110619 wright response to mtd

8/3/2019 110619 Wright Response to MTD

1/48

PLAINTIFFS RESPONSE TO CITYS

MOTION TO DISMISS - 1

ANIMAL LAW OFF ICES OF ADAM P. KARP , ESQ .114 W. Magnolia St., Ste. 425 Bellingham, WA 98225

(360) 738-7273 Facsimile: (360) [email protected]

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INTHEDISTRICTCOURTOFSNOHOMISHCOUNTY

STATEOFWASHINGTON

CITY OF DES MOINES ex rel. CHARLES H.

WRIGHTand

STATE

OF

WASHINGTON

ex

rel.

CHARLESH.WRIGHT;

Plaintiff,

vs.

STEVENWIELANDandMICHAELGRADDON,

Defendants.

CaseNo.:

PLAINTIFFSRESPONSETOCITYOFDES

MOINESSMOTIONTODISMISS

PlaintiffCharlesH.Wright,throughattorneyAdamP.Karp,respondstotheCityofDes

MoinessMotiontoDismissdatedFeb.28,2011.

A.ComplainantHasCompliedwithCrRLJ2.1(c).

First,thisobjectionismootasMr.Wrightsubmittedanamendedaffidavitincludingthis

attestation.

Second,the

City

argues

that

the

affidavit

must

be

submitted

prior

to

the

court

even

consideringwhethertofileacriminalcomplaint.However,CrRLJ2.1(c)onlydemandsthatthe

complainantappearbeforeajudge.Nothingmoreisrequired.Thecourtispermitted,butnot


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mandated,torequiretheappearanceontherecord,andunderoath,toconsiderallegations

by affidavit, to permit other stakeholders to participate in a hearing, and to require the

presenceof certainwitnesses.Only if thejudge findsprobable cause andweighs factors (1)

through(7)

to

justify

filing

of

charges

must

the

complainant

sign

an

affidavit

at

the

time

he

signsthecriminalcomplaint.Hence,theCitysobjectionisatbestunripe.

Third,theCitycontendsthatMr.WrightsallegedfailuretocomplywithCrRLJ2.1(c)by

notincludinganattestationastowhetherheconsultedwiththeprosecutingauthoritydoesnot

constitute an idle technicality. MTD, 4:1320. However, this attestation cannot be

jurisdictionalsince,

by

its

very

language,

the

complainant

has

the

option

of

consulting.

This

means it does not constitute a condition precedent, and no exhaustion of remedies

requirement exists, andpermits the court to allow the filingof chargesby the complainant

regardlessofwhethertheprosecutingauthoritywasconsultedoragrees.This is,afterall,the

raisondetreofCrRLJ2.1(c).Atmost,theattestation letsthecourtknowwhetherornotthe

prosecutingauthorityhadknowledgeofthecomplaintpriortothecomplainantseekingjudicial

intervention.Whetherthecomplainantaffirmsordeniesdoesnotforecloseorguaranteeany

relief.Givensubstantialmediacoverage,pronouncementsbytheelectedofficialsoftheCityof

DesMoines, that theCity independently soughtprosecutorial reviewbyKingCounty (which

refusedtoprosecute)andfoundnounlawfuluseofforceafterinternalpolicereview,andthat

Mr. Karp was in direct contact with DMPD Sgt. Mohr concerning the investigation, the

prosecutingauthorityadmittedlyhadampleactualandconstructivenoticeofthesubstanceof

thecomplaint.Thisobjectionismeritless.


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Fourth, the City contends that noncompliance alone merits dismissal of the

complaint.MTD,4:285:1.TakingissuewithMr.WrightsrefusaltospeakwithSgt.Mohr,the

CityastoundinglyattemptstoerectabarriertoCrRLJ2.1(c)thatevidentlydoesnotexistviz.,

cooperationwith

law

enforcements

investigation

as

acondition

precedent

to

private

initiation

ofprosecution(evenwherethesuspectworksfortheverylawenforcementagencyconducting

the investigationandwhere theCity itself isapotentialcivilactiondefendant).Puttingaside

thatCrRLJ2.1(c)onlyseeksdisclosureofconsultationwiththeprosecutingauthority(notthe

law enforcement agency),Mr.Wrights choice not to be interviewed by Sgt.Mohr did not

impactthe

investigation

as

he

was

admittedly

not

an

eyewitness.

Nonetheless,

Mr.

Wrights

counselcooperatedwithSgt.Mohrbyprovidinghimnamesandcontact informationofother

witnesses (Kennet Phillipson and JoyceDarby) and correcting amishearingbyOfc.Bell.Mr.

KarpalsonotifiedtheCityofhisintenttohaveRosienecropsiedandaskediftheCitywantedto

examineherremainspriortocremation(onNov.16,2011,ChiefofPoliceOLearydeclined,ina

voicemailsavedbyMr.Karpandavailabletothecourt).Insum,torequirethevictimtoconsult

withtheagencywhoseofficersharmedhimorriskwaiverofanyabilitytoinitiateprosecution

underCrRLJ2.1(c)lacksanybasisinlawandshouldbesummarilydisregarded.

B.CrRLJ2.1(c)AppliestoMunicipalMisdemeanors.

First,municipalcourtjudgesareempoweredtocommitpersonschargedwithoffenses

againsttheStatewhenthemunicipalcodeincorporatesbyreferencestateoffenses,asdoneby

DMMC9.16.010(incorporatingRCW16.52.207).

Second,ifamunicipalcourtjudgecannotcommitpersonschargedwithoffensesagainst

the State,as in the casewhere themunicipal codedoesnot incorporateby reference state


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offenses (e.g.,DMMC9.16.030), thisjustmeans that thepetitionmustbebroughtbefore a

district court judge, who undoubtedly has the authority to commit persons with offenses

against the State. It does notmatter that the district courtjudge actually hears a petition

allegingan

offense

against

the

State

but,

rather,

that

she

is

empowered

to

do

so

defining

the

minimum credentials she must possess to then hear any criminal action alleging a

misdemeanororgrossmisdemeanor,howeversourced(i.e.,bymunicipalorstatelaw).

Underthesefacts,DesMoinesMunicipalCourtJudgeAliceaGalvanrecusedherselfand

transferredthecasetoKingCountyDistrictCourt. Insodoing,ajudgeauthorizedtocommit

personscharged

with

State

offenses

(i.e.,

any

district

court

judge)

acquired

jurisdiction

over

all

municipaloffenseswhethersetforthbyreferencetotheRCWorwithintheDMMC.

CrRLJ2.1(c)doesnotsaythatthepersonshallappearbeforea[districtcourt]judge.

Nor does it say other than a [municipal court judge or] judge pro tem. This drafting

commendsabroadinterpretationatoddswiththeCitysreading.ThatCrRLJ2.1(c)references

the county prosecuting attorney or deputy does not do so to the exclusion of a city

prosecuting attorney since the paragraph includes a nonexclusive list of other potential

witnesses.What the City does not explain iswhymunicipal courts andmunicipal offenses

should be excluded from the broad ambit of the phrase criminal action alleging a

misdemeanororgrossmisdemeanorcontained inthe firstsentenceof the rule.Evidently,a

municipalmisdemeanor is everymuch amisdemeanor as one codified by state code. As a

matterofpublicpolicy,wheretheCrRLJappliesinalldistrictandmunicipalcourts,itdoesnot

sensiblyfollowthattheSupremeCourtenvisioneddeprivingapetitionervictimizedinviolation

ofmunicipal law thesameentitlementgrantedtoapetitionervictimized inviolationofstate


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law. SeeCrRLJ1.1 (rules govern in all courtsof limitedjurisdiction,which includemunicipal

courts).

Lastly,pleasenote thatMr.Wright filed twopetitions againsteachdefendantone

invokingthe

DMMC

and

the

other

the

RCW.

Thus,

even

if

the

court

declines

to

hear

municipal

offenses,CrRLJ2.1(c)doesnotrestrainitfromconsideringtheclaimunderRCW16.52.207.

C.CrRLJ2.1(c)isConstitutional.

TheCityhas the substantialburdenofprovingbeyonda reasonabledoubt thatCrRLJ

violates the constitutions. See IslandCy.v.State,135Wn.2d141,146147 (1998)(describing

standardvis

vis

challenges

to

statutes,

noting

assumption

that

Legislature

considered

constitutionality of its enactments). It is otherwise presumed constitutional, and onewould

thinktheSupremeCourt,aboveall,wouldknowhowtodraftarulesafeguardingconstitutional

principles. Though no case could be found specifying the burden and presumption when

challengingaSupremeCourtrule,thelogicofIslandCy.andprogenywouldseemtoapplywith

greater force respecting a rule vetted and enacted by the Supreme Court with legislative

antecedents.

