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November News

  African Grey Parrots receive enhanced protection under CITES treaty. The species was moved from Appendix II protection to Appendix I protection by vote at the 17th Conference of the Parties (CoP17) in Johannesburg, South Africa. Appendix I designation is reserved for species at risk for extinction and involves the greatest level of protection under the global treaty. According to U.S. Fish and Wildlife Service (USFWS) Director Dan Ashe, head of the U.S. delegation to CoP17, this change came "not a minute too soon." The USFWS states that the species' intelligence and longevity makes it a popular pet, leading to its demise in the wild. For more, see the press release from the USFWS.

  Several animal-related ballot initiatives and referendums appear on this November's ballot. Five states (Indiana, Kansas, Massachusetts, Montana, and Oregon) will consider ballot measures that relate to animals. In two states, Indiana and Kansas, constitutional amendments to preserve the right to hunt and fish appear on the ballots. Massachusetts considers an animal welfare measure dealing with farm animal confinement. Known as "Question 3," this measure would prohibit any farm owner or operator from knowingly confining any breeding pig, calf raised for veal, or egg-laying hen in a way that prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely. Montana voters have to decide on I-177, a law proposed by initiative that generally prohibits the use of traps and snares for animals on any public lands within Montana. Oregonians will see "Measure 100," an initiative that would prohibit the sale of certain animals and their parts including any species of elephant, rhinoceros, whale, tiger, lion, leopard, cheetah, jaguar, pangolin, sea turtle, and ray. The measure, aimed at stopping illegal wildlife trafficking, has nine exceptions including certain antiques over 100 years old. Want to see what ballot initiatives and referendums have been proposed in the last 15 years? Check out our Table of Initiatives.

  Did you know some states have cruelty reporting hotlines? In March of this year, North Carolina enacted a law (N.C.G.S.A.§ § 114-8.7) that required the Attorney General to establish a hotline to receive reports of allegations of animal cruelty or violations of the Animal Welfare Act against animals under private ownership. This is not anonymous, as the law states that "[a]ny individual who makes a report under this section shall disclose his or her name and telephone number and any other information the Attorney General may require." The AG established both a hotline and website for taking these complaints: http://www.ncdoj.gov/Crime/Report-Animal-Cruelty.aspx. Similarly, the New York State Office of the Attorney General’s set up the Animal Protection Initiative aimed at criminal animal fighting rings, consumer protection, and preventing cruelty to animals. This website and hotline also covers the state's Pet Lemon Law "designed to safeguard the public and to ensure the humane treatment of dogs and cats by requiring pet dealers to guarantee the good health of any such animal sold by a pet dealer to a consumer." Check it out at http://www.ag.ny.gov/animals.

New archives

Cases

Hardrick v. City of Detroit, 2016 WL 6600039 (E.D. Mich. Nov. 8, 2016) (unpublished). In January of 2005, the Detroit City Council passed an ordinance granting special police powers to officers working in the Animal Control Division (ACD). The ordinance allowed ACD officers to have “the right of entry without a warrant” for the purpose of capturing or restraining any animal. Detroit residents filed a petition arguing that the ordinance was unconstitutional and the court granted a petition for a preliminary injunction on the basis that the ordinance violated the Fourth Amendment. Following the injunction, a number of residents filed suit seeking damages against the City of Detroit arguing that the City improperly seized their pets and failed to provide adequate post-deprivation remedies. Lastly, the residents argued that the City operated its animal shelter in a “grossly negligent manner” after numerous dogs suffered severe illnesses after having been taken to the shelter for quarantine by the ACD. Ultimately, the court found that it was reasonable for the officers to have seize the pets in each situation based on the facts presented and therefore granted summary judgment in favor of the City of Detroit. The court also reviewed the residents’ arguments pertaining to the Fourteenth Amendment and held that because the vast majority of the pets were found “unrestrained, unlicensed, abandoned by their owner, or accused of biting another animal or human,” the City’s interest in protecting the public was far greater than any “pre-seizure due process owed to the plaintiffs.” Thus, the court granted summary judgment in favor of the City.

