Detailed Discussion of Michigan Anti-animal Cruelty Law
- Sarah J. Williams
- Animal Legal and Historical Center
- Publish Date: 2002 (laws updated 2009)
- Place of Publication: Michigan State University - Detroit College of Law
[Editor's Note: The Michigan Legislature amended its duty to provide care statute (MCL 750.50) in 2007. The changes, which became effective in April of 2008, changed the law such that the sentence enhancement from misdemeanor to felony is based upon the number of animals involved or the number of prior convictions. In other words, under the new law, an offender faces a felony charge if he or she has a prior conviction or four to nine animals were involved. Amendments to the anti-animal fighting law in 2006 changed the penalty for attending an animal fight with knowledge that a fight is about to take place or preparations are being made for an animal fight from a misdemeanor to a four-year felony.]
The Michigan Legislature has designed three primary provisions related to cruelty to animals: intentional infliction of pain and suffering, duty to provide care, and anti-animal fighting. The intentional infliction of pain and suffering provision carries the most severe penalties for animal cruelty and a violation is automatically a felony. A violation of the duty to provide care provision is initially a misdemeanor, which becomes a felony for a second or subsequent violation. A violation of the anti-animal fighting provision is either a misdemeanor or a felony, depending on the severity of conduct related to fighting (for example, being a spectator at a fight is a misdemeanor while organizing a fight is a felony).
Much of the past animal cruelty case law concerns the malice requirement under the intentional violations. Courts have also considered whether mere ownership is sufficient under the prior statute; however, as will be seen, the change in statutory language may affect the statute’s reach. Another issue that courts have troubled over is the scope of the duty to provide care provision – specifically, whether certain acts or non-acts constitute cruelty under the provision. Further, courts have quickly dismissed challenges to the constitutionality of the anti-animal fighting provision.
A final key issue in anti-animal cruelty law is the disposition of the animals involved in a violation, which implicates not only search and seizure issues but has been dealt with significantly by the Michigan Legislature. First, the plain view exception is acceptable to the courts and has often been used to protect evidence or animals involved in an animal cruelty incident. Second, the Legislature has provided for a device for prosecutors to bring a civil action of forfeiture of an animal pending a criminal charge under either the duty to provide care provision or the intentional infliction of pain and suffering provision. Finally, under the anti-animal fighting provision, the animals involved are automatically forfeited to the state.
The strict measures employed by the Michigan Legislature – convicting offenders of felonies for intentional violations and subsequent failure to provide care provisions, providing for counseling for offenders, and calling for forfeiture of animals – are effective means of deterring animal cruelty that have been developed to reflect society’s greater compassion for all beings.
II. Intentional Infliction of Pain and Suffering
[Editor's Note: Michigan amended Section 750.50b in late 2008 such that the terms "willfully" and "maliciously" were changed to "knowingly." Thus, a person, without just cause, commits a felony if he or she knowingly kills, tortures, mutilates, maims, or disfigures an animal. With regard to the intentional cruelty to police dog or horse law, amendments in 2006 changed the penalty for the intentional killing or infliction of serious physical harm to a police dog, horse, or search and rescue dog to a five-year/$10,000 felony. Harassment or interference to such animal or causing a police animal physical harm is a misdemeanor punishable by up to one-year imprisonment or a fine of not more than $5000, or both. The penalty for causing harm to police animals while committing a felony increased to a two-year imprisonment term or a fine of not more than $15,000, or both.]
Section 750.50b is the primary felony anti-animal cruelty provision in Michigan. This provision punishes the willful and malicious infliction of injury to animals, defined as vertebrates other than human beings, without just cause or excuse. Injuries include killing, torturing, mutilating, maiming, disfiguring, or poisoning. Mich. Comp. Laws § 750.50b(1)-(2) (2001).
