|Baughman v. City of Elkhart, TX||Slip copy, 2018 WL 1510678 (E.D. Tex., 2018)||Plaintiff Tammy Baughman filed a complaint on May 31, 2017 seeking relief pursuant to 42 U.S.C. § 1983, alleging a violation of her Fourteenth amendment rights; the Americans with Disabilities Act (ADA), alleging that she was discriminated against; the Fair Housing Amendments Act (FHAA), alleging a failure to make reasonable accommodations; and 42 U.S.C. § 3613. Plaintiff asserts that she is disabled due to a failed back surgery. She also has fibromyalgia, depression, and other health issues. Plaintiff has a seven pound ring tail lemur that she claims is an emotional support animal that improves her quality of life. Plaintiff's lemur bit a mail carrier on December 5, 2012 which left lacerations on the carrier's hand and wrist. Plaintiff then moved to Elkhart, Texas in December 2014 where her lemur bit another person on June 25, 2015. In both instances the lemur was quarantined for 30 days and then returned to Plaintiff. The City of Elkhart enacted an ordinance on October 5, 2015 that bans all non-human primates from the city. Plaintiff claims she requested an accommodation form the City to keep her lemur as an emotional support animal, but her request was denied. The defendants, which include the mayor and city council members, claim the plaintiff never requested an accommodation. Plaintiff further alleges that the defendants "showed deliberate indifference in refusing to give [her] a hearing and defend her lemur,' which violates the FHAA and ADA. On February 15, 2018, Defendants filed a Motion for Summary Judgment seeking a dismissal of all of Plaintiff's claims. Defendants claim that Plaintiff's lemur was involved in two documented attacks in Houston County, Texas and a third in Elkhart. Defendants assert that Plaintiff runs a retail resale shop out of her home and that in the third attack on June 25, 2015, the lemur jumped on a customer in plaintiff's store. Defendants assert that the ordinance was enacted as a legitimate exercise of the City's legislative power and police power. The District court concluded that the defendants are entitled to absolute judicial immunity for their conduct because the act of voting in favor of an ordinance is an undeniable legislative action. As for Plaintiff's 1983 claim, the District Court concluded that she had not shown a genuine issue of material fact concerning whether her due process rights were violated nor does she have a basis for a procedural due process claim. The ordinance is rationally related to the City's legitimate interest in the safety and welfare of its citizens. The ordinance does not violate the equal protection clause of the Fourteenth Amendment. As for Plaintiff's ADA claim, the District Court concluded that the Plaintiff had not shown that the reasonable accommodation that she requested - an exemption from the animal control ordinance - did not place an undue burden on the City of Elkhart. No facts were provided by the Plaintiff that would show that her interest in keeping her lemur outweighs the interest of the City in protecting its citizens. As for Plaintiff's ADA claim, in order to succeed on an ADA claim, there must be some evidence that set the animal apart from an ordinary pet. The Plaintiff failed to show any evidence that her lemur is specifically trained to perform tasks that help her in her daily life. The District Court held that the Defendant's motion for summary judgment is granted and the Plaintiff's complaint is dismissed with prejudice.|
|Manzke v. Jefferson County||Slip Copy, 2018 WL 5095678 (W.D. Wis. Aug. 21, 2018)||Joshua Pernat and Sara Manzke owned property that had four miniature goats and two geese on it. Sara (plaintiff) applied for a zoning variance and a conditional use permit to accommodate her emotional support animals. Jefferson County and the Town of Ixonia denied her applications. Sara then brought forth claims under the Fair Housing Amendments Act and Wisconsin’s Open Housing Act that she was discriminated against by Jefferson County and the Town of Ixonia. Joshua and Sara also sought a notice of removal of a small claims action brought forth by Jefferson County seeking monetary sanctions for the alleged violations of the zoning variance. Jefferson County argued that the plaintiff’s federal reasonable accommodation claim was not ripe because the County never made a final decision with respect to Sara’s applications for a variance and conditional use permit. When the Town of Ixonia voted to recommend that Jefferson County deny the plaintiff’s variance application, the plaintiff withdrew her applications from consideration. Sara argued that the town’s denial “foretold a denial by the County,” and any further appeal to the County would have been fruitless. The Court did not agree. The County had no obligation to follow the town’s recommendation. The Court dismissed plaintiff’s Fair Housing Amendments Act claim for lack of subject matter jurisdiction and accordingly dismissed plaintiff’s state law claim without prejudice. Since Sara was unable to state a federal claim, the Court also held that Sara and Joshua could not remove the small claim by Jefferson County to federal court.|
|People for Ethical Treatment of Animals, Inc. v. Wildlife in Need & Wildlife in Deed, Inc.||Slip Copy, 2018 WL 828461 (S.D. Ind. Feb. 12, 2018)||In this case, the Plaintiff (PETA) filed a complaint for injunctive relief against the Defendants (WIN) alleging violations of the Endangered Species Act (ESA) relating to the declawing of the Defendants' captive Big Cats (lions, tigers, and hybrids). WIN operates as a AWA-USDA licensed wildlife exhibitor and charges the public a fee to directly interact with the Big Cat Cubs. Notably, the court indicates that WIN has been cited for more than 50 times for failing to meet minimum standards under the AWA. Defendants "routinely" declaw the Big Cats, not out of medical necessity, but because it "makes them easier to handle." Testimony showed that two Big Cat Cubs died as the result of complications from declawing and Defendants do not provide post-surgical pain medication or antibiotics. In October of 2017, the court issued a temporary restraining order preventing Defendants from declawing, and, the following December, Plaintiffs filed the present Motion for Preliminary Injunction. The court held a hearing in January 2018 in which the court heard evidence and arguments. In reviewing the factors supporting issuance of a preliminary injunction, the court found there was a likelihood of success in proving the declawing and baby cat "play" time constituted takings under the ESA. In addition, there were no adequate remedies available at law and the court held irreparable harm would result from the declaws. Thus, the court GRANTED Plaintiff’s motion for preliminary injunction.|