Coe v. Lewsader, --- N.E.3d ---- 2016 IL App (4th) 150841, 2016 WL 5679604. In this case, Ryan and Hillary Coe filed suit against Eric and Trish Lewsader for damages resulting from an accident involving the Lewsader’s dog. Ryan Coe was driving his motorcycle while intoxicated on a public highway when he hit the Lewsader’s dog that was lying in the middle of the street. Coe suffered severe injuries as a result of the accident and filed suit against the Lewsader’s according to Section 16 of the Illinois Animal Attacks or Injuries statute. According to the Act, “if a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages.” In order to be awarded damages under the Act, the Coe’s needed to establish “some overt act” of the Lewsader’s dog. The question before the court was whether the Lewsader’s dog was acting overtly when it was lying in the middle of the street at the time of the accident. Ultimately, the court held that the dog was not acting overtly by lying in the middle of the street. The court found that the Lewsader’s were not liable for civil damages under the Act because the dog had not acted overtly at the time of accident and therefore the Act did not apply in this situation.

People v. Harris, --- P.3d ----2016 WL 65185662016; COA 159 (Colo.App.,2016). Harris was convicted for twenty-two counts of cruelty to animals after dozens of malnourished animals were found on her property by employees of the Humane Society. On appeal, Harris raised two main issues: (1) that the animal protection agent who was an employee of the Humane Society was not authorized to obtain a search warrant to investigate her property and (2) that the mistreatment of the twenty-two animals constituted one continuous course of conduct and that the lower court violated her rights under the Double Jeopardy Clause by entering a judgment on twenty-two counts of animal cruelty. The Court of Appeals reviewed the issue of whether the animal protection agent had the authority to obtain a search warrant to investigate the property and determined that the agent did not have the proper authority. The Court found that there was no constitutional violation with regard to the search warrant because it was still obtained based on probable cause. With regard to Harris’ argument regarding her rights under the Double Jeopardy Clause, the Court found that under the statute dealing with animal cruelty, the phrases “any animal” and “an animal” suggests that a person commits a separate offense for each animal that is mistreated. Essentially, the Court held that the language of the statute “demonstrates that the legislature perceived animal cruelty not as an offense against property but as an offense against the individual animal.” As a result, Harris’ rights under the Double Jeopardy Clause were not violated and the Court upheld the lower court’s decision.

Tighe v. N. Shore Animal League Am., 142 A.D.3d 607, 36 N.Y.S.3d 500 (N.Y. App. Div. 2016). In May 2012, Tighe adopted a dog from the North Shore Animal League after having been warned that the dog was possessive regarding food. In July of 2012, the dog bit Tighe’s hand when she tried to pick up a cookie from the floor. Tighe spent three days in the hospital due to severe blood loss and swelling. Additionally, in September of 2012, the dog bit Tighe in the face causing severe injuries. After the incident in September, Tighe filed suit against the North Shore Animal League to recover damages for negligence, breach of implied warranty of merchantability, and intentional infliction of emotional distress. The Supreme Court of New York overturned the lower court’s decision and granted summary judgment in favor of the North Shore Animal League on all claims. The court found that the North Shore Animal League was not a proximate cause to Tighe’s injuries for failing to adequately warn her about the dog’s aggressive behavior because Tighe learned of the dog’s aggressive behavior three months prior to the incident that caused Tighe’s injuries.  According to the court, once Tighe learned of the dog’s aggressive tendencies, she was in the best position to take “precautionary measures to prevent harm to herself.”

Case Archives

Articles

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).

Designing a Model Dog Park Law,  John J. Ensminger and Frances Breitkopf, Animal Legal & Historical Center (2016).

Take it to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act, Jonathan Wood, 33 Pace Envtl. L. Rev. 23 (2015).

Redefining The Modern Circus: A Comparative Look At The Regulations Governing Circus Animal Treatment And America's Neglect Of Circus Animal Welfare, Jacqueline Neumann, 36 Whittier L. Rev. 167 (2014).