|People v. Flores
|216 Cal. App. 4th 251, 156 Cal. Rptr. 3d 648 (Cal.App. 1 Dist.), review denied (Aug. 21, 2013)
Defendant Flores appeals his conviction under Penal Code section 399 for allowing a " mischievous animal" owned by him to cause serious injury to another person. In this case, defendant's pit bull dog, "Blue,"attacked defendant's almost 90-year old neighbor on his own property causing deep injuries to his leg. Blue had been previously involved in three other incidents where he either tried to attack other dogs or acted aggressively toward other humans. As a result of these incidents, Sonoma County officials issued defendant a issued a potentially dangerous animal warning. On appeal, defendant argued that there was insufficient evidence that he acted without ordinary care in keeping his dog and that the victim-neighbor did not suffer a serious injury as defined by statute. The court found both of these arguments without merit. While defendant suggested that he acted with "ordinary care" by keeping the dog tethered and chained outside on the day of the incident, the court found the evidence showed Blue had broken free in the past and had "massive strength." Further, even though the potentially dangerous dog designation by the county did not mandate that Blue be kept inside or in a secure enclosure, the ordinance language provides this requirement. Leaving a dog with a history of unprovoked attacks chained next to a public sidewalk in a residential neighborhood supported the jury's conclusion that defendant did not act as reasonably careful person would in the same situation. As to the serious bodily injury claim, the court noted that although the law does not define the term, there was substantial medical evidence to support the jury's determination. Affirmed.
|Lundy v. California Realty
|216 Cal.Rptr. 575 (Cal.App.4.Dist.)
The Court of Appeals held that an owner of a dog may be held liable for injuries inflicted by it on another person without any showing the dog had any especially dangerous propensities or that the owner knew of any such dangerous propensities. However, to impose liability on someone other than the owner, even a keeper, previous knowledge of the dog's vicious nature must appear. Aside from the rental agreement, the property owners knew nothing whatever about the dog. Thus, the facts before the trial court fell far short of creating a triable issue of fact as to defendant property owners' knowledge of any dangerous propensities on the part of the tenant's dog. "Neither do we believe judicial notice may be taken that all German shepherds are dangerous. Nor can defendants' knowledge of any dangerous propensity of the dog be inferred simply because they knew his name was Thunder."
|City of La Marque v. Braskey
|216 S.W.3d 861 (Tex. Ct. App. 2007)
A city's ordinance did not allow a kennel, defined as a place containing more than four dogs and cats, to be operated within 100 feet of a residence, school, or church. A woman kept as many as 100 cats at a time in a shelter within 100 feet of three homes, and she was criminally charged under the ordinance. The court found that the ordinance did not violate the plaintiff's constitutional rights because there was no right to use her property in any manner that she chose.
|Ducote v. Boleware
|216 So. 3d 934 (La.App. 4 Cir. 2/17/16), writ denied, 2016-0636 (La. 5/20/16), 191 So. 3d 1071
|This appeal arises from a personal injury lawsuit filed by Plaintiff Ducote, stemming from injuries she suffered as the result of a bite by defendant's cat. Plaintiff was walking down the sidewalk in New Orleans in the early evening when defendant's cat jumped on her left side and bit her hand causing injury. Plaintiff opted for the rabies immunoglobulin and the vaccine at the emergency room after defendant was unable to produce a rabies certificate (though the cat was later successfully quarantined). The trial court granted summary judgment upon motion for defendant and his homeowner's insurer. Plaintiff now appeals that decision. On appeal, the majority observed that liability of an animal owner (other than a dog) is provided by La. C.C. art. 2321, which gives a negligence standard based on knowledge of an animal's vicious propensities. The court found that there was no scienter on defendant's part as to the cat's dangerous nature (in fact, the cat was known to be a friendly cat with no previous incidents). Plaintiff suggests that liability should be based on a theory of negligence per se. Due to defendant's violation of city ordinances related to proof of rabies vaccination, he should be liable for damages. The court, however, rejected this, as Louisiana law does not recognize statutory negligence per se. Instead, in looking at negligence based on the set of facts, the court found plaintiff did not meet her burden. The trial court's decision was affirmed.
|U.S. v. Bronx Reptiles, Inc.
|217 F.3d 82 (2nd Cir. 2000)
After defendant received a shipment of dead frogs, he was convicted of violating a portion of the Lacey Act, 18 U.S.C.S. § 42(c), which made it a misdemeanor to knowingly cause or permit any wild animal to be transported to the United States under inhumane or unhealthful conditions. Defendant appealed, and judgment was reversed and remanded with instructions to enter a judgment of not guilty. The government failed to meet its burden to prove not only that the defendant knowingly caused or permitted the transportation to the United States of a wild animal, but also that the defendant knew the conditions under which the frogs was transported were "inhumane or unhealthful."
|Wells v. Brown
|217 P.2d 995 (Cal.App.4.Dist. 1950)
In this California case, damages were assessed beyond the purchase price of a dog involved in a hit and run case where the defendant negligently ran over and killed a 15 month old pure-bred Waeimaraner. After the defendant ran over the dog, he shot the dog and buried it. The next morning he contacted the veterinarian listed on the collar, as well as the owner of the dog. The court upheld the jury verdict of $1,500 since the purchase price was determined to not reflect the market value at the time of the dog’s death.