The offense is a felony punishable by imprisonment for no more than 4 years and/or a fine of no more than $5,000.00. §750.50b(2). The offender may be ordered to pay the costs of prosecution, to pay the costs of care, housing, and medical treatment for the animal victim, and to obtain a psychiatric or psychological evaluation and attend counseling if deemed necessary. § 750.50b(3)-(4). Further, punishment may include the temporary or permanent relinquishment of animal ownership, the violation of which subjects the offender to possible revocation of probation and the contempt powers of the court. §750.50b(5)-(6).
Although the provision purports to apply to all vertebrates other than humans, the Michigan Legislature has provided that it does not apply to certain economic or widely accepted activities. The provision does not apply to the lawful killing of livestock or customary animal husbandry of livestock, or lawful fishing, hunting, trapping, wildlife control, pest or rodent control, and animal research. § 750.50b(7)-(8). One can imagine the powerful economic interests related to this limitation. Certainly, the Legislature was hesitant to stifle important Michigan interests in hunting and agriculture.
Michigan anti-animal cruelty law also protects animals in work-related roles, such as guide dogs and police animals. The guide dog provision punishes, as a misdemeanor, conduct related to the assault, beating, harassment, injury, or impeding of the job duties of a guide or leader dog. § 750.50a(1)-(2). The section provides a rebuttable presumption of malice for conduct that continues after the impaired person accompanying the dog requests that the offender discontinue the conduct. § 750.50a(3). Further, the section defines malice as behavior ranging from the intentional harassment of the animal to knowingly engaging in conduct likely to cause injury, disturbance, or even emotional distress. § 750.50a. Punishment for the violation of this section is no more than 90 days and/or no more than $500.00. § 750.50a(2). The police animal provision prohibits conduct related to the killing of or seriously injuring a police horse or dog as felonies punishable by no more than 5 years imprisonment and/or no more than $2,500.00. §750.50c(2), (5). Prohibited conduct related to causing physical injury and harassing or interfering with a police horse or dog lawfully performing its duties are misdemeanors punishable by no more than 1 year imprisonment and/or a fine of no more than $500.00. §750.50c(3), (4), (6). This provision also punishes the misdemeanor violation during the commission of another crime as a felony punishable by no more than 2 years imprisonment and/or no more than $1,000.00. §750.50c(7). Given the increasing roles of animals in aiding disabled individuals and police officers, it is understandable why the Legislature would want to add an additional deterrent to the abuse of such animals.
A. Which animals are protected?
The current provision is explicit in its definition of those animals included under the statute, and thus courts as well as offenders are clear as to which animals are protected – all vertebrates other than humans. § 750.50b(1). The vague language of the previous provision left questions to be answered by the courts. In Iehl, the defendant was convicted under the previous provision, which punished any individual who “wilfully and maliciously kill[ed], maim[ed] or disfigure[d] any horses, cattle or any other beasts of another.” People v. Iehl, 299 N.W.2d 46, 47 (1980). The defendant argued on appeal that the evidence was insufficient to sustain a conviction for cruelty to animals because the dog that he killed was not considered a beast under the statute. Id. The court affirmed his conviction, finding that the Legislative intent, as determined from a similar statute enacted in the same year, was to include dogs as beasts covered by the statute. Id. Fortunately, the current statutory language dispels of the possibility of litigation related to which animals are protected under the statute by providing that all vertebrates other than humans are included.
B. Malice requirement
The malice requirement for the intentional infliction of pain and suffering provision has been the focus of several Michigan appellate cases. Under the previous provision, the prosecution had to prove that the defendant’s conduct in injuring the animal was “willful and malicious.” Because the malice requirement for the current provision is the same, a case study with respect to the malice required under the previous provision is instructive. In Minney, the Supreme Court of Michigan held that the general law of malice applied to the previous provision. People v. Minney, 119 N.W. 918, 921-22 (1908). The defendant was convicted of mutilating a horse when he cut off its tongue and raised the issue on appeal whether the lower court erred in allowing the instruction that malice towards the owner of the animal was not required. Id. at 918. The Court agreed with the lower court and seemed to hold that malice toward the owner was not necessary, using as precedent earlier cases, Petheram and Burkhardt, which held that the general law of malice provided the requisite intent to sustain a conviction. Id. at 921-22.
