Cases

Case name Citationsort descending Summary
Burkholder v. Department of Agriculture --- A.3d ----, 2021 WL 4780651 (Pa. Commw. Ct. Oct. 14, 2021) In this Pennsylvania case, James Burkholder, d/b/a Whispering Spring Kennel (Burkholder), petitioned for review of an adjudication of the Secretary of Agriculture (Secretary) that imposed a $19,500 civil penalty on Burkholder for transferring two dogs in excess of the annual limit under his Class IV kennel license in December of 2017. Burkholder raises two arguments: first, the Dog Law does not specify that transfers of more than 60 dogs by a private kennel constitute violations; and two, the penalty imposed is excessive and unreasonable. This court first noted that a Kennel Class IV license clearly does not allow him to transfer more than 60 dogs and thus any transfers in excess violate the Dog Law. As to the excessive penalty argument, the court first examined the distinction between separate and ongoing violations of the Dog Law because it raised a question of first impression under the Dog Law. Relying on the distinction in other contexts, particularly regarding penalties imposed by the Pennsylvania Public Utility Commission (PUC), the court found that a kennel owner holding too many dogs could remedy the violation simply by transferring the excess dogs. The problem here is that, where an owner has transferred more dogs than his license allows, there is no way to correct the violation. Thus, said the court, a per-day fine is improper. "Each unauthorized transfer of a single dog is a single violation of the Dog Law, not a continuing violation, because it is not ongoing in nature and such transfers can be feasibly segregated into discrete violations so as to impose separate penalties." The court concluded that the Department erred as a matter of law by imposing ongoing penalties for two discrete unauthorized transfers. The order of the Department as to the excess transfers of dogs was affirmed, but the portion as to the amount of the penalty was vacated. The matter was remanded for further proceedings.
Andrade v. Westlo Mgmt. LLC --- A.3d ----, 2022 WL 2183604 (R.I. June 17, 2022) The defendants, Westlo Management LLC (Westlo) seek review of a Superior Court order granting partial summary judgment on several counts in favor of the plaintiffs, Curtis W. Andrade and The Rhode Island Commission for Human Rights (the commission). The defendants assert that the existence of genuine issues of material fact precluded partial summary judgment and that the commission did not have standing to intervene in this matter. The matter stems from a denial of plaintiff's request for a reasonable accommodation at Westlo's property. Prior to moving in to Westlo's low-income property, plaintiff was told by a leasing agent that he was not permitted to have his dog, Enzo, because the dog (a pit bull) was on the complex' restricted breed list. Andrade then informed the leasing manager that the dog was his support animal (although he could not recall at deposition whether he filled out paperwork for an assistance animal). After moving in, he left the dog mostly at his mother's residence, but did bring the dog to his residence in December of 2011. While the dog was there, an incident occurred with another resident in a hallway near the elevators. Andrade testified that his dog never made physical contact with the resident, while the other resident claims the dog charged at him and pinned him to a wall. This resulted in a report being made to the building manager who then informed Andrade the dog was not allowed on the premises. Andrade then discussed the need for a support animal with his doctor who agreed and wrote a note stating that Andrade “would benefit in having a dog due to his medical condition[.]” The building manager rejected this request in a letter citing the breed ban and the recent incident with the dog. After a subsequent refusal by the building manager, Andrade filed a charge of discrimination with the Rhode Island Commission for Human Rights. After unsuccessful settlement discussions with the parties, Westlo initiated eviction proceedings against Andrade for non-payment of rent and the commission issued a right-to-sue letter. Andrade then filed the instant lawsuit and a hearing justice granted the commission's right to intervene. The complaint against Westlo raised the unlawful denial of full and equal access to housing and public accommodations based on Andrade's disability and unlawful retaliation by eviction, among other things. After cross-motions for summary judgment by both parties, the hearing justice granted plaintiffs motion for summary judgment finding that Westlo had discriminated against Andrade. However, she found there to be a genuine issue of material fact as to whether the dog had requisite training. Further, she refused to interfere with the order granting the commission's motion to intervene. The justice also acknowledged that she had misstated that the request for the reasonable accommodation had occurred before the elevator incident with the other resident. As a result, she declined to make a finding of fact on that issue. On defendants' appeal of summary judgment, defendants argue that the issue of whether an accommodation is reasonable under the FHA is a factual one and thus it was error for the hearing justice to make those determinations. The Supreme Court looked at the similar language of both the federal FHA and the state FHPA. While the court found that plaintiff met the definition for disability under the laws and that defendant was made aware of plaintiff's need for reasonable accommodation, it was troubled by the "direct threat" posed by the dog. Specifically, the court found issue with the date mix-up in the initial hearing for the incident with the dog an other resident. Therefore, due to the highly fact-specific nature of the assessment of an assistance animal as well as the conflicting evidence presented, this court disagreed with the hearing justice and concluded summary judgment was not appropriate. Further, the court found a genuine issue of material fact as to whether the dog was "necessary" to fully enjoy his dwelling since benefit of dog as it relates to plaintiff's disability was not fully described and the dog lived away from plaintiff for a year. As to the challenge to the motion to intervene, the court found Westlo failed to obtain the transcripts necessary to review the issue. Thus, this court quashed that portion of the Superior Court order that grants the plaintiffs’ motion for summary judgment “as to the [l]iability of Westlo Management, on [c]ounts 1, 2, 3, and 7[.]” The record was remanded to the Superior Court for further proceedings in accordance with this opinion.
State v. Butler --- A.3d ----, 2022 WL 4488304 (N.H. Sept. 28, 2022) Defendant Kevin Butler was convicted of criminal negligence after he left his dog inside a parked vehicle for 45 minutes when the temperature was over 90 degrees outside. The charge came after a neighbor noticed a dog in the vehicle that was "scratching at the windows and the door" and appeared to be in distress. After calling the police, an animal control officer removed the animal from the unlocked car and transported the distressed dog to a local veterinary clinic. At trial, the defendant testified that he was out running errands on a "very hot" day, and asked his son to get the dog out of the car as Defendant's hands were full. An important phone call distracted him from following up on the dog's removal and only after the police knocked on his door did he realize the dog must still be in the car. On appeal here, Defendant contends that the evidence was insufficient to establish the mens rea of criminal negligence for both charges. The State must prove that a defendant “fail[ed] to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct" and that this risk constitutes a gross deviation from conduct performed by a reasonable person. Here, the court found that the record supports the trial court's conclusion that the defendant failed to become aware of a substantial and unjustifiable risk that the dog would overheat in the car and that his failure to perceive this risk constituted a gross deviation from reasonable care. The temperature was high that day, the car was parked in direct sunlight with all the windows up, and the dog was left for around an hour. The fact that Defendant relied upon his 8-year-old son to remove the dog under these circumstances constituted a gross deviation from reasonable care. This was not "mere inattention" as Defendant claimed. The conviction was affirmed.
Perez v. County of Monterey --- Cal.Rptr.3d ---- 2019 WL 621483 (Cal. Ct. App. Feb. 14, 2019) In this California case, the plaintiffs sued to challenge the validity of the County of Monterey rooster-keeping ordinance, seeking a declaratory judgment that the law is unconstitutional. The ordinance limits residents to no more than four roosters on a single property without a rooster keeping permit and also describes care and keeping requirements. The trial court found that the ordinance did not violate the constitution and entered judgment for the City. Plaintiffs here appeal that decision, arguing that the ordinance: (1) takes property without compensation in violation of the Fifth Amendment to the United States Constitution; (2) infringes on Congress’ authority to regulate interstate commerce; (3) violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution; (4) is a prohibited bill of attainder; and (5) violates the rights to privacy and to possess property guaranteed by the California Constitution. With respect to the Fifth Amendment taking challenge, the court found that the regulatory takings argument failed because there is no evidence that the ordinance affected plaintiffs or that they even applied for or were eligible for a permit. As to the interstate commerce challenge, plaintiffs provided no evidence that the ordinance would cause excess roosters to be divested from owners and sold in commerce to support this claim. As to Equal Protection, the plaintiffs correctly assert that the ordinance treats people differently based on age (i.e., students engaged in 4-H or FFA activities are exempted from the four-rooster limitation). However, the court found that the county stated a legitimate objective of public health and safety and this differential treatment of a non-suspect class advances that interest. Finally, the court found the ordinance was not a bill of attainder since it prospectively regulates roosters and also that it does not violate California's right to privacy and property possession. Indeed, the court found that plaintiff did not identify a specific privacy interest implicated by the ordinance. Thus, the judgment was affirmed.
People v. Smalling --- Cal.Rptr.3d ----, 2019 WL 2400413 (Cal. App. Dep't Super. Ct. May 30, 2019) Defendant was cited 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. The offense was an infraction. The defendant pled no contest and was fined $157. 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 (the very statute that the Defendant was convicted of violating) entitle the victim to restitution. The California Constitution specifically states that restitution shall be ordered in every case regardless of the sentence or disposition of a crime in which a victim suffers a loss. The Court stated that an infraction is a crime, therefore, a restitution hearing is mandatory. The statute that the Defendant violated (section 600.2 of California’s Penal Code) also stated that a defendant shall be ordered to make restitution. The trial court abused its discretion in erroneously concluding that a crime victim is not entitled to restitution if the offense committed is an infraction and ultimately denying the victim restitution. The Defendant argued 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 and that such an order would violate her plea agreement. She also argued that the trial court found, in good faith, that restitution was unnecessary. The Court, however, found the Defendant’s arguments unpersuasive. The Court reversed the order denying victim restitution and remanded the matter to the trial court with directions to conduct a restitution hearing.
Park Management Corp v. In Defense of Animals --- Cal.Rptr.3d ----, 2019 WL 2539295 (Cal. Ct. App. June 20, 2019) An animal rights activist named Joseph Cuviello 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. Cuviello was one of the many people that protested at the park advocating for animals and he had done so many times in the past. The Park filed a single cause of action for private trespass against several animal advocacy groups. Cuviello argued that he had a First Amendment right to protest there because the park had been dedicated to public use, the park was a public forum under state constitutional law, and given the amount of times he had protested at the park in the past, he had acquired a common law prescriptive easement right to protest there. The trial court denied Cuviello’s cross-motion for summary judgment and granted summary judgment for the Park. It ruled that the First Amendment does not apply to private property and that the property was not a public forum under California’s constitution. It also rejected the prescriptive easement claims. 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 was a public forum. Ultimately 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.
Berry v. Frazier --- Cal.Rptr.3d ----, 2023 WL 3141235 (Cal. Ct. App. Apr. 28, 2023) Ryan Berry sued veterinarian Jeffery R. Frazier for damages related to the euthanasia of her cat. Berry alleged that Frazier performed the euthanasia without her informed consent, using an unnecessary and unjustified intracardiac injection that caused a painful death for her cat and emotional distress for her. In 2019, plaintiff hired "Vetted," a service that provides home euthanasia for pets, to put down their dying cat. Vetted sent Dr. Frazier, who failed to sedate the cat with a catheter and suggested using an intracardiac injection (injecting fluid directly into the heart), claiming it was a quick and painless method. The owners agreed, but later learned that this method is generally considered inhumane and illegal in some circumstances. Plaintiff's first amended complaint (FAC) raised the following: (1) fraud/deceit/intentional misrepresentation (third cause of action); (2) breach of fiduciary duty (fourth cause of action); (3) conversion/trespass to chattels (fifth cause of action); (4) intentional infliction of emotional distress (sixth cause of action); and (5) violation of section 3340 (eighth cause of action). The prayer for relief for each cause of action sought nominal damages of $1, restitution of $600 (cost of euthanasia), and punitive damages. The trial court granted Frazier's demurrer and dismissed the causes of action for fraud, conversion, intentional infliction of emotional distress, and violation of Civil Code section 3340. Berry voluntarily dismissed the remaining cause of action, resulting in a final judgment. On the instant appeal, the appellate court looked at the fraud claim finding that the defendant intentionally misled the plaintiff about the method of euthanasia and manipulated her into giving consent for the intracardiac injection, which turned out to be an inhumane and painful procedure. The plaintiff provided specific allegations of the defendant's representations, including statements about the procedure being quick and painless. The court found that the plaintiff's allegations were sufficient to support a claim of fraud, and the defendant's argument that the plaintiff failed to allege legally cognizable damages was rejected. With respect to the conversion/trespass to chattels claim, the plaintiff alleges that the defendant, a veterinarian, obtained her consent for euthanizing her cat through fraudulent means. The plaintiff claims that the defendant intentionally misled her about the procedure, resulting in the cat experiencing extreme pain. As to plaintiffs' claims of conversion/trespass to chattels and IIED, the court found that the allegations support these claims, as the defendant's conduct violated the plaintiff's property rights and caused severe emotional distress. The court disagreed with the trial court's dismissal of these claims and concludes that the demurrer should have been overruled. Finally, on the violation of Section 3340 (the exemplary damages statute), the court agreed with the trial court's ruling that no separate cause of action can be alleged for a violation of Section 3340. The court notes that while the statute provides for exemplary damages, it does not define "wrongful injuries" or indicate an intent to create a separate cause of action. While there is no independent cause of action under Section 3340, it can serve as a basis for seeking exemplary damages in connection with other causes of action so the plaintiff should have pleaded the request for Section 3340, providing sufficient facts to support the allegation of willful and inhumane conduct. The court remanded the case to allow the plaintiff to file a second amended complaint to include the request for Section 3340 exemplary damages in connection with other causes of action. Notably, the court rejected the defendant's argument that Section 3340 does not apply to veterinarians or that the plaintiff's claim only involves professional negligence. Section 3340 is broadly worded and can apply to any defendant, including veterinarians, for willful or grossly negligent conduct causing wrongful injuries to animals. The court found no basis to exclude veterinarians from the statute's coverage and notes that the defendant's argument is unsupported by relevant case law. The court has dismissed the appeals from the October 7, 2021 demurrer order, the October 7, 2021 motion to strike order, and the October 26, 2021 order dismissing the fourth cause of action without prejudice. The court has also reversed the judgment of dismissal and sent the case back to the trial court for further proceedings. The trial court was directed to vacate the dismissal of the first amended complaint and modify the demurrer order. The plaintiff is allowed to file a second amended complaint, and the defendant is allowed to file a demurrer and motion to strike to any new amended pleading.