JCrR2.01wasenactedbytheSupremeCourt in the1960s.Aproposaltoamend JCrR

2.01 by restricting its scope tomisdemeanors and grossmisdemeanors and later, to repeal

CrRLJ2.1(c),elicitedcommentfromconcernedlawyers,judges,andtheWSBA.Afterhearingall

comments,theeffortstorepealCrRLJ2.1(c)wererejected,andtherulehasbeenineffectinits

currentformsince1999.

Forcertaincrimes,CrRLJ2.1(c)servesanimportantremedialpurpose,particularlywhen

budgetary triage,politicalexpediency,and conflictof interest (i.e., theCityAttorneysOffice


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likely works on a daily basis withOfcs. Graddon andWieland; indeed, Judge AliceaGalvan

recused, in part, due to the frequencywithwhich these officers appear in her courtroom)

clouds a prosecutors judgment. CrRLJ 2.1(c) affords a crucial check and balance on the

executivebranch,

preserving

the

sanctity

of

representative

democracy

and

rule

of

law.

It

also

ensuresequaltreatmentwithinthecriminaljusticesystem,particularlywhenthoseswornto

uphold the law floutordefile it.CrRLJ2.1(c)preservesvictims rightsasa20th

century rule

basedmanifestationofthe19th

century legislativewillofWashington,when itwasaterritory

andastate.

Historicalantecedents

to

CrRLJ

2.1(c)

predate

enactment

of

Washingtons

Constitution,

much like the statutes authorizing inquests.1 The citizen criminal complaint rule has been

Washington law (in various forms) from theearlydaysofWashingtons statehood andeven

before,whenitwasmadeaterritoryin1853.In1854,thirtyfiveyearsbeforetheWashington

Constitutionwasapproved,Washingtonlawpermittedanypersontoapproachasuperiorcourt

judge or anyjustice of the peace asking that a warrant be issued for misdemeanors and

felonies.BallingerCode6695(1897);RemingtonRevisedCode1949(1932);PierceCode

3114 (1905). Indeed, early cases before the Supreme Court address when private citizens

appearedincourttopreferacriminalchargeagainstathirdparty.SeeStateexrel.Murphyv.

Taylor,101Wash.148 (1918);Stateexrel.Romanov.Yakey,43Wash.15 (1906).Eventually,

the private criminal complaint became a court rule. JCrR 2.01 allowed citizen criminal

complaints for feloniesandmisdemeanors. JCrR2.01(d)(1963); JCrR2.01(c) (1969).The JCrRs

1TheSupremeCourtfoundnoseparationofpowersviolationbytheinqueststatute.Carrickv.Locke,125Wn.2d

129,137138(1994).


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werereplacedwiththeCrRLJs,providingthemostcurrentversionofCrRLJ2.1(c)(lastamended

in1999).

TheSupremeCourtspowertoenactJCrR2.01andCrRLJ2.1(c)derives fromboththe

constitutionand

statute,

vesting

in

it

coextensive

authority

to

make

rules

with

the

legislature.

Sackett v. Santilli, 146 Wn.2d 498, 506 (2002). It is a wellestablished principle that the

Supreme Court has implied authority to dictate its own rules, even if they contradict rules

establishedby the Legislature. Id., at 504 (quoting Marine Power & Equip. Co. v. Dept of

Transp.,102Wn.2d457,461(1984))."[I]nmostjurisdictionscourtrulemakingpowerhasbeen

shared,de

jure

or

de

facto,

between

courts

and

legislatures."

Id.

(quoting

Hugh

Spitzer,

Court

RulemakinginWashingtonState,6U.PugetSoundL.Rev.31,59(1982)(citationomitted)).The

SackettcourtcitestoRCW2.04.190asstatutoryreinforcementofthiscoextensiveauthority.

RCW2.04.190providesthat:

Thesupremecourtshallhavethepowergenerallytoregulateandprescribeby

ruletheformsforandthekindandcharacteroftheentirepleading,practiceand

proceduretobeusedinallsuits,actions,appealsandproceedingsofwhatever

natureby

the

supreme

court,

superior

courts,

and

district

courts

of

the

state.

RCW 2.04.190(1987)(emphasis added); see also State ex rel. FosterWyman Lumber Co. v.

Superior Court, 148 Wash. 1 (1928)(upholding constitutionality of RCW 2.04.190) and RCW

2.04.020(1890)(vestingplenaryauthority insupremecourttodetermineallmattersaccording

toitsrules).Thelegislature,therefore,acknowledgestheroleofcourtrulemakingandcommon

lawin

procedure.

Although

no

express

constitutional

provision

for

rulemaking

by

the

Supreme

Courtexists,thepowerwasintendedbytheFramers.Statev.SuperiorCourtforKingCy.,148

Wash.1,12(1928).NordoestheConstitutionprohibittheSupremeCourt frommakingrules


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for the inferior courts, such as thisone. Id.While a court rulemay contradict and trump a

statute,itcannotcontradictthestateconstitution.Sackett,at504.

The Constitution does not expressly state that prosecutorial decisionmaking is only

vestedin

the

Executive

Branch.

Article

III,

Section

1merely

notes

that

the

executive

department

consistsofseveralofficials includinganattorneygeneral.Theconstitutionneitherdemands

nor prevents the legislature from similarly empowering the judiciary. Rather, as described

above, the legislature expressly granted to the Supreme Court the right tomake rules that

affectcriminalandcivilprocedure,whichmanifestedthroughenactmentofJCrR2.01andCrRLJ

2.1.The

language

of

the

rule

permits

ajudge

to

evaluate

probable

cause

(as

she

does

in

every

criminal case), weigh the petition against prosecutorial guidelines recommended by the

legislature under RCW 9.94A.440, and entertain other equitable considerations including

motivationofthecomplainant.If,andonlyif,allfactorspassmuster,maythecourtexerciseits

owndiscretionaryauthoritytopermitthefilingofthecriminalcharge.Oncefiled,thejudicial

brancharguablynolongercontrolsthecourseoftheprosecutionbutsurrendersitsfatetothe

executivebranch.

WhileWashingtonslegislaturehaspassedlawsoutlininghowpublicattorneysmayfile

charges, the City does not cite to any authority expressly prohibiting private citizens from

initiatingcriminalcomplaintsorprohibitingtheSupremeCourtfromallowingsuchcomplaints

to be filed. CrRLJ 2.1(c) was conceived pursuant to constitutional and legislative grants of

authority.RCW2.04.190;Wash.Const.Art.IV.CrRLJ2.1(c)isnotinirreconcilableconflictwith

any provision of theWashington Constitution, if only because the legislature delegated the

abilitytoregulatethefilingofcriminalcomplaintstotheSupremeCourt.Furthermore,whether


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the legislature has the power to restrict criminal actions to those filed by public attorneys

disregardstheSupremeCourtscoextensiveauthoritytoprovidechecksontheotherbranches.

Thecrucialfunctionoftheseparationofpowersprinciple,therefore,isnotseparationperse,

butthe

checking

power

each

branch

has

over

the

others.

Comm.

v.

Mockaitis,

575

Pa.

5,

24

(2003)(quotedbyInreWilson,supra,at209).

Furthermore,theCityfailstocitetoanylegislativeauthoritythatdirectsthatallcriminal

actions in which a city is a party must be brought by the prosecuting attorney. RCW

36.27.020(4)(referencingthestateorcountyonly).RCW10.37.015,whilesayingnopersonmay

beheld

to

answer

in

any

court

for

an

alleged

crime

unless

upon

information

filed

by

the

prosecutingattorney,expresslyexceptscasesofmisdemeanororgrossmisdemeanorbeforea

district our municipaljudge, as occurred here. The Citys restrictive interpretation of the

WashingtonConstitutionsArticleI,25andArticleXI,5asexclusivelyvestingprosecutorial

powerinpubliclyelectedattorneysfailstoaccountforthefactthatafter1889,thelegislature

preservedthecitizencriminalcomplaintprocedurethathadpredatedstatehoodby35years.2

These lawswereneverheldunconstitutionalasviolatingseparationofpowersdoctrine.Their

postadoptionexistenceofferspersuasiveevidence that theconstitutiondoesnotexclusively

vestprosecutorialpowerinpublicattorneys.WhatisuncleartoMr.Wrightisthelegislativeand

judicialhistorypertaining to thepredecessor rule toCrRLJ2.1(c) i.e., JCrR2.01,andhow it

cameintoexistence.3

2SeeBallingerCode6695(1897);PierceCode3114(1905);RemingtonRevisedCode1949(1932).