In Petheram, the defendant was convicted for conspiring to willfully and maliciously obstruct another’s business. People v. Petheram, 31 N.W. 188, 189 (1887). The defendant argued that to sustain the conviction the prosecution had to prove malice toward the business. Id. at 193. The court held that the prosecution did not need to prove malice toward the business or toward the owner of the business because the general law of malice, which indicates that the jury may infer malice from the acts of the defendant, was sufficient. Id. Similarly, in Burkhardt, the defendant was convicted for maliciously injuring a building. People v. Burkhardt, 40 N.W. 240, 240 (1888). The court held that the general law of malice was sufficient to sustain the conviction and that the prosecution was not required to prove malice toward either the owner or the property. Id. at 241.
Petheram and Burkhardt both deal with the malicious destruction of property. Thus, the court used its interpretation of malicious destruction of property statutes to develop its interpretation of the malice requirement required under the anti-cruelty statute. Although the Minney court does not explicitly state that the malice requirement is the same as that required under Petheram and Burkhardt because animals are viewed as property, the comparison begs the question why the court did not use case law dealing with human murder convictions. Interestingly, animals in Michigan and most other jurisdictions have been historically treated as property and such treatment is considered one of the significant downfalls of animal law.
The malice requirement was once again examined in Tessmer, when the defendant was convicted for willfully and maliciously maiming the horse of another. People v. Tessmer, 137 N.W. 214, 214 (1912). His claim of error on appeal was that the prosecution failed to show that he acted with malice toward the owner. Id. at 214-15. On the contrary, the defendant admitted that he cut off the horse’s tongue because he was angry at the horse for refusing to work. Id. at 214. For his argument, the defendant used Minney as controlling on the issue whether malice toward the owner was required. Id. at 215. In the defendant’s view of the opinion, the Minney court stated that the clear weight of authority in England and the United States holds that malice toward the owner is an essential requirement under the statute. Id. at 215-16. The Tessmer court found that this was a misleading statement, and that the mention of such authority did not indicate that the court adopted such a view. Id. at 216. Rather, the court adopted the view that malice was not required either toward the owner or toward the animal because the jury was free to infer the proper malice from the circumstances. Id. The defendant’s conviction in Tessmer was thus affirmed.
In Preston, the defendant was convicted for willfully and maliciously killing three of his neighbor’s cows. People v. Preston, 300 N.W. 853, 854 (1941). The conviction was largely based on a confession by the defendant during which time he explained that he purposely poisoned the cows to get even with his neighbor. Id. at 855-56. The defendant argued on appeal that the confession was procured with threats and that there was insufficient evidence aliunde the confession to find him guilty of the offense. Id. at 856-57. The court found that the testimony with regard to the grudge between the neighbors, the defendant’s knowledge that the neighbor would be gone for the day, the defendant’s access to the poison, and the actual poisoning of the cattle was sufficient on which to sustain the conviction. Id. at 857. Further, the court found that the requisite willful and malicious intent was properly inferable from those circumstances. Id.
In Iehl, which was discussed above with regard to the animals protected under the previous provision, the defendant was convicted for wilfully and maliciously killing the animal of another. 299 N.W.2d at 47. The defendant raised the issue on appeal whether the trial court erroneously instructed the jury that they could find him guilty under the anti-cruelty statute if they found that he acted with malice either toward the owner or toward the animal. Id. He believed that he could be found guilty only if he acted with malice toward the animal. Id. The court found error in the instructions; however, the court held that the error was not reversible because it simply added another element to be proved by the prosecution and did not prejudice the defendant. Id. at 47-48. The court affirmed the conviction, finding that the judge complied with the Standard Criminal Jury Instruction for malice: that defendant 1) committed the act, 2) while knowing it to be wrong, 3) without just cause or excuse, and 4) did it intentionally or 5) with a conscious disregard of known risks to the property of another. Id. See also CJI 32.1.01.