Animal Legal Defense Fund, Inc. v. Perdue --- F.3d ----, 2017 WL 4320804 (D.C. Cir. Sept. 29, 2017) The Secretary of Agriculture is directed by the Animal Welfare Act to promulgate regulations governing minimum animal housing and care standards and to issue licenses for animal exhibitionists only if they adhere to these standards. The Animal Legal Defense Fund sued the Department of Agriculture for renewing Tom and Pamela Sellner's Cricket Hollow Zoo in Iowa despite multiple violations of the animal welfare requirements set forth in the Act. In fact, the USDA had filed an administrative complaint against the Sellners and commenced a formal investigation in 2015 According to the court, the USDA has established a "bifurcated" approach to licensing, where initial applicants must comply with regulations and pass an agency compliance inspection, while license renewal applicants must only pay a fee and agree to continue to comply with regulations. After the District Court's dismissal of the case, the Court of Appeals affirmed in part but remanded back to the District Court the question whether the USDA's reliance on self-certification was an arbitrary and capricious action with instructions to get further explanation from the agency. As stated by the court, "On remand, the agency must, at a minimum, explain how its reliance on the self-certification scheme in this allegedly “smoking gun” case did not constitute arbitrary and capricious action."
Lunon v. Botsford --- F.3d ----, 2019 WL 7198501 (8th Cir. Dec. 27, 2019) Lunon had a German Shephard as a breed dog, named Bibi, which had gotten loose and was turned into the local animal shelter. The animal control officer failed to scan the dog for a microchip. After five days at the animal shelter, Bibi was sterilized and adopted out. Lunon was able to recover his dog through a replevin action, however, Lunon claimed that his fourteenth amendment right to procedural due process was violated when Bibi was spayed and adopted out without providing pre-deprivation notice and an opportunity for Lunon to be heard. Lunon filed suit against the animal control officer, two directors of the animal shelter in Pulaski County, the city of North Little Rock, Pulaski County, the Pulaski County Animal Shelter, and the North Little Rock Animal Shelter. The defendants removed the case to federal court and sought summary judgment. The district court did not grant summary judgment and the defendants appealed. The Court found that the animal control officer picking up Bibi and delivering her to the animal shelter did not deprive Lunon of a protected property interest. There is no constitutional duty for an animal control officer to scan a stray dog for a microchip. Therefore, the animal control officer was not liable. The public officials that participated in this action were all protected under governmental immunity because Lunon failed to demonstrate that each individual defendant violated his constitutional right to due process. The Court ultimately reversed the order of the district court and remanded with directions to enter judgment dismissing those claims with prejudice.
Hines v. Quillivan --- F.3d ----, 2020 WL 7054278 (5th Cir. Dec. 2, 2020) This case asks whether a veterinarian in Texas has a right to engage in telemedicine for a pet he has not physically examined. The plaintiff challenged Texas' physical-examination requirement that prohibits veterinarians from offering individualized advice to pet owners unless the vet previously examined the animal. Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing in-person veterinary medicine in 2002 due to his age and other ailments. He then transitioned to a practice based remotely through the Internet. In 2012, the Texas State Board of Veterinary Medical Examiners (the Board) investigated Hines and found he had violated state law. The Board ordered him to cease providing veterinary advice electronically without first physically examining the animal. In 2013, Dr. Hines filed suit against the Board members claiming that the physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The district court then granted the motion to dismiss by the Board and the Court of Appeals found Hines failed to state a claim on appeal. Since that 2015 opinion, Texas revised its medical doctor laws, allowing them to engage in telemedicine, but did not do the same for veterinary practice laws. In addition to that change, a United States Supreme Court held that statements made by medical doctors could now be deemed "professional speech" (the "NIFLA" case). As a result of these changes, Hines brought the present suit arguing that the changes in Texas' telemedicine laws and the NIFLA case enabled him to pursue a new equal-protection claim and First Amendment claim. With regard to his protected speech claim, this Court found that subsequent caselaw does entitle Hines' claim to greater judicial scrutiny than his previous case allowed. Thus, remand to the district court to make the initial evaluation of whether Hines' conduct or speech is being regulated is required. On the equal-protection argument, the court found that Hines presents an argument slightly different than his previous one. In essence, Hines argued in the prior appeal that the he physical-examination requirement treated veterinarians engaging in telemedicine differently than other veterinarians. Here, Hines argues that changes to the medical doctor licensing laws treats medical doctors differently than veterinarians in the state with respect to telemedicine. Using a rational-basis review, the court held that it is rational to distinguish between human and animal medicine because of the differences in training, schooling, and overall practice of the professions. The court found the state's proffered reason that animals cannot communicate their symptoms as humans can ordinarily was a persuasive rational basis (although both Hines and the Dissent note that some humans like infants are unable to speak similar to animals and yet are allowed to be treated via telemedicine). The court found the services provided by both professions are not interchangeable and thus, the physical-examination requirement is not a protectionist measure for medical doctors. Ultimately, the court left it to the Texas legislature to expand any telemedicine changes to the veterinary practice code. The action was affirmed in part, reversed and remanded in part.
Center for Biological Diversity v. Haaland --- F.3d ----, 2021 WL 2232487 (9th Cir. June 3, 2021) This case is a challenge to a decision by the U.S. Fish and Wildlife Service ("Service") reversing its previous decision that the Pacific walrus qualified for listing as an endangered or threatened species under the Endangered Species Act of 1973 (“ESA”). In 2008, the Center for Biological Diversity (“Center”) petitioned the Service to list the Pacific walrus as threatened or endangered, citing the claimed effects of climate change on its habitat. In 2011, after completing a species status assessment, the Service issued a 45-page decision ("Decision") that found the listing of the Pacific walrus was warranted, but it declined to list the species because it found the need to prioritize more urgent listings. A settlement between the parties in 2017 required the Service to submit a proposed rule or a non-warranted finding. In May of 2017, the Service completed a final species assessment ("Assessment") that concluded some of the stressors to the species had "declined in magnitude" and the walruses had adjusted, which culminated in "a terse 3-page final decision that the Pacific walrus no longer qualified as a threatened species." As a result, in 2018, the Center filed this action alleging that the 2017 Decision violated the APA and ESA. The District Court granted summary judgement to the Service and this appeal followed. The Ninth Circuit first observed that, while the Assessment contains some new information, it does not explain why this new information resulted in an about-face from the Service's 2011 conclusion that the Pacific walrus met the statutory criteria for listing. The Service contends the appellate inquiry must be limited to the 3-page Decision document from 2017. However, the Court noted that a review of the reasons offered by the Service in its appellate briefing illustrates why the Court cannot conduct the required appellate review without reference to the previous Assessment. The agency's new policy contradicts its prior policy (the Decision document which was 40+ more pages longer than the Assessment and includes citations and other data). The Ninth Circuit now holds that the Service did not sufficiently explain why it changed its prior position. As a result, the Court reversed the district court's grant of summary judgment to the Service and remanded it to the District Court to direct the Service to provide a sufficient explanation of its new position.
Ass'n des Éleveurs de Canards et d'Oies du Quebec v. Bonta --- F.4th ----, 2022 WL 1436840 (9th Cir. May 6, 2022) California prohibits the in-state sale of products that are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.” Cal. Health & Safety Code § 25982. The law had a 7.5-year grace period before it went into effect. The law has two components: first, it bans the practice of force-feeding ducks and geese to produce foie gras; and second, the law banned the in-state sale of products that are "the result" of that practice. After nine years of litigation and in their third set of appeals before this Court, the parties ask the court here to decide whether California's sales ban is preempted by the Poultry Products Inspection Act (“PPIA”) or violates the dormant Commerce Clause. As to the first issue of preemption, the plaintiff sellers contend that at least one USDA Policy Book defines foie gras as liver from poultry that has been "specially fed and fattened" and other USDA documents suggest this is done via forced-feeding. Thus, contend the sellers, it is impossible to produce and properly label foie gras, as is required by the PPIA, and then also comply with the California law. The court disagreed with the assertion, finding that the sellers can still force feed birds to make their products, but not sell those in California. Said the court, "The sales ban is neither a command to market non-force-fed products as foie gras nor to call force-fed products something different." Further, the sellers raise a new suggestion that the ban constitutes express preemption because force feeding operates as an "ingredient requirement." Essentially, they contend you cannot have foie gras without force-feeding birds. This was also rejected, as the court found nothing new that would reverse the precedent established in the prior decision by the court. Finally, the sellers appeal dismissal of their dormant Commerce Clause claim, arguing that the sales ban is impermissibly extraterritorial because force-feeding is only banned in California and therefore, only regulates out-of-state conduct. The court dismissed this, noting states are free to regulate commerce within their boundaries provided such regulation does not affect transactions from out of that state. Moreover, the sellers' argument that the ban is "unduly burdensome" for this reason also failed since there is not requirement that a state impose the "least burdensome" method for in-state commerce. The court held that the sales ban is neither preempted nor unconstitutional and that the specified transactions are out-of-state sales permitted by California law.
Marino v. Nat'l Oceanic & Atmospheric Admin. --- F.4th ----, 2022 WL 1548489 (D.C. Cir. May 17, 2022) Plaintiff animal welfare organizations sued the National Marine Fisheries Service (NMFS) and its parent agency, the National Oceanic and Atmospheric Administration, seeking to enforce conditions in permits held by SeaWorld. The permits authorize the capture and display of orcas and require display facilities to transmit medical and necropsy data to the NMFS following the death of an animal displayed under the terms of a permit. In 1994, the Marine Mammal Protection Act (MMPA) was amended such that it shifted authority to oversee conditions of marine mammals at exhibitors from NMFS to the Animal and Plant Health Inspection Service (APHIS). After three pre-1994 orcas died at SeaWorld, plaintiffs tried to convince NMFS that it still had the authority to enforce the pre-1994 rules related to release of records, but NMFS contended that its authority was extinguished in 1994. Plaintiffs brought suit, arguing that the NMFS's policy rests upon an arbitrary and capricious interpretation of the MMPA, and that its refusal to enforce the permit conditions was also arbitrary and capricious. The district court dismissed the plaintiffs’ suit for lack of standing. On appeal here, the court examined plaintiffs' standing under the three-part Lujan test. The court found a lack of redressability for the plaintiffs. Plaintiffs fail to allege any facts from which the court could infer the relief they seek would likely cause the NMFS to redress their alleged harms. In fact, because the MMPA language on permits is permissive, NMFS has discretion whether to enforce them. This is coupled with the fact that there is no evidence that third-party SeaWorld will turn over the reports even if NMFS were to direct them. Therefore, this court held that the district court did not err in determining that the plaintiffs lacked standing to pursue this case. Affirmed.
Center for Biological Diversity, Defenders of Wildlife v. Kelly --- F.Supp.3d ----, 2015 WL 1293338 (D. Idaho 2015) Plaintiffs brought an action against the Defendants, challenging the U.S. Fish and Wildlife Service (“FWS”)'s November 28, 2012 Final Rule designating 30,010 acres in Idaho and Washington as critical habitat for the southern Selkirk Mountains population of woodland caribou under the Endangered Species Act (“ESA”). Specifically, plaintiffs alleged (1) that the Final Rule's critical habitat designation was arbitrary and capricious because the Defendants failed to explain how the limited amount of critical habitat designated was sufficient to recover this population of caribou and (2) that Defendants failed to provide public notice and comment on the substantially revised critical habitat designation before issuing the Final Rule. Defendants and Intervenors argued that the Final Rule satisfied the requirements of the ESA and the Administrative Procedures Act ("APA").While the district court stated that the Final Rule's analysis seemed reasonably based on the best available science, it refused to make a conclusive determination on the arbitrary and capricious issue because procedural requirements necessitated a further public review and comment period. The court therefore found the error in this case was a procedural one resulting from the FWS failing to provide a period of public review and comment on the Final Rule's critical change in reasoning. The Court therefore remanded this matter to the FWS to cure the procedural error by affording the necessary public comment period and to consider anew the critical habitat designation in light of those comments.