3ArequestforthejudicialhistoryfromtheSupremeCourtyieldednodocuments.Suchdocumentationconfirming

therulesgenesiswouldassistallpartiesandthiscourtinevaluatingitssoundness.


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ArticleI,25statesthatprosecutionsmustoccurbyinformationorindictmentasshall

beprescribedbylaw.CrRLJ2.1(c),likeotherSupremeCourtrules,islawhavingalltheforceof

astatutesinceitisaruleofcriminalprocedureimplementedfromthebroadlegislativegrantof

authoritypursuant

to

RCW

2.04.190,

an

argument

disregarded

by

the

City.

State

v.

Currie,

200

Wash. 699, 707 (1939).4 Article XI, 5 directs the legislature to enact laws to provide for

electing prosecuting attorneys as public convenience may require. Nothing in this section,

however,statesthatpubliclyelectedprosecutorsretainsoleauthoritytoprosecutecrimesto

theexclusionofprivatecomplainants.

InevaluatingCrRLJ2.1(c),thecourtmustconsider its intendedscope, for if itpermits

privateprosecution

of

misdemeanors,

then

no

separation

of

powers

objection

need

be

sustainedastheprosecutingauthority isnotbeingcompelledtotakeanyaction. If limitedto

private initiation, then,once filed the case isownedby theprosecuting authoritywhomay

handle the matter as she would any other. CrRLJ 2.1(c) does not expressly indicate what

happensafterajudgehasauthorizedthecitizencomplainanttofilethecriminalcomplaint.One

would suspect that the complainant couldeitherprivatelyprosecuteor collaboratewith the

publicprosecutor.

Private

prosecutions

are

not

new

but

were

part

of

acommon

practice

in

England and America for crime victims for several hundred years. They continue to coexist

therewithpublicprosecutions.5NewHampshirescommonlawallowedthepracticeofprivate

4Currienotes thatthe legislaturedelegated to theSupremeCourt the responsibilityofmaking rules relating to

pleading,procedureandpractice in thecourtsof thestate,and that thoserules,suchasRulesof theSupreme

Court12and17dealingwithtimelyperfectionofappeal,havealltheforceofastatute.

5

Michael

T.

McCormack,

The

Need

for

Private

Prosecutors:

An

Analysis

of

Massachusetts

and

New

Hampshire

Law,

37 Suffolk U.L.Rev. 497, 499500 (2004); Kenneth L. Wainstein, Judicially Initiated Prosecution: A Means of

PreventingContinuingVictimizationintheEventofProsecutorialInaction,76Cal.L.Rev.727,751(1988)(Although

publicprosecutionisthenorminmostcriminalproceedings,thiscountryhasastrongandcontinuingtraditionof

criminal prosecution by private parties. Private parties, in fact, prosecuted all criminal cases in English and

Americancommonlaw,beforethedivergenceoftortandcriminallawandthecreationofthepublicprosecutors

office.)


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appeals courtdisagreed,highlighting the importanceofRule 106 as anecessary check and

balanceof theprosecutorsdecision andprotects against thepossibilityof error. Id., citing

Comm.v.Pritchard,408Pa.Super.221,233(1991).

Inexamining

the

separation

of

powers

doctrine,

the

court

concluded

that

it

does

not

entirelyprecludejudicialreviewofdiscretionarydecisionsmadebytheexecutivebranch.Id.,

at462.ItaddedthatsincethePennsylvaniaConstitutiongavetheirsupremecourttheexclusive

power to establish rules of procedure, it lackedjurisdiction to interpret Rule 106 and any

attempt to do so would amount to an unwarranted intrusion into the supreme courts

authority. Id.,at46263;Penn.Const.Art.V10(c).9Analogousmattershavebeen raised in

otherjurisdictions

with

similar

effect.10

Mr.Wright could continue fordozensofpageson this subject.Without knowing the

degreetowhichthiscourtwishestofocusonthis issue,Mr.Wright insteadchoosestoawait

further instruction from the court. In sum, theCityhas some temerity tourge this court to

secondguesstheSupremeCourt,afteritalreadyrejectedtheDMCJAseffortsin1995torepeal

CrRLJ2.1.EventheWSBAopposedtheDMCJA(seeattachedApr.13,1995letter)(Exh.B).

D.Decline

Decision

Requires

Ignoring

Key

Arguments

and

Evidence.

TheCitytrivializesthismatterbyimpoliticallystartingwiththecontentionthatadead

9 In In reWilson,879A.2d199,210 (Pa.Super.2005), the court foundno violationof separationofpowers in

allowinganappellatecourttoreviewthetrialcourtsordersustainingthecommonwealthattorneysdisapproval

ofaprivatecriminalcomplaint.SeealsoReillybyReillyv.SoutheasternPenn.Transp.Auth.,507Pa.204,218219

(1985)(enforcementofrulesofjudicialconductisbeyondjurisdictionofsuperiorcourtandattemptstointerpret

canonbycreatingnew standardsof reviewandproceduresarewithouteffectasunwarranted intrusionsupon

SupremeCourts

exclusive

right

to

supervise

the

conduct

of

all

courts

and

officers

of

the

judicial

branch).

10SeeRileyv.St.LukesEpiscopalHosp.,252F.3d749(5

thCir.(Tex.)2001)(noseparationofpowersviolationinqui

tamaction);Morrisonv.Olson,487U.S.654 (1988) (noseparationofpowersviolation inEthics inGovernment

Act); State v. Ronek, 176 N.W.2d 153 (Iowa, 1970) (no separation of powers violation in permitting adultery

prosecutionbyinjuredspouse);Youngv.UnitedStatesexrel.VuittonetFilsS.A.,107S.Ct.2124(1987)(FRCP42(b)

doesnotviolateseparationofpowers).


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dogandunpleasantwords,donotmakeacriminalcharge.MTD,13:2628.CrRLJ2.1(c)does

not discriminate among misdemeanors, however. Some misdemeanors are de minimis

(shopliftingapackofgum),donotvictimizeothers(smokingmarijuanaformedicaltreatment),

orinvolve

petty

sums,

but

a

dead

dog

cruelly

executed

by

those

sworn

to

uphold

the

law

and

shouldbeheldtoahigherstandardthanthegeneralpublic,adoglovedasafamilymember,is

notacrimetobesweptasidesoflippantly.

Then, inanattempttoengendersympathyfortheofficers,theCityremindsthecourt

that a conviction carries the possibility ofjail time, a fine, social stigma, employment and

housingconsequences.

Law

enforcement

officers

routinely

prepare

sworn

statements

with

full

knowledgethatindividualstheyarrestandcasestheyrefertotheprosecutorwillfaceprecisely

the samepenaltiesand sequelaecautionedby theCity.The implication is thatGraddonand

Weiland,bydintofworkinginlawenforcement,shouldcurrythefavorofthiscourt,garnering

thebenefitofeverydoubtorsympathy.Butthisrequiresthecourttoshielditseyesfromthe

undeniable fact that in theUnitedStates, the ruleof lawgoverns,not the ruleofnepotism.

Incidentally, this point deflects challenges by those asking why the Wrights do not simply

pursuejusticeforRosiethroughtheciviljusticesystem(viz.,acriminalwrongmaycarryacivil

consequence,buttheyarenotmutuallyexclusiveremedies,andcivilrecoursewillnotprovide

thepenaltiesauthorizedwithinthecriminaljusticesystemparticularlywhentheCitywilllikely

indemnifyallactionsofGraddonandWeiland,resultinginnotapennyspentinremuneration

bythosewhokilledRosie).

1. ManagerTimAnderson.The Citys reliance on the single opinion of the President of theWashingtonAnimal


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ControlAssociation(whohappenstoserveasheadofPierceCountyAnimalControl)andwho,

oninformationandbelief,isnotacommissionedlawenforcementofficercapableofpossessing

a firearm,asevidenceofno criminalwrongdoing,boggles themind.Mr.Andersondoesnot

havethe

authority

as

an

animal

control

officer

to

carry

(much

less

discharge)

afirearm

in

the

course of employment. See RCW 16.52.015(3)(c)(animal control officers may only carry

nonfirearmprotectivedevices forpersonalprotection)).Hisopinion,therefore,carries little if

anyweight,exceptwithrespecttothecatchpole,whichhenotesGraddoncouldnotuse (it

appearedthatatleastonepatrolofficerwasnotfamiliarwithhowtousethecatchpole.);and

thefailure

to

call

in

animal

control

support

from

other

jurisdictions

(when

appropriate,

patrol

officers [should] ask that an animal control officer from a nearbyjurisdiction respond to

similar calls.). The court should also note that the DesMoines Animal ControlOfficer Jan

Magnuson,whospoketoGraddonandWielandonthedateRosiedied,istheVicePresidentof

theWashingtonAnimalControlAssociationandhasworkedwithMr.AndersonontheWACA

board for years.Onequestions ifMagnusonhad any role in soliciting thisopinion fromher

colleague,suggestingfurtherbias.

