The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Let Us Kill Your Dog or Go to Jail for a Year
From State v. Richards, decided yesterday by the Washington Court of Appeals (Chief Judge Rebecca Glasgow, joined by Judges Bradley Maxa & Erik Price):
Jennifer Richards' dog, Thor, twice bit another dog unprovoked. As a result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the Revised Code of Wahkiakum County (RCWC). One evening, Richards left Thor alone and unsecured on her property.
{[A] deputy sheriff responded to a report of a dangerous dog "running loose." The deputy saw Thor unsecured on Richards' property while Richards was away getting medication her daughter urgently needed that evening. The deputy called Richards, and she asked if the deputy "could attempt to secure Thor in her residence." The deputy tried unsuccessfully to calm Thor, who had been barking continuously. Thor then lunged at the deputy's waist, "mouth open" and "snapping his jaws." After Thor ran behind Richards' home, the deputy called for backup and watched Thor from afar until Richards returned. The deputy did not impound Thor, instead leaving him in Richards' care as authorized under the county code.}
The county charged Richards with violating RCWC 16.08.050(F), an ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial leash or physically restrained by a responsible person. Neither state statute nor the county code authorizes destruction of the dog without an opportunity to cure a violation like this one.
After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days. However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day. {Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed.}
Richards appealed her conviction and sentence to the superior court, and the superior court affirmed. The superior court granted a stay pending appeal.
The court affirmed the conviction, but "reverse[d] the sentence and remand[ed] for resentencing":
After stating that it prohibits unrestrained dangerous dogs, RCW 16.08.100(1) provides that the "owner must pay the costs" of confiscation. The statute then describes the animal control authority's responsibility to notify the owner "that the dog will be destroyed" if the owner does not correct "the deficiencies for which the dog was confiscated … within twenty days," authorizing that destruction only if there is no correction.
RCWC 16.08.110(A)(1) states that any dangerous dog that is not in compliance with RCWC 16.08.050's requirements is "subject to impoundment and confiscation." "If the dog's owner is identified," the animal control authority has to "promptly serve an impoundment notice" stating "what the owner must do to redeem the dog," the deadline for compliance, and "what will happen to the impounded dog if the owner does not redeem the dog." An owner may redeem any impounded dog after paying applicable fees and providing evidence that they have corrected the violation.
The county code allows destruction of a dangerous dog under specific circumstances. It allows destruction when an owner does not redeem an impounded dog within 96 hours. And it allows immediate destruction when "a dog is suffering from a serious injury or disease, and destroying the dog is in the interest of public health and safety, or in the interest of the dog." The code does not authorize destroying a dog in any other instance….
While a district court's sentencing discretion is broad, it is not limitless…. Both RCW 16.08.100(1) and RCWC 16.08.110(F) require certain events to take place before a dog can be destroyed, including an opportunity to cure the violation. The district court's condition on the suspended sentence is untethered from these limitations that the legislature and county legislative body adopted….
[N]either the [state] statute nor the county code permitted the animal control authority to destroy Thor without Richards' permission unless it gave Richards a chance to cure the violation of RCWC 16.08.050(F). The record does not show that the animal control authority confiscated Thor, gave Richards notice of the reasons for the confiscation, and then gave Richards 20 days to correct the deficiencies, as RCW 16.08.100(1) requires. Nor does the record show that Thor was confiscated and Richards failed to redeem him by paying fees and providing evidence of compliance with the county code within 96 hours under RCWC 116.08.110(D) and (E). And the record does not show that Thor was "suffering from a serious injury or disease" and that destroying Thor immediately was "in the interest of public health and safety," as RCWC 16.08.110(F) requires.
While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct punishment for Richards' violation of the ordinance until the express prerequisites have been met. The district court acted outside the scope of its discretion by imposing a condition for achieving a suspended sentence that was untethered from these state and county laws. The district court, therefore, abused its discretion when it imposed Richards' sentence.
Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards' constitutional argument that the punishment was cruel and unusual….