|Simons v. State
|217 So. 3d 16 (Ala. Crim. App. 2016)
|In this case, defendant was convicted of a Class C felony of cruelty to a dog or cat and was sentenced to twenty years in prison (the conviction stems from the beating a kitten to death with his bare fists). The lower court applied the Habitual Felony Offender Act (HFOA) which allowed the court to sentence defendant beyond the maximum penalty (defendant had 16 prior felony convictions). Defendant appealed his sentence, arguing that HFOA did not apply to his Class C felony of cruelty to a dog or cat. Ultimately, the court held that HFOA did not apply to the Class C felony here. The court maintained that the animal cruelty statue was plainly written and explicitly stated that a first degree conviction of animal cruelty would not be considered a felony under HFOA. As a result, defendant's conviction was upheld but remanded for new sentencing.
|Tiller v. State
|218 Ga. App. 418 (1995)
Defendant argued that being in "possession" of neglected, suffering animals was not a crime. The court held that where a veterinarian testified that the horses were anemic and malnourished and where defendant testified that he had not purchased enough to feed them, the evidence was sufficient to authorize the jury to find defendant guilty beyond a reasonable doubt of seven counts of cruelty to animals. The court held the trial court did not err in admitting a videotape depicting the horses' condition and that of the pasture when the horses were seized, where the videotape was relevant to the jury's consideration.
|David v. Lose
|218 N.E.2d 442 (Ohio 1966)
Syllabus by the Court
1. In order to establish a prima facie case against a bailee in an action sounding in contract, a bailor need prove only (1) the contract of bailment, (2) delivery of the bailed property to the bailee and (3) failure of the bailee to redeliver the bailed property undamaged at the termination of the bailment.
2. In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established, and the burden of going forward with the evidence shifts to the bailee to to explain his failure to redeliver. (Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658, followed.)
|Commonwealth v. Russo
|218 N.E.3d 116, review granted, 493 Mass. 1104, 223 N.E.3d 741 (2023)
|This is a case regarding an animal cruelty charge brought against defendant, the owner of an elderly, terminally ill dog. First, defendant’s family brought the fourteen-year-old dog to an animal hospital. The staff at the hospital examined the dog, which had a large mass on his side, and recommended that the dog have surgery to remove the mass. Defendant did not authorize the surgery, and instead took the dog home. Three weeks later, defendant brought the dog back to the animal hospital, where the staff noticed that his condition had worsened significantly. At this point, the veterinarian recommended humane euthanasia to end the dog’s suffering, but defendant declined and requested the surgery. The veterinarian declined, claiming the dog would not survive the surgery, and defendant took the dog home saying they would have another vet euthanize the dog. The veterinarian reported defendant to the Animal Rescue League of Boston, who conducted a welfare check on the dog and found it in very poor health. When the Animal Rescue League asked defendant to euthanize the dog or get him medical attention, defendant declined and insisted the dog would die at home. Defendants were charged with violating the animal cruelty statute, defendant’s motion to dismiss the complaint was granted, and this appeal followed. The question on appeal is whether defendant’s conduct in refusing to euthanize the dog constitutes animal cruelty under the statute. The Commonwealth argues that the animal cruelty statute covers the conduct of one who has charge of an animal but, rather than inflicting the harm directly, “authorizes or permits” the animal “to be subjected to” harm, and that keeping the dog in a state of suffering rather than euthanizing the dog fits this definition. However, after examining case law, the court could not find a case in which a person's failure to euthanize an animal was interpreted as “subjecting” an animal to harm, and did not want to extend the statute that far. The court affirmed the holding of the lower court.
|New Jersey Society for Prevention of Cruelty to Animals v. Board of Education
|219 A.2d 200 (N.J. Super. Ct. 1966)
In this action, the New Jersey Society for the Prevention of Cruelty to Animals, sought recovery against the Board of Education of the City of East Orange of penalties of the rate of $100 per alleged violation arising out of cancer-inducing experiments conducted by a student in its high school upon live chickens. By permission of the court, defendants, New Jersey Science Teachers’ Association and National Society for Medical Research Inc. were permitted by the court to participate as amicus curiae. The court found that because the board did not obtain authorization from the health department, an authorization which the health department did not think was needed, it was not thereby barred from performing living animal experimentation. The court concluded that the experiment at issue was not per se needless or unnecessary, and that such experiment did not fall within the ban of N.J. Stat. Ann. § 4:22-26 against needless mutilation, killing, or the infliction of unnecessary cruelty.
