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March and April News

  Virginia becomes the fourth state to pass law prohibiting the use of animal testing for cosmetics. In early March, Virginia Governor Ralph Northam signed the Humane Cosmetics Act into law (HB 2250). This law prohibits cosmetics manufacturers from conducting or contracting for cosmetic animal testing in Commonwealth areas in or after January 1, 2022. The law will also ban the sale of cosmetics that have been tested on animals for profit. Violations are subject to a civil penalty of up to $5,000 and an additional $1,000 for each day the violation continues. In 2018, California became the first state to enact a ban on animal-based testing for cosmetics, followed by Nevada and Illinois in 2019. According to the Humane Society, six other states are considering such bills.

  Federal court rules FWS must develop plan for release of captive red wolves to Red Wolf Recovery Program. The U.S. District Court for the Eastern District of North Carolina ruled on January 22, 2021 that the US Fish & Wildlife Service (FWS) must develop a plan by March 1st to resume the release of captive red wolves into the Red Wolf Recovery Area in North Carolina. The release of captive red wolves was stopped in 2016 because of a change in policy by FWS, ending the longstanding population recovery efforts in place since 1987. In November 2020, animal advocacy groups filed a motion for a preliminary injunction, arguing FWS violated both the ESA and APA with the policy decision to not release captive red wolves to assist this critically endangered species. In fact, plaintiffs contend that USFWS' refusal to engage in management practices related to red wolf recovery led to a reduction in total population from 45 - 60 known individuals in 2016 to only seven in 2020. One plaintiffs' attorney stated that it is time for FWS to "stop managing red wolves into extinction." Read more on this victory for the endangered red wolf.

   Ohio legislature considers mandatory reporting law for vets and others. House Bill 33 would require veterinarians and social service workers to report suspected animal abuse the same way others are required to report any suspected abuse of children, vulnerable adults and the elderly. The bill would require veterinarians, social services professionals, and anyone licensed under Chapter 4757 (counselors, therapists, and social workers) to report “a violation involving a companion animal to an officer who is not a dog warden or deputy dog warden when that person has knowledge or reasonable cause to suspect that such a violation has occurred or is occurring.” Likewise, law enforcement officers and dog wardens are also under a reporting mandate with the proposed law. A person required to make a report under section 959.07 or 959.08 of the Revised Code is immune from civil or criminal liability in connection with making that report if the person acted in good faith when making the report. The bill has passed the Ohio house. Several states have mandatory reporting laws for vets, but very few address other professions (see Connecticut and Tennessee for examples of such laws). 

News archives

Cases

Wyoming Supreme Court finds no error where jury instructions did not include subsection from cruelty to animals statute that allows the humane killing of an animal. Mackley v. State, --- P.3d ----, 2021 WL 671631 (Wyo. Feb. 22, 2021). The case stems from an incident where a dog escaped his owner and attacked the defendant's dogs at his front door. A local teenager grabbed the offending dog ("Rocky") and dragged him into the street as the dog fight carried on. The defendant responded by grabbing his gun and shooting Rocky as he was held by the teenager. A jury convicted defendant of both aggravated animal cruelty and reckless endangering. At the trial, defendant moved for judgment of acquittal on both charges, arguing that the Wyoming Legislature has established that humanely destroying an animal is not animal cruelty and that the State did not provide evidence that he intentionally pointed a firearm at anyone, which defendant contends is necessary for the reckless endangering charge. While defendant argued that the instructions should include subsection m from the statute, he only now on appeal contends that the subsection should have been given as a theory of defense. Thus, reviewing this argument for plain error, the Court found that defendant's theory that his killing was "humane" and thus excluded from the crime of aggravated cruelty was not supported by the language of the statute. In fact, such an interpretation not only goes against the plain language, but "then any animal could be killed, under any circumstances, as long as it is killed quickly." Defendant presented no evidence that the dog he shot was suffering or distressed and needed euthanasia. The trial court did not commit error when it declined to instruct the jury on subsection m. Affirmed.

Prior incident of throwing a pet to the ground was probative to show knowledge of risk in conviction for second-degree animal abuse. State v. Fockler, 308 Or. App. 765, 480 P.3d 960 (2021). Defendant appeals his conviction of animal abuse in the second degree (ORS 167.315). Neighbors witnessed him throwing his dog to the ground and called police. He argues that the trial court erred in admitting evidence that he previously threw a cat to the ground 13-years prior to the current incident and submission of this evidence created unfair prejudice. The prosecution contended that this evidence was admitted for a noncharacter/nonpropsensity purpose under OEC 404(3) to establish defendant's subjective awareness of the risk of throwing pets the ground. On appeal, this court noted that animal abuse in the second degree requires the state to prove that defendant  was “aware of and consciously disregard[ed] a substantial and unjustifiable risk.” At trial, the state introduced evidence that, in 2003, defendant threw a cat of his apartment window causing injury to the cat because it had defecated on the apartment floor. Defendant argued that there was an insufficient connection between the cat throwing incident and the current charge, and that the probative value of the evidence was at "best minimalistic." However, this court found that the cat throwing evidence was offered for a nonpropensity purpose of knowledge where it was reasonable to infer that defendant had a subjective awareness of the risks in throwing a pet to the ground. Therefore, the trial court did not err in determining that the evidence was relevant for the noncharacter purpose of establishing knowledge under OEC 404(3). The appellate court found that the lower court did not abuse its discretion in admitting the evidence after hearing both sides and weighing the appropriate factors. Affirmed.

Owner held responsible for omissions by livestock caretaker that caused harm to sheep. State v. Jallow, --- P.3d ----, 2021 WL 939178 (Wash. Ct. App. Mar. 8, 2021). Defendant Jallow appeals his conviction of two counts of animal cruelty in the first degree. The cruelty convictions stemmed from events first occurring in late 2016. An animal control officer (Davis) received a report on sheep and goats at defendant's property that were in poor condition. On the officer's second documented visit, he observed a a lifeless sheep. On a subsequent visit, the officer took a sheep that a neighbor has wrapped in a blanket to a local veterinarian who scored it very low on a health scale and ultimately had to euthanize the animal. After a couple more visits to bring food and monitor the animals, and after no contact from Jallow despite requests, Davis returned with a search warrant to seize the animals. Jallow was charged with three counts of first degree cruelty to animals and one count of bail jumping. At trial, Jallow contended that he contracted with another person (Jabang) to care for the animals after he went on an extended trip in October of 2016. After hearing testimony from both Jallow and Jabang (hired to care for the animals), Jallow was ultimately convicted of first degree cruelty. On appeal, Jallow first argued that there was insufficient evidence to support his conviction and that he was not criminally negligent because he arranged for someone else to care for the animals. However, the evidence showed that despite being aware that his caretaker was not providing sufficient care, Jallow continued to rely on him and did not take further action. The court noted that a reasonable person in this situation would have found an alternate caretaker. "Although Jallow himself was not neglecting to feed and water the animals, he was directly responsible for not ensuring that his animals were properly cared for. Because any rational trier of fact could have found that Jallow acted with criminal negligence, sufficient evidence supported his conviction." As to Jallow's contention that the jury instruction was incorrect, the appellate court agreed. The two instructional errors necessitated reversal of Jallow's conviction here. Reversed.

Case Archives

Articles

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).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).