News - March 10, 2010

Superior Court may decide fate of Menlo Park pit bull

by Sean Howell

A Menlo Park woman is invoking the U.S. Constitution and state law in contesting a San Mateo County official's ruling that her pit bull be euthanized.

Marisol Silva, who lives in the Belle Haven neighborhood, appealed the ruling in a writ of mandate filed Feb. 22 in San Mateo County Superior Court.

It's rare that such a decision reaches the bench of a Superior Court judge. But the case serves as a reminder of the extraordinary recourse the county affords owners of animals deemed a threat, and of the high cost and effort involved for dog owners who try to get a death sentence overturned.

Ms. Silva's pit bull, Rocky, finds himself in the middle of that process, having been captured not for a violent act, but for Ms. Silva's alleged violation of county rules governing animal control. In the four months since Menlo Park police seized Rocky, he has been stuck in a cage in the Peninsula Humane Society facility, without the benefit of exercise, or interactions with humans or other animals.

It took Ms. Silva about three months to file an appeal, after the county's initial decision to euthanize the dog was confirmed in a hearing. Rocky will continue to wait until a Superior Court judge decides whether to hear the case, which could take several more months.

"It's a worst-case scenario, not only for us, but for the dog," said Humane Society spokesman Scott Delucchi. "It's not up for adoption, it's not being walked by volunteers, it's not receiving one-on-one help."

According to Mr. Delucchi, his agency recommended that Ms. Silva's canine be euthanized because Ms. Silva had violated several restrictions stemming from an earlier incident in which the dog had allegedly escaped from its yard and bitten a man. When it again escaped from Ms. Silva's yard in October to chase a bicyclist, the dog wasn't wearing tags identifying it as a dangerous animal, and a warning sign was not posted on Ms. Silva's fence, as county law requires, Mr. Delucchi said.

Ms. Silva said in an interview that the warning sign wasn't up because her father was painting the fence, and that the dog doesn't wear the tags when it's on their property — a violation of the ordinance, according to Mr. Delucchi. She also disputed the bicyclist's assertion that the dog had escaped from the yard.

The idea of a Superior Court judge adjudicating the fate of a dog may seem strange, but it does happen — most recently in 2009, when Judge Quentin Kopp reviewed a case in which two dogs had attacked another animal. Between the time the dogs were seized and the time Judge Kopp made his ruling, the owner shelled out about $5,000 in sheltering fees alone, according to Mr. Delucchi.

The county's roll of dangerous animals — there are 130 to 140 of them — isn't just made up of pit bulls, he said. There are plenty of labs and shepherds on it, and Chihuahuas and terriers, too.

Only about a dozen animals are euthanized each year, he said. Five or six dogs slated for execution are currently being held at the Humane Society, awaiting a hearing.

Mr. Delucchi estimated that such cases generally make their way to the Superior Court only once every five years or so.

"Not many reach that level," he said. "People generally understand the decision, if the animal meets both (the Humane Society's) and the county's designation" for execution.

In the writ of mandate, Ms. Silva argues that the seizure of her dog constituted an unreasonable search, violating the Fourth Amendment to the U.S. Constitution, and that the county's decision to hold the dog represents cruel and unusual punishment, violating the Eighth Amendment. Furthermore, the relevant county ordinance violates state law, she argues, because it doesn't allow for a full trial before a judge.

After consulting with two attorneys and deciding it would be too expensive, Ms. Silva wrote and filed the appeal herself.

"This is costing us a lot of money for something we think is unfair," she said.


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