2. IncarVideo545.The incar video of unit 545 does not showwhat happened in the finalminutes of

Rosieslife,theonlyonesthatmatterfromastandpointofassessingcriminalmisconduct.That

said, this video hardly exculpates. Rather, it memorializes the callous, disrespectful, and

malicious way in which these adrenalinpumped officers chose to manage a lowpriority

situation.Arefresherforthecourtfromthisdashcam:

Theofficer surmisedcorrectly thatRosie livedon thepropertywhere they foundher


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andfromwhichtheysentherfleeingbyTaser.1342.501344.05;est.1352.

Onlyafewminutesafterarrival,anofficerexpresseshisintenttokillRosieinherownyard.1349.431349.52.

Evenwhile fumblingwith the catchpole,notoneofficerhasa cluewhat theywilldowithRosieonceensnared,yettheypersist intheir futileefforts,refusingtoreflecton

theconsequencesoftheiractionsexcepttojustkillher.1353.431355.10(Oncewe

gethim,what arewe gonnadowithhim?);1355.381355.51 (I saywejust shoot

him,killhim.HesgonnafightlikeafuckeroncehesTased;Icantrytochokehimout.).

PriortodischargingtheTaser,Rosieisnotatlarge.Sheonlybecomesatlargeaftertheofficers terrorizeherbyelectrocutionand trespass.Aftershe runs,Graddonsays,Ill

shoothim.Letsjustgoshoothim.1401.141401.34.

3. Foamingatthemouth.TheCityclaimsnowitnessorevidencecontradictstheaccountofRosiefoamingatthe

mouth.11

Importantly, this allegation is not contained in any of the narrative reports of

Graddon,theshooter,whichonlyclaimshewasbarkingandshowing[her]teeth,acomment

madeatthetimeheencroachedontotheWrightsproperty,notatthetimeheshotherfour

times. Only his unsworn Use of Force report claims foaming, and then only while on the

WrightspropertyafullhalfhourbeforeshewasgunneddowninMs.Perrysbrambledback

yard.Relevantly,notoneofficerallegesthatRosiecharged,barked,growled,boreherteeth,or

foamedat themouth from themoment she ran from theWrightsproperty to themoment

11Newfoundlandsarecongenitaldroolersandslobberers. Ifexcitedandbarking,thesalivamayappearas foam

butinnowayindicatesviciousanimus.


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theyexecutedher. Indeed,Ofc.Shieldsnotes,uponarrivingatthePerryresidence,Thedog

watchedusanddidnotmove.

4. Aggressivebehavior.Next,

the

City

contends

no

witness

contradicts

Rosies

aggressive

behavior.

MTD,

14:16.Suchargumentseriouslymisleadsthecourt,sinceanyspecificaccountsofaggression

dissipate after they Tasered Rosie on her own property and sent her fleeing. After being

Taseredthefirsttime,notoneofficerevenhintsataggressivebehavior,generalorspecific in

nature.But,asareminder,andcontradictingtheCitysprovablyfalsestatement,JoyceDarby

sawRosie

while

on

the

Wrights

property.

Sgt.

Mohr

even

interviewed

her

(and

whose

name

was given to him by Mr. Karp). Ms. Darby states that Rosie was not barking or showing

aggression, but had no expression and was just sitting there. Exh. K to Feb. 11, 2011

Package.Afterbeingroustedfromherhome,allcivilianwitnesses(BryanBurnett,LoraPerry,

Kennet Phillipson, and Eugene Nucci) confirm that Rosie showed no aggression, was not

barking,charging,snarling,orfoamingatthemouthatanytime.

5. Rosieatlarge&DMMC8.04.020(6),8.04.210(2),and8.04.260(4)12.ThentheCitydisingenuouslyclaims,mostsignificantlyofall,thatRosiewasat large.

First, DMMC 8.04.020(6) deems an animal at large only when off the premises of the

owner[.]Asexplainedaboveand theCitymust concede, from the time theofficersarrived

throughthemomenttheyTaseredher,shewasnotoffthepremises.Hence,sheonlybecame

atlargeindirectresponsetotheassaultiveactionsofthedefendants.Butfortheirwrongful

interference,Rosiewouldneverhavebeenatlarge.Further,onceRosiefoundrefugeonMs.

12Exh.AincludestheentireTitle8DMMC.


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Perrys property, she lost the contrived status as atlarge for the reason that Ms. Perry

becameRosieskeeperandpermittedRosie to remain.SeePerryStatement,at7 (Exh. I).

Thus,whenTaseredthefirsttimeandshotfourtimes,Rosiewasnotatlarge.Thiseliminates

theCitys

conclusion

that

the

officers

acted

as

authorized

in

law,

citing

DMMC

8.04.210(2),

whichdefinesasanabatablenuisance[a]domesticatedanimalrunningatlarge.

i. LethalabatementproceduredidnotapplytoatlargestatusasRosiewasnotsubjecttoremoval.

First,theCityignorestheprefatorystatementsofDMMC8.04.260,titledAbatementof

nuisancesProcedureAppeal.Itbegins:

The following procedure shall apply to the abatement of animals subject to

removal, toanimalsnot redeemablebecause subject tocrueltyasprovided in

DMMC8.04.230,andtokennels,petshops,andshelters inviolationofDMMC

8.04.040through8.04.120:

DMMC8.04.260(emphasisadded).Notethat itonlyappliestoabatementofanimalssubject

toremoval.DMMC8.04.250,titledAnimaldeclaredapublicnuisanceAbatement,provides

contextforthephrasesubjecttoremovaltomeanexcommunicationorbanishmentfromthe

city:

Ananimalthathasbeenthesubjectofthreeconvictionsofaviolationofthis

chapter inaperiodof365daysorananimalthatbitesorattacksapersonor

persons without provocation twice within a fiveyear period is a public

nuisanceandshallnotbekeptwithinthecity.Thechiefofpoliceshallfollow

theproceduressetoutinDMMC8.04.260inordertoabatesuchanimal.After

the completion of such abatement procedures, an animal subject to removal

from the city asprovided in this section that is foundwithin the city shallbe

impoundedand

treated

as

an

unredeemed

animal

with

no

right

of

redemption

byitsownerorkeeper.[Ord.10271,1993:Ord.5127(6),1980.]

DMMC8.04.250(emphasisadded).Clearly,Rosiewasnotananimalsubjecttoremovalfrom

thecityforthereasonthatshewasneverthesubjectofthreeconvictionsofaviolationwithin


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aone yearperiod, did not bite or attack apersonwithoutprovocation twice in a fiveyear

period.NotethatDMMC8.04.250referencestheprocedureofDMMC8.04.260asthemeans

ofabatement.Thus,theCitysdisturbingattempttoauthorizetheslayingofRosieforallegedly

beingat

large

pursuant

to

DMMC

8.04.260(4)

takes

dramatic

liberties

with

the

plain

reading

of

the code,whichwould not authorize such ultra vires activity. The court should dismiss this

argumentoutright.

ii. Lethal abatement secondary to impound by reasonablemeans.

Even if the court rejects the above dispositive arguments, and humors the City by

applyingDMMC8.04.260(4),notethatabatementmustoccurbyreasonablemeans,ordering

impoundmentifsafelyachievableandthenonlyifthedogreasonablyappearstoconstitutean

imminent or continuing danger to the public. The Code permits slay[ing] only after

reasonable efforts to impound fail. As noted above, Rosiewas not atlarge, andwas not

subject to removal, so this ordinance simply does not apply.Next, she remained on her

propertyand

did

not

present

any

danger

to

the

public

at

the

time

they

Tasered

her.

In

no

way

couldtheofficersownprovocativebehaviortransformRosiesbehaviorintoonecharacterized

asdangerousor imminent,much lesscontinuing,andnocallers reportedorwitnessedRosie

threatening people or animals. To be clear, Rosie never bit, attacked, chased, or hurt any

personoranimalwithoutprovocation.

