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July News

 

  Twenty-eight (28) states have laws that concern companion animals left unattended in parked vehicles under dangerous conditions as of May 2018. In some states, leaving an animal in an unattended vehicle under dangerous conditions is a crime. Many states also give immunity to law enforcement or other first responders who forcibly enter vehicles to rescue animals. Recently, several states (AZ, CA, CO, FL, IN, KS, MA, OH, OR, TN, VT, and WI) enacted laws giving civil immunity to any individuals who break-in to vehicles to remove pets (or vulnerable persons like children) in imminent danger, provided they meet other conditions under these laws. Experts contend that on an 85 degree day, the temperature inside a vehicle can climb to over 100 degrees in ten mintues. View a map of all state laws. For more detailed information on these laws, please visit our comparative table on the topic.

  Amendments to Rhode Island anti-cruelty law toughen penalties for animal abusers. 2018-S 2135A, 2018-H 8170aa amends section 4-1-40 such that anyone who pleads guilty/nolo contendere, or anyone who is convicted  of violating any of the provisions of the chapter, "shall not possess or reside with any animal for a period of up to five (5) years following entry of the conviction or upon acceptance of a  plea  of  nolo  contendere  by  the  court." Previously, the law left any future restraint on ownership of an animal up to the discretion of the sentencing court. In addition, the legislation also increase the penalty for repeat convictions (within a ten-year period) to a maximum of six years in prison, a fine of not less than $500 nor more than $5,000, and a mandatory 100 hours of community restitution. The community service cannot be suspended or deferred under the law. The law was signed by Gov. Gina M. Raimondo on July 2nd and took effect upon passage.

   The U.S. Fish & Wildlife Service (FWS) proposes hunting of endangered red wolves in NC. FWS According to an article in The Post and Courier, "Wildlife conservationists say the proposal would amount to the end of an iconic species and an important alpha predator now missing in the regional ecosystem that includes South Carolina." Public comment on FWS' proposed rule to "manage" the red wolf in North Carolina through hunting can be accessed directly at https://www.fws.gov/southeast/news/2018/06/service-proposes-new-management-rule-for-non-essential-experimental-population-of-red-wolves-in-north-carolina/. While red wolves are designated as "endangered," this population is classified by the FWS as a "nonessential experimental population." The IUCN Red List of Threatened Species classifies the red wolf (Canis rufus) as "critically endangered." The species was declared "Extinct in the Wild" in 1980, but the FWS reintroduced a population in eastern North Carolina in 1987. Not only does the population face threats from de-listing by the FWS and human-induced mortality, but hybridization with coyotes and wolf-coyote crosses is a primary threat to the survival of the species. The comment period for the proposed rule ends on July 30, 2018.

New archives

Cases

Evidence showing dogs left for 2 hours in non-shaded vehicle on 87-90 degree day sufficient to sustain animal cruelty conviction. Commonwealth v. Arcelay, --- A.3d ---- 2018 WL 2927748 (June 12, 2018). The appellant Arcelay appeals his conviction for the summary offense of cruelty to animals after he left his two small Yorkie dogs were found inside of his vehicle on an 87 to 90 degree day for approximately two hours at Willow Grove Naval Air Station. After receiving a citation for leaving the animals, appellant entered a plea of not guilty and appeared for the Magisterial Judge. He was found guilty and assessed fines and cots of $454.96. At a Summary Appeal de novo hearing, the officers who responded to the scene presented evidence, including testimony on the dogs being in the car for two hours and photographs of the area showing no shade was available. The court ultimately found appellant guilty of the summary offense, but put appellant on a probation for three months in lieu of fines and costs, taking into account Appellant's lack income. On the instant appeal, appellant first questions whether the Court of Common Pleas had jurisdiction to hear this matter since it occurred on a military installation. Appellant also raises whether the evidence was insufficient as a matter of law for the cruelty to animals conviction. As to the jurisdictional argument, the court here found the issuance of the summary citation at the military base was appropriate. The court observed that it is well-settled that military and non-military courts may exercise concurrent subject matter jurisdiction for criminal matters. The court also found that there was sufficient evidence to support appellant's conviction, where his conduct in leaving the dogs in a closed car on a hot, summer day presented an unreasonable risk of harm. Affirmed.