|State v. Nelson
|219 P.3d 100 (Wash.App. Div. 3, 2009)
Defendants in this Washington case appeal their convictions of animal fighting and operating an unlicensed private kennel. They contend on appeal that the trial judge abused her discretion by allowing an expert from the Humane Society to render an opinion on whether the evidence showed that the defendants intended to engage in dogfighting exhibitions. The Court of Appeals held that the judge did not abuse her discretion in admitting the expert's opinion. The opinions offered by the expert were based on the evidence and the expert's years of experience. The court found that the expert's opinion was a fair summary and reflected the significance of the other evidence offered by the prosecution. Further, the expert's opinion was proffered to rebut defendants' contention that the circumstantial evidence (the veterinary drugs, training equipment, tattoos, etc.) showed only defendants' intent to enter the dogs in legal weight-pulling contests. Defendants convictions for animal fighting and operating an unlicensed private kennel were affirmed.
|Zelman v. Cosentino
|22 A.D.3d 486 (N.Y. 2005)
A repairman was knocked over by a dog while working on a telephone line in the neighbor's yard. The repairman brought claims against the dog's owner under under theories of strict liability and negligence. The trial court granted summary judgment in favor of the dog's owner and the Court of Appeals affirmed.
|U.S. v. Hayashi
|22 F.3d 859 (1993)
Appellant challenged the decision of the United States District Court for the District of Hawaii, which convicted him of taking a marine mammal in violation of the MMPA. The court reversed appellant's conviction for taking a marine mammal under the MMPA. It held that the MMPA and the regulations implementing the act did not make it a crime to take reasonable steps to deter porpoises from eating fish or bait off a fisherman's line.
|Brooks v. Jenkins
|220 Md. App. 444, 104 A.3d 899 (Md. Ct. Spec. App., 2014)
|County deputies went to a home with a warrant to arrest a couple's son. While many facts in this case were in dispute, the undisputed result was that a deputy shot the family's chocolate Labrador retriever. While the couple left the house to take the dog to the vet, the deputies entered the house—contrary to the couple's express instructions— and arrested the son. The couple filed a complaint in the Circuit Court seeking damages, on a number of theories, for the wounding of the dog and the officers' alleged unlawful entry into their home. After a trial, the couple prevailed against the deputies and the jury awarded damages totaling $620,000 (reduced, after remittitur, to $607,500). The deputies appeal. The Maryland Court of Special Appeals held the issue of whether deputy acted with gross negligence in shooting dog was for the jury; CJ § 11–110 did not limit the couple's total recovery for the constitutional tort to the capped value of their pet's vet bills; the $200,000 jury award in non-economic damages to the couple on their constitutional tort claim was not excessive in light of the evidence; the deputies were entitled to immunity from the constitutional trespass claim; and the couple could not recover emotional damages on the common law trespass claim. The lower court's decision was therefore affirmed in part, reversed in part, and remanded.
|Barrett v. State
|220 N.Y. 423 (N.Y. 1917)
This case concerns a New York law that protected beavers and their habitat in New York by stating that no one "shall molest or disturb any wild beaver or the dams, houses, homes or abiding places of same." The claimants owned land that endured considerable commercial destruction due to the beavers that were present. Claimants were initially awarded damages and alleged on appeal that the law represented an unconstitutional exercise of police power and, that, since the beavers were "owned" by the state at the time of the destruction, the state is liable for the damage. The Court disagreed, finding the ownership of wildlife is in the state in its sovereign capacity, for the benefit of all the people. As a result, the state was acting in its proper police power authority and is not liable for the damage that ensued from "liberating" the beaver.
|Strickland v. Davis
|221 Ala 247 (1930)
A case involving an automobile accident in which the court declared that photographs may be authenticated by a party having personal knowledge of the location and who can verify that the photos substantially represent the conditions as they existed at the time in question.
|Frye v. County of Butte
|221 Cal.App.4th 1051 (2013), 164 Cal.Rptr.3d 928 (2013)
After several administrative, trial court, and appeals hearings, the California court of appeals upheld a county’s decision to seize the plaintiffs’ horses for violation of Cal. Penal Code § 597.1(f). Notably, the appeals court failed to extend the law of the case, which generally provides that a prior appellate court ruling on the law governs further proceedings in the case, to prior trial court rulings. The appeals court also held that the trial court’s "Statement of Decision" resolved all issues set before it, despite certain remedies remaining unresolved and the court’s oversight of the plaintiffs' constitutionality complaint, and was therefore an appealable judgment. The appeals court also found the trial court lacked jurisdiction to extend the appeals deadline with its document titled "Judgment."
|Milburn v. City of Lebanon
|221 F. Supp. 3d 1217 (D. Or. 2016)
Plaintiff Milburn was acquitted of misdemeanor animal abuse on appeal, but a Lebanon police officer removed Milburns’ dog from her possession. While the appeal was pending, the Defendant, City of Lebanon, gave the dog to an animal shelter. The dog was later adopted by a new owner. The Linn County Circuit Court ordered the City to return the dog to Milburn after the acquittal but the Defendant City failed to comply. Milburn then brought this action pursuant to 42 U.S.C. §§ 1981 and 1983 against the City of Lebanon. The City moved for dismissal for failure to state a claim, and the United States District Court, for the District of Oregon, granted that motion while giving leave for Milburn to amend her complaint. In the Amended Complaint, Milburn contended that the City’s refusal to return her dog pursuant to the state court order deprived her of property without due process of law, in violation of the Fourteenth Amendment. Milburn also asserted a violation of her procedural due process rights. The United States District Court, for the District of Oregon, reasoned that while Milburn alleged a state-law property interest in her dog, she failed to allege that the Defendant City deprived her of that interest without adequate process. Milburn also did not allege state remedies to be inadequate. Those two omissions in combination were fatal to Miburn's procedural due process claim. Also, Milburn's assertion that the court issued an order and that the City did not comply with, is an attack on the result of the procedure. The court reasoned that attacking the result instead of the process of a procedure does not state a procedural due process claim. Milburn’s procedural due process claim was then dismissed. The Court also held that it did not have jurisdiction over Milburn’s injunctive relief claim. Therefore, Milburn's request for injunctive relief was dismissed with prejudice. However, the court held that Milburn could seek monetary damages. While Defendant City’s second motion to dismiss was granted, Milburn was granted leave to amend her complaint within 90 days with regard to her claim for actual and compensatory damages.