|DeLany v. Kriger||Slip Copy, 2019 WL 1307453 (Tenn. Ct. App. Mar. 20, 2019)||This unpublished Tennessee case concerns a veterinary negligence action. The owners of a cat filed a wrongful death complaint against the cat's veterinarian and animal hospital after the cat was killed when the veterinarian wrongly placing a feeding tube into the cat's trachea rather than her esophagus, causing the cat to aspirate and die when she was fed through the tube. The trial court held that the defendants were not liable because the cat was so ill she was likely to die anyway, and thus dismissed the complaint. The cat was 10-years old when she was brought in because she was acting a "little slow" and had not eaten in a couple days. Through discovery and at trial, it was observed that the cat had a septic abscess on her liver with a 79% mortality rate. On appeal here, this court first took issue with the trial court's finding for causation in the negligence analysis. This court found that the evidence was "undisputed" that the cat died as a result of the improperly placed feeding tube, which was further supported by x-rays showing the feeding tube in the trachea rather than the esophagus. Because the trial court did not find causation, damages were not addressed. Here, the court noted that domestic pets are considered private property in Tennessee. The law is settled that a pet owner can recover for the wrongful death of his or her pet in the state. Further, Tenn. Code Ann. § 44-17-403 provides that a dog or cat owner is entitled to recover up to $5,000 in noneconomic damages for "the unlawful and intentional, or negligent, act of another or the animal of another . . ." but that no award of noneconomic damages is permitted in “an action for professional negligence against a licensed veterinarian.” While Mr. DeLany testified he considered the cat's fair market value at $5,000, another veterinarian joined as a defendant testified that a healthy cat has a value of around $75 and a sick cat has a value of $0.40. The appellate court stated that the calculation of damages is a matter for the fact-finder, and the case was remanded to the trial court to determine the appropriate amount of economic damages. This would include, but not be limited to, the medical bills incurred for Callie's treatment and the cost of replacing Callie, said the court.|
|Goodwin v. Crawford Cty., Georgia||Slip Copy, 2019 WL 2569626 (M.D. Ga. June 21, 2019)||This instant action is a motion to dismiss by Defendant Sims in a § 1983 action and state law claims by plaintiff Goodwin against several Crawford County, Georgia officials. The case started with the shooting of plaintiff's dog, allegedly by Defendant Crawford County Officer Neesmith. After the dog was shot in his driveway, plaintiff alleges that Neesmith consulted another officer named Hollis who arrived on scene. Neesmith then called Defendant Sims, who was an employee of the Crawford County Health Department. Sims explained to Neesmith by phone that Plaintiff Goodwin could be liable for the cost of a rabies shot if the dog's head was not removed and that the cost of the shot was approximately $20,000. After this call, Hollis order plaintiff to cut off his own dog's head to be tested for rabies or face criminal charges and the cost of the rabies shot. In the presence of plaintiff's wife and children, the plaintiff relented and cut off the dog's head with a knife, but was too emotionally distraught to take the dog's head to the Crawford County Health Department (Plaintiff Dakon did so). As to only Defendant Sims' motion to dismiss, this court found that her economic coercion was not arbitrary and thus did not violate plaintiff's substantive due process rights. Further, the court found that Sims did not actually coerce or force plaintiff to do the decapitation. Regarding plaintiff's intentional infliction of emotional distress against Sims, the court found that Sims' alleged use of "financial pressure" did not amount to extreme and outrageous conduct. Instead, the court said "she did her job," which was to communicate the rabies control procedures and did not actually require plaintiff to personally decapitate his dog. Accordingly, the Court granted Sims' Motion to Dismiss.|
|Theis v. Yuba County Sheriff's Department||Slip Copy, 2019 WL 3006261 (E.D. Cal. July 10, 2019)||The Plaintiffs allege that their cat, named Pizza, was unlawfully euthanized at Yuba County Animal Care Services shelter in Olivehurst, California on or about February 9, 2018. Pizza went missing on or about February 9, 2018 and Plaintiffs found out later that same day that a neighbor had found the cat and brought it to the Yuba County animal shelter. The Plaintiffs attempted to contact the shelter, but it had already closed for the evening. The next morning around 9:30 a.m., the Plaintiffs arrived at the shelter and learned that Pizza had been euthanized as early as 5:00 p.m. the night before. Defendant Barnhill, the shelter’s supervising officer, informed the Plaintiff’s that Pizza had been injured, however, the neighbor who brought the cat to the shelter without knowing it was the Plaintiffs’ described Pizza as looking healthy. The Plaintiffs contend that Pizza’s euthanization falls within an ongoing pattern and practice of abuse and failure to follow state and federal law. Plaintiffs filed their original complaint on October 1, 2018. The Defendants removed the case to federal court. Plaintiff’s asserted four claims in their First Amended Complaint: (1) the failure to perform mandatory duties in violation of California Government Code section 815.6, (2) petition for a writ of mandate under California Code of Civil Procedure section 1085, (3) violation of the plaintiff’s Fourteenth Amendment substantive due process rights under 42 U.S.C. section 1983, (4) negligence under California common law. The Defendants moved to dismiss Plaintiff’s First Amended Complaint and alleged that the Plaintiff’s did not plead facts sufficient to show that Barnhill engaged in unlawful conduct or to establish a substantive or procedural due process violation. The Court, however, granted the Plaintiffs leave to amend their complaint as to the section 1983 claim. The Court declined to assert supplemental jurisdiction over the state law claims, which were the Plaintiff’s first, second, and fourth claims since the Plaintiff’s had conceded that their federal claim by requesting to amend their complaint. As a result, the Court reviewed remaining claims to determine whether they may be included in any amended complaint or whether leave to amend would be futile. The Court determined that granting Plaintiff’s leave to file a second amended complaint would not be futile on all of their claims except for the petition for writ of mandate claim. California’s Civil Procedure Code section 1085 does not apply to federal courts and, therefore, the Plaintiff’s leave to amend this claim would be futile. Ultimately, the Court ordered Plaintiff’s third cause of action for violations of their Fourteenth Amendment substantive and procedural due process rights be dismissed with leave to amend, the Plaintiff’s state law claims in their first, second, and fourth causes of action be dismissed with leave to amend to the extent consistent with the order, and denied the Defendant's motions to strike Plaintiffs' punitive damages claim. Plaintiffs were required to file a second amended complaint within 21 days of the date the order was filed if they wished to amend their complaint.|