Big Cats of Serenity Springs, Inc. v. Vilsack --- F.Supp.3d ----, 2015 WL 1432069 (D. Colo. 2015) In an amended complaint, Plaintiffs asserted four claims against Defendants relating to a May 7, 2013 United States Department of Agriculture inspection of Big Cats of Serenity Springs, Inc. The claims included a Fourth Amendment right to be free from unreasonable searches and seizures; a 42 U.S.C. § 1983 claim against the Inspector Defendants “because they acted under color of state law when they induced the deputies to cut the chains and enter the premises;” a declaratory judgment “declaring that [Defendant] Thompson inappropriately overrode the medical advice of [Plaintiff] Big Cats' veterinarians and declaring that, in the future, the USDA cannot force [Plaintiff] Sculac to choose between following the medical advice of his veterinarians and the mandates of a USDA inspector;” and a declaratory judgment that the USDA must follow its own regulations and that it cannot conduct a warrantless search of the Big Cats facility outside of ‘normal business hours' solely because an inspector ‘want [s] to’ or because an inspector subjectively ‘believe[s][it] necessary to determine the welfare status of the animals....' ” In addition to declaratory relief, Plaintiffs also sought compensatory and punitive damages, costs, expenses, and prejudgment interest. Defendants filed a motion to dismiss. US Magistrate Judge issued a recommendation that, to the extent the Motion argued that the declaratory judgment claims should be dismissed because Plaintiffs lack standing, the Motion be granted in part and denied in part and that the declaratory judgment claims asserted by Plaintiffs Nick Sculac, Julie Walker, and Jules Investment, Inc. be dismissed without prejudice. In all other aspects, the Magistrate recommended that the Motion be denied. A District Court judge approved and adopted these recommendations and denied defendant’s objections to the recommendations.
Am. Anti-Vivisection Soc'y v. United States Dept. of Agric. --- F.Supp.3d ----, 2018 WL 6448635 (D.D.C. Dec. 10, 2018). The American Anti-Vivisection Society and the Avian Welfare Coalition sued the Department of Agriculture and its Secretary alleging that the Department's failure to promulgate bird-specific regulations is unreasonable, unlawful, and arbitrary and capricious in violation of the APA. The Plaintiffs sought court-ordered deadlines by which the Department must propose such rules. The Department moved to dismiss the Plaintiff's claims arguing that the Plaintiffs lack standing to sue, that it is not required by law to promulgate regulations for birds, and that it has not taken a final action reviewable by the court. The District Court ultimately held that, although the Plaintiffs have standing to sue, both of their claims fail. The Department is not required by the Animal Welfare Act to issue avian-specific standards; rather, it must to issue welfare standards that are generally applicable to animals. Secondly, although the Department has not taken any action to develop avian-specific standards, that does not mean that will not do so in the future. The District Court granted the department's motion to dismiss.
Sanzaro v. Ardiente Homeowners Association, LLC --- F.Supp.3d ----, 2019 WL 1049380 (D. Nev. Mar. 5, 2019) Deborah Sanzaro and Michael Sanzaro are the plaintiffs in this action. Plaintiffs are homeowners and members of a homeowners association ("HOA"). Three incidents occurred at the HOA clubhouse in which Deborah Sanzaro attempted to enter with her Chihuahua, which she claimed was a service animal. In each of these three incidents, Deborah was denied access to the clubhouse. The first incident occurred on March 11, 2009. Deborah entered the club house with her dog and the manager of the HOA asked her why she brought the dog into the clubhouse with her. Deborah explained that her dog assisted her with her disability and was a service animal, however, she could not provide any documentation to the manager as to that effect. She was then asked to leave the clubhouse to which she refused. Only after security was called did Deborah leave. Later, on that same day, Deborah entered the clubhouse with her service dog without any incident. The HOA sent a letter to the plaintiffs after the first incident notifying them that that Deborah had violated the HOA’s governing documents and that a hearing before the HOA board would take place on March 30, 2009. Plaintiffs never showed for this hearing which ultimately resulted in the Board finding that Deborah violated HOA rules and regulations by entering the clubhouse with her dog and not providing documentation. Deborah was assessed multiple fines. Prior to the hearing, the HOA sent out letters to the other residents letting them know that they would accommodate any legitimate service animal if their staff is properly advised of such. They also mailed out a letter regarding the incident with the plaintiffs to all of the other residents. The plaintiffs began to receive hate mail and verbal harassment regarding their dispute with the HOA board. The plaintiffs received many threats and had their property defaced by an anonymous homeowner who spray painted their garage door telling them to get out of the neighborhood. The HOA did nothing to stop this harassment. Plaintiffs filed a complaint with the Nevada Real Estate Division and their claim was submitted to a non-binding arbitrator. Deborah provided a doctor’s statement requesting that her dog be registered as a service dog, a notice of entitlement to disability benefits from the SSA, a doctor’s statement regarding Deborah’s disability, and a statement from Deborah explaining how her dog had been trained to assist her. The Arbitrator found for the Ardiente Homeowners Association because she did not find Deborah’s explanation as to why she needed the dog as being persuasive. The arbitration decision was upheld by the Eighth Judicial District Court of Clark County, Nevada as well as by the Nevada Supreme Court. On July 26, 2010, Plaintiffs entered the clubhouse again with the dog. They were told that they could not come in unless they provided more documentation despite the documentation that the Deborah had provided during the arbitration proceeding. On January 29, 2011 the plaintiffs entered the clubhouse again with the dog and they were again denied entry until the plaintiffs could provide documentation that the dog was a registered service animal. The HOA eventually foreclosed on the plaintiff’s home in order to recover the fines and attorney’s fees that were owed. Plaintiffs then brought 102 causes of action in federal court under the ADA and FHA which were pared down to two questions: (1) whether the HOA clubhouse was a place of public accommodation under the ADA and NRS § 651.075, and (2) whether Plaintiffs requested, and were ultimately refused, a reasonable accommodation under the FHA. For the plaintiff ADA claims, the District Court found that Deborah is disabled as a matter of law and that the HOA and other defendants were aware of her disability at least as of July 27, 2009 (the date of the arbitration). The Court also found that the clubhouse was not a place of public accommodation and that the entire community including the clubhouse was a private establishment. As a result the plaintiffs were not able to establish a claim for disability discrimination under the ADA. For the plaintiff’s FHA claims, the Court found the following: Deborah was qualified as handicapped under the FHA; the defendants were reasonably expected to know about her handicap; an accommodation was necessary for Deborah to use the clubhouse; the dog qualified as a service animal and permitting the dog to accompany Deborah was a reasonable accommodation; and the defendants refused to make the requested accommodation which makes them liable. For the Nevada law claim, it failed because the community and clubhouse are a private establishment and were not considered public accommodations. Plaintiffs were entitled to damages for their FHA claims only. The Court ultimately found in favor of the plaintiffs and awarded $350,000 in compensatory damages, $285,000 in punitive damages and attorneys’ fees and costs of litigation.
Art and Antique Dealers of Am., Inc. v. Seggos --- F.Supp.3d ----, 2019 WL 3817305 (S.D.N.Y. Aug. 14, 2019) The plaintiffs are trade organizations representing arts and antique dealers. Plaintiff’s members have an “economic and professional interest in. . .the purchase, sale, distribution or trading of antique elephant ivory.” The Defendant is the Commissioner of DEC which is a state agency tasked with protecting New York’s natural resources and environment. The Endangered Species Act (ESA) prohibits the import and export of endangered species and the sale, offering for sale, or movement of endangered species in interstate or foreign commerce. The prohibitions, however, had exceptions for “antique articles” that are 100 years of age or older. Those wishing to import such antique articles needed to first obtain a federal permit. Under the regulations promulgated by the Secretary of the Interior, trade of African elephant ivory is generally prohibited. Only certain items containing a de minimus quantity of ivory are exempt. The state of New York imposed a ban on elephant ivory with even narrower exceptions than the ESA. The DEC only issued licenses authorizing trade in ivory pursuant to the State Ivory Law’s exceptions. The licenses actually issued by the DEC restricted the advertisement and display of ivory products. Plaintiff’s filed this action challenging the constitutionality of the State Ivory Law on preemption and First Amendment grounds. The Plaintiffs filed a motion for summary judgment and the Defendants and Intervenors crossed-moved to dismiss. The Court examined the ESA and determined that section 1535(f) did not preempt the State Ivory Law because the ESA prohibitions only applied to interstate or foreign commerce while the State Ivory Law applied to intrastate commerce. As result, the exceptions contained in the State Ivory Law did not prohibit what was authorized by the ESA. The Court granted the Defendant’s motion to dismiss on Count I because it was not “the clear and manifest purpose of Congress to preempt state laws restricting purely intrastate commerce in ivory.” The Plaintiff’s second count alleged that the State Ivory Law’s permit requirement violated the First Amendment of the United States Constitution. The display restriction in the license prohibited the physical display for sale of any item not authorized for intrastate sale under the State Ivory Law even if the merchant was authorized under the ESA to sell the item in interstate commerce. The Court determined that the in-store display of ivory products constituted commercial speech because the display constituted lawful activity, New York had a substantial interest in regulating the sale of ivory within its borders and the display restriction directly advanced that interest. The Court was unable to determine whether the display restriction burdened substantially more speech than was necessary to further the government’s legitimate interests. Ultimately the Court granted the Defendant’s and Intervenor’s cross-motions to dismiss with respect to preemption and denied both the Defendant’s and Plaintiff’s motions for summary judgment with respect to the First Amendment Claim.
Club Gallistico de Puerto Rico Inc. v. United States --- F.Supp.3d ----, 2019 WL 5566322 (D.P.R. Oct. 28, 2019) Club Gallistico de Puerto Rico, Inc. (Club Gallistico) and the Asociacion Cultural y Deportiva del Gallo Fino de Pelea (Asociacion Cultural) both filed civil complaints against the United States Government. The complaints alleged that the Section 12616 amendments to the Animal Welfare Act (AWA) violated bedrock principles of federalism and rights protected under the United States Constitution. Both Club Gallistico and Asociacion Cultural are both non-profit organizations involved in the Commonwealth of Puerto Rico’s cockfighting industry. The amendments to the AWA outlawed all animal fighting ventures in which animals were moved in interstate or foreign commerce in every United States jurisdiction. These amendments extended the ban to United States territories which the Plaintiffs argued the United States did not have the authority to do. Both cases were consolidated and heard by the District Court. The Court analyzed the amendments under the Federalism doctrine, the Commerce Clause, and the Territorial Clause. Extending the ban on live-bird fighting did not violate either of the three. Further, the amendments did not violate the Tenth Amendment to the United States Constitution or any other constitutional rights such as free speech or due process. The Court ultimately denied the Plaintiffs’ Motion for Summary Judgment and Granted Defendant United States’ Cross-Motion for Summary Judgment.
PETA v. Tri-State Zoological Park --- F.Supp.3d ----, 2019 WL 7185560 (D. Md. Dec. 26, 2019) PETA brought this action against defendants Tri-State Zoological Park of Western Maryland, Inc., Animal Park, Care & Rescue, Inc., and Robert Candy (collectively, “Tri-State”). Prior to this lawsuit, Tri-State was home to two lemurs, five tigers, and two lions which are all protected under the Endangered Species Act (“ESA”). More than half of the protected species housed at Tri-State died. PETA alleged violations of the ESA. PETA contended that the animals were subjected to harm and harassment and that Tri-State committed a “take” as defined by the ESA as a result of unsanitary living conditions, poor diets, and inadequate shelter and enrichment. The district court found that PETA had standing to bring suit. The court also found that each of the respective animals had been subjected to a take under the ESA. The court ultimately held that it would enter a separate order declaring that the Defendants violated the ESA by unlawfully taking the remaining big cats and maintaining possession of them. The Court permanently enjoined the Defendants from ever owning or possessing any endangered or threatened species and terminated the Defendants’ ownership and possessory rights to the animals. The Defendants’ motion to stay was denied.
