Supreme Court

Barry McCabe, the plaintiff in the seminal court case of McCabe vs Fairfax County Animal Shelter may soon be back in court.

McCabe has filed a new lawsuit against Fairfax County in The Supreme Court of Virginia which includes the County, the Fairfax County Animal Shelter, and the County’s Board of Supervisors among others. This new filing made in Sept. 2020 is an appeal of the final decision made in McCabe’s previous case in the County’s Circuit Court.

This new lawsuit argues that the circuit court made significant errors in its judgement favoring the County Animal Shelter. Among those errors claimed in the filing are arguments concerning breach of contract, product liability and breaches of express and implied warranties.

The crux of McCabe’s argument in this suit is with the definition of adoption based on law in the state of Virginia. While it has been commonplace for years to use the word “adoption” when describing the exchange of pets between animal shelters and prospective pet owners McCabe argues in his suit that this exchange is more akin to a purchase of private property.

According to Virginia Code the word “adoption” is reserved for people and also contains a strict definition for people which reads as follows:

“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.”

McCabe argues that the circuit court ruling creates a hybrid legal standing for animals adopted from animal shelters where they are simultaneously considered private property and persons. This ruling would go against current language in the Virginia Code which according to McCabe has never been dealt with in the court system and could have significant legal ramifications for animal shelters and prospective pet owners who get their pets from these government run shelters.

This suit is a continuation of McCabe’s 2018 lawsuit against the Fairfax County Animal Shelter who had facilitated the adoption of a pitbull named Odin. Odin would attack McCabe and kill his dog Kaiser, a two-year old Cavalier King Charles Spaniel shortly after his adoption in 2016.

McCabe had sued the owner of Odin for the attack who was found not guilty due to lack of knowledge about the pitbull’s violent history. It was found later though records obtained by McCabe that the Fairfax County Animal Shelter from which Odin was adopted had not disclosed the pitbull’s violent history to the owner before purchase. 

Odin had originally been adopted from the Shenandoah Valley Animal Services Center in Augusta County, Virginia after it had been abandoned. Odin was returned mere hours later after it had killed the adopted family’s cat. The pitbull was later transferred to the Fairfax County Animal Shelter where it had been adopted and returned on two other occasions before ending up in the care of its fourth owner.

It was further revealed that after Odin was returned the then-management of the shelter had actively tried to get Odin readopted under different names and breed listings before Odin was ultimately put down. The management of the shelter led by then director Tawny Hammond and then assistant director Kristen Auerbach had imposed a “no kill” edict on the shelter setting a standard of 90% adoptions to 10% euthanized. 

This standard was based on the Asilomar Accords, a set of standards created by animal welfare groups in 2004 which set definitions on the health of animals. Another standard set by the accords was the 90/10 statistic that would allow a shelter to be considered a “no-kill” shelter.

However, the adoption of this standard goes against the Dillon Rule which means that the shelter couldn’t become a “no-kill” and refuse to euthanize animals since that would be an avoidance of their duties under the county law. 

The result of this edict was multiple reports of adopted animals attacking their adopters. These stories along with McCabe’s were the subject of a WUSA 9 investigative series which was broadcasted in August 2016. 

“People who knowingly sell sick, violent, and dangerous animals need to be held accountable,” stated McCabe to the Times.

One result of this and other such attacks was the addition to the requirements for adopting animals that bite histories of impounded or owner-surrendered must be investigated and disclosed to prospective adopters. This addition known as Virginia SB 571 was passed on March 30, 2018. 

Fairfax County Government was contacted for comment but have yet to respond as of this writing.

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