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July News

 

  It’s that time of year again when temperatures soar and we hear those tragic news stories of pets getting left in hot cars. Depending on the temperature, a dog can die within minutes of being left in a hot car. In the past few years, several states added new laws allowing the rescue of animals left unattended in parked vehicles under dangerous conditions. Want to learn more about these laws in 31 states? We offer two ways to view them. Check out our Comparative Table of Laws that provides detail like the type of animal the law covers and who can rescue (i.e., any person or only a first responder). Go to our State Map if you want a quick visual of how many states regulate pets in hot cars with quick links to the laws.

  Canada Parliament passes amendment to the Criminal Code that outlaws all forms of bestiality and criminalizes additional acts related to animal fighting. Bill C-84 received Royal Assent in Parliament in June, a process that signals the bill is now ready to become law in Canada. The bill now defines the term "bestiality" as "any contact, for a sexual purpose, with an animal." This is significant because the Supreme Court of Canada held in 2016 that bestiality under Canadian law required the act of penetration as an element of the crime. The new definition reflects an understanding that any sexual acts with animals may force vulnerable adults and children to witness or participate in psychologically damaging sexual acts with animals. Additionally, animal advocates suggest a link between animal sexual assault and child abuse. As a consequence, the new law also requires those convicted of bestiality to register as sex offenders on Canada's national sex offenders registry. C-84 also prohibits anyone from building or maintaining an arena for animal fighting and allows judges to restrain future ownership of those convicted of animal abuse for any period the court deems reasonable (but at least five years in the case of second or subsequent offenses).

   Did you know five states still have active tracks for dog racing? Florida voters made big news last year by banning dog racing through “Amendment 13,” effective December 31, 2020. Dog/greyhound racing, which has been around for centuries, is a form of gambling where betters place wagers on dogs who race around an enclosed track chasing a mechanized device that simulates a prey animal. The five states with active tracks include Alabama, Arkansas, Iowa, Texas and West Virginia, and there are four other states with no active racetracks, but still with laws legalizing greyhound racing on their books. Concerns over the care of greyhound dogs used in racing has come to light in past decades, including overbreeding of dogs, the humane treatment of the dogs (who spend most hours housed in kennels), and the disposition of the animals who are done racing. To learn much more about this historic and controversial practice, read our new Overview of Dog Racing.

 

News archives

Cases

NY City Court concludes that it is time to declare that a pet should no longer be considered “personal property” like a table or carFinn v. Anderson, --- N.Y.S.3d ----, 2019 WL 1984091 (N.Y. City Ct. Apr. 30, 2019). This replevin action concerns ownership of an "indoor/outdoor" cat named "Sylvester" or "Marshmallow," depending on perspective. Plaintiffs took in a stray cat they named “Sylvester” that had been hanging around their house for several months and provided him veterinary care. A few weeks later, Sylvester accidentally got out of plaintiff's house and plaintiff found out from a neighbor that the cat was taken back by the defendant, who claimed that Sylvester is actually "Marshmallow" and had been plaintiff's indoor/outdoor cat since 2009. Plaintiff then filed a replevin action against defendant to recover legal possession of Sylvester, aka Marshmallow. The City Court stated that New York Courts have developed a “quasi-interests based standard” for pets that considers highly subjective factors. Most significantly, the court declared the following: "[w]hile it appears the Appellate Division, Fourth Department, has not addressed the issue, this Court concludes that it is time to declare that a pet should no longer be considered “personal property” like a table or car." Thus, using a "best for all concerned" test the court found, in a very close decision, that custody of the cat, Sylvester/Marshmallow, rests with the defendant. While the court was convinced that plaintiffs were genuinely concerned for Sylvester's/Marshmallow's welfare and spent time and money on his care, it appears that Sylvester/Marshmallow may have “voted with his feet” to return to his home of ten years with the defendant and her children. The Court found in favor of the defendant, and plaintiff's claim was dismissed.

