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November/December News

  The SWIMS Act introduced in U.S. House would end import and export of certain marine mammals for public display. The Strengthening Welfare in Marine Settings Act of 2022, or SWIMS Act (HR 8514), was developed by advocacy organization the Nonhuman Rights Project. The act would amend the Marine Mammal Protection Act by banning the export or import of cetaceans like orcas, beluga whales, false killer whales, and pilot whales for public display in captivity. Only export and import for the purpose of bringing the animals to an approved marine mammal sanctuary would be allowed. In addition, the act amends the Animal Welfare Act by making it “unlawful for any person to breed or artificially inseminate any orca, beluga whale, false killer whale, or pilot whale for purposes of using the progeny of such species for public display.” If passed the SWIMS Act would be the first amendment to the MMPA in nearly 30 years. Want more on the MMPA? Check out our new article: Reviewing the Marine Mammal Protection Act Through a Modern Lens by Bradley Varner.

  California (AB 2606) and Delaware (HB 333) ponder cat “declawing” bans in 2022. In 2019, New York became the first state to ban this elective and painful surgery for cats (McKinney's Agriculture and Markets Law § 381). Maryland’s Governor Larry Hogan signed HB0022 in April of 2022 to become the second state to ban the procedure (which becomes effective on October 1, 2022). Amputation of a cat’s toes through onychectomy (the formal name for cat declawing) is not the only convenience surgery regularly performed on companion animals. States have begun to examine non-therapeutic tail docking and ear cropping in dogs as well, though no state bans those procedures outright. Curious to learn more about medically unnecessary surgeries in companion animals? Check out our new paper Detailed Discussion of Non-Therapeutic Procedures for Companion Animals by Asia Siev.

  Massachusetts becomes 12th state to enact a “Beagle Freedom Law.” On August 4, 2022, Governor Charlie Baker signed H. 901 into law. This new law mandates that “a research facility or product testing facility shall, after the completion of any testing or research involving a dog or cat that does not require euthanasia of the animal upon the termination of the study . .  . make a reasonable effort to offer the dog or cat for adoption to an individual, an animal shelter or an animal rescue organization for the purpose of facilitating the adoption of said dog or cat to a permanent adoptive home.” The research or animal testing facilities may also enter into cooperative agreements with animal rescue organizations to carry out the provisions of this new law. To see the states that have enacted these laws, please see our Map.

News archives

Cases

Dog left in parked car on "very hot" day created a substantial and unjustifiable risk sufficient to establish criminal negligence. State v. Butler, --- A.3d ----, 2022 WL 4488304 (N.H. Sept. 28, 2022).  Defendant Kevin Butler was convicted of criminal negligence after he left his dog inside a parked vehicle for 45 minutes when the temperature was over 90 degrees outside. The charge came after a neighbor noticed a dog in the vehicle that was "scratching at the windows and the door" and appeared to be in distress. After calling the police, an animal control officer removed the animal from the unlocked car and transported the distressed dog to a local veterinary clinic. At trial, the defendant testified that he was out running errands on a "very hot" day, and asked his son to get the dog out of the car as Defendant's hands were full. On appeal here, Defendant contends that the evidence was insufficient to establish the mens rea of criminal negligence for both charges. The State must prove that a defendant “fail[ed] to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct" and that this risk constitutes a gross deviation from conduct performed by a reasonable person. Here, the court found that the record supports the trial court's conclusion that the defendant failed to become aware of a substantial and unjustifiable risk that the dog would overheat in the car and that his failure to perceive this risk constituted a gross deviation from reasonable care. The temperature was high that day, the car was parked in direct sunlight with all the windows up, and the dog was left for around an hour. The fact that Defendant relied upon his 8-year-old son to remove the dog under these circumstances constituted a gross deviation from reasonable care. This was not "mere inattention" as Defendant claimed. The conviction was affirmed.