|Hansen v. U.S. Dept. of Agriculture
|221 F.3d 1342 (8th Cir. 2000)
|Judie Hansen petitions for review of a final decision of the Secretary of the United States Department of Agriculture. Because the 8th Circuit has no jurisdiction over the matter, the petition is dismissed.
|City of Houston v. Levingston
|221 S.W.3d 204 (Tx.App.-Hous.(1 Dist.) 2006)
This opinion substitutes City of Houston v. Levingston, 2006 WL 241127 (Tex.App.-Hous. (1 Dist.)), which is withdrawn.
|Kaufman v. Langhofer
|222 P.3d 272 (Ariz.App. Div. 1, 2009)
This Arizona based appeal arises out of a veterinary malpractice action filed by plaintiff/appellant David Kaufman against defendants/appellees, William Langhofer, DVM, and Scottsdale Veterinary Clinic over the death of Salty, Kaufman's scarlet macaw. The main issue on appeal is whether a pet owner is entitled to recover emotional distress and loss of companionship damages over the death of his or her pet. Plaintiff argues that the court here should “expand” Arizona common law to allow a pet owner to recover emotional distress damages and damages for loss of companionship in a veterinarian malpractice action. While the court acknowledged the emotional distress Kaufman suffered over Salty's death, it noted that Dr. Langhofer's negligence did not directly harm Kaufman. Thus, the court felt that it would not be appropriate to expand Arizona common law to allow a pet owner to recover emotional distress or loss of companionship damages because that would offer broader compensation for the loss of a pet than for the loss of a human.
|Gibson v. Babbitt
|223 F.3d 1256 (11th Cir. 2000)
Defendant, a Native American, challenged the constitutionality of the limitation of eagle parts through the permit system to members of federally recognized tribes. The limitation under the federal eagle permit system to federally recognized Indian tribes does not violate RFRA because the government has a compelling interest in protecting a species in demise and fulfilling pre-existing trust obligations to federally-recognized tribes in light of the limited supply of eagle parts. For further discussion on free exercise challenges under the BGEPA, see Detailed Discussion of Eagle Act.
|Bone v. Vill. Club, Inc.
|223 F.Supp. 3d 1203 (M.D. Fla. 2016)
|This case dealt with a woman's request to have her emotional-support dog live with her before purchasing land in a mobile home community, known as Brookhaven. Prior to purchasing her lot, the plaintiff allegedly received permission from the president of Brookhaven's board of directors to keep her dog, even though the plaintiff was purchasing a lot in the "no pet" section of Brookhaven. The plaintiff provided the president of the board with the documentation requested, and the president told plaintiff she had been approved by the board to have her dog. Approximately one year after plaintiff purchased her lot, Brookhaven's attorney sent a letter requesting that plaintiff remove her dog, citing Brookhaven's policies disallowing her dog. After several letters sent back and forth between plaintiff's attorney and Brookhaven's attorney concerning requirements of the Fair Housing Act and the party's respective actions, both parties cross-moved for summary judgement. The court held that 1) genuine issue of material fact existed as to whether tenant had an actual disability; 2) landlord was not prejudiced by tenant's untimely disclosure of expert report; 3) genuine issue of material fact existed as to whether landlord constructively denied tenant an accommodation; and 4) genuine issue of material fact existed as to whether landlord retaliated against tenant for requesting a disability accommodation. As a result, all motions for summary judgement were denied.
|State v. Smith
|223 P.3d 1262 (Wash.App. Div. 2, 2009)
In this Washington case, defendant Smith appealed his conviction for first degree animal cruelty following the death of his llama. Smith claims he received ineffective assistance of counsel when his attorney failed to (1) discover information before trial that may have explained the llama's death and (2) seek a lesser included instruction on second degree animal cruelty. This court agreed. It found that defense counsel's "all or nothing strategy" was not a legitimate trial tactic and constituted deficient performance where counsel presented evidence to call into question the State's theory on starvation, but not evidence related to the entire crime. The court found that the jury was "left in an arduous position: to either convict Smith of first degree animal cruelty or to let him go free despite evidence of some culpable behavior." The case was reversed and remanded.