|LaRosa v. River Quarry Apartments, LLC||Slip Copy, 2019 WL 3538951 (D. Idaho Aug. 3, 2019)||Plaintiffs, Robert and Iva LaRosa filed this action in August of 2018, alleging that the defendants violated their rights under the Fair Housing Act ("FHA"). The Court dismissed the complaint and the Plaintiffs filed an amended complaint. The Plaintiffs had applied to live at River Quarry Apartments in August of 2017. They requested a reasonable accommodation to keep their dog at the apartment without paying a fee. The Plaintiffs provided a copy of a note from a nurse practitioner stating that the companion dog helps manage Mr. LaRosa’s post-traumatic stress disorder. The Plaintiffs were approved for the apartment but told that their reasonable accommodation request was still being processed and received forms to fill out regarding the reasonable accommodation. River Quarry required Mr. LaRose’s doctor to fill out a form verifying the need for an assistance animal. Rather than completing the form, the plaintiffs provided a letter from Mr. LaRosa’s primary care physician which stated that in the doctor’s opinion, an emotional support animal would help mitigate the symptoms that Mr. LaRose was experiencing. River Quarry insisted on speaking with Mr. LaRose’s doctor directly to verify the information that the plaintiffs had given. After Kirk Cullimore, an attorney on behalf of River Quarry, spoke with the doctor, River Quarry wrote a letter to the Plaintiffs denying their request for a reasonable accommodation stating that the doctor declined to verify that Mr. LaRosa met the two prong test that one must be handicapped and there must be a nexus between the handicap and the need for the animal. Soon after this, Mr. LaRosa saw his primary care physician and had the actual form completed by his doctor and turned it in to River Quarry. Kirk Cullimore believed that the doctor’s signature on the form was forged and called Mr. LaRose’s doctor to speak with him again. The doctor’s secretary informed Cullimore that the signature was genuine. Mr. and Mrs. LaRosa argued that they were injured by the discrimination of the Defendants in violation of the FHA. The Court denied the Plaintiffs claim under the FHA because they did not sufficiently allege that the Defendants refused to make the requested accommodation. River Quarry allowed the dog to stay in the apartment while their request for an accommodation was reviewed. The Court stated that housing providers are granted a meaningful opportunity to investigate a request for an accommodation. Housing providers do not have to immediately approve a request for an accommodation right away. River Quarry ended up approving the request within 45 days after the initial request. The Court held that this was not an unreasonable delay considering that River Quarry did not have sufficient information to make a determination until after Mr. LaRosa’s doctor completed the verification form. Prior to that the doctor’s letter and the phone call between Cullimore and the doctor did not reveal enough information for River Quarry to make a determination on the accommodation. The Plaintiffs, however, succeeded on their interference claim. The LaRosas were engaged in a protected activity when they applied for a reasonable accommodation and they sufficiently alleged that they were subjected to adverse action and that a causal link existed between the protected activity and the adverse action. The Defendants misrepresented the contents of Mr. Cullimore and Mr. LaRosa’s doctor’s conversation. The Court ultimately denied in part and granted in part the Defendant’s motion to dismiss and denied in part and granted in part the motion to dismiss claims against Kirk Cullimore and his law office.|
|ZOOLOGICAL SOCIETY OF CINCINNATI v. THE GORILLA FOUNDATION||Slip Copy, 2019 WL 414971 (N.D. Cal. Feb. 1, 2019)||In 1991, the plaintiff, Zoological Society of Cincinnati, transferred a western lowland Gorilla named Ndume who had been living at the Zoo to The Gorilla Foundation (TGF) in Northern California. Ndume was sent to TGF in hopes that he and another gorilla there, named Koko, would mate and produce offspring. That never happened. In 2015, the Zoo and TGF entered into a new written agreement which expressly superseded any prior agreements. The agreement provided that upon the death of Koko, Ndume was to be placed at an institution that is accredited by the Association of Zoos and Aquariums (AZA). TGF is not an AZA accredited institution. KoKo died and the Zoo now wants to transfer Ndume back to the zoo. TGF has not made arrangements for a transfer to be carried out. The Zoo brought this suit seeking specific enforcement of the 2015 agreement and contends that it is entitled to summary judgment in its favor. TGF argued that the agreement was illegal and unenforceable because the transfer would harm Ndume. TGF identified a number of potential risks, particularly, that Ndume has a Balantidium Coli infection. TGF contended that stress could trigger an outbreak which could be fatal. The court was unpersuaded and stated that TGF signed the 2015 agreement less than 3 years before the present dispute arose and that all of the circumstances that TGF contends makes compliance with the agreement risky existed when the agreement was negotiated. TGF also contended that the agreement is impracticable due to unreasonable (non-monetary) costs. However, the Court again stated that TGF knew these facts and circumstances when it entered into the agreement. The Court granted the Zoo's motion for summary judgment and denied TGF's request for a continuance to permit it to take discovery. The parties were ordered to confer and attempt to reach a consensus on as many aspects of the protocol for transporting Ndume to the Zoo as possible. If within 30 days of the date of the order the parties cannot reach a consensus, they will have to file a joint statement setting out any issues on which they have reached a stalemate.|
