b) No commercial dog breeder may breed dogs without a business registration certificate in accordance with section three, article twelve, chapter eleven of this code and a valid business license issued by the locality in which the dog breeding operation is located, if the locality so requires.

(c) A commercial dog breeder shall:

(1) Obtain a permit annually to operate, as required by the county commission in which the commercial dog breeding operation is located. County commissions are authorized to charge a fee to commercial dog breeders and shall deposit the fees collected in a specially designated accou. nt to be used for animal shelters, animal rescue and spay neuter programs administered by county animal shelters or other humane

Mystere

by Mystere on 26 June 2017 - 02:06

2. ANIMAL CRUELTY W. VA. CODE § 61-8-19. Cruelty to animals; penalties; exclusions. (a)(1) It is unlawful for any person to intentionally, knowingly or recklessly, (A) mistreat an animal in cruel manner; (B) abandon an animal; (C) withhold, (i) proper sustenance, including food or water; (ii) shelter that protects from the elements of weather; or (iii) medical treatment, necessary to sustain normal health and fitness or to end the suffering of any animal; (D) abandon an animal to die; (E) leave an animal unattended and confined in a motor vehicle when physical injury to or death of the animal is likely to result; (F) ride an animal when it is physically unfit; (G) bait or harass an animal for the purpose of making it perform for a person's amusement; (H) cruelly chain or tether an animal; or (I) use, train or possess a domesticated animal for the purpose of seizing, detaining or maltreating any other domesticated animal. (2) Any person in violation of subdivision (1) of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than three hundred nor more than two thousand dollars or confined in jail not more than six months, or both. (b) A person who intentionally tortures, or mutilates or maliciously kills an animal, or causes, procures or authorizes any other person to torture, mutilate or maliciously kill an animal, is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility not less than one nor more than five years and be fined not less than one thousand dollars nor more than five thousand dollars. For the purposes of this subsection, "torture" means an action taken for the primary purpose of inflicting pain. (c) A person, other than a licensed veterinarian or a person acting under the direction or with the approval of a licensed veterinarian, who knowingly and willfully administers or causes to be administered to any animal participating in any contest any controlled substance or any other drug for the purpose of altering or otherwise affecting said animal's performance i

Dog1

by Dog1 on 26 June 2017 - 03:06

Nia,

Being in law and USCA, you may be one of the go-to people on these issues, especially when it comes to GSDs.

Here's 7-10-4. It's a good read and it's really disturbing to learn what the law says happens in these situations. I tend to keep more dogs than most rather than send them off to homes when they no longer produce. They have served me well and I love them. That's why I do this.

In the group of dogs are Waiko a tremendous asset to the breed. One of the most accomplished dogs to have ever made it across from Germany. Pnut a dog about 12 years old I imported as an 8 week old puppy. Her owner fell on hard times. Lost her house and was going to give her up. I took her back. There's the 13 year old dog with the mass that I say is Acryl Lick Granuloma. She's had it for a year or so and it doesn't bother her. The State vet said it wasn't as German Shepherds are not prone to the condition and operated. A few days later the stitches were chewed licked open and back to the hospital with what will either be a continuing process or the rest of her life for the foreseeable future in an E Collar. Cindy about 12 years old. Who's going to adopt her? She's still in great condition, but who's going to say; I'll take Cindy and in a year or so have to deal with the end of her natural life.

The State looks as a surrender as a victory. We got those nasty purebred dogs from that purebred breeder and he won't be making anymore dogs that will be going to the shelters. Job well done. High five, let's lock the door and grab a cocktail for a job well done.

Then what happens to those dogs?

Read this:

§7-10-4. Custody and care of animals abandoned, neglected or cruelly treated; hearing; bonds; liability for costs; liens; exclusions.
(a) Subject to the provisions of subsection (h) of this section, a humane officer shall take possession of any animal, including birds or wildlife in captivity, known or believed to be abandoned, neglected, deprived of necessary sustenance, shelter, medical care or reasonable protection from fatal freezing or heat exhaustion or cruelly treated or used as defined in sections nineteen and nineteen-a, article eight, chapter sixty-one of this code.

(b) The owner or persons in possession, if his or her identity and residence are known, of any animal seized pursuant to subsection (a) of this section shall be provided written notice of the seizure, his or her liability for the cost and care of the animal seized as provided in this section and the right to request a hearing in writing before a magistrate in the county where the animal was seized. The magistrate court shall schedule any hearing requested within ten working days of the receipt of the request. The failure of an owner or person in possession to request a hearing within five working days of the seizure is prima facie evidence of the abandonment of the animal. At the hearing, if requested, the magistrate shall determine by a preponderance of the evidence if the animal was abandoned, neglected or deprived of necessary sustenance, shelter, medical care or reasonable protection from fatal freezing or heat exhaustion or otherwise treated or used cruelly as set forth in this section.

(c) (1) If a hearing is requested and the magistrate finds by a preponderance of the evidence that the owner did abandon, neglect or cruelly treat the animal, or if no hearing is requested and the magistrate finds by a preponderance of the evidence, based upon the affidavit of the humane officer, that the owner did abandon, neglect or cruelly treat the animal, the magistrate shall enter an order awarding custody of the animal to any humane officer for further disposition in accordance with reasonable practices for the humane treatment of animals. After hearing the evidence, if the magistrate is not convinced the animal was neglected or cruelly treated, he or she may dismiss the action and order the animal be returned to the owner. If the magistrate finds in favor of the humane officer, the owner of the animal shall post a bond with the court in an amount sufficient to provide for the reasonable costs of care, medical treatment and provisions for the animal for at least thirty days. The bond shall be filed with the court within five days following the court's finding against the owner. At the end of the time for which expenses are covered by the original bond if the animal remains in the care of the humane officer and the owner desires to prevent disposition of the animal by the humane officer, the owner shall post an additional bond with the court within five days of the expiration of the original bond. During this period the humane officer is authorized to place the animal in a safe private home or other safe private setting in lieu of retaining the animal in an animal shelter. The person whose animal is seized is liable for all costs of the care of the seized animal.

