It was Valentine’s Day 2017 and Darryl Lunon was in bed with the flu.
His wife, Barbara, had been called away to Kuwait with the Army National Guard, and their youngest son, 22-year-old Roderick, was basically in charge of the house.
The family’s beloved 8-month-old German shepherd pup, Bibi, had just come into heat and wasn’t allowed to roam outside. But she had to go to the bathroom, so Roderick let her out for just a quick foray into the night.
But no sooner had he opened the door than lightning flashed and thunder boomed, and the spooked dog began to run. Lunon hadn’t quite finished fencing part of the family’s 5-acre tract about 3 miles outside the Little Rock city limits, near Arch Street and Dixon Road, and Bibi managed to find an open area and escape.
She never resurfaced that night, but the next day, a neighbor 4 miles away from the Lunons saw the still-frightened dog cowering in his garage, where she had apparently spent the night.
Will Quinn, the neighbor, didn’t know whose dog she was, so he called the Pulaski County sheriff’s office, which dispatched a county animal control officer to pick up the young black-and-tan shepherd.
Although Bibi wore a collar with a riveted-on tag with her name and Lunon’s phone number, had a microchip with Lunon’s name and number implanted under her fur at the back of her neck, and had an identification number tattooed on her ear, the animal control officer took her to the North Little Rock Animal Shelter, which has a contract to house all stray animals picked up in the unincorporated areas of the county, and booked her in as a male dog, owner unknown. No one scanned her with the shelter’s hand-held microchip detector and no one checked her ear for a tattoo, although someone did remove her collar, later saying no tag had been seen.
Five days went by with no one coming forward to claim her, so she was spayed and put up for adoption, per policy, and was adopted five days later, on Feb. 24, 2017.
Lunon, a retiring human-resources executive at a local hospital, says he didn’t call or visit the shelter in search of Bibi because he was confident that if an animal control officer had picked her up, she would be identified and he would be notified. He also had no idea that the North Little Rock shelter kept dogs picked up in the county.
He did, however, contact the Little Rock Animal Shelter, just in case, and said shelter employees were good about contacting him every time they picked up a dog matching Bibi’s description, but none of them turned out to be his Bibi.
Lunon, who is also a diabetic, recalls that it was a “stressful time.”
His wife, who considered Bibi her dog, called daily from overseas to see if the pup had been found, while Lunon papered his neighborhood with signs bearing Bibi’s picture. At the same time, he said, he struggled to control his diabetes and wind down his career at the University of Arkansas for Medical Sciences.
Underlying it all, he said, the family was not only heartsick over the loss of a beloved pet but deeply concerned about the disappearance of the registered purebred dog that he had paid $2,300 to adopt at eight weeks of age, with plans for her to be his foundational female in his dog-breeding business, Lunon Haus Kennels. He said he was anticipating that Bibi’s puppies, when she was allowed to have puppies after reaching two years of age, were expected to sell for $2,500 to $4,000 apiece.
Lunon Haus Kennels breeds and sells dogs with prestigious bloodlines for various purposes — personal protection, search and rescue, or to become police dogs or other working dogs. Lunon said he has bred dogs for over 20 years and planned to focus fulltime on his dog-breeding business after he retired at the end of April. Bibi Von Sonnenberg, as Bibi is officially known, was to be the star of the show because of her championship lineage.
“Her uncle, Hank, is the only three-time world champion,” Lunon said, referring to a German shepherd from Germany. He said that because of that and a careful training regimen and diet he had started Bibi on, “she had everything to be a competitive, top-notch show dog.”
But by the time Quinn, his neighbor, saw a sign with Bibi’s picture on it and called Lunon to let him know she had been picked up by Animal Control, she had been missing just over a month. It was March 18, 2017.
Lunon said he went to the shelter, which initially denied ever picking up such a dog until he went to the sheriff’s office and got a copy of a report that documented Quinn’s Feb. 15 call and a pickup the same day in Quinn’s yard by an animal control officer named Jonathan Dupree. The officer had even remarked to Quinn that the dog was valuable and he would like to adopt her, court records show.
But Lunon quickly learned that he was too late. She had already been adopted.
Lunon found out the name of the new owner and tried to get Bibi back, but the new owner, whose children were already attached to her, said no.
So began an epic court battle that has so far cost Lunon close to $10,000 and an inordinate amount of stress. It started in Pulaski County Circuit Court, was moved to federal court and is now at the door of the 8th U.S. Circuit Court of Appeals in St. Louis.
