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June 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.

  Indiana enacts law aimed at cracking down on falsely claimed emotional support animals. Senate Bill 240/PL 162 amends Indiana's fair housing laws by adding Chapter 7: Emotional Support Animals in Housing. The law outlines which dwellings are exempt from application of the law and defines terms like "health service provider" and "individual with a disability." The law, similar to a federal 2013 Notice issued by HUD, states that a person with a disability may seek to keep an emotional support animal as a reasonable accommodation and the dwelling may request written verification from a health service provider for this request. Notably, the law states, "[t]his section excludes a health service provider whose sole service to the individual is to provide a verification letter in exchange for a fee." The new chapter makes it a Class A infraction for a person to do things like misrepresent the need for an emotional support animal, make false statements related to such a request, or fit an animal with a vest or other sign that would cause a reasonable person to believe the animal is an ESA. A healthcare provider who verifies an individual's disability status and need for an ESA without adequate professional knowledge of the person's condition, or one who charges a fee for a verification letter without other services, also faces a Class A infraction.

   Maryland becomes 7th state to pass a "Beagle Freedom Law." In late April, Maryland's Governor Larry Hogan signed S.B. 675, a law that requires certain research facilities to take steps to offer dogs and cats for adoption after they no longer are needed for research purposes. These research facilities may enter into cooperative agreements with animal rescue organizations to place these animals in new homes. In the past few years, Minnesota (2014), Connecticut (2015), Nevada (2015), California (2016), New York (2016), and Illinois (2017) have enacted similar laws. According to an article by Michael Ollove in the Huffington Post, almost 19,000 cats and 61,000 dogs were used by research laboratories in 2016. More states including Delaware, Iowa, Massachusetts, and New Jersey are considering similar bills.

New archives

Cases

Arizona appellate court holds "dangerous offense" status applies only to crimes against humans and not animals. State ex rel. William Montgomery v. Brain, --- P.3d ----, 2018 WL 2348473 (Ariz. Ct. App., 2018). The special action considers whether a person who uses a dangerous instrument in committing an animal cruelty offense may be sentenced as a dangerous offender. The facts in the underlying case are as follows. A witness in an apartment complex heard a dog crying and observed Shundog Hu using a rod to hit a dog that was inside a pet enclosure. Hu was charged with both intentionally or knowingly subjecting an animal to cruel mistreatment, a felony, and under the "dangerous offense" laws because the animal cruelty "involved the discharge, use, or threatening exhibition of a pole and/or rod, a deadly weapon or dangerous instrument, in violation of A.R.S. §§ 13-105 and 13-704." This court accepted jurisdiction because " the State has no adequate remedy on appeal and the petition presents a legal issue of statewide importance." This court first examined the statutory definition for a "dangerous" felony offense: "an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” Applying principles of secondary interpretation and sensible construction, the court held that legislature's purpose in drafting the dangerous offense definition and the related statutes was to enhance crimes to “dangerous offenses” to protect human life. The State cannot charge a crime as a dangerous offense unless the target is against another person. In reaching this conclusion, the court aligned with a recent decision in Texas where a deadly weapon finding was limited to human victims only.