In McKnight, the Michigan Court of Appeals found once again that malice is inferable from the circumstances. People v. McKnight, 302 N.W.2d 241, 242 (1980). The defendant was convicted of maliciously injuring or destroying an animal when he kicked a dog to death during the commission of another crime. Id. at 242. On appeal, he argued that the evidence was insufficient to establish the requisite malicious intent under the animal cruelty statute. Id. at 243. The court disagreed, using Iehl as precedent, and found that the jury could properly infer malice where the evidence is such that he “intentionally set in motion a force likely to cause death or grievous bodily harm -- here kicking the dog.” Id. at 243-44.
The rule of law developed under the previous provision is that malice is properly inferable by the jury from the circumstances surrounding the incident. The cases indicate the difficulty that defendants have had with understanding whether malice must be proved by a particular showing of malice either toward the owner or toward the animal. Defendants of anti-cruelty violations have this tendency to deny their culpability with respect to the injury to the animal, even if it has been in fact proven that they caused the injury – perhaps because of their own conception of the animals as property. Surely, the current statute will be construed in the same manner as the previous provision (that is, by treating the malice requirement as proven by the general law of malice, which is inferable from the circumstances), as the malice requirement was not changed in the 2001 legislation. However, to date there are no published opinions that construe the current provision.
III. Duty to Provide Care
[Editor's Note: The duty to provide care provisions was amended by the Michigan Legislature in 2007 with the law becoming effective in April 2008. Under the new law, sentence enhancements are based on whether the offender has a prior conviction or the number of animals involved in the current violation. A violation becomes a felony if the offender has a prior conviction or the current violation involved four or more animals, but less than ten animals.]
While the intentional infliction of pain and suffering deals with willful and malicious acts, the Michigan Legislature has also provided for punishment of conduct related to the failure to provide care. The duty to provide care provision is unique in that it describes offenses that occur as a result of a failure to act at all. The duty to provide care provision imposes upon “an owner, possessor, or person having the charge or custody of an animal” the duty to provide an animal with adequate care. § 750.50(2)(a). Adequate care is defined as “the provision of sufficient food, water, shelter, sanitary conditions, exercise, and veterinary medical attention in order to maintain an animal in a state of good health.” § 750.50(1)(a). The provision also prohibits conduct as follows: cruelly driving, working, or beating animals, or causing an animal to be cruelly driven, worked, or beaten, carrying or causing an animal to be carried in a vehicle with its legs tied together, carrying or causing to be carried an animal in a vehicle without sufficient space, abandoning an animal without providing for their adequate care, willfully or negligently allowing an animal that is aged, sick, disabled, or nonambulatory to suffer unnecessary neglect, torture, or pain, or tethering a dog unless the tether is three times the length of the dog or more and attached to a harness or nonchoke collar designed for tethering. §750.50(2)(b)-(g).
A violation of the duty to provide care provision is a misdemeanor punishable by imprisonment for no more than 93 days, a fine of no more than $1,000.00, and/or community service of no more than 200 hours, as well as the prosecutor’s costs. § 750.50(4) . A second violation is a felony punishable by imprisonment for no more than 2 years, a fine of no more than $2,000.00, and/or community service of no more than 300 hours, as well as the prosecutor’s costs. Id. A third or subsequent violation is a felony punishable by imprisonment of no more than 4 years, a fine of no more than $5,000.00, and/or community service of no more than 500 hours, as well as the prosecutor’s costs. Id. The possibility that the court may impose prosecutor’s costs, which are certainly greater than court costs, is a significant deterrent in light of the fact that a first offense misdemeanor likely will not be sentenced to imprisonment. A further protection for animals under the duty to provide care provision is that it allows the court to order the defendant not to own or possess an animal for a maximum duration of the period of probation. §750.50(6). Even better, a second or subsequent violation could result in a court order for temporary or permanent relinquishment of animal ownership. Id. Finally, a violation of a court order of relinquishment of pet ownership may result in the revocation of probation, and the offender is subject to the contempt powers of the court which may include a punishment of imprisonment for no more than 90 days and/or a fine of no more than $500.00. §750.50(7).