Summary judgment not appropriate in Indiana where evidence presented that Great Dane dogs have a "natural propensity" to be territorial. Daniels v. Drake, 195 N.E.3d 866 (Ind. Ct. App. 2022). Plaintiff Damon Daniels appeals from the trial court's entry of summary judgment in favor of the Drakes. The incident stems from an unprovoked dog bite at defendants' home. The Drakes live on a large, rural property in Indiana with no neighbors. The Drakes' dog "Max," a large Great Dane, would roam the property unrestrained. In September of 2020, Daniels, a FedEx driver, entered the property to deliver a package. After walking toward Lisa with the package, Max barked once and then bit Daniels in the abdomen. Daniels sustained puncture wounds, a one-centimeter laceration, swelling and a hematoma from the bite. After Daniels filed the instant complaint seeking damages related to the dog bite, the Drakes filed a motion for summary judgment claiming that they did not have actual knowledge of Max's vicious propensities prior to the bite. In response, Daniels contended that Great Danes have a "natural propensity" to be territorial, which is exacerbated by isolation. The trial court granted summary judgment in favor of defendants. On appeal here, the court explained that Indiana law states that knowledge of a dog's dangerous or vicious tendencies may not be inferred from a first-time, unprovoked bite, but that knowledge may be inferred where evidence shows that the particular breed to which the owner's dog belongs is known to exhibit such tendencies." While the court observed that the Drakes presented evidence of a lack of actual knowledge of Max's vicious propensities, the expert who testified on Great Dane behavior presented evidence that Great Danes might behave with "territorial aggressive tendencies" in a given situation. The Drakes argued on appeal (for the first time) that this evidence by a canine behavioral expert was "immaterial" and cannot be used to show what lay people would know about Great Danes. The court was unpersuaded by the Drakes' novel argument, and this created a genuine issue of material fact. Thus, this court reversed the order granting summary judgment for the Drakes and remanded the case for further proceedings.

Virginia animal cruelty statute does not require that malicious maiming of livestock animals must be against the will of the owner. Haefele v. Commonwealth, 878 S.E.2d 422 (Va. Ct. App. Oct. 18, 2022). Defendant Haefele was convicted of two counts of maliciously maiming the livestock of another, in violation of Code § 18.2-144, and two counts of conspiring to maliciously maim the livestock of another. Defendant's neighbor possessed two goats on her property in Spotsylvania County and received several complaints. Ultimately, the code enforcement officer instructed the neighbor to remove the goats and even offered assistance in relocating them. However, about a month after this order, Defendant and two other men entered the neighbor's goat pen with the neighbor's permission and killed the goats with “what looked like a two-by-four with spikes wrapped around it." After investigation and review of video footage taken of the attack, Defendant and the two others were charged and convicted by bench trial in 2021. Testimony by an expert in veterinary pathology revealed that the animals suffered before they died. On appeal here, Defendant contends that he could not be convicted  “because the defendant [Haefele] was acting with the permission of, and in concert with, the owner of the animals in question.” The court disagreed, finding no language in the statute that limits the statute only to acts that were against the will of the owner. Defendant also claims he did not act with requisite malice because the “the owner of the goats had given him permission to act against the goats." Again, the court recounted the brutal and repeated acts against the goats that occurred over a ten-minute span. Thus, the evidence showed that Defendant acted with sufficiently demonstrated malice. While livestock owners can ask others to euthanize or properly slaughter their livestock, the manner in which Defendant caused the goats' deaths clearly demonstrated malicious intent. Affirmed and remanded.

Felonious cruelty to animals conviction in North Carolina affirmed where jury concluded that a defendant maliciously set fire that proximately caused the puppy's death. State v. Charles, 878 S.E.2d 166 (N.C. Ct. App., 2022). Defendant Cheito Charles appealed from judgments entered upon a jury verdict finding him guilty of second-degree arson and felonious cruelty to animals. The incident stemmed from a house fire in the summer of 2020 where the defendant set fire to his sister's boyfriend's house while the boyfriend's puppy was still inside. At trial, the defendant contended that there was no evidence that he knew the existence of the puppy. However, the trial court instructed the jury that, in order to convict Defendant of felonious cruelty to animals, the jury need only conclude that Defendant maliciously and “intentionally start[ed] a house fire which proximately result[ed] in the injury or death to the animal.” There was no need to prove that Defendant was aware of the puppy in the home. Ultimately, Defendant was convicted of second-degree arson and felonious cruelty to animals. On appeal here, Defendant argues that the trial court erred by instructing the jury on the doctrine of transferred intent regarding the animal cruelty charge. This court rebuffed this argument, finding that there was no error with instruction since the jury only needed to conclude that Defendant maliciously set the fire that proximately caused the puppy's death. This same reasoning also supported the sufficiency of the evidence claim. The court dispensed with Defendant's final argument as to the sufficiency of the indictment. As a result, the appellate court found no error with Defendant's trial.

Case Archives

Articles

Forgotten Victims of War: Animals and the International Law of Armed Conflict, Saba Pipia, 28 Animal L. 175 (2022).

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).