Prior Animal Law Cases of the Month

Summary: This page provides past cases highlighted on the front page of the website as recent cases. The month and year of publication are listed. Short summaries and links to the cases are provided.

Prior Animal Law Cases of the Month

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

 

August 2020

Declawing of Big Cats and separating cubs from mothers prematurely at roadside zoo constitutes taking under ESA. People for Ethical Treatment of Animals, Inc. v. Wildlife in Need & Wildlife in Deed, Inc., N --- F.Supp.3d ----, 2020 WL 4448481 (S.D. Ind. Aug. 3, 2020). Wildlife in Need and Wildlife in Deed, Inc. ("WIN") exhibits Big Cats to the public through hands-on encounters called “Tiger Baby Playtime” so Stark routinely declaws Big Cat cubs in his possession so he can handle them easier, not for any medical reason. Stark admitted to declawing "about a dozen cubs" in 2016 alone. People for the Ethical Treatment of Animals, Inc. ("PETA") filed this lawsuit against Stark and Lane and their WIN zoo alleging that the defendants harassed and wounded Big Cats in violation of the federal Endangered Species Act (ESA). Specifically, this case asks whether certain animal exhibitors have "taken" various species of Big Cats by declawing them and prematurely separating them from their mothers to use in hands-on, public interactions. By granting PETA's motion for Partial Summary Judgment, this court concludes that such conduct constitutes a "taking" and thus violates the ESA. The court previously concluded that declawing constitutes a “taking” under the ESA at the preliminary injunction stage, and now found "there is no good reason to disturb that conclusion." Thus, the court again concludes the WIN Defendants' declawing constitutes a “taking” under the ESA: it “harasses” Big Cats by creating a likelihood of significantly disrupting normal behavioral patterns; it “harms” Big Cats by actually injuring them; and it “wounds” Big Cats by inflicting a physical injury. In addition to granting the permanent injunction, the court also directed PETA to file a motion to appoint a special master and identify a reputable wildlife sanctuary for the animals housed at WIN.

FWS rule delisting Yellowstone grizzly bears from ESA list was arbitrary and capricious where it failed to consider key factors like threats to overall grizzly bear population in US and a mandate to recalibrate measurement of population. Crow Indian Tribe v. United States, 965 F.3d 662 (9th Cir. 2020). Several Indian tribes, environmental organizations, and animal-welfare groups filed suits claiming that Fish and Wildlife Service (FWS) violated Endangered Species Act (ESA) and Administrative Procedure Act (APA) by issuing final rule “delisting” or removing grizzly bear population in Greater Yellowstone Ecosystem from threatened species list. The distinct population segment of the Yellowstone grizzly bear population has been so successful under the ESA that the FWS has been trying to delist it for almost 15 years, according to the court. The district court granted summary judgment for the plaintiffs and vacated FWS' 2017 rule, remanding it to the FWS. This remand resulted in a second delisting rule by FWS that was again vacated and remanded by the district court, demanding consideration of several discrete issues by FWS. The FWS now appeals that remand for consideration that require the study of the effect of the delisting on the remaining, still listed, grizzly population in the coterminous 48 states, as well as further consideration of the threat of delisting to long term genetic diversity of the Yellowstone grizzly. In addition, states in the region of the DPS (Idaho, Montana, and Wyoming) as well as some private hunting and farming organizations have intervened on the government's behalf. On appeal, the Court of Appeals first found that it had authority to review the district court order and that the intervenors had standing to pursue an appeal. As to the order by the district court that the FWS needs to conduct a "comprehensive review" of the impact of delisting on the remnant grizzly population, the appellate court vacated that portion of the order using the phrase "comprehensive review." Instead, it remanded to the lower court to order a "further examination" on the delisting's effects. The court also agreed with the district court that FWS' 2017 Rule was arbitrary and capricious where it had no concrete, enforceable mechanism to ensure the long-term genetic viability of the Yellowstone DPS. Finally, the Court of Appeals agreed with the district court order to mandate a commitment to recalibration (changes in methodology to measure the Yellowstone grizzly bear population) in the rule since that is required by the ESA. The Court affirmed the district court’s remand order, with the exception of the order requiring the FWS to conduct a “comprehensive review” of the remnant grizzly population.

Evidence in animal cruelty case was sufficient where defendant repeatedly stabbed dog after confrontation between dogs ended and no evidence supported "necessity" defense. Commonwealth v. Whitson, --- N.E.3d ----, 97 Mass.App.Ct. 798, 2020 WL 3635941 (2020). This case involves an appeal of an animal cruelty conviction after defendant repeatedly stabbed a dog named Smokey, a three-year old pit bull. The incident in question occurred on a street outside of defendant's barber shop. Smokey was on-leash walking with his owner when an unleashed smaller dog ran at Smokey and began biting his ankles. Smokey responded playfully, not aggressively. The defendant responded to calls of assistance from the smaller dog's owner and helped separate the dogs. After this, the defendant returned briefly to his barbershop and came back with a knife that he used to repeatedly stab Smokey with while he restrained the dog with his other arm. The police eventually responded and defendant was taken to the hospital for a laceration on his hand where he yelled, "I'm glad I killed the [expletive] dog." Smokey survived the attack and defendant was charged and convicted. On appeal, defendant raised several arguments challenging the verdict. In particular, the defendant challenges the sufficiency of the evidence, arguing that he stabbed Smokey repeatedly to release the dog from biting his hand. The appellate court found that no defense witnesses testified that Smokey bit defendant and the no medical records corroborated defendant's version of events. Defendant also argued that the judged erred in denying his motion in limine regarding Smokey prior and subsequent "bad acts," which, defendant claimed, were relevant to the issue of Smokey as the initial aggressor. This court found that the proffered evidence of bad acts was inadmissible hearsay and the acts subsequent to Smokey's stabbing occurred too remotely to have any probative value. Finally, the court found no substantial risk of a miscarriage of justice where the judge failed to give a sua sponte necessity defense. The judgment was affirmed.

July 2020

Iowa Supreme Court, on issue of first impression, holds that landlord's accommodation of assistance animal in "no pets building" was not reasonable where another tenant had severe pet allergies and also had priority in time over tenant seeking the disability accommodation. Cohen v. Clark, --- N.W.2d ----, 2020 WL 3524851 (Iowa June 30, 2020). Cohen possessed a severe allergy to pet dander. As a result, Cohen entered into a lease agreement with 2800-1 LLC to rent an apartment relying on the fact that the apartment complex had a no pet policy. Two months into her lease, David Clark entered into a lease agreement with 2800-1 LLC to rent an apartment down the hall from Cohen. Shortly after moving in, Clark presented 2800-1 LLC with a letter from his psychiatrist explaining that due to Clark’s chronic mental illness a dog would benefit his mental health. Clark request a reasonable accommodation to have an emotional support animal (“ESA”) on the apartment premises. The leasing manager subsequently contacted the Iowa Civil Rights Commission (“ICRC”) and requested a review or a formal agency determination. A staff member of the ICRC informed Jeffrey that he had to reasonably accommodate both Cohen’s allergies and Clark’s ESA request. 2800-1 LLC allowed Clark to have a dog as his ESA while at the same time trying to mitigate Cohen’s allergies. In 2017, Cohen brought a small claims action against 2800-1 LLC seeking one month’s rent as damages and alleging that 2800-1 LLC breached the express covenant of her lease that provided for no pets. Cohen also alleged that both Clark and 2800-1 LLC breached her implied warranty of quiet enjoyment. The small claims court dismissed Cohen’s claims. On appeal to the district court, the court concluded that 2800-1 LLC made sufficient efforts that would have justified denying Clark’s request for accommodation or asking him to move to another apartment building, however, because Iowa law was not sufficiently clear, they also dismissed the claims against 2800-1 LLC and Clark. Cohen filed an application for discretionary review to which 2800-1 LLC consented. The Supreme Court of Iowa granted the parties’ request for discretionary review. The Supreme Court noted that there is no law in Iowa or any other jurisdiction that clearly establishes how landlords should handle reasonable accommodation questions with ESAs. The Court ultimately found that Clark’s ESA was not a reasonable accommodation and that the 2800-1 LLC breached its promise to Cohen that the apartment would have no pets other than reasonable accommodations. 2800-1 LLC had other apartments available in other buildings that allowed pets. Ultimately, the Court said it came down to priority in time since Cohen signed her lease first. The Court ultimately reversed and remanded the district court’s dismissal of Cohen’s case..

Federal court finds FWS' withdrawn findings regarding the importation of sport-hunted trophies from Africa were not subject to review because they caused appellants no injury and were consequently moot. Friends of Animals v. Bernhardt, 961 F.3d 1197 (D.C. Cir. 2020). Appellants consisting of conversation organizations and a safari guide challenged a series of actions of the FWS governing imports of sport-hunted animal trophies from Africa. The Appellants challenged certain findings that the Service made allowing animal trophies to be imported. The Court had reviewed a similar set of findings in another case and concluded that they were legislative rules illegally issued without notice and comment. FWS subsequently withdrew all its findings that were issued without notice and comment including the ones that were challenged by the Appellants in a subsequent memorandum. The Appellants still desired to contest the withdrawn findings. The Appellants alleged that it was illegal for the FWS to abandon its prior findings without engaging in APA informal rulemaking and that it was illegal for the FWS to announce its intent to the make the necessary findings through informal adjudications in the future. The Appellant’s claims fell into three categories: (1) challenges to the 2017 Zimbabwe findings that sport-hunting of elephants would enhance the survival of the species; (2) challenges to the memorandum by the FWS withdrawing their prior findings; and (3) challenges to the memorandum’s announcement that the FWS intends to making findings on a case-by-case basis when considering individual permit applications. The Court found that since the FWS had withdrew the 2017 findings, they no longer caused the appellants any injury which made any challenges to them moot. Ultimately the Court affirmed the district court’s judgment.

Plaintiff pet rescues alleged a cognizable injury for defendants' use of trademark and Unfair Competition Claim where defendants brokered sales of "puppy mill" dogs rather than dogs from legitimate rescue organizations. PetConnect Rescue, Inc. v. Salinas, Slip Copy, No. 20-CV-00527-H-KSC, 2020 WL 2832468 (S.D. Cal. June 1, 2020). PetConnect Rescue, Inc., Lucky Pup Dog Rescue.com and Sarah Gonzalez alleged that the Defendants fraudulently represented dogs that the Defendants sold as rescue animals in order to circumvent California law prohibiting the sale of non-rescue dogs in pet stores. On April 6, 2020, Plaintiffs filed an amended complaint against the Defendants alleging trademark infringement and dilution under the Lanham Act, unfair business practices under California’s Unfair Competition Law (“UCL”) and violations of California’s Consumer Legal Remedies Act (“CLRA”), fraud, and accounting. Several Defendant filed motions to dismiss and to strike sections of the amended complaint. The United States District Court for the Southern District of California found that Plaintiff PetConnect alleged a cognizable injury in fact in that the Defendants’ use of an infringing mark harmed Plaintiff PetConnect Rescue’s reputation and caused consumer confusion. The Defendants’ Pet Connect Rescue, Inc. brokered the sale of dogs from puppy mills rather than rescue dogs which affected Plaintiff PetConnect’s reputation. The Court also found that Plaintiff PetConnect Rescue raised a claim within the Lanham Act’s zone of interests because the Lanham Act’s protections extended to non-profit organizations’ use of marks, even when those marks do not accompany a sale. The Court refused to dismiss Plaintiffs claims regarding trademark infringement. As for the Unfair Competition claim, the Court found that the Plaintiffs had alleged sufficient facts to state a UCL violation. The Court subsequently rejected the Defendants’ motions to strike thirty-four lines or phrases from the amended complaint because Plaintiff’s use of the terms “puppy mill,” and the allegations that Defendants operate “fake” entities that “induce” purchases, reflected Plaintiff’s allegations of fraud and misrepresentation. The Court found that the Plaintiffs’ references were pertinent to the Plaintiff’s allegations. The Court ultimately denied each of the Defendant’s motions to dismiss and strike.

June 2020

Mere possession of a federal exhibitor’s license in Indiana for wild animals does not automatically vest a property right in the permit holder. Tranchita v. Dep't of Nat. Res., --- N.E.3d ----, 2020 IL App (1st) 191251 (2020). Plaintiff Tranchita alleged that she cared for four abused and abandoned coyotes for 13 years. Plaintiff possessed a USDA Class C exhibitor’s license. She also held an Illinois state permit as a fur-bearing mammal breeder from 2011 to 2016, however, this permit lapsed after Plaintiff failed to pay the annual fee. On April 24, 2019, Illinois Department of Natural Resources (IDNR) executed a search warrant on Plaintiff’s premises. The coyotes were seized during this raid. Plaintiff was told that if she did not sign a relinquishment form that the coyotes would be euthanized or confined to a small space. IDNR cited Plaintiff for lacking proper permits and for several criminal violations of the Wildlife code. Plaintiff alleged that she had a protected property interest in the coyotes pursuant to her federal exhibitor license. The trial court found that Plaintiff did not have a protected property interest in the coyotes because she did not possess the proper Illinois permit at the time of the seizure. On appeal, the court found that, under the Illinois Wildlife Code, a fur-bearing mammal breeder permit is necessary in order to possess or raise a coyote. Plaintiff was in violation of Illinois law the moment her permit lapsed in 2016. This made the coyotes contraband since they were possessed in violation of Illinois’ Wildlife Code. No person is permitted to assert legal ownership or a right to possession of property that is contraband. While Plaintiff argued that her federal exhibitor’s license recognized a right of property in her coyotes, the Court found that the mere possession of a federal exhibitor’s license does not automatically vest a property right in the permit holder. The Court ultimately affirmed the judgement of the trial court.