Dallas Safari Club v. Bernhardt --- F.Supp.3d ----, 2020 WL 1809181 (D.D.C. Apr. 9, 2020) Individual elephant sport hunters and their hunting organizations (“Plaintiffs”) filed suit against the United States Fish and Wildlife Service (the “Service”) seeking to import their sport-hunted elephant trophies from Africa into the United States. The Plaintiffs moved for a preliminary injunction requiring the Service to process pending and subsequently filed permit applications. The African Elephant is listed as a threatened species under the Endangered Species Act (“ESA”) and is also a species that is regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). All African elephant trophy imports require the Service to make an enhancement finding, meaning that the killing of the trophy animal will enhance the survival of the species, and issue an ESA permit. Additionally, certain African elephant trophy imports require a non-detriment finding and a CITES import permit. Historically, the Service made periodic countrywide enhancement and non-detriment findings, however, this came to a halt due to a Presidential tweet surrounding media criticism over the Service’s decision to lift the suspension on Zimbabwe’s ESA enhancement finding. The Court found that injunctive relief was not warranted because the Plaintiffs failed to show irreparable harm as to any Plaintiff. The individual Plaintiffs argued that they had suffered both emotional harm and economic harm. However, the Plaintiffs were on notice that their applications could take a significant amount of time to process. Additionally, the emotional distress claimed by the Plaintiffs would be alleviated when the Service issues a decision either granting or denying their permit applications, therefore, the harm that the Plaintiffs were claiming was not irreparable. The Court found that the individual hunter Plaintiffs’ alleged emotional and economic injuries were insufficient to warrant a preliminary injunction. The organizational Plaintiffs argued that they each were suffering irreparable harm derivatively because the Service’s delay in processing permit applications would decrease the popularity of sport hunting in Africa and cause a decrease in funding for conservation efforts. The problem was that the organizational Plaintiffs offered no proof to substantiate this argument. The Court ultimately held that in light of the disruptions caused by COVID-19 and the diminished capacity of the Service to process permit applications during this unprecedented time, it would be unwise and not in the public interest to order the expeditious processing of sport trophy permit applications. The Court denied Plaintiffs’ Motion for a Preliminary Injunction.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. WILDLIFE IN NEED AND WILDLIFE IN DEED, INC. --- F.Supp.3d ----, 2020 WL 4448481 (S.D. Ind. Aug. 3, 2020) Wildlife in Need and Wildlife in Deed, Inc. ("WIN") is a zoo located in Charlestown, Indiana owned by Timothy Stark and Melissa Lane that houses exotic and endangered animals, including Big Cats like lions, tigers, and hybrids. WIN exhibits Big Cats to the public through hands-on encounters called “Tiger Baby Playtime” so Stark routinely declaws Big Cat cubs in his possession so he can handle them easier, not for any medical reason. Stark admitted to declawing "about a dozen cubs" in 2016 alone. People for the Ethical Treatment of Animals, Inc. ("PETA") filed this lawsuit against Stark and Lane and their WIN zoo alleging that the defendants harassed and wounded Big Cats in violation of the federal Endangered Species Act (ESA). Specifically, this case asks whether certain animal exhibitors have "taken" various species of Big Cats by declawing them and prematurely separating them from their mothers to use in hands-on, public interactions. By granting PETA's motion for Partial Summary Judgment, this court concludes that such conduct constitutes a "taking" and thus violates the ESA. The court noted that PETA's motion for preliminary injunction was granted in 2017, restraining defendant from declawing any Big Cats absent a medical necessity supported by a veterinarian's opinion. Then, on February 12, 2018, the court preliminarily enjoined the WIN Defendants from declawing their Big Cats, prematurely separating Big Cat Cubs from their mothers, and using Cubs in Tiger Baby Playtime. The court previously concluded that declawing constitutes a “taking” under the ESA at the preliminary injunction stage, and now found "there is no good reason to disturb that conclusion." Thus, the court again concludes the WIN Defendants' declawing constitutes a “taking” under the ESA: it “harasses” Big Cats by creating a likelihood of significantly disrupting normal behavioral patterns; it “harms” Big Cats by actually injuring them; and it “wounds” Big Cats by inflicting a physical injury. In addition to granting the permanent injunction, the court also directed PETA to file a motion to appoint a special master and identify a reputable wildlife sanctuary for the animals housed at WIN.
Just Puppies, Inc. v. Frosh --- F.Supp.3d ----, 2020 WL 607026 (D. Md. Feb. 7, 2020) The State of Maryland passed a “No More Puppy-Mill Pups Act” which went into effect January 1, 2020. The Act prohibits retail pet stores in Maryland from offering for sale or otherwise transferring or disposing of cats or dogs. Four pet stores, a dog breeder, and a dog broker filed suit against Brian Frosh, the Attorney General of Maryland, the Consumer Protection Division of the Office of the Maryland Attorney General (CPD), the Maryland House Economic Matters Committee, and the Maryland State Senate Finance Committee seeking an injunction prohibiting enforcement of the Act as well as a declaration that it is unconstitutional under the Commerce Clause and the Equal Protection Clause of the United States Constitution. The Defendants were all entitled to sovereign immunity under the Eleventh Amendment, unless an exception were to apply. Under the Ex parte Young exception “private citizens may sue state officials in their official capacities in federal court to obtain prospective relief from ongoing violations of federal law.” The CPD and Committee Defendants were not State officials and, therefore, they did not fall within the Ex parte Young exception. The Ex parte Young exception, however, applied to Mr. Frosh as he was the Attorney General of Maryland since he had some connection with the enforcement of the Act. In Counts I, II, and III, the Plaintiffs alleged that the Puppy-Mill Act violated the Constitution's Commerce Clause. The Court found that the Plaintiffs failed to plausibly allege that the Act discriminated against out-of-state breeders and brokers in its text, in its effect, or in its purpose. Count IV alleged that the Puppy-Mill Act was preempted by the AWA. The Court found that prohibiting Maryland pet stores from selling dogs or cats had no effect on the operation of the AWA. The Puppy-Mill Act's impact on pet stores did not clash with the AWA, because pet stores were explicitly exempt from the AWA. Count V alleged that the Puppy-Mill Act deprived Plaintiffs of their constitutional right to the equal protection of law, in violation of the Fourteenth Amendment to the Constitution. The Court found no merit in this argument. Count VI asserted that the Act created a monopoly prohibited by Article 41 of the Maryland Declaration of Rights. The Court found that the Puppy-Mill Act did not constitute an exclusive right to sell cats and dog in Maryland. Although the Act prohibited brick and mortar stores from participating in the sale of cats and dogs, consumers still had a plethora of choices when seeking to obtain a pet, including rescue shelters, animal control units, USDA licensed breeders and brokers, and unregulated hobby breeders. The Court ultimately dismissed all claims against the CPD and the Committee Defendants and allowed the claims against Brian Frosh to proceed.
Madero v. Luffey --- F.Supp.3d ----, 2020 WL 733766 (W.D. Pa. Feb. 13, 2020) Ronald Madero allegedly took care of abandoned cats in his neighborhood by giving them food, shelter, and occasional medical care. Madero lived in a duplex in which his son owned both halves of the building. A neighbor contacted Animal Care and Control (ACC) and complained about abandoned kittens in front of her residence. On or about June 15, 2017, Officer Christine Luffey of the Pittsburgh Police Department arrived at Madero’s residence with a non-officer volunteer, Mary Kay Gentert. Officer Luffey requested to inspect the inside of both sides of the duplex. Madero refused and Luffey claimed she had a search warrant. Madero believed that Gentert was present to assist with spay and neuter services for the cats and consented to allow Gentert to inspect the premises while Luffey waited outside. Gentert took photographs inside. Some time afterwards, Luffey executed a search warrant. Madero asserted that the information gathered and photographs taken by Gentert were used to obtain the search warrant. A total of forty-two cats were seized. Madero asserts that after the cats were seized the cats were left for hours on the hot concrete in direct sunlight with no water and that snare catch poles were used to strangle the cats and force them into carriers or traps. Madero further asserted that the cats were not provided with veterinary care for several weeks and were kept in small cages in a windowless room. Some of the cats were ultimately euthanized. On August 7, 2017, Officer Luffey filed a criminal complaint against Madero accusing him of five counts of misdemeanor cruelty to animals and thirty-seven summary counts of cruelty to animals. Madero pled nolo contendere to twenty counts of disorderly conduct and was sentenced to ninety days of probation for each count with all twenty sentences to run consecutively. Madero filed a complaint asserting various causes of action under 42 U.S.C. 1983 and state law alleging illegal search and wrongful seizure of the cats against Officer Luffey, Homeless Cat Management Team (“HCMT”), Provident, and Humane Animal Rescue (“HAR”). The defendants each filed Motions to Dismiss. Madero pled that the cats were abandoned or stray cats, however, he also pled that the cats were his property and evidenced this by pleading that he fed the cats and provided shelter as well as veterinary care. The Court found that Madero pled sufficient facts to support ownership of the cats to afford him the standing to maintain his claims under section 1983 and common law. The Court held that Madero pled a plausible claim against Luffey on all counts of his complaint. Madero alleged that Officer Luffey violated his Fourth Amendment rights by lying about having a search warrant and securing consent by threatening to bust his door down. As for Madero’s state law claims, the court dismissed his negligent misrepresentation claim against Luffey as well as his claims for concerted tortious conduct. Madero failed to plead a threshold color of state law claim against the HAR defendants. There can be no violation of constitutional rights without state action. Madero’s claims for conversion and trespass to chattel against the HAR defendants were also dismissed. All claims against Provident were dismissed, however, Madero’s claim against HCMT for conspiracy was able to proceed. The Court ultimately denied in part and granted in part Officer Luffey’s Motion to Dismiss, Granted HAR’s Motion to Dismiss, and denied in part and granted in part HCMT’s and Provident’s Motion to Dismiss.
Turner v. Ferguson --- F.Supp.3d ----, 2020 WL 97526 (E.D. Wis. Jan. 7, 2020) On March 5, 2017 Lori turner was attacked by her neighbor’s (“Arndt”) dog which required her to receive 11 staples to close the wound on her scalp. She also suffered bites on her shoulder and wrist that would later require surgery. Pursuant to local regulations, the neighbor’s dog was quarantined for a ten-day period. Lori mentioned to officers that the City of Gelndale had recently enacted an ordinance that allowed for an officer to declare a dog vicious which then required the owner of the dog to adhere to certain requirements like securing the dog in a kennel when it was outdoors and maintaining liability insurance for dog bites. On March 14, 2017, Officer Ruppel issued a citation to Ardnt under a Glendale ordinance for damage caused by dogs, however, he did not declare the dog vicious under the vicious-dog ordinance. Officer Ruppel reasoned during deposition that he chose not to do so because he considered Ardnt grabbing the dog by the neck and Lori walking up and petting the dog (prior to Ardnt’s action) provocation. Lori filed suit against the officers she interacted with over the course of the next year claiming that the officers denied her equal protection of the law by refusing to declare Arndt’s dog vicious and by failing to protect her from loose dogs in the neighborhood. Lori had repeatedly contacted the police department over the course of a year about how she did not like the outcome of her dog bite case and about loose dogs in the neighborhood. Lori specifically alleged that the officers treated her with animus. The Court ultimately found that the evidence in the record did not support a class-of-one equal protection claim. Officer Ruppel’s decision to not declare Ardnt’s dog vicious was supported by a rational basis. Additionally, no evidence existed that suggested that the Glendale police department intentionally and irrationally treated Lori’s complaints about loose dogs in the neighborhood differently than it treated similar complaints by other citizens. The Defendant’s motion for summary judgment was granted.
Farm Sanctuary v. United States Department of Agriculture --- F.Supp.3d ----, 2021 WL 2644068 (W.D.N.Y. June 28, 2021) Plaintiffs (nonprofit organizations working to protect animals, people, and environments from industrial animal agriculture) filed suit against the USDA and FSIS challenging the implementation of the Modernization of Swine Slaughter Inspection rule, 84 Fed. Reg. 52,300 (Oct. 11, 2019) ("Slaughter Rule”). Plaintiffs contend that the rule allows nearly all pigs in the U.S. to be slaughtered as "unlimited speeds," thereby posing risks to animal welfare and consumer safety. Plaintiffs' lawsuit was later amended to add a claim that challenges Defendants' failure to ban the slaughter of non-ambulatory or "downed" pigs in the rule. Defendants filed motions to dismiss on the grounds that Plaintiffs have no standing to sue. Plaintiffs contend that they have been injured by Defendants' implementation of the Slaughter Rule. Specifically, Plaintiffs argue that the authorization of the high-speed slaughter rule directly conflicts with their organizational missions and redirects resources to counteracting the Slaughter Rule instead of other activities like rescue of animals and advocacy. Some of the plaintiff organizations further allege that their members include consumers who eat pork products and are concerned about the increased health risks they face from consuming products from pigs who have not been adequately inspected as well as impacts to the environment from increased slaughter. In addition, Plaintiffs allege that the FSIS is not consistent in its treatment of downed pigs versus downed cattle, and that downed pigs are inhumanely forced to rise/stand for slaughter resulting in potential exposure to the public of disease and other public health risks. The court first took up Defendants argument that Plaintiffs lack both organizational and associational standing. The Court has reviewed the amended complaint in light of this Second Circuit precedent and finds that Plaintiffs have plausibly alleged that they have been forced to divert resources from mission-critical activities to oppose the Slaughter Rule. In other words, Plaintiffs have plausibly alleged that Defendants’ unlawful practices have impaired and frustrated their ability to engage in mission-related activities and caused a consequent drain on their limited resources, which “constitutes far more than simply a setback to the organization's abstract social interests" sufficient to survive a motion to dismiss. Taking Plaintiffs allegations in their pleadings as true, the Court finds that the amended complaint contains allegations sufficient to support organizational standing. Having found that Plaintiffs have organization standing, the Court need not reach the issue of associational standing. Accordingly, Defendants’ motion to dismiss is denied. Finally, as to the 2020 Action concerning the downed pigs, the Court found that The Court reaches the same conclusion it did in the 2019 Action: that at this stage of the case, Plaintiffs have alleged organizational standing. The Court notes that several other Plaintiffs have submitted declarations from their members, which further explain how those organizations have sustained an injury-in-fact. Plaintiffs have plausibly alleged that they provide additional services beyond mere issue advocacy, that these services have been impaired by Defendants’ actions, and that they have been forced to shift their resources away from those services to oppose the slaughter of downed pigs. Defendants' motions to dismiss were denied.
