The road to injustice: Clackamas County Oregon’s Dangerous Dog Ordinance must be abolished.

The case of Lladk, the companion service Malamute belonging to the Kollenburn family waiting execution; condemned to death in July 2020.    

• “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less. ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.” 
  
  ― Lewis Carroll, Through the Looking Glass
   

Clackamas County Oregon’s dog control laws use every form of unjust leverage to ensure unilateral power over citizens and their companion animals. They fail to properly tell citizens how to represent themselves. They wrongfully establish a short 10-day time limit on appeals from decisions despite the 30 day limit the state law permits. They impose extraordinary ongoing excessive boarding fees that citizens must pay during the appeals process. And even worse, the language of the ordinance leaves decisions entirely up to the “discretion,” the whim, of the hearings officer.

The word “Dangerous” in the Clackamas County Dog law is so broadly defined that it permits the agency and the hearings officer to label any dog to be designated “dangerous.”  When that label is applied, death often becomes the preferred solution.  It does not matter that the county’s chosen definition of “dangerous” does not conform to the standards of animal behavior research and science. The county’s definition ignores empirical facts that have been repeatedly demonstrated; one bite does not mean “dangerous” and prevention and rehabilitation do prevent recurrence.

Clackamas County’s definition of “Dangerous Dog “allows the agency and the hearings officer to classify and sentence to death any dog that “has menaced, bitten, chased or killed any person domestic animal or livestock” regardless of the context or severity.  Appeals of a hearings officer’s decision are discouraged by the boarding expense imposed by the county where the companion dog is impounded during the length of the appeals process. Those become rapidly unaffordable. If an appeal is pursued at a higher court, the boarding costs charged by the county to the family increase to $875 monthly, far more than any other local county charges. These charges are used as leverage by the County and reduced if a family consents to immediate euthanasia.  The costs of pursuing further legal relief are beyond reach for many. 

If one starts with a law based upon grossly ignorant, simplistic, and over- broad premises and then applies that deficient law knowing those premises will be seldom questioned, one ends with shocking injustice. Justice is perverted into injustice against both the owner and the family’s dog. Clackamas county has become the predator and the hapless animal has become the scapegoat, a sentient being made to pay the price for a poorly constructed law that has no basis or foundation in scientific fact, objective research, compassion or humanity. The process is used as a weapon, not an avenue for a thoughtful and fair resolution.

This is exactly what has happened in the case of Lladk, the Kollenburn’s service dog.  Each level of this brutal process carried forward the false assumptions and repeated lies that dominated the first hearing in July 2020, when Clackamas county hearings officer Joe Turner decided that only killing Lladk would satisfy the County’s public safety needs.  

Repetition makes lies appear true. Justice disappears.  There is no re-examination of original reports and assumptions; no follow up independent reviews by established professionals in animal behavior and rehabilitation. It is as though the hearings are held in an echo chamber repeating only what the county wants.

The denials of judicial relief at all levels, including the state and federal courts, were based upon Hearings Officer Mr. Turner’s subjective personal preferences, all credited within the context of an over-broad law that is not guided by science and in which the most Draconian deterrence measures are deployed first.   

Oregon’s state laws have no uniform definition for the term ‘Dangerous Dog.” Each county chooses its own definition, meaning that justice depends upon where you live, not your dog’s behavior. A dog may be considered “dangerous’’ in one county but not in the county next door. For example, in a county neighboring Clackamas county, a dog is considered “Dangerous “if used in the commission of a crime or the injuries are permanent, disfiguring or lethal.  In Clackamas County any bite may lead to a death sentence depending upon the individual hearings officer 's own subjective biases. That is arbitrary and when something is arbitrary, it cannot be fair.  Clackamas County’s citizenry and animals deserve better.

All of the flaws in the Clackamas County Dog Control ordinance are evident in the Kollenburns’ heroic struggle against all odds to spare the life of their 4-year-old service dog, Lladk, after the county mandated a death sentence for a single unwitnessed bite incident when their toddler pursued Lladk through an open dog door. 

At the initial hearing the Kollenburns were unrepresented and unprepared, not knowing they should present rescue options and behavior experts and unaware that once the initial hearing had ended no additional evidence could be submitted upon further appeal.  Clackamas County does not prepare citizens for hearings and instead handicaps and takes advantage of citizens’ ignorance and their faith in the system.  