(2) If a bond has been posted in accordance with subdivision (1) of this subsection, the custodial animal care agency may draw from the bond the actual reasonable costs incurred by the agency in providing care, medical treatment and provisions to the impounded animal from the date of the initial impoundment to the date of the final disposition of the animal.

(d) Any person whose animal is seized and against whom the magistrate enters a finding pursuant to this section is liable during any period it remains in the possession of the humane officer for the reasonable costs of care, medical treatment and provisions for the animal not covered by the posting of the bond as provided in subdivision (1), subsection (c) of this section. The magistrate shall require the person liable for these costs to post bond to provide for the maintenance of the seized animal. This expense, if any, becomes a lien on the animal and must be discharged before the animal is released to the owner. Upon dismissal or withdrawal of the complaint, any unused portion of posted bonds shall be returned to the owner. Upon a finding in favor of the humane officer, all interest in the impounded animal shall transfer to the humane officer for disposition in accordance with reasonable practices for the humane treatment of animals. Any additional expense above the value of the animal may be recovered by the humane officer or custodial agency.

(e) After the humane officer takes possession of the animal pursuant to a finding by a magistrate that the animal has been abandoned, neglected or cruelly treated and a licensed veterinarian determines that the animal should be humanely destroyed to end its suffering, the veterinarian may order the animal to be humanely destroyed and neither the humane officer, animal euthanasia technician nor the veterinarian is subject to any civil or criminal liability as a result of the action.

(f) (1) The term "humanely destroyed" as used in this section means:

(A) Humane euthanasia of an animal by hypodermic injection by a licensed veterinarian or by an animal euthanasia technician certified in accordance with the provisions of article ten-a, chapter thirty of this code; or

(B) Any other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.

(2) The term "humanely destroyed" does not include euthanizing an animal by means of a gas chamber: Provided, That any county which has a gas chamber in operation as of the effective date of this section may continue to operate the gas chamber subject to the following: (1) The gas chamber shall be operated by an animal euthanasia technician certified pursuant to article ten-a, chapter thirty of this code; and (2) the gas chamber shall have been manufactured and installed by a person who regularly manufactures and installs gas chambers. The Board of Veterinary Medicine shall promulgate emergency rules regarding the inspection of gas chambers, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

(g) In case of an emergency in which an animal cannot be humanely destroyed in an expeditious manner, an animal may be destroyed by shooting if:

(1) The shooting is performed by someone trained in the use of firearms with a weapon and ammunition of suitable caliber and other characteristics designed to produce instantaneous death by a single shot; and

(2) Maximum precaution is taken to minimize the animal's suffering and to protect other persons and animals.

(h) The provisions of this section do not apply to farm livestock, as defined in subsection (d), section two, article ten-b, chapter nineteen of this code; poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock; poultry, gaming fowl, wildlife or game farm production and management; nor to the humane use of animals or activities regulated under and in conformity with the provisions of 7 U.S.C. §2131, et seq., and the regulations promulgated thereunder.

(i) All persons or entities in the state performing euthanasia under this article shall register with the Board of Veterinary Medicine by December 31, 2009, in a manner to be prescribed by the board. The Board of Veterinary Medicine shall promulgate emergency rules relating to the registration of those performing animal euthanasia, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

Dog1

by Dog1 on 26 June 2017 - 03:06

Nia,

There's some more to 19-20-26 that didn't get posted in your post.

Mystere

by Mystere on 26 June 2017 - 03:06

Feel free to post any additional portions, Randy. My purpose in posting is so that people can clearly read for themselves that these are CRIMINAL STATUTES, and not be misled, to put it charitably.

Markobytes

by Markobytes on 26 June 2017 - 04:06

Randy I am really concerned for you and the dogs. This has to be an almost unbearable situation, I pray that you hold up. After the smoke clears, I hope you take stock of what is important in your life and refocus. Take what is left and be better than you were before. 27 adults is way too much to handle unless you have a huge staff and then, they are not really your dogs. I have always thought the best home for a retired breeding dog was in the home of one of it's progeny of the opposite sex. The dog would be complete in it's life and the owners would be ecstatic at having the parent of their dog living with them. There is a point where too many dogs makes you a hoarder. If you continue breeding,I hope you will be more transparent than most breeders, invite people to see your kennels and be a model. Win or lose I will help if you need someone to find homes for the dogs and I am willing to transport. I have always liked your dogs and I do not want to see them in a rescue. I hope people here will step up and help where it is needed.

Mystere

by Mystere on 26 June 2017 - 05:06

No, Randy, I am most decidedly NOT one of "the go-to people." That implies that I have some obligation to act as a resource for anyone or everyone. Such is NOT the case.  


Hundmutter

by Hundmutter on 26 June 2017 - 06:06

Terrific offer Markobytes; good to know some breeders in the US are willing to help others.

 

Re: 13 year old female with a lump -

Dog 1 reports:

"The State vet said it (the mass) wasn't (Lick Granuloma) as Shepherds are not prone to the condition ..."

Whatever the rights and wrongs of your case Dog 1, I would be very scathing of any (States 'official' or otherwise) Vet Surgeon who (a) said that; and (b) could not recognise a Lick Granuloma when they saw it. Don't think I would trust that Vet in any respect thereafter. Any dog can develop a Lick Granuloma, it does not need to be breed-specific. And I am certainly aware of GSDs who have had them. 

 

All good wishes, I hope everything is resolved soon.






 


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