Tranchita v. Callahan --- F.Supp.3d ----, 2021 WL 50349 (N.D. Ill. Jan. 5, 2021) This case involves a motion for a temporary restraining order (TRO) and preliminary injunction by Plaintiff Tranchita against Colleen Callahan, Director of the Illinois Department of Natural Resources (IDNR). In 2019, agents of the IDNR seized four coyotes Tranchita was raising at her home. After the seizure, three of the four coyotes died, and the remaining coyote, Luna, is elderly and in poor health. Tranchita seeks return of Luna from the coyote rescue center where Luna now resides. The IDNR contends that it will not release Luna until a court declares that the Plaintiff can legally possess her. By way of background, Tranchita is a wildlife exhibitor and educator who has cared for orphaned coyote pups since 2006. In 2016, Tranchita forgot to obtain another Breeder Permit and then failed to do so for the successive three years. Consequently, while she possessed a USDA Exhibitor License, she did not possess the required Illinois state licenses to keep coyotes. In 2019, Plaintiff sought relief in Illinois state court, which found that should she regain possession of Luna again, she must possess a Breeder Permit. The court did not consider whether that permit alone was sufficient or whether a Hound Running Permit is also required. Plaintiff then voluntarily dismissed her state court complaint and, four months later, filed a six-count verified complaint under 42 U.S.C. § 1983. After that filing, Plaintiff moved for a TRO and preliminary injunction enjoining Defendants from (1) requiring her to hold a Hound Running Permit in order to keep Luna in Illinois; and (2) seizing Luna so long as Tranchita holds a current Breeder Permit. Tranchita seeks prospective declaratory and injunctive remedies that are all directed to allowing her to keep Luna in Illinois without a Hound Running Permit. The court first examined Tranchita 's likelihood of success on the merits for her five claims: her “class-of-one” equal protection claim, preemption claim, free exercise claim, procedural due process claim, and substantive due process claim. As to the first "class-of-one" claim, the court found that Tranchita's displeasure and disagreement with Defendants’ failure to enforce the Hound Running Permit requirement against other alleged violators likely does not give rise to a class-of-one claim. Further, the court found Tranchita was not likely to success on her claim asserting that the AWA preempts the IDNR's policy requiring an individual who wants to possess a coyote to obtain a Hound Running Permit. The court rejected Plaintiff's argument that hound running in Illinois constitutes an “animal fighting venture” that the AWA prohibits. Indeed, the court noted that the state definition for "hound running" includes when an authorized species "pursued with dogs in a hound running area, but not in a manner or with the intent to capture or kill.” Further, the court noted the Seventh Circuit held that Congress did not intend for the AWA to preempt or ban state legislation, like the Wildlife Code, that regulates wild animals. Tranchita also asserts that the Hound Running Permit requirement violates her rights under the Free Exercise Clause of the First Amendment. The court found that Hound Running Permit requirement is neutral and generally applicable and is rationally related to a legitimate government interest" (i.e., regulating who can keep coyotes (and where) in that it requires an individual who wants to raise a coyote to do so on at least ten contiguous acres of land). Because the Hound Running Permit requirement appears to be supported by a rational basis, Tranchita is not likely to succeed on her Free Exercise claim. Finally, Tranchita brings claims for procedural and substantive due process violations. The court stated that, to succeed on this contention, Plaintiff must provide something that happened after April 2019 that could arguably return her property interest in Luna or provide her with a new, independent property interest in Luna. However, the court found that Plaintiff did not have a property interest in Luna at the time of the seizure because she did not have a Breeder Permit at that time. Because Tranchita has not demonstrated that she is likely to establish a protected property interest in Luna, she has failed to show that she is likely to succeed on either due process claim based on this interest. Tranchita's argument that her current Breeder Permit (issued without the concomitant Hound Running Permit by Illinois) protects her property interest also failed to persuade the court because the law states that "[n]o fur-bearing mammal breeder permits will be issued to hold, possess, or engage in the breeding and raising of striped skunks acquired after July 1, 1975, or coyotes acquired after July 1, 1978, except for coyotes that are held or possessed by a person who holds a hound running area permit under Section 3.26 of this Act." That granting of the Breeder Permit without the necessary Hound Running Permit required by law led Tranchita to her last argument: "the IDNR's custom and policy of issuing her Breeder Permits and allowing her to keep coyotes without a Hound Running Permit created an entitlement to possess a coyote based on a Breeder Permit alone." In fact, Tranchita points out that IDNR issued her a Breeder Permit on several separate occasions without requiring her to first have a Hound Running Permit while she already possessed coyotes. The court noted that a protected property interest may “arise from mutually explicit understandings," but the plaintiff bears the burden of demonstrating the existence of a mutually explicit understanding. Here, the Court was "skeptical" that sufficient evidence existed to demonstrate a department-wide custom or policy. In essence, the court found Tranchita had no likelihood of succeeding on the merits of the claims. The court did briefly engage in addressing the preliminary injunction factors. With regard to her claim that she will suffer irreparable harm in the form of Luna's imminent death, the court noted that the harm must be "likely" rather than just "possible." Tranchita's delay in seeking preliminary injunctive relief (four months after she withdrew her state court claims) undermines her irreparable harm argument. While the court was sympathetic and concludes that Luna's death would constitute irreparable harm to Plaintiff, it was not enough to persuade the court that death is likely absent the issuance of a TRO or injunction. Finally, on balancing the harms and public interests, the court found they do not weigh decidedly in Plaintiff's favor. Thus, the court denied Tranchita's motion for a TRO and preliminary injunction.
Animal Legal Def. Fund v. Reynolds --- F.Supp.3d ----, 2022 WL 777231 (S.D. Iowa Mar. 14, 2022) Plaintiffs, five non-profit organizations dedicated to animal protection, food safety, and other advocacy issues, filed suit challenging Iowa Code § 717.3B, which they contend infringes on their constitutional rights. Specifically, these organizations contend that Iowa's new "ag-gag" law criminalizes their actions in gathering information through undercover investigations at animal production facilities. These organizations must misrepresent or conceal their identities to gather gather evidence of animal abuse and other alleged illegal conduct in day-to-day activities at facilities where they suspect wrongdoing occurs. Iowa Code § 717A.3B is the second in a series of laws passed by the Iowa legislature aimed at criminalizing undercover investigations such as the ones conducted by Plaintiffs. The previous law was challenged by these same plaintiffs and a permanent injunction was passed by the United States District Court. The defendants challenged the injunction in the Eighth Circuit, but before that was decided, the Iowa legislature passed the new section (§ 717A.3B). Here, both parties have filed Cross-Motions for Summary Judgment. Plaintiffs contend that the new law violates the First Amendment of the United States Constitution because it discriminates based on content and viewpoint and cannot survive strict scrutiny. Defendants argue that the law does not regulate protected speech under the First Amendment or, if it does regulate protected speech, it is content-neutral and viewpoint-neutral and passes intermediate scrutiny. The court first noted that the issue with § 717A.3B, and other laws aimed at prohibiting trespassers at agricultural facilities, is the law seeks to single out specific individuals for punishment based on their viewpoint regarding such facilities. This law operates in a viewpoint discriminatory fashion because it prohibits the deceptive trespasser who gains access or obtain employment at an agricultural facility with the intent to cause “economic harm ... to the agricultural production facility's ... business interest" as opposed to trespassers with an intent to benefit the facility. Thus, Section 717A.3B does not focus solely on the right to exclude, the legally cognizable harm of trespass, but only on the right to exclude those with particular viewpoints. While the court noted that a state legislature may determine whether specific facilities—such as agricultural facilities, nuclear power plants, military bases, or other sensitive buildings—are entitled to special legal protections, the First Amendment does not allow those protections to be based on a violator's viewpoint. Plaintiffs' Motion for Summary Judgment was granted and Defendant's was denied.
Farm Sanctuary v. United States Dep't of Agric. --- F.Supp.3d ----, 2023 WL 2673141 (W.D.N.Y. Mar. 28, 2023) Several non-profit organizations, including Farm Sanctuary and Animal Legal Defense Fund, filed a lawsuit against the United States Department of Agriculture (USDA) and Food Safety and Inspection Service (FSIS) challenging their actions related to the slaughtering of pigs under the Administrative Procedure Act. The plaintiffs alleged three causes of action related to the humane treatment, handling, and disposition of downed pigs, violation of the Humane Methods of Slaughter Act, and arbitrary and capricious denial of a Petition for Rulemaking. The plaintiffs in this case filed two causes of action against the defendants. The first cause of action claimed a violation of the Humane Methods of Slaughter Act (HMSA) and the Administrative Procedure Act (APA) for failing to investigate and report on downed pigs to Congress. Specifically, the plaintiffs submitted a petition to ban the slaughter of non-ambulatory pigs, which was denied by the defendants who claimed that their existing regulations and inspection procedures are sufficient in ensuring humane treatment and preventing diseased animals from entering the food supply. The plaintiffs requested the court to issue a declaration finding the violation and to compel the defendants to conduct an investigation and report to Congress. The second cause of action alleged a violation of the HMSA and APA for failing to assess the need for regulations regarding the humane treatment of downed pigs and to promulgate such regulations. The plaintiffs requested similar relief as in the first cause of action. The Court granted the Plaintiffs' Motion to Complete the Administrative Record, denied Plaintiffs' Motion for Judicial Notice, granted Defendants' Motion for Summary Judgment, and denied Plaintiffs' Motion for Summary Judgment. On appeal, the defendants argued that the plaintiffs have not demonstrated standing at the summary judgment stage, despite a previous ruling during the motion to dismiss stage. Article III standing requires plaintiffs to show (1) an injury-in-fact, (2) a causal connection between the injury and the defendant's actions, and (3) the likelihood that the injury can be remedied. The defendants argued that the plaintiffs lacked standing to pursue both causes of action because they had not been injured by the defendants' alleged failures, and any relief ordered by the court would not redress their injuries. Regarding the informational injury, the court found that the plaintiffs had not demonstrated that it was sufficiently concrete to meet the requirements of Article III. The court also stated that seeking to ensure compliance with regulatory law was not sufficient grounds for standing. The potential availability of a report through the Freedom of Information Act was considered too attenuated to establish a concrete informational injury. Regarding the organizational injury, the court referred to a recent Second Circuit decision that rejected an expansive concept of organizational injury for standing purposes. The plaintiffs claimed that they had been forced to spend resources investigating and reporting on downed pigs, which they argue was the responsibility of the USDA. However, the court ruled that the plaintiffs had voluntarily chosen to engage in these activities and had not been required to do so by the USDA. The court explained that an organization must show an involuntary material burden on its established core activities, and the challenged law or regulation must impose a cost that adversely affects the organization's regular activities pursued in its organizational mission. Expenditures or activities undertaken by the organization's own initiative, without being reasonably necessary to continue established core activities, were insufficient to establish injury for standing purposes. The court found that the plaintiffs had not shown a perceptible impairment to their activities caused by the defendants' actions, and the expenditures incurred by the plaintiffs were not reasonably necessary to continue their established core activities. Therefore, the plaintiffs did not establish an injury in fact for standing purposes based on organizational injury. Even assuming the plaintiffs had standing, they failed to establish that defendants violated the HMSA and the APA by failing to investigate and report to Congress on downed pigs. The defendants argue that they complied with Congress's mandates and that some obligations are not judicially reviewable, to which the court agreed. The plaintiffs in this case alleged that the defendants violated the FMSA by failing to investigate and report on downed pigs as required by Section 1907(a). However, the court found that Section 1907 does not mandate that the Secretary investigate each and every species of livestock, and the plaintiffs failed to provide evidence supporting that reading of the statute. The court also found that the plaintiffs' challenge to the sufficiency of the reports was not enough to succeed on an APA claim because they did not establish that the defendants failed to take a discrete agency action that they were required to take. As a result, the defendants are entitled to summary judgment on the first cause of action. Additionally, defendants argued that they are entitled to summary judgment because the relevant statute does not require them to regulate the slaughter of downed pigs, and therefore, the decision is discretionary. The plaintiffs did not provide a response to this argument, and their failure to advocate for their second cause of action is likely due to the absence of any statutory requirement that Defendants ban the slaughter of downed pigs. The court examined the relevant statute, which provides that the Secretary shall promulgate regulations to provide for the humane treatment of non-ambulatory livestock if necessary. The court concluded that the statute grants discretion to the Secretary to determine whether to promulgate such regulations and that agency decisions not to take enforcement action are unreviewable. Thus, the court concluded that the defendants' actions were not arbitrary or capricious. For the foregoing reasons, Plaintiffs’ Motion to Complete the Administrative Record was granted; Plaintiffs’ Motion for Judicial Notice and their Motion for Summary Judgment were denied; and Defendants’ Motion for Summary Judgment was granted.
Whiteaker v. City of Southgate --- F.Supp.3d ----, 2023 WL 317457 (E.D. Mich. Jan. 19, 2023) The plaintiff (“Whiteaker”) filed this action against Defendant, the City of Southgate, Michigan for violations of the Fair Housing Act (“FHA”) and Michigan's Persons with Disabilities Civil Rights Act (“PDCRA”). Specifically, Whiteaker contends that the City violated the FHA by denying Whiteaker's request for an exemption from City Ordinance 610.13, which prohibits City residents from maintaining chickens (or other typical farm animals) on their property. The events underlying this action began after Whiteaker moved to Southgate in early March 2021. On March 24, 2021, Whiteaker was issued a citation by the City for a violation of Ordinance 610.13. Whiteaker appeared in district court to defend himself, claiming he had a right to keep the chickens under Michigan's Right to Farm Act. However, it turned out the Right to Farm law was inapplicable because Whiteaker's chicken coop was within 250 feet of a dwelling. Thus, Whiteaker was issued a second citation in May and was denied a permit to keep the chickens by the city. Since Whiteaker was a longtime sufferer of depression and anxiety, he sought a waiver from the ordinance as a reasonable accommodation for his disability and presented a letter from his mental health provider as support. Again, his request was denied by the City. In the instant motion for summary judgement by the City, the court examined the "reasonableness" of Whiteaker's request for a reasonable accommodation under the FHA. The court found that the balancing test required under the FHA, to wit, weighing Whiteaker's disability-related need to keep the chickens as a source of comfort and support against the City's claims that the chickens pose a threat to public health, is a triable issue of fact. Indeed, the court observed that the City's citation of documentation from the CDC only lists the "potential dangers" chickens can pose to public health without sufficient evidence to supports its claim that the chickens will burden the City financially and administratively. In contrast, Whiteaker claims a disability and has provided evidence of his disability. Likewise, as to the remaining elements of necessity and equal opportunity for a reasonable accommodation claim, the court again cites Whiteaker's evidentiary support for his claim of disability and need for the chickens to alleviate those symptoms against the fact the City has not presented any testimony, affidavits, or "evidence of any kind" to support its claim. Thus, the court denied the motion for summary judgment.
