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Death For Dangerous Dog Cooper Likely as Judge Sees Scant ‘Legal Basis’ to Stop It

| November 5, 2018

Dottye Benton, Cooper's owner, third from left, speaking with attorney and Palm Coast City Council member Vincent Lyon after today's hearing at the Flagler County courthouse. (© FlaglerLive)

Dottye Benton, Cooper’s owner, third from left, speaking with attorney and Palm Coast City Council member Vincent Lyon after today’s hearing at the Flagler County courthouse. (© FlaglerLive)

Prospects that Cooper the dog will live dimmed considerably today after a hearing before Circuit Judge Terence Perkins in Bunnell. Perkins all but told the dog’s attorney and the dog’s supporters what, ironically, the Palm Coast City Council has been telling them for months: that there’s no alternative. The law calls for Cooper to be killed.

After one hour of arguments this afternoon, Perkins, who just last weekend adopted two shelter dogs, spoke as if he had not found a way out of Cooper’s predicament. He did not render a decision: that’ll come in days or weeks. But the outcome this afternoon appeared foretold.

“I’ve had dogs my entire life, including when I was growing up,” Perkins said at the end of the hearing. “It’s a precious relationship, and it’s one of the most important relationships for many people, including for my family, my kids, and I looked really, really hard to figure out if there’s some way within the bounds of the law to do something different under these circumstances.” He repeated that he’d looked hard at the case and would continue to do so, but, he continued, “When I came out here today after having reviewed the entire file and done my own research, I was having a hard time finding the legal basis” to justify keeping Cooper alive. “Unfortunately just because I love dogs doesn’t mean that I get to ignore the law. But I’ll look at it and I’ll get you a ruling as quickly as I can.”

Meanwhile, Cooper, the 6-year-old hound that’s galvanized a movement of supporters after Palm Coast Animal Control condemned the dog to die following the second biting incident against a human being in February, remains at the Flagler Humane Society, his death sentence stayed until the judge’s decision.

More than a dozen of Cooper’s supporters, including the dog’s owner, Dottye Benton, two candidates for local office and City Council member Vincent Lyon, attended the hearing, which left Benton and her attorney deflated. Benton had filed the appeal to circuit court after a Palm Coast hearing officer in April upheld animal control’s decision to kill the dog.

“The way it looks like is he’s going to be put down,” Benton said outside the courtroom after the hearing. She cited a line often paraphrased from an Isaiah verse: “I will make a way where there seems to be no way.” But, she added, “We knew when we walked into the hearing April 19 that we’d lost.” She was referring to the city’s administrative hearing, when an administrative officer concluded in favor of animal control’s decision to kill the dog. That’s the decision that was on appeal before Perkins today.


Cooper at the Flagler Humane Society last week. (Humane Society)

“I can tell you that I’ve resolved several other matters like this one, dog death-penalty cases, absolutely,” in palm Beach and Clay counties, LaHart said, though she could not clarify whether those dogs had twice bitten others. (Florida law provides for reprieves from death after the first bite, not the second.) “Whether it’s a one-step process or a two-step process, I don’t recall. I know that both of the dogs were under death warrant.”

Port Orange declared Cooper dangerous in January, before the dog moved to Palm Coast, where the second bite took place, at Benton’s house.

Perkins wasn’t explicit about whether the Palm Coast hearing officer ruled properly in April, without errors of law or procedure. But he didn’t question Erin O’Leary, the city’s attorney, nearly as rigorously as he did Marcy LaHart, the Micanopy, Fla. attorney representing Benton. Perkins’s questions to O’Leary were framed around verifying what he already knew, testing LaHart’s claims rather than challenging O’Leary’s.

“The city and the hearing officer,” O’Leary told the judge, “can’t disregard the law, they have to follow the law, and the law gave them no option.”

This, even though the Palm Coast City Council would have preferred that the dog be kept alive and sent to a shelter for dangerous dogs, and even though the judge himself said he found existing law “harsh” because it gives local governments no room to evade a dog’s death sentence in such circumstances.

Perkins repeatedly tried to get LaHart to show him how and why Palm Coast erred in condemning the dog to death. LaHart couldn’t. At least not to Perkins’s satisfaction. LaHart argued to the court that Palm Coast didn’t follow due process when its hearing officer reached the decision to condemn, that evidence in the case was never entered according to the rules of evidence, and that Palm Coast never met its burden of proof that Cooper was dangerous.

Regarding the January bite in Port Orange, LaHart argued that evidence of that or of the dangerous dog designation was never formally proven, and documentation about it was emailed to Palm Coast government, not correctly entered as evidence at the hearing. She called it “ex-parte communication,” not admissible as evidence on its face.

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Perkins disagreed. “Let’s just make sure we define our terms,” he said. “It’s not ex parte communications. It’s advance communication. It’s not ex parte.”

LaHart argued that killing the dog was the same as depriving its owner, Dotye Benton, of her property without due process.

“According to the rules of city codes the rules of evidence don’t apply, but fundamental due process does,” LaHart said. But again, the judge could not find where due process was violated without following LaHart outside the strict bounds of the case and into more peripheral case law about asset forfeiture. There is no case law directly supporting LaHart’s argument on due process, involving dogs about to be put to death, she conceded. Perkins does not like peripheral reaches. But he was willing to explore whether the burden of proof was met.

While O’Leary conceded that the “clear and convincing” standard did not apply at the city’s hearing, the standard could have been met based on testimony, including Benton’s testimony, which certified even she had been at the Port Orange hearing that found Cooper dangerous–and that she had taken ownership of the dog after that first bite.

