Brandia Taamu ( Motion for Dismissal of all charges
( and expungement of record
V ( and return of all property
( and animals
The City of Everett ( Cease and desist order with
City of Everett Animal Control ( permanent No contact Order
I STATEMENT OF FACTS:
1) On or about 2002, 2009 and 2011 a representative of the City of Everett Officer Lori Trask harassed Ms Taamu, her son, her brother and her mother without ceasing, until sometime after 1/6/2011 the reasons became apparent, when your representative made 3 very telling statements describing client as a “Thin Native American Woman” It can be shown all of the other people responding felt no need to use such identifiers to describe Ms Taamu in direct violation of numerous State and Federal laws, including unlawful discrimination, color of law, malicious prosecution, and malfeasance
(b) "Deny" is hereby defined to include any act which directly or indirectly, or by subterfuge, by a person or his agent or employee, results or is intended or calculated to result in whole or in part in any discrimination, distinction, restriction, or unequal treatment,
RCW 49.60.030 Freedom from discrimination — Declaration of civil rights.
1) The right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;
(f) The right to engage in commerce free from any discriminatory boycotts or blacklists. Discriminatory boycotts or blacklists for purposes of this section shall be defined as the formation or execution of any express or implied agreement, understanding, policy or contractual arrangement for economic benefit between any persons which is not specifically authorized by the laws of the United States and which is required or imposed, either directly or indirectly, overtly or covertly, by a foreign government or foreign person in order to restrict, condition, prohibit, or interfere with or in order to exclude any person or persons from any business relationship on the basis of race, color, creed, religion, sex, honorably discharged veteran or military status, sexual orientation, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, or national origin or lawful business relationship: PROVIDED HOWEVER, That nothing herein contained shall prohibit the use of boycotts as authorized by law pertaining to labor disputes and unfair labor practices; and
(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 196r4 (42 U.S.C. Sec. 3601 et seq.).
This whole situation seems to be falling into the "Color of Law"
In the words of Supreme Court Judge, Mr. Justice Rutledge He who acts under "color" of law may be a federal officer or a state officer. He may act under "color" of federal law or of state law. The statute does not come into play merely because the federal law or the state law under which the officer purports to act is violated. It is applicable when and only when someone is deprived of a federal right by that action. The fact that it is also a violation of state law does not make it any the less a federal offense punishable as such. Nor does its punishment by federal authority encroach on state authority or relieve the state from its responsibility for punishing state offenses. Screws v. United States, 325 US 91, 108 (1945). This section was before us in United States v. Classic, 313 U.S. 299, 326, where we said: "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." Screws v. United States, 325 US 91, 109 (1945). For it was abuse of basic civil and political rights, by states and their officials, that the Amendment and the enforcing legislation were adopted to uproot. The danger was not merely legislative or judicial. Nor was it threatened only from the state's highest officials. It was abuse by whatever agency the state might invest with its power capable of inflicting the deprivation. In all its flux, time makes some things axiomatic. One has been that state officials who violate their oaths of office and flout 117*117 the fundamental law are answerable to it when their misconduct brings upon them the penalty it authorizes and Congress has provided. Screws v. United States, 325 US 91, 116-7 (1945) Mr. Justice Rutledge, concurring in the result. "It is not open to question that this statute is constitutional. . . [It] dealt with Federal rights and with all Federal rights, and protected them in the lump . . ." United States v. Mosley, 238 U.S. 383, 386, 387. Screws v. United States, 325 US 91, 119 (1945) Mr. Justice Rutledge, concurring in the result. Separately, and often together in application, §§ 19 and 20 have been woven into our fundamental and statutory law. They have place among our more permanent legal achievements. They have safeguarded many rights and privileges apart from political ones. Among those buttressed, either by direct application or through the general conspiracy statute, § 37 (18 U.S.C. § 88),[24] are the rights to a fair trial, including freedom from sham trials [including sham Collection Due Process Hearings] ; to be free from arrest and detention by methods constitutionally forbidden and from extortion of property [by threat of levy, lien, or lockdown letters] by such methods; from extortion of confessions; from mob action incited or shared by state officers; from failure to furnish police protection on proper occasion and demand; from interference with the free exercise of religion, freedom of the press, freedom of speech and assembly;[25] and 127*127 the necessary import of the decisions is that the right to be free from deprivation of life itself, without due process of law, that is, through abuse of state power by state officials, is as fully protected as other rights so secured. Screws v. United States, 325 US 91, 126-7 (1945) Mr. Justice Rutledge, concurring in the result. They simply misconceived that the victim had no federal rights and that what they had done was not a crime within the federal power to penalize.[30] That kind of error relieves no one from penalty. Screws v. United States, 325 US 91, 128 (1945) Mr. Justice Rutledge, concurring in the result.
2) In 2002 Ms Taamu moved into the city of Everett with 1 pit bull terrier, at which time, her family children, and she were harassed mercilessly, to the point that Ms Taamu had to call the Everett Police after Ms Trask walked into Ms Taamu's house without knocking or without a warrant and attempted to grab one of the pitbull terriers. Shortly there after Ms Taamu took another terrier from a teen who was hanging the dog by it's leash which only caused the harassment to escalate even further. After much careful thought and consideration, Ms Taamu made the heart-wrenching decision to give the dogs away for their own safety as she was sure that one day she would come home from work and they would be gone. Shortly thereafter Ms Taamu moved from the City
3) In 2009 Ms Taamu was realizing her dream of starting an animal rescue, and first in line was her dream of rescuing the pit bull Terriers from Everett Animal Services. Years prior Ms Taamu would go sit with the Pit Bull Terriers that she knew were going to be euthanized and sit by their kennels to give them love and human kindness before they were euthanized, promising one day she'd find a way to save them. After receiving many dogs a disturbing trend emerged, all of the dogs were injured, maced or both. After complaining about it, her pulling priviledges were suspended without reason, except that one of the animal control officers had complained about the accusations. (Triggering whistleblower)
4) In January of 2011 Ms Taamu was homeless and staying at a woman house in her driveway with her animals. On January 4th Ms Trask showed up and further harassed Ms Taamu. Ms Taamu had a water bottle in her hand, Ms Trask asked if she had water in the car for the dogs, Ms Taamu said no it was in her hands, Off. Trask said it had to be in the car, Ms Taamu said it was in her hand because she had just filled it back up, at which point Ms Trask once again said it had to be in the car. At this point Ms Taamu realized she was only there to harass her and left the area because of her fears about retaliation from 2009 and 2002.
5) On January, 6th, 2011 Ms Trask showed up with a warrant to take Ms Taamu's animals. All of the animals were warm and dry because everyone was asleep inside the vehicle when she showed up. At which point:
A) Ms Trask took numerous pictures
B) Ms Trask refused to give Ms Taamu the warrant
C) Ms Trask camera was not date stamped
D) Ms Trask did not leave Ms Taamu any notice of her legal remedies as required by law. Even more disturbing, the City has no such documents which do tell the Defendant their rights in this situation.
Notice requirements after removal of personal property by authorities is provided in paragraph (3). After removal of animals, notice must be provided by posting, personal service or certified mail and the owner must be provided written notice of the reasons for removal in this notice and legal remedies available to the owner.
6) The animal were seized illegally because they were not in any life threatening situation or condition and they had not been abandoned pursuant to RCW 16.52.085
7) The animals were not considered contraband and Ms Taamu is the rightful owners of these dogs and cats, Ms Taamu's property in dogs and cats is not “contraband”, statutory procedures for seizure of property have not been followed, and the seized property in pets must be returned to the the rightful owner. If the state argues that the pets are “derivative contraband” and that Ms Taamu is somehow guilty of a crime, the government must follow property forfeiture procedures to divest petitioners of their interest in their property in dogs and cats.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. At 699; Cooper, 904 F.2d at 305; Farrell, 606 F. 2d at 1344; David v. Fowler, 504 F. Supp. At 505, cf from State v. Alaway, 64 Wn. App. 796, 828 P.2d 591, p. 3 (4/2/92).
8.) Washington courts often look to federal law to determine lawful forfeiture procedures. Washington State's forfeiture statutes are exclusive. Unless statutory procedure are followed, a Washington court cannot order forfeiture and must release the petitioners' property. A court does not have inherent authority to forfeit property. See, State v. Alaway, 64 Wn. App. 796, 828 P.2d 591, p. 3 (4/2/92). The government gave no notice, so petitioners are not bound by any time frame to reclaim their property which is still in impound in Everett Wa. In the case of the seizure of an owner's property in pets for feeding and care, as in this matter, the seizure and forfeiture provisions in RCW 16.52.085 appear to track Washington State's civil forfeiture statute RCW 69.50 et seq. and federal law notice procedures. The proper procedures by statute are enumerated above. Petitioners received no lawful notice and Ms Taamu's due process rights were violated.
If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of this section within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The notice of claim may be served by any method authorized by law or court rule including, but not limited to, service by first-class mail. Service by mail shall be deemed complete upon mailing within the forty-five day period following service of the notice of seizure in the case of personal property and within the ninety-day period following service of the notice of seizure in the case of real property. The hearing shall be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer's designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction. Removal of any matter involving personal property may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the person seeking removal has notified the seizing law enforcement agency of the person's claim of ownership or right to possession. The court to which the matter is to be removed shall be the district court when the aggregate value of personal property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW. In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture.
69.50.505(a)(2). Notice must be given within 15 days of seizure. RCW 69.50.505(c). If the property is personal property, one claiming an interest in it then has 45 days to respond, and if a response is made, a hearing must be held. RCW 69.50.505(d), (e). Washington State's forfeiture statutes are exclusive. Unless statutory procedure are followed, a Washington court cannot order forfeiture and must release the petitioners' property.
The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of this section.
9) In regards to the euthanasia of George amounting to permanent deprivation of property and the continued impound of Ms Taamu's animals/property Ms Taamu's due process rights have been blatantly trampled on. There is no question that client has a protected property interest in the ownership of these animals, and the seizure and impoundment of these dogs triggers due process, Pasco v. Reihl, 635 So.2d 17 (S.Ct. 1994). “In the instant case, the petitioner's private property was subject to, among other things, physical confinement, and muzzling. In the aggregate, these restrictions are a deprivation of property and before such restrictions are imposed, a property owner must be afforded an opportunity to be heard. Ms Taamu has suffered a deprivation of property without benefit of a hearing, and such violation was a violation of client's procedural due process rights.” Id. at 19. See also, Mansour v. King, 131 Wash. App. 255 (Wash. App.2006) and Philips v. San Luis Obispo County Dept. of Animal Regulation, 183 Ca. App. 3d 372 (Cal. App. 1986). The deprivation here is unquestionably more severe than Pasco, as this case involves destruction; a total, complete and final deprivation of Ms Taamu's property rights. Where the property was forfeited without constitutionally adequate notice to the claimant, the courts must provide relief, either by vacating the default judgment, or by allowing a collateral suit. See Seguin v Eide, 720 F2d 1046 (9th Cir. 1983), on remand after judgment vacated, 462 U.S.1101,103 S. Ct. 2446 (1983); Wiren v Eide, 542 F2d 757 (9th Cir. 1976). Menkarell v. Bureau of Narcotics, 463 F2d 88 (3rd Cir. 1972); Jaekel v United States, 304 F Supp. 993 (S.D.N.Y 1969); Glup v United States, 523 F2d 557, 560 (8th Cir. 1975). (See FED. R. CIV. P. Supplemental Admiralty or Maritime Claims and Asset Forfeiture Actions Rule A(1)(B) (making rules applicable to forfeiture actions in rem arising from a federal statute) Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 629, 59 L. Ed. 1027 (1915). As we observed in Armstrong v. Manzo, 380 U.S. 545, 552 (1965), only "wiping the slate clean ... would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place." The Due Process Clause demands no less in this case. Peralta, supra, 108 U.S. at 898-99, 900.