Terranova v. United States Dep't of Agric. --- Fed.Appx. ----, 2020 WL 4589346 (5th Cir. Aug. 10, 2020) Petitioners seek review of a decision and order of the USDA/APHIS determining that they violated various provisions of the Animal Welfare Act (“AWA”) and its implementing regulations, imposing civil penalties, and revoking the exhibitor license granted to Terranova Enterprises, Inc. Petitioners were licensees who provide wild animals like tigers and monkeys for movies, circuses, and other entertainment. In 2015 and 2016, APHIS filed complaints against petitioners that they willfully violated multiple provisions of the AWA and knowingly violated a cease and desist order issued in 2011 to avoid future violations of the AWA. After consolidating the complaints, the Administrative Law Judge ("ALJ") found that petitioners willfully committed four violations, so the ALJ issued a cease and desist order, suspended petitioners' license for 30 days, and assessed a $10,000 penalty and an $11,550 civil penalty for failing to obey the prior cease and desist order. On appeal by both parties to the Judicial Officer of the USDA, petitioners' exhibitor license was revoked and the penalties were increased to $35,000 and $14,850, respectively. On appeal here to the Fifth Circuit, petitioners claim that the determinations of the Judicial Officer were not supported by substantial evidence and that she abused her discretion in revoking their exhibitor license. This court found there was sufficient evidence to support the violations, including failing to allow APHIS officials to conduct compliance investigations and inspections, faulty tiger enclosures, insufficient distance/barriers between tigers and the public, failure to make an environmental enrichment plan, and failings involving tiger enclosure and protection from inclement weather, among other things. With regard to petitioners' claim that the Judicial Officer abused her discretion in revoking the exhibitor license, this court court found that petitioners committed more than one willful violation of the AWA so revocation was not unwarranted or without justification. The court concluded that the USDA Secretary’s order was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, and that it was supported by substantial evidence. Therefore, the court denied the petition for review.
State v. Agee --- N.E.3d ---- , 2019 WL 3504010 (Ohio App., 2019) The Humane Society brought this action in response to a complaint regarding a dog tangled in a tether. Three German Shepherds were discovered that belonged to the Defendant, Shawn Agee, Jr. The dogs were suffering from maltreatment. All three had been restrained without access to water or food and one of the dog’s tethers was wrapped so tightly that its leg had started to swell. Two of the dogs were suffering from fly strike. The State charged the Defendant with 12 criminal misdemeanors relating to the treatment of the three animals. The trial court acquitted the Defendant of 10 of those counts because of his unrebutted testimony that he had been out of town for the weekend and had left the dogs in the care of his mother. The Defendant was found guilty to two second-degree misdemeanors relating to the two dogs suffering from fly strike because those particular injuries were long time, very painful injuries that were not being treated and the Defendant was the dogs’ “confiner, custodian, or caretaker.” The Defendant was sentenced to community control, a fine of $100, a suspended jail sentence of 180 days, the surrender of the two dogs with fly strike, and the proviso that the remaining dog be provided with regular vet appointments and various other conditions. This appeal followed. The Defendant asserted that the Court erred by finding that he had in fact violated the statute that he was found guilty of and that his convictions were not supported by legally sufficient evidence. The Defendant argued that he did not qualify as the type or class of persons subject to criminal liability merely as an owner. The Court noted that the trial court did not impose liability due to his status as the dogs’ owner, but rather due to this having served as the two dogs’ confiner, custodian, or caretaker when they developed fly strike and should have been but were not properly treated. As for the second assignment of error, the Court found that there was sufficient evidence to find that the Defendant had violated the statute. The Defendant had admitted that he knew that the two dogs had fly strike “two or three weeks before he left town for the weekend.” The dogs were not treated before he left town. The Court ultimately affirmed both convictions.
Hetrick v. Ohio Dep't of Agric. --- N.E.3d ---- 2017 WL 4464371 (Ohio Ct. App.,2017) In this case, the court of appeals reversed the trial court's decision to grant appellee Hetrick's dangerous wild animal (DWA) permits. Hetrick was the owner of DWA's on his property, and according to an Ohio law he was required to register the DWA's and apply for permits before a certain statutory deadline. This court held that the trial court abused its discretion in finding that the Ohio Department of Agriculture (ODA) lacked a statutory basis to deny the application for a rescue facility permit on timeliness grounds but did not err in so finding on caging and care grounds. Further, the court reversed, in part, the judgment of the Wood County Court of Common Pleas in the rescue facility permit case; reversed, in toto, the judgment of the lower court in the wildlife shelter permit case; and with this decision, reinstated the ODA's denial of both permits. Judgments reversed.
State v. Schuler --- N.E.3d ----, 2019 WL 1894482 (Ohio Ct. App., 2019) Appellant is appealing an animal cruelty conviction. A deputy dog warden received a report from a deputy sheriff who observed a pit bull on appellant's property who was unable to walk and in poor condition while responding to a noise complaint. Appellant released the dog to the deputy and the dog was later euthanized. While the deputy was on appellant's property she observed two other dogs that were extremely thin which prompted the deputy to return to the appellant's house the next day, but the appellant was in the hospital. The deputy later returned to the appellant's home a few days later and the appellant's ex-wife allowed the deputy to perform an animal welfare check on the property. Two Australian cattle dogs were very muddy and in an outdoor kennel with no food or water. Numerous chickens, rabbits, mice, snakes, and raccoons were also observed inside and outside the house all living in cramped, filthy conditions. The deputy went to the hospital and the appellant signed a waiver releasing the raccoons and snakes to the wildlife officer, but the appellant refused to release the other animals to the deputy. As a consequence a search warrant was obtained. "Two raccoons, 3 black rat snakes, 8 dogs, 7 chickens, 3 roosters, 17 rabbits, 5 rats, 200 mice, and 2 guinea pigs were removed from the property." Appellant was charged by complaints with five counts of cruelty to animals and two counts of cruelty to companion animals. An additional complaint was filed charging appellant with one count of cruelty to a companion animal (the euthanized pit bull). The appellant raised 3 errors on appeal. The first error is that the court lacked subject-matter jurisdiction to convict him of animal cruelty. The Court found that the complaint charging the appellant with animal cruelty in counts B, C, and D were not valid because it did not set forth the underlying facts of the offense, did not provide any of the statutory language, and failed to specify which of the 5 subsections the appellant allegedly violated. Therefore, the Court lacked subject-matter jurisdiction to convict the appellant and the animal cruelty conviction regarding the three counts for the rabbits was vacated. The second error appellant raised was that his conviction for cruelty to companion animals for the two Australian cattle dogs was not supported by sufficient evidence. The Court overruled appellant's second error because it found that the state had presented sufficient evidence to show that the appellant negligently failed to provide adequate food and water for the Australian cattle dogs. The third error the appellant raised was that the Court erred by ordering him to pay $831 in restitution. The Court also overruled appellant's third error since the appellant stipulated to paying the restitution. The judgment of the trial court was affirmed in all other respects.
City of Cleveland v. Turner --- N.E.3d ----, 2019 WL 3974089 (Ohio Ct. App., 2019) Defendant was convicted by bench trial of one count of sexual conduct with an animal (bestiality) in violation of R.C. 959.21(B). He was sentenced to 90 days in jail (with credit for time served), a $750 fine, with five years of inactive community control that included no contact with animals and random home inspections by the Animal Protection League (APL). The evidence supporting his conviction came from explicit letters defendant wrote to his boyfriend (who was incarcerated at the time) that described acts of bestiality. Defendant was also a sex offender parolee at the time of the letter writing. The letter, which was intercepted by jail officials, recounted a sexual act defendant engaged in with a dog that was under his care. Other similarly explicit letters were entered as evidence. In addition to the letters, the dog's owner testified that she left her dog with defendant and, after picking up the dog, the dog's behavior markedly changed from friendly to anxious and afraid. In addition, the dog was skittish for many days after, licked her genitals excessively, and was uncomfortable with any person near her backside, including the veterinarian. On appeal, defendant contends that the court erred by admitting his extrajudicial statements without independent evidence of a crime. Specifically, defendant contends the city failed to establish the corpus delicti to permit introduction of his purported confession. The court noted that this was a case of first impression since there is no Ohio case law that has analyzed the corpus delicti issue in the context of R.C. 959.21. Relying on the Indiana case of Shinnock v. State, 76 N.E.3d 841 (Ind.2017), this court found that while there was no direct evidence of a crime against the dog, the circumstantial evidence corroborates defendant's statements in his letter. The corpus delicti rule requires that the prosecution supply some evidence of a crime to admit the extrajudicial statements. Here, the city did that with the dog owner's testimony concerning the dog's altered behavior after being left alone with defendant. The court also found the evidence, while circumstantial, withstood a sufficiency of evidence challenge by defendant on appeal. On the issue of sentencing and random home inspections as a condition of his community control sanctions, the court found that the trial court did not have "reasonable grounds" to order warrantless searches of real property for a misdemeanor conviction. The finding of guilt for defendant's bestiality conviction was affirmed, but the condition of community control sanction regarding random home inspections was reversed and remanded.
City of Columbiana v. Simpson --- N.E.3d ----, 2019 WL 4897158 (Ohio Ct. App., 2019) Richard G. Simpson, Appellant, lived in a residential district in Columbiana, Ohio. Simpson kept eight hens, a chicken coop, and an enclosure on his property for approximately seven years. On July of 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. The city sent Simpson violation notices and instructed him to remove the chickens from the property. 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. A second notice was sent to Simpson and Simpson refused to remove the chickens from his property. The City instituted an action for declaratory judgment and injunctive relief on March 13, 2018. 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. Simpson appealed. Simpson argued that keeping the chickens did not constitute an agricultural use or poultry husbandry because he kept them as a hobby and therefore does not violate any of the city ordinances. The Court did not agree 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, Simpson argued that the one of the city ordinances was arbitrary and unreasonable because there was no evidence of the chickens, coup, or enclosure constituting a nuisance. 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 Court found that the ordinance was neither arbitrary nor unreasonable and bears a substantial relation to the public health. The ordinance was a valid exercise of the City’s police power. The Court ultimately held that the City ordinance prohibited the keeping of chickens in residential districts. The prohibition was inferred from reading the ordinance in concert with other Code sections. The judgment of the trial court was affirmed.
State v. Marcellino --- N.E.3d ----, 2019 WL 6311765, 2019 -Ohio- 4837 (2019). Bianca Marcellino was charged and convicted of two counts of cruelty to animals after a search of her residence revealed two horses that were in need of emergency medical aid. Marcellino was ordered to pay restitution and she subsequently appealed. Marcellino argued that the trial court abused its discretion by denying the motion for a Franks hearing where there were affidavits demonstrating material false statements in the affidavit for the search warrant. The Court contended that the trial court did not err in failing to hold a Franks hearing because even if the Court sets aside the alleged false statements in the affidavit, there remained an overwhelming amount of sufficient statements to support a finding of probable cause. The Court also held that trial courts have the authority to order restitution only to the actual victims of an offense or survivors of the victim, therefore, the award of restitution to the humane society was not valid because humane societies are a governmental entity and cannot be victims of abuse. The Court ultimately affirmed the judgment of the municipal court and reversed and vacated the order of restitution.
People v. Collier --- N.E.3d ----, 2020 IL App (1st) 162519 Chicago police officers, while investigating reports of animal abuse, visited Samuel Collier’s place of residence and observed a dog chained up outside in 15-degree weather. On a second visit, the same dog was observed chained up outside in the cold. The dog happened to match the description of a dog that had been reported stolen in the neighborhood. Office Chausse executed a search warrant on Collier’s property and was welcomed by the smell of urine and feces. The house had feces everywhere. The house was also extremely cold with no running water. A total of four dogs were found that were kept in rooms without food or water. One of the dogs found was a bulldog that had been stolen from someone’s backyard. Collier was subsequently arrested. Collier was found guilty of one count of theft and four counts of cruel treatment of animals and was sentenced to two years in prison. Collier subsequently appealed. Collier argued that there was insufficient evidence to prove his guilt at trial because despite the photographs of his house the dogs were found to be in good health. The Court held that the poor conditions in which the dogs were kept along with the condition of the dogs and the premises was sufficient to prove that the dogs were abused or treated cruelly under Illinois law. Collier also attempted to argue that the charging instrument failed to adequately notify him of the offense he was charged with. The Court found no merit in this argument. Lastly, Collier argued that the animal cruelty statute violated due process because it was unconstitutionally vague and potentially criminalized innocent conduct. The Court, however, stated that the statute did not capture innocent conduct, instead, it captured conduct that can be defined as cruel or abusive. Cruel and abusive conduct is clearly not innocent conduct. The statute sufficiently informed reasonable persons of the conduct that was prohibited. The Court ultimately affirmed the judgment of the trial court.
