Animal control officers impounded a Milton couple's dog after deeming it dangerous, and charged the husband with hindering prosecution when he protested the dog shouldn't be taken.
A lawsuit filed by the couple, John and Nancy Smith, asserts Delaware Animal Care and Control – a nonprofit that local governments have charged with dog control duties – lacks any legal authority to obtain search and seizure warrants.
The civil complaint was filed by the Smiths after their dog, Millie, was seized by DEACC officers on March 20. The Smith's attorney, elected Sussex County Clerk of the Peace John Brady, asserts in a March 25 court filing that animal control officers have no more authority to obtain search warrants – or, for that matter, make arrests – than sheriff's deputies do in Delaware.
On Thursday, eleven days after the lawsuit was filed, the Smiths were arrested and charged with criminal offenses stemming from the day Millie was impounded. Affidavits filed in Justice of the Peace Court show an officer swore out charges against both Smiths of maintaining a dangerous animal.
John Smith was charged with hindering prosecution, the court records show, after he refused to sign paperwork acknowledging the dog was considered dangerous and told an animal control officer "not to come to his residence unless his lawyer is there."
John Smith – a southern Delaware talk radio host whose on-air moniker is Jake Smith – believes the charges amounted to retribution against him and his wife for daring to sue the animal control agency.
"They are trying to get legal leverage against us because we filed a lawsuit against them," Smith said Thursday in a radio interview on Delaware 105.9 FM. "They're holding Millie illegally and they need to drop these charges against us."
Delaware Animal Care and Control is part of First State Animal Shelter and SPCA, a Kent County organization. Although not a government agency, First State has contracted with local governments to provide a host of dog-control measures, and maintains a 20-person strong animal control department with statewide duties. First State's executive director, Kevin Usilton, did not return a call seeking comment.
The Smith saga began March 16, when according to court records filed by animal control officers, Millie broke loose as Nancy Smith took her for a walk and attacked a neighbor's dog, Spike. One of Spike's owners "received puncture wounds from Millie to [the] left index finger and left thumb," an officer submitted to the court.
Spike, meanwhile, suffered "punctures and lacerations to deep tissue and muscle to the right side of the body and several locations near the spine of the dog," according to the same court records.
The Smiths said a Justice of the Peace Court commissioner who saw them after their arrests Thursday evening directed them not to make any public comments about their case. John Smith has disputed the notion that Millie was a danger.
The lawsuit Brady filed on the Smiths' behalf said animal control officers first directed them to surrender the dog for quarantine voluntarily. There is a procedure in Delaware for judging whether a given dog is dangerous and must be euthanized, spayed or neutered, or is in fact safe to live around other dogs and people. A five-member group of appointed experts, the Dog Control Panel, hears testimony about the dog and makes a determination. That hearing has yet to take place in Millie's case.
When Brady told DEACC there would be no voluntary surrender, the lawsuit says, a DEACC officer, Pfc. Sandra Galloway, applied to Justice of the Peace Court for a warrant to search their home. The warrant application was postdated to April 18, but a justice, Christopher A. Bradley, still signed it, and Brady's lawsuit notes the Smiths did not try to stop officers from executing it on March 20.
In many respects, Delaware government treats animal control officers as bona fide law enforcement officials. The search warrant application filled out for Millie's case, for instance, shows DEACC officers can access DELJIS, the statewide data bank used by Delaware State Police and municipal police departments.
But Brady's suit alleges they do not, in fact, have the power under Delaware law to obtain search warrants. He cites a recent high-profile dispute over arrest powers led by former Sussex County Sheriff Jeff Christopher in making his case.
"No current officer of DEACC meets the statutory training requirements of Title 11, Chapter 19 to apply for a search warrant, as no current officer is currently certified by the Council of Police Training nor is a constable under Delaware law," the complaint says.
"The named defendants, DEACC and the Justice of the Peace Courts, still have several weeks to file responses to the lawsuit. A court spokesman, Sean O'Sullivan, said the judiciary had not been formally served with the suit and could not comment on it.
Smith was a morning radio host for WGMD 92.7 FM until February, when he said on air that "every Muslim is suspect" of supporting terrorism and was fired the following day. He is now the co-host of a weekend gardening radio show on Delaware 105.9 FM.
(The News Journal - Apr 5, 2015)
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