Trophy hunting plaintiffs would not suffer irreparable harm and emotional distress based on delay in processing trophy import permits for endangered elephants. Dallas Safari Club v. Bernhardt, --- F.Supp.3d ----, 2020 WL 1809181 (D.D.C. Apr. 9, 2020). Individual elephant sport hunters and their hunting organizations (“Plaintiffs”) filed suit against the United States Fish and Wildlife Service seeking to import their sport-hunted elephant trophies from Africa into the United States. The Plaintiffs moved for a preliminary injunction requiring the Service to process pending and subsequently filed permit applications. All African elephant trophy imports require the Service to make an enhancement finding, meaning that the killing of the trophy animal will enhance the survival of the species, and issue an ESA permit. Additionally, certain African elephant trophy imports require a non-detriment finding and a CITES import permit. Historically, the Service made periodic countrywide enhancement and non-detriment findings, however, this came to a halt due to a Presidential tweet surrounding media criticism over the Service’s decision to lift the suspension on Zimbabwe’s ESA enhancement finding. The Court found that injunctive relief was not warranted because the Plaintiffs failed to show irreparable harm as to any Plaintiff. The individual Plaintiffs argued that they had suffered both emotional harm and economic harm. Additionally, the emotional distress claimed by the Plaintiffs would be alleviated when the Service issues a decision either granting or denying their permit applications, so the harm was not irreparable. The Court ultimately held that in light of the disruptions caused by COVID-19 and the diminished capacity of the Service to process permit applications during this unprecedented time, it would be unwise and not in the public interest to order the expeditious processing of sport trophy permit applications. The Court denied Plaintiffs’ Motion for a Preliminary Injunction.

Designation of unoccupied areas as critical habitat for jaguar was arbitrary and capricious where no rational reason was given for designation of those areas. New Mexico Farm and Livestock Bureau , et. al. v. U.S. Dep't of Interior, et. al., 952 F.3d 1216 (10th Cir. 2020). The U.S. Fish and Wildlife Service designated 764,207 acres in New Mexico and Arizona as critical habitat for the jaguar pursuant to the Endangered Species Act. The area was divided into six individual units. Units 5 and 6 were the ones at issue. Plaintiffs filed suit contending that the Service’s designation of Units 5 and 6 as critical habitat was arbitrary and capricious. The district court ruled in favor of the Service and this appeal followed. There was no concrete evidence that jaguars were present in Units 5 and 6 at any time before 1995. The Service’s reliance on sightings in 1995, 1996, and 2006 to support a conclusion of occupation in 1972 was not based on expert opinion. It was purely speculative. The Court agreed with the Plaintiffs that the Service’s designation of Units 5 and 6 as occupied critical habitat was arbitrary and capricious. The Court further found that in order for an unoccupied area to be designated as a critical habitat, the Service must first find that the designation of the occupied areas is inadequate to ensure conservation of the species. The Court ultimately found that the Service did not follow its own regulations or give a rational explanation for failing to do so and as a result, its designation of Units 5 and 6 as critical habitat was arbitrary and capricious. The decision of the district court was reversed and remanded.

April 2020

Conviction for animal cruelty affirmed where defendant voluntarily punched and kicked police dog during lawful arrest. Blankenship v. Commonwealth, 71 Va. App. 608, 838 S.E.2d 568 (2020). Brandon Scott Blankenship showed up at Wally Andrews’ home although Blankenship had previously been ordered not to come onto Andrews’ property. Eventually law enforcement was called and officers released a police K-9 named Titan after a non-compliant Blankenship. Blankenship kicked and punched Titan until he backed off. Titan ended up with a digestive injury in which he would not eat and seemed lethargic. Blankenship was indicted for three counts of assault and battery on a law enforcement officer, one count of assault on a law enforcement animal, one count of assault and battery, one count of obstruction of justice, and one count of animal cruelty. As for the animal cruelty conviction, the Court found that there was sufficient evidence from which the circuit court could find that Blankenship voluntarily acted with a consciousness that inhumane injury or pain would result from punching and kicking Titan. Blankenship had no right to resist the lawful arrest and his actions against Titan were not necessary, therefore, there was sufficient evidence to support Blankenship’s conviction for animal cruelty. The Court ultimately affirmed and remanded the case.

Lack of deadly-weapon instruction not erroneous where jury could have found defendant used knife on the human holding puppies killed during altercation. Scales v. State,  --- S.W.3d ----, 2020 WL 1174185(Tex. App. Mar. 11, 2020). Defendant, Jade Derrick Scales, was convicted of two counts of cruelty to non-livestock animals which constituted a state felony. Michelle Stopka found two puppies in an alley and took them in. After defendant confronted Stopka in her front yard while holding a knife and wearing a mask and brass knuckles, Leonard Wiley, the man Stopka was residing with, confronted the Defendant. During the confrontation between the men, both puppies were sliced open resulting in their deaths. Defendant’s sentence was enhanced to a second-degree felony based on the finding of use or exhibition of a deadly weapon during the commission of, or during immediate flight following, the commission of the offense (and the fact that the Defendant had a previous conviction for a second-degree-felony offense of burglary of a habitation). Defendant was sentenced to seven years and a fine of $2,000. Defendant subsequently appealed. In one of several issues, Scales contended that the trial court erred by failing to instruct the jury that a deadly-weapon finding is only appropriate when the weapon is used or exhibited against a human being. The Court found that although a deadly-weapon instruction should not have been given, the error was not egregious and therefore overruled the issue because a jury could have reasonably believed that the Defendant used the same knife to both inflict wounds upon the puppies and Leonard. The trial court’s judgment was ultimately affirmed.

Tenant required to provide sufficient information for "meanigful review" by landlord in dispute over emotional support animal. Douglas Furbee, et al. v. Gregory L. Wilson, et. al., --- N.E.3d ----, 2020 WL 1503236 (Ind. Ct. App. Mar. 30, 2020). Shelly Linder  lived in an apartment complex with a no-pet policy. Linder asked if she could have an emotional-support animal and provided a letter from a licensed family and marriage therapist, which stated that Linder had a disability and required an emotional-support animal to help alleviate her symptoms. The letter did not identify a specific disability and the landlord subsequently requested more information from Linder. The landlord charged Linder a fine after discovering the cat on the premises and gave her seven days in which to remove the cat. Linder failed to comply which led to Linder’s eviction. The Indiana Civil Rights Commission filed a complaint against the landlord on behalf of Linder in Delaware Circuit Court alleging that the landlord failed to accommodate her request for an emotional-support animal in turn violating the Indiana Fair Housing Act. The trial court denied summary judgment for the landlord and this appeal followed. The landlord conceded that Linder was disabled and requested a reasonable accommodation, however, the landlord argued that it was not given enough information from which to “meaningfully” review Linder’s request. The Delaware Court of Appeals agreed that the Landlord did not have sufficient information to meaningfully review Linder’s request and because Linder did not inform the Landlord about her disability and her need for the cat, she was acting in bad faith. The Court ultimately reversed and remanded the case to the trial court.

March 2020

Maryland's “No More Puppy-Mill Pups Act” withstands constitutional challenge from dog sellers. Just Puppies, Inc. v. Frosh, --- F.Supp.3d ----, 2020 WL 607026 (D. Md. Feb. 7, 2020). The State of Maryland passed a “No More Puppy-Mill Pups Act” which went into effect January 1, 2020. The Act prohibits retail pet stores in Maryland from offering for sale or otherwise transferring or disposing of cats or dogs. Four pet stores, a dog breeder, and a dog broker filed suit against Brian Frosh, the Attorney General of Maryland, the Consumer Protection Division of the Office  of the Maryland Attorney General (CPD), the Maryland House Economic Matters Committee, and the Maryland State Senate Finance Committee seeking an injunction prohibiting enforcement of the Act as well as a declaration that it is unconstitutional under the Commerce Clause and the Equal Protection Clause. The Court found that the Plaintiffs failed to plausibly allege that the Act discriminated against out-of-state breeders and brokers in its text, in its effect, or in its purpose. In addition, prohibiting Maryland pet stores from selling dogs or cats had no effect on the operation of the AWA. Although the Act prohibited brick and mortar stores from participating in the sale of cats and dogs, consumers still had a plethora of choices when seeking to obtain a pet, including rescue shelters, animal control units, USDA licensed breeders and brokers, and unregulated hobby breeders. The Court ultimately dismissed all claims against the CPD and the Committee Defendants and allowed the claims against Brian Frosh to proceed.

Court finds evidence of feeding and veterinary care sufficient to support ownership necessary for a Sec. 1983 claim against animal rescue teams that seized criminal defendant's 42 cats. Madero v. Luffey, --- F.Supp.3d ----, 2020 WL 733766 (W.D. Pa. Feb. 13, 2020). Ronald Madero allegedly took care of abandoned cats in his neighborhood by giving them food, shelter, and occasional medical care. After a neighbor contacted Animal Care and Control (ACC) and complained about abandoned kittens, a search warrant was ultimately executed and a total of 42 cats were seized. Madero asserts that, after the cats were seized, they were left for hours on the hot concrete and were not provided with veterinary care for several weeks. Madero was charged with 5 counts of misdemeanor cruelty to animals and 37 summary counts of cruelty to animals. He pled nolo contendere to 20 counts of disorderly conduct and was sentenced to 90 days of probation for each count with all twenty sentences to run consecutively. Subsequently, Madero filed a complaint asserting various causes of action under 42 U.S.C. 1983 and state law alleging illegal search and wrongful seizure of the cats against Officer Luffey, Homeless Cat Management Team (“HCMT”), Provident, and Humane Animal Rescue (“HAR”). The defendants each filed Motions to Dismiss. Madero pled that the cats were abandoned or stray cats; however, he also pled that the cats were his property and evidenced this by pleading that he fed the cats and provided shelter as well as veterinary care. The Court found that Madero pled sufficient facts to support ownership of the cats to afford him the standing to maintain his claims under section 1983 and common law. Despite this, all claims were dismissed except for Madero’s claim against HCMT for conspiracy.

Court rejects arguments that defendant did not act knowingly and that animal cruelty law captured “innocent conduct” after defendant chained dog outside in 15-degree weather on more than one occasion. People v. Collier, --- N.E.3d ----, 2020 IL App (1st) 162519. Chicago police officers, while investigating reports of animal abuse, visited Samuel Collier’s place of residence and observed a dog chained up outside in 15-degree weather. On a second visit, the same dog was observed chained up outside in the cold. The dog happened to match the description of a dog that had been reported stolen in the neighborhood. The house had feces everywhere with no running water or heat. A total of four dogs were found that were kept in rooms without food or water. One of the dogs found was a bulldog that had been stolen from someone’s backyard. Collier was subsequently arrested. Collier was found guilty of one count of theft and four counts of cruel treatment of animals. Collier subsequently appealed. Collier argued that there was insufficient evidence to prove his guilt at trial because despite the photographs of his house the dogs were found to be in good health. The Court held that the poor conditions in which the dogs were kept along with the condition of the dogs and the premises were sufficient. Collier also argued that the animal cruelty statute violated due process because it was unconstitutionally vague and potentially criminalized innocent conduct. The Court, however, stated that the statute did not capture innocent conduct, instead, it captured conduct that can be defined as cruel or abusive. The Court ultimately affirmed the judgment of the trial court.

February 2020

MS Supreme Court holds plain language of cruelty statute limits cruelty to multiple animals occurring during single incident to a single offense. Dancy v. State, --- So.3d ----, 2020 WL 240457 (Miss. Jan. 16 , 2020). The Justice Court of Union County found Michael Dancy guilty of three counts of animal cruelty and ordered the permanent forfeiture of Dancy’s six horses, four cats, and three dogs. Essentially, Dancy failed to provide adequate shelter, food, and water for the animals. After working his appeal to the Supreme Court of Mississippi, the Court found that the circuit court properly released the animals to an animal protection organization. The Court also found that the reimbursement order was permissible. However, two of Dancy’s three convictions were for violations of the same statute regarding simple cruelty, one for his four cats and one for his three dogs. The Court held that, according to the statute's plain language, Dancy’s cruelty to a combination of dogs and cats occurring at the same time "shall constitute a single offense." Thus, the State cannot punish Dancy twice for the same offense without violating his right against double jeopardy. For that reason, the court vacated Dancy’s second conviction of simple cruelty. The court affirmed the permanent forfeiture and reimbursement order and his other cruelty conviction.

USDA’s failure after 18 years to issue bird-specific standards under the AWA arbitrary and capricious. Am. Anti-Vivisection Soc'y v. United States Dep't of Agric., 946 F.3d 615 (D.C. Cir. 2020). Congress passed the Animal Welfare Act (“AWA”) in 1966 to ensure that animals intended for use in research facilities, for exhibition purposes, or for use as pets were provided humane care and treatment. Initially, the definition of the word “animal” excluded birds according to the USDA. In 2002, Congress amended the AWA to make it known that birds were to be protected as well. The USDA promised to publish a proposed rule for public comment once it determined how to best regulate birds and adopt appropriate standards. Eighteen years later, the USDA has yet to issue any standards regarding birds. The American Anti-Vivisection Society and the Avian Welfare Coalition sued to compel the USDA to either issue bird-specific standards or to apply its general standards to birds. The Court of Appeals found that the AWA, when it was amended in 2002, required the USDA to issue standards governing the humane treatment, not of animals generally, but of animals as a defined category of creatures including birds not bred for use in research. The USDA failed to take “discrete action” issuing standards to protect birds that the AWA requires it to take. The Court ultimately affirmed the district court as to the arbitrary and capricious claim but reversed and remanded as to the unreasonable delay claim to determine whether the issuance of bird-specific standards has been unreasonably delayed.