Tranchita v. Dep't of Nat. Res. --- N.E.3d ----, 2020 IL App (1st) 191251 (2020) Plaintiff Tomi Tranchita alleged that she cared for four abused and abandoned coyotes for 13 years. The coyotes were housed within a fully fenced-in backyard, ate appropriate food, and received medical care from a veterinarian. The Plaintiff possessed a United States Department of Agriculture (USDA) Class C exhibitor’s license which imposed restrictions on the licensee such as unannounced annual inspections by a veterinarian or specially trained animal expert. Plaintiff alleged that she had never been cited for any USDA violations and had passed all inspections. Plaintiff also held an Illinois state permit as a fur-bearing mammal breeder from 2011 to 2016, however, this permit lapsed after Plaintiff failed to pay the annual fee. On April 24, 2019, Illinois Department of Natural Resources (IDNR) executed a search warrant on Plaintiff’s premises. The coyotes were seized during this raid. Plaintiff was told that if she did not sign a relinquishment form that the coyotes would be euthanized or confined to a small space that would end up killing them. IDNR cited Plaintiff for lacking proper permits and for several criminal violations of the Wildlife code. Three of the four coyotes ended up dying from what was believed to be distemper. Plaintiff filed suit alleging claims under the fourth and fourteenth amendments. Plaintiff also filed an emergency motion for preliminary injunctive relief arguing that the coyote’s lives were at risk if they were not returned. Plaintiff alleged that she had a protected property interest in the coyotes pursuant to her federal exhibitor license. The trial court found that Plaintiff did not have a protected property interest in the coyotes because she did not possess the proper Illinois permit at the time of the seizure. The trial court subsequently denied her motion for a preliminary injunction. Plaintiff then appealed. The Court looked to state law to determine whether Plaintiff had a property interest in the coyotes. Under the Illinois Wildlife Code, a fur-bearing mammal breeder permit is necessary in order to possess or raise a coyote. Plaintiff was in violation of Illinois law the moment her permit lapsed in 2016. This made the coyotes contraband since they were possessed in violation of Illinois’ Wildlife Code. No person is permitted to assert legal ownership or a right to possession of property that is contraband. Plaintiff argued that her federal exhibitor’s license recognized a right of property in her coyotes, however, the Court found that the mere possession of a federal exhibitor’s license does not automatically vest a property right in the permit holder. The Court ultimately affirmed the judgement of the trial court.
Vill. of Orion v. Hardi --- N.E.3d ----, 2022 WL 17256761 (Ill. App. Ct. 2022) The plaintiff, the Village of Orion (Village), sued defendants, Patricia A. Hardi and Michael Larson, to enjoin them from keeping more than three cats in violation of a Village ordinance. After a dismissal and amended complaint by the Village, the trial court granted defendants' amended motion to dismiss, finding that the Village had previously voted to allow defendants to keep more than three cats. Here, the Village appeals this decision. By way of background, the defendants lived together in the Village since 1998, and one defendant served as the animal control officer for about 15 years. In 2013, the Village enacted an ordinance making it unlawful to keep more than three dogs or cats over the age of six months (except for licensed kennels or veterinarian clinics). At a Village board meeting in 2014, the minutes revealed that members of the board agreed to allow defendants to keep the dogs ad cats to live out their natural lifetimes. However, in 2017, the Board served a "notice to abate nuisance" for keeping more than three cats or dogs. This was followed by a complaint filed by the Village against defendants. In 2018, defendants filed a motion to dismiss alleging the three-cat limit was arbitrary and was "superseded" by a criminal action where one defendant pleaded guilty to animal cruelty, but was allowed to keep 10 cats. The trial court's order found that the Board's language at the 2014 meeting revealed "unambiguous" language that defendants could keep the cats in their possession. After remand, the Village filed its second amended complaint in 2022 and defendants against filed a motion to dismiss. After a hearing with testimony from Board members and others, the trial court found there was a motion to allow the keeping of the excess cats and this negated the ability of the Village to proceed with an ordinance violation. On appeal here, this court finds the 2014 board minutes are insufficient to support a motion to dismiss. The submission of the board minutes together with and a defense witness, followed by the Village's presentation of another board member's testimony to refute that, amounted to the court "improperly allow[ing] the parties to conduct a mini-trial on the veracity of the essential allegations of the complaint." The motion was used to attack the factual basis of the claim. Thus, the trial court's order granting the dismissal was reversed and the matter was remanded.
Nonhuman Rts. Project, Inc. v. Breheny --- N.E.3d ----, 2022 WL 2122141 (N.Y. June 14, 2022) This New York case centers on a petition of habeas corpus for an elephant named "Happy" who is housed at the Bronx Zoo. Petitioner Nonhuman Rights Project is a not-for-profit corporation with a mission of seeking to establish that “at least some nonhuman animals” are “legal persons” entitled to fundamental rights, including “bodily integrity and bodily liberty.” In 2018, petitioner commenced this habeas proceeding in Supreme Court against respondents James J. Breheny, Director of the Bronx Zoo, and the Wildlife Conservation Society, the organization that operates the Zoo. Petitioner sought a writ of habeas corpus “on behalf of Happy,” an Asian elephant that petitioner claimed was unlawfully confined at the Zoo in violation of her right to bodily liberty. Happy has resided at the Bronx Zoo for the last 45 years and has been held in captivity since she was approximately one year old. Petitioners request that she be transferred to an “appropriate sanctuary" where she could potentially be integrated with other elephants. To support its request, petitioner proffered affidavits from several experts specializing in elephant study and care attesting to the general characteristics of elephants. The Zoo respondents opposed petitioner's application and requested dismissal of the petition for lack of standing and failure to state a cause of action. Specifically, respondents argued that there was no legal basis for habeas relief and that Happy's living conditions comply with all relevant laws and accepted standards of care. The Supreme Court dismissed the petition on the ground “that animals are not ‘persons’ entitled to rights and protections afforded by the writ of habeas corpus” and that habeas relief is not available for an animal. On petitioner's appeal, the Appellate Division unanimously affirmed, reasoning that “the writ of habeas corpus is limited to human beings.” While the court acknowledged that the law recognizes that animals are not mere "things," and existing animal protection laws underscore this conclusion, the scope of habeas corpus does not include animals. The court lastly noted that " this case has garnered extraordinary interest from amici curiae and the public . . . Though beyond the purview of the courts, we appreciate that the desire and ability of our community to engage in a continuing dialogue regarding the protection and welfare of nonhuman animals is an essential characteristic of our humanity. Such dialogue, however, should be directed to the legislature." As such, the order of the Appellate Division was affirmed
Dillon v. Ohio Dep't of Rehab. & Correction --- N.E.3d ----, 2023-Ohio-942 Plaintiff-Appellant, Anna Dillon, a certified “senior dog handler” through a rehabilitation program for inmates in Ohio, was attacked by a dog named Roosevelt, a German Shepherd/Husky mix owned by an Ohio Reformatory for Woman (ORW) corrections officer. Dillon had previously interacted with Roosevelt without incident on multiple occasions, but in March 2018, Roosevelt attacked her, causing 16 puncture wounds. On March 19, 2018, while attempting to put on Roosevelt's leash and collar, he displayed signs of anxiety and suddenly attacked Ms. Dillon, biting her multiple times. After the incident, Roosevelt was removed from the program. In August 2018, Ms. Dillon requested records pertaining to Roosevelt but was unable to obtain his handler folder. The dog’s handler folder included the dog’s training history, breed, eating habits, type of collar, preferences, personality, demeanor, and incidents of aggression, and was retained by the handler assigned to that dog. Ms. Dillon filed a civil action against ODRC in 2020, alleging negligence and spoliation of evidence. The trial court found in favor of ODRC in a decision issued in September 2021. Ms. Dillon appealed that decision, asserting several assignments of error. In her first and second assignments of error, Ms. Dillon argues that the trial court's findings in favor of ODRC on her negligence claim were against the manifest weight of the evidence. The court evaluated whether there was sufficient evidence to support the determination that Roosevelt was not a vicious dog prior to the incident. The court referred to Ohio's statutory definition of a vicious dog, which states that it is a dog that has killed or caused serious injury to a person without provocation. The court found that none of Roosevelt's previous behaviors, such as mouthing, baring teeth, or lunging, met the definition of serious injury as defined by the statute. The trial court concludes that Ms. Dillon failed to prove that Roosevelt met either standard before the incident. The court noted that no evidence or testimony showed that Roosevelt had attacked or seriously injured anyone before March 2018 and Ms. Dillon's reliance on the case of Pickett, which dealt with a traditional negligence claim - a claim that she had abandoned in this case - was not relevant. In her second assignment of error, Ms. Dillon challenged the trial court's finding regarding the negligent keeping of Roosevelt, but since the first assignment of error has been resolved, the second assignment is also overruled. The trial court did not make any findings regarding ODRC's knowledge or negligent keeping of Roosevelt because it found him not to be a vicious dog. As to the spoliation of evidence claim, Ms. Dillon alleged that the Ohio Department of Rehabilitation and Correction (ODRC) willfully destroyed evidence, specifically the handler folder of a dog named Roosevelt, to disrupt her case. The court outlined the elements of intentional spoliation of evidence, which include pending litigation, knowledge of litigation by the defendant, willful destruction of evidence, disruption of the plaintiff's case, and damages caused by the defendant's actions. The court found that Ms. Dillon failed to prove the willful destruction of the handler folder or that her case was disrupted by its disposal. It was determined that the inmate-secretaries involved in the program managed the handler folders, and there was no evidence that ODRC employees reviewed or accessed them. A failure to follow records retention schedules is separate from a spoliation claim. The court concluded that the plaintiff did not provide evidence to support her claim of willful destruction or disruption of her case and that the trial court's findings were supported by credible evidence. The judgment was affirmed.
Commonwealth v. Whitson --- N.E.3d ----, 97 Mass.App.Ct. 798, 2020 WL 3635941 (2020) This case involves an appeal of an animal cruelty conviction after defendant repeatedly stabbed a dog named Smokey, a three-year old pit bull. The incident in question occurred on a street outside of defendant's barber shop. Smokey was on-leash walking with his owner when an unleashed smaller dog ran at Smokey and began biting his ankles. Smokey responded playfully, not aggressively. The defendant responded to calls of assistance from the smaller dog's owner and helped separate the dogs. After this, the defendant returned briefly to his barbershop and came back with a knife that he used to repeatedly stab Smokey with while he restrained the dog with his other arm. The police eventually responded and defendant was taken to the hospital for a laceration on his hand where he yelled, "I'm glad I killed the [expletive] dog." Smokey survived the attack and defendant was charged and convicted. On appeal, defendant raised several arguments challenging the verdict. In particular, the defendant challenges the sufficiency of the evidence, arguing that he stabbed Smokey repeatedly to release the dog from biting his hand. The appellate court found that no defense witnesses testified that Smokey bit defendant and the no medical records corroborated defendant's version of events. Defendant also argued that the judged erred in denying his motion in limine regarding Smokey prior and subsequent "bad acts," which, defendant claimed, were relevant to the issue of Smokey as the initial aggressor. This court found that the proffered evidence of bad acts was inadmissible hearsay and the acts subsequent to Smokey's stabbing occurred too remotely to have any probative value. Finally, the court found no substantial risk of a miscarriage of justice where the judge failed to give a sua sponte necessity defense. The judgment was affirmed.
Cohen v. Clark --- N.W.2d ----, 2020 WL 3524851 (Iowa June 30, 2020) Karen Cohen possessed a severe allergy to pet dander which was medically documented. Cohen was even more severely allergic when exposed to cat dander which required her to carry an EpiPen with her. Initially her allergy to cats was the same as her allergy to dogs, however, with repeated exposure, her allergy to cats became worse. Cohen feared that her allergy to dogs would similarly progress if she were repeatedly exposed to dogs. As a result, Cohen entered into a lease agreement with 2800-1 LLC to rent an apartment relying on the fact that the apartment complex had a no pet policy. Two months into her lease, David Clark entered into a lease agreement with 2800-1 LLC to rent an apartment down the hall from Cohen. Shortly after moving in, Clark presented 2800-1 LLC with a letter from his psychiatrist explaining that due to Clark’s chronic mental illness a dog would benefit his mental health. Clark request a reasonable accommodation to have an emotional support animal (“ESA”) on the apartment premises. Jeffrey Clark, the leasing and property manager, notified the other tenants in the building of the request to accommodate the ESA and asked if any tenants had allergies to dogs. Cohen responded to Jeffrey detailing the allergies that she had to dogs and cats. Jeffrey subsequently contacted the Iowa Civil Rights Commission (“ICRC”) and requested a review or a formal agency determination. A staff member of the ICRC informed Jeffrey that he had to reasonably accommodate both Cohen’s allergies and Clark’s ESA request. There was no formal finding that this would constitute a reasonable accommodation. 2800-1 LLC allowed Clark to have a dog as his ESA while at the same time trying to mitigate Cohen’s allergies by having Cohen and Clark use separate stairwells and purchasing an air purifier for Cohen’s apartment. Despite the attempts to accommodate both tenants, Cohen still suffered allergic reactions and she had to limit the amount of time she spent in her apartment building. On September 27, 2017, Cohen brought a small claims action against 2800-1 LLC seeking one month’s rent as damages and alleging that 2800-1 LLC breached the express covenant of her lease that provided for no pets. Cohen also alleged that both Clark and 2800-1 LLC breached her implied warranty of quiet enjoyment. The small claims court dismissed Cohen’s claims. Cohen filed a notice of appeal three days later to the district court. The District Court concluded that 2800-1 LLC made sufficient efforts that would have justified denying Clark’s request for accommodation or asking him to move to another apartment building, however, because Iowa law was not sufficiently clear, they also dismissed the claims against 2800-1 LLC and Clark. Cohen filed an application for discretionary review to which 2800-1 LLC consented. The Supreme Court of Iowa granted the parties’ request for discretionary review. The Supreme Court noted that there is no law in Iowa or any other jurisdiction that clearly establishes how landlords should handle reasonable accommodation questions with ESAs. The Court ultimately found that Clark’s ESA was not a reasonable accommodation and that the 2800-1 LLC breached its promise to Cohen that the apartment would have no pets other than reasonable accommodations. 2800-1 LLC had other apartments available in other buildings that allowed pets. Cohen also had priority in time since she signed her lease first. The Court ultimately reversed and remanded the district court’s dismissal of Cohen’s case.