The Defendant would also like to add something to the statement of facts, possibly the most important thing. You have desecrated George’s body ad refused to return him to Defendant, so that he can be washed, wrapped, blessed and set free from his earthly bounds. He holds no further evidence, and Defendant would request that you take the numerous vital organs and if you still have possession of those or his body and return them immediately, this would and does constitute CRUEL and UNUSUAL PUNISHMENT for a crime he was never guilty of nor that Defendant as yet to be convicted of and withholding information about Defendant's animals, and further secreting them away constitutes theft according to RCW 9.56.020. Defendant requests he be returned for ceremony and so far you have refused. As so MANY times stated in your officer’s reports, yes Defendant is a thin Native American woman, as such, Defendant follow Native beliefs, ways and practices and what you have done to him amounts to a FEDERAL CRIME and Defendant demands his body be returned immediately.
10) The policies enforced by Animal Care and Control are not law and thereby not enforceable and in fact are unconstitutional in regards to refusing Ms Taamu access to her animals or to send a vet into the shelter to check the animals thereby destroying any chance she had to defend herself, and further amounting to cruel and unusual punishment for a crime she was not yet convicted of. It is not the intent of the Constitution or laws of the United States that a person be punished before they have been convicted and sentenced by a court of law and or a jury of their peers, in direct violation of numerous Amendments, Federal Laws and state laws 8th Amendment
We must therefore rely on other considerations in deriving a constitutional excesiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing courts … should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes”); see also Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, … these are peculiarly questions of legislative policy”). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).
11) Mr James Iles and Mr Mike Fisher did seek to deprive Ms Taamu of her legal rights as guaranteed by the 5th Amendment to not incriminate herself during a hearing in Superior court in which Ms Taamu was requesting the return of her animals, thereby giving away her case in it's entirety with which the City of Everett used to amend their complaint and further argue that they were not bound by the United States Constitution, the Washington Constitution and various state and federal laws as evidenced by the states exhibits of RCW 35.01.010 and RCW 35.22.010 and in direct disregards of Rules for a Prosecutor 3.8 the city of Everett attorney Mr James Iles, did seek to defame Ms Taamu with facts not in evidence, by stating she “Fancied herself a dog rescuer” it seems at one time the City of Everett Shelter also “fancied Ms Taamu as a dog rescuer” as well, as evidenced by the dogs they released to her custody some of which they actually solicited her to take and accusing her of a crime of moral turpitude with which there was no proof and which she was not charged with “A cynical person might wonder if Ms Taamu kept her terminally ill dog alive to garner funds and donations” a statement made by Mr Iles and presented by Mr Fisher. In direct violation of Rule 3.8 Special Responsibilities of a Prosecutor, the City attorney acting a a City prosecutor in this case, along with the statements made in this case flies in the face of “Color of Law” abuse. We would submit that this was not “City Business” and as such the fact that Mr Iles stepped in to the prosecutor's dept shows that there is malicious intent on the part of the city to retaliate against the Ms Taamu, not just as a single agency but as a whole. If the prosecutor's Office is incapable of writing out their own briefs then we submit that their competency be challenged as well.
The prosecutor in a criminal case shall:
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule
526 State v. Boehning May 2005 127 Wn. App. 511
ANALYSIS
Prosecutorial Misconduct
[1]¶19 We begin our discussion with an obvious truism: Every prosecutor is a quasi-judicial officer of the court, charged with the duty of insuring that an accused receives a fair trial. State v. Coles , 28 Wn. App. 563 , 573, 625 P.2d 713, review denied , 95 Wn.2d 1024 (1981); State v. Huson , 73 Wn.2d 660 , 663, 440 P.2d 192 (1968), cert. denied , 393 U.S. 1096 (1969). We hold that the prosecutor’s misconduct in this case violated that duty, both in the closing argument and in the presentation of evidence.
[2]¶20 In order to establish prosecutorial misconduct, Boehning must show that the prosecutor’s conduct was improper and prejudiced his right to a fair trial. State v. Dhaliwal , 150 Wn.2d 559 , 578, 79 P.3d 432 (2003). Prejudice is established where ” ‘there is a substantial likelihood the instances of misconduct affected the jury’s verdict.’ ” Dhaliwal , 150 Wn.2d at 578 (quoting State v. Pirtle , 127 Wn.2d 628 , 672, 904 P.2d 245 (1995), cert. denied , 518 U.S. 1026 (1996)).
[3, 4]¶21 Boehning did not object to the prosecutor’s questioning and arguments below. A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so “flagrant and ill intentioned” that it causes enduring and resulting prejudice that a curative instruction could not have remedied. State v. Russell , 125 Wn.2d 24 , 86, 882 P.2d 747 (1994), cert. denied , 514 U.S. 1129 (1995). In determining whether the misconduct warrants reversal, we consider its prejudicial nature and its cumulative effect. State v. Suarez-Bravo , 72 Wn. App. 359 , 367, 864 P.2d 426 (1994).
[5, 6]¶23 We review a prosecutor’s comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal , 150 Wn.2d at 578 ; State v. Brown , 132 Wn.2d 529 , 561, 940 P.2d 546 (1997), cert. denied , 523 U.S. 1007 (1998). A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Hoffman , 116 Wn.2d 51 , 94-95, 804 P.2d 577 (1991). However, a prosecutor may not make statements that are unsupported by the evidence and prejudice the defendant. State v. Jones , 71 Wn. App. 798 , 808, 863 P.2d 85 (1993), review denied , 124 Wn.2d 1018 (1994).
134 Wn. App. 907, Sept. 2006 State v. Perez-Mejia
DISCUSSION
Prosecutorial Misconduct
¶30 In closing argument, the prosecutor appealed to the jury’s passions and prejudices, urging jurors to base a guilty verdict on a goal of sending a message to gangs or taking part in a mission to end violence, rather than returning a verdict based upon a consideration of the evidence properly admitted in the case. The majority of this improper argument followed a timely objection interposed by Soto-Rodriguez’s counsel. The trial court overruled this objection and, thus, no curative instruction was given. We conclude that the prosecutor’s improper argument irreparably damaged the fairness of the trial and diminishes our confidence in the verdict reached. As a result, Soto-Rodriguez’s conviction must be reversed and a new trial held.
[1-3]¶31 Prosecutors have a duty to seek verdicts free from appeals to passion or prejudice. State v. Belgarde , 110 Wn.2d 504 , 507, 755 P.2d 174 (1988); State v. Echevarria , 71 Wn. App. 595, 598, 860 P.2d 420 (1993).«7»Accordingly, a prosecutor engages in misconduct when making an argument that appeals to jurors’ fear and repudiation of criminal groups or invokes racial, ethnic, or religious prejudice as a reason to convict. Belgarde , 110 Wn.2d 504 . Likewise, inflammatory remarks, incitements to vengeance, exhortations to join a war against crime or drugs, or appeals to prejudice or patriotism are forbidden. State v. Neidigh , 78 Wn. App. 71 , 79, 895 P.2d 423 (1995).«8»In closing argument, a prosecuting attorney has wide latitude to draw and express reasonable inferences from the evidence. State v. Hoffman , 116 Wn.2d 51 , 94-95, 804 P.2d 577 (1991). However, a prosecutor may never suggest that evidence not presented at trial provides additional grounds for finding a defendant guilty. State v. Russell , 125 Wn.2d 24 , 87, 882 P.2d 747 (1994) (citing United States v. Garza , 608 F.2d 659, 663 (5th Cir. 1979)).
«7»This principle is one of long standing. Almost three decades ago, our Supreme Court explained: “In presenting a criminal case to the jury, it is incumbent upon a public prosecutor, as a quasi-judicial officer, to seek a verdict free of prejudice and based upon reason. As we have stated on numerous occasions, the prosecutor, in the interest of justice, must act impartially, and his trial behavior must be worthy of the position he holds. Prosecutorial misconduct may deprive the defendant of a fair trial. And only a fair trial is a constitutional trial.” State v. Charlton , 90 Wn.2d 657 , 664-65, 585 P.2d 142 (1978).
«8»Federal courts addressing these issues have likewise held that it is improper for a prosecutor to urge the jury “to view this case as a battle in the war against drugs, and the defendants as enemy soldiers,” Arrieta-Agressot v. United States , 3 F.3d 525, 527 (1st Cir. 1993), that the constitution prohibits appeals to racial, ethnic, or religious prejudice, United States v. Cabrera , 222 F.3d 590, 594 (9th Cir. 2000), and that it is improper for a prosecutor to “direct the jurors’ desires to end a social problem toward convicting a particular defendant.” United States v. Solivan , 937 F.2d 1146, 1153 (6th Cir. 1991) (reversing based on prosecutor’s call to send a message to drug dealers, notwithstanding curative instruction given by trial court).
125 Wn. App. 895, State v. Jungers
Court of Appeals: Holding that the prosecutor committed prejudicial misconduct at trial by attempting to elicit opinion testimony as to the defendant’s guilt and by arguing stricken credibility testimony to the jury, and that the trial court erred by denying the defendant’s motion for a mistrial based on the prosecutorial misconduct, the court reverses the judgment and remands the case for further proceedings.
Pattie Mhoon , for appellant .
Gerald A. Horne , Prosecuting Attorney, and John M. Sheeran , Deputy, for respondent .
¶1 HUNT , J . – Lisa D. Jungers appeals her conviction for unlawful possession of methamphetamine. She argues (1) the trial court erred in admitting evidence seized during an illegal search of probationer Michael Hodgkins’ residence, (2) the prosecutor committed misconduct in eliciting and arguing inadmissible opinion evidence, and (3) the trial court abused its discretion in denying Jungers’ motion for a mistrial based on prosecutorial misconduct. Holding that the search and seizure were legal, we affirm the trial court’s ruling that the methamphetamine was admissible. Holding further that prosecutorial misconduct required a mistrial, we reverse.
ANALYSIS
PROSECUTORIAL MISCONDUCT
¶17 Jungers argues (1) the prosecutor committed misconduct by eliciting inadmissible credibility testimony and arguing stricken credibility testimony to the jury, and (2) the trial court erred by denying her motion for a mistrial based on this prosecutorial misconduct.
A. Standard of Review
[1]¶18 A criminal defendant’s right to a fair trial is denied when the prosecutor makes improper comments and there is a substantial likelihood that the comments affected the jury’s verdict. State v. Reed , 102 Wn.2d 140 , 145, 684 P.2d 699 (1984). Such is the case here.
Screws v. United States, 325 US 91, 108 (1945).