Petitioner’s “class-of-one” equal protection challenge not supported by evidence where officer’s decision not to declare offending dog vicious was supported by rational basis. Turner v. Ferguson, --- F.Supp.3d ----, 2020 WL 97526 (E.D. Wis. Jan. 7, 2020). On March 5, 2017, Lori Turner was attacked by her neighbor’s dog which required her to receive 11 staples to close the wound on her scalp and other injuries. Pursuant to local regulations, the neighbor’s dog was quarantined for a ten-day period. Turner mentioned to officers that the city had recently enacted an ordinance that allowed an officer to declare a dog vicious, which then requires the owner of the dog to adhere to certain requirements. The officer in question issued a citation instead and did not declare the dog vicious under the vicious-dog ordinance because the officer found some provocation. Turner filed suit against the officers she interacted with over the course of the next year, claiming that the officers denied her equal protection of the law by refusing to declare the dog vicious and by failing to protect her from loose dogs in the neighborhood after repeated requests. The Court ultimately found that the evidence in the record did not support a class-of-one equal protection claim. Officer Ruppel’s decision to not declare the dog vicious was supported by a rational basis. Additionally, no evidence existed that suggested that the Glendale police department intentionally and irrationally treated Petitioner’s complaints about loose dogs in the neighborhood differently than it treated similar complaints by other citizens. The Defendant’s motion for summary judgment was granted.

January 2020

Court holds no constitutional duty to scan for microchip after chipped valuable dog spayed and adopted out. Lunon v. Botsford, --- F.3d ----, 2019 WL 7198501 (8th Cir. Dec. 27, 2019). Lunon had a German Shephard as a breed dog, named Bibi, which had gotten loose and was turned into the local animal shelter. The animal control officer failed to scan the dog for a microchip. After five days at the animal shelter, Bibi was sterilized and adopted out. Lunon was able to recover his dog through a replevin action, however, Lunon claimed that his fourteenth amendment right to procedural due process was violated when Bibi was spayed and adopted out without providing pre-deprivation notice and an opportunity for Lunon to be heard. On appeal, the Court found that the animal control officer picking up Bibi and delivering her to the animal shelter did not deprive Lunon of a protected property interest. There is no constitutional duty for an animal control officer to scan a stray dog for a microchip. Therefore, the animal control officer was not liable. The public officials that participated in this action were all protected under governmental immunity because Lunon failed to demonstrate that each individual defendant violated his constitutional right to due process. The Court ultimately reversed the order of the district court and remanded with directions to enter judgment dismissing those claims with prejudice.

Defendant zoo committed "taking" under ESA for "fetid and dystopic" conditions suffered by animals in citizen-suit by animal protection group. PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al., Defendants. --- F.Supp.3d ----, 2019 WL 7185560 (D. Md. Dec. 26, 2019). PETA brought this action against defendants Tri-State Zoological Park of Western Maryland, Inc. Prior to this lawsuit, Tri-State was home to two lemurs, five tigers, and two lions which are all protected under the Endangered Species Act (“ESA”). More than half of the protected species housed at Tri-State died. PETA alleged violations of the ESA. PETA contended that the animals were subjected to harm and harassment and that Tri-State committed a “take” as defined by the ESA as a result of unsanitary living conditions, poor diets, and inadequate shelter and enrichment. The district court found that PETA had standing to bring suit. The court also found that each of the respective animals had been subjected to a take under the ESA. The court ultimately held that it would enter a separate order declaring that the Defendants violated the ESA by unlawfully taking the remaining big cats and maintaining possession of them. The Court permanently enjoined the Defendants from ever owning or possessing any endangered or threatened species and terminated the Defendants’ ownership and possessory rights to the animals.

Restitution order to humane society reversed because it was a governmental entity that cannot be  victim of abuse (even though court recognized the horse victims cannot themselves collect). State v. Marcellino, --- N.E.3d ----, 2019 WL 6311765, 2019 -Ohio- 4837 (2019). Bianca Marcellino was charged and convicted of two counts of cruelty to animals after a search of her residence revealed two horses that were in need of emergency medical aid. Marcellino was ordered to pay restitution and she subsequently appealed. On appeal, the Court contended that the trial court did not err in failing to hold a Franks hearing because even if the Court sets aside the alleged false statements in the affidavit, there remained an overwhelming amount of sufficient statements to support a finding of probable cause. The Court also held that trial courts have the authority to order restitution only to the actual victims of an offense or survivors of the victim, therefore, the award of restitution to the humane society was not valid because humane societies are a governmental entity and cannot be victims of abuse. The Court ultimately affirmed the judgment of the municipal court and reversed and vacated the order of restitution. 

Passage of legislative bill ratifying Oregon Fish & Wildlife Commission rule to remove gray wolf from endangered species list rendered petition for judicial review of rule moot. Cascadia Wildlands v. Dep't of Fish & Wildlife, --- P.3d ----, 300 Or. App. 648 (2019). Oregon Fish and Wildlife Commission ("Respondent") removed the species Canis lupus (gray wolf) from the list of species protected under the Oregon Endangered Species Act (OESA). Cascadia Wildlands, Center for Biological Diversity, and Oregon Wild ("Petitioners") sought judicial review of the amendment to Oregon law. The Petitioners contended that the decision to delist exceeded the commission’s statutory authority and did not comply with applicable rulemaking procedures. After the Petitioners filed their petition, the Oregon legislature passed House Bill 4040 which ratified the administrative rule that the Respondent promulgated delisting the gray wolf. The Respondents argued that the passage of the bill made the Petitioners' petition for judicial review moot. The Court held that the legislature using the word “ratify” in the statute indicated that they intended to confirm that the Commission’s rule delisting the gray wolf was legally satisfied, therefore, rendering judicial review moot. The petition for judicial review was ultimately dismissed.

December 2019

Amendments to AWA that ban cockfighting extend to Puerto Rico and other U.S. territories, and do not violate Commerce or Territorial Clauses. Club Gallistico de Puerto Rico Inc. v. United States, --- F.Supp.3d ----, 2019 WL 5566322 (D.P.R. Oct. 28, 2019). Club Gallistico de Puerto Rico, Inc. (Club Gallistico) and the Asociacion Cultural y Deportiva del Gallo Fino de Pelea (Asociacion Cultural) both filed civil complaints against the United States Government. The complaints alleged that the Section 12616 amendments to the Animal Welfare Act (AWA) violated bedrock principles of federalism and rights protected under the United States Constitution. Both Club Gallistico and Asociacion Cultural are both non-profit organizations involved in the Commonwealth of Puerto Rico’s cockfighting industry. The amendments to the AWA outlawed all animal fighting ventures in which animals were moved in interstate or foreign commerce in every United States jurisdiction. These amendments extended the ban to United States territories which the Plaintiffs argued the United States did not have the authority to do. Both cases were consolidated and heard by the District Court. The Court analyzed the amendments under the Federalism doctrine, the Commerce Clause, and the Territorial Clause. Extending the ban on live-bird fighting did not violate either of the three. Further, the amendments did not violate the Tenth Amendment to the United States Constitution or any other constitutional rights such as free speech or due process. The Court ultimately denied the Plaintiffs’ Motion for Summary Judgment and Granted Defendant United States’ Cross-Motion for Summary Judgment.

Plaintiff's securities fraud suit against SeaWorld based on SeaWorld's misstatements that the 2013 documentary Blackfish (a film about the controversy over captive killer whales) had no effect on park sales moves forward. Baker v. SeaWorld Entm't, Inc., Slip Copy, 2019 WL 6118448 (S.D. Cal. Nov. 18, 2019). Plaintiffs brought a securities fraud class action against the collective Defendants, including SeaWorld Entertainment, Inc. This action involved statements and omissions made by the Defendants following a 2013 documentary titled Blackfish. The issues centered on the attendance impact that the documentary had on SeaWorld. Company-wide attendance declined in 2013 and 2014, however, several officials of the Company made statements that there was no attendance impact resulting from the documentary. Both Plaintiffs and Defendants moved to exclude the testimony of several experts. The Court ultimately affirmed its tentative rulings, denied Defendant’s motion to exclude the testimony of two of Plaintiff’s experts, granted Defendant’s motion to exclude the testimony of Dr. James Gibson, granted in part and denied in part Plaintiff’s motion to exclude the testimony of Dr. Craig Lewis, granted Plaintiff’s motion to exclude the testimony of Dr. Randolph Bucklin, and denied Defendant’s motion for summary judgment. 

November 2019

Keeping of chickens and coop within city deemed a non-conforming residential use by city after more than 7 years on property. City of Columbiana v. Simpson, --- N.E.3d ----, 2019 WL 4897158 (Ohio Ct. App., 2019). Richard Simpson lived in a residential district in Columbiana, Ohio where he kept 8 hens, a chicken coop, and an enclosure on his property for approximately 7 years. In 2016, Simpson was informed that keeping chickens in the district he lived in was a zoning violation, however, Simpson found no prohibition in the Code regarding the keeping of chickens in a residential district. Simpson appealed the violation to the Planning Committee. On June 20, 2017 the City Council voted to place a resolution on the ballot for voters to decide whether chickens could be kept in residential districts. The resolution failed at the general election and, ultimately, the City instituted an action for declaratory judgment and injunctive relief in 2018 requiring Simpson to remove the chickens. The trial court held that the keeping of chickens was prohibited in the City’s residential districts and that the city ordinances were valid on their face and were not arbitrarily or capriciously applied. On appeal, Simpson argued that keeping the chickens did not constitute an agricultural use because he kept them as a hobby. The Court disagreed and concluded that the keeping of chickens fell within the definition of agriculture and was, therefore, prohibited based on the ordinances. Simpson next argued that since he acquired the chicken and coop prior to the City applying the prohibitions, it was a legal non-conforming use and that the zoning code contained no language that would have put him on notice that such property was not permitted on his real property. The Court concluded that there was no error by the trial court in holding that Simpson’s use of his land was not a legally conforming use. Finally, on the nuisance claim, the court concluded that a city is not required to show that a property owner’s proposed use constitutes a nuisance in order to establish the constitutionality of the ordinance. The judgment of the trial court was affirmed. 

Trial court erred by refusing defendant’s instructions based on WA state law that allows killing of dog seen injuring “domestic” animal in felony animal cruelty case involving dog-on-dog attack. State v. Wilson,  --- P.3d ----, 2019 WL 4955178 (Wash. Ct. App. Oct. 8, 2019). Defendant Robert Wilson appeals his conviction of first degree animal cruelty, which arose from an incident at an archery club when Wilson shot a large dog in the hindquarters (70lb. "Dozer") with an arrow after that dog attacked Wilson’s small dog ("Little Bit"). (Dozer recovered from his injuries.) Wilson argues that his action was lawful under RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls. The trial court declined to give defendant's proposed jury instruction based on this statutory language, finding that it only applied to stock animals and not when a dog was injuring another dog. On appeal, this court noted that no Washington court has interpreted RCW 16.08.020 in a published case. While the trial court found that the statute only applied to stock animals, the appellate court noted that the law does not define the term "domestic animal." Using the plain dictionary meaning for "domestic" - "belonging to or incumbent on the family" - and for "domestic animal," this court stated that "Little Bit certainly belonged to Wilson's family" and a dog fits the meaning of "domestic animal." The court found that the "reasonably necessary" requirement from the common law cases on shooting domestic animals cannot be grafted onto the statutory requirements of RCW 16.08.020. The trial court's refusal to give the proposed instruction was not harmless. As such, the appellate court reversed Wilson's conviction and remanded the action for further proceedings.

Federal circuit court holds it has no jurisdiction over Fourth and Fourteenth Amendment claims of improperly seized animals in state anti-cruelty case. Swartz v. Heartland Equine Rescue, 940 F.3d 387 (7th Cir., 2019). The Plaintiff (Swartzes) acquired several horses, goats, and a donkey to keep on their farm in Indiana. In April of 2013, the county’s animal control officer (Lee) called a veterinarian to help evaluate a thin horse observed on the Swartzes’ property. After several visits by Lee and a local veterinarian, the Superior Court of Indiana entered an order to seize the animals. On June 20, 2014, the state of Indiana filed three counts of animal cruelty charges against the Swartzes. However, the state deferred prosecuting the Swartzes due to a pretrial diversion agreement. The Swartzes filed this federal lawsuit alleging that the defendants acted in concert to cause their livestock to be seized without probable cause and distributed the animals to a sanctuary and equine rescue based on false information contrary to the 4th and 14th amendments. The district court dismissed the Swartzes' claims to which, they appealed. The Court of Appeals focused on whether the district court had subject-matter jurisdiction over the Swartzes’ claims. The Court applied the Rooker-Feldman doctrine which prevents lower federal courts from exercising jurisdiction over cases brought by those who lose in state court challenging state court judgments. Due to the fact that the Swartzes’ alleged injury was directly caused by the state court’s orders, Rooker-Feldman barred federal review. The Court vacated the judgment of the district court and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction.

