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November News

 

   New York City Council passes legislation banning the sale of foie gras in the city. “Foie gras” is a French phrase that translates  to “fatty liver.” In cuisine, it is a dish produced from the fattened livers of ducks or geese. According to a New York Times article, this is achieved through a process known as “gavage,” where “ducks are force-fed a fatty corn-based mixture that engorges their livers. The process requires tubes to be inserted into a duck’s throat for a 20-day feeding regimen, swelling the liver to up to 10 times its normal size.” Animal advocates note that the ducks subjected to this are too big to walk or even breathe and the process is known as one of the most inhumane in animal husbandry. The state of California has banned the practice of force-feeding birds and sale of those products beginning in 2012 and several countries including India, Israel and Britain have also banned the sale or production of foie gras. The NYC measure (Int. No. 1378) takes effect in 2022.

   U.S. Senate unanimously passes the Preventing Animal Cruelty and Torture Act (PACT Act). In late October, the House also unanimously passed the bill. The “Preventing Animal Cruelty and Torture Act” or PACT Act expands a law from 2010 that made the creation and distribution of "animal crush" videos a federal crime. Under the old law, the torture of the animals was not a federal crime. The new bill (H.R. 724) expands that law by making the underlying cruelty a crime. In other words, the act of "animal crushing," defined as "actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury . . ." is also now a crime. This is the first time a generally applicable animal cruelty measure has been passed at the federal level (most anti-cruelty laws exist at the state or local level). The PACT Act now awaits President Trump's signature.

   Lights, camera, action! The Animal Legal & Historical Center would like to introduce our newest set of materials: animal law videos! Animal law can be complex because it covers so many areas of the law, from criminal law to torts to disability discrimination. By making these videos, we hope to provide another avenue for people to understand and learn about these diverse legal concepts. Check out our first two videos: State Dog Tethering Laws and Service, Assistance, and Therapy Animals.  Remember, you can always email us questions, ideas, and feedback at animallaw@law.msu.edu. 

 

News archives

Cases

 

Keeping of chickens and coop within city deemed a non-conforming residential use by city after more than 7 years on property. City of Columbiana v. Simpson, --- N.E.3d ----, 2019 WL 4897158 (Ohio Ct. App., 2019). Richard Simpson lived in a residential district in Columbiana, Ohio where he kept 8 hens, a chicken coop, and an enclosure on his property for approximately 7 years. In 2016, Simpson was informed that keeping chickens in the district he lived in was a zoning violation, however, Simpson found no prohibition in the Code regarding the keeping of chickens in a residential district. Simpson appealed the violation to the Planning Committee. On June 20, 2017 the City Council voted to place a resolution on the ballot for voters to decide whether chickens could be kept in residential districts. The resolution failed at the general election and, ultimately, the City instituted an action for declaratory judgment and injunctive relief in 2018 requiring Simpson to remove the chickens. The trial court held that the keeping of chickens was prohibited in the City’s residential districts and that the city ordinances were valid on their face and were not arbitrarily or capriciously applied. On appeal, Simpson argued that keeping the chickens did not constitute an agricultural use because he kept them as a hobby. The Court disagreed and concluded that the keeping of chickens fell within the definition of agriculture and was, therefore, prohibited based on the ordinances. Simpson next argued that since he acquired the chicken and coop prior to the City applying the prohibitions, it was a legal non-conforming use and that the zoning code contained no language that would have put him on notice that such property was not permitted on his real property. The Court concluded that there was no error by the trial court in holding that Simpson’s use of his land was not a legally conforming use. Finally, on the nuisance claim, the court concluded that a city is not required to show that a property owner’s proposed use constitutes a nuisance in order to establish the constitutionality of the ordinance. The judgment of the trial court was affirmed. 

Trial court erred by refusing defendant’s instructions based on WA state law that allows killing of dog seen injuring “domestic” animal in felony animal cruelty case involving dog-on-dog attack. State v. Wilson,  --- P.3d ----, 2019 WL 4955178 (Wash. Ct. App. Oct. 8, 2019). Defendant Robert Wilson appeals his conviction of first degree animal cruelty, which arose from an incident at an archery club when Wilson shot a large dog in the hindquarters (70lb. "Dozer") with an arrow after that dog attacked Wilson’s small dog ("Little Bit"). (Dozer recovered from his injuries.) Wilson argues that his action was lawful under RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls. The trial court declined to give defendant's proposed jury instruction based on this statutory language, finding that it only applied to stock animals and not when a dog was injuring another dog. On appeal, this court noted that no Washington court has interpreted RCW 16.08.020 in a published case. While the trial court found that the statute only applied to stock animals, the appellate court noted that the law does not define the term "domestic animal." Using the plain dictionary meaning for "domestic" - "belonging to or incumbent on the family" - and for "domestic animal," this court stated that "Little Bit certainly belonged to Wilson's family" and a dog fits the meaning of "domestic animal." The court found that the "reasonably necessary" requirement from the common law cases on shooting domestic animals cannot be grafted onto the statutory requirements of RCW 16.08.020. The trial court's refusal to give the proposed instruction was not harmless. As such, the appellate court reversed Wilson's conviction and remanded the action for further proceedings.