This section was before us in United States v. Classic, 313 U.S. 299, 326, where we said: “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of’ state law.” Screws v. United States, 325 US 91, 109 (1945). For it was abuse of basic civil and political rights, by states and their officials, that the Amendment and the enforcing legislation were adopted to uproot. The danger was not merely legislative or judicial. Nor was it threatened only from the state’s highest officials. It was abuse by whatever agency the state might invest with its power capable of inflicting the deprivation. In all its flux, time makes some things axiomatic. One has been that state officials who violate their oaths of office and flout 117*117 the fundamental law are answerable to it when their misconduct brings upon them the penalty it authorizes and Congress has provided. Screws v. United States, 325 US 91, 116-7 (1945) Mr. Justice Rutledge, concurring in the result. “It is not open to question that this statute is constitutional. . . [It] dealt with Federal rights and with all Federal rights, and protected them in the lump . . .” United States v. Mosley, 238 U.S. 383, 386, 387. Screws v. United States, 325 US 91, 119 (1945) Mr. Justice Rutledge, concurring in the result. Separately, and often together in application, §§ 19 and 20 have been woven into our fundamental and statutory law. They have place among our more permanent legal achievements. They have safeguarded many rights and privileges apart from political ones. Among those buttressed, either by direct application or through the general conspiracy statute, § 37 (18 U.S.C. § 88),[24] are the rights to a fair trial, including freedom from sham trials [including sham Collection Due Process Hearings] ; to be free from arrest and detention by methods constitutionally forbidden and from extortion of property [by threat of levy, lien, or lockdown letters] by such methods; from extortion of confessions; from mob action incited or shared by state officers; from failure to furnish police protection on proper occasion and demand; from interference with the free exercise of religion, freedom of the press, freedom of speech and assembly;[25] and 127*127 the necessary import of the decisions is that the right to be free from deprivation of life itself, without due process of law, that is, through abuse of state power by state officials, is as fully protected as other rights so secured. Screws v. United States, 325 US 91, 126-7 (1945) Mr. Justice Rutledge, concurring in the result. They simply misconceived that the victim had no federal rights and that what they had done was not a crime within the federal power to penalize.[30] That kind of error relieves no one from penalty. Screws v. United States, 325 US 91, 128 (1945) Mr. Justice Rutledge, concurring in the result.
12) It would seem that Ms Taamu has an affirmative defense, but the prosecutor and the city are still pursuing charges, so much so that in order to garner a case against Ms Taamu they dropped 3 gross misdemeanor charges against the states witness in exchange for testimony against Ms Taamu for 1 misdemeanor. Again in direct conflict with Rules 3.8 Also clearly showing the malicious intent with Ms Taamu is being charged. It should also be noted that Ms adams began her campaign against Ms Taamu on the same day she came to the Everett Municipal Court to request a hearing for those very same infractions.
6 Charges, 3 of dangerous dog running at large, 3 of failure to display license, amended to 3 counts of failure to display license on Mar/4/2011
RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
RCW 16.52.207
(4) In any prosecution of animal cruelty in the second degree under subsection (1) or (2)(a) of this section, it shall be an affirmative defense, if established by the defendant by a preponderance of the evidence, that the defendant's failure was due to economic distress beyond the defendant's control.
13) On numerous occasions Ms Adams sent numerous emails out about Ms Taamu and made hundreds of postings on craigslist about the case where she stated that Animal Control officers were sharing private information with Ms Adams, which were false, and as recently as the beginning of August Ms Adams went on another posting campaign against Ms Taamu releasing her private info, and court date, a behavior that seems to be instigated by the City of Everett and it's agents by further giving her information about Ms Taamu (Please note these are only 2 of the numerous emails that Ms Adams sent out to literally hundreds of people in the animal rescue networks and media) Defendant requests that Ms Adams craigslist account be subpeonaed as well and charges be brought against Ms Adams for Malicious harassment
(2) No state officer or state employee may make a disclosure of confidential information gained by reason of the officer's or employee's official position or otherwise use the information for his or her personal gain or benefit or the gain or benefit of another, unless the disclosure has been authorized by statute or by the terms of a contract involving (a) the state officer's or state employee's agency and (b) the person or persons who have authority to waive the confidentiality of the information.
(3) No state officer or state employee may disclose confidential information to any person not entitled or authorized to receive the information.
(4) No state officer or state employee may intentionally conceal a record if the officer or employee knew the record was required to be released under chapter 42.17 RCW, was under a personal obligation to release the record, and failed to do so. This subsection does not apply where the decision to withhold the record was made in good faith. [1996 c 213 § 4; 1994 c 154 § 105.]
RCW 9A.36.078 Malicious harassment — Finding.
The legislature finds that crimes and threats against persons because of their race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicaps are serious and increasing. The legislature also finds that crimes and threats are often directed against interracial couples and their children or couples of mixed religions, colors, ancestries, or national origins because of bias and bigotry against the race, color, religion, ancestry, or national origin of one person in the couple or family. The legislature finds that the state interest in preventing crimes and threats motivated by bigotry and bias goes beyond the state interest in preventing other felonies or misdemeanors such as criminal trespass, malicious mischief, assault, or other crimes that are not motivated by hatred, bigotry, and bias, and that prosecution of those other crimes inadequately protects citizens from crimes and threats motivated by bigotry and bias. Therefore, the legislature finds that protection of those citizens from threats of harm due to bias and bigotry is a compelling state interest.
The legislature also finds that in many cases, certain discrete words or symbols are used to threaten the victims. Those discrete words or symbols have historically or traditionally been used to connote hatred or threats towards members of the class of which the victim or a member of the victim's family or household is a member. In particular, the legislature finds that cross burnings historically and traditionally have been used to threaten, terrorize, intimidate, and harass African Americans and their families. Cross burnings often preceded lynchings, murders, burning of homes, and other acts of terror. Further, Nazi swastikas historically and traditionally have been used to threaten, terrorize, intimidate, and harass Jewish people and their families. Swastikas symbolize the massive destruction of the Jewish population, commonly known as the holocaust. Therefore, the legislature finds that any person who burns or attempts to burn a cross or displays a swastika on the property of the victim or burns a cross or displays a swastika as part of a series of acts directed towards a particular person, the person's family or household members, or a particular group, knows or reasonably should know that the cross burning or swastika may create a reasonable fear of harm in the mind of the person, the person's family and household members, or the group.
The legislature also finds that a hate crime committed against a victim because of the victim's gender may be identified in the same manner that a hate crime committed against a victim of another protected group is identified. Affirmative indications of hatred towards gender as a class is the predominant factor to consider. Other factors to consider include the perpetrator's use of language, slurs, or symbols expressing hatred towards the victim's gender as a class; the severity of the attack including mutilation of the victim's sexual organs; a history of similar attacks against victims of the same gender by the perpetrator or a history of similar incidents in the same area; a lack of provocation; an absence of any other apparent motivation; and common sense.
Date: Fri, 14 Jan 2011 11:13:13 -0800
From: stopanimalabuseandfraud@yahoo.com
Subject: Brandia Ta’amu/Fake Pet Rescuer/Does Not Have A 501(c)3/Frauding & Scamming For Money & Donations/All Her Animals Were Removed, by Everett Animal Control This Month!!!
To: animalcarenetwork@yahoogroups.com; information@popptricities.org; cascadeanimal@yahoo.com; melissa_companionanimal@hotmail.com; info@kindredsoulsfoundation.org; perrin@savinggreatanimals.org; spot@savingpetsoneatatime.org; violet@ucarerescue.com; sccpets@yahoo.com; drawashington@hotmail.com; info@vipp.org; dogs@vipp.org; sandjswanson@juno.com; info@paws.org; amy@seattlehumane.org; xol@drizzle.com; southsoundadoptions@gmail.com; vickijimniles@msn.com; dogfarm@gmail.com; andreanelson2005@yahoo.com; WECARE161@hotmail.com; angelahoschek@msn.com
Brandia Ta’amu came to stay at a friend’s home 32 days ago. She NEVER once let her animals out of her car the whole time she stayed there, even though she was asked over and over again to let the animals get out and exercise, and to come into the house. Brandia’s car stinks badly of cat urine, dog urine, and feces!! There are worms in her car all over, because her animals need to be treated, and they had Giardia too! When animal control came with several police cars there was NO WATER OR FOOD AVAILABLE FOR THE ANIMALS!!! Brandia claims you can not give them an endless supply of water, because they will pee all over her car. Animal Control of Everett recieved NUMEROUS COMPLAINTS. AC came with a search warrant, and took all her animals. Also, animal control displayed on their computer that Brandia has actually dumped off dogs at the Everett Animal Control. The last time which was two dogs, a Husky mix, and the other one said “Golden Lab/Retriever.
=====================================================================
From: roseandgeorge@hotmail.com
To: animalcarenetwork@yahoogroups.com; information@popptricities.org; cascadeanimal@yahoo.com; melissa_companionanimal@hotmail.com; info@kindredsoulsfoundation.org; perrin@savinggreatanimals.org; spot@savingpetsoneatatime.org; violet@ucarerescue.com; sccpets@yahoo.com; drawashington@hotmail.com; info@vipp.org; dogs@vipp.org; sandjswanson@juno.com; info@paws.org; amy@seattlehumane.org; xol@drizzle.com; southsoundadoptions@gmail.com; vickijimniles@msn.com; dogfarm@gmail.com; andreanelson2005@yahoo.com; wecare161@hotmail.com; angelahoschek@msn.com; betshar@fairpoint.net; rr_flores@comcast.net; outwestpetrescue@yahoo.com; thebigdogproject@yahoo.com; dogs@homewardpet.org; dmelsha@charter.net; rescue@cprgroup.org; toni@happytailsrescue.com; washingtonshepherds@yahoo.com; pattyk@folcas.org; jme@motleyzoo.org; marthalight@aol.com; sandy@animalnature.com; wigglesandwags@comcast.net; musicaldreams@gmail.com; dyarchak@q.com; camelot@gemsi.com; catherine.m.wilson@gmail.com; info@peopleunitedforpets.com; elleny@comcast.net; puglady@hotmail.com; nwinternationalpetrescue@gmail.com; shannon@loveamutt.org; lynn@loveamutt.org; cmanning23@comcast.net; crimis@msn.com; linda.logan@myquiznos.com
Subject: Why Brandia Taamu’s dogs & cats were taken!
Date: Sun, 16 Jan 2011 07:22:11 -0800
Anyone who has any questions about WHY Brandia Taamu’s dogs were taken by Everett Animal Control can call them, or they can call me at Ph# 425-750-7126, since they came to my house with a search warrant for Brandia Taamu’s car, and took her animals that were extremely dehydrated! By the way, they WERE NOT here for my animals, and I offered to let them look at my animals, but they were not interested they said there sole interest was in Brandia’s car, because of the NUMEROUS COMPLAINTS REGARDING BRANDIA TAAMU. Two days earlier, Animal Control was here to see Brandia, and Brandia REFUSED to let them see the animals in her car, which DID NOT have water then either, and as the woman was writing down Brandia’s plated number, Brandia floored it backwards down my long driveway almost running the AC officer down, and almost hitting my neighbors fence! My driveway curves, and is very long.