Plaintiff's systematic actions based on concerns for defendant's dog that was continuously left outside established a prima facie case for libel and slander. Maldonado v. Franklin, Not Reported in S.W. Rptr., 2019 WL 4739438 (Tex. App. Sept. 30, 2019). The Franklins moved into a subdivision in San Antonio, Texas in September of 2017. Margarita Maldonado lived in the home immediately behind the Franklins’ house and began complaining about the Franklins’ treatment of their dog. The Franklins left the dog outside 24 hours a day, seven days a week. Maldonado also posted online messages, sent direct messages to the Franklins, and even left a dog bed in the Franklins' yard. In December of 2017, the Franklins filed suit against Maldonado for invasion of privacy by intrusion and seclusion alleging that Maldonado was engaged in a campaign of systemic harassment over the alleged mistreatment of their dog. While the suit was pending, Maldonado contacted Animal Control Services several times to report that the dog was outside in severe heat and picketed neighborhood sidewalks for 5 days, including in front of the Franklins’ house, carrying signs such as “Bring the dog in,” and “If you’re hot, they’re hot.” The Franklins then amended their petition adding claims for slander, defamation, intentional infliction of emotional distress, and trespass. The trial court granted a temporary injunction against Maldonado, which was ultimately vacated on appeal. Maldonado filed an Anti-SLAPP motion and amended motion to dismiss the Franklins’ claims as targeting her First Amendment rights. The trial court did not rule on the motions within thirty days, so the motions were denied by operation of law. Maldonado appealed. The Court ultimately concluded that Maldonado’s verbal complaints to the Animal Control Service and online posts on community forums about the Franklins’ alleged mistreatment of their dog were communications made in connection with an issue related to a matter of public concern and were made in the exercise of free speech. Therefore, the TCPA applied to the Franklins’ slander and libel claims. The Court ultimately concluded that although Maldonado established that the TCPA applied to the slander and libel claims, the Franklins met their burden to establish a prima facie case on the slander and libel claims. Therefore, the Court ultimately concluded that Maldonado’s motion to dismiss the slander and libel claims were properly denied. The Court affirmed the trial court’s order and remanded the case to the trial court. 

October 2019

Testimony about dog's changed behavior was sufficient to establish corpus delicti in bestiality case allowing defendant's extrajudicial letters describing sexual abuse of dog to be entered into evidence. City of Cleveland v. Turner, --- N.E.3d ----, 2019 WL 3974089 (Ohio Ct. App., 2019). Defendant was convicted by bench trial of one count of sexual conduct with an animal (bestiality) in violation of R.C. 959.21(B). He was sentenced to 90 days in jail (with credit for time served), a $750 fine, with five years of inactive community control that included no contact with animals and random home inspections by the Animal Protection League (APL). The evidence supporting his conviction came from explicit letters defendant wrote to his boyfriend (who was incarcerated at the time) that described acts of bestiality. On appeal, defendant contends that the court erred by admitting his extrajudicial statements without independent evidence of a crime. The court noted that this was a case of first impression since there is no Ohio case law that has analyzed the corpus delicti issue in the context of R.C. 959.21. Relying on the Indiana case of Shinnock v. State, 76 N.E.3d 841 (Ind.2017), this court found that while there was no direct evidence of a crime against the dog, the circumstantial evidence corroborates defendant's statements in his letter. The finding of guilt for defendant's bestiality conviction was affirmed, but the condition of community control sanction regarding random home inspections was reversed and remanded.

Claim by plaintiff that pit bull type dogs are "inherently dangerous" and thus attack by such dog is foreseeable rejected by South Dakota Supreme Court. Ridley v. Sioux Empire Pit Bull Rescue, Inc., 932 N.W.2d 576 (S.D., 2019). Plaintiff Ridley was walking at a campground where she was attacked and injured by a pit bull type dog belonging to Sioux Empire Pit Bull Rescue, Inc. (SEPR) and in the care of Susan Tribble-Zacher and Harry Podhradsky. At the time, the dog was tethered to a tree near the Zacher and Podhradsky campsite. The lower court granted both Zacher's and Podhradsky's motions for summary judgment, which Ridley appeals in this instant case. On appeal, Ridley claims the trial court erred by incorrectly weighing the evidence by viewing the facts in a light most favorable to SEPR instead of plaintiff. The court rejected Ridley's argument that pit bull type dogs have inherently dangerous breed tendencies and, as a result, the attack was foreseeable and the keepers should be held to a higher standard of care. The court noted that South Dakota law does not support any "breed-specific standard of care," and that every dog is presumed tame so that the burden is on a plaintiff to prove otherwise. The motions for summary judgment were affirmed.

Health department employee who advised plaintiff of high cost of rabies shots did not engage in "financial coercion" that amounted to extreme and outrageous conduct that forced plaintiff to cut off his own dog's head. Goodwin v. Crawford Cty., Georgia,  Slip Copy, 2019 WL 2569626 (M.D. Ga. June 21, 2019). This 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 plaintiff's driveway, 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, officers ordered 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. 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. Sims' alleged use of "financial pressure" did not amount to extreme and outrageous conduct for plaintiff's intentional infliction of emotional distress claim. 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. 

September 2019

Feral cats not "domestic animals" for purposes of insurance policy exclusionGoldberger v. State Farm Fire & Cas. Co., --- P.3d ----, 2019 WL 3792803 (Ariz. Ct. App. Aug. 13, 2019). Plaintiffs Goldbergers owned residential rental property insured by State Farm Fire and Casualty Company under a rental dwelling policy. After the lower court granted State Farm’s motion to dismiss plaintiffs’ suit for breach of contract and insurance bad faith based on an exclusion for damage by “domestic animals,” this appeal followed. The appellate court agreed with the Goldbergers that “domestic animals” is reasonably susceptible to two interpretations: (1) a species-based definition that says that domestic animals belong to a broader class of animals that have been domesticated at some point in history; and (2) an individualized definition that says that domestic animals are animals that are kept by a person for various purposes, including as pets. The Court ultimately decided that the individualized definition makes more sense in terms of the insurance policy itself as well as case law. Domestic animals encompass animals that are subject to the care, custody, and control of a person. On the facts alleged in the complaint alone, the Court could not say that the tenant was keeping the feral cats in such a manner that the exclusion would preclude coverage. The court therefore resolved all reasonable inferences in the Goldberger’s favor and presumed that the cats were feral. The Court reversed the superior court’s order dismissing the Goldberger’s complaint and remanded for further proceedings consistent with the opinion.

New York’s Ivory Ban not preempted by federal law. Art & Antique Dealers League of Am., Inc. v. Seggos, --- F.Supp.3d ----, 2019 WL 3817305 (S.D.N.Y. Aug. 14, 2019). Plaintiffs are trade organizations representing arts and antique dealers. The Defendant is the Commissioner of DEC which is a state agency tasked with protecting New York’s natural resources and environment. The state of New York imposed a ban on elephant ivory with even narrower exceptions than the federal ESA. Not only do the DEC licenses restrict ivory trade within the state pursuant to the State Ivory Law’s exceptions, but the licenses also limit the advertisement and display of ivory products. Plaintiff’s filed this action challenging the constitutionality of the State Ivory Law on preemption and First Amendment grounds. The Plaintiffs filed a motion for summary judgment and the Defendants and Intervenors crossed-moved to dismiss. The Court examined the ESA and determined that section 1535(f) did not preempt the State Ivory Law because the ESA prohibitions only applied to interstate or foreign commerce while the State Ivory Law applied to intrastate commerce. As result, the exceptions contained in the State Ivory Law did not prohibit what was authorized by the ESA. The Court granted the Defendant’s motion to dismiss on Count 1. The Plaintiff’s second count alleged that the State Ivory Law’s permit requirement violated the First Amendment. Because the court found that defendant had not met his burden, based on pleaded facts, that the Display Restriction does not “burden substantially more speech than is necessary to further the government's legitimate interests," Defendant's motion for summary judgment on Count 2 was denied. Ultimately, the Court granted the Defendant’s and Intervenor’s cross-motions to dismiss with respect to preemption and denied both the Defendant’s and Plaintiff’s motions for summary judgment with respect to the First Amendment Claim.

Louisiana statute allowing livestock owner to kill dog found harassing or wounding livestock must be affirmatively pled to receive immunity. Estis v. Mills, --- So.3d ----, 2019 WL 3807048 (La. App. 2 Cir. 8/14/19). Plaintiffs brought this action against the Defendants seeking damages for the shooting of the Plaintiff’s ten-month-old German Shepherd puppy, Bella. The Plaintiffs alleged that the Defendants shot Bella, did not disclose to them that Bella had been shot, and dumped her body over ten miles away. Defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of Defendants after they argued at the motion hearing that they fell within the immunity afforded by a Louisiana statute, which gives immunity to anyone who kills a dog that is not on the property of the owner and is harassing, wounding, or killing livestock. Specifically, Defendants alleged that Bella, the puppy, was harassing their horses. On appeal, Plaintiffs argued that the immunity afforded by the statute needed to be affirmatively pled by the Defendants and that the Defendants waived such immunity by failing to assert the affirmative defense in their original answer or subsequent pleadings. The Plaintiffs further argued that the motion for summary judgment would not have been granted if not for the immunity protections. The appellate court agreed, reversing and remanding the case to the lower court.

45-day evaluation process for assistance animal did not amount to a constructive denial nor is there requirement to "immediately grant" an accommodation request under FHA. LaRosa v. River Quarry Apartments, LLC, Slip Copy, 2019 WL 3538951 (D. Idaho Aug. 3, 2019). Plaintiffs filed this action alleging that the defendants violated their rights under the Fair Housing Act ("FHA") after they requested a reasonable accommodation to keep their assistance dog at defendants' apartment (River Quarry) without paying a fee. The plaintiffs provided a copy of a note from a nurse practitioner stating that the assistance animal helps manage Mr. LaRosa’s PTSD. The process involved a back-and-forth between plaintiff and his medical care staff. At one point, defendants insisted on speaking with Mr. LaRosa’s doctor directly to verify the information that the plaintiffs had given, during which the doctor declined to verbally agree to HUD's two-step verification questions presented by defendant Cullimore. However, soon after this, Mr. LaRosa saw his primary care physician and had the actual form completed by his doctor and turned it in defendants, who then questioned whether the doctor's signature was genuine. Ultimately, this court denied the Plaintiffs claim under the FHA because River Quarry actually allowed the dog to stay in the apartment while their request for an accommodation was reviewed. Thus, there was no denial of the accommodation. 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 and River Quarry approved the request within 45 days after the initial request. The Plaintiffs, however, succeeded on their interference claim. The LaRosas were engaged in a protected activity when they applied and defendants misrepresented the contents the doctor’s conversation with defendant's attorney. 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. 

August 2019

Court not persuaded by defendant's claim of "justifiable purpose" in beating dog with metal hammer after dog injured defendant's thumb in appeal of aggravated cruelty conviction. People v. Brinkley, --- N.Y.S.3d ----, 2019 WL 3226728 (N.Y. App. Div. July 18, 2019). Defendant and his nephew had purchased a puppy and continually used negative reinforcement, such as paddling or popping the dog on the rear end with an open hand, for unwanted behavior. On one occasion, when the dog was approximately 15 months old, a series of events with disciplining the dog resulted in the dog biting off a portion of the Defendant’s thumb. The Defendant attempted to herd the dog onto the back porch, but the dog became aggressive and continued to bite him. As a result, the Defendant repeatedly kicked the dog and used a metal hammer to beat the dog into submission. The dog later died due to his injuries. The Defendant argued that he had a justifiable purpose for causing the dog serious physical injury. The Defendant testified that he was in shock from the injury to his thumb and that he was trying to protect himself and his nephew. However, other evidence contradicted the Defendant's testimony. The dog was in a crate when the Defendant got home, and the Defendant could have left him there rather than take the dog out to discipline him. The Defendant was at least partially at fault for creating the situation that led him to react in such a violent manner. The Court reviewed several of the Defendant’s contentions and found them all to be without merit. The aggravated cruelty judgment was ultimately affirmed.

Court allows plaintiff leave to amend Sec. 1983/civil rights complaint on facts showing euthanasia of cat same day cat was impounded. Theis v. Yuba County Sheriff's Department, Slip Copy, 2019 WL 3006261 (E.D. Cal. July 10, 2019). The Plaintiffs allege that their cat, Pizza, was unlawfully euthanized at Yuba County Animal Care Services shelter 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. The Plaintiffs contend that Pizza’s euthanization falls within an ongoing pattern and practice of abuse and failure to follow state and federal 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. 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.

Injury to pedestrian on his bicep did not rise to level of "serious injury" to warrant destruction order for dog. Reid v. Kramer, Not Reported in N.W. Rptr., 2019 WL 2866091 (Mich. Ct. App. July 2, 2019). Alpena County Animal Control filed a complaint against the respondents alleging that a black and tan German Shepherd named Bruiser had attacked or bit a person after the dog bit a jogger on the bicep and forearm. Respondents stated that Bruiser had never attacked or bitten anyone before and was raised around children. While the prosecutor clarified that euthanization was not being sought, the district court found that Bruiser had caused serious injury, noted the possibility of Bruiser injuring children in the future, and ordered Bruiser to be destroyed. After the circuit court affirmed the district court’s decision, respondents appealed to the Court of Appeals. While, the Court concluded that Bruiser fit the definition of a dangerous animal under the statute, it agreed with the Respondents that evidence was insufficient to support a conclusion that Bruiser caused serious injury or was likely to cause death or serious injury in the future. In order for an animal to be destroyed, it must be more than dangerous. Henderson’s injuries consisted of scrapes, puncture wounds, and three stitches. Those injuries did not rise to the level of a “serious injury” as defined under MCL 287.321(e). The district court did not properly interpret MCL 287.322 and based its decision solely on the fact that Bruiser had bitten someone once and concluded that because of that, the court knew that Bruiser was more likely to do so again. The Court of Appeals reversed and remanded to the district court.

Court allows public nuisance action by ALDF to proceed against roadside zoo in Washington. Animal Legal Def. Fund v. Olympic Game Farm, Inc., --- F.Supp.3d ----, 2019 WL 2191876 (W.D. Wash. May 21, 2019). This case has to do with the mistreatment and unsafe captivity of numerous animals kept at a roadside zoo in Sequim, Washington called Olympic Game Farm (OGF). The Animal Legal Defense Fund (ALDF) alleged that OGF’s failure to abide by the Federal Endangered Species Act, as well as alleged violations of Washington State animal cruelty laws created a public nuisance. OGF admitted one of the allegations, specifically, that they are not accredited but possess or display Roosevelt Elk. That was an admitted violation of Washington law which makes it unlawful for a non-accredited facility to possess such a species. That single admission supported ALDF’s public nuisance claim in addition to all of the other alleged state violations. The court stated that ALDF met the "low bar" of standing in a public nuisance context. Accordingly, OGF’s Motion to Dismiss was denied.