|Nat. Res. Def. Council, Inc. v. U.S. Dep't of the Interior||Slip copy, 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020)||This case centers on the Trump Administration's new interpretation of incidental takings under the Migratory Bird Treaty Act (MBTA). In December 2017, the Principal Deputy Solicitor of the U.S. Department of the Interior (DOI) issued a memorandum that countered almost 50 years of the agency’s interpretation of “takings” and “killings” under the MBTA (the "Jorjani Opinion"). According to the DOI in that opinion, the MBTA does not prohibit incidental takes or kills because the statute applies only to activities specifically aimed at birds. Environmental interest groups and various states brought three now-consolidated actions to vacate the memorandum and subsequent guidance issued in reliance on the memorandum. Both parties moved for summary judgment. In essence, the question before the court is whether DOI’s interpretation of the MBTA must be set aside as contrary to law under the Administrative Procedure Act (APA) or upheld as a valid exercise of agency authority. The court first observed that, from the early 1970s until 2017, the DOI interpreted the MBTA to prohibit incidental takes and kills, imposing liability for activities and hazards that led to the deaths of protected birds, irrespective of whether the activities targeted birds or were intended to take or kill birds. To conserve migratory birds and ensure compliance with the MBTA’s prohibition on “incidental take,” the DOI's Fish & Wildlife Service (FWS) used a range of strategies: sending companies notice of the risks their facilities and equipment posed to migratory birds; issuing industry guidance; informally negotiating remediation efforts; and issuing permits authorizing takes. In fact, the court noted that the agency prioritized a cooperative approach with industry over enforcement actions. In 2015, the DOI formalized this approach by undergoing a rulemaking process regulating incidental take. In early 2017, the DOI's Solicitor then issued a memorandum that reaffirmed the long-standing interpretation that the MBTA prohibited incidental take that became known as the "Tomkins Opinion." Once presidential administrations changed and Tomkins departed, the new Principal Deputy Solicitor issued a new memorandum that stated any agency comments, recommendations, or actions not be based on the principle that the MBTA prohibited incidental take (the Jorjani Opinion). This triggered the instant lawsuits by conservation organizations and several states. On July 31, 2019, the lower court found that the plaintiffs sufficiently demonstrated standing and denied the DOI's motion to dismiss. On appeal here, this court first noted that both parties agree with longstanding precedent that the MBTA's misdemeanor provision creates strict liability. In contrast, the Jorjani Opinion contends that the criminal penalty provisions under the MBTA is limited to only acts directed at birds and those activities whose purpose is to "render an animal subject to human control" like hunting or capturing. In reviewing the Jorjani Opinion under the lessened deference standard afforded by administrative law, this court found the DOI overstated the any conflicts in interpretation of the MBTA among circuit courts (a "dramatized representation"). In addition, the court found the Jorjani Opinion "is a recent and sudden departure from long-held agency positions backed by over forty years of consistent enforcement practices." The court found the Jorjani Opinion was an unpersuasive interpretation of the MBTA's unambiguous prohibition on the killing of birds and is contrary to the plain language of the law itself. Such an interpretation runs contrary to legislative history, decades of enforcement practices by the DOI, and caselaw. Because the agency's action was held unlawful under the APA, the court found the only appropriate remedy was vacatur. Thus, Plaintiffs’ motions for summary judgment were granted, and Interior’s motion was denied.|
|Los Altos Boots v. Bonta||Slip Copy, 2021 WL 5234864 (E.D. Cal. Nov. 10, 2021)||This unpublished California case considers the application of the recently amended statute (Penal Code section 653o), which makes it "unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of an iguana, skink, caiman, hippopotamus, or a Teju, Ring, or Nile lizard" beginning January 1, 2022. The instant case concerns the importation of some caiman products. The businesses bringing the suit seek the enjoin the caiman prohibition while the lawsuit is pending. While the state contends that the plaintiffs lack standing because the claim is unripe, the court found the three-part standing test was satisfied. The court also found that the extraordinary remedy of a preliminary injunction was justified where plaintiffs are likely to succeed on the merits, the plaintiffs will suffer irreparable economic harm if section 653o goes into effect on January 1st that cannot not be mitigated by damages, and the balance of harms favors plaintiffs. Specifically, the court found that section 653o will create a "clear conflict between that section and the Endangered Species Act" and plaintiffs have demonstrated a serious harm to their businesses. The court declined to "wade into a policy dispute "whether California's or the United States’ wildlife protections are superior." The motion for a preliminary injunction was granted. The defendants, their employees, agents, and successors in office are enjoined from enforcing California Penal Code sections 653o(c) and 653r in connection with the importation, possession, or sale of caiman bodies, parts, or products until the final disposition of this case.|
|Bermudez v Hanan||Slip Copy, 44 Misc.3d 1207(A), 2013 WL 5496124 (Table) (N.Y.City Civ.Ct.),||
This unpublished small claims court opinion concerns a dog bite. Claimant sought to recover monetary damages for medical bills and related expenses she incurred as a result of personal injuries suffered when Defendant's dog named "Chino" bit her on the face. At issue is whether Chino had vicious propensities and whether Defendant was aware of or had knowledge of those vicious propensities. The court found that Plaintiff did not raise an issue of fact as to the dog's vicious propensities. The court found compelling evidence that Chino was certified by the Good Dog Foundation to visit healthcare facilities as a therapy dog. As a result, the court dismissed the motion.
