Man Who Fought for His Dog Can Seek Damages

WEST PALM BEACH, Fla. (CN) - A dog owner whose pit bull was seized under an unconstitutional "dangerous dog law" and held in custody for two years may sue the county for loss of use of property, a federal judge ruled.

Broward County confiscated Brian Hoesch's 8-year-old pit bull mix, Mercedes, in November 2008 after she escaped Hoesch's back yard, roamed the neighborhood and was accused of killing a 12-year-old cat. The county's animal control division sought to destroy Mercedes under an ordinance that, Hoesch claimed, was in conflict with Florida's dangerous dog law.

Hoesch challenged the ordinance and won. Florida's Fourth District Court of Appeals eventually declared Broward County's dangerous dog ordinance unconstitutional.

While awaiting the court's decision, the county moved Mercedes to an animal hospital, where she remained until Feb. 11.

In his amended complaint, Hoesch claimed he paid more than $19,000 in boarding fees and lost "the benefit of more than two years of Mercedes' love and affection." He sought damages for boarding expenses, emotional distress, and loss of love and companionship. He also claimed that the county's unconstitutional ordinance had violated his equal-protection rights.

The county tried to dismiss Hoesch's inverse-condemnation claim, arguing that Hoesch asked for damages that exceeded the value of the seized property.

But U.S. District Judge Kenneth Marra rejected the county's argument. Though Marra agreed that damages for boarding expenses, emotional distress, and loss of love and companionship are not recoverable, he concluded that "in a situation of a temporary taking, plaintiff is entitled to damages for loss of use of the property due to the taking."

Marra dismissed Hoesch's equal-protection claim, finding that Hoesch had failed to prove the county had treated him differently from other dog owners.

"Simply put, plaintiff's equal protection claim suffers from a fundamental defect," Marra wrote. "Plaintiff complains that Broward County has treated him differently than another government body, the state of Florida, treats him and others. This is a faulty assertion because an equal protection claim prohibits the same governmental body from treating similarly situated people differently. Plaintiff's claim, however, alleges that different government bodies treated similarly situated persons (i.e., dog owners) differently." (Parentheses in original.)

The court allowed Hoesch to bring the equal-protection claim again in an amended complaint.

Marra refused to remand Hoesch's case to state court, finding that separating the state-law claim and the federal claim could lead to parallel proceedings, wasting judicial resources.

The court also rejected Hoesch's argument that the inverse-condemnation claim concerned "a novel or complex issue of state law," and chose to retain jurisdiction over both claims.

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