July 2019

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

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

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

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

June 2019

While a city is not exempt from nondiscrimination requirements of FHA, plaintiff must still meet burden that particular assistance animal accommodation is reasonable and necessary. Wilkison v. City of Arapahoe, 926 N.W.2d 441 (Neb.,2019). Brooke Wilkison (Brooke) got an American Staffordshire Terrier (pit bull) in 2015. In 2016, the city of Arapahoe passed an ordinance regarding dangerous dogs which contained a restriction on owning a Rottweiler or an American Staffordshire Terrier within city limits. The ordinance allowed for dogs licensed prior to January 1, 2017 to be grandfathered in as acceptable. Brooke did not have his dog licensed prior to the that date. After law enforcement told Brooke he could not keep the dog, he filed suit seeking a declaratory judgment and an injunction to prevent Arapahoe from implementing and enforcing the ordinance. The trial court found for Brooke and Arapahoe appealed. On appeal, this Court found that Arapahoe was not exempt from the strictures of the FHA. However, the Court found that Brooke failed to meet his burden of proof that his requested accommodation is necessary for him to receive the same enjoyment from his home as a non-disabled person would receive. Brooke already owned another dog and the ordinance only covered certain dog breeds. Brooke's other claims for relief were remanded to the district court.

NY state court gives legal deference to 2013 HUD guidance on assistance animals under FHA in finding that plaintiff's emotional support dogs was "necessary" for equal opportunity to use and enjoy dwelling.Hollendale Apartments & Health Club, LLC v. Bonesteel, --- N.Y.S.3d ---- , 2019 WL 2031263 (N.Y. App. Div., 2019). Plaintiff filed an action seeking a judgment declaring that the Plaintiff's refusal to permit the Defendant to have an emotional support dog was not in violation of the Fair Housing Act (FHA) and the Human Rights Law (HRL). The Plaintiff subsequently reduced the Defendant's lease renewal term to three months. The Defendant filed counterclaims on grounds of discrimination. The Supreme Court of New York also granted a motion allowing the Attorney General to intervene. The Attorney General asserted counterclaims on similar grounds to those raised by the Defendant. After a nonjury trial, the trial court issued a judgment that the Plaintiff's actions did not violate the FHA and the HRL. The Defendant then appealed. On appeal, the Court dismissed the Plaintiff's declaratory judgment. The Court then considered the Defendant's counterclaims since concrete injuries were alleged. The only two arguments addressed were whether the Defendant actually had a qualifying disability within the meaning of the FHA and the HRL and whether the accommodation requested was necessary to afford the Defendant an equal opportunity to use and enjoy his dwelling. The Court concluded that the Defendant met his burden to establish that he is disabled within the meaning of the FHA and HRL. The Court also found that the Defendant "offered sufficient evidence that having an emotional support dog would affirmatively enhance his quality of life by ameliorating the effects of his disability, and thus demonstrated necessity within the meaning of the FHA and the HRL." Lastly, the Court found that the Plaintiff retaliated against the Defendant by reducing his lease renewal terms to three months. Accordingly, Defendant was entitled to judgment in his favor on the retaliation counterclaims.

Evidence sufficient for animal cruelty conviction where lack of food and water was seen before, during, and after defendant's absence due to hospitalization and expert testified that it "typically takes some time" for a dog to become underweight. State v. Schuler, --- N.E.3d ----, 2019 WL 1894482 (Ohio Ct. App., 2019). Appellant appeals his animal cruelty convictions. A deputy dog warden received a report from a deputy sheriff who observed a pit bull on appellant's property who was unable to walk and in poor condition while responding to a noise complaint. The deputy later returned to the appellant's home a few days later and found two Australian cattle dogs who were very muddy and in an outdoor kennel with no food or water. Numerous chickens, rabbits, mice, snakes, and raccoons were also observed inside and outside the house all living in cramped, filthy conditions. The deputy went to the hospital where appellant was and appellant signed a waiver releasing the raccoons and snakes to the wildlife officer, but the appellant refused to release the other animals to the deputy. Ultimately, Appellant was charged by complaints with five counts of cruelty to animals and two counts of cruelty to companion animals. An additional complaint was filed charging appellant with one count of cruelty to a companion animal (the euthanized pit bull). The appellant raised three errors on appeal. On the first error that the court lacked subject-matter jurisdiction to convict him of animal cruelty, the Court agreed with respect to several counts and vacated those convictions. The Court overruled appellant's second error because it found that the state had presented sufficient evidence to show that the appellant negligently failed to provide adequate food and water for the Australian cattle dogs. Appellant raised a third issue with the Court ordering him to pay $831 in restitution. The Court also overruled this error since the appellant stipulated to paying the restitution. The judgment of the trial court was affirmed in all other respects.

May 2019

Plaintiff's future intention to move to town with her two pit bulls insufficient to confer standing to challenge BSL ordinance. Frost v. Sioux City, Iowa, 920 F.3d 1158 (8th Cir. 2019). Plaintiffs challenged the constitutionality of a ban making it “unlawful for any person to own, possess, keep, exercise control over, maintain, harbor, transport or sell within the City of Sioux City, Iowa, any pit bull.” The remaining plaintiff Myers admitted in deposition that she does not currently own a dog, nor does she currently reside in Sioux City, but that, in the near future, she intends to adopt a pit bull dog and take the dog to visit friends and family in Sioux City. Based on these facts, the district court, sua sponte, dismissed Myers' claims due to lack of standing. On review of that dismissal here, the appellate court first noted that, to show standing, Myers must have suffered an injury in fact. While the conduct of defendant Sioux City caused Myers injury in the past when they seized her two dogs, she must now face "a real and immediate threat" of similar injury in the future. Her intention to one day adopt a dog and take it to Sioux City does not suffice, according to the court. The declaratory judgment plaintiff seeks cannot redress a past injury. The court also found no abuse of discretion in not holding an evidentiary hearing on the dismissal prior to its sua sponte ruling. The judgment was affirmed. 

Marital Settlement Agreement (MSA) with provision for weekly visitation with pet dogs upheld by Rhode Island Supreme Court. Giarrusso v. Giarrusso, --- A.3d ----, 2019 WL 1606351 (R.I. Apr. 16, 2019). This case centers on a disagreement among former spouses concerning the ex-husband's visitation with their two dogs acquired during marriage. The couple entered into a Marital Settlement Agreement (MSA) formalizing the terms of the dissolution of Diane and Paul Giarrusso's marriage and giving Diane all title and interest to the dogs and Paul twice a week visitation. The weekly visitation proceeded according to the agreement for over a year, when Diane ceased allowing Paul's visits. Paul then filed a motion for post-final judgment relief citing breach of the agreement and Diane counterclaimed. A justice of the Family Court held a hearing on the issue, where each party testified and submitted associated texts and emails. In one recounted incident, one dog was missing for some time at Paul's house, causing Diane extreme distress, but was found to be accidentally locked in a closet. The hearing justice affirmed the visitation schedule of the MSA, denied Diane's requested relief, and awarded attorney fees to Paul. On appeal here, Diane argues that the hearing justice was "clearly wrong and overlooked material evidence when she found that Paul had acted in good faith." In particular, Diane contends that the dogs are chattel and Paul failed to provide safe conditions and return them to her in an undamaged condition. The Supreme Court held, in noting that the MSA retains the characteristics of a contract, that it would not overturn the hearing justice's determination in absence of mutual mistake in the contract (the MSA). There was no mutual mistake in the MSA's visitation provision and no basis for the hearing justice to conclude that the MSA needs to be reformed. The order of the Family Court was affirmed and the matter returned to Family Court.

Wrongful placement of feeding tube into cat's trachea "undisputed" causation in veterinary negligence action, despite cat's weakened state. 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 (Callie) 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. 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.” 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.

April 2019

HOA clubhouse must accommodate disabled person using service dog under FHA. Sanzaro v. Ardiente Homeowners Ass'n, LLC, --- F.Supp.3d ----, 2019 WL 1049380 (D. Nev. Mar. 5, 2019). Plaintiffs Deborah Sanzaro and Michael Sanzaro were homeowners and members of a homeowners' association (HOA). Three incidents occurred at the HOA clubhouse where Deborah Sanzaro attempted to enter with her Chihuahua, which she claimed was a service animal. In each of these three incidents, Deborah was denied access to the clubhouse. Plaintiffs filed a complaint with the Nevada Real Estate Division and their claim was submitted to a non-binding arbitrator, where the Arbitrator found for the Ardiente Homeowners Association because she did not find Deborah’s explanation as to why she needed the dog as being persuasive (later upheld). After arbitration and appeal, plaintiffs entered the clubhouse again with the dog on two separate occasions and were told they needed to provide documentation showing the dog was a registered service dog. The HOA eventually foreclosed on the plaintiff’s home in order to recover the fines and attorney’s fees that were owed. Plaintiffs then filed in federal court for 102 causes of action, which were pared down to: (1) whether the HOA clubhouse was a place of public accommodation under the ADA and NRS § 651.075, and (2) whether Plaintiffs requested, and were ultimately refused, a reasonable accommodation under the FHA. For the ADA claims, the District Court found that Deborah is disabled as a matter of law and that the HOA and other defendants were aware of her disability at least as of date of the arbitration. However, the clubhouse was not a place of public accommodation and, as a result, the plaintiffs were not able to establish a claim for disability discrimination under the ADA. For the plaintiff’s FHA claims, the Court that Deborah was qualified as handicapped under the FHA and that defendants were reasonably expected to know about her handicap. Further, an accommodation was necessary for Deborah to use the clubhouse, the dog qualified as a service animal, and permitting the dog to accompany Deborah was a reasonable accommodation that the defendants refused to make. Plaintiffs prevailed on their FHA claims only, and were awarded $350,000 in compensatory damages, $285,000 in punitive damages and attorneys’ fees and costs of litigation. 

"Amusement or gain" under PA animal fighting law established where defendant sought personal gain through retribution. Commonwealth v. Baumgartner, --- A.3d ----, 2019 WL 1010357 (Mar. 4, 2019). Appellant Charles Baumgartner was charged and convicted of animal fighting for amusement or gain as a result of an incident that occurred on March 9, 2017. Baumgartner brought his white pit pull named "Menace" to fight a pit bull that belonged to Adam Aviles. Police learned of the dog fight after being informed a video of the fight had been uploaded to social media. Baumgartner was ultimately charged with animal fighting and assaulting Mr. Aviles but was convicted by jury only of animal fighting. On appeal, Baumgartner contends that his conviction should be set aside because the Commonwealth failed to present any evidence of amusement or gain as required by statute. As a matter of first impression, this Court considered the term "amusement or gain" as an element of the animal fighting, which is undefined in the anti-cruelty laws. The court found that no cases or other jurisdiction defines the term with respect to animal fighting, and thus, under principles of statutory interpretation, relies on the common usage and dictionary definitions. The court found that there was sufficient evidence admitted a trial for the jury to find beyond a reasonable doubt that Baumgartner allowed his dog to engage in animal fighting for amusement or gain, i.e., for “pleasurable diversion” or “advantage acquired or increased.” The Court concluded that Baumgartner facilitated the dog fight as a means of retribution against Aviles for a prior dog fighting incident. Therefore, his motive was personal gain. Accordingly, the Court affirmed Baumgartner’s conviction. Judge Pellegrini dissented stating that she does not believe that retribution is the type of amusement or gain within the meaning of the statute. She interprets the statute as outlawing animal fighting as a sport rather than all animal fights.

Remand appropriate to determine merits of PETA's challenge to redacted USDA animal welfare records unless shown to be moot. People for the Ethical Treatment of Animals v. United States Dep't of Agric. & Animal & Plant Health Inspection Serv., 918 F.3d 151 (D.C. Cir. Mar. 15, 2019). Plaintiffs PETA sought documents from the Animal and Plant Health Inspection Service (APHIS), the entity within the USDA that administers the Animal Welfare Act (AWA). The USDA took a large amount of documents off of its website relating to AWA compliance, claiming the removal was for the purpose of removing certain personal information and suggesting removal was temporary in nature. The plaintiffs filed suit asking for declaratory and injunctive relief and invoking a provision known as FOIA’s reading room provision (5 U.S.C. section 552(a)(2)). The appeal centers on the reposted records and the dismissal of the plaintiff’s claims by the district court. Ultimately the Court held that for the reposted records featuring new redactions, the complaint was most plausibly read as requesting that USDA repost all information that those records contained before their takedown. The Court stated that the district court should proceed to the merits on remand. As to “voluntary cessation,” the Court affirmed the mootness dismissal as to the research reports but remanded for further explanation as to the inspection reports and the entity lists. If the agency unambiguously commits to continued posting of those documents, plaintiffs' claims should be dismissed as moot, without discovery, even if USDA continues to regard its postings as voluntary.

March 2019

Summary judgment appropriate where plaintiff used bare hands to break up dog fight, thereby assuming risk of injury. Saulsbury v. Wilson, --- S.E.2d ----, 2019 WL 493695 (Ga. Ct. App. Feb. 8, 2019). Plaintiff Saulsbury was walking her English Bulldog past Defendant Wilson's house when Wilson's pitbull dog escaped its crate in the open garage. A fight ensued between the dogs. Wilson then attempted to break up the fight and was allegedly bitten by Saulsbury's dog, suffering a broken arm in the process and necessitating  a course of rabies shots. Both parties filed suit. The Court of Appeals here reverses the trial court's denial of summary judgment requested by the Saulsburys. The court found that Wilson assumed the risk when she intervened in a dog fight with her bare hands. Assumption of risk serves as a complete defense to negligence. That finding was bolstered by the fact that Wilson had knowledge that her dog had previously bitten other persons and had admitted to breaking up previous dog fights with a stick. The court was not persuaded by the fact that Saulsbury may have been in violation of various DeKalb County ordinances related to an owner's responsibility to control his or her animal. A plain reading of those ordinances does not impose a duty on the part of an owner to "dangerously insert herself into a dog fight." The court found the lower court erred in denying the Saulsbury's motion for summary judgment and reversed and remanded the case. 