FL appellate court affirms dismissal of unauthorized practice of veterinary medicine where facts show defendant's purpose in using homemade tool was to care for his own dog due to a lack of funds. State v. Avella, --- So.3d ----, 2019 WL 2552529 (Fla. Dist. Ct. App. June 21, 2019). Defendant was charged with practicing veterinary medicine without a license and for cruelty to animals. The Defendant made a homemade device attempting to treat his dog for a problem because he did not have the money to take his dog to the vet. The trial court dismissed the charges brought against the Defendant and the State of Florida appealed. Defendant relied upon statutory exemptions in Florida’s veterinary practice statue that permit a person to care for his or her own animals and claims that he was just trying to help his dog. The Court held that the trial court did not err in dismissing Count I for unlicensed practice of veterinary medicine given the stated purpose of the statute and the statutory exemptions. As for Count II, animal cruelty, the State argued that the Defendant’s conduct in using a homemade tool to remove bone fragments from the dog’s rectum and then failing to take the dog to an advanced care clinic fits under the Florida animal cruelty statute. Although the Defendant argued that he had no intention of inflicting pain upon his dog and was only trying to help him, the Court agreed with the State’s argument that “the statute does not require a specific intent to cause pain but punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering.” Ultimately the Court affirmed the trial court’s dismissal of Count I, reversed the trial court’s dismissal of Count II and remanded for further proceedings on the animal cruelty charge.

Trial court abused discretion in denying restitution for victim's service animal, where statute and state constitution entitle victims to restitution. People v. Smalling, --- Cal.Rptr.3d ----, 2019 WL 2400413 (Cal. App. Dep't Super. Ct. May 30, 2019). Defendant pled no contest and was fined $157 for allowing a dog controlled or owned by her to cause injury or death to a service dog in violation of California’s Penal Code (section 600.2). The service dog’s owner requested a restitution hearing, but the trial court denied the request, stating that since the offense was an infraction, a restitution hearing was not permissible. The service dog owner appealed the decision of the trial court. The Court ultimately found that the trial court incorrectly stated that a victim of an infraction is not entitled to restitution. Both the California Constitution and the California Penal Code section entitle the victim to restitution. The trial court abused its discretion in erroneously concluding that a crime victim is not entitled to restitution if the offense committed is only an infraction. The appellate court was unpersuaded by defendant's argument that an order for payment of restitution would be improper because she was never advised that victim restitution would be a consequence of her plea. The Court reversed the order denying victim restitution and remanded the matter to the trial court with directions to conduct a restitution hearing.

Private animal exhibit park zoned quasi-public must allow animal rights protesting in the unticketed, exterior portion of the park. Park Management Corp v. In Defense of Animals, --- Cal.Rptr.3d ----, 2019 WL 2539295 (Cal. Ct. App. June 20, 2019). An animal rights activist appealed the entry of a permanent injunction in a trespass action that prohibited him from demonstrating outside of Six Flags Discovery Kingdom ("The Park") in California. The superior court rejected Cuviello’s federal and state constitutional claims that he had a right to picket there peacefully and his common law defense based on a claimed prescriptive easement. The Park was originally municipally owned and privately operated until 2007 when the Park's management acquired the park from the City of Vallejo. After that acquisition, the Park began to limit free speech until it ultimately banned all expressive activity on the property. Although the Park was zoned as a public and quasi-public property, the Appeals Court grappled with whether to classify the Park as a private or public forum. The Court applied a balancing test which balanced society’s interest in free expression against the Park’s interests as a private property owner. The Court concluded that the unticketed, exterior portions of the Park were a public forum. The Court held that the trial court erred in granting the Park’s summary judgment and in denying Cuviello’s cross-motion for summary judgment. Accordingly, the Court reversed the decision of the trial court and held that on the undisputed facts here, the Park may not ban expressive activity in the non-ticketed, exterior areas of Six Flags.

Case Archives

Articles

An Analysis of Favre’s Theory on the Legal Status of Animals: Towards a Reconsideration of the “Person-Property Dichotomy," Akimune Yoshida, The Hitotsubashi Journal of Law and International Studies (2019) (article in Japanese, abstract in English).

Never Enough: Animal Hoarding Law, Courtney G. Lee, 47 U. Balt. L. Rev. 23 (2017).

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

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

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

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