|Katsaris v. Cook
|225 Cal.Rptr. 531 (Cal.App. 1 Dist., 1986)
Plaintiff's neighbor, a livestock rancher, shot plaintiff's sheepdogs after they escaped and trespassed on his property. As a matter of first impression, the court construed the California Food and Agricultural Code provision that allows one to kill a dog that enters an enclosed or unenclosed livestock confinement area with threat of civil or criminal penalty. The court affirmed defendant's motion with regard to the code provision, finding it gave them a privilege to kill the trespassing dogs. Further, the court found defendants owed no duty to plaintiff thereby denying the claim for negligent infliction of emotional distress as a result of negligence in supervising the ranchhand who killed the dogs. With regard to the intentional infliction of emotional distress claim, plaintiffs cite the manner in which the dogs were killed and then dumped in a ditch and the fact defendant denied knowing the fate of the dogs. Relying on the "extreme and outrageous conduct" test, the court held that the defendant's conduct did not fall within the statutory privilege and remanded the issue to the trial court for consideration.
|People v. Chenault
|227 Cal. App. 4th 1503, review filed (Aug. 25, 2014)
|Darrell Chenault was convicted on 13 counts of lewd acts on a child under 14 years of age and sentenced to 75 years to life in prison. On appeal he contended that the trial court abused its discretion by allowing a support dog to be present during the testimony of two child witnesses without individualized showings of necessity, and that the presence of the dog was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him. The appellate court concluded that a trial court has authority under Evidence Code section 765 to allow the presence of a therapy or support dog during a witness’s testimony.” The court did “not believe that the presence of a support dog is inherently more prejudicial than the presence of a support person,” citing the New York case of Tohom. Chinault argued that “individualized showings of necessity” should have been required for F. and C. before the support dog could be present in the courtroom. The appellate court concluded however that “a case-specific finding that an individual witness needs the presence of a support dog is not required by the federal Constitution,” for which Tohom was again cited. Based on the court's review of the record, the appellate court concluded that the trial court made implicit findings that the presence of Asta, the support dog, would assist or enable F. and C. to testify completely and truthfully without undue harassment or embarrassment. The court also took measures to reduce any possible prejudice to Chenault by setting forth logistics for the entry, positioning, and departure of the support dog, along with F. and C., during jury recesses so the dog was as unobtrusive and least disruptive as reasonably possible. The judgment was affirmed.
|Idaho Dairymen's Ass'n, Inc. v. Gooding County
|227 P.3d 907 (Idaho 2010)
After Gooding County adopted an ordinance regulating confined animal feeding operations (CAFOs), cattle ranching and dairy associations brought suit challenging the constitutionality and validity of provisions within the ordinance and seeking declaratory and injunctive relief. The district court entered summary judgment in favor of the county, and the associations appealed. The Idaho Supreme Court affirmed the district court's findings.
|Volosen v. State
|227 S.W.3d 77 (Tex. Crim. App., 2007)
Appellant killed neighbor's miniature dachshund with a maul when he found it among his chickens in his backyard, and he defends that Health & Safety Code 822 gave him legal authority to do so. At the bench trial, the judge found him guilty of animal cruelty, but on appeal the court reversed the conviction because it found that the statute gave him legal authority to kill the attacking dog. However, this court held that appellant did not meet his burden of production to show that the statute was adopted in Colleyville, TX and found as a matter of fact that the dog was not "attacking."
|Volosen v. State
|227 S.W.3d 77 (Tx.Crim.App. 2007)
The appellant/defendant mauled a miniature dachshund to death after the dog entered a yard where the appellant kept his chickens. The State of Texas prosecuted the appellant/defendant for cruelty to animals on the ground that the appellant/defendant killed the dog without legal authority. The appellant/defendant, however, argued that section 822.033 of the Texas Health and Safety Code, an entirely different statute, provided that authority. After the appeals court reversed the district court’s decision to convict the defendant/appellant, the Texas Court of Criminal Appeals found that the appellant/defendant had failed to meet his burden of production to show the applicability of his claimed defense and thus reversed the court of appeals’ judgment and remand the case back to that court.
|Phillips v. San Luis Obispo County Dept.
|228 Cal.Rptr. 101 Cal.App. (2 Dist.,1986)
In this case, the owners of dog petitioned for writ of mandamus requesting vacation of destruction order and declaration that ordinances under which the dog was seized were unconstitutional. The Court of Appeal held that due process required that owners have hearing prior to seizure of or destruction of dog (a property interest) and that a "courtesy hearing" did not satisfy due process requirements. Further, the court concluded that the ordinances here were unconstitutional for failing to provide for notice and a hearing either before or after the seizure of an uncontrollable biting or vicious dog.