Although Bibi was returned to Lunon at the direction of Pulaski County Circuit Judge Mary Spencer McGowan several months after he filed a lawsuit on June 23, 2017, the case isn’t over. What began as a lawsuit aimed at recovering personal property was amended on Sept. 15, 2017, to include a due-process claim for impounding and sterilizing Bibi without giving Lunon proper notice, for which he is seeking monetary damages against the county and the city.
“That took my breeding program back to zero,” Lunon said last week. He said Bibi “had everything to be a very competitive, top-notch show dog,” but the experiences she went through “took almost all of the protectiveness out of her,” though she is still a “good family dog.”
By adding a constitutional claim, Lunon created an opportunity for Colin Jorgensen, an attorney for the Association of Arkansas Counties who represents Pulaski County, to move the case to federal court, which also has jurisdiction over constitutional claims.
In an order issued late last month, 13 months after the case was filed in federal court, Chief U.S. District Judge Brian Miller denied motions from the county, the city of North Little Rock and the individual employees of the agencies to dismiss the case. He said Lunon and his attorney, Kenya G. Davenport of Little Rock, have presented sufficient evidence of a genuine dispute “as to whether there was a predictable, established practice, approved and furthered by the directors of Animal Control and the Animal Shelter, of not scanning dogs for microchips and waiting for owners to call, in violation of written policy and ordinance.”
He said evidence presented by Lunon also suggests that “this practice was not — as defendants contend — a random, unauthorized, or isolated negligent act or violation of law that the state could not foresee or control.”
The judge cited testimony from Kathy Botsford, director of Animal Services for the county, that employees don’t always scan impounded animals for microchips and, instead, usually wait for owners to contact the shelter.
“Before the government deprives a citizen of his property, the citizen is entitled to notice of the proposed government action and an opportunity to be heard,” Miller’s order said.
He noted that the record of the case supports Lunon’s claim that the animal agencies “have a custom or policy of violating the rights of pet owners to notice before impounding, sterilizing, adopting out, or euthanizing readily identifiable dogs.”
Jorgensen and North Little Rock’s city attorney, Amy Boeckmann Fields, appealed Miller’s refusal to grant qualified immunity to the city and the county to the 8th Circuit. Until the federal appeals court rules on the appeal, which could take months, the case cannot return to Miller’s jurisdiction and be set for trial.
Jorgensen acknowledged Tuesday that while the policies at each animal agency require employees to scan all stray dogs and cats for microchips and identifying marks in an effort to quickly reunite them with owners, the actual practices often fall short.
If a federal jury determines that either or both animal services agency violated Lunon’s due-process rights guaranteed under the Fourth Amendment, the case could lead to stricter requirements for animal workers, he said, adding, “My clients are particularly concerned about that.”
While the workers try to adhere to policies, sometimes the policy doesn’t make sense or the employee is simply too busy to cross all the t’s and dot all the i’s, he said, noting that in many cases “it can be time-consuming and fruitless” to try to track down a stray dog’s owner.
“The reality is, a lot of times when the owner is found, the owner denies ownership,” Jorgensen said. Or when an employee scans for an embedded microchip and finds one, often the chip registers to an original owner, but the animal has since had other owners and the chip hasn’t been updated, he said.
Jorgensen said that Dupree’s actions in misidentifying Bibi as a male and never scanning her with a microchip amounted to “just an unfortunate failure” to follow a policy, and not a deliberate attempt to separate dog and owner. He said Dupree was the only employee on duty that day, “had a backlog of calls,” and made a “quick decision” not to go through all the required motions, so that he could get to his other duties.
But the lawsuit implies that the officer’s actions may have been deliberate, and Lunon says he believes that was the case.
Fields also said she believes that the circumstances that day were “unusual,” especially with the animal agency being so short-staffed and busy. She noted that, “In the year and a half that I’ve worked for North Little Rock, this is the only incident that I’ve heard of where a microchip was missed. … I don’t think it was a common occurrence.”
The county officer who brings a stray animal to the facility is supposed to scan for a microchip, but the scanner actually belongs to the shelter and can be used anytime by shelter staff to double-check, according to court documents.
Fields said that David Miles, the director of North Little Rock’s shelter, “would probably say that since this happened, his employees are especially careful” to scan animals for microchips, so pet owners shouldn’t be overly concerned that if their animal is picked up, it won’t be scanned.
But Jorgensen said he would always advise owners of lost pets to physically “come to the shelter.”
“They want to find the owners. They all do,” he said. “But the only way to be 100 percent sure is to go” to any facility where the animal is likely to be, even if, as in this case, you live south of Little Rock but the facility is in North Little Rock.
In this case, he said, the officer “just skipped a step because he had too much to do.”
Metro on 11/26/2018