And then I had my day in court. #notreallyAugust 12, 2013 at 3:32 PM | Posted in I am resourceful., I ♥ Twitter., We have dogs. | 2 Comments
Not yet. Because my case was never filed, which means I wasn’t on the docket the day the summons told me to be there. But I’m getting ahead of myself.
On July 14, 2013, I was at Garfield Park for a potluck event for Indy Food Swappers. Anna, her friend Taylor, and our dog Goocher were with me. In the course of setting up for the event, Goocher was put in the car for ten minutes (windows down, water available). A policeman had an issue with my decision to do that (or just with me, who can tell) and, along with a park ranger, detained me in the car for a half hour before giving me a summons to appear in Court. That’s the nutshell version.
I went into full blown panic mode. The whole experience with the cops was unexpected and unpleasant and now COURT?! I had no idea what to expect—that makes me freak out the most. So I channeled the nervous energy into action and, with the guidance of some attorney friends, drafted a Motion to Dismiss.
DEFENDANT’S MOTION TO DISMISS CASE
Comes now Sacha Brady (“Defendant”), pro se, defendant in the above captioned case, and requests that the case be dismissed, with prejudice.
Defendant requests that this Court dismiss the above-captioned case, with prejudice, based on the failure of the City of Indianapolis (the “City”) to state sufficient facts or evidence to sustain the charges alleged in Case Report 13-0090754-000 (the “Case Report”).
Defendant, affirming under the penalties for perjury of the truth, states as follows.
1. Defendant denies that the allegations in the Case Report are a complete and accurate account of the actual facts. However, for purposes of this motion to dismiss, the Court may regard the City’s allegations as true in order to test the legal sufficiency of the claim.
2. Defendant was charged with failure to provide proper care and treatment of an animal at 2450 Shelby Street, Garfield Park, Indianapolis, and received a court summons for said charge on July 14, 2013.
3. The Case Report (see Exhibit 1) states that two officers were involved, Owens (Badge No. 27759) and Burrello (Badge No. B6879). The Case Report further states that a dog (the “Dog”) was left unattended in the back of a vehicle with the windows down in the front, and that the weather at the time was 87°F.
4. Defendant respectfully submits to the Court the following evidence, which was not captured in the Case Report by Officer Burrello:
(a) The Dog was contained in a 2002 Volvo V70 equipped with a cargo barrier specific to that model (see Exhibit 2). The purpose of the cargo barrier in Defendant’s car is to transport the Dog safely. The cargo barrier does not impede the flow of air from the cabin to the cargo area. In addition, the Dog is able to fit his head through the side of the barrier to access air more directly from the window whenever he chooses.
(b) The cargo area of Defendant’s car is 36 cubic feet in volume, was empty of cargo other than the Dog and his water bowl, and provided plenty of room for the Dog. The Dog is medium size and weighs 40 pounds.
(c) All of the windows in the vehicle were all the way down as far as their design allows. The Case Report does not indicate the average wind speed during the period in question, but Weather Underground indicates that it was six to seven miles per hour (see Exhibit 3). Shelter from the sun combined with the breeze meant that the interior of the vehicle was comparable to ambient temperature and NOT significantly hotter as Officer Burrello speculated in the Case Report.
(d) The Dog had been taken for a walk that afternoon through the shady areas of Garfield Park for 15–20 minutes starting at approximately 3:08 PM. After the walk he was given cool water to drink, put in the cargo area of the vehicle, and given another bowl of fresh water. The purpose of containing the Dog in the car temporarily was to clean off two picnic tables in Shelter #2 of Garfield Park for a gathering. When Defendant returned to the vehicle at approximately 3:35 PM and came upon Officer Owens peering inside, the Dog had been in the vehicle for about ten minutes.
(e) The parking lot where the vehicle was located is adjacent to Shelter #2 (see Exhibit 4). Defendant’s vehicle was parked in a portion of the parking lot that is located close to Shelter #2.
(f) When Defendant returned to the vehicle to drop off supplies and retrieve the Dog, she noticed Officer Owens peering inside the cargo area of the car. Defendant asked Officer Owens if he was looking at the Dog and he nodded. Defendant asked Officer Owens if someone had called him and he nodded. Defendant told Officer Owens that the dog had been in the car for ten minutes. Defendant retrieved the Dog from the cargo area of her vehicle. As Defendant prepared to walk away, Officer Owens asked if she had identification. This was the first time Officer Owens spoke to Defendant. Defendant asked why Officer Owens needed to see identification and Officer Owens said he was conducting an investigation. Defendant gave Officer Owens her Indiana driver’s license.
(g) The Case Report does not indicate that a full bowl of water was in the cargo area of the vehicle when Officer Owens approached. Officer Owens should have been able to see the bowl of water when peering into the back window or when the Dog knocked it over as he exited the vehicle.
(h) The Case Report does not indicate that the Dog was in good health, but he was. He stood while waiting to be leashed and told to exit the car, which he did without assistance. The Case Report notes that he was panting. Panting is not an indication of distress per se.
(i) Officer Owens returned to his patrol car and logged the incident. The Case Report indicates 3:39 PM as the time of the incident, and the Southeast district office has record of a sight run being initiated at 3:39 PM, which is after Officer Owens and Defendant had spoken. The Southeast district office explained to Defendant that a sight run is when an officer is investigating a situation that he or she noticed on his or her own.