Onthe

issue

of

reasonable

means

of

impoundment,

as

noted

early

in

in

car

dashcam

545,theofficersdidnotknowhowtodeploythecatchpoleandaskedwhattheywoulddoeven

if they ensnared her. Not once did they seek assistance in using the catchpole, ask for a


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properly sized catchpole from dispatch or neighboringjurisdiction, enlist the aid of animal

controlfromKingCountyorothermunicipalities,ortakeanystepstoanswerthequestionof

whattodowithheroncecaptured(viz.,impoundment).Hence,theattemptstocontainher

byTasering

were

ill

conceived

and

not

reasonably

calculated

to

do

anything

other

than

startle

Rosie and send her running. Even if the court finds that Rosie presented an imminent or

continuingdangertothepublicwhileontheWrightsproperty,theofficersdidnotslayher

there. Instead, half an hour later,when they found her inMs. Perrys fenced and densely

vegetated backyard, where she was by all accounts not moving, sitting quietly, not

threateninganyone,

none

of

the

officers

even

attempted

to

impound

her.

Instead,

they

reachedfortheassaultrifleandresortedtolethalforce.Theofficersdidnotactreasonably,

didnotreasonablyperceiveanyimminentorcontinuingdangertothepublic,failedtoattempt

toimpoundherthroughmeansreasonablycalculatedtoachievethatend,andslewherwithout

anylegaljustification.Thisordinancedoesnothingtoexoneratetheofficers.

iii. DMMC 8.04.260(4) cannot preempt or conflict with RCW16.52.207.

For another reason, however, DMMC 8.04.260(4) does not provide a complete

defense.Thatitconditionallypermitsslay[ing]suchanimaldoesnotmeanofficerscanslay

cruelly. RCW 16.52.207 does criminalize themere killing an animal, but instead only those

slayingseffectuatedbymethods resulting inundue suffering,asoccurredhere.Thus,even if

permittedto

kill

Rosie

(which

the

Wrights

strongly

challenge),

the

City

fails

to

address

whatsoever the means by which the defendants slew her (i.e., four shots, the first

accompaniedbythecongratulatorybackslapandproclamationNice!!!ascapturedonincar


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dashcam 521 (whichDMPD Sgt.Mohrwrongly claimed never existed (Therewasno video

footage for car 521 assigned toOfficer Shields.))) Further, the City completely ignores the

discussionatpages3242oftheFeb.11,2011submissionofMr.Karp.

iv. NoauthorizationtoslaybyChiefofPolice.Lastly,DMMC8.04.210onlypermits slayingwhenpermittedby the chiefofpolice.

TheCitywronglyarguesthatDMMC2.08.020confersupontheofficersat issuetherightto

slay an animal absent consultation with any supervising officer or the Chief of Police. This

misstatesthecode.DMMC2.08.020provides:

Thechief

of

police

is

appointed

by

the

city

manager

upon

the

basis

of

qualificationsandexperienceforsuchoffice.Thechiefofpoliceisexcludedfrom

the provisions of civil service contained in chapter 41.12 RCW, and may be

removedfromofficeinaccordancewiththecitypersonnelmanual.Subordinates

to thechiefofpolicewhoqualifyasclassifiedemployeesunderchapter41.12

RCWare appointed and removedpursuant to theprovisionsof chapter41.12

RCW and the Rules and Regulations of the Des Moines Civil Service

Commission.Thechiefofpolicesoappointedshallqualifybeforeenteringupon

hisorherdutiesbyfurnishingafidelitybondattheexpenseofthecityinasum

to be set by the citymanager and upon filinghisorheroath to support the

governments of theUnited States, the state, and the city and to the faithful

performanceof

his

or

her

duties.

The

powers

and

duties

of

the

chief

of

police

andthesubordinatesofthechiefofpolicearethosegrantedunderthe lawsof

thestate,theordinancesofthecity,andasdeterminedbythecitymanagerby

writtenexecutiveorder. [Ord.11352(2)(part),1995;Ord.9821(A),1992.

Formerly2.05.020.]

Nothing in this section automatically extends thepowersof theChiefof Police to street or

commandingofficers.Rather,itstatesthatsubordinatesofthechiefofpoliceonlyhavethose

powersand

duties

as

granted

under

the

laws

of

the

state,

the

ordinances

of

the

city,

and

as

determined by the city manager by written executive order. No provision of the RCW or

DMMCgrantedGraddonandWeilandtherighttoslayRosiewithoutauthorizationbytheChief


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ofPoliceasclearlyset forth inDMMC8.04.260(4).NorhastheCityproducedevidenceofan

executive order providing that Graddon and Weiland could disregard the straightforward

languageofDMMC8.04.260(4).Lastly,thereisnoevidencethatSgt.Weiland(nottheChiefof

Police)consulted

with

Chief

OLeary

prior

to

ordering

Graddon

to

kill

Rosie.

DMMC

2.08.020

does not allow patrol officers to make such a decision without police chief authorization.

Ostensibly, the entire reason the City council added the phrase chief of police shall have

authoritytoslaysuchanimal,wastoconstrainallsubordinatesandpreventthemfromdoing

preciselywhat tookplaceonNov. 7, 2010. TheCitys strained readingnotonly failsby the

languageof

the

ordinance,

but

would

render

the

use

of

the

phrase

chief

of

police

superfluous

and convert the ordinance into one that would allow lifeanddeath decisions to be made

withoutanyconsultationwithasupervisingofficer,muchlesstheChiefofPolice.

6. Failuretocooperatewithinvestigation.The City then complains aboutMr.Wrights failure to assist in the investigation. As

noted above,Mr.Karpprovided contact information foronewitnessnot known to theCity

(JoyceDarby)andencouragedMr.PhillipsontosubmittointerviewbySgt.Mohr.Mr.Karpdid

notknowofEugeneNucciuntillateJanuary2011andonlyobtainedhisstatementinFebruary

2011. Lastly,daysprior toNov.16,2011,Mr.Karpemailedand leftavoicemail for theCity

AttorneyandtheChiefofPoliceexplaininghisintenttosendRosietoWSU/CVMforanecropsy,

asking if theCitywanted to independentlyexamineherprior tohercremationorburial.On

Nov.16,2011,InterimPoliceChiefOLearyleftMr.Karpavoicemail(whichcanbeproducedon

demand)acknowledgingMr.Karpsmessage,claiminghisappreciationforthenotificationand

offer forexamination,butstatingat thatpointhedidnotbelieveanyadditionalgoodwould


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come for the City from any further examination.He added that doingmore testing or any

testingwouldnotbewarranted.Lastly,ChiefOLearystatedhedidnotwanttootherwisedelay

planstheWrightfamilymighthaveforRosiesremains.Atnotimethereafter,thoughnotified

ofintent

to

necropsy,

did

the

Chief,

Sgt.

Mohr,

or

any

other

representative

of

the

City

ask

Mr.

Karpfornecropsyresults.

TosaythattheWrightsshouldhavetakenanevenmoreaggressiverole inaiding the

CitysinvestigationwhenitwastheCityanditsemployeeswhocausedsuchgrievousharmto

theWrightsandwithwhomtheyclearlyhadanadversarial relationshiptakesapositionat

truancywith

reality.

CrRLJ

2.1(c)

does

not

require

that

the

victim

hand

over

to

the

police

(which

should be doing its ownjob competently), on a silver platter, all evidence in support of a

criminal charge or forfeit the right to electjudicial intervention. All things considered, the

Wrights and their counsel should be commended for their cooperation and selfinitiated

investigation.Undeniably, theCityhashad sinceFebruary2011 toevaluateall theevidence

submitted(MTD,13:1011)andchangeitsmind.Itrefusedtodoso,insteadfilingamotionto

dismissandinsinuatingtheWrightshavewithheldevidencefromthiscourt(andfromtheCity)

inadesperateattempttoavoidaccountabilityandtakeanhonestlookattherealissue.

7. DCHs.AstheCitycorrectlynotes,considerationofdefendantcasehistoriesofseveralcivilian

witnessesisnotadeclinationfactorunderRCW9.94A.411.Accordingly,CrRLJ2.1(c)(7)doesnot

allowittoenterintothecourtsdetermination.IftheCitynonethelesswantedtointroducethis

evidencebeforethecourt,andthecourtweretoadmitit(notwithstandingER609andER403),

theCityhasnotdisclosedthegroundsforitspurportedimpugnmentofthesethreewitnesses.


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Thecourtshouldknowthatthewitnesswiththeallegedhistoryofanimalcontrolviolationsis

notthecomplainantorhiswife,butbelievedtobeamanwhowascitedthreetimesafterhe

steppedforwardtochallengetheactionsoftheofficersinquestion(specifically,Jan.7,2011

seeDes

Moines

Muni.

Court

Case

Nos.