The County Hearings Officer Joe Turner has unusual singular power bestowed upon him by the county. He is someone without animal behavior credentials and has no apparent knowledge of the requirements for correctly assessing risks, facts demonstrated over and over again in his opinion that Lladk had to be killed to protect the public.  

Mr. Turner stated that there was no evidence that the child provoked Lladk in any way. But the incident was unwitnessed; how would he know that there was no provocation? There was a long-documented history of the toddler doing exactly that and also of the dog’s history of repeated attempted avoidance.  Mr. Turner observed that “the dog is known to dislike and avoid children,” despite the fact that Lladk was friendly and did very well with respectful children.

There are multiple thoughtless examples throughout his opinion. Examples include stating that the bite occurred the first time the child was alone with Lladk. Mr. Turner saw Lladk as a schemer who bit only because no one was looking. Mr. Turner’s conclusion implies a level of thought and premeditation dogs simply do not possess.

Repeatedly Mr. Turner crafted his opinion to support a preferred narrative and pre-ordained conclusion. At times he would make one claim, that the unwitnessed bite was not provoked, and then undermine and make the contrary claim that if it were provoked it was inexcusable because the response was disproportionate. There were no independent qualified professional animal behavior science witnesses there to challenge his views.        

Mr. Turner’s statement that “There is no evidence that Lladk can be transferred to another person who could ensure the health and safety of the public” was based on bias, not credible impartial factual evidence.  He anthropomorphized dog behavior, ignored all the preventable stressors that predict bite risks (recurrent ear infections, sore hips, and aggressive toddlers) and deliberately ignored Lladk’s long history of peaceful, friendly   co-existence with older children, adults, strangers, animals and reptiles.

The only other behavioral input was provided by a county employee, the Dog Services’ behavior and assessment coordinator, who stated in her assessment that “the dog is likely to bite again and inflict as much or more damage than the last bite,” a remark stripped of all context and accompanied by the presumption that context and preventable stressors, the most significant factors in risk assessment, are wholly irrelevant when they are all that truly counts. These conclusions removed all context and reflected clear irrationality: that repetition of an accident is inevitable and cannot be prevented.  Lladk’s sensitivity around his ears and hips were markers of pain, not temperament, but were provided as compelling evidence mandating a death sentence.  

In the end Mr. Turner’s conclusions condemning Lladk as “Dangerous” were based upon his personal biases and beliefs, all repeated as fact and never disputed or re-considered at each succeeding level of appeal.  All that was reviewed during subsequent appeals was whether the hearings proceedings complied with the county’s hearings process, a process that itself was a corruption of any fair process, a corruption that can only be charged to the county commissioners.

In November 2020, Circuit Judge Van Dyke denied a motion for re-consideration of his earlier ruling and rejected the argument that the death sentence determination was based upon unsubstantiated speculation.  Judge Van Dyke again approved the Hearings Officer’s determination that it was supported by substantial evidence and that even if new evidence were considered, it would not change his ruling.

On February 24, 2021 federal Judge Hernandez ruled that “the Court will accept the county’s determination that Lladk is dangerous” and rejected the Kolllenburn’s disability accommodation claims. The acceptance of the county’s determination that Lladk is a “dangerous dog” precluded the likelihood that any ADA or FDA claim for reasonable accommodation would succeed.

The closing statement made by Judge Hernandez is a direct cut and paste quotation from a previous statement made by County Attorney Scott Ciecko that “Lladk’s designation as a “dangerous dog” and the order for his destruction were not based upon generalizations and stereotypes but on an individualized assessment of his past and present behavior.”  Assistant County Counsel Ciecko also brought up the charge that Lladk had previously killed 2 chickens in addition to the bite incident as support for the conclusion that Lladk “posed a known risk to which there appear to be no mitigating factors.”

 A report is only as valid as the reporter’s skills in conducting “the evaluation.” The county’s report did not reflect the history of this dog and demonstrated ignorance of animal behavior science and behavior change.  It was comparable to the Salem witchcraft trials and the sink or swim tests for determining guilt. Behavior assessment is not a precise science. Second opinions from experts are critical. But Clackamas County refused expert evaluations and rejected rescue and sanctuary offers from organizations with the expertise, skills and rehabilitation successes far superior to anything Clackamas county could ever offer.  