|Kollman v. Vilsack||Slip Copy, No. 8:14-CV-1123-T-23TGW, 2016 WL 4702426 (M.D. Fla. Sept. 8, 2016)||
The Animal Welfare Act (AWA) (7 U.S.C. §§ 2131–2159) regulates the housing, sale, transport, treatment, and exhibition of animals. Defendants, United States Secretary of Agriculture, licensed Plaintiff, Lancelot Kollman, as an exhibitor under the AWA. However, after the death of two lions and Kollman’s failure to contest charges, the Secretary revoked Kollman's license. Still, Hawthorn, a company that holds an exhibitor license, hired Kollman to train a “tiger act” for performance at circuses throughout the United States. Hawthorn then asked Kollman to travel with the tigers and perform the act. However, the USDA received complaints about Kollman's participation in the act, despite having his license revoked. The USDA investigated and determined that Kollman was prohibited from exhibiting animals as an employee of Hawthorn. Kollman, sued Thomas J. Vilsack, the United States Secretary of Agriculture, and Chester A. Gipson, a deputy administrator of animal care. Kollman sued for a declaration that, at a circus maintained by his employer, Hawthorn Corporation, he could publicly perform the tiger act. The Defendants moved for summary judgment. The United States District Court, M.D. Florida, Tampa Division, held that the Defendants' motion for summary judgment was Granted. The court reasoned that Kollman was barred from presenting animals on behalf of Hawthorn because regardless of his status as a Hawthorn employee, Section 2.10(c) of the Animal Welfare Act clearly prohibited Kollman, as an individual with a revoked license, from exhibiting an animal. Secondly, Section 2.10(c) was unambiguous.
|ANIMAL LEGAL DEFENSE FUND, CENTER FOR FOOD SAFETY, SHY 38, INC. & HOPE SANCTUARY, Plaintiffs, v. LAURA KELLY & DEREK SCHMIDT, Defendants||Slip Copy, No. CV 18-2657-KHV, 2020 WL 362626 (D. Kan. Jan. 22, 2020)||The Animal Legal Defense Fund (“ALDF”), Center for Food Safety (“CFS”), Shy 38, Inc. and Hope Sanctuary are interest groups that aim to protect and advocate for animals and the environment. These interest groups filed suit on December 4, 2018 against the Governor and Attorney General of Kansas seeking a declaratory judgment that the Kansas Animal and Field Crop and Research Facilities Protect Act was unconstitutional. The Act made it a crime to damage or destroy an animal facility or an animal, exercise control over an animal facility or animal from a facility, take photos or videos at an animal facility that that is not open to the public, and remain at an animal facility against the owner’s wishes. Both parties filed cross-motions for summary judgment. ALDF desired to conduct an undercover investigation in Kansas but refrained from doing so out of fear of criminal prosecution under the Act. The Plaintiffs alleged that the Act violated their First Amendment right to freedom of speech. To be subject to criminal prosecution under subsection (a) of K.S.A. 47-1827, the ALDF investigator had to cause physical damage to an animal or the animal facility or its property. The Plaintiffs did not allege that the ALDF investigator intended to cause such physical damage so the ALDF investigator was not at risk of criminal prosecution under the provision and, therefore, ALDF did not demonstrate standing to challenge subsection (a). ALDF alleged sufficient injury to support standing to challenge subsections (b), (c), and (d) of the Act. CFS, Shy 38, and Hope Sanctuary also had standing to challenge those subsections. The Court found that subsections (b), (c), and (d) regulated speech rather than conduct and was content-based rather than neutral-based. The Court ultimately concluded that the Plaintiffs were entitled to summary judgment on their claim that subsections (b), (c), and (d) violated the First Amendment. The Defendants were entitled to summary judgment on their lack of standing claim for subsection (a) and K.S.A. 47-1828.|
|The South African Predator Breeders Association v. The Minister of Environmental Affairs and Tourism||South African Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism (1900/2007)  ZAFSHC 68 (11 June 2009)||This application is about the validity of regulations designed to regulate the hunting of lions that were bred in captivity.|
|State ex rel Del Monto v. Woodmansee||State ex rel Del Monto v. Woodmansee, 72 N.E.2d 789 (Ohio 1946).||
In an action in mandamus, relator property owner sought a writ ordering respondent building commissioner of the City of Euclid to issue a building permit for the construction of a store building. The store building would be used for the slaughter of chicken. The state tired to oppose the building by stating the use would be against Ohio's cruelty to animal statute. The Court ruled that the term "animals" as thus used meant a quadruped, not a bird or fowl. Thus, the court ruled in favor of the property owner in his mandamus action against the commissioner.
|State v. Allison||State v. Allison, 90 N.C. 733 (1884).||
The defendant was indicted at spring term, 1883, for a violation of the act of assembly in reference to cruelty to animals. The indictment is substantially as follows: The jurors, &c., present that the defendant, with force and arms, &c., "did unlawfully and wilfully overdrive, torture, torment, cruelly beat and needlessly mutilate a certain cow, the property of, &c., by beating said cow and twisting off her tail," contrary, &c. The jury found the defendant guilty, and on his motion the judgment was arrested and the state appealed. The Supreme Court reversed the lower court's descision to arrest the judgment.