As with the intentional infliction of pain and suffering provision, the duty to provide care provision does not apply to lawful fishing, hunting, trapping, or wildlife control, pest or rodent control, farming or generally accepted animal husbandry or farming practice, and scientific research. § 750.50(8). Unlike the other provision, the duty to provide care provision additionally does not apply to horse racing and zoos or aquariums. Id. Again, economic interests and widely accepted practices with regard to animals are the apparent reasons for these exceptions. Finally, as a means to deter officers from ignoring violations of the anti-animal cruelty provisions, the Michigan Legislature imposes a duty on them to enforce those provisions by punishing, as a misdemeanor, the failure of public officers to enforce the statute. § 750.52.
A. Who can be punished?
An issue relevant to the study of Michigan’s anti-animal cruelty statute is the reach of the statute; that is, who can be punished. The previous duty to provide care provision was designed to impose the duty of care on the person who had “the charge or custody of any animal, either as owner or otherwise.” C.L.1948, § 752.21 (Stat.Ann.1962 Rev. s 28.161). In Johnson, this issue was confronted when the defendants were convicted for the mistreatment of horses under the previous duty of care provision. People v. Johnson, 305 N.W.2d 560, 560 (1981). The defendant who was the owner of the horses argued on appeal that the evidence was insufficient to support his conviction because there was no proof that he had the charge or custody of the horses. Id. at 561. The court reversed his conviction, finding that the Legislative intent, as revealed by the phrase “as owner or otherwise,” was to punish the individual having charge or custody of the animal. Id. at 562. Thus, the statute was not intended to punish the defendant and owner William Johnson, absent charge or custody of the mistreated horses. Id. His son, however, was not so lucky – his conviction, as the individual who had custody of the horses and therefore the duty to provide them with “necessary sustenance,” was sustained. Id. at 562-63.
The wording of the current provision seems to indicate a different outcome. As stated above, the current provision imposes the duty of care on the “owner, possessor, or person having the charge or custody of the animal.” In light of the Johnson court’s interpretation of the previous provision, it is a fair reading of the current provision that the change in wording imposes the duty of care on the owner, absent charge or custody of the animal. Further, the prohibition of abandonment without providing for adequate care of the animal is evidence of an apparent Legislative intent to punish absentee owners.
B. Scope of duty
Another question raised by the duty to provide care provision is what acts (or non-acts) fall within the scope of the duty of care. The leading Michigan case with respect to duty of care is Olary, in which the defendant was convicted of animal cruelty when his cattle were discovered in varying degrees of emaciation. People v. Olary, 160 N.W.2d 348, 349 (1968). On appeal, the defendant argued that his conviction essentially punished him for failure to provide medical attention, a duty which was not imposed by the then-current animal cruelty statute. Id. Section 752.21 stated in pertinent part that “…whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or wilfully fails to provide the same with proper food, drink, shelter, or protection from the weather, shall, for every such offense, be punished….” C.L.1948, § 752.21 (Stat.Ann.1962 Rev. s 28.161). The majority held that an animal cruelty conviction may be sustained by a finding of inattention to the condition of animals. 160 N.W.2d at 349. The Olary court concluded by finding that the evidence was sufficient to support the conviction. Id.