Perkins at times spoke as if he was eager to hear an opening, any opening, that would spare Cooper’s life. “Here’s what I’m trying to get you to articulate,” Perkins told LaHart. “This matter was tried by the hearing officer. I’ve never personally met the hearing officer but I assume she came in, listened to the evidence then made some decisions. I read the transcript of that proceeding. I’m sitting here as an appellate court. This is an appeal. I don’t get to do what I want. All I get to do is correct any misapplications of the law, that is if she said the law was x and it’s y, I get to correct it, and I get to determine whether or not there is sufficient evidence to support her determination, not whether I would make that determination, just whether or not you can look at it and say, a reasonable person could come to this conclusion, right? That’s the standard I have, so help me with that.”

Despite LaHart trying, Perkins did not seem to have gotten the help he’d have taken: her answer to Perkins’s plea was to say that Palm Coast needed to clarify the standards of evidence–that the city needs to put in its ordinance “that the special magistrate knows what it is, that the dog owner needs to know what it is, that the city needs to know what it is, and there was no standard applied.”

“Is it in the statute?” the judge asked.

“No. The statute defers to local governments to come up with their own procedures to handle dangerous dog classifications.”

Which left Perkins with nothing: today’s hearing had nothing to do with what Palm Coast should put in its ordinance, but whether it followed its existing ordinance properly. Perkins did not get any indications that it had not. So he closed the hearing by preparing LaHart and Cooper’s advocates for what appears to be inevitable, absent an unexpected interpretation  of evidence already in the record.

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13 Responses for “Death For Dangerous Dog Cooper Likely as Judge Sees Scant ‘Legal Basis’ to Stop It”

  1. Well says:

    What about death for dangerous people? Nah, we keep them alive with our tax dollars while they appeal, appeal, appeal. Far too many stay alive on death row that should not. If “animals” spoke human, would we kill them this easy? Makes me wonder.

  2. nancy rojas says:

    There are state statutes the Judge can use. A dangerous dog “bad dog” can be kept alive under certain criteria. If Port Orange had a formal hearing and declared the dog as bad then there would be proof. If they did not, then he’s not a “bad dog”. The owner has to follow state guidelines for m muzzling and there is a liability insurance and you must post the animal is deemed. I believe if the owner can keep her dog under control, he should be killed. Palm Coast may not have statutes but the state does. Hope this helps.

  3. Blade says:

    How many unborn children are put to death daily???? what have they done to anyone???
    One Fricken dog that has a record of harming people and sentenced to death, and everyone is coming unglued!!!!

    Where are your priorities people?????Oh, by the way we have always had dogs and have 3 at this time…. We are animal lovers///

  4. Again says:

    Bon voyage Cooper!

  5. Concerned Citizen says:

    Please send Cooper to the place for Dangerous Dogs. There is no need to kill him if there is a place for him to go! Do the right thing! SAVE COOPER!

  6. John Brady says:

    The city has spent over 15K and the meter is still running. Included in the city’s payment are hours for Mr Reschman and I think he needs to explain why his hours were not part of his 325K retainer. Mayor Holland, we can get better and far more costly legal representation with an in-house council who should live in the city.
    Attorney Reischman said “shall” in the city charter discussions did not mean must. It has taken Cooper to make him understand the clear meaning of “shall”

    Please explain why Attorney Reischman could not just not oppose Benton’s petition and her petition would be granted and Cooper would be on his way to the rescue facility

  7. Outsider says:

    I agree with Blade. There is more outcry over this dangerous dog than thousands of babies being killed every day simply because they didn’t make an eight inch journey down the birth canal. This says more about society than any words ever could.

  8. palmcoaster says:

    You are correct John Brady.
    There is a city council relative that owns a dog that killed a small Yorki and its owner then died of a heart attack over grief and that dog is and will not be killed…Cooper didn’t kill no dog or nobody Judge Perkins!

  9. Lamo says:

    All I can say is wow. If the dollar amount is truly15 k. Soo much good could be done with that kind of money, instead they piss it away. Put the blame where it belongs, with the owners. Sad story.

  10. Dog’s Best Friend says:

    Humans get out on parole and appeal and bonds and so on and so on. Animals in our country are treated very poorly and in my opinion are innocent but our culture does not protect them. What does this say about human beings? This dog has just lost his life because we have statutes and ordinances that are not humane. “You can tell about a people by the way they treat their animals.”

  11. Speak the truth says:

    So quick they are to kill a dog but yet you got rapists and murderers and pedophiles who are still walking the streets what the hell is wrong with the system? I don’t see a need to put this dog down there are ways to keep this poor dog alive it sickens me how quick they are to kill a dog and yet not people who deserve it. Send him to a farm for dangerous animals or pull some of his teeth or have the owner muzzle him at all times unless he’s eating of course and keep him on a leash. Kill the scumbags that walk our streets and kill people before you kill the dog…….

  12. K Trenholm says:

    Cooper should be given a chance. There are far too many humans given chance after chance and are still horrible people. What gives humans the right to condem animals by making them understand and live by our rules. This dog can be rehabilated. Animals don’t have a vicious revengeful streak like humans.

  13. Outsider says:

    Put on your thinking caps people. Those most often maimed and injured by these dogs are the most innocent among us: young children and elderly adults, not to mention other pets. A vote to keep this animal alive is a vote to let someone else’s kid get attacked. Read the other headlines here and you’ll see what I’m talking about. It’s not worth the risk.

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