|State v. Avery||State v. Avery, 44 N.H. 392 (1862)||
The Defedant was convicted of the charge of cruelty to animals for the beating of his own horse. The Defendant appealed this descision to the Supreme Court of New Hampshire on two grounds. First, the lower court failed to instructe the jury that intoxication was a defense to the charge. Second, the lower court instructed the jury that the beating of an animal for training may at some point become malicious and illegal under that statute. The Court held the lower court was not in error and affirmed the decision.
|State v. Beekman||State v. Beckman, 27 N.J.L. 124 (1858)||
The defendant was convicted, in the Somerset Oyer and Terminer, of malicious mischief. The indictment charges that the defendant unlawfully, willfully, and maliciously did wound one cow, of the value of $ 50, of the goods and chattels of J. C. T. The defendant appealed the conviction contending that the act charged in the indictment didn't constitute an indictable offence in this state. The Court held that the facts charged in this indictment constitute no indictable offence, and the Court of Over and Terminer should be advised accordingly.
|State v. Browning||State v. Browning, 50 S.E. 185 (S.C. 1905).||
The defendant was convicted of cruelty to animals for the overworking of his mule. The defendant appealed the desicision by the lower court to the circuit court. The circuit court affirmed the lower court and the defendant agained appealed. The Supreme Court of South Carolina held that jursidiction was proper against the defendant and the evidence supported a finding of ownership by the defendant. Thus, the Court affirmed the lower court's decision.
|State v. Bruner||State v. Bruner 12 N.E. 103 (Ind. 1887).||
The Defendant was charged with unlawfully and cruelly torturing, tormenting, and needlessly mutilating a goose under Ind. Rev. Stat. § 2101 (1881). At issue was the ownership status of the goose. The affidavit alleged that the goose was the property of an unknown person, and thus was the equivalent of an averment that the goose was a domestic fowl, as required by Ind. Rev. Stat. § 2101 (1881). The court noted that whenever the ownership of the animal is charged, such ownership becomes a matter of description and must be proved as alleged. Interestingly, the court in this case also observed that there is "a well defined difference between the offence of malicious or mischievous injury to property and that of cruelty to animals," with the latter only becoming an indictable offense within recent years. The Supreme Court held that the motion to quash should have been overruled and reversed and remanded the case for further proceedings.
|State v. Claiborne||State v. Claiborne, 505 P.2d 732 (Kan. 1973)||
Animals -- Cruelty to Animals -- Cockfighting -- Gamecocks Not Animals -- No Statutory Prohibition Against Cockfights -- Statute Not Vague. In an action filed pursuant to K. S. A. 60-1701 in which the state seeks a construction of K. S. A. 1972 Supp. 21-4310 (cruelty to animals) making its provisions applicable to cockfighting, the record is examined and for reasons appearing in the opinion it is held: (1) Gamecocks are not animals within the meaning or contemplation of the statute. (2) There is no clear legislative intent that gamecocks be included within the category of animals protected by the statute. (3) The statute does not apply to or prohibit the conducting of cockfights. (4) As construed, the statute is not so vague, indefinite and uncertain as to violate the requirements of due process.
|State v. Marsh||State v. Marsh, 823 P.2d 823 (Kan. Ct. App. 1991)||
Without defendant's consent or knowledge, a state animal inspector surveyed defendant's property on two occasions. Without prior notice to or consent of defendant, the State seized all of defendant's dogs. The court stated that warrantless searches and seizures had to be limited by order, statute, or regulation as to time, place, and scope in order to comport with the requirements of the Fourth Amendment. Because the Act and the order failed to so limit the search, the court concluded that it was unreasonable and unlawful.
|State v. Neal||State v. Neal, 27 S.E. 81 (N.C. 1897)||
The defendant was convicted under North Carolina's cruelty to animal statute for the killing of his neighbor's chickens. The defendant appealed to the Supreme Court because the trial court refused to give some of his instructions to the jury. The Supreme Court that the lower court was correct and affirmed.
|State v. Pierce||State v. Pierce, 7 Ala. 728 (1845)||
The Defendant was charge with cruelty to animals for the killing of a certain spotted bull, belonging some person to the jurors unknow. The lower court found the Defendant guilty. The Defendant then appealed to the Supreme Court seeking review of whether the defense of provocation could be used. The Court determined the answer to be yes. Thus the Court reversed and remanded the case.
|State v. Roche||State v. Roche. 37 Mo App 480 (1889)||
The defendants were convicted and sentenced upon an information under section 1609, Revised Statutes of 1879, charging them with unlawfully, wilfully and cruelly overdriving a horse, and thereupon prosecute this appeal. The court held that the evidence that a horse was overdriven does not warrant a conviction under Revised Statutes, 1879, section 1609, in the absence of proof, that the overdriving was wilful and not accidental. Thus, the court reversed the lower court.
|Stephens v. State||Stephans v. State, 3 So. 458 (Miss. 1887) (Arnold J. plurality).||
The Mississippi Cruelty to Animal statute was applied to the Defendant who killed several hogs that were eating his crops. The lower court refused to instruct the Jury that they should find him not guilty, if they believed that he killed the hogs while depredating on his crop and to protect it, and not out of a spirit of cruelty to the animals. The Supreme Court of Mississippi found it to be an error by the court to refuse to give such instructions because if the defendant was not actuated by a spirit of cruelty, or a disposition to inflict unnecessary pain and suffering, he was not guilty under the statute.