|Hauser v. Ventura County Board of Supervisors
|229 Cal.Rptr.3d 159 (Cal. Ct. App., 2018)
|The plaintiff in this case applied for a conditional use permit (CUP) to keep up to five tigers on her property, but the county planning commission and board of supervisors denied her application. In her application, plaintiff indicates that the project would include three tiger enclosures, a 13,500-square-foot arena with a roof over 14 feet in height at its highest point, with the area surrounded by an eight-foot-high chain link fence encompassing over seven acres. The captive tigers would be used in the entertainment industry: movie sets, television commercials, and still photography. In denying the application, the Board found that the plaintiff failed to prove two elements necessary for a CUP: the project is compatible with the planned uses in the general area, and the project is not detrimental to the public interest, health, safety or welfare. The court noted that plaintiff bears the burden of demonstrating her entitlement to the permit. In fact, the court noted that while plaintiff claims "an unblemished safety record," she submitted videos showing tigers "roaming freely in the backyard of her Beverly Hills home" and tigers posing with plaintiff and her sister on the beach. The court observed that, "[h]er well-intentioned desire to own [the tigers] does not trump her neighbors' right to safety and peace of mind." The judgment of the lower court was affirmed.
|Steiner v. U.S.
|229 F.2d 745 (9th Cir. 1956)
Defendants were charged with knowingly and willfully, with intent to defraud the United States, smuggling and clandestinely introducing into the United States merchandise, namely, psittacine birds, which should have been invoiced; by fraudulently and knowingly importing merchandise and by knowingly receiving, concealing and facilitating the transportation and concealment of such merchandise after importation, knowing the same to have been imported into the United States contrary to law. Appellants contend that the birds mentioned in count 1 were not merchandise, within the meaning of 18 U.S.C.A. § 545. The court found there was no merit in this contention. Further, this importation subjected defendants to the felony provision of the Lacey Act and defendants were properly sentenced under the felony conspiracy portion of the Act.
|Silver v. State
|23 A.3d 867 (Md. App., 2011)
Defendants were sentenced by the District Court after pleading guilty to one count of animal cruelty. After defendants were convicted in the Circuit Court, they petitioned for a writ of certiorari. The Court of Appeals held that the Circuit Court could order that defendants pay restitution for the euthanasia cost for the deceased horse, but it was beyond the court’s authority to order defendants pay restitution for costs of caring for the two surviving horses because defendants had not been convicted in those cases. The court also held that the trial court did not abuse its discretion in refusing to strike officer's testimony for prosecutor's failure to provide the officer's written report prior to trial. Finally, photos and testimony regarding the surviving horses were “crime scene” evidence and not inadmissible “other crimes” evidence because the neglect of the surviving horses was part of the same criminal episode.
|Institute of Marine Mammal Studies v. National Marine Fisheries Service
|23 F. Supp. 3d 705 (S.D. Miss. 2014), appeal dismissed (Feb. 27, 2015)
|The Institute of Marine Mammal Studies (IMMS) brought action against the National Marine Fisheries Service (NMFS) and others, alleging that NMFS regulations did not properly implement the Marine Mammal Protection Act (MMPA), and that the NMFS was improperly administering placement list for rehabilitated sea lions that could not be reintroduced into the wild. Parties cross-moved for summary judgment. After considering the parties' arguments, the administrative record, and the relevant law, the District Court found that the IMMS lacked standing to bring its claim that NMFS regulations did not properly implement the Marine Mammal Protect Act ("MMPA"). Further, the Court found that it lacked subject matter jurisdiction of IMMS' claims that the NMFS was improperly administering a placement list for non-releasable sea lions. However, the Court found it may review the claims concerning the permit allowing IMMS to "take" sea lions. The Court found that a term included in IMMS' permit improperly delegated federal authority to third parties. The permit was therefore remanded to the agency for reconsideration. Each summary judgment motion was granted in part and denied in part.
|Animal Legal Defense Fund, Inc. v. Espy
|23 F.3d 496 (C.A.D.C.,1994)
In this case, animal welfare groups and two individuals challenged the regulation promulgated by Department of Agriculture that failed to include birds, rats, and mice as “animals” within meaning of Federal Laboratory Animal Welfare Act (FLAWA). The United States District Court for the District of Columbia, denied defendant's motion to dismiss, and subsequently granted plaintiffs' motion for summary judgment. Defendant appealed. The Court of Appeals held that plaintiffs could not demonstrate both constitutional standing to sue and statutory right to judicial review under the APA. The Court vacated the district court's judgment and remanded the case with directions to dismiss.
|People v. Lewis
|23 Misc.3d 49, 881 N.Y.S.2d 586 (N.Y.Sup.App.Term,2009)
|Defendants were charged in separate informations with multiple counts of injuring animals and failure to provide adequate sustenance. Plaintiff, the People of the State of New York, appealed the lower court’s decision to grant Defendants’ motion to suppress evidence obtained when a special agent of the American Society for the Prevention of Cruelty to Animals approached one of the defendants at his home upon an anonymous tip and inquired about the condition of the animals and asked the defendant to bring the animals outside for inspection, while the incident was videotaped by a film crew for a cable television show. The Supreme Court, Appellate Term, 2nd and 11th, 13 Judicial Districts reversed the lower court’s decision, finding that Plaintiff met its burden of establishing that the defendant voluntarily consented to the search based on the fact that the defendant was not in custody or under arrest at the time of the search, was not threatened by the special agent, and there was no misrepresentation, deception or trickery on the special agent’s part.