Rooster limitation county ordinance is not unconstitutional. Perez v. County of Monterey, --- Cal.Rptr.3d ---- 2019 WL 621483  (Cal. Ct. App. Feb. 14, 2019). Plaintiffs sued to challenge the validity of the County of Monterey rooster-keeping ordinance, seeking a declaratory judgment that the law is unconstitutional. The ordinance limits residents to no more than four roosters on a single property without a rooster keeping permit and also describes care and keeping requirements. The trial court found that the ordinance did not violate the constitution and entered judgment for the City. With respect to the Fifth Amendment taking challenge, the court found that the regulatory takings argument failed because there is no evidence that the ordinance affected plaintiffs or that they even applied for or were eligible for a permit. As to the interstate commerce challenge, plaintiffs provided no evidence that the ordinance would cause excess roosters to be divested from owners and sold in commerce to support this claim. As to Equal Protection, the plaintiffs correctly assert that the ordinance treats people differently based on age (i.e., students engaged in 4-H or FFA activities are exempted from the four-rooster limitation). However, the court found that the county stated a legitimate objective of public health and safety and this differential treatment of a non-suspect class advances that interest. The judgment was affirmed.

State has legitimate interest in banning bestiality, regardless that adults engaged in activity were consenting. Warren v. Commonwealth, 822 S.E.2d 395 (Va. Ct. App., 2019). Defendant Warren videotaped on his cell phone sexual encounters he had with K.H. and her dog. In March of 2017, a deputy spoke to Warren about an unrelated matter, and then Warren asked the deputy if "bestiality type stuff" was "legal or illegal," described the cellphone videos, and offered to show them to Reynolds. Subsequently, law enforcement obtained a search warrant and removed the videos from Warren's cellphone. Warren was indicted and moved to dismiss the indictment arguing that Code § 18.2-361(A) is facially unconstitutional and unconstitutional as applied to him. He further argued that the conduct depicted in the videos could not be subject to criminal sanction because it amounted to nothing more than consensual conduct involving adults. The trial court denied Warren's motion to dismiss. On appeal, this court reasoned that although § 18.2-361(A) cannot criminalize sodomy between consenting adults, it can continue to regulate other forms of sodomy, like bestiality. The only right the statute could possibly infringe on would be the right to engage in bestiality. The Commonwealth has a legitimate interest in banning sex with animals. The Court rejected Warren's challenge to the constitutionality of the statute and affirmed the judgment of the trial court.

February 2019

Agreement to transfer gorilla from The Gorilla Foundation to Cincinnati Zoo upheld despite concerns for gorilla's health. ZOOLOGICAL SOCIETY OF CINCINNATI, Plaintiff, v. THE GORILLA FOUNDATION, et al., Defendants, Slip Copy, 2019 WL 414971 (N.D. Cal. Feb. 1, 2019). The Plaintiff, Zoological Society of Cincinnati, entered into an agreement with The Gorilla Foundation (TGF) for the purpose of transferring a gorilla, Ndume, to TGF in the hopes that the gorilla would mate with a gorilla already living at TGF. The gorilla was transferred, but the mating never happened. In 2015 the Zoo and TGF entered into a new agreement that stated if KoKo, the gorilla Ndume was supposed to mate with, predeceased him, Ndume would be transferred to an AZA accredited institution. TGF failed to make arrangements to transfer the gorilla after Koko died. The Zoo brought this action to enforce the agreement and for summary judgment. The Court ultimately granted the Zoo’s motion for summary judgment and held that the Ndume was to be transferred back to the zoo. 

Failure of USDA to promulgate bird-specific regulations not arbitrary and capricious because not required by AWA. Am. Anti-Vivisection Soc'y v. United States Dept. of Agric., --- F.Supp.3d ----, 2018 WL 6448635 (D.D.C. Dec. 10, 2018). The American Anti-Vivisection Society and the Avian Welfare Coalition sued the Department of Agriculture and its Secretary alleging that the Department's failure to promulgate bird-specific regulations is unreasonable, unlawful, and arbitrary and capricious in violation of the APA. The Department moved to dismiss the Plaintiff's claims arguing that the Plaintiffs lack standing to sue, that it is not required by law to promulgate regulations for birds, and that it has not taken a final action reviewable by the court. The District Court ultimately held that, although the Plaintiffs have standing to sue, their claims fail. The Department is not required by the Animal Welfare Act to issue avian-specific standards; rather, it must to issue welfare standards that are generally applicable to animals. Secondly, although the Department has not taken any action to develop avian-specific standards, that does not mean that will not do so in the future. The District Court granted the department's motion to dismiss.

State has legitimate interest in banning bestiality, regardless that adults engaged in activity were consenting. Warren v. Commonwealth, 822 S.E.2d 395 (Va. Ct. App., 2019). Defendant Warren videotaped on his cell phone sexual encounters he had with K.H. and her dog. In March of 2017, a deputy spoke to Warren about an unrelated matter, and then Warren asked the deputy if "bestiality type stuff" was "legal or illegal," described the cellphone videos, and offered to show them to Reynolds. Subsequently, law enforcement obtained a search warrant and removed the videos from Warren's cellphone. Warren was indicted and moved to dismiss the indictment arguing that Code § 18.2-361(A) is facially unconstitutional and unconstitutional as applied to him. He further argued that the conduct depicted in the videos could not be subject to criminal sanction because it amounted to nothing more than consensual conduct involving adults. The trial court denied Warren's motion to dismiss. On appeal, this court reasoned that although § 18.2-361(A) cannot criminalize sodomy between consenting adults, it can continue to regulate other forms of sodomy, like bestiality. The only right the statute could possibly infringe on would be the right to engage in bestiality. The Commonwealth has a legitimate interest in banning sex with animals. The Court rejected Warren's challenge to the constitutionality of the statute and affirmed the judgment of the trial court.

January 2019

Warrantless entry onto property not justified where prosecution failed to establish evidence that animals were in "imminent danger." People v. Panetta, --- N.Y.S.3d ----, 2018 WL 6627442, 2018 N.Y. Slip Op. 28404 (N.Y. App. Term. Dec. 13, 2018). Defendant was convicted of animal cruelty, inadequate shelter, and failing to seek veterinary care for her numerous dogs. Following inspections about a month after a warrantless entry, inspectors found dogs suffering from broken bones and other injuries (including one dog with "a large tumor hanging from its mammary gland area") were seized and subsequently euthanized. As a result, defendant was arrested and charged with 11 violations of Agriculture and Markets Law § 353 and local code violations. Defendant then moved to suppress the physical evidence and statements taken during the initial warrantless entry onto her property and the evidence obtained after that during the execution of subsequent search warrants, arguing that the initial warrantless entry tainted the evidence thereafter. Relying on previous holdings that allow the emergency exception in cases where animals are in imminent danger of health or need of protection, this court found that the prosecution failed to establish the applicability of the emergency doctrine. In particular, the court was troubled by the fact that, on the first visit, the officers crossed a chain fence that was posted with a no trespassing sign (although they testified they did not see the sign). While in hindsight there was an emergency with respect to the dogs, the court "cannot retroactively apply subsequently obtained facts to justify the officers' initial entry onto defendant's property." As a result, the court remitted the matter to the City Court for a determination of whether the seizures of evidence after the initial illegal entry occurred under facts that were sufficiently distinguishable from the illegal entry so to have purged the original taint.

Exigent circumstances exception to warrant requirement for feared medical emergency and plain view exception exist until officers determine animal is dead in animal cruelty case. State v. Archer, --- So.3d ---- 2018 WL 6579053 (Fla. Dist. Ct. App. Dec. 14, 2018). In 2017, police responded to defendant's residence after receiving a call about possible animal abuse. Upon arrival, Officer Bines heard dog commands and the sounds of "striking flesh." Bines told Archer that he was there to investigate a complaint of possible animal abuse to which Archer acknowledged that his dog bit him after he disciplined the dog for making a mess, so he "hit him a couple times." Ultimately, Bines followed Archer to the backyard where Archer pointed to a dog in the corner that had its tongue out and was bloodied. Shortly thereafter, Bines determined the dog was dead. After being charged with animal cruelty, Archer moved to suppress the evidence obtained from the warrantless entry of his home. The appellate court found the officer "had reasonable grounds to believe that there was an urgent and immediate need to check on the safety and well-being of the dog and to connect the feared emergency to the house that they entered." Once entry is allowed based on exigent circumstances, items found in plain view may be lawfully seized. The officer saw the dog in the corner before he knew the dog was dead, so the exigency still existed. Re-entry into Archer's house to take photos after Archer was in the police car was a continuation of photographing evidence that was already found in plain view while the exigency existed (e.g., before the officers knew the dog was dead). The motion to suppress was affirmed in part and reversed in part.

Declaratory relief not appropriate where letters from county about possible consequences of keeping dangerous dog only created speculative fear and not bona fide dispute/justiciable controversy. Strickland v. Pinellas Cty., --- So.3d ----, 2018 WL 6518761 (Fla. Dist.Ct. App. Dec. 12, 2018). Strickland appealed an order dismissing with prejudice his complaint for declaratory relief against Pinellas County. The request stems from letters he received from Animal Services of Pinellas County about his dog. Strickland and a neighbor were involved in a dispute after their dogs attacked each other. The County sent two letters to Strickland, the first informing him that his dog had exhibited dangerous propensities, and the second, from an assistant county attorney, informing him of the possible criminal ramifications for keeping a dangerous dog or being an "Irresponsible Pet Owner" under the county code. As a result of these letters, Strickland filed a complaint in circuit court saying that he was not afforded any opportunity to dispute those claims and that he is entitled to have the threat of criminal prosecution removed. The County moved to dismiss Strickland's complaint arguing that he failed to allege a justiciable controversy and a bona fide dispute between the County and him. The trial court agreed and granted the County's motion, finding the letters were not accusatory and the case presented no justiciable issue. On appeal here, this court upheld the lower court's order because a speculative fear by Strickland that he may be subject to future consequences does not warrant declaratory relief and does not show imminent danger of prosecution. Affirmed.

December 2018

Appellate court will not substitute its judgment for jury who viewed defendant's large collection of animal fighting paraphernalia and communiques relating to cockfighting as sufficient evidence for AWA conspiracy conviction. United States v. Carrano, --- F.Supp.3d ----, 2018 WL 6314123 (S.D.N.Y. Dec. 4, 2018). Defendant Thomas Carrano was convicted after a jury trial of conspiracy to violate the Animal Welfare Act (AWA), 7 U.S.C. § 2131 et seq.  In the supporting investigation, officers eventually searched Carrano's property and seized extensive animal fighting paraphernalia, some of which was covered in chicken blood. Defendant was indicted on a single count of conspiring to violate the AWA and was subsequently convicted by jury. In this appeal, defendant contends that the government failed to prove he joined a conspiracy to violate the AWA and failed to prove the interstate commerce requirement for the conspiracy. He argues that the substantial evidence seized (e.g., training videos, gaffs, vitamin supplements, etc.) were consistent with showing chickens at a poultry show. The court noted that the jury made permissible inferences as to the evidence that were consistent with cockfighting, and that a reviewing court will not substitute its judgment for that judgment. In addition, Facebook and text messages from defendant evidence the furtherance of a conspiracy. While defendant contends that the government failed to prove that he actually engaged in cockfighting during the relevant time period, the court stated that the conspiracy charge only required sufficient evidence showing defendant agreed to deal in chickens for a fight through interstate commerce. Defendant's motion for a judgment of acquittal or in the alternative a new trial was denied.

North Carolina dog owners have no ownership right to dog adopted out after required state holding period of 72-hours. SAM LAMBERT & ANDRIA LAMBERT v. SALLY MORRIS & STEVE HAIR, --- S.E.2d ----, 2018 WL 6314142 (N.C. Ct. App. Dec. 4, 2018). Plaintiffs appeal the trial court's grant of summary judgment in this lost dog case. Specifically, plaintiffs filed an action against defendants Sally Morris and Steve Hair alleging conversion, civil conspiracy, and other claims as well as injunctive relief and damages related to the disappearance of their dog, Biscuit. Biscuit was lost in 2015, and ended up being turned into local animal control a month after she went missing. She was held for the state mandatory 72-hour old and then transferred to the local humane society (who did necessary surgery and adopted the dog out). A year later, plaintiffs discovered Biscuit’s picture on an old Facebook post for the humane society and attempted to reclaim the dog (now adopted by Defendant Hair). Due to Defendant Hair’s concerns over the 14 other dogs plaintiffs possessed, he refused to give the dog back without a home visit, which plaintiffs refused. Plaintiffs filed suit and the trial court granted summary judgment in favor of defendants. On appeal, the court noted that an animal shelter must hold a lost dog for at least 72-hours under state law. Here, animal control satisfied its legal duty by keeping Biscuit in custody for the required holding period before transferring her to the Humane Society. Thus, plaintiffs lost any ownership rights to Biscuit after the 72-hour mark. Affirmed.