Federal circuit court holds it has no jurisdiction over Fourth and Fourteenth Amendment claims of improperly seized animals in state anti-cruelty case. Swartz v. Heartland Equine Rescue, 940 F.3d 387 (7th Cir., 2019). The Plaintiff (Swartzes) acquired several horses, goats, and a donkey to keep on their farm in Indiana. In April of 2013, the county’s animal control officer (Lee) called a veterinarian to help evaluate a thin horse observed on the Swartzes’ property. After several visits by Lee and a local veterinarian, the Superior Court of Indiana entered an order to seize the animals. On June 20, 2014, the state of Indiana filed three counts of animal cruelty charges against the Swartzes. However, the state deferred prosecuting the Swartzes due to a pretrial diversion agreement. The Swartzes filed this federal lawsuit alleging that the defendants acted in concert to cause their livestock to be seized without probable cause and distributed the animals to a sanctuary and equine rescue based on false information contrary to the 4th and 14th amendments. The district court dismissed the Swartzes' claims to which, they appealed. The Court of Appeals focused on whether the district court had subject-matter jurisdiction over the Swartzes’ claims. The Court applied the Rooker-Feldman doctrine which prevents lower federal courts from exercising jurisdiction over cases brought by those who lose in state court challenging state court judgments. Due to the fact that the Swartzes’ alleged injury was directly caused by the state court’s orders, Rooker-Feldman barred federal review. The Court vacated the judgment of the district court and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction.

Plaintiff's systematic actions based on concerns for defendant's dog that was continuously left outside established a prima facie case for libel and slander. Maldonado v. Franklin, Not Reported in S.W. Rptr., 2019 WL 4739438 (Tex. App. Sept. 30, 2019). The Franklins moved into a subdivision in San Antonio, Texas in September of 2017. Margarita Maldonado lived in the home immediately behind the Franklins’ house and began complaining about the Franklins’ treatment of their dog. The Franklins left the dog outside 24 hours a day, seven days a week. Maldonado also posted online messages, sent direct messages to the Franklins, and even left a dog bed in the Franklins' yard. In December of 2017, the Franklins filed suit against Maldonado for invasion of privacy by intrusion and seclusion alleging that Maldonado was engaged in a campaign of systemic harassment over the alleged mistreatment of their dog. While the suit was pending, Maldonado contacted Animal Control Services several times to report that the dog was outside in severe heat and picketed neighborhood sidewalks for 5 days, including in front of the Franklins’ house, carrying signs such as “Bring the dog in,” and “If you’re hot, they’re hot.” The Franklins then amended their petition adding claims for slander, defamation, intentional infliction of emotional distress, and trespass. The trial court granted a temporary injunction against Maldonado, which was ultimately vacated on appeal. Maldonado filed an Anti-SLAPP motion and amended motion to dismiss the Franklins’ claims as targeting her First Amendment rights. The trial court did not rule on the motions within thirty days, so the motions were denied by operation of law. Maldonado appealed. The Court ultimately concluded that Maldonado’s verbal complaints to the Animal Control Service and online posts on community forums about the Franklins’ alleged mistreatment of their dog were communications made in connection with an issue related to a matter of public concern and were made in the exercise of free speech. Therefore, the TCPA applied to the Franklins’ slander and libel claims. The Court ultimately concluded that although Maldonado established that the TCPA applied to the slander and libel claims, the Franklins met their burden to establish a prima facie case on the slander and libel claims. Therefore, the Court ultimately concluded that Maldonado’s motion to dismiss the slander and libel claims were properly denied. The Court affirmed the trial court’s order and remanded the case to the trial court. 

Case Archives

Articles

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).

When Cheaters Prosper: A Look at Abusive Horse Industry Practices on the Horse Show CircuitKjirsten SneedKentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 6 : Iss. 2 , Article 3 (2014).

Survey of Damages Measures Recognized in Negligence Cases Involving Animals, Alison M. Rowe, Kentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 5 : Iss. 2 , Article 5 (2013).

Animal Consortium,  David S. Favre and Thomas Dickinson, 84 Tenn. L. Rev. 893 (2017).