|Ford v. Wiley
|23 QBD 203
A farmer who had caused the horns of his cattle to be sawn off, a procedure which had caused great pain, was liable to conviction for cruelty. For an operation causing pain to be justifiable, it had to be carried out in pursuit of a legitimate aim that could not reasonably be attained through less painful means, and the pain inflicted had to be proportionate to the objective sought. The mere fact that the defendant believed that the procedure was necessary did not remove him from liability to conviction if, judged according to the circumstances that he believed to exist, his actions were not objectively justifiable.
|Boulahanis v. Prevo's Family Market, Inc.
|230 Mich.App. 131 (1998)
|Michigan Court of Appeals affirmed that the Federal Meat Inspection Act prevents states from adding or modifying federal requirements on meat producers. Claims that purchased meat products are adulterated must be based on federal standards, not Michigan standards. The United States Department of Agriculture elected not to address E. coli contamination, thus Michigan may not impose liability on manufacturers for not addressing possible E. coli contamination.
|People v. Tom
|231 Cal. Rptr. 3d 350 (Ct. App. Apr. 13, 2018)
|Defendant stabbed, beat, strangled, and then attempted to burn the dead body of his girlfriend's parent's 12-pound dog. Police arrived on the scene as defendant was trying to light the dead dog on fire that he had placed inside a barbeque grill. Defendant was convicted of two counts of animal cruelty contrary to Pen. Code, § 597, subds. (a) and (b), as well as other counts of attempted arson and resisting an officer. While defendant does not dispute these events underlying his conviction, he contends that he cannot be convicted of subsections (a) and (b) of Section 597 for the same course of conduct. On appeal, the court considered this challenge as a matter of first impression. Both parties agreed that subsection (a) applies to intentional acts and subsection (b) applies to criminally negligent actions. Subsection (b) contains a phrase that no other court has examined for Section 597: “Except as otherwise provided in subdivision (a) . . .” Relying on interpretations of similar phrasing in other cases, this court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct. The court was unconvinced by the prosecutor's arguments on appeal that the two convictions arose from separate conduct in this case. However, as to sentencing, the court found that defendant's subsequent attempt to burn the dog's body involved a different objective than defendant's act in intentionally killing the dog. These were "multiple and divisible acts with distinct objectives" such that it did not violate section 645 or due process in sentencing him for both. The court held that defendant's conviction for violating section 597, subdivision (b) (count two) was reversed and his modified judgment affirmed.
|Amons v. District of Columbia
|231 F. Supp 2d. 109 (D.D.C. 2002)
Plaintiff filed a Section 1983 action against D.C. police officers alleging, inter alia , intentional infliction of emotional distress for the unprovoked shooting of his dog inside his home. The court found that the officers lacked probable cause for the warrantless entry into his home to make the arrest, the arresting officer made "an egregiously unlawful arrest," and the officers were unreasonable in shooting plaintiff's dog without provocation.
|State v. Borowski
|231 Or.App. 511 (2009)
Defendants were convicted of interfering with agricultural operations under the anti-picketing provision of a criminal statute. The Court of Appeals held that the anti-picketing provision was not facially over-broad under the free speech or free assembly provision of State Constitution. The provision, which imposed criminal penalties on people engaged in picketing but created an exception for those involved in a labor protest, did not violate the privileges and immunities clause of the State Constitution, but it did violate equal protection rights under the U.S. Constitution. The statutory presumption of severability did not apply in this case.
|Natural Resources Defense Council v. Evans
|232 F. Supp. 2d 1003 (N.D. Cal. 2002)
Plaintiffs, various environmental organizations and a concerned individual, sought a preliminary injunction against federal officials to prevent the United States Navy's peacetime use of a low frequency sonar system for training, testing and routine operations. The defendants temporarily enjoined from deploying Low Frequency Active Sonar until a carefully tailored preliminary injunction can be issued which would permit the use of Low Frequency Active Sonar for testing and training in a variety of ocean conditions, but would provide additional safeguards to reduce the risk to marine mammals and endangered species.
|American Bird Conservancy v. Harvey
|232 F. Supp. 3d 292 (E.D.N.Y. 2017)
Plaintiff, American Bird Conservancy, is a non-profit organization that was dedicated to the conservation of the Piping Plover (a threatened species) in this case. The individual Plaintiffs, David A. Krauss and Susan Scioli were also members of the organization, who observed Piping Plovers at Jones Beach, in New York State for many years. The Plaintiffs brought an action against Defendant Rose Harvey, the Commissioner of the New York State “Parks Office”. The Plaintiffs asserted that the Commissioner failed to act while members of the public routinely fed, built shelters, and cared for the feral cats on Jones Beach. As the cat colonies flourished, the Piping Plover population decreased due to attacks by the cats. The Plaintiffs contended that by failing to take measures to decrease the feral cat population, the Commissioner was allowing the cats to prey on the Piping Plover, in violation of the federal Endangered Species Act (ESA). The Commissioner moved to dismiss the complaint. The District Court, held that: (1) the affidavit and documentary evidence provided by the Alley Cat Allies (ACA) organization was outside the scope of permissible supporting materials for the motion to dismiss. (2)The Plaintiffs had standing to bring action alleging violation of the Endangered Species Act. The Commissioners motion to dismiss was denied.
|Friends of Animals v. The United States Bureau of Land Management
|232 F. Supp. 3d 53 (D.D.C. 2017)
Friends of Animals, an animal welfare organization, filed suit for a preliminary injunction against the Bureau of Land Management (BLM). Friends of Animals filed suit after the BLM started organizing a new “gather” which is a a term used for the removal of wild horses. The BLM planned to “gather” wild horses from a range in Utah and the Friends of Animals challenged the decision on three grounds: (1) the decision to gather was not grounded on any National Environmental Policy Act (NEPA) document such as a environmental assessment (EA); the BLM failed to honor its previous commitment to include new EAs for any new gathers; and (3) the gather violates the Wild Horses Act on the basis that the BLM failed to make a excess population determination before authorizing the gather.