Brandia is lying to everyone saying she came to stay at my house…… on Christmas Day, and that is a lie. There are NUMEROUS witnesses that she has been here since December 12th, 2010 after she was evicted from her house. She refused to take her animals out of the car even when Sadie was not here for days on end, and was with my son at his dad’s. Those animals that Brandia had were suffering. Everett Animal Control had to call me the other day to tell me I have to take all my animals in to be checked, because Brandia’s animals all had Giardia & Worms. The dogs Brandia took to Christine’s (the Eskies) all had Giardia too! She took those dogs to Christine BEFORE she ever came to my house. Animal Control aslo said that the animal garbage which Brandia shoved under our car trailer, and has NEVER cleaned up, along with the blankets that were in her car, AND NOW ON OUR GROUND, that are covered in her dogs & cats urine & feces is CONTAMINATED WITH GIARDIA!!! I can not let my dogs in the front yard at all, because thanks to Brandia our ground is contaminated! Brandia has sent out numerous postings lying to everyone about WHY her animals were taken. They were not taken because she was homeless, which really is not true, because she has been with us since December 12th, when one of your fosters asked me to take her in. Her dogs and cats were taken because she NEVER IN 3 PLUS WEEKS LET THEM OUT OF HER CAR, AND THEY HAD NO WATER WHEN ANIMAL CONTROL SHOWED UP!!!
Also, remember that Animal Control DOES NOT take someone’s animals without evidence that they are abused or neglected! Brandia is facing criminal charges, for many reasons. BRANDIA TAAMU NEEDS TO TELL THE TRUTH!!!
Rose
14) Sharing of personal Information by a city, county or state employee is in direct conflict with numerous state and federal statutes as well
Prohibited acts.
(4) No municipal officer may disclose confidential information gained by reason of the officer’s position, nor may the officer otherwise use such information for his or her personal gain or benefit.
42.52.020
Activities incompatible with public duties.
No state officer or state employee may have an interest, financial or otherwise, direct or indirect, or engage in a business or transaction or professional activity, or incur an obligation of any nature, that is in conflict with the proper discharge of the state officer’s or state employee’s official duties.
42.52.050
Confidential information — Improperly concealed records.
(1) No state officer or state employee may accept employment or engage in any business or professional activity that the officer or employee might reasonably expect would require or induce him or her to make an unauthorized disclosure of confidential information acquired by the official or employee by reason of the official’s or employee’s official position.
(2) No state officer or state employee may make a disclosure of confidential information gained by reason of the officer’s or employee’s official position or otherwise use the information for his or her personal gain or benefit or the gain or benefit of another(3) No state officer or state employee may disclose confidential information to any person not entitled or authorized to receive the information.
15) Officer Ingrid Weaver either lied, or Ms Trask lied on a statement to the court saying that Ms Taamu's vet had been worried about her dogs for years, when in fact they had only been Ms Taamu's vet for several months. It is uncertain whether Officer Weaver made these statements as they were entered as hearsay into evidence by Off Trask. It should also be noted that the attorney of record has not attacked the statement as hearsay evidence.
False report.
Every public officer who shall knowingly make any false or misleading statement in any official report or statement, under circumstances not otherwise prohibited by law, shall be guilty of a gross misdemeanor.
42.20.050
Public officer making false certificate.
Every public officer who, being authorized by law to make or give a certificate or other writing, shall knowingly make and deliver as true such a certificate or writing containing any statement which he knows to be false, in a case where the punishment thereof is not expressly prescribed by law, shall be guilty of a gross misdemeanor.
RCW 40.16.030 Offering false instrument for filing or record.
Every person who shall knowingly procure or offer any false or forged instrument to be filed, registered, or recorded in any public office, which instrument, if genuine, might be filed, registered or recorded in such office under any law of this state or of the United States, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years, or by a fine of not more than five thousand dollars, or by both.
16) Malicious intent and prosecution under Color Of Law, is more than clear and supported by facts in evidence throughout statements 1 through 15. Malicious Prosecution is a waste of tax payer monies and a clear violation of Ms Taamu's rights as a Natural born citizen of these United States of America and the 14th amendment of these United States
Malicious prosecution.
Every person who shall, maliciously and without probable cause therefor, cause or attempt to cause another to be arrested or proceeded against for any crime of which he or she is innocent:
(1) If such crime be a felony, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years; and
(2) If such crime be a gross misdemeanor or misdemeanor, shall be guilty of a misdemeanor.
[2003 c 53 § 40; 1992 c 7 § 15; 1909 c 249 § 117; Code 1881 § 899; 1873 p 203 § 98; 1854 p 92 § 89; RRS § 2369.]
RCW 9A.36.080
Malicious harassment — Definition and criminal penalty.
(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:
(b) Causes physical damage to or destruction of the property of the victim or another person; or
(2) In any prosecution for malicious harassment, unless evidence exists which explains to the trier of fact's satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person's perception of the victim's or victims' race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap if the person commits one of the following acts:
This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state's ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) or (b) of this subsection.
(3) It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, or had a mental, physical, or sensory handicap.
(4) Evidence of expressions or associations of the accused may not be introduced as substantive evidence at trial unless the evidence specifically relates to the crime charged. Nothing in this chapter shall affect the rules of evidence governing impeachment of a witness.
(b) "Threat" means to communicate, directly or indirectly, the intent to:
(i) Cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) Cause physical damage immediately or in the future to the property of a person threatened or that of any other person.
(7) Malicious harassment is a class C felony.
(8) The penalties provided in this section for malicious harassment do not preclude the victims from seeking any other remedies otherwise available under law.
(9) Nothing in this section confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.
[2010 c 119 § 1; 2009 c 180 § 1; 1993 c 127 § 2; 1989 c 95 § 1; 1984 c 268 § 1; 1981 c 267 § 1.]
Notes: Severability -- 1993 c 127: See note following RCW 9A.36.078.
Construction -- 1989 c 95: "The provisions of this act shall be liberally construed in order to effectuate its purpose." [1989 c 95 § 3.]
Severability -- 1989 c 95: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 95 § 4.]
Harassment: Chapters 9A.46 and 10.14 RCW.
17) After 10 months the state is still with-holding critical evidence in regards to Ms Taamu's case, including pictures taken at the scene, which show her dogs, and the left rear side of her car, keeping in mind none of the pictures were date stamped as stated before and up til now Ms Taamu's defense has only received grainy poor quality black and white photo-copies, the vet records received were also of poor quality and cut and pasted out of chronologial order, the original color photo's and original vet as well as lab records were never given without which Ms Taamu has no defense nor would she have time to acquire an expert witness to even look at such faulty records.
Prosecutors have ethical and professional obligations to turn over exculpatory information to defendants pursuant to the rules of professional conduct. . Generally speaking, those ethical and professional obligations do not hinge on whether the information to be provided to defendants may be said to be “material” in any sense. Rule 3.8(d) of the Model Rules of Professional Conduct (the “Model Rules”) states that a prosecutor shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.” Although the Model Rules serve as guidance only, almost every state has adopted enforceable rules of professional conduct that are identical to or based upon the Model Rules. Failure of a prosecutor to abide by applicable ethical rules can result in a range of sanctions, including, in particularly egregious circumstances, disbarment.
The government has what is sometimes referred to as a “Super-Brady” obligation to disclose information “beyond that which is ‘material’ to guilt as articulated in Kyles v. Whitley (citations omitted)… and Strickler v. Greene (citations omitted). The government must disclose “information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime. This also requires disclosure of information that either casts a substantial doubt upon the accuracy of any evidence — including but not limited to witness testimony — the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.
18) This case is not about prosecution by any means necessary, and the prosecutor is failing to meet its most basic discovery obligations. The Supreme Court’s directed that a criminal trial is a search for the truth. This case is troubling in its failure to produce exculpatory evidence in violation of the law. In particular,
1) The 20 plus emails back and forth between Rose Adams and several of the EAS staff, law enforcement, as well as the prosecutor’s office and , along with all electronic communication as well as any communication made in writing
2) Lab results showing all of the results of any tests done on the dogs with the correct days this time please
3) A more descriptive explanation of what video taped audio taped and photographic evidence you are going to present as well as the originals for authentication. It is requested that Grant Fredricks do the authentication.. Again the attorney is NOT challenging any of this
4) All documents you plan on presenting in great detail- “Other tangible evidence” is vague and dangerous in that it leaves the door open for the state to introduce anything without giving Ms Taamu's defense an opportunity to review and prepare for it. We request a COMPLETE listing of what is described as “any other tangible objects” it is too vague and non descriptive. Also not being challenged by attorney
5) Rough notes by state agents memorializing converations with the complaining witness Rose Adams, Jennifer Speelmon, and Mike Zachman and original complaints whether in writng by phone message or by fax
6) Any and all communications between the prosecutor, Rose Adams, and any other witness, or complainant as well as the any and all communication between EAC and the prosecutors office, whether it be audio recordings or emails complete with time and date stamp verification
9) I requested a subpeona of Rose Adams Craigslist account to present the more than 100 ads she posted about me in a matter of days slandering me and defaming me.
10) The credentials as well as the names of your expert witnesses as previously requested by Defendant.
11) Disclosure of settlement with Rose Adams in regard to her pending animal control charges in relation to her testimony in my case. Disposition of the pending case in regards to the animal control matter and the final outcome and agreement.
12) An exact accounting of the costs of lab work, housing my animals, vet care, impound costs, cost of Necropsy, court costs per day per appearance, and an estimate of trial costs
13) Rough notes by state agents memorializing converations with the complaining witness Rose Adams
14) Detailed copy of Rose Adams entire criminal history, charges, dispositions and outcomes
The prosecution’s position seems to be that the virtue of its case sanctifies the means chosen to achieve conviction. This argument cannot prevail in a legal system that is designed to ensure fairness in the proceeding when each side follows the rules. Our confidence in the fairness of our system is rooted in the belief that our process is sound. Useful falsehoods are particularly dangerous in a criminal case, where the cost of wrongful conviction cannot be measured in the impact on the accused alone. Although the charge is only a misdemeanor it stands to destroy Ms Taamu's life work, reputation and may cost the lives of 1000's of animals a year.
Such tainted proof inevitably undermines the process, casting a dark shadow not only on the concept of fairness, but also on the purpose of the exercise of the coercive power of the state over the individual. No man should go free nor lose his liberty on the strength of false, misleading or incomplete proof.
To date, the prosecution has violated its constitutional obligations to the Defendant, the Rules of Criminal Procedure, and other U.S. and state authorities. Prosecutors have an affirmative duty to comply with the Constitution, the Rules of Criminal Procedure and orders from the court. That duty includes the affirmative responsibility to learn of any evidence favorable to the accused and to disclose such evidence in a timely manner so that it can be effectively used by the accused. The government has violated its solemn obligation and duty in this case by suppressing or withholding material proof pertinent to the credibility of its complaining witnesses and other information previously requested by Defendant.
This includes all information in any form, whether or not admissible, that tends to: (a) exculpate the Defendant; (b) adversely impact the credibility of prosecutor’s witnesses or evidence; (c) mitigate the offense; or (d) mitigate punishment.