Genuine issue of fact existed on euthanization of plaintiff's healthy pet pigeons seized by animal control from his campsite. Recchia v. City of Los Angeles Dep't of Animal Servs., 889 F.3d 553 (9th Cir. 2018). The Fourth Amendment and Fourteenth Amendment claims arise from the 2011 warrantless seizure of Recchia's 20 birds (18 pigeons, one crow, and one seagull) kept in boxes and cages on the sidewalk where he lived (Recchia was homeless at the time). Animal control officers investigated Recchia after a complaint that a homeless man had birds at his campsite. Officers found cramped and dirty cages with several birds in "dire physical condition," although there is evidence the birds were in that condition before Recchia possessed them. After officers impounded the birds, a city veterinarian decided that all the pigeons needed to be euthanized due to concerns of pathogen transmission. Recchia discovered that the birds had been euthanized at his post-seizure hearing that was four days after impoundment of the animals. At that hearing, the magistrate found the seizure was justified under the operative anti-neglect law (California Penal Code § 597.1(a)(1)). This § 1983 and state claim action followed. The district court adopted the magistrate judge's report and granted summary judgment for the defendants. On appeal here, the district court judgment was affirmed on Fourteenth Amendment and state tort claims against the officers, but vacated summary judgment on the Fourth Amendment claims against the animal control officers and constitutional claims against the city. The court held that hold that there was a genuine factual dispute about whether the healthy-looking birds posed any meaningful risk to other birds or humans at the time they were seized (it affirmed the dismissal as to the seizure of the birds that outwardly appeared sick/diseased).

Town not entitled to reimbursement under negligence per se theory for violation of anti-cruelty law or award of unjust enrichment against local animal rescue. Town of Plainville v. Almost Home Animal Rescue & Shelter, Inc., 182 Conn. App. 55 (2018). This complaint by the Town of Plainville raised one count of negligence per se for defendant's failure to provide care for animals at its rescue facility, and count two of unjust enrichment for defendant's failure to reimburse the town for expenditures in caring for the seized animals. In 2015, plaintiff received numerous complaints and ultimately found that the conditions there were unsanitary, including unhealthy animals in need of medical care. The plaintiff then seized 25 animals from defendant and provided care for the animals at the town's expense. Soon thereafter, plaintiffs commenced an action to determine the legal status of the animals and requiring the defendant to reimburse the town for care expenses. Prior to a trial on this matter, the parties reached a stipulation agreement that provided for adoption of the impounded animals by a third party, but contained no provision addressing reimbursement by the defendant to the town. On appeal here, this court found "absolutely no language in the statute, however, that discusses costs regarding the care of animals subjected to acts of abuse or neglect or whether violators of § 53–247 have any obligation to compensate a municipality or other party." Thus, plaintiffs could not rely upon § 53–247 as a basis for maintaining a negligence per se case against the defendant. As to count two, the court rejected plaintiffs' unjust enrichment claim. If a statute exists that provides a remedy at law, the equitable solution is unavailable. The court found that Section 22–329a provides a remedy for a municipality seeking to recover costs expended in caring for animals seized as a result of abuse and neglect. The stipulation agreement signed and agreed to by the parties contained no provision for reimbursement and settled the matter before there was an adjudication that the animals were abused or neglected. As a result, the judgment was affirmed.

CA appellate court considers, as matter of first impression, whether same conduct can support conviction under Pen. Code, § 597, subds. (a) and (b). People v. Tom, 231 Cal. Rptr. 3d 350 (Ct. App. 2018). Defendant stabbed, beat, strangled, and then attempted to burn the dead body of his girlfriend's parent's 12-pound dog. Police arrived on the scene as defendant was trying to light the dead dog on fire that he had placed inside a barbeque grill. Defendant was convicted of two counts of animal cruelty contrary to Pen. Code, § 597, subds. (a) and (b), as well as other counts of attempted arson and resisting an officer. While defendant does not dispute these events underlying his conviction, he contends that he cannot be convicted of subsections (a) and (b) of Section 597 for the same course of conduct. Both parties agreed that subsection (a) applies to intentional acts and subsection (b) applies to criminally negligent actions. Subsection (b) contains a phrase that no other court has examined for Section 597: “Except as otherwise provided in subdivision (a) . . .” The court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct.  However, as to sentencing, the court found that defendant's subsequent attempt to burn the dog's body involved a different objective than defendant's act in intentionally killing the dog. These were "multiple and divisible acts with distinct objectives" such that it did not violate section 645 or due process in sentencing him for both. The court held that defendant's conviction for violating section 597, subdivision (b) (count two) was reversed and his modified judgment 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).