Judge Hernandez’s opinion promoted the false dichotomy created by the County, a competition pitting the Kollenburns’ disability rights and their mental health against the safety of the community

• “The Kollenburns are faced with the loss of a companion for whom they clearly have a deep and genuine affection. The County on the other hand must consider its responsibility to ensure the safety of the community with respect to a dog who has seriously bitten a small child. Although the Kollenburns argue that Lladk can be safely returned to their care or alternatively into the care of a rescue society the Court concludes that the county’s obligation to public safety outweighs the Kollenburns’ interest in regaining Lladk.”  

The two interests are not opposed. Both can be accommodated. But the reality is that repetition of a falsehood sabotages facts and causes them to be disbelieved even when accurate. Throughout the judicial opinions there is also a deliberate and intentional misrepresentation of the services a psychiatric prescribed support dog uniquely provides his or her person.

It is not a replaceable relationship. It is not just the generic “bond of affection" the court papers persisted in trivializing. What one trivializes, one renders to insignificance.   Prescribed support dogs are critical lifelines.  Destroy that lifeline and you are putting the owner's life at real and considerable risk, at a minimum creating lifelong emotional harm but extending also to a real suicide risk.   Shouldn't that be a county concern?

From January 2021 continuing into March 2021, the county has adamantly declined to consider any alternative humane solutions to killing and has also continued to reject offers of outside expert professional consultations. On March 17, 2021 a second appeal, challenging a denial of a stay of execution was filed with the 9th Circuit Court of Appeals while the appeal of other issues continues. The emergency appeal for an injunction was summarily denied.

The stay of execution ended March 27, 2021. Lladk is now on borrowed time and will be killed unless the Clackamas Board of County Commissioners relent and allow the humane alternatives of rescue and sanctuary options.   Their reasons for forbidding alternatives are unknowable and hidden from view behind claimed “executive privilege,” part of their exercise of unmitigated unilateral power.

The Commissioners justify their stand in two ways, one by pointing to Joe Turner’s flawed opinion as inviolate, and another by referring to uniform denial of requests for correction by reviewing courts.  But all that the courts really did was to review whether the Hearings officer properly applied the county’s ordinance, nothing more. They did not consider whether the law itself was just. What was overlooked by the courts was that the Clackamas County Board of Commissioners enacted an unfair code and Joe Turner followed that unjust process to its bitter end. When the house holds all the cards and enacts rules that bring harm to so many families and their cherished companion animals, those rules must be challenged and they must change.

The Clackamas County laws reflect the Commissioners’ attitude that companion animals are potential pests, nuisances and liabilities best destroyed if an incident occurs regardless of safe humane alternatives. The Hearings officer carries out the executioner’s role assigned to him by implementing those policies; policies that reject current societal values about the worth of companion animals’ lives and deliberately eschew credentialed expertise in animal behavior science and rehabilitation. 

Citizens come to a hearing unarmed and unaware of their rights. Rarely are they able to afford legal representation; often they do not understand the process and must plead their case against a fully informed county attorney and hearings officer. If they lose their appeal the costs of appealing to higher courts are excessive, far beyond the resources of most.   

Clackamas County has robbed its citizens of their rights to due process.  

There are fairer processes and there are also standard guidelines for euthanasia used by some experts who also are invested in keeping communities safe.  In those guidelines, "Dangerous" means a pattern of intractable dangerous behavior and requires some minimum prerequisites before killing such as (a) a pattern of prior dangerous behavior; (b) a demonstration of meaningful remedial efforts, such as extensive training, treatment and/or finding a new home more compatible with the animal's personality and needs and (c) a final determination made by a committee, preferably composed of a majority of volunteer rescue workers, a least two behaviorists and a veterinarian in conjunction with a thorough investigation of the facts and a psychological and physical assessment of the animal.

Clackamas County follows none of these measures. Citizens must take responsibility for correcting a cruel ordinance that victimizes animals and then tramples over the civil rights of citizens destroying the relationships between companion animals and their owners trying to protect them.