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July News

  Ohio enacts changes that allow first responders to perform emergency medical services on cat or dog. The legislation (HB 187) becomes effective on August 31, 2016 according to the Ohio Legislature's website. The bill does two main things. First, it adds an exemption under Section 4741.20 of the veterinary practice code for "a first responder, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic" who performs emergency medical services to a cat or dog. This exempts those individuals engaged in lifesaving services from the scope of veterinary practice (and the prohibition against practicing veterinary medicine without a license). Second, the bill adds Section 4765.52 to the Emergency Medical Services Chapter of the Ohio Code. This new section defines exactly what a first responder can do for a cat or dog who needs emergent care, such as opening and manually maintaining an airway, managing ventilation by mask, immobilizing fractures, and administering the naloxone hydrochloride ("Narcan") among other listed things. This section also provides immunity for civil liability resulting from emergency medical services to a dog or cat unless the act or omission constitutes willful or wanton misconduct.

  New Hampshire becomes 41st to ban sexual assault of animals. On June 24, 2016 Governor Maggie Hassan signed HB 1547 into law. The law adds a new section to the anti-cruelty provisions: Section 644:8-g. This section makes engaging in sexual contact or penetration with animals for the purpose of arousal or gratification a class A misdemeanor for a first offense, becoming a class B felony for a second or subsequent offense. It also makes offering or selling an animal with the intent that it be used for that purpose a crime. Upon conviction, a court must order the offender to undergo a psychological assessment/counseling and prohibits ownership of any animal by the defendant "for a period of time deemed reasonable by the court." The vast majority of states have laws that prohibit sexual activity with animals, with the exception of Hawaii, Kentucky, Nevada, New Mexico, Ohio, Texas, Vermont, West Virginia and Wyoming, and the District of Columbia. To view an updated table of all these laws that lists penalties and links to the actual statute, see the Comparative Table.

 Several more states enacted "hot pets in cars" laws in 2015-2016, bringing grand total to 22 states with such laws. In the past year, states including Delaware, Florida, Virginia, and Washington have either enacted new laws or changed the rescue provision of their existing laws on pets left unattended in motor vehicles. In general, these laws vary from state-to-state and either criminalize the act of leaving a pet unattended in a vehicle under conditions that pose a danger to the welfare of an animal, or allow a person who sees a "vulnerable" animal (or person) to use "reasonable force" to remove said animal. Many of these laws do not limit criminal prosecution to these laws (i.e., a person may face additional animal cruelty charges). You can see a table of all state laws on leaving pets in hot cars by visiting our Comparative Table of Laws.

New archives

Cases

Kuehl v. Sellner, 2016 WL 3429679 (unpublished) (N.D. Iowa June 17, 2016). Five Plaintiffs and the Animal Legal Defense Fund filed a complaint against Defendants seeking declaratory and injunctive relief. The Plaintiffs claimed that the Defendants violated the Endangered Species Act (ESA), by holding captive endangered species (specifically the lemurs and tigers housed at Cricket Hollow Zoo). The United States District Court, N.D. Iowa, Eastern Division ordered the Defendants to transfer the lemurs and tigers in their possession “to an appropriate facility which is licensed by the USDA and is capable of meeting the needs of the endangered species.” The Defendants proposed transporting the lemurs to Special Memories Zoo in Hortonville, Wisconsin, and transporting the tigers to the Exotic Feline Rescue Center in Centerpoint, Indiana. The Plaintiffs claimed that the placements did not comply with the Court's Order and proposed that the lemurs be placed with the Prosimian Sanctuary in Jacksonville, Florida, and the tigers be transported to the Wild Animal Sanctuary in Keenesburg, Colorado. The Court held that the Special Memories Zoo was capable of meeting the lemurs' needs and should be transported there as the Defendant’s proposed. The court reasoned that even if the Court found Special Memories incapable of meeting the lemurs' needs, the Prosimian Sanctuary as proposed by the Plaintiff's was not licensed by the USDA. The Court also held that the endangered tigers should be transferred to the Exotic Feline Rescue Center as the Defendant’s proposed.

Mayfield v. Bethards, --- F.3d ---- 2016 WL 3397503 (10th Cir., 2016). Plaintiffs sued defendant, Officer Bethards, for unlawfully killing their pet dog Majka. Plaintiffs' dogs were lying in plaintiffs' unfenced front yard when the officers entered the yard and then followed the dogs to the back of the house, eventually killing one of the dogs. The plaintiffs argued that by unlawfully killing their dog, Officer Bethards violated their constitutional rights under the Fourth Amendment by entering the property without a warrant with the intention of killing the dogs. Officer Bethards moved to have the complaint dismissed for a failure to state a claim and the court denied this motion. Specifically, Officer Bethards argued that this was not a violation of the Fourth Amendment because the Fourth Amendment only applies to “effects,” which does not include dogs. The court disagreed, finding that Fourth Amendment protection for pet dogs is a clearly established right. Ultimately, the court held that the plaintiffs asserted facts sufficient to show a violation of their clearly established Fourth Amendment rights and the district court's order denying Deputy Bethards's motion to dismiss was affirmed.

Protect Our Communities Foundation v. Jewell, --- F.3d ---- 2016 WL 3165630 (9th Cir. June 7, 2016). In this case, various environmental groups filed suit against the Bureau of Land Management (BLM) and the Department of the Interior, arguing that the BLM should not have granted right-of-way on federal lands to a proposed energy project because the project would violate the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act. The plaintiffs also argued that the BLM’s environmental impact statement (EIS) for the project was not sufficient according to the National Environmental Policy Act (NEPA). Ultimately, the court held in favor of the defendants and found that the EIS was sufficient under the NEPA and that by granting the right-of-way, BLM was not violation the MBTA or the Bald and Golden Eagle Protection Act. The court found that the EIS was sufficient under the NEPA because it included all the necessary information and was broad enough as to not force the BLM into automatically accepting the proposal. Additionally, the court held that the BLM was not in violation of the MBTA or the Bald and Golden Eagle Protection Act because the BLM was acting in a “purely regulatory capacity” and the BLM’s action could directly or proximately cause a violation under the MBTA or the Bald and Golden Eagle Protection Act.