(j) After Officer Owens returned to his patrol car, Defendant asked someone attending the gathering in Shelter #2 to bring the dog to the shelter while Defendant remained with her vehicle.
(k) At approximately 3:45 PM, Officer Burrello arrived on the scene in his park ranger car. He parked alongside Officer Owens’ patrol car and the two of them spoke with each other, each from within his respective car. Neither Officer Owens nor Officer Burrello spoke to Defendant or looked in her direction.
(l) At approximately 3:50 PM, another officer arrived on the scene. The third officer parked behind Officer Owens’ patrol car and approached Officers Owens and Burrello on foot. The third officer joined their discussion but still no one spoke to Defendant. Defendant asked if someone could tell her what was going on. The third officer said she had just found out herself. Defendant said she didn’t know what was happening. At that point Officer Burrello told Defendant that Indianapolis Animal Care and Control (“IACC”) had been called, and that Defendant was to wait for their arrival to give her a summons. Officer Burrello said that he would give Defendant the summons if IACC wasn’t available.
(m) Defendant asked if she could go to Shelter #2 while she waited for IACC. Officer Burrello said she could not, that she had to remain with the vehicle, and that she could get inside if she so chose. Defendant got in the vehicle at approximately 3:55 PM and sat in the driver’s seat. The vehicle remained off and with the windows down while she sat inside, which are the same conditions in which the Dog had been temporarily contained.
(n) Officer Owens asked Defendant to step out of the car at approximately 4:10 PM. Officer Burrello said that IACC would not be available for several hours so he had prepared the summons himself. Officer Burrello took Defendant’s thumbprint and then gave a copy of the summons to Defendant. Officer Owens told Defendant that he was obligated to investigate a call about an animal in a vehicle and asked Defendant if she would leave a child in the car. Defendant said that the Dog wasn’t neglected. Officer Owens said, “I didn’t say your dog was neglected.”
(o) The Defendant’s summons notes the time of the offense at 4:07 PM (see Exhibit 5). According to the official times on record, Defendant stood by or sat in the vehicle in question for about a half hour. The fact that Defendant was detained for three times as long in or near the same vehicle in the same conditions in which the Dog was temporarily contained shows that it was not an environment of excessive heat.
5. Neither Officer Owens nor Officer Burrello questioned Defendant, questioned any witnesses, examined the Dog, or collected any other data on the scene during the investigation.
6. According to Indianapolis Marion County Revised Code 531-401(c), it is within the discretion of the enforcement authority to provide a written notice of the conditions that constitute the violation, direct remedies as appropriate, and give the violator a time period within which to correct the violation. As such, Officers Owens and Burrello did not need to summon Defendant to court.
The allegations in the Case Report that the Dog was temporarily contained in the Defendant’s vehicle with adequate ventilation for an unknown period of time at an unknown temperature fail to prove a claim of mistreatment under the ordinance. Additional facts provided herein further illustrate that the Dog had been handled with proper care.
WHEREFORE, Defendant respectfully requests from this Court that the case be dismissed, with prejudice, and for all other proper relief.
I wasn’t able to file my motion because, as it was explained to me, the computer had not generated a cause number for my case. I panicked again because I was worried that I would run out of time to file the motion. Someone from the clerk’s office explained to me that the date on the summons was for pre-trial, NOT the hearing, during which I would speak to an attorney for the City. She said that, should the City decide to proceed with the charges after a conversation with me, I would be able to file my motion then. So I decided to stop being stressed about it because COME ON it’s just a conversation. Surely clear heads would prevail, right?
August 12, 2013, at 9 AM was when I was summoned to Court—TODAY. I went to Court and sat in the room with the other defendants (and chatted with someone who recognized me from a photo of my shoes on Twitter) and eventually found out that there would be no pre-trial for me today. My e-ticket slipped through the cracks! The clerk—maybe the same woman who explained the process to me a few weeks ago—told me that (1) she would file my case and (2) I would receive an Order to Appear in the mail. <sigh>
This is what I plan to do:
- Await my Order to Appear.
- Add the cause number from the Order to Appear to my Motion to Dismiss.
- File the Motion to Dismiss with the Court.
- Wait for a dismissal. If that doesn’t come then return to Court on the date the Order to Appear specifies.
UPDATED 29-Aug-2013: Went by the City-County Building yesterday to see if there were any updates to my case. I thought I might get the cause number and, assuming it had been issued, my new court date. I know the clerk told me that I would receive an Order to Appear in the mail but, let’s be honest, I have very little faith in the system. The same gentleman who had checked on my case the other two times I’d been to the court office confirmed that my name is nowhere to be found in the court database.
“But I already saw my name on your screen.”
“That was the police database. Your summons is in there. You are not in the court system.”
“What if a cause number is generated and the court system thinks I already got a summons with the date? How will it know to issue a new OTA?”
“That date has passed. If it is prompted to generate a new date, it will issue the order.”
“I’m worried that I won’t be mailed the OTA and then I’ll miss my court date.”
“That would be egregious. If a default judgment were issued against you, you could fight that.”
“I’m not interested in winning a fight. I’m interested in avoiding a fight.”
<nod of understanding>
“How would it be prompted to issue a new date?”
“Someone would have to manually push it through.”
“Really, I wouldn’t worry about it. REALLY.”
Went to City-County just now to check on my case. There is no record of me in the court system. Did I slip through the cracks? <shrug>
— Sacha Brady (@zigged) August 28, 2013