The court reviewed the three claims separately and determined that Friends of Animals’ challenges to the gather were not likely to succeed and there was not a sufficient irreparable harm to warrant a preliminary injunction. First, the court found that under NEPA, an agency is able to rely on a previous EA so long as “new circumstances, new information or changes in the action or its impacts not previously analyzed [do not] result in significantly different environmental effects.” The court found that previous EAs were sufficient because they had assessed an “essentially similar” capture method. Additionally, the court determined that although BLM had previously agreed to provide new EAs for any new gathers, the BLM was not legally required to do, so the Friends of Animals argument regarding this issue would not succeed. Lastly, the court found that the BLM had not violated the Wild Horses Act because the BLM had in fact conducted an excess population determination.
Lastly, the court analyzed whether or not the gather created an irreparable harm that would warrant a preliminary injunction. The court found that there was not sufficient evidence to prove any irreparable harm. As a result, the court denied the preliminary injunction and held in favor of the BLM.
|U.S. v. Fejes
|232 F.3d 696 (9th Cir. 2000)
The jury found that Fejes sold caribou in violation of the Lacey Act by providing guide services to two hunters that took the caribou in violation of Alaska law. The court held that a "sale" of wildlife for purposes of 16 U.S.C. § 3373(d)(1)(B) encompasses not only the agreement to provide guide or outfitting services, but also the actual provision of such services. Further, defendant was not entitled to instruction regarding alleged state law requirement that he transport illegally taken caribou because the evidence at trial unquestionably showed that he sold caribou in interstate commerce.
|Waters v. Powell
|232 P.3d 1086 (Utah Ct. App., 2010)
In this Utah case, defendant Powell took his dog to a kennel managed by plaintiff Waters to be boarded for a few days. Waters took the dog to a play area to be introduced to the other dogs where the dog bit Waters. Waters filed a complaint against Powell alleging that he was strictly liable for the injury the dog inflicted. On interlocutory appeal, the Court of Appeals held that Waters was a "keeper" of the dog for purposes of the state's dog bite statute (sec. 18-1-1). Waters essentially conceded on appeal that if she is a keeper then she is precluded from asserting a strict liability claim against Powell. Thus, the district court's denial of summary judgment was reversed and the case remanded with instructions that Powell's summary judgment motion be granted.
|Eriksson v. Nunnink
|233 Cal.App. 4th 708 (2015)
|In this case a deceased horse rider's parents (Erikssons) have brought wrongful death and negligent infliction of emotional distress actions against the rider's coach after she fell from her horse in competition and died. Due to a release form signed by the parents, the coach (Nunnink) could only be held liable if he was found grossly negligent. The parents attempted to show that the coach was grossly negligent in allowing the rider to compete after injuries sustained by the horse. This court concluded that the Erikssons failed to establish that Nunnink was grossly negligent. The court affirmed the judgment.
|Sligar v. Odell
|233 P.3d 914 (Wash.App. Div. 1, 2010)
In this Washington case, plaintiff Sligar was bitten on the finger by the Odells' dog after Sligar's finger protruded through a hole in the six-foot high chain link fence that separated their two properties. The court found the dispositive question was whether, pursuant to RCW 16.08.040 and .050 (a law that defines when entry onto the property of the dog owner is for a lawful purpose) Sligar's finger was “lawfully in or on ... the property of the” Odells at the time of the dog bite. The court found that the statute provides that consent may not be presumed where the property is fenced. Concerning the common law negligence claim, Sligar contends that the Odells were negligent in failing to protect her from harm because they failed to erect a solid fence on the property boundary until after the bite occurred. However, the court had previously found that it is not unreasonable to keep a dog in a fenced backyard where the dog has not shown any dangerous propensities.
|Colucci v. Colucci
|234 A.3d 1226 (Me. 2020)
|This Maine case is an appeal of a divorce proceeding where one party argues the court erred in awarding the parties' dogs to another. In 2017, Suan Colucci filed a complaint for divorce against her husband, Stephen Colucci. In 2019, the court entered a judgment granting the divorce and awarded both dogs “set aside to [Susan] as her exclusive property.” On appeal by Stephen, this court found that undisputed evidence established that "Louise" the dog was acquired five years before marriage, and thus, was nonmarital property. Because no evidence was presented to which of the parties actually acquired Louise in 2010, the judgment was vacated and remanded for further proceedings to determine ownership of Louise.