RULES HAVE RULES: UNLEASHED DOGS AT CRISSY

Crissy Field, at the Presidio, now the Golden Gate National Recreation Area, is alongside the promenade that runs along San Francisco Bay where we take our Bridge-Walks.  It's administered by the National Park Service and attracts lots of joggers, moms with babies, older folks, dog-walkers, etc.

When the lawyer couple brought a couple of large heavy dogs into their apartment in a high-rise, Presa Canarios, as I recall, it turned out that the dogs were owned or otherwise influenced by a prisoner at Pelican Bay, one of California's super-max prisons for the worst of the worst.  The dogs attacked a woman and killed her in the building, for which the lawyer couple was prosecuted.  He was convicted of manslaughter and she of murder, before the trial judge threw out the murder verdict and reduced the matter to manslaughter.  The California Court of Appeal recently found the order reducing the verdict to be in error and sent the case back for further proceedings.

Shortly after the dog-mauling, the National Park Service instituted a rule that dogs had to remain on a leash while in the Presidio or GGNRA, or Crissy, as I refer to it for short.  Since I walk there frequently, I can say it felt better to see the dogs on a leash.  Years ago when I had a dog I disliked leashes, wanting to see the dog run around.  But there are so many dogs among so many people in San Francisco now that there's a level of risk that innocent bystanders are exposed to that they shouldn't have to face.

Tonight's news (sfgate.com) reports that a boy was attacked by his mother's two pit bulls in their home, killing the boy.  Police had to shoot one of the dogs to enter to try to help the boy, who could not be revived.

So the experiences are violent, vicious, and too often fatal.  The rules are thus important.

So when the Park Protective Service, which patrols the GGNRA recently cited a few people for running dogs off-leash, it must have seemed an open-and-shut case.  Officer sees dog running free on the beach; officer sees you calling to the dog and holding a leash; officer says "Is that your dog?"  You say yes, and receive a citation, returnable in federal magistrate's court, 450 Golden Gate, San Francisco.  Maybe you're placed on probation on condition that you don't do that again.  Maybe you don't want to be on probation and you call your lawyer.

What does your lawyers say? 

Jury trial? To determine what?

Pay the fine?

Take a deal?  One year of probation instead of three?

How about this for good lawyering:

Lawyer is smart.

Lawyer asks, "Is this law constitutional?"

What must a law be in order to be constitutional?

One thing it must be is to have been made in accordance with the rules for making laws.  Otherwise you have a due process violation.  Rule-making bodies can't just say "Here's a new rule."  New rules have to be enacted according to certain legal procedures.

In order to make a new rule, in other words, you need to follow the rules for making the rules.

So the lawyer checked.

For the National Park Service to promulgate a new rule, such as that dogs must remain on leash in the park, there must be notice to the public and an opportunity to be heard.

Did that happen here?

No.  The good lawyer checked.

So the lawyer moved to challenge the validity of the rule that says dogs must remain on leash in the park.

The magistrate recommended dismissal of the citation to the U.S. District Judge who agreed, and out went the citations.

As I took a walk along Crissy this morning in preparation (!) for tomorrow's Bridge-Walk with anyone who shows up, I saw a number of TV Network vans with reporters doing their standups for the camera for the evening news, reporting on this news.

Now I guess the National Park Service will give the proper notice to the public, invite interested parties to comment, and hold a public hearing on how dogs and people may use the park without injuring each other, which will be good. 

I'd like to suggest that before dogs are allowed to run free that both dog and master should have enough training, control, and a demonstrated comfort level around children, adults, other dogs, etc., that the risk is reduced to negligible in a large, inviting, dedicated place for dog-lovers and their pets, away from me and the kids, please. 

I walk with a tall, hand-finished, wooden stick because I like the walking-stick, but I do notice that dogs usually shy away from it. 

Good.

Well, one reason for the Bridge-Walks is to demonstrate that Constitutional Law is all around you, if you're paying attention. 

See that ship?  That's an instrumentality of interstate and foreign commerce, regulable by Congress under the Commerce Power, Art. I, Sec. 8, Clause 3.

See that waterway?  That's a channel of interstate commerce.  Ditto.

See that orange Pilot Boat?  See Cooley v. Board of Wardens of the Port of Philadelphia, where the Court crafted a compromise allowing local authorities to regulate to promote health and safety even though the Constitution seems to have given the power to regulate foreign and interstate commerce (and with the Indian Tribes) to Congress, not the states.  It's called the Cooley Compromise.  When you do a Bridge Walk, watch out, your head may be filled with doctrines of Con-Law that you may not have wanted to know about.

But Con-Law is all around us.  See that police officer?  He's our first line of due process and other constitutional rights.  I'll bet he knows a thing or two about Miranda.

See that truck?  That truck is a ship, an instrumentality of commerce, regulated by federal law passed by Congress, first, and then only by state law, which may not be inconsistent with Congress's regulations.

Here's another example of the rules having rules, for you.  Suppose you live in a town like Mill Valley in Marin where the police use radar to control automobile speed on the main drag, Blithedale Avenue between the freeway and the town, and you are cited for doing, say, 35 in a 25.

Let's say you were speeding and the radar caught you and you got the ticket.  Do you pay the ticket?

Not without visiting the police station first and asking to see the traffic survey.  Under the California Vehicle Code, before radar may be used to enforce traffic speed, a traffic survey must be taken that measures the speed at which motorists typically use the road.  The speed limit may not be set lower than some speed level at which 80% of motorists drive there, as I recall.  And the traffic survey must have been conducted and approved within the last few years.  You'll have to look it up if you're interested in pursuing it further.  A client once hired me to represent him on a speeding violation in Mill Valley and that's how I beat it.  Reached into my bag of tricks and pulled a rabbit out of the hat that time.  Maybe that's why I think it good lawyering to check into how the rule became a rule.

Remember the rule:  The rules have rules.  This way maybe you won't forget to check when it comes  your turn and the duty falls on you.

You can say you learned it on a Bridge-Walk.

Here's Bob Egelko's article on unleashed dogs in today's San Francisco Chronicle, below: