Tuesday, November 26, 2013

They shoot dogs don’t they? The Graham Test

This week’s blog takes another ‘bite’ out of the entries in the wonderful summary provided by the ABA TIPS Fall 2011 Law Journal’s review of Animal Tort and Insurance Law by Adam P Karp, Yvonne C. Ocrant and Steven R. Bonanno.

Under Government Liability the Law Review discusses the liability of governments in police shootings of dogs.  It was agreed in the review, the shooting of a dog by the police is a fourth amendment seizure of that dog from its owner, even if the shooting is not fatal.  Claims against the government and the police officer are routinely dismissed where the police officer had nowhere to retreat and the dog was charging, acting aggressively, not responding to verbal requests to sit and stay and no owner was in the vicinity.

However, cases involving dog shootings by police were not automatically dismissed where the police officer was the only one left standing, where they were the only witness to the incident, when observers disagreed with the description of the incident given by the officer and where the dog can be shown to have a ‘clean record’ having attended and graduated from beginner and intermediate obedience classes.  These cases are routinely set down for trial because an issue of fact exists.

What is the outcome of setting these cases down for trial?  Does the dog owner get to speak about the dog that was killed or injured? Does the officer get to speak about how he felt or past experiences he may have had that colored his response?  Do recommendations come out of the trial which help focus discussion on what went wrong, what went right and open a dialogue between the interested and involved parties so future events like this do not happen?

Not really.  The court handles these cases, examines the ‘issue of fact’ brought before it by the parties at preliminary hearings, and decides who acted appropriately in this instance.  Only the court decides the issue of fact at hand as presented by each party.  Immediate dismissal of the claims was precluded because of the existence of an issue of fact.  Except for peripheral content given by the parties, their input is examined and believed or not believed by the court that then renders a decision taking the power of resolution out of the hands of the parties and placing it squarely in their own hands.

In the mind of the person that lost, had their dog injured or the police officer that acted on his own or the bystander’s best interest, so much more is taken into account of this incident than ‘an issue of fact’.  What did they each learn from the incident?  Has it been explored? Have changes been made in their behavior? And if so, are the changes implemented so future incidents of this kind benefit from what they experienced first hand?  Or is it simply a matter of getting to the truth, as a court sees it and meting out punishment for the police officer who acted as he saw fit or the dog owner who failed to act in a certain prescribed way.

Does discipline, issued by court decree, work to change the response of these parties in a positive way going forward?  Maybe not.

If upon intake this case was forwarded to mediation, as the line of first defense, discussions can be had which are not available in court due to time and linear nature of the court process.  ‘Just the Facts Mame”.  Yet how the police officer felt at the time, prior incidents he has had, his experience with dogs, specifically and in general and the training he received can and should be explored.

In the dog owner’s case, how did they feel? Was this a one time tragic occurrence, a constant treat that was ignored or a neighborhood practice?  Is the owner able to learn from the incident and pass on thoughts and ideas for themselves and for the police officer? And can they express their feelings and enlighten others about the incident as it unfolded?

Not so much!  The incident occurs, the facts examined and either dismissed as justified, the parties never being heard from again or set down for trial if that pesky ‘issue of fact’ raises its ugly head.  After a trial, the punishment is meted out to the villain.

In mediation, the parties can have a conversation, respond to the facts and emotions surrounding what happened, as they see it, in this case.  They can work on understanding what went wrong, get it off their chest, feel they moved the ball a little farther forward so next time such an incident arises the reaction may be tempered by experience and all parties escape unscathed.

These kinds of cases absolutely lend themselves to mediation.  A trial decides if the actions were right or wrong and then metes out justice (we hope).  Everyone will go on their merry way.  Yet has justice really been meted out and do they go on their way?

There will always be roaming dogs, police called to contain them, dogs who act aggressively when cornered, and owners through carelessness, by accident or through no fault of their own, have their dogs roam.  That the dog may act in a way that gets it killed is a fact of life.  How we as a society handle it may mean the difference between a life spared or not.

Mediation creates the space where, by discussing the circumstances, feelings, emotions and outcomes of a particular event, a different template might be created for first responders to help save the police and bystanders from injury, the pet owner from possible liability and definite despair and the animal from destruction.


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