I01076568

70),

believed

to

be

by

Jan

Magnuson

(the

WACA Vice President and colleague of Tim Anderson; as well as friend to Graddon),

presumptively in retaliation. This signifies yet another reasonwhy thejudicial check on the

executivebranchissocriticaltotheproperadministrationofjustice.

Whatthecourtcantakefromthishalfheartedattempttobatforthedefendants(i.e.,

theCitys

own

employees,

with

whom

it

naturally

has

aconflict

of

interest),

is

that

even

ifthe

court ignoresthetestimonyofallcivilianwitnesses,theallegationsoftheofficersthemselves

stateaprimafaciecaseforcriminalprosecution.

E.Conclusion

NoneoftheargumentsraisedbytheCitysuccessfullydeflectthesurfeitofevidenceand

legal authority supporting probable cause and favorableprosecution factors to chargeMPO

GraddonandSgt.Weilandundercityand/orstatelaw.

DatedthisJun.19,2011inthecityofBellingham,Washington.

ANIMALLAWOFFICES.

_________________________________

AdamP.

Karp,

WSB

No.

28622

AttorneyforComplainantWright

CERTIFICATEOFSERVICE

IHEREBYCERTIFYthatonJun.19,2011,Icausedatrueandcorrectcopyoftheforegoingtobe

Digitally signed by Adam P.

Karp

Location: Bellingham, WA

Date: 2011.06.19 18:36:56

'-07'00


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serveduponthefollowingperson(s)inthefollowingmanner:

[x] Email

MattKaser

CityAttorneysOffice

6000Main

St.

Lakewood,WA 98499

(253)5892489

F:(253)5893774

[email protected]

MarkLarson

KingCountyProsecutingAttorneysOffice

W554King

County

Courthouse

5163rd

Ave.

Seattle,WA 98104

(206)2969000

[email protected]

/s/AdamP.Karp

AdamP.Karp,WSBNo.28622

AttorneyforPlaintiff


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Chapter 8.04

ANIMAL REGULATIONS1

Sections

8.04.010 Purpose.

8.04.020 Definitions.8.04.030 Dog and cat licensing.

8.04.040 Kennel, pet shop, shelter, and veterinary hospital licenses.

8.04.050 License applications.

8.04.060 Veterinary hospital license Certificate of inspection required.

8.04.070 Kennel, pet shop, or shelter license Certificate of inspection required.

8.04.080 Kennels, pet shops, or shelters Requirements.

8.04.090 Kennels, pet shops, or shelters Indoor housing facility requirements.

8.04.100 Kennels, pet shops, or shelters Outdoor housing facility requirements.

8.04.110 Compliance with DMMC 8.04.080, 8.04.090, and 8.04.100 required.

8.04.120 Inspections.

8.04.130 Grooming parlor license Requirements.8.04.140 Denial of license Appeal.

8.04.150 Enforcement powers.

8.04.160 Impound power and procedure.

8.04.170 Impounded animals to be held for at least 72 hours.

8.04.180 Redemption of impounded animals.

8.04.190 Unredeemed impounded animals.

8.04.200 Redemption of impounded animals subject to further provisions.

8.04.210 Violations to be abated.

8.04.220 Cruelty violations.

8.04.230 Redemption of animals subject to cruelty Requirements.

8.04.240 Termination of occurrence of violation.

8.04.250 Animal declared a public nuisance Abatement.

8.04.260 Abatement of nuisances Procedure Appeal.

8.04.270 Additional enforcement.

8.04.280 Rabies control.

8.04.290 Disposal of dead animals.

8.04.300 Possession of anothers animal.

8.04.310 Wild or exotic animals.

8.04.320 Personal obligations.

8.04.330 Violation Penalty.

8.04.010 Purpose.

It is declared the public policy of the city to secure and maintain such levels of animal control as will

protect human health and safety, and to the greatest degree practicable prevent injury to property

and cruelty to animal life. To this end, it is the purpose of this chapter to provide a means of

licensing dogs, cats, kennels, pet shops, veterinary hospitals, and grooming parlors, to control

errant animal behavior so that it shall not become a public nuisance, and to prevent cruelty to

animals. [Ord. 1225 1, 1998: Ord. 512 1, 1980.]

8.04.020 Definitions.

(1) Use of Words and Phrases. As used in this title, unless the context or subject matter clearly

ter 8.04 ANIMAL REGULATIONS http://www.codepublishing.com/wa/desmoines/html/DesMoines0

5 6/19/2011


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requires otherwise, the words or phrases defined in this section shall have the indicated meanings.

(2) Abatement means the termination of any violation by reasonable and lawful means determined

by the chief of police in order that an owner or keeper or a person presumed to be an owner or

keeper shall comply with this title.

(3) Animal means a living creature, except human beings, insects, and worms.

(4) Animal control authority means the animal control division of the police department actingalone or in concert with King County animal control division for enforcement of the animal control

laws of the city, county, and state, and the shelter and welfare of animals.

(5) Animal control officer means an individual employed, contracted with, or appointed by the city

chief of police, for the purpose of aiding in the enforcement of this title or any other law or

ordinance relating to the licensure of animals, control of animals, or seizure and impoundment of

animals, and includes any state or local law enforcement officer or other employee whose duties in

whole or in part include assignments that involve the seizure and impoundment of any animal. For

the purposes of this title this definition shall apply where a person charged with enforcement of this

title is referred to as officer or official.

(6) At large means to be off the premises of the owner or keeper and not under control of the

owner or keeper or other competent person by leash; except an animal within an automobile or

other vehicle of its owner or keeper or other competent person is deemed to be on the owners or

keepers premises.

(7) Dangerous dog means a dog that according to the records of the appropriate authority:

(a) Has inflicted severe injury on a human being without provocation on public or private

property; or

(b) Has killed a domestic animal, or other animal protected under federal, state, or local rules,

without provocation while off the owners or keepers property; or

(c) Has been previously found to be potentially dangerous, the owner or keeper having

received notice of such and the dog again aggressively bites, attacks, or endangers the

safety of human beings or domestic animals without provocation.

(8) Domesticated animals means those domestic beasts such as any dog, cat, rabbit, horse,

mule, donkey, bovine animal, lamb, goat, sheep, hog, or other animal including fowl made to be

domestic.

(9) Euthanasia means the humane destruction of an animal accomplished by a method that

involves instantaneous unconsciousness and immediate death or by a method that causes painlessloss of consciousness and death during loss of consciousness.

(10) Grooming parlor means a place or establishment, public or private, where animals are

bathed, clipped, or combed for compensation.

(11) Harboring means the presumption of ownership of an animal by an occupant of any premises

on which the animal remains or to which it customarily returns daily for food and care for a period

of 10 days.

(12) Kennel means a place where four or more dogs or cats over four months of age are kept,


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whether by the owners or keepers of the dogs or cats or by persons providing facilities and care,

but not including a veterinary hospital or clinic or pet shop.

(13) Leash means a cord, rope, thong, or chain not more than eight feet in length by which an

animal is controlled by the person accompanying it.

(14) Livestock means horses, bovine animals, sheep, goats, swine, reindeer, donkeys, and mules.

(15) Neutered or spayed means action performed by a licensed veterinarian meant to preventconception by an animal.

(16) Owner or keeper means a person having an interest in or right of possession to an animal

or a person having control, custody, or possession of an animal, or by reason of the animal being

harbored being presumed to be the owners.

(17) Pack of animals means a group of three or more animals running at large upon either public

or private property not that of the owner or keeper in a state in which either their control or

ownership is in doubt or cannot be readily ascertained.

(18) Pet shop means a person that acquires animals bred by others and/or supplies for animals,

whether as owners, keepers, agents, or on consignment and sells or offers to sell such animals

and/or supplies to the public.

(19) Potentially dangerous dog means:

(a) A dog that when unprovoked:

(i) Inflicts bites on a human being or a domestic animal or other animal protected under

federal, state, or local rules, either on public or private property; or

(ii) Chases or approaches a person upon a street or a public grounds in a menacing

fashion or apparent attitude of attack, or a dog with a known propensity, tendency, ordisposition to attack without provocation, to cause severe injury, or to cause injury or

otherwise threaten the safety of humans, domestic animals, or other animals protected

under federal, state, or local rules; or

(b) An offspring, older than eight weeks, later born to a dog found to be a dangerous dog.

(20) Proper enclosure to confine the dog means a securely confined indoor area of the owners

or keepers premises, or a securely enclosed and locked pen, kennel, or other exterior structure on

such premises, suitable to prevent the entry of young children or human extremities and designed

to prevent a potentially dangerous or dangerous dog from escaping. Such pen, kennel, or other

structure shall have secure sides and a secure top, and provide protection from the elements for

the dog. If such pen, kennel, or structure has no bottom secured to the sides, the sides shall be

embedded not less than two feet into the ground. Doors, windows, or other openings enclosed

solely by wire or mesh screening shall not be considered a proper enclosure as defined in this

section.