19) If the Court does not grant Defendant’s motion to dismiss, namely, Defendant's requests that the government disclose “information that is inconsistent with any element of any crime charged against the Defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the Defendant for a charged crime. Defendant further moves for an order allowing a hearing on the credibility of Rose Adams
(a) Prosecuting Authority's Obligations.
(1) Except as otherwise provided by protective orders or as
to matters not subject to disclosure, the prosecuting authority
shall, upon written demand, disclose to the defendant the
following material and information within his or her possession
or control concerning:
(i) the names and addresses of persons whom the prosecuting
authority intends to call as witnesses at the hearing or trial,
together with any written or recorded statements and the
substance of any oral statements of such witnesses;
(ii) any written or recorded statements and the substance of
any oral statements made by the defendant, or made by a
codefendant if the trial is to be a joint one;
(iii) any reports or statements of experts made in connection
with the particular case, including results of physical or mental
examinations and scientific tests, experiments, or comparisons;
(iv) any books, papers, documents, photographs, or tangible
objects which the prosecuting authority intends to use in the
hearing or trial or which were obtained from or belonged to the defendant;
(v) any record of prior criminal convictions known to the
prosecuting authority of the defendant and of persons whom the
prosecuting authority intends to call as witnesses at the hearing or trial;
(vi) any electronic surveillance, including wiretapping, of
the defendant's premises or conversations to which the defendant
was a party and any record thereof;
(vii) any expert witnesses whom the prosecuting authority
will call at the hearing or trial, the subject of their
testimony, and any reports relating to the subject of their
testimony that they have submitted to the prosecuting authority;
(viii) any information indicating entrapment of the defendant;
(ix) specified searches and seizures;
(x) the acquisition of specified statements from the defendant; and
(xi) the relationship, if any, of specified persons to the
prosecuting authority.
(2) Unless the court orders otherwise, discoverable materials
shall be made available for inspection and copying within 21 days
of arraignment or within 21 days of receipt of the demand by the
prosecuting authority, whichever is later.
(3) Except as otherwise provided by protective orders, the
prosecuting authority shall disclose to defendant's lawyer any
material or information within his or her knowledge which tends
to negate defendant's guilt as to the offense charged.
(4) The prosecuting authority's obligation under this section
is limited to material and information within the actual
knowledge, possession, or control of members of his or her staff.
Spinelli V United States
20) It would seem that the court may have nothing better to do than to file frivolous Motions as evidenced by the prosecutions Motion in Limine by scanning Defendants on line blog, since it seems to be such a focus of the Prosecution we submit that if the charges are not dismissed that the whole blog be admitted into evidence, not just parts which have been taken out of context. Defendant stated she had offers from over 169 people to come to court, several days after she narrowed it down to 23 witnesses, several days later the prosecutor issued a Motion in Limine requesting she produce 169 people and parade each witness in front of the court. Again we are bordering on what looks like malicious prosecution. It can be shown that the City of Everett spends 20 to 70 hours a week, some evenings and weekends as well parked on Ms Taamu's web page and Ms Taamu's blog, at a cost to taxpayers of 2400.00 to 5600.00 per week and this has been a 40 week ordeal. Ms Taamu as trackers on both sites which record all visits, length, duration and navigational paths as well.
21) Next the court needs to address the issue of the absolute denial and deprivation of Ms Taamu's right to worship in the manner to which she is accustomed to in regards to the death and desecration of her dog an American Eskimo named George, by losing and or refusing to return his body and by disemboweling him and parading his vital organs around and putting post-it notes all over his internal organs further demeaning his existence when a simple blood test would've confirmed the findings of Lymphoma, the City chose to do otherwise in direct violation of the American Indian Religious Freedom Act
Joint Resolution American Indian Religious Freedom.
Whereas the freedom of religion for all people is an inherent right, fundamental to the democratic structure of the United States and is guaranteed by the First Amendment of the United States Constitution;
Whereas the United States has traditionally rejected the concept of a government denying individuals the right to practice their religion, and as a result, has benefited from a rich variety of religious heritages in this country;
Whereas the religious practices of the American Indian (as well as Native Alaskan and Hawaiian) are an integral part of their culture, tradition, and heritage, such practices forming the basis of Indian identity and value systems;
Whereas the traditional American Indian religions as an integral part of Indian life, are indispensable and irreplaceable;
Whereas the lack of a clear, comprehensive, and consistent Federal policy has often resulted in the abridgment of religious freedom for traditional American Indians;
Whereas such religious infringements result from the lack of knowledge of the insensitive and inflexible enforcement of Federal policies and regulations premised on a variety of laws;
Whereas such laws were designed for such worthwhile purposes as conservation and preservation of natural species and resources but were never intended to relate to Indian religious practices and, there, were passed without consideration of their effect on traditional American Indian religions;
Whereas such laws and policies often deny American Indians access to sacred sites required in their religions, including cemeteries;
Whereas such laws at times prohibit the use and possession of sacred objects necessary to the exercise of religious rites and ceremonies;
Whereas traditional American Indian ceremonies have been intruded upon, interfered with, and in a few instances banned;
Now, therefore, be it Resolved by the Senate and the House of Representatives of the United States of American in Congress Assembled, That henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
SEC. 2. The President shall direct that various Federal departments, agencies, and other instrumentalities responsible for the administering relevant laws to evaluate their policies and procedures in consultation with Native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices. Twelve months after approval of this resolution, the President shall report back to Congress the results of his evaluation, including any changes which were made in administrative policies and procedures, and any recommendations he may have for legislative action.
Approved August 11, 1978
22) With respect to the taking of Ms Taamu's Therapy and Service dog, the officers were told that day that that is what they were as was the interim shelter manager Shannon Delgado. The only purpose that seemed to serve was to inhibit Ms Taamu's ability to negotiate in the world around her. The taking of these 2 animals is in direct violation of the Americans With Disabilities Act and has been more than an minor detriment to Ms Taamu's well being, health, safety and comfort, again amounting to Cruel and Unusual Punishment and in direct with Washington state and Federal laws. It is well known that Ms Taamu is autistic, has extreme Agoraphobia, because of almost being murdered in 2001 and in the past had a stroke and still needs help with balance and movement and has seizures, as well as being Bi-Polar. Soffia her Schanuzer is Ms Taamu's lifeline to a world outside as a Therapy dog, and Hoki her Kelpie was a service dog and a seizure alert dog, possibly because of the seizures he has himself. Just the fact that Ms Taamu has overcome her fears to venture out more than 40 times to secure the safety and well being and to fight for her dogs speaks volumes about her level of dedication and love for them.
23) Next we must address the abuse that Ms Taamu's animals have suffered as a result of their impoundment and seizure. George, Ms Taamu's terminally ill dog was not allowed any dignity in death and instead sat in a shelter in his final hours alone and afraid. Most troublesome is the fact that Ms Taamu's animals were seized at approximately 10 a.m. But never made it to the shelter until 4:40p.m. At which time Soffia was reported as bloody, missing teeth and hypothermic, when she left Ms Taamu's care she was warm dry, not bleeding and had all of her teeth. Hoki Ms Taamu's Kelpie was reported as in full throes of seizures yet was denied vet care til the following day. Geroge, Ms Taamu's terminally ill Eskimo was reported as bleeding from his rectum and unable to walk. Furthermore because of the shoddy vet records and scant lab results that were received, all we can surmise is that on 5/21/2011 Hoki was reported as having tapeworms and on 3/29/2011 Libby, Ms Taamu rescued Pomeranian also was reported as having Tapeworms, a condition caused by fleas when the dogs did not have fleas when they were taken, as a result Libby is allergic to fleas and had another skin outbreak and was given medications that are known to be deadly and is reported as lethargic and agitated and throwing up. Any vet that has any knowledge of dogs knows full well that Australian Shepherds, Border Collies and few other working breeds have an MDR1 gene, yet Ms Taamu's Toy Aussie Misty was given Selemectrin in the form of Revolution which is a derivative of Ivermectin known to be deadly to these breeds of dogs. Ms Taamu's cat was listed as having Giardia on the 20th of January but no lab results for any such thing for any of Ms Taamu's animals have been produced from Phoenix labs or any other lab, it should be noted that Jan,20th was the last time Ms Taamu has any reference on her cat. It has also come to our attention that Officers Ingrid Weaver and Lori Trask are dispensing and administering medications to Ms Taamu's animals directly in violation of RCW 18.92 We would request that a full scale investigation into the practices of the Everett Animal Control by the appropriate agencies be instigated as well. Or we will instigate the investigation ourselves. At this point from what we can gather from the scant vet records that aren't even in chronological order, it would seem as though the Everett Animal Control is now in violation of 16.52 as well. To take warm safe healthy dry animals and bring them to the shelter 7 hours later bleeding from the rectum, hypothermic, unable to walk in medical distress, missing teeth and obviously bloody is considered abuse at it's worst. The claims that Ms Taamu's dog Soffie was matted and her mats were filled with feces and that her fur was urine stained is absolutely ridiculous and baseless and unlike the Everett Animal Control Ms Taamu has pictures of Soffie that are date stamped of her right before the raid showing otherwise. She most certainly was not bloodied or missing teeth. It will also be shown by the vet records that no one seemed to have any idea what was going on with any of the animals as many are listed as the wrong sex, and all are listed at the wrong ages, some by 4 yrs or more. Ms Taamu's animals have had MORE outbreaks of unknown diseases, parasites, tapeworms, fleas, giardia, and injuries in the last year then have had in their lives and they are rescue dogs and puppy mill dogs just recently on 8/11/2011 Soffia was brought in for “lacerations” to what or where is unknown, there is no report of what caused the injuries or how severe they were, but Ms Taamu's animals have CONTINUED to suffer at the hands of Everett Animal Control and the Everett Animal Shelter. We would ask the court to justify how taking the animals has been ANY better for their safety than them being in the custody of the city
Judicial Misconduct
24) Upon further examination of the Everett Municipal Code there are several other matters which are unethical, illegal and unconstitutional as well. Municipal Code can NOT be more restrictive than state law. The premise that Defendant's animals were removed for was that Defendant did not have a CONSTANT source of water for the animals, which would not have been feasible in Defendant's situation at that time, bordering on economic discrimination to which a homeless defense would prevail.
Citation: WA ST 35.27.370 Citation: West's RCWA 35.27.370
This Washington statute provides that the council of said town shall have power to pass ordinances NOT IN CONFLICT with the Constitution and laws of this state, or of the United States. Specifically, the council may regulate, restrain, or prohibit the running at large of any and all domestic animals within the city limits, or any part or parts thereof, and to regulate the keeping of such animals within any part of the city; to establish, maintain and regulate a common pound for estrays, and to appoint a poundkeeper, who shall be paid out of the fines and fees imposed on, and collected from, the owners of any impounded stock.
Statute in Full:
The council of said town shall have power:
(1) To pass ordinances NOT IN CONFLICT with the Constitution and laws of this state, or of the United States;
(16) To make all such ordinances, bylaws, rules, regulations and resolutions not inconsistent with the Constitution and laws of the state of Washington, as may be deemed expedient to maintain the peace, good government and welfare of the town and its trade, commerce and manufacturers, and to do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter.
