First Amendment used in lawsuit over barking dog
Tammy Fonce-Olivas
El Paso Times
Sunday, December 11, 2005
A novel lawsuit that involves a barking dog could also have a novel defense -- the First Amendment.
A West El Paso man is suing his neighbors for $125,000 because he claims the dog barks nonstop. The pet's owners deny the allegations, but their lawyer says that if the dog was barking, it has a constitutional right to do so.
"I can assure you we are going to fight this case to the death. Take it all the way to the (U.S.) Supreme Court if necessary. I can honestly state that if the dog did bark at all, the dog was simply exercising his first amendment right to freedom of speech," said Monty Stevens, lawyer for the Alvarados.
Luis Hernandez, of the 500 block of Merriman Drive, is suing his neighbors for what he says are mental anguish, diminished property value and the inability to enjoy his home -- all because the dog won't quit barking -- court documents state.
The defendants, Eduardo and Guadalupe Alvarado, are asking the court not to give Hernandez any monetary relief. The lawsuit is pending before Judge Javier Alvarez of County Court-at-Law No. 3.
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Hernandez and his lawyer, Heather Ronconi, could not be reached for comment.
In the lawsuit, Hernandez claims the problem with the "barking dog" began after he moved into the neighborhood in July. Hernandez stated he tried to resolve the problem without the aid of the court by contacting the El Paso Police Department.
The Alvarados "were instructed by the El Paso Police Department to collar the dog to prevent the barking, although initially agreeing to do so, they have now willfully failed to act to prevent the dog's barking," Hernandez stated in the court documents.
The documents state that the barking became a problem again on Sept. 16 and has continued to be a problem.
"Luis Hernandez has been disturbed by the barking of the (Alvarados') dog during the night and day. (Hernandez) is unable to sleep or occupy his property in peace," Hernandez stated in the lawsuit.
Ramon Acosta, program manager of Animal Regulation and Disease Control, said the city doesn't have an ordinance that specifically deals with barking dogs.
But a barking dog could be considered a nuisance, which is unlawful under city regulations, and could result in the owner's being issued a city citation and fined up to $2,000.
Acosta said his department often receives and responds to complaints about barking dogs. If a dog is found to be a "nuisance," then the pet owner may be cited.
Acosta said dogs often bark because they are sick or startled, or because they sense that someone or something is invading their territory.
He said he encourages neighbors who have problems with barking dogs to try to resolve their differences by talking to each other.
"Most people are relatively good pet owners," Acosta said.
Stevens said that having a dog that barks continuously could get a pet owner in trouble, but that his clients' dog is not violating city regulations.
He said the lawsuit is "ludicrous" because it aims to seek thousands of dollars from a pet owner who has a dog that allegedly barks too much.
"It is extremely unusual for somebody to actually try to take money out of their neighbor's pocket. It is extremely rare. I know we live in a litigious society, but this has really gone too far," Stevens said.
Funny thing is, Monty Stevens is my father, and he used the First Amendment right argument as a joke. However, the newspaper actually thought that it was his defense, and they were rather embarassed to find out that it wasn't so.
Tammy Fonce-Olivas
El Paso Times
Sunday, December 11, 2005
A novel lawsuit that involves a barking dog could also have a novel defense -- the First Amendment.
A West El Paso man is suing his neighbors for $125,000 because he claims the dog barks nonstop. The pet's owners deny the allegations, but their lawyer says that if the dog was barking, it has a constitutional right to do so.
"I can assure you we are going to fight this case to the death. Take it all the way to the (U.S.) Supreme Court if necessary. I can honestly state that if the dog did bark at all, the dog was simply exercising his first amendment right to freedom of speech," said Monty Stevens, lawyer for the Alvarados.
Luis Hernandez, of the 500 block of Merriman Drive, is suing his neighbors for what he says are mental anguish, diminished property value and the inability to enjoy his home -- all because the dog won't quit barking -- court documents state.
The defendants, Eduardo and Guadalupe Alvarado, are asking the court not to give Hernandez any monetary relief. The lawsuit is pending before Judge Javier Alvarez of County Court-at-Law No. 3.
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Hernandez and his lawyer, Heather Ronconi, could not be reached for comment.
In the lawsuit, Hernandez claims the problem with the "barking dog" began after he moved into the neighborhood in July. Hernandez stated he tried to resolve the problem without the aid of the court by contacting the El Paso Police Department.
The Alvarados "were instructed by the El Paso Police Department to collar the dog to prevent the barking, although initially agreeing to do so, they have now willfully failed to act to prevent the dog's barking," Hernandez stated in the court documents.
The documents state that the barking became a problem again on Sept. 16 and has continued to be a problem.
"Luis Hernandez has been disturbed by the barking of the (Alvarados') dog during the night and day. (Hernandez) is unable to sleep or occupy his property in peace," Hernandez stated in the lawsuit.
Ramon Acosta, program manager of Animal Regulation and Disease Control, said the city doesn't have an ordinance that specifically deals with barking dogs.
But a barking dog could be considered a nuisance, which is unlawful under city regulations, and could result in the owner's being issued a city citation and fined up to $2,000.
Acosta said his department often receives and responds to complaints about barking dogs. If a dog is found to be a "nuisance," then the pet owner may be cited.
Acosta said dogs often bark because they are sick or startled, or because they sense that someone or something is invading their territory.
He said he encourages neighbors who have problems with barking dogs to try to resolve their differences by talking to each other.
"Most people are relatively good pet owners," Acosta said.
Stevens said that having a dog that barks continuously could get a pet owner in trouble, but that his clients' dog is not violating city regulations.
He said the lawsuit is "ludicrous" because it aims to seek thousands of dollars from a pet owner who has a dog that allegedly barks too much.
"It is extremely unusual for somebody to actually try to take money out of their neighbor's pocket. It is extremely rare. I know we live in a litigious society, but this has really gone too far," Stevens said.
Funny thing is, Monty Stevens is my father, and he used the First Amendment right argument as a joke. However, the newspaper actually thought that it was his defense, and they were rather embarassed to find out that it wasn't so.
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