(21) Provocation includes taunting, teasing, wilfully causing undue pain, and/or unlawful entry upon

or into the property of the owner or keeper.

(22) Severe injury means a physical injury that results in broken bones or disf iguring lacerations

requiring multiple sutures or cosmetic surgery.


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(23) Shelter means a facility which is used to house or contain stray, homeless, abandoned,

unwanted, or illegally maintained animals and which is owned, operated, or maintained by a public

body, an established humane society, animal welfare society, society for the prevention of cruelty

to animals, or other nonprofit organization devoted to the welfare, protection, and humane

treatment of animals.

(24) Under control means control by leash so as to thereby be restrained from approaching a

bystander or another animal or from causing or being the cause of physical property damage or

personal injury, when off the premises of the owner or keeper.

(25) Vicious animals means an animal other than a dangerous dog or potentially dangerous

dog displaying the characteristics or propensity to do an act that might endanger the safety of a

person, animal, or property of another, including but not limited to a disposition to mischief or

fierceness as might occasionally lead to attack on human beings or other animals without

provocation whether in play or outbreak of untrained nature. [Ord. 1225 2, 1998: Ord. 993 15,

1992: Ord. 948 1, 1992: Ord. 512 2, 1980.]

8.04.030 Dog and cat licensing.

(1) It is unlawful to keep or harbor a dog or cat more than six months of age unless an annual

license is procured for the dog or cat from the city clerk. There is established a rebuttablepresumption that the purchaser of such license is the owner of the animal identified in the license

application.

(2) Dogs and cats four months old or older shall be vaccinated against rabies. Vaccinations shall

be performed in accordance with the standards contained in the Compendium of Animal Rabies

Control as amended, published by the National Association of State Public Health Veterinarians,

Inc. Proof of vaccination must be shown before a license will be issued by the city clerk.

(3) The annual license fees, including late penalties, are set by resolution of the city council. A late

penalty is charged on all licenses issued after March 1st of each year and an additional late penalty

is charged on all licenses issued after May 1st of each year. A dog or cat acquired during the yearshall be licensed within 30 days from the date of its acquisition, and in such cases the late penalties

are charged only on licenses issued after such 30-day period and after 90 days in which to comply

with these licensing requirements.

(4) When a license is obtained in the process of recovery of an impounded dog or cat, a fee is

charged for the license.

(5) The license shall remain in force for the calendar year in which it is issued. A license is

considered as being due on or before January 1st of each year. Application for such license is

made upon forms provided by the city. The application shall list the name, address, and phone

number of the owner, the name, breed, colors, age, and sex, if any, of the dog or cat, and suchother medical and vaccination information and data as may be required. Such information is kept,

conveniently indexed by the city clerk, together with the number of the license issued.

(6) City residents 65 years of age and older may obtain at no charge a special permanent license

for the lifetime of dogs and cats that are neutered or spayed and for which they are the registered

owners when the animals are maintained at the owners registered address. Such residents are not

required to annually obtain a new license for the lifetime of such licensed animals, except that no

household shall be issued more than three special permanent animal licenses for dogs or cats.

(7) A license issued is not transferable or usable by a person, other than the person to whom it was


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originally issued, except as provided in subsection (10) of this section.

(8) It is unlawful for an applicant to withhold or provide false information on an application.

(9) Upon payment of the license fee, the city clerk shall furnish to the person paying the same a

license tag for the dog or cat for which such fee has been paid. The shape of such tag may be

changed from year to year, and the tag shall have stamped upon it the calendar year for which the

fee has been paid. All license tags issued shall be securely fastened to a collar or other like

harness which shall be worn by the animal at all times when off the premises of the licensed owner.

(10) Whenever the ownership of a licensed dog or cat changes, the new owner shall notify the city

clerk and shall pay to the clerk a sum to be set by administrative order of the city manager at less

than the basic license fee, whereupon the clerk shall change the record of the animal to show the

new ownership.

(11) An owner or keeper of a licensed dog or cat whose current license tag has been lost may

obtain a replacement tag by the payment of a sum to be set by administrative order of the city

manager at a sum less than the basic license fee.

(12) The above provisions of this section shall not apply to:

(a) Dogs and cats whose owners are nonresidents temporarily within the city;

(b) The owners of dogs or cats brought into the city for the purpose of participating in a dog

or cat show;

(c) The owners or users of Seeing Eye, Guide, or Service dogs;

(d) Veterinarians in custody of dogs or cats;

(e) The owners or operators of an animal shelter;

(f) The owners or operators of a duly licensed kennel; or

(g) The owners or operators of a grooming parlor or pet shop.

(13) It is unlawful for a person to refuse to show or exhibit at a reasonable time to an officer a dog

in such persons possession or custody of a license tag issued therefor. [Ord. 1225 3, 1998: Ord.

1077 1, 1994: Ord. 1021 1, 1993: Ord. 726 1, 1988; Ord. 512 3, 1980.]

8.04.040 Kennel, pet shop, shelter, and veterinary hospital licenses.

It is unlawful for a person to keep, maintain, or operate a kennel, pet shop, veterinary hospital, or

shelter within the city without first obtaining a valid license therefor. A fee set by administrative

order of the city manager shall be assessed not upon individual animals but upon the owner orkeeper of a kennel, pet shop, veterinary hospital, or shelter. Each license and certificate of

inspection issued pursuant to this chapter shall be conspicuously displayed at the establishment to

which such license was issued. The license shall be dated, numbered, and shall bear the name of

the city, and the name and address of the owner or keeper of the establishment, and the expiration

date of the license. The license shall expire at the end of the calendar year. [Ord. 512 4(1), 1980.]

8.04.050 License applications.

Applications for licenses for kennels, pet shops, veterinary hospitals, and shelters shall be made to

the city clerk on forms provided by the city and shall include a finding by the public works director


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that the use is consistent with the zoning code of the city. [Ord. 512 4(2), 1980.]

8.04.060 Veterinary hospital license Certificate of inspection required.

Before a veterinary hospital license shall be issued, a certificate of inspection from the city health

officer must be issued showing that the hospital is in full compliance with all applicable state

standards (chapter 308-153 WAC) and applicable city health requirements. [Ord. 512 4(3), 1980.]

8.04.070 Kennel, pet shop, or shelter license Certificate of inspection required.

Before a kennel, pet shop, or shelter license may be issued, a certificate of inspection from the cityhealth officer must be issued showing that the kennel, pet shop, or shelter is in full compliance with

DMMC 8.04.080, 8.04.090, and 8.04.100. [Ord. 512 4(4), 1980.]

8.04.080 Kennels, pet shops, or shelters Requirements.

Kennels, pet shops, and shelters shall meet the following conditions:

(1) Housing facilities shall be provided for the animals and such facilities shall be structurally sound

and shall be maintained in good repair, shall be designed so as to protect the animals from injury,

shall contain the animals, and shall restrict the entrance of other animals.

(2) Electric power shall be supplied in conformance with the city electrical code and adequate to

supply lighting and heating as may be required by this chapter. Water shall be supplied at sufficient

pressure and quantity to clean indoor facilities and primary enclosures of debris and excreta.

(3) Suitable food and bedding shall be provided and stored in facilities adequate to provide

protection from the infestation or contamination of insects or rodents. Refrigeration shall be

provided for the protection of perishable food.

(4) Provision shall be made for the removal and disposal of animal and food wastes, bedding,

dead animals, and debris. Disposal facilities shall be maintained in a sanitary condition, free from

the infestation or contamination of insects or rodents or disease, and from obnoxious or foul

odors.

(5) Washroom facilities, including sinks and toilets, with hot and cold water, shall be conveniently

available for cleaning purposes, and a large sink or tub shall be provided for the purpose of

washing utensils, equipment, and facilities.

(6) Sick animals shall be separated from those appearing healthy and normal and if for sale shall be

removed from display and sale. Sick animals shall be kept in isolation quarters with adequate

ventilation to keep from contaminating the other animals.

(7) There shall be an employee on duty at all times during the hours any establishment is opened

whose responsibility shall be the care and welfare of the animals held for sale or display.

(8) An employee or owner shall come in to feed, water, and do the necessary cleaning of animals

on days the establishment is closed.

(9) No person shall misrepresent an animal to a consumer in any way.

(10) No person shall knowingly sell a sick or injured animal.