Trial court did not err in refusing to read MO right-to-farm amendment during instructions in animal abuse trial where defendant's conduct showed a "conscious object" to induce pain or suffering to horse. State v. Hammond, --- S.W.3d ---- 2018 WL 5913131 (Mo. Ct. App. Nov. 13, 2018). Defendant Hammond appeals his conviction for misdemeanor animal abuse in violation of § 578.012. Dispatched officers encountered defendant and a downed horse in the road with multiple injuries to its hooves, fetlocks, and lower legs. Defendant told the officer that he had been "doing farrier stuff to his horses and this particular horse had broke away from them five times and broke a couple of lead lines, burned some people’s hands, and that he was going to teach the horse a lesson." The jury convicted defendant of the lesser-included misdemeanor animal abuse. On appeal, defendant argues that the trial court erred by refusing to allow his counsel to read Missouri's right-to-farm amendment when it instructed the jury on the amendment. The court disagreed with defendant's contention that his prosecution criminalized a legitimate farming practice. The jury convicted defendant based on a finding that, when he pulled the horse behind his truck, his conscious object was to cause injury or suffering to the horse. While defendant contends that his was employing a legitimate, established farming technique to "train" the horse, the jury rejected his claim. Thus, the circuit court did not abuse its discretion when it refused to allow Hammond to read the right-to-farm amendment to the jury, and when it refused to instruct the jury on the amendment’s terms. Affirmed.

November 2018

Landry’s, Inc. v. Animal Legal Defense Fund, --- S.W.3d ----, 2018 WL 5075116 (Tex. App. Oct. 18, 2018). This is an appeal of dismissal of appellant Landry's claims under the Texas Citizens Participation Act (“the TCPA”) and the mandatory awarding of attorney fees and sanctions. Landry's operates the Houston Aquarium, Inc. The aquarium houses four white tigers in a human-made enclosure known as "Maharaja's Temple." Appellees, including the Animal Legal Defense Fund and its attorneys as well as a radio station owner (Cheryl Conley), asserted a variety of claims in connection with the publication of the notice of intent to sue under the Endangered Species Act due to the care and housing of the tigers. As a result of that notice and the associated publicity, Landry's asserted claims in the trial court for defamation, business disparagement, tortious interference with prospective business relations, abuse of process, trespass, conspiracy to commit each of these torts, and conspiracy to commit theft. The lower court granted Conley and ALDF's motion to dismiss. It also awarded $250,000 to ALDF and $200,000 to Conley. On appeal here, Landry again points to the allegedly defamatory statements released on social media (Twitter and Facebook) and through news media regarding the tigers' care. The court noted that many of the statements were non-actionable because they were not shown to be false statements of fact or were just opinions. Nonetheless, even on those statements where Landry's met their initial burden of proving a defamation claim, the statements were protected by the judicial-proceedings privilege ("attorney immunity"). The court lowered the attorneys' fees due to one attorney dropping from the appeal, and lowered the sanctions, which were 2.4 and 2.8 times the attorneys' fees awards. The court suggested a remittitur, which would bring those awards respectively to $103,191.26 and $71,295.00. Thus, the lower court's decision to dismiss Landry's claims was affirmed, but the awards for attorneys' fee and sanctions were modified.

Center for Biological Diversity v. U.S. Fish & Wildlife Service, --- F.Supp.3d ----, 2018 WL 4538622 (N.D. Cal. Sept. 21, 2018). Center for Biological Diversity ("CBD") filed an action for declaratory and injunctive relief under the Endangered Species Act, seeking protection for the Pacific fisher (a medium-sized brown mammal in the weasel family found only in North America). All parties moved for summary judgment. In April 2016, the Service withdrew the proposed listing, finding that: populations will persist in the future; wildfires will have beneficial consequences; there "may be" breeding and interchange with other populations; and there were only a small number of confirmed deaths due to toxicosis from anticoagulant rodenticides. This court first examined the effect of anticoagulant rodenticides on the Pacific fisher. The court found the Service's assessment of the increase of the emerging threat from toxicosis was arbitrary and capricious, and that the Service "cherry picked" the Gabriel study to say that the study was uncertain. In the end, the court granted plaintiff CBD motion for summary judgment and denied defendant Service's motion. The court directed the Service to prepare a new rule by March 22, 2019 (which denied plaintiff's motion for a 90-day rule and also denied the Service's request to "brief the timeline in order to evaluate staffing and budget constraints").

People v. Gordon, 2018 WL 4837574 (N.Y.Crim.Ct. Oct. 4, 2018). This New York case reflects Defendant's motion to dismiss the "accusatory instrument" in the interests of justice (essentially asking the complaint to be dismissed) for violating Agricultural and Markets Law (AML) § 353. Defendant's primary argument is that she is not the owner of the dog nor is she responsible for care of the dog, who slowly began to starve to death in defendant and her husband's backyard. Defendant claims the dog belongs to her "abusive and estranged" husband who left for Florida. While defendant asserts she has been a victim of domestic violence and has no criminal record, the People counter that defendant was aware of the dog's presence at her residence and allowed the dog to needlessly suffer. Despite the time bar, defendant did not meet her burden to dismiss in the interests of justice. The court noted that, even viewing animals as property, failure to provide sustenance of the dog caused it to suffer needlessly. In fact, the court quoted from in Matter of Nonhuman Rights Project, Inc. v. Lavery (in which denied a writ of habeas corpus for two chimpanzees) where the court said, "there is not doubt that [a chimpanzee] is not merely a thing." This buttressed the court's decision with regard to the dog here because "the Court finds that their protection from abuse and neglect are very important considerations in the present case."

October 2018

ESA citizen suit standing sufficient to defeat summary judgment met where plaintiff viewed maltreated zoo elephants on a “near daily” basis. Rowley v. City of New Bedford, --- F.Supp.3d ----, 2018 WL 4600647 (D. Mass. Sept. 25, 2018). Plaintiffs allege that two Asian Elephants, Ruth and Emily, were mistreated by the Buttonwood Park Zoo in New Bedford by chaining their legs, housing them in inadequate facilities, failing to provide proper socialization, and failing to provide adequate veterinary care, which gives rise to a "taking" under Section 9 of the ESA. Rowley claims that she is a member of the zoological society there and visits the elephants on a "near daily basis," resulting in “an aesthetic, emotional, and spiritual relationship with Ruth and Emily over the years.” The United States District Court asked both parties to brief on the issue of standing for the instant action. The court first noted that the ESA expressly authorizes citizen suits for injunctive relief. With regard to the injury in fact analysis, the court found that plaintiff established the proper “animal nexus” and rejected New Bedford’s "nonexistent requirement into the injury in fact analysis" that Rowley must have observed or will observe Asian elephants in their native habitats. As a result, the court found Rowley properly established injury in fact. The other prongs of causation and redressability were also met at this stage. The District Court ultimately held that Rowley demonstrated sufficient standing to pursue her claims and New Bedford's motion to dismiss was denied.

Court of Appeals holds trial court did not err when it entered 13 separate convictions for unlawful possession of an animal for each individual animal. State v. Crow, --- P.3d ----, 294 Or. App. 88 (2018). This Oregon case discusses whether 11 miniature horses, multiple cats, and a dog are separate victims for purposes of merger into one conviction. Defendant appeals a judgment of conviction for 13 counts of unlawful possession of an animal by a person previously convicted of second-degree animal neglect. The facts are not at issue: defendant was previously convicted of multiple counts of second-degree animal neglect involving dogs and miniature horses and was subsequently found to be in possession of those animals. On appeal, defendant's primary argument is that "the public is the single collective victim" for purposes of the violation, so the trial court erred in entering 13 separate convictions for unlawful possession of an animal. In support, defendant analogizes it to unlawful possession of a firearm by a felon, where the public is deemed the collective victim for purposes of merger. The court found that the text of statute shows an intent to protect individual animals of the same genus as previous crimes rather than protection of the public, generally. The court concluded that the principal purpose of ORS 167.332(1) was to protect individual animals from further abuse and neglect, and to deter animal abuse and neglect where those individuals convicted show "an identifiable threat to a particular genus of animal." Affirmed.

Pet dogs not “stock” for purposes of awarding attorney fees under Texas Civil Practice Law. Palfreyman v. Gaconnet, --- S.W.3d ----, 2018 WL 4624208 (Tex. App. Sept. 27, 2018). This Texas appeals presents the unique question of whether companion animals, specifically "pet dogs," can be considered "stock" for awarding attorney fees under Texas Civil Practice and Remedies Code section 38.001(6) in lawsuits concerning their injury or death. The trial court awarded negligence damages after where Palfreyman's two dogs died at appellees' dog boarding business, but did not award attorney fees. On appeal, the Court of Appeals examined the word "stock" as used in the cited law. While there is no definition in the Texas Civil Practice and Remedies Code and the word "stock" is rarely used in Texas statutes, the term "livestock" is defined in several instances. In particular, the Penal Code distinguishes "livestock" from "nonlivestock animals" that include domesticated dogs. Thus, the court concluded the term “stock” in section 38.001(6) does not include pet dogs and appellant was not entitled to attorney fees under Section 38.001(6).5. The trial court's judgment was affirmed. 

September 2018

On issue of first impression, federal COA holds that service animal regulations for Americans with Disabilities Act (ADA) apply to Rehabilitation Act (RA). Berardelli v. Allied Services Institute of Rehabilitation Medicine, --- F.3d ----, 2018 WL 3849363 (3d Cir. Aug. 14, 2018). This case presents an issue of first impression in the Court of Appeals: whether regulations on service animals, which technically apply only to reasonable accommodations under the Americans with Disabilities Act (ADA), require that individuals with disabilities be allowed to be accompanied by their service animals under the Rehabilitation Act (RA). The facts involve an elementary student with dyslexia and epilepsy who sought to be accompanied by her service dog to school. The child's parent subsequently sued the school, arguing that the school had failed to accommodate the child under Section 504 of the RA. At District Court, the jury returned a verdict for the school. On appeal here, appellants argue that, because the subjective standards for liability under the RA and ADA are the same, the service animal regulations of the ADA should apply to the RA. The Court of Appeals first examined the history and relationship of the ADA and its precursor, the RA. As to the service animal regulations under the ADA, the Court held that, logically, the service animal regulations are relevant to the RA even though they technically interpret the ADA. This is supported by agency guidance in other contexts from HUD, the Dept. of Justice, and the Dept. of Labor. In essence, the Court now holds that a covered actor must accommodate the use of a service animal by an individual with a disability under the RA just as it must do under the ADA. While the "reasonableness" of that accommodation will be evaluated on a case-by-case basis, the request to be accompanied by a service animal is per se reasonable. Applying that holding to these facts, the Court found that the District Court did not correctly instruct the jury on the relevant law. The error was not harmless, and, despite the school's claim, there was not a high probability that the jury would have ruled in its favor if properly instructed. The judgment was vacated on the RA claim, reversed on the dismissal of the state discrimination claim, and remanded for further proceedings consistent with this opinion.

Deadly-weapons finding sufficiently supported where weapon was used or exhibited to humans during commission of animal cruelty. Galindo v. State, --- S.W.3d ----, 2018 WL 4128054 (Tex. App. Aug. 30, 2018). Appellant Galindo pleaded guilty to cruelty to nonlivestock animals after stabbing a dog with a knife and a deadly-weapon allegation from the indictment. The trial court accepted his plea, found him guilty, and sentenced him to five years in prison. On appeal, Galindo argues that the deadly-weapon finding is legally insufficient because the weapon was used against a "nonhuman." Appellant relies on the recent decision of Prichard v. State, 533 S.W.3d 315 (Tex. Crim. App. 2017), in which the Texas Court of Appeals held that a deadly-weapon finding is legally insufficient where the sole recipient of the use or exhibition of the deadly weapon is a nonhuman. The court here found the facts distinguishable from Prichard. The court noted that Prichard left open the possibility that a deadly-weapons finding could occur when the weapon was used or exhibited against a human during the commission of an offense against an animal. The judgment of the trial court was affirmed.

Barking dog public nuisance ordinance not unconstitutionally vague. Wallen v. City of Mobile, --- So.3d ----, 2018 WL 3803749 (Ala. Crim. App. Aug. 10, 2018). Wallen appeals her convictions for six counts of violating Mobile, Alabama's public nuisance ordinances. The nuisance convictions stem from an anonymous complaint about multiple barking dogs at Wallen's property. After receiving the tip in March of 2016, an animal control officer drove to the residence, parked across the street, and, as he sat in his car, heard dogs bark continuously for approximately ten minutes. For almost a year, officers received complaints about noise coming from Wallen's house. In May of 2017, Wallen's motion to dismiss the charges was denied, and a jury trial was held where Wallen was found guilty of six counts of violating Mobile's public-nuisance ordinance. On appeal, Wallen first argues that the public nuisance ordinance is unconstitutionally overbroad because it regulates without reference to time, place, and manner. However, the court found that Wallen did not establish how the overbreadth doctrine applied to her case and how the ordinance was unconstitutional. As to her next vagueness challenge, Wallen contended that the ordinance had no objective standards to determine whether a dog's barking is disturbing or unreasonable. This court disagreed, finding the statute defines what are "disturbing noises" (which specifically states barking), and other courts previously established that the term "habit" in a dog-barking statute is not vague. The judgment of the lower court was affirmed. 