Barking Hound Village v. Monyak,  --- S.E.2d   ---- 2016 WL 3144352, 2016 WL 3144352 (Ga., 2016). In 2012, Plaintiffs Robert and Elizabeth Monyaks took their dogs, Lola and Callie, for ten days to a kennel owned by Defendants Barking Hound Village, LLC (“BHV”) and managed by William Furman. Callie, had been prescribed an anti-inflammatory drug for arthritis pain. Three days after picking up their dogs from BHV, Lola was diagnosed with acute renal failure and died in March 2013. The Monyaks sued BHV and Furman for damages alleging that while at the kennel Lola was administered toxic doses of the arthritis medication prescribed for Callie. BHV and Furman moved for summary judgment on all the Monyaks' claims asserting that the measure of damages for the death of a dog was capped at the dog's fair market value and the Monyaks failed to prove that Lola had any market value. The Court of Appeals concluded that the proper measure of damages for the loss of a pet is the actual value of the dog to its owners rather than the dog’s fair market value. The court stated that the actual value of the animal could be demonstrated by reasonable veterinary and other expenses incurred by its owners in treating injuries, as well as by other economic factors. However, evidence of non-economic factors demonstrating the dog's intrinsic value to its owners would not be admissible. The Supreme Court of Georgia reversed in part and held that the damages recoverable by the owners of an animal negligently killed by another includes both the animal's fair market value at the time of the loss plus interest, and, in addition, any medical and other expenses reasonably incurred in treating the animal. The Supreme Court reasoned that “[t]he value of [a] dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.” The Supreme Court also affirmed the Court of Appeals in part and found no error in the court's determination that Georgia precedent does not allow for the recovery of damages based on the sentimental value of personal property to its owner. 

Com. v. Trefry,  --- N.E.3d ---- 2016 WL 3262665 (Mass. App. Ct., 2016). The Defendant Trefry, left her two sheepdogs, Zach and Kenji, alone on the property of her condemned home. An animal control officer noticed that Kenji was limping badly and took him to a veterinarian. Both dogs were removed from the property three days later. The Defendant was convicted of two counts of violating statute G.L. c. 140, § 174E(f ), which protects dogs from cruel conditions and inhumane chaining or tethering. The Defendant appealed. The Appeals Court of Massachusetts, Barnstable held that: (1) neither outside confinement nor confinement in general is an element of subjecting dogs to cruel conditions as prohibited by statute; and (2) the evidence was sufficient to support finding that the defendant subjected her dogs to cruel conditions. The Appeals Court reasoned that the defendant subjected her dogs to cruel conditions in violation of the statute because by the time they were removed, the dogs were “incredibly tick-infested” and “matted,” and Kenji had contracted Lyme disease and sustained a soft shoulder injury to his leg. The area to which the dogs were confined presented with every factor listed in § 174E(f)(1) as constituting “filthy and dirty” conditions. Also, "Zach's and Kenji's emotional health was further compromised by being left alone virtually all day every day" according to the court. Therefore the Defendant’s conviction was affirmed.

State v Newcomb, 359 Or 756 (2016). In this case, the Supreme Court of Oregon reviewed a case in which defendant accused the State of violating her constitutional rights by taking a blood sample of her dog without a warrant to do so. Ultimately, the court held that the defendant did not have a protected privacy interest in the dog’s blood and therefore the state did not violate defendant’s constitutional rights. Defendant’s dog, Juno, was seized by the Humane Society after a worker made a visit to plaintiff’s home and had probable cause to believe that Juno was emaciated from not receiving food from plaintiff. After Juno was seized and taken into custody for care, the veterinarian took a blood sample from Juno to confirm that there was no other medical reason as to why Juno was emaciated. Defendant argued that this blood test was a violation of her constitutional rights because the veterinarian did not have a warrant to perform the test. The court dismissed this argument and held that once Juno was taken into custody, defendant had “lost her rights of dominion and control over Juno, at least on a temporary basis.” Finally, the court held that because Juno was lawfully seized and Juno’s blood was “not ‘information’ that defendant placed in Juno for safekeeping or to conceal from view,” defendant’s constitutional rights had not been violated.

Case Archives

Articles

Animals as More Than 'Mere Things,' but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm, Richard L. Cupp, Jr., University of Cincinnati Law Review, Forthcoming; Pepperdine University Legal Studies Research Paper No. 19 (available at SSRN: http://ssrn.com/abstract=2788309).

Designing a Model Dog Park Law,  John J. Ensminger and Frances Breitkopf, Animal Legal & Historical Center (2016).

Take it to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act, Jonathan Wood, 33 Pace Envtl. L. Rev. 23 (2015).

Redefining The Modern Circus: A Comparative Look At The Regulations Governing Circus Animal Treatment And America's Neglect Of Circus Animal Welfare, Jacqueline Neumann, 36 Whittier L. Rev. 167 (2014).

Why Can't I Know How The Sausage Is Made?: How Ag-Gag Statutes Threaten Animal Welfare Groups And The First Amendment, Daniel L. Sternberg, 13 Cardozo Pub. L. Pol'y & Ethics J. 625 (2015).

Interpreting “Enhancement Of Survival” In Granting Section 10 Endangered Species Act Exemptions To Animal Exhibitors, Anne Haas, 32 Pace Envtl. L. Rev. 956 (2015).