Riverbrook v. Fabode --- N.W.2d ----, 2020 WL 5580152 (Mich. Ct. App. Sept. 17, 2020) This Michigan case centers on the adequacy of the evidence supporting a request for an assistance animal. Antony Fabode lived in a mobile home on property that was leased to his sister by Riverbrook. In the spring of 2018, Antony obtained a puppy, King, which he claims is a Labrador Retriever mix, but was suspected by Riverbrook as being a banned pit bull type dog. Riverbrook consequently notified Antony's sister of the violation and ordered the dog removed from the premises. To that order, Antony first responded to Riverbrook with a certificate claiming that King was an emotional support animal (ESA) and, after that was rejected as insufficient, came back with a letter by limited license professional counselor, Anne Venet. After again denying the request, Riverbrook sought to enforce the consent judgment with an order of eviction. The district court granted the motion and ordered Antony's removal. Antony sought a stay of eviction on the grounds that he and his sister were authorized to possess King as an ESA. At the district court hearing, Venet testified in support of her letter explaining that she determined Antonuy's need for an ESA after a brief phone call. The court then declined to permit questioning by Riverbrook into the credibility of the determination that Antony was disabled and needed King as a therapeutic aid. Ultimately, the district court denied the writ for eviction. The circuit court affirmed that ruling based on the FHA and the caselaw that supports an unobtrusive line of questioning. The crux of this appeals centers on whether the lower court's order denying Riverbrook's writ of eviction was erroneous after the court disallowed Riverbrook's attorney from questioning the reliability of the evidence of disability and need for an assistance animal. The Michigan Court of Appeals found that "the district and circuit courts avoided their gatekeeper role under MRE 702 despite Riverbrook's repeated objections to the reliability and admissibility of the Fabodes’ evidence." This hampered Riverbrook's ability to discover whether the information presented was reliable and supported Antony's disability-related request and whether Riverbrook refused to make a reasonable accommodation for a tenant based on disability or handicap. The circuit court order was vacated the matter was remanded for further proceedings consistent with this opinion.
City of Onida v. Brandt --- N.W.2d ----, 2021 WL 1681818 (S.D., 2021) The City of Onida (the City) filed a petition for declaratory judgment seeking authorization from the circuit court to euthanize two dogs owned by the Appellants as “vicious animals” under Onida ordinances or, alternatively, based upon a determination that the dogs were dangerous under state law (SDCL 7-12-29). The circuit court concluded the City could not require the dogs to be euthanized under the ordinance but found that the requirements of SDCL 7-12-29 were met. Appellants appeal the circuit court's order directing the Sheriff to dispose of the dogs pursuant under state law. In 2020, the appellants' dogs attacked a neighbor's smaller dog just outside of the neighbor's door to their home. The attack caused numerous bite wounds and internal injuries to the smaller dog who eventually died. Prior to this event, there were two other incidents where appellants' dog rushed up to a woman working outside her house barking aggressively and another incident involving the same neighbor's dog who was the victim in the instant case. The sheriff was summoned for the prior incidents, although no formal action was taken and appellants beefed up measures to keep the dogs in their yard. After the attack on the neighbor's dog, the sheriff formally declared the dogs "vicious animals" under the city's ordinance and obtained a TRO to remove the dogs to keep them at a nearby kennel until further disposition from the court. Ultimately, the City filed a petition for declaratory judgment requesting authorization for euthanasia of the dogs. Alternatively, the City sought a determination of dangerousness under SDCL 7-12-29 and requested an order allowing the sheriff to dispose of the dogs. The court found Appellants violated SDCL 40-34-2 by owning a “dog that chases, worries, injures, or kills any ... domestic animal ....” The court further found under the Ordinance that the dogs were improperly unleashed and running at large within city limits and that the dogs were “vicious animals.” However, the court determined the City could not require Appellants to euthanize the dogs under the Ordinance because no “vicious animal” notice had been given to Appellants prior to the fatal attack on the neighbors’ dog. However, the court found that Appellants’ dogs were dangerous under SDCL 7-12-29 and authorized the Sheriff to dispose of the dogs. The circuit court stayed the order pending this appeal. On appeal, the appellants challenge the City's authority to request that the Sheriff dispose of the dogs under SDCL 7-12-29 after the circuit court denied such relief under the Ordinance. Appellants also argue that the circuit court erred in determining the dogs were dangerous and authorizing the Sheriff to dispose of the dogs under SDCL 7-12-29 in absence of a showing that the Department of Health had been consulted. The Supreme Court held that presented on appeal is whether the circuit court could order the Sheriff to dispose of the dogs under SDCL 7-12-29. SDCL 7-12-29 allows a sheriff to take possession of any animal suspected of being dangerous, continue to hold the animal until a formal determination of dangerousness can be made, and dispose of the animal through humane means if it is determined to be dangerous. Appellants claim that the court improperly used a "hybrid" application of both state and local law. This Court disagreed, finding that appellants presented no authority that the sheriff could not act under state law as opposed to city law. Appellants’ second argument is that circuit court erred by entering an order to permit the Sheriff to dispose of the dogs under the statute without first requiring consultation with the Department of Health for the purpose of rabies control. The Court agreed that the text of SDCL 7-12-29 includes both public safety and public health considerations that requires a formal consultation. However, the Court found this error to be harmless and the failure to consult with the Department of Health had any effect on the court's decision, or that it harmed the substantial rights of the Appellants. In fact, it was stipulated that both dogs were vaccinated against rabies and no continuing public health risk existed since the dog victim died 12 months prior at the veterinarian. The Court affirmed the judgment of the circuit court ordering that “the Sheriff may now dispose of [Appellants’ two dogs] through humane euthanasia.”
Hollendale Apartments & Health Club, LLC v. Bonesteel --- N.Y.S.3d ---- , 2019 WL 2031263 (N.Y. App. Div., 2019) The Plaintiff owns and operates an apartment complex with a policy that prohibits defendants from keeping a dog on the premises. The Defendant, Bonesteel, began renting an apartment at Plaintiff's complex in 2011 under a one-year lease. Defendant continued to renew his one-year lease for additional one-year terms until 2014. Defendant's therapist sent a letter to the Plaintiff requesting an exception to the no dog policy so that the Defendant could have an emotional support animal. The Plaintiff denied the request but stated that it would allow a bird or cat or an early termination of Defendant's lease. The Plaintiff filed an action seeking a judgment declaring that the Plaintiff's refusal to permit the Defendant to have an emotional support dog was not in violation of the Fair Housing Act (FHA) and the Human Rights Law (HRL). The Plaintiff subsequently reduced the Defendant's lease renewal term to three months. The Defendant filed counterclaims on grounds of discrimination. The Supreme Court of New York also granted a motion allowing the Attorney General to intervene. The Attorney General asserted counterclaims on similar grounds to those raised by the Defendant. After a nonjury trial, the trial court issued a judgment that the Plaintiff's actions did not violate the FHA and the HRL. The Defendant then appealed. On appeal, the Supreme Court addressed the question of whether the Plaintiff's claims were justiciable even though the matter was not raised by the parties. Since the Plaintiff had already denied the Defendant's request for an exception to the policy when it filed the action and no harm to the Plaintiff occurred or was impending, it was essentially asking the Court to issue an advisory opinion which is not an exercise of judicial function. Therefore, the Court dismissed the Plaintiff's declaratory judgment. The Court then considered the Defendant's counterclaims since concrete injuries were alleged. The only two arguments addressed were whether the Defendant actually had a qualifying disability within the meaning of the FHA and the HRL and whether the accommodation requested was necessary to afford the Defendant an equal opportunity to use and enjoy his dwelling. The Court concluded that the Defendant met his burden to establish that he is disabled within the meaning of the FHA and HRL. The Court also found that the Defendant "offered sufficient evidence that having an emotional support dog would affirmatively enhance his quality of life by ameliorating the effects of his disability, and thus demonstrated necessity within the meaning of the FHA and the HRL." Lastly, the Court found that the Plaintiff retaliated against the Defendant by reducing his lease renewal terms to three months. Accordingly, Defendant was entitled to judgment in his favor on the retaliation counterclaims.
People v. Panetta --- N.Y.S.3d ----, 2018 WL 6627442, 2018 N.Y. Slip Op. 28404 (N.Y. App. Term. Dec. 13, 2018) Defendant was convicted of animal cruelty, inadequate shelter, and failing to seek veterinary care for her numerous dogs. After an initial seizure of two dogs, defendant was served with a notice to comply with care and sheltering of her remaining dogs. Following inspections about a month later, inspectors found that defendant had failed to comply with this order, and dogs suffering from broken bones and other injuries (including one dog with "a large tumor hanging from its mammary gland area") were seized and subsequently euthanized. As a result, defendant was arrested and charged with 11 violations of Agriculture and Markets Law § 353 and local code violations. Defendant then moved to suppress the physical evidence and statements taken during the initial warrantless entry onto her property and the evidence obtained after that during the execution of subsequent search warrants, arguing that the initial warrantless entry tainted the evidence thereafter. At the suppression hearing, a building contractor who had visited defendant's residence testified that he contacted the Office for the Aging because he had concerns for defendant. An official at the Office for the Aging also testified that the contractor told her that he observed 6 dogs in the home and about 50-100 dogs in outdoor cages. The investigating officer who ultimately visited defendant's property reported that there were nearly 100 dogs living in "unhealthy conditions" on defendant's property. Upon encountering defendant that day, the officer testified that defendant demanded a search warrant for further investigation (which the officer obtained and executed later that day). Following this hearing, the City Court held that while the officer's entry violated defendant's legitimate expectation of privacy, his actions were justified under the emergency exception warrant requirement and, thus, denied defendant's motion to suppress. On appeal here, defendant argues that the prosecution failed to establish the officer had reasonable grounds to believe there was an immediate need to protect life or property and that all the evidence obtained thereafter should have been suppressed. Relying on previous holdings that allow the emergency exception in cases where animals are in imminent danger of health or need of protection, this court found that the prosecution failed to establish the applicability of the emergency doctrine. In particular, the court was troubled by the fact that, on the first visit, the officers crossed a chain fence that was posted with a no trespassing sign (although they testified they did not see the sign). Because the officers only knew that there were "unhealthy conditions" on defendant's property in a house that the contractor testified that he thought should be "condemned," this did not support a conclusion of a "substantial threat of imminent danger" to defendant or her dogs. While in hindsight there was an emergency with respect to the dogs, the court "cannot retroactively apply subsequently obtained facts to justify the officers' initial entry onto defendant's property." As a result, the court remitted the matter to the City Court for a determination of whether the seizures of evidence after the initial illegal entry occurred under facts that were sufficiently distinguishable from the illegal entry so to have purged the original taint.
People v. Brinkley --- N.Y.S.3d ----, 2019 WL 3226728 (N.Y. App. Div. July 18, 2019) Defendant was convicted of aggravated cruelty to animals. The Defendant appealed the judgment. Defendant and his nephew had purchased a puppy and continually used negative reinforcement, such as paddling or popping the dog on the rear end with an open hand, for unwanted behavior. On one occasion, when the dog was approximately 15 months old, the Defendant’s nephew found that the dog had defecated in the apartment. The nephew attempted to paddle the dog and the dog bit the nephew’s thumb as a result. When the Defendant had returned home, the nephew explained to him what had happened. The Defendant proceeded to remove the dog from his crate, put the dog’s face by the nephew’s injured thumb, and told him he was a bad dog. The dog then bit off a portion of the Defendant’s thumb. The Defendant attempted to herd the dog onto the back porch, but the dog became aggressive and continued to bite him. As a result, the Defendant repeatedly kicked the dog and used a metal hammer to beat the dog into submission. The dog later died due to his injuries. The Defendant argued that he had a justifiable purpose for causing the dog serious physical injury. The Defendant testified that he was in shock from the injury to his thumb and that he was trying to protect himself and his nephew. However, other evidence contradicted the Defendant's testimony. The dog was in a crate when the Defendant got home, and the Defendant could have left him there rather than take the dog out to discipline him. The Defendant was at least partially at fault for creating the situation that led him to react in such a violent manner. The Court reviewed several of the Defendant’s contentions and found them all to be without merit. The judgment was ultimately affirmed.
People v. Harris --- P.3d ---- 2016 WL 6518566 (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 looked to the state statute that specifically stated that only “state employees” were able to investigate livestock cases. In this case, the animal protection agent was employed by the Humane Society and was not a state employee; therefore, he did not have the authority to obtain a search warrant to investigate the property. However, the Court found that there was no constitutional violation with regard to the search warrant because it was still obtained based on probable cause. For this reason, the Court denied Harris’ request to suppress evidence that was submitted as a result of the search warrant. Finally, the Court reviewed 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.

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