Conviction for unlawful taking of grizzly bear in violation of ESA reversed after lower court applies improper self-defense standard. United States v. Charette, --- F.3d ---- 2018 WL 3117903 (9th Cir. June 26, 2018). Defendant Charette was convicted by bench trial of taking a grizzly bear behind his home in Montana in violation of the federal Endangered Species Act. On appeal, defendant challenges his conviction on three grounds: (1) there was insufficient evidence to infer that he did not have a permit to take the grizzly bear; (2) his request for a jury trial was improperly denied; and (3) the lower court incorrectly analyzed his self-defense claim under an objective standard as opposed to the correct subjective standard. On appeal here, the court observed that the plain language of the ESA and legislative history makes it clear that permits and exceptions under the ESA are affirmative defenses, and not elements of the crime. In this case, Charette had the burden of proving the existence of a valid permit, which he did not do at trial. The court also quickly dispensed with the Sixth Amendment jury trial issue, finding that the taking of a grizzly bear is a petty offense. As to defendant's last argument on his self-defense claim, this court did find that the trial court erred in applying an objectively reasonable standard. This error was not harmless because it affected defendant's decision to testify as to his subjective belief in the need for self-defense. As a result, this court reversed the district court's decision, vacated defendant's conviction, and remanded the case for further proceedings.

County petition for recoupment of costs associated with impoudment of dogs in cruelty case upheld. Bramblett v. Habersham Cty.,  --- S.E.2d ----, 2018 WL 3062146 (Ga. Ct. App. June 21, 2018). Defendants appeal from an order granting a petition for recoupment of costs filed by Habersham County pursuant to OCGA § 4-11-9.8, and a separate order directing the defendants to pay $69,282.85 into the court registry in connection with the boarding, treatment, and care of 29 dogs that the Brambletts refused to surrender after the County seized over 400 animals from their property. In April 2017, over 400 animals were removed from the Bramblett's property and they were charged with over 340 counts of cruelty to animals under Georgia law. There were 29 animals that were not surrendered and were running loose on the property. The current petition for recoupment of costs here refers to the care for those 29 animals, which were later impounded. The Brambletts appealed that order, arguing that the trial court erred in granting the County's petition without providing notice under OCGA § 4-11-9.4. The appellate court disagreed, finding that the procedure in OCGA § 4-11-9.8 applied because the notice provisions of OCGA §§ 4-11-9.4 and 4-11-9.5 only apply when the animal has been impounded “under” or “pursuant to this article” of the Georgia Animal Protection Act. Here, the animals were seized under as part of an investigation of violations of OCGA § 16-12-4 so the notice provisions did not apply. Affirmed.

Case Archives

Articles

Courtney G. Lee, The Animal Welfare Act at Fifty: Problems and Possibilities in Animal Testing Regulation, 95 Neb. L. Rev. 194-247 (2016).

Randall S. Abate & Jonathan Crowe, From Inside the Cage to Outside the Box: Natural Resources as a Platform for Nonhuman Animal Personhood in the U.S. and Australia, 5 Global J. Animal L. 54 (2017).

David Mahoney, Zuchtvieh-Export Gmbh v. Stadt Kempten: The Tension Between Uniform, Cross-Border Regulation and Territorial Sovereignty, 40 B.C. Int'l & Comp. L. Rev. 363 (2017).

Animal Rights Law Reporter, published by the Society for Animal Rights, Inc., edited by Professor Henry Mark Holzer, available issues from 1980 - 1983.

Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy, Myanna Dellinger, 41 Colum. J. Envtl. L. 395 (2016).

Stevens, R.A.V., and Animal Cruelty Speech: Why Congress's New Statute Remains Constitutionally Problematic, J. Alexandra Bruce, 51 Gonz. L. Rev. 481 (2015-2016).

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).