Everett Municipal Code
6.04.070 Prohibited conduct.
C. Offenses Relating to Cruelty. It shall be unlawful for any person to:
2. Under circumstances not amounting to first degree animal cruelty as defined in RCW 16.52.205,
fail to provide an animal with sufficient good and wholesome food and a constant source of clear
potable water, proper shelter and protection from the weather, veterinary care when needed to prevent
suffering, and with humane care and treatment;
Revised Code of Washington RCW 16.52.310
(d) Provide dogs with easy and convenient access to adequate amounts of clean food and water.
Food and water receptacles must be regularly cleaned and sanitized. All enclosures must contain
potable water that is not frozen, is substantially free from debris, and is readily accessible to all
dogs in the enclosure at all times.
The Everett Municipal Code is in direct conflict with the Revised Code of Washington
25) EMC states that an animal may be euthanized immediately at the shelters discretion, RCW 16.52.085 (4) states nearly the same but prescribes remedies which are available when proper notice is given, which was never the case nor was it required in Ms Taamu's case according to Everett Municipal Code. Further RCW 16.52.210 clearly states an owner must be notified and prudence used in the process which was never the case, as a matter of fact the euthansia of one of her animals was withheld for several weeks and the body of said animal has supposedly been lost. It should be noted that when Defendant called the shelter after finding out her animals had been euthanized, she was laughed at by the acting manager Shannon Delgado, which was cruel and unusual, and unbecoming a public servant. Again showing the malicious intent with which Ms Taamu has always been treated by Everett Animal Services
RCW 16.52.085(4) The agency having custody of the animal may euthanize the animal or may find a responsible person to adopt the
animal not less than fifteen business days after the animal is taken into custody. A custodial agency may euthanize severely injured, diseased, or suffering animals at any time. An owner may prevent the animal's destruction or adoption by: (a) Petitioning the district court of the county where the animal was seized for the animal's immediate return subject to court-imposed conditions, or (b) posting a bond or security in an amount sufficient to provide for the animal's care for a minimum of thirty days from the seizure date.
RCW 16.52.210
Destruction of animal by law enforcement officer — Immunity from liability.
This chapter shall not limit the right of a law enforcement officer to destroy an animal that has been seriously injured and would otherwise continue to suffer. Such action shall be undertaken with reasonable prudence and, whenever possible, in consultation with a licensed veterinarian and the owner of the animal.
Law enforcement officers and licensed veterinarians shall be immune from civil and criminal liability for actions taken under this chapter if reasonable prudence is exercised in carrying out the provisions of this chapter.
26) The taking, conversion, killing and secreting of my property and animals amounts to a direct violation of RCW9.08.070.1(a)(c)
(1) Any person who, with intent to deprive or defraud the owner thereof, does any of the following shall be guilty of a gross misdemeanor punishable according to chapter 9A.20 RCW and by a mandatory fine of not less than five hundred dollars per pet animal, except as provided by subsection (2) of this section:
(a) Takes, leads away, confines, secretes or converts any pet animal, except in cases in which the value of the pet animal exceeds two hundred fifty dollars;
(c) Willfully or recklessly kills or injures any pet animal, unless excused by law.
(2) Nothing in this section shall prohibit a person from also being convicted of separate offenses under RCW 9A.56.030, 9A.56.040, or 9A.56.050 for theft or under RCW 9A.56.150, 9A.56.160, or 9A.56.170 for possession of stolen property.
[2003 c 53 § 9; 1989 c 359 § 2; 1982 c 114 § 1.]
27) There is also the matter of Judge Mitchell pronouncing me guilty at the custody hearing on April,21st,2011, where he stated to Defendant in an open court “You abused your animals so I think that the City of Everett Shelter knows what's best for them” which is recorded and memorialized for the courts to hear. When Defendant demanded to know if he has already convicted and pronounced guilty he refused to answer Defendant, but his statement and then his silence spoke his answer immeasurably. Then at a recent hearing for Discovery the Judge again made a statement that “The blood tests said the animals were all in horrible condition” at a discovery to get the lab results, vet records ie; blood tests, the attorney of record knew nothing of this, which means that the prosecutor and the Judge in this case are having ex-parte communications involving Ms Taamu's case and at the very point that the judge proclaimed Defendant guilty he should have stepped down, not only as a matter of law but as a matter of morality.
II Summary
Defendant has been denied the most basic of human and Constitutional rights and has suffered tremendous loss of life, and liberty at the hands of a Government entity that has little to no regards for the law. Defendant has submitted 5 other Motions which have largely been ignored or dismissed, she has not been afforded the right to defend herself by the Everett Animal Shelters procedure's and policies, and by the courts. The wanton disregard for the law, and Defendant's rights as a natural born citizen of these United States of America is abhorrent at best, criminal in the least. Every motion, every denial of rights, every violation of rights flies in the face of the laws and tenets that this country was founded on. Though the Officers of the Court may have no regards for the Defendant's rights, nor the laws of the land: the truth remains that you are in fact bound by them and you are merely granted your very existence by those very same power which you so mightily disregard. To date discovery in this case has been withheld thereby denying Defendant any ability to secure an expert witness, again we sit 2 days before trial and without needed evidence to defend the Defendant. Also to date within all of our research we have never seen a misdemeanor case warrant this strenuous of an effort in man hours, tax payers monies, administrative costs, hours spent perusing the web hanging on Ms Taamu's every word even on days when my Taamu is not blogging, perhaps the taxpayers may be better served by the City concentrating on cases merit this much money and detail. Or would the courts believe they merely have only 1 Defendant in the City which they are prosecuting? Through a informal accounting of court costs for over 38 court appearances, numerous filings, man hours, and administrative costs, the City has invested between $243,000.00 and $438,000.00 to prosecute a misdemeanor in the face of a 1 million dollar budget shortfall, for which the highest penalty would be 1,000.00 and not more than 90 days in jail. The Defendant would like an accounting of how the ends justify the means. More importantly an accounting to the tax paying citizens of the City of Everett who are being denied basic human services, yet a quarter to a half of a million dollars can be spent on a misdemeanor. To date the city has only set aside a budget of 349K for community services and 428K for senior services. Don't the courts and city administration believe the interest of the community could have been better served by putting the money spent on this case towards better human services so that Ms Taamu may not have been temporarily homeless in the first place, like so many others in this economy. A case of a woman sleeping in her car temporarily so she wouldn't have to give up her senior & terminally ill animals, who had YEARS of vet records, to prove she had always provided vet care for them, has taken on a life of it's own costing tax payers valuable life saving services & denying it's citizens access to services they have paid for to pursue a frivolous malicious prosecution of Ms Taamu, when it was known that Ms Taamu's home became available 8 days after the animals were taken, at which time they should have been returned, but they couldn't be because Ms Taamu would have seen all of the OBVIOUS injuries on them and could have instigated further proceedings against the city.
III MEMORANDOM OF AUTHORITIES
COMES NOW Defendant Brandia P. Taamu, and moves to dismiss the information in this case against her and to return defendant's pets to her. Alternatively, defendant requests that EMC 6.04 be declared unconstitutional and that all evidence derived from the unlawful search and seizure under EMC 6.04 be suppressed in this matter. Defendant's motion is based upon RCW 16.52.085 (WA Feeding and Care statute); EMC 6.04, the Fourteenth Amendment, Washington State Constitution, Mathews v. Eldridge, 424 U.S. 319 (1976), the attached memorandum, other authorities, and the records and files herein.
MEMORANDUM OF AUTHORITIES
Defendant Brandia Taamu's ownership interest in the pets seized from her by the City of Everett and its impound agent is a protected property interest under the Fourteenth Amendment. Logan, 455 U.S. at 434, 102 S. Ct. at 1156. “The State may not destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.” Goss v. Lopez, 419 U.S. 565, 579,
95 St. Ct. 729, 738 (1975). Due process requires some kind of notice and some kind of hearing. A pre-deprivation hearing is not required in all circumstances, however. For example, where the State must of a necessity act quickly. This was not the case here. Or, where the degree of deprivation is not serious. Also, this was not the case here. Ms. Taamu was never given the required notice of seizure by the City of Everett impounding officer, and her legal remedies to petition the District Court for return of her animals and/or to determine the reasonableness of boarding fees.
The Mathews test is often used to determine what kind of process is required. Mathews v. Eldridge, Id. See, also Mansour v. King County, 128 P.3d 1241 (Wash. App. Div. 1 2006)
There can be no dispute than an animal owner has a substantial interest in maintaining his rights to a seized animal, whether monetary or in the form of companionship. In this case, there is a risk that the owner will suffer a permanent and wrongful deprivation of his rights under a system and a City of Everett ordinance that does not provide for any notice of seizure or legal remedies to the owner for such confiscation, hearing or redemption process. Requiring the City of Everett to provide notice of seizure and legal remedies available to owner, and the opportunity for a hearing on the seizure predeprivation or post-deprivation, is not a significant burden.
It is the City of Everett's custom and practice under its animal ordinances to not provide a notice of seizure and legal remedies to owner, or a pre-deprivation or post-deprivation hearing concerning the owner's property interests in pets and perhaps disposal of them. The City of Everett ordinances must provide an owner notice of seizure under RCW 16.52.085 and his or her legal remedies, as follows ... :
(3) Any owner whose domestic animal is removed pursuant to this chapter shall be given written notice of the circumstances of the removal and notice of legal remedies available to the owner. The notice shall be given by posting at the place of seizure, by delivery to a person residing at the place of seizure, or by registered mail if the owner is known. In making the decision to remove an animal pursuant to this chapter, the officer shall make a good faith effort to contact the animal's owner before removal.
(4) The agency having custody of the animal may euthanize the animal or may find a responsible person to adopt the animal not less than fifteen business days after the animal is taken into custody. A custodial agency may euthanize severely injured, diseased, or suffering animals at any time. An owner may prevent the animal's destruction or adoption by: (a) Petitioning the district court of the county where the animal was seized for the animal's immediate return subject to court-imposed conditions, or (b) posting a bond or security in an amount sufficient to provide for the animal's care for a minimum of thirty days from the seizure date. If the custodial agency still has custody of the animal when the bond or security expires, the animal shall become the agency's property unless the court orders an alternative disposition. If a court order prevents the agency from assuming ownership and the agency continues to care for the animal, the court shall order the owner to renew a bond or security for the agency's continuing costs for the animal's care. When a court has prohibited the owner from owning or possessing a similar animal under RCW 16.52.200(3), the agency having custody of the animal may assume ownership upon seizure and the owner may not prevent the animal's destruction or adoption by petitioning the court or
posting a bond.
(5) If no criminal case is filed within fourteen business days of the animal's removal, the owner may petition the district court of the county where the animal was removed for the animal's return. The petition shall be filed with the court, with copies served to the law enforcement or animal care and control agency responsible for removing the animal and to the prosecuting attorney. If the court grants the petition, the agency which seized the animal must deliver
the animal to the owner at no cost to the owner.