The dissenting opinion, however, agreed with the prosecution – that the conviction improperly imposed the duty to provide medical care for the animals. Id. at 351-352. In support of his position, Judge Levin cited to the language of the statute, finding that it only imposed the duty to provide such things as food, drink, and shelter, and that it did not impose the duty to provide medical treatment. Id. at 350. He agreed with the majority’s proposition that a conviction could be sustained for inattention to the condition of the animals, but found that the prosecution failed to prove such inattention. Id. at 349. Instead, he argued, the court convicted based solely on the failure to provide medical attention and improperly imposed a duty that the statute did not. Id. at 351-352. Clearly, the dissenting judge did not consider failure to provide medical attention to emaciated cows to be “unnecessary cruelty.” Fortunately for the animals, the majority was not of the same opinion.
On appeal to the Michigan Supreme Court, the conviction was affirmed on the basis that the record was adequate to sustain a conviction of cruelty to animals for conduct which the defendant was well-equipped as a farmer to know was cruel. People v. Olary, 170 N.W.2d 842 (1969). Of course, the majority opinion did not explicitly state that the statute imposes the duty to provide medical attention. Id. at 843-44. The dissenters at the Supreme Court level adopted Levin’s dissent at the Court of Appeals, and would have reversed the conviction on the ground that the statute was being improperly construed to impose a duty of medical attention. Id. at 845-46. While this apparent controversy whether the majority opinion imposed such a duty was never resolved in the Olary appeals, the current duty of care provision dissolves of any notions of ambiguity by explicitly stating that an individual may be punished for failing to provide medical treatment to maintain the animal in a state of good health. See Mich. Comp. Laws § 750.50(1)(a) (2001).
An important element of statutory law as it relates to animal cruelty is notice. When a criminal statute is properly structured, it gives notice to persons within its jurisdiction of the conduct for which they may be criminally punished. People v. Noble, 608 N.W.2d 123, 127 (1998). If a statute does not give adequate notice, then it is unconstitutional for vagueness and thus failure to comply with due process of law. Id. In Olary, part of the defendant’s argument was that the then-current animal cruelty statute did not give him notice that the failure to provide medical treatment would result in criminal sanction. Olary, 170 N.W.2d 842, 843 (1969). The Olary conviction supports a contention that the statutory description of conduct such as “inflict[ing] unnecessary cruelty upon animals” gives persons notice that inattention to the emaciated condition of animals, including failure to provide medical attention to such animals, is conduct which may be punished under the statute. Id.
IV. Anti-Animal Fighting Provisions
[Editor's Note: Amendments to the anti-animal fighting law in 2006 changed the penalty for attending an animal fight with knowledge that a fight is about to take place or preparations are being made for an animal fight from a misdemeanor to a four-year felony. Further, a person who owns an animal that has been trained for fighting that attacks a person, but does not cause the death of that person, faces a felony punishable by up to 4 years imprisonment or a fine of up to $2000, or both.]
Michigan anti-animal cruelty law also provides for a comprehensive prohibition of conduct related to animal fighting. §750.49. As with the other provisions, this section is designed to protect any vertebrate other than a human. §750.49(1). Prohibited conduct includes the ownership or possession of animals used or trained for fighting or used as targets, being a party to or cause of the fighting, renting or using a building for an animal fight, permitting the use of a building for an animal fight, or organizing an animal fight. §750.49(2)(a)-(e). The provision also prohibits, as lesser felony offenses, knowingly being present at an animal fight, breeding, buying or offering to sell an animal trained or used for fighting, and owning or possessing devices used for animal fighting. §750.49(f)(h).
The commission of any of the former offenses is a felony punishable by imprisonment for not more than 4 years, a fine between $5,000.00 and $50,000.00, and/or between 500 and 1,000 hours of community service. § 750.49(3). The latter offenses are felonies punishable by not more than 4 years imprisonment, a fine between $1,000.00 and $5,000.00, and/or between 250 and 500 hours of community service. § 750.49(4). An individual who violates the anti-animal fighting provision may be ordered to pay for the costs of prosecution and the costs of housing and caring for the animal, including medical treatment. §750.49(5)-(6). Further, punishment necessarily includes the prohibition of animal ownership of the same species for a period of 5 years. § 750.49(7).