August 2018

Defendant's show he had charge or custody of goats sufficient to sustain 19-count animal cruelty conviction. State v. Hearl, --- A.3d ----, 182 Conn. App. 237 (2018). Defendant Hearl was convicted of 19 counts of animal cruelty stemming from the care of his goat herd he used for his goat cheese manufacturing business in Connecticut in 2014. Defendant and his business partner moved a herd to Cornall, CT in May of 2014, where they rented an open air barn space (mainly used for dairy cows), but did not negotiate any boarding or care of the goats. As the condition of the goats deteriorated (to the point of death for some of the goats), another farmer who shared the barn space informed the state Dept. of Agriculture and this spurred the investigation which culminated in the seizure of defendant's remaining living goats in January 2015. On appeal of his conviction, defendant raises four main arguments: (1) the evidence adduced at trial was insufficient to sustain his conviction, (2) the trial court did not provide the jury with a proper instruction on the required mental state; (3) § 53–247 (a) is unconstitutionally vague as applied to his conduct; and (4) his conviction and sentencing on nineteen separate counts of animal cruelty violates the constitutional prohibitions against double jeopardy. As to defendant's first insufficiency of the evidence claim, the court found that there was ample evidence before the jury to support the finding that the defendant confined, or had charge or custody of, the goats. Not only did the defendant play an active role in the management of the goats according to testimony, but in conversations with officers, defendant “took the lead on telling me what was being done with the management of the goats” and that he “predominated the conversation” about the mortality rates in the herd. After the court dealt with each argument, the judgment was affirmed.

Wildlife Services' predator control plan needed full EIS where evidence showed use of unreliable data, a disregard for criticisms by other federal agencies, and the likelihood of uncertain environmental impacts. W. Watersheds Project v. USDA APHIS Wildlife Servs., --- F.Supp.3d ----, 2018 WL 3097016 (D. Idaho June 22, 2018). This action considers motions for summary judgment by both parties. At issue here is a plan by a branch of the USDA called Wildlife Services (WS), which is responsible for killing or removing predators and other animals that prey on wild game animals, threaten agricultural interests, or pose a danger to humans. As part of an expanded to plan to engage in predator control (PDM), WS prepared and circulated a draft Environmental Assessment (EA). After the comment period ended, instead of taking the criticisms and suggestions from the EA and then undertaking a more comprehensive Environmental Impact Statement (EIS), WS instead rejected most responses and labeled them as unconvincing or invalid. This led plaintiff to file suit against WS, arguing that the agency acted in an arbitrary and capricious manner by not preparing the EIS after comments to the EA. Not only was this court troubled by the lack of reliable data used by WS, but the WS’ “unconvincing responses” to agencies that had substantial experience managing wildlife and land-use concerns demonstrated to the court that the PDM is controversial and the environmental impacts were uncertain. This in and of itself necessitated an EIS under NEPA. The court held that the lack of reliable data, the unconvincing responses from WS, combine to trigger three intensity factors that combine to require WS to prepare an EIS. The plaintiffs' motion for summary judgment was granted and the defendant's motion for summary judgment was denied (the motion by plaintiff to supplement the administrative record was deemed moot).

Euthanasia order overturned for dangerous dog where injury was not shown to be a "protracted disfigurement." Fitzgerald v. Varney, --- N.Y.S.3d ----, 2018 WL 3488356 (2018). Defendants-Respondents appeal a judgment by the Town of Stony Creek Justice Court declaring their dog to be a "dangerous dog" and ordering euthanasia. On December 30, 2017, defendants’ dog bit their 12-year-old grandson on the upper lip. The child received emergency care and was eventually given injections and stitches to close the wound. At the close of the dangerous dog hearing initiated by the town dog control officer, the trial judge found by clear and convincing evidence that the dog was dangerous and caused "serious physical injury." This resulted in the court ordering that the dog be "killed" within 30 days absent any appeal. Here, the defendants do not challenge the dangerous dog determination, but instead challenge the euthanasia order based on a finding of "serious physical injury." Under Agriculture and Markets Law § 108(29), "serious physical injury" means "serious or protracted disfigurement." Here, this court found the evidence at trial did not show the size of the wound or the number of sutures, nor was there evidence scar was distressing to the victim or any person observing him. As such, there was insufficient evidence to show the injury was of a "protracted" nature. Therefore, the court modified the judgment by reversing the finding of aggravated circumstances and the order for humane euthanasia of the dog.

July 2018

Evidence showing dogs left for 2 hours in non-shaded vehicle on 87-90 degree day sufficient to sustain animal cruelty conviction. Commonwealth v. Arcelay, --- A.3d ---- 2018 WL 2927748 (June 12, 2018). The appellant Arcelay appeals his conviction for the summary offense of cruelty to animals after he left his two small Yorkie dogs were found inside of his vehicle on an 87 to 90 degree day for approximately two hours at Willow Grove Naval Air Station. After receiving a citation for leaving the animals, appellant entered a plea of not guilty and appeared for the Magisterial Judge. He was found guilty and assessed fines and cots of $454.96. At a Summary Appeal de novo hearing, the officers who responded to the scene presented evidence, including testimony on the dogs being in the car for two hours and photographs of the area showing no shade was available. The court ultimately found appellant guilty of the summary offense, but put appellant on a probation for three months in lieu of fines and costs, taking into account Appellant's lack income. On the instant appeal, appellant first questions whether the Court of Common Pleas had jurisdiction to hear this matter since it occurred on a military installation. Appellant also raises whether the evidence was insufficient as a matter of law for the cruelty to animals conviction. As to the jurisdictional argument, the court here found the issuance of the summary citation at the military base was appropriate. The court observed that it is well-settled that military and non-military courts may exercise concurrent subject matter jurisdiction for criminal matters. The court also found that there was sufficient evidence to support appellant's conviction, where his conduct in leaving the dogs in a closed car on a hot, summer day presented an unreasonable risk of harm. Affirmed.

Conviction for unlawful taking of grizzly bear in violation of ESA reversed after lower court applies improper self-defense standard. United States v. Charette, --- F.3d ---- 2018 WL 3117903 (9th Cir. June 26, 2018). Defendant Charette was convicted by bench trial of taking a grizzly bear behind his home in Montana in violation of the federal Endangered Species Act. On appeal, defendant challenges his conviction on three grounds: (1) there was insufficient evidence to infer that he did not have a permit to take the grizzly bear; (2) his request for a jury trial was improperly denied; and (3) the lower court incorrectly analyzed his self-defense claim under an objective standard as opposed to the correct subjective standard. On appeal here, the court observed that the plain language of the ESA and legislative history makes it clear that permits and exceptions under the ESA are affirmative defenses, and not elements of the crime. In this case, Charette had the burden of proving the existence of a valid permit, which he did not do at trial. The court also quickly dispensed with the Sixth Amendment jury trial issue, finding that the taking of a grizzly bear is a petty offense. As to defendant's last argument on his self-defense claim, this court did find that the trial court erred in applying an objectively reasonable standard. This error was not harmless because it affected defendant's decision to testify as to his subjective belief in the need for self-defense. As a result, this court reversed the district court's decision, vacated defendant's conviction, and remanded the case for further proceedings.

County petition for recoupment of costs associated with impoudment of dogs in cruelty case upheld. Bramblett v. Habersham Cty.,  --- S.E.2d ----, 2018 WL 3062146 (Ga. Ct. App. June 21, 2018). Defendants appeal from an order granting a petition for recoupment of costs filed by Habersham County pursuant to OCGA § 4-11-9.8, and a separate order directing the defendants to pay $69,282.85 into the court registry in connection with the boarding, treatment, and care of 29 dogs that the Brambletts refused to surrender after the County seized over 400 animals from their property. In April 2017, over 400 animals were removed from the Bramblett's property and they were charged with over 340 counts of cruelty to animals under Georgia law. There were 29 animals that were not surrendered and were running loose on the property. The current petition for recoupment of costs here refers to the care for those 29 animals, which were later impounded. The Brambletts appealed that order, arguing that the trial court erred in granting the County's petition without providing notice under OCGA § 4-11-9.4. The appellate court disagreed, finding that the procedure in OCGA § 4-11-9.8 applied because the notice provisions of OCGA §§ 4-11-9.4 and 4-11-9.5 only apply when the animal has been impounded “under” or “pursuant to this article” of the Georgia Animal Protection Act. Here, the animals were seized under as part of an investigation of violations of OCGA § 16-12-4 so the notice provisions did not apply. Affirmed.

June 2018

Arizona appellate court holds "dangerous offense" status applies only to crimes against humans and not animals. State ex rel. William Montgomery v. Brain, --- P.3d ----, 2018 WL 2348473 (Ariz. Ct. App., 2018). The special action considers whether a person who uses a dangerous instrument in committing an animal cruelty offense may be sentenced as a dangerous offender. The facts in the underlying case are as follows. A witness in an apartment complex heard a dog crying and observed Shundog Hu using a rod to hit a dog that was inside a pet enclosure. Hu was charged with both intentionally or knowingly subjecting an animal to cruel mistreatment, a felony, and under the "dangerous offense" laws because the animal cruelty "involved the discharge, use, or threatening exhibition of a pole and/or rod, a deadly weapon or dangerous instrument, in violation of A.R.S. §§ 13-105 and 13-704." This court accepted jurisdiction because " the State has no adequate remedy on appeal and the petition presents a legal issue of statewide importance." This court first examined the statutory definition for a "dangerous" felony offense: "an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” Applying principles of secondary interpretation and sensible construction, the court held that legislature's purpose in drafting the dangerous offense definition and the related statutes was to enhance crimes to “dangerous offenses” to protect human life. The State cannot charge a crime as a dangerous offense unless the target is against another person. In reaching this conclusion, the court aligned with a recent decision in Texas where a deadly weapon finding was limited to human victims only.

Genuine issue of fact existed on euthanization of plaintiff's healthy pet pigeons seized by animal control from his campsite. Recchia v. City of Los Angeles Dep't of Animal Servs., 889 F.3d 553 (9th Cir. 2018). The Fourth Amendment and Fourteenth Amendment claims arise from the 2011 warrantless seizure of Recchia's 20 birds (18 pigeons, one crow, and one seagull) kept in boxes and cages on the sidewalk where he lived (Recchia was homeless at the time). Animal control officers investigated Recchia after a complaint that a homeless man had birds at his campsite. Officers found cramped and dirty cages with several birds in "dire physical condition," although there is evidence the birds were in that condition before Recchia possessed them. After officers impounded the birds, a city veterinarian decided that all the pigeons needed to be euthanized due to concerns of pathogen transmission. Recchia discovered that the birds had been euthanized at his post-seizure hearing that was four days after impoundment of the animals. At that hearing, the magistrate found the seizure was justified under the operative anti-neglect law (California Penal Code § 597.1(a)(1)). This § 1983 and state claim action followed. The district court adopted the magistrate judge's report and granted summary judgment for the defendants. On appeal here, the district court judgment was affirmed on Fourteenth Amendment and state tort claims against the officers, but vacated summary judgment on the Fourth Amendment claims against the animal control officers and constitutional claims against the city. The court held that hold that there was a genuine factual dispute about whether the healthy-looking birds posed any meaningful risk to other birds or humans at the time they were seized (it affirmed the dismissal as to the seizure of the birds that outwardly appeared sick/diseased).

Town not entitled to reimbursement under negligence per se theory for violation of anti-cruelty law or award of unjust enrichment against local animal rescue. Town of Plainville v. Almost Home Animal Rescue & Shelter, Inc., 182 Conn. App. 55 (2018). This complaint by the Town of Plainville raised one count of negligence per se for defendant's failure to provide care for animals at its rescue facility, and count two of unjust enrichment for defendant's failure to reimburse the town for expenditures in caring for the seized animals. In 2015, plaintiff received numerous complaints and ultimately found that the conditions there were unsanitary, including unhealthy animals in need of medical care. The plaintiff then seized 25 animals from defendant and provided care for the animals at the town's expense. Soon thereafter, plaintiffs commenced an action to determine the legal status of the animals and requiring the defendant to reimburse the town for care expenses. Prior to a trial on this matter, the parties reached a stipulation agreement that provided for adoption of the impounded animals by a third party, but contained no provision addressing reimbursement by the defendant to the town. On appeal here, this court found "absolutely no language in the statute, however, that discusses costs regarding the care of animals subjected to acts of abuse or neglect or whether violators of § 53–247 have any obligation to compensate a municipality or other party." Thus, plaintiffs could not rely upon § 53–247 as a basis for maintaining a negligence per se case against the defendant. As to count two, the court rejected plaintiffs' unjust enrichment claim. If a statute exists that provides a remedy at law, the equitable solution is unavailable. The court found that Section 22–329a provides a remedy for a municipality seeking to recover costs expended in caring for animals seized as a result of abuse and neglect. The stipulation agreement signed and agreed to by the parties contained no provision for reimbursement and settled the matter before there was an adjudication that the animals were abused or neglected. As a result, the judgment was affirmed.

CA appellate court considers, as matter of first impression, whether same conduct can support conviction under Pen. Code, § 597, subds. (a) and (b). People v. Tom, 231 Cal. Rptr. 3d 350 (Ct. App. 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. 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) . . .” The court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct.  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.

May 2018

Court declines use of attorney fees under ESA as a “weapon” to close small zoos. Kuehl v. Sellner, 887 F.3d 845 (8th Cir. Apr. 11, 2018). Plaintiffs brought suit against defendants the Sellners and the Cricket Hollow Zoo to enjoin defendants' mistreatment of their animals in violation of the Endangered Species Act. Defendants ran a zoo with over 300 animals, including lemurs, tigers, cougars, monkeys and birds, among others. Several of the plaintiffs visited defendants' zoo and witnessed care that raised concerns about the animals' mental and physical well-being, especially lemurs and tigers. On appeal, defendants argued that plaintiffs lack standing. The court noted that "it is the violation itself" and not the search for it that has caused injury sufficient for standing for the plaintiffs. As to defendants' argument that they could not have violated the ESA because the AWA provides a "safe harbor" for licensed facilities, the court found that the AWA does not provide blanket immunity to the ESA. Finally, as to denial of plaintiffs' request for attorney fees and costs, the court found that plaintiffs were seeking fees to serve "as a vehicle to close Cricket Hollow." The court was concerned that the use of the ESA as a "weapon" to close small, privately-owned zoos was not envisioned by the Act. Hence, those circumstances justified the district court's decision to deny the motion for