|Texas Attorney General Opinion No. JC-0048||Tex. Atty. Gen. Op. JC-0048||
Texas Attorney General Opinion regarding the issue of whether city ordinances are preempted by statutes that govern the treatment of animals. Specifically, the opinion discusses pigeon shoots. The opinion emphasizes that organized pigeon shoots are prohibited under Texas cruelty laws but that present wildlife laws allow the killing of feral pigeons.
|Texas Attorney General Letter Opinion 94-071||Tex. Atty. Gen. Op. LO 94-071||
Texas Attorney General Opinion regarding the issue of whether staged fights between penned hogs and dogs constitutes a criminal offense. The Assistant Attorney General deemed these staged fights as violating the criminal cruelty laws.
|United States v. Gideon||United States v. Gideon, 1 Minn. 292 (1856).||
The Defendant was convicted in the District Court of Hennepin county for the unlawfully malice killing of a dog. The Defendant appealed the descision to the Supreme Court of Minnesota to determine whether a dog has value and thus would be cover by the Minnesota cruelty to animal statute. The Supreme Court of Minnesota found that a dog has no value and would not be covered by the statute.
|In re Marriage of Piskalns||Unpublished Disposition, 344 Mont. 555, 186 P.3d 877 (Table) (2008)||The parties both appealed from the district court’s orders distributing the marital estate upon the parties’ divorce. Kara Pilskalns claimed that the court erred when it granted ownership of Maggie, the couple’s dog, to Andrew Pilskalns. This court affirms the decision, declining to use the best interest of the child standard for the distribution of pets as they are marital property.|
|Department of Local Government and Regional Development v Emanuel Exports Pty Ltd||Western Australia Magistrates Court, 8 February 2008, Magistrate C.P. Crawford||
The central allegation was that the defendants transported the sheep in a way likely to cause unnecessary harm. Magistrate Crawford found that the sheep, some of which died from inanition, suffered distress and harm and that this harm was unnecessary. Proof of actual harm, however, was unnecessary as it only had to be shown that it was likely that the sheep would suffer harm. This required evidence pointing only to the conditions onboard the ship, and voyage plan, as at the first day. The defences of necessity and honest and reasonable belief were both dismissed.
|Whaling in the Antarctic||Whaling in the Antarctic (Austl. v. Japan), 2010 Judgment.||In June 2010, Australia commenced proceedings against Japan at the International Court of Justice (ICJ), alleging that Japan has continued an extensive whaling program in breach of its obligations as a signatory to the International Convention for the Regulation of Whaling (ICRW). At issue was the moratorium on commercial whaling agreed upon in the 1980s. According to Australia, though Japan claimed to be killing whales purely for scientific reasons, the true purpose of the program was commercial. Japan did not deny that it was killing whales in the Antarctic, but claimed instead that because the ICRW grants each nation state the right to issue licenses for scientific whaling as it sees fit, Japan’s whaling program was legal. The ICJ ruled that Japan's Antarctic whaling program was not actually for scientific whaling and must end.|
|R. v. Senior|| 1 QB 283||
Held: The word "wilfully", when used in the context of an offence prohibiting cruelty to children, "means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it" ( per Lord Russell of Killowen C.J.). Note: the word "wilfully" is occasionally an element of animal welfare offences, such as that of wilfully, without any reasonable cause or excuse, administering a poisonous drug or substance to an animal (Protection of Animals Act 1911, s 1(1)(d)).
|Johnson v. Needham|| 1 KB 626||
The Court upheld a decision of local justices to dismiss an information that the defendant "did cruelly ill-treat, abuse, and torture a certain animal" contrary to the Cruelty to Animals Act 1849, s. 2 (1). The Act made it an offence to ill-treat, abuse, or torture an animal, and thereby established three separate offences from which the prosecutor should have elected. Note: Although the 1949 Act has been repealed, similar language appears in the Protection of Animals Act 1911, s 1(1)(a), and presumably the same reasoning applies to that statutory provision.
|Waters v. Meakin|| 2 KB 111||
The respondent had been acquitted of causing unnecessary suffering to rabbits (contrary to the Protection of Animals Act 1911, s. 1(1)) by releasing them into a fenced enclosure from which they had no reasonable chance of escape, before setting dogs after them. Dismissing the prosecutor's appeal, the Divisional Court held that the respondent's conduct fell within the exception provided for "hunting or coursing" by sub-s. (3) (b) of s. 1of the 1911 Act. From the moment that the captive animal is liberated to be hunted or coursed, it falls outwith the protection of the 1911 Act, irrespective of whether the hunting or coursing is humane or sportsmanlike.
|Nye v. Niblett|| 1 KB 23||
Three boys who had killed two farm cats were charged with an offence which could only have been committed if the cats were kept for a "domestic purpose". Local justices had acquitted the boys, in part because there no evidence was before them that the cats that were killed had been kept for a domestic purpose. Allowing the prosecutor's appeal, the Divisional Court held that there was no need to prove that a particular animal was in fact kept for a domestic purpose if it belonged to a class of animals which were ordinarily so kept.
|Barnard v. Evans|| 2 KB 794||
The expression "cruelly ill-treat"" in s 1(1)(a) of the Protection of Animals Act 1911 means to "cause unnecessary suffering" and "applies to a case where a person wilfully causes pain to an animal without justification for so doing". It is sufficient for the prosecution to prove that the animal was caused to suffer unnecessarily, and the prosecution does not have to prove that the defendant knew that his actions were unnecessary.