(11) Adequate care and feeding instructions shall be given to each purchaser of an animal and such

must be in writing. [Ord. 512 4(7), 1980.]


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8.04.090 Kennels, pet shops, or shelters Indoor housing facility requirements.

Kennels, pet shops, and shelters which have indoor housing facilities for animals shall:

(1) Be sufficiently heated or cooled to protect such animals from temperatures to which they are

not normally acclimatized;

(2) Be adequately ventilated to provide for the health of animals contained therein and to assist in

the removal of foul and obnoxious odors. Provision shall be made so that the volume of air withinany enclosed indoor facility shall be changed three times or more each hour;

(3) Have sufficient natural or artificial lighting to permit routine inspection and cleaning any time of

day. In addition, sufficient natural or artificial lighting shall be supplied in the area of sinks and toilets

to provide for the hygiene of animal caretakers;

(4) Have interior wall, ceiling, and floor surfaces constructed of materials which are resistant to the

absorption of moisture and odors, or such surfaces shall be treated with a sealant or with paint,

when such materials are not originally resistant to moisture or odors. Floor surfaces shall not be

made of unsealed wood. In addition, interior walls shall be constructed so that the interface with

floor surfaces is sealed from the flow or accumulation of moisture or debris;

(5) Contain a drainage system which shall be connected to a sanitary sewer or septic tank system

which conforms to the city building code standards and shall be designed to rapidly remove water

and excreta in the cleaning of such indoor housing facility in any condition of weather or

temperature; provided, that this requirement shall not apply to pet shops. All indoor housing

facilities shall be maintained in a clean and sanitary condition and a safe and effective disinfectant

shall be used in the cleaning of such facilities. [Ord. 512 4(8), 1980.]

8.04.100 Kennels, pet shops, or shelters Outdoor housing facility requirements.

Kennels, pet shops, and shelters which have outdoor facilities for animals shall:

(1) Be constructed to provide shelter from excessive sunlight, rain, snow, wind, or other elements.In addition, such facilities shall be constructed to provide sufficient space for the proper exercise

and movement of each animal contained therein;

(2) Be constructed to provide drainage and to prevent the accumulation of water, mud, debris,

excreta, and other materials and shall be designed to facilitate the removal of animal and food

waste;

(3) Be constructed with adequate walls or fences to contain the animals kept therein and to prevent

the entrance of other animals. [Ord. 512 4(9), 1980.]

8.04.110 Compliance with DMMC 8.04.080, 8.04.090, and 8.04.100 required.All kennels, pet shops, and shelters shall at all times be in a condition of full compliance with the

requirements of DMMC 8.04.080, 8.04.090, and 8.04.100. Failure to be in full compliance with

DMMC 8.04.080, 8.04.090, and 8.04.100 is unlawful and shall constitute a public nuisance and as

such shall be subject to the abatement procedures of this chapter. Failure to maintain the

establishment in full compliance shall be grounds for revocation of any license issued. [Ord. 512

4(5), 1980.]

8.04.120 Inspections.

It shall be the duty of the city health officer to make or cause to be made all such inspection as may

be necessary to insure compliance with this chapter. The owner or keeper of a kennel, pet shop, or


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shelter shall admit any officer or agent of the city health officer to the premises in order to make

necessary inspections at any reasonable time that admission is requested. [Ord. 512 4(6), 1980.]

8.04.130 Grooming parlor license Requirements.

(1) It is unlawful for any person to keep or maintain any grooming parlor without a valid license

therefor. A fee set by administrative order of the city manager shall be assessed and paid.

(2) Grooming parlors shall:

(a) Not board animals but keep such animals only for a reasonable time in order to perform

the business of grooming;

(b) Provide such restraining straps for the animal while it is being groomed so that such

animal shall not fall or be hanged;

(c) Sterilize all equipment after each animal has been groomed;

(d) Not leave an animal unattended before a dryer;

(e) Not prescribe treatment or medicine that is the province of a licensed veterinarian as

provided in RCW 18.92.010; and

(f) Not put more than one animal in each cage.

(3) A grooming parlor license must be revoked or may be refused to be renewed if the

establishment constitutes a public nuisance or for failure to comply with the above requirements.

[Ord. 512 5, 1980.]

8.04.140 Denial of license Appeal.

No applicant shall be issued a kennel, pet shop, shelter, or grooming parlor license who has had

such license revoked or refusal to renew and until such applicant meets all applicable requirements

established by this chapter. A decision to revoke, refusal to renew, or denial of a license under thischapter may be appealed to the hearing examiner. Such appeal shall be brought within 10 days of

such decision and in accordance with the hearing examiner code. [Ord. 770 47, 1988: Ord. 512

6, 1980.]

8.04.150 Enforcement powers.

(1) City officers and officials are authorized to take such lawful action as may be required to

enforce the provisions of this chapter and the laws of the state as they pertain to control of animal

behavior and prevention of cruelty to animals.

(2) Enforcement officers and officials shall not enter a building designated for and used for private

purposes, unless a proper warrant has first been issued upon a showing that the officer or official

has probable cause to believe that an animal is being maintained in the building in violation of this

chapter.

(3) Provided, that such officers or officials, while pursuing an animal observed by the officer or

official to be in violation of this chapter, may enter upon any public or private property, except any

building designated for and used for private purposes for the purpose of abating the animal

violation.

(4) No person shall deny, prevent, obstruct, or attempt to deny, prevent, or obstruct an officer or

official from pursuing and impounding an animal observed to be in violation of this chapter. [Ord.


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512 7(1), 1980.]

8.04.160 Impound power and procedure.

The chief of police and his officers may apprehend an animal found doing any of the acts defined

as a public nuisance or being subject to cruel treatment as def ined by law. After such animals are

apprehended, the chief of police or his officers shall ascertain whether such animal is licensed or

otherwise identifiable, and if reasonably possible and if the animal is not subject to DMMC

8.04.230 or 8.04.250, return the animal to the owner together with a notice of violation, and if it is

not reasonably possible to immediately return the animal to its owner, the chief of police or hisofficers shall notify the owner within a reasonable time by certified mail or by telephone that the

animal has been impounded and may be redeemed. The chief of police or his officers shall

immediately upon impounding an animal make a complete registry, entering the type, breed, color,

and sex of such animal and where appropriate, whether licensed and if licensed, shall enter the

name and address of the owner or keeper and the number of the tag. [Ord. 512 7(2)(a), 1980.]

8.04.170 Impounded animals to be held for at least 72 hours.

An animal impounded pursuant to this chapter and not subject to DMMC 8.04.230 or 8.04.250 shall

be held for the owner at least 72 hours after the owners receipt of notification by certified mail or

by telephone. Any animal suffering from serious injury or disease may be humanely destroyed by

euthanasia or in the discretion of the impounding authority may be held for a longer period andprovided veterinary care and redeemed by the owner or keeper within 72 hours of notification or by

any person after that time upon the payment of all charges due and owing. [Ord. 512 7(2)(b),

1980.]

8.04.180 Redemption of impounded animals.

Impounded animals shall be taken to locations approved by the city. The owner or keeper of such

an animal may recover said animal when all billable costs, redemption fees, penalties, license fees,

including any late penalty, and boarding costs incurred by such impoundment are made payable to

the city; provided, the boarding cost for livestock shall be in accordance with the rate established

by contract between the city and the given stockyard used for holding such animal. The chief of

police or his authorized officers may release the animal to its owner, before the receipt of all costs

and payments due, when the chief of police or his authorized officer receives notice from the city

clerk that the owner has signed a promissory note, in a form prepared by the city attorney, wherein

such owner shall agree to pay such redemption charges in full within 30 days from the date of the

execution of such promissory note. Such promissory note shall provide for the interest and

payment of the attorneys fees involved in collection in the event payment is not made within the

time required by the terms thereof. [Ord. 512 7(2)(c), 1980.]

8.04.190 Unredeemed impounded animals.

In case an animal is not redeemed, it shall be humanely destroyed by euthanasia by the

impounding agency or may be made available for adoption or may be sold at auction upon 10

days notice published in the citys official newspaper. A copy of such notice shall be served upon

the owner if known personally or by certified mail, return receipt requested at least one day before

such auction. City expenses shall be first deducted from the amount obtained at such an auction,

with the remainder, if any, retained for the owner for six months. If unclaimed for such six-month

period, the balance shall revert to the city and be deposited into the general fund. [Ord. 512

7(2)(d), 1980.]

8.04.200 Redemption of impounded animals subject to further provisions.

Release of an impounded animal to its owner or keeper may be further subject to an agreement by

the owner or keeper to special provisions set by the chief of police intended to prevent the

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