Under state law, the City of Everett ordinances must provide for notice and a swift postdeprivation hearing on the seizure of owner's pets and impound for feeding, care and examination. Under Washington statutes, the person whose property was seized with or without a warrant may petition for its return in the District Court for the county in which the property was seized, as above. Defendant has filed such a petition despite any lawful lack of notice by the City of Everett to Defendant at the time of seizure of her pets. Defendant has also repeatedly been denied a postdeprivation hearing and due process by the City of Everett when she has filed petitions to return her animals in municipal, district and superior courts in the City of Everett and Snohomish County.
The ownership rights of the defendant Ms. Taamu were terminated by the seizure, the animals have apparently been treated as strays by the City and placed in foster care or have been put up for adoption, and/or were otherwise disposed of. One aged pet animal of defendant, “George”, who passed away from cancer after being impounded in the City Shelter, was outrageously necropsied, dissected, body parts tagged, photographed, and his body then misplaced or lost by City of Everett veterinarian or employees causing great emotional distress to the Defendant. Defendant, who held an important property interest in George's body, as well as her Native American belief and custom that George's body not be desecrated in such a way and received a respectful burial, has been damaged as a result of these unreasonable and incomprehensible actions by the City of Everett. The City of Everett has failed to provide Defendant with due process prior to, or following, each of these deprivations of property in the sentient property of Ms. Taamu.
Defendant alleges that the City of Everett animal ordinances that provide for seizure of an animal of an owner denied defendant due process of law because the ordinances did not provide for notice of seizure and her legal remedies, or a hearing pre- or post-deprivation in compliance with
Washington state law, federal and state constitutions, and other authorities. Neither did the City of Everett provide Ms. Taamu with any lawful notice. Due process requires that an owner have notice and the opportunity to be heard prior to or after seizure and/or destruction of a dog. Fuentes v. Shevin (1972) 407 U.S. 67, 81-82, 92 S.Ct. 1983, 1994-1995, 32 L.Ed.2d 556.
Procedural due process imposes constraints on governmental decisions depriving individuals of liberty or property interests. Mathews v. Eldridge (1976) 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18. Dogs, being personal property and having economic value, are also included within its reach. Aside from their economic value, however, "... it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will
be more keenly felt." Phillips v. San Luis Obispo County Dept., California 228 Cal.Rptr. 101 Cal.App.
(2 Dist.,1986) cf Johnson v. McConnell (1889) 80 Cal. 545, 549, 22 P. 219. “We recognize that the bond between pet and owner often runs deep and that many people consider pets part of the family.” Mansour v. King County, supra.
When it is acting in an official capacity, a quasi-public organization such as a humane society is subject to the same constitutional requirements as any other government agency. That means it must respect dog owners' due process rights, discussed above. Procedural due process requires a two-step analysis. First, whether the plaintiff was deprived of a constitutionally protected interest in life, liberty, or property. If he was, we then determine what process he was due with respect to that deprivation. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). What process is required in a particular context or a given set of circumstances depends upon balancing the factors laid out in Mathews v. Eldridge: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail. Mathews, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In this case, Ms. Taamu could not even inspect her own animals after seizure and impound or have her own veterinarian examine her pets' physical condition, timely following their seizure by the City of Everett. Defendant was not permitted access to her pets while in the City of Everett impound facility. Therefore, due to this obstruction, Ms. Taamu cannot effectively dispute some of the County's evidence that it has produced with respect to the condition of her pets after they were seized and impounded, or to impeach or rebut the inculpatory statements of certain humane officers.
Prior to applying the Mathews balancing test to the case at hand, it is important to understand the exact nature of Ms. Taamus's procedural due process claims. Ms. Taamu has two types of procedural due process claims.
In the first , Ms. Taamus challenges the constitutional adequacy of an established City procedure. See, e.g., Logan, 455 U.S. at 436, 102 S.Ct. at 1158. In the second type, Ms. Taamu's challenge focuses on a city official's failure to provide the plaintiff the process he was due under the circumstances of the search and seizure. See, e.g., Zinermon v. Burch, 494 U.S. 113, 117, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990). Consistent with Ms. Taamu's allegation that it is the City's custom or policy not to provide an owner notice or an opportunity for a hearing prior to or post-seizure of the owner's pets terminating the owner's property interest in animals and disposing of them; this claim is a challenge to established City of Everett procedure.
Ms. Taamu's "Second Claim for Relief," concerning the alleged conspiracy
between Animal Control Officer Trask, City of Everett law enforcement, and the Everett courts to violate Ms. Taamu's due process rights by not providing her notice of seizure, her legal remedies or an opportunity to petition for a hearing, involves a challenge to the inadequacy of the process provided by those officials.
It is only logical to determine what state law authorizes in the form of established procedure before determining whether the city officials failed to provide an individual with the process he was due. See, e.g., Zinermon, 494 U.S. at 136, 110 S.Ct. at 989 (state officials violated due process where they failed to provide hearing and state law provided them "broadly delegated, uncircumscribed power
to effect the deprivation at issue"). Notice and a hearing provide the owner with the opportunity to challenge the legality of the original seizure of his animal, as well as the validity of any costs the state is attempting to assess for the seizure and care of the animal(s). Requiring that the City provide notice, legal remedies, and an opportunity for a hearing post seizure or terminating an owner's
interest is not a significant burden. We next consider whether established City procedure authorized the process the Constitution requires. Ms. Taamu alleges that the City of Everett has a custom or policy of not providing an owner notice or an opportunity for a hearing after seizing his/her property, and before terminating her property interest and disposing of her animals. Defendant's challenge is that established Everett municipal procedure for seizure failed to provide for notice of seizure, legal remedies, and/or an opportunity for a hearing. Ms. Taamu argues that several provisions in the Washington state statutes require that the City
of Everett provide an owner the opportunity for notice following seizure, legal remedies, and a hearing post seizure and prior to terminating her rights in his animals. The Everett Municipal statutes are silent on this point, and therefore the City has a custom or policy of not providing an opportunity for a hearing. Should there be an absence of a formal requirement that the City provide an opportunity for notice and a hearing in an ordinance, the City's custom of not doing so would translate into an informal but established City procedure. See Monell, 436 U.S. at 695, 98 S.Ct. at 2037-38; Easter House, 910 F.2d at 1403.
On its face, EMC Title 6.04 et seq. and the City's custom and practice does not provide an owner with a notice of seizure, his/her legal remedies, or a hearing to challenge the legality of the seizure or the reasonableness of incurred boarding expenses. Or, whether the owner is able to care properly for her own animals after a determination by her own veterinarian at the time of impound.
EMC Title 6.04 requires that the owner "pay the expenses incurred" in order to redeem his animal.
6.04.090 Shelter operation—Impoundment procedures—Release and disposal.
A. The manager shall operate, maintain or provide an adequate facility to receive and care for any animal delivered to his/her custody for disposition under provisions of this chapter, which facility shall be accessible to the public during reasonable hours for the conduct of necessary business concerning impounded animals.
B. Any animal may be impounded and held at the shelter when it is the subject of a violation of this chapter, when an animal requires protective custody and care for mistreatment or neglect by its lawful owner, or when otherwise ordered impounded by a court.
C. An animal is deemed to be impounded from the time the manager or his designee, including Everett police personnel and contracted agents such as on-call veterinarian hospitals, takes physical custody of such animal.
D. The manager or any animal control officer or police officer may enter the private unenclosed property of another, with or without warrant, when in hot pursuit, to take possession of any animal observed at large.
E. Any person who finds and harbors a dog or cat, which is not lawfully their property and/or without knowing the animal owner’s identity, shall notify the animal control shelter and furnish a description of the animal. The finder may surrender the animal to the animal control shelter or retain its possession, subject to demand of the manager of animal control. Records of reported findings shall be retained by the manager and made available to public inspection. Any finder, in addition to reporting as provided in this section, shall, within seven days of the finding, cause to be published in a newspaper of general circulation, once each week for two consecutive weeks, notice of the finding with description of the
animal. If, within thirty days of the finding report made to animal control, no person makes claim upon the finder for return of the animal, the finder who retains possession shall obtain a license as required in this chapter and thus shall become the legal owner.
F. Impoundment is subject to the following holding period and notice requirements:
1. Any animal wearing a current license tag from a jurisdiction within the state shall be held for one hundred forty-four hours (six days) from time of impoundment; the impounding officer shall make reasonable effort by telephone to give notice of impoundment to the owner and, if unsuccessful, shall mail written notice to the last known address of the owner advising of the impoundment and the date by which redemption must be made.
2. Any animal not wearing a current license shall be held for seventy-two hours (three days) from time of impoundment before any disposition may be made of such animal.
3. Litters of kittens and puppies, brought in as abandoned, may be disposed of immediately upon custody, at the discretion of the manager.
4. Animals held for periods prescribed in this section, and not redeemed
by the owner, shall become the property of the city.
5. Animals delivered for impoundment by a peace officer who aremoved such animal from possession of a person in custody of the peace officer shall be held for the period prescribed in subsection (F)(1) of this section.
G. Impoundment and Disposition of Animals.
1. Any impounded animal shall be released to the owner upon payment of impoundment, care and license fees unless in the discretion of the manager or his/her designee there is an ongoing investigation of a violation of this chapter or state law. The manager or his/her designee may release the animal to the owner’s authorized representative; full identification of the owner and their authorized representative must be provided to animal control prior to release.
2. Notwithstanding the provisions of subsection (G)(1) of this section, no impounded animal shall be released to the owner until the owner establishes that any penalties, fines or forfeitures owed by the owner for violation of this chapter have been satisfied.
3. Any animal held for the prescribed period and not redeemed by its owner, and which is neither dangerous nor unhealthy, may be released for adoption, subject to the following conditions:
a. The adoptive owner agrees to furnish proper care to the animal in accord with this chapter;
b. Payment of required fees, including any medical care costs incurred during impoundment; and
c. All animals will be altered (i.e., spayed or neutered) prior to completion of the adoption process. This includes receipt of all applicable fees
b. This annual fee shall reflect all costs to operate the Everett animal shelter, calculated over a twelve-month period, starting on July 1st, and ending June 30th, each year.
9. Fees imposed under this section include all applicable taxes. (Ord.2799-04 § 1, 2004; Ord. 2684-03 § 4, 2003: Ord. 2394-99 § 8, 1999: Ord.1810-91 § 10, 1991)
6.04.110 Administration and enforcement by manager.
A. It is the responsibility of the manager of Everett’s department of animal control and those he/she designates to enforce the provisions of this chapter.
B. The manager may promulgate such rules and regulations as deemed necessary to implement, administer and enforce provisions of this chapter.
C. The manager shall be empowered to exercise the authority of peace officers to extent necessary to enforce this chapter, which powers shall include issuance of citations, seizure and impoundment of animals subject to this chapter, including pursuit onto city-owned property, vacant property and unenclosed private property and subsequent impoundment.
D. Persons designated by the manager to enforce this chapter shall bear satisfactory identification reflecting the authority under which they act, which identification shall be shown to any person requesting the same.
E. The manager may waive any of the standards for licensing of facilities as he/she deems appropriate to meet peculiar requirements of a particular breed of animal.
F. The manager shall be authorized to reduce or waive any fee prescribed by this chapter except those related to licensing. (Ord. 1810-91 § 11,1991)
Title 6.04.070
....