|McQuaker v. Goddard|| 1 KB 687||
A camel is not to be regarded as a wild animal by the common law as a camel 'is, in all countries, a domestic animal, an animal that has become trained to the uses of man, and a fortiori accustomed to association with man.' Whether an animal is to be regarded as wild or domestic is a question of law, and is to be judged according to the genus or class of which it belongs, not the characteristics of the individual animal.
|Re Weaver; Trumble and Animal Welfare League of Victoria|| VR 257||
As part of her will, a testatrix left the yearly interest from a capital sum to the benefit of the Animal Welfare League of Victoria. After consideration of the objects of the League, the Court found that the League's activities were charitable and that even if its attention was not devoted to caring for sick animals in need of medical attention, this would not deprive the League's purpose of its charitable intention. The gift was, therefore, deemed a charitable gift.
|Rowley v. Murphy|| 2 QB 43||
A deer being hunted with a pack of hounds jumped onto a road and fell under a stationery vehicle. Members of the hunt dragged the deer from under the vehicle to a nearby enclosure, where the Master of the hunt slit the deer's throat and killed it. The Divisional Court held that the Master could not be convicted of an offence of cruelty under the 1911 Act because, for the purposes of that Act, which protects only captive and domestic animals, a mere temporary inability to escape did not amount to a state of captivity.
|Hopson v. DPP|| C.O.D. 229||
The owner of a bird of prey had kept it in a wire aviary for at least six weeks, during which it had injured itself by repeatedly flying into the wire mesh. Having been convicted on these facts of an offence of cruelly ill-treating the bird contrary to the first limb of s 1(1)(a) of the Protection of Animals Act 1911, he appealed, contending that under that limb, unlike the second limb, he should only have been convicted if he was guilty of a positive act of deliberate cruelty. Dismissing the appeal, the Divisional Court held that a person could be guilty of cruel ill-treatment of an animal he was responsible for by allowing it to remain in a situation where it was continuing to injure itself, even if he did not desire to bring about the harm.
|Oshannessy v Heagney|| NSWSC 482||
The case focuses primarily on the procedural requirements for stating a case. However, there is also discussion concerning what are the appropriate steps that a motor vehicle driver, who has hit and injured an animal with their vehicle, must take. In this case, the trial judge found that a refusal to stop and inspect the animal did not constitute a failure to take reasonable steps to alleviate that animal's pain.
|Holland v Crisafulli|| QSC 199||
A dog, on two separate occasions, entered residential premises, turned over a cage and killed a guinea pig. The applicant claimed that this was insufficient evidence for the dog to be declared 'dangerous'. The judge found that a dog's propensity to pursue one animal should not be distinguished from a propensity to pursue all animals and that the finding of the dog as 'dangerous' should stand.
|Fleet v District Court of New South Wales|| NSWCA 363||
The appellant's dog was removed by police officers and later euthanised. The dog was emaciated and suffering from numerous ailments. The appellant was charged and convicted with an animal cruelty offence and failure to state his name and address when asked. On appeal, it was found that the court had failed to address the elements of the animal cruelty offence and that the charge of failing to state name and address could not stand.
|Takhar v Animal Liberation SA Inc|| SASC 400||
An ex parte injunction was granted against the applicants preventing distribution or broadcasting of video footage obtained while on the respondent's property. The applicants claimed they were not on the land for an unlawful purpose and that they were there to obtain evidence of breaches of the Prevention of cruelty to Animals Act 1985 (SA). The injunction restraining distribution or broadcasting of the footage, which was applicable to the applicants only, was removed on the balance of convenience as the media outlets were at liberty to broadcast.
|Perpetual Trustees Tasmania Ltd v State of Tasmania|| TASSC 68||
A testatrix bequeathed a part of her estate to be used in support of 'animal welfare'. It was held that this constituted a charitable trust as the purpose was so predominantly charitable that the intention was to be assumed and that even if that portion of the estate could be used for non-charitable purposes, this was in a manner allowed under the Wills Act 1992 (Tas).
|Brayshaw v Liosatos|| ACTSC 2||
The appellant had informations laid against him alleging that he, as a person in charge of animals, neglected cattle 'without reasonable excuse' by failing to provide them with food. The appellant had been informed by a veterinarian that his treatment of the cattle was potentially a breach of the Animal Welfare Act 1992 (ACT) and that they were in poor condition. The evidence admitted did not rule out the possibility that the appellant's feeding of the cattle accorded with 'maintenance rations' and the convictions were overturned.
|Taylor v. RSPCA|| EWHC Admin 103||
Two women, who had been disqualified from keeping horses by a court, transferred ownership of the horses to their niece, but had continued to make arrangements for the accommodation of the horses and to provide food and water for them. The women were convicted in the Magistrates' Court of the offence of "having custody" of the horses in breach of the disqualification order, and appealed. Dismissing the appeal, the Divisional Court held that, what amounted to "custody" was primarily a matter of fact for the lower court to decide, and that the local justices had been entitled to conclude that, notwithstanding the transfer of ownership, the two women had continued to be in control, or have the power to control, the horses.
|Joyce v Visser|| TASSC 116||
The appellant was convicted of failing to provide food and water to dogs who were chained to a spot. Citing the extreme nature of the neglect and the need for general deterrence, the trial judge sentenced the appellant to three months' imprisonment. On appeal, the appellate judge found the sentence to be manifestly excessive and reduced the sentence.
|Pearson v Janlin Circuses Pty Ltd|| NSWSC 1118||
The defendant deprived an elephant in a circus of contact with other elephants for years. On a particular day, the defendant authorised three other elephants to be kept in the proximity of the elephant for a number of hours. It was claimed that this act constituted an act of cruelty as it caused distress to the elephant. On appeal, it was determined that mens rea was not an element of a cruelty offence under the statute.