A significant portion of the provision is that that is dedicated to the prohibition of conduct related to the ownership of animals that kill or injure people with or without provocation. § 750.49(8)-(11). The offenses range from violations such that the owner of an animal that is incited to kill a person is guilty of a felony and may be punished, at the most, by imprisonment for life and, at the least, by imprisonment for 15 years, while the owner of an animal who injures but does not kill a person, and is not provoked, is guilty of a misdemeanor punishable by less than 1 year imprisonment and a $1,000.00 fine. Id. The provision also punishes as misdemeanors offenses where the animal trained or used for fighting goes beyond the owner’s property limits and where the where the animal is not properly enclosed or restrained on the property. § 750.49(13)-(14). This provision does not apply to certified leader dogs, law enforcement dogs, and certain private security dogs. § 750.49(15).
An animal used in violation of this provision is confiscated and taken to the local humane society or animal welfare agency, to which it is awarded if the defendant is convicted. § 750.49(16). An appointed veterinarian, humane society, or animal welfare agency may order that the animal be euthanized if it finds that the animal is injured beyond recovery and euthanization is necessary to prevent pain and suffering. § 750.49(17). If this is not the case, the veterinarian, humane society, or animal welfare agency must request a court hearing to determine whether the animal lacks any useful purpose or poses a threat to the public safety and should be euthanized. § 750.49(18). The provision then provides that expenses incurred in the animal’s care or euthanization “by a person, firm, partnership, corporation, or other entity” are charged to the animal’s owner. Presumably, then, any of those entities can possibly be classified as an appointed veterinarian, humane society, or animal welfare agency charged with determining the disposition of the animal. §750.49(18). Animals, equipment, and money that are involved in a violation of the anti-animal fighting statute are automatically forfeited to the state. § 750.49(19).
A. Constitutional challenges
The current anti-animal fighting statute has been upheld against challenges of unconstitutionality. In Beam, the defendant argued on appeal that the anti-animal fighting provision was unconstitutionally vague. He questioned whether he received adequate notice that his conduct was criminally punishable. People v. Beam, 624 N.W.2d 764, 766 (2000). The defendant was convicted for “owning a dog, trained or used for fighting, that caused the death of a person.” Id. See also Mich. Comp. Laws § 750.49(10) (2001). He argued on appeal that the statute was unconstitutionally vague for failing to give him notice that mere ownership of an animal, absent custody or care, could result in a conviction under the statute. Id. at 768. The court disagreed, finding that the clear language of the statute gives adequate notice to the owner of animals trained or used for fighting. Id. Section 750.49(10) states:
If an animal trained or used for fighting or an animal that is the first or second generation offspring of an animal trained or used for fighting attacks a person without provocation and causes the death of that person, the owner of the animal is guilty of a felony and shall be punished by imprisonment for a maximum term of not more than 15 years. [Emphasis added.]
In Cumper, the defendants argued on appeal that the previous Michigan anti-animal fighting provision was not only vague but unconstitutionally overbroad. People v. Cumper, 268 N.W.2d 696, 697 (1978). The provision in effect at the time stated in pertinent part that:
Any person who shall keep or use any bull, bear, dog, cock, or other animal or fowl or bird…for the purpose of fighting, baiting or as a target to be shot at, as a test of skill in marksmanship; and any person who shall be a party to or be present as a spectator at any such fighting, baiting or shooting of any bear, dog, cock or other animal, or fowl or bird…shall be guilty of a misdemeanor…. [Emphasis added.]
The defendants argued that the statute was vague and overbroad because it punished the mere witnessing of a fight. Id. at 698. The court disagreed, finding that the clear wording of the statute was structured to punish individuals who attended the dog-fight as spectators and not mere witnesses. Id. Thus, the scope of conduct prohibited by the statute did not impermissibly reach to individuals whose conduct was not sought to be punished by the Legislature. Id. Further, the statute clearly gave notice to those who would be spectators at a fight that the conduct was punishable. Id.