C. Offenses Relating to Cruelty. It shall be unlawful for any person to:
....
10. Under circumstances not amounting to first degree animal cruelty as defined in RCW 16.52.205, confine an animal within or on a motor vehicle at any location under such conditions as may endanger the health or well-being of the animal, including but not limited to extreme temperatures, lack of food or water, or confinement with a dangerous animal. Any animal control or peace officer is authorized to remove any animal from a motor vehicle, at any location, when he/she reasonably believes it is confined in such conditions as described above. Any animal so removed shall be delivered to the animal control shelter after the removing officer leaves written notice of such removal and delivery, including the officer’s name, in a conspicuous, secure location on or within the vehicle;
The Everett Municipal Ordinances under Title 6 above do not include any language from which we could infer that the ordinances authorize officials to provide an opportunity for a hearing t o challenge the legality of the seizure, or the reasonableness of the boarding charge.
Finally, defendant argues that RCW 16.52.085 et seq., which provides that a person whose property was seized with or without a warrant may “Petition” for its return in the District Court for the county in which the property was seized, gave the City of Everett authority to provide Ms. Taamu with opportunity for notice of the seizure, her legal remedies, and right to petition for the animals return through a hearing to contest the seizure. This statute relates to the City's seizure and/or disposal of animals seized on the basis of neglect. RCW 16.52.085 purports to establish procedural safeguards for the City's determination of an owner's rights in his pets.
Thus, state statute can be interpreted as requiring the City of Everett municipal ordinances to provide for notice and an opportunity for a hearing following seizure to determine defendant's property interest in his seized animals, reasonableness of boarding charges, and possible termination of defendant's property interest. However, the City of Everett ignored this procedure, denying defendant
appropriate due process safeguards.
In this case, Defendant Ms. Taamu is left with the conclusion that the City of Everett ordinances under Title 6.04 et. seq., under which Ms. Taamu's pets were seized and the information was filed, fails to require that animal owners be provided notice of seizure, his/her legal remedies concerning such a
seizure, and an opportunity to “Petition” and have a hearing to determine ownership rights, boarding fees, condition of the pets at seizure and impound, whether the owner or a representative can adequately care for the animals, etc.
Because an animal owner is entitled to a pre-deprivation and post-deprivation hearing and because Ms. Taamu alleges that the City of Everett has an informal, established procedure of deprivation without providing the opportunity for notice and a hearing, Ms. Taamu respectfully requests that the City of Everett ordinance under which she was searched and her pets seized be declared unconstitutional. It does not comply with state law and procedural due process safeguards.
Ms. Taamu further requests that this court invalidate the search and seizure upon which the information filed against defendant was premised due to the unconstitutionality of statutes under which a warrant was issued and property was seized. Alternatively, Ms. Taamu requests that all evidence flowing from this unconstitutional search and seizure be suppressed as Ms. Taamu has a viable due
process claim of an inadequate, established procedure by the City of Everett as a result of the unconstitutionality of EMC 6.04 et seq.. There is no pre- or post-deprivation safeguard – in fact it is negligible in preventing the kind of deprivation at issue. The Everett animal impound ordinances fail to adequately define the scope of a humane officer's enforcement powers - with an ambiguous and
unconstitutional grant of authority. Carrera v. Bertaini, 63 Cal.App.3d 721, 134 Cal.Rptr. 14, concerned an ordinance and penal code section permitting the impoundment and sale of neglected farm animals. The court declared the
ordinance invalid because it failed to provide reasonable notice and a hearing either before or after seizure: "As a matter of basic fairness, to avoid the incurrence of unnecessary expenses appellant was entitled to a hearing before her animals were seized or, if the circumstances justified a seizure without notice and a hearing, she was entitled to a prompt hearing after the animals were seized." Carrera, 63 Cal.App.3d 721, 729, 134 Cal.Rptr. 14. See also Anderson v. George (1977) 100W.Va. 76, 233 S.E.2d 407, 409 invalidating seizure, without notice or hearing, of abandoned or neglected animals .
The City of Everett ordinances under EMC 6.04 et. seq., nowhere provide for a hearing to defendant regarding the lawfulness of seizure and impound of her pets. Nothing in these statutes legitimizes the City's actions to deny Ms. Taamu procedural due process safeguards. Ms. Taamu has claimed ownership of her seized pets and has vigorously contested the seizure under Washington State statutes by demanding a hearing – to no avail. Decisions construing the federal and state due process guarantees generally require that an individual receive notice and some form of hearing before he is deprived of his property or liberty. Fuentes v. Shevin, supra, 407 U.S. 67, 81-82, 92 S.Ct. 1983,1994-1995, 32 L.Ed.2d 556. The constitutionality of the Everett ordinance or statute justifying seizure rests upon its provision for notice of seizure and a prompt post-seizure hearing to defendant.
The requirement for notice of seizure and a hearing cannot be implied from the Everett municipal ordinance. In fact, quite the contrary. Here the City of Everett Municipal ordinances do not provide for any pre- or post-seizure hearing to Ms. Taamu, and there is no room to imply the necessity of notice and a hearing under its construction.
It is well established that the statute or ordinance itself must provide for notice and a hearing and that a gratuitous hearing does not cure a deficient law. Coe v. Armour Fertilizer Works (1915) 237 U.S. 413, 424-425, 35 S.Ct. 625, 629, 59 L.Ed. 1027. Any hearing granted as a matter of discretion is no substitute for due process. 'It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard.' " Coe v. Armour Fertilizer Works, supra, 237 U.S. 413, 424-425, 35 S.Ct. 625, 629, 59 L.Ed. 1027.
The rule is well settled that to constitute due process of law in regard to the taking of property, the statute or ordinance should give the parties interested some adequate remedy for the vindication of their rights. A provision in the statute or ordinance providing for notice of seizure, and the owner's legal remedies after confiscation and a hearing, ensures that the response of the administrative entity
will be a settled and uniform, and not an haphazard, procedure.
The City of Everett municipal ordinances under which Ms. Taamu's pets were seized is unconstitutional for failure to provide for notice, defendant's legal remedies following a seizure of pets, and a hearing either before or after the seizure of pets pursuant to RCW 16.52.085 et seq.
The ordinance in question here should end, "not with a bang but a whimper." 1 The ordinances at issue for seizing and impounding animals are unconstitutional. Defendant Ms. Taamu is entitled not only to the immediate return of her pets, but to dismissal of the information against her. Alternatively the search should be invalidated and any evidence derived from the search and seizure of her pets
1. See The Hollow Men (1925), with apologies to T.S. Eliot.
IV: Relief Requested
In the interest of justice we would ask that the courts dismiss all charges, expunge the Defendant's records and order immediate return of all of Defendant's property and animals including the remains of Ms Taamu's dog that was euthanized. We would also ask for a life time no contact/anti-harassment order so that Everett Animal Control will refrain from further harassing and intimidating Ms Taamu at a later date, and issue a cease and desist order to prevent the city of Everett and it's officials from further harassing, intimidating threatening and/or releasing of any other personal information to defame her any further and to issue a statement of such so that Ms Taamu can restore her personal and work reputation.
V: Laws, Rules, and Amendments
1. RCW16.52
2. RCW 16.52.207
3. RCW 16.52.085
4. RCW 16.52.085(3)
5. RCW 16.52.085(4)(a)
6. RCW 16.52.085(4)(b)
7. RCW 16.52.210
8. RCW 18.92
9. RCW 9.91.010
10. RCW 9.91.070
11. RCW 9.08.070 (1)(a)
12. RCW 9.08.070 (1)(c)
13. RCW 4.28.080
14. RCW 4.92.020
15. RCW 49.60.030 (1)
16. RCW 49.60.030 (1)(b)
17. RCW 49.60.030 (1)(f)
18. RCW 49.60.030 (2)
19. RCW 69.50
20. RCW 69.50.505
21. RCW 69.50.505(a)(2)
22. RCW 69.50.505(c)
23. RCW 69.50.505(d)
24. RCW 69.50.505(e)
25. RCW 9.56.020
26. RCW 34
27. RCW 34.12
28. RCW 35.01.010
29. RCW 35.22.010
30. RCW 35.27.370 (1)
31. RCW 35.27.370 (6)
32. RCW 9.08.070.1(a)
33. RCW 9.08.070.1(c)
34. RCW 9.62.010
35. RCW 9A.20
36. RCW 9A.36.078
37. RCW 9A.36.080
38. RCW 9A.46
39. RCW 9.91.170
40. RCW 10.14
41. RCW 40.16.030
42. RCW 42.23.070
43. RCW 42.41.040
44. RCW 42.52.020
45. RCW 42.52.040
46. RCW 42.20.050 (1)
47. RCW42.20.050 (2)
48. RCW 42.52.050 (3)
49. RCW 42.52.050 (4)
50. AIFRA Public Law No. 95-341
51. Title 42 USC §1966
52. Title 42 USC §3601
53. Title 18 USC §88 (24)
54. Fed. R. Civ. P Supplemental Admiralty or Maritime Clams and Asset Forfieture Action Rules A(1)B
55. 4th Amendment
56. 5th Amendment
57. 6th Amendment
58. 7th Amendment
59. 8th Amendment
60. 14th Amendment
61. WAC 246-15-020
62. S.372 THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT
63. Title 42 USC § 1983
64. RULE CrRLJ 4.7
65. United States Civil Rights Act of 196r4 (42 U.S.C. Sec. 3601 et seq.).
66. EMC 6.04.
67. EMC 6.04.070
VI: TABLE OF AUTHORITIES
1) City of Auburn V Gaunt
2) Graham V Notti
3) Shoendorf V Spokanimal
4) State V Card
5) United States V Classic
6) Screws V United States
7) United States V Mosley
8) Plymouth Sedan V Pennsylvania
9) State V Alaway
10) Pasco V Reihl
11) Mansour V King County
12) Phillips v San Lois Obispo County Dept of Animal Regulations
13) Sequin V Eide
14) Wiren V Eide
15) Menkarell V Bureau of Narcotics
16) Jaekel V United States
17) Glup V United States
18) Coe V Armour Fertilizer works
19) Armstrong V Manzo
20) United Sates V Bajakajian
21) Solem V Helm
22) Gore V United States
23) Rummel V Estelle
24) State V Boehning
25) State V Huson
26) State V Coles
27) State V Dhaliwal
28) State V Pirtle
29) State V Russell
30) State V Suarez Bravo
31) State V Brown
32) State V Hoffman
33) State V Jones
34) State V Perez-Mejia
35) State V Belgarde
36) State V Echevarria
37) State V Neidigh
38) United States V Garza
39) State V Charlton
40) Arrieta-Agressot V United States
41) United States V Solivan
42) State V Jungers
43) State V Reed
44) Screws V United States
45) Super Brady Obligation
46) Strickler V Greene
47) Kyles V Whitley
48) Spinelli V United States
49) Mathews v. Eldridge,
50) Logan v. Zimmerman Brush Co.
51) Goss v. Lopez
52) Fuentes v. Shevin
53) Johnson v. McConnell
54) Doherty v. City of Chicago
55) Zinermon v. Burch,
56) Monell, 436 U.S. At 695
57) Carrera v. Bertaini
58) Anderson v. George