V. Search and Seizure under Michigan Anti-animal Cruelty Law
Search and seizure issues arise either when the prosecutor attempts to remove animals from the offender’s care – or lack of it – or when the prosecutor attempts to use evidence obtained during a search. The Michigan Legislature has provided for civil actions against criminal offenders of anti-animal cruelty provisions compelling forfeiture of their animals pending charges. Further, the common law plain view exception aids prosecutors in obtaining and preserving valuable evidence against these offenders.
A. Procedural element for holding animals pending charges
When an individual is arrested for violating an anti-cruelty provision, the arresting officer has a duty to seize the animals in custody of the arrested person, as well as any animals used in furtherance of a violation. The officer then has a duty to turn the animals over to the animal control shelter, its designee, or a licensed veterinarian, who in turn has a duty to receive the animals. § 750.53.
For violations of section 750.50 and 50b (forfeiture procedure for violations of section 750.49 are discussed above), the prosecuting attorney may file a civil action for forfeiture of the animal against the offender while criminal charges are pending. § 750.50(3). The hearing is to be held within 14 days of the filing of the civil action, in the same jurisdiction as the criminal action, and before a judge without a jury. Id. If the prosecuting attorney proves by a preponderance of the evidence that the violation occurred, the court will order forfeiture. Id. However, the defendant has an option to avoid forfeiture; the animal is not forfeited if the defendant submits security to cover reasonable expenses incurred in holding the animal as well as expected future expenses. Id.
The holding provision also requires the court, in a case where forfeiture is not ordered and full costs are not charged to the defendant, to state on the record its reasons for not imposing full costs. § 750.50(5). Interestingly, the holding provision insures not only that defendant’s testimony at the civil trial is not admissible in the subsequent criminal trial (although the testimony is admissible in a criminal trial for perjury), but also that defendant’s testimony at the civil trial does not waive the defendant’s right under the Self-Incrimination Clause. § 750.50(3).
B. Plain view exception
The plain view exception is an issue that often arises in relation to searches and seizures for anti-animal cruelty violations. Specifically, defendants attempt to argue that the seizure of their mistreated animals constitutes an illegal search and seizure. Generally, an officer needs a warrant to search the property of another. Johnson, 305 N.W.2d at 562. The right against unreasonable search and seizures is guaranteed under the state and federal constitutions. U.S. Const. amend. IV; MI Const. art. 1, §11. An illegal search may result in the striking of the evidence obtained during the search. People v. Jordan, 468 N.W.2d 294, 299 (1991). However, under the plain view exception, an officer may perform a search without a warrant if the evidence is in plain sight and she had prior justification for her presence at the scene of discovery. 305 N.W.2d at 562. Further, the discovery of the evidence must be inadvertent, and the circumstances must require immediate action. Id.
In Johnson, the plain view exception was applied to a case of animal cruelty when the defendants raised the issue on appeal whether they had been the subjects of an illegal search and seizure. Id. The mistreated horses were in plain sight in the defendants’ field, the Humane Society called the officer to inform him that the horses were in danger, the officer was not sent to the property to obtain evidence, and, finally, the officer felt that it was necessary to immediately remove the horses from the property to save them. Id. at 563. The Johnson court felt that the situation fit perfectly in the plain view exception and held that the entrance onto the property did not constitute illegal search and seizure. Id.
Besides to adequately compensate and protect the animals and their owners, there is a substantial reason why violations of anti-animal cruelty statutes should be punished severely – cruelty to animals has been connected to a violent nature in people, even children. This finding is a strong argument for the strengthening of anti-animal cruelty statutes to include tougher deterrents and counseling for the offenders. Anti-animal cruelty law is gaining increasing attention as it evolves toward a more humane treatment of animals because of stronger penalties and heightened awareness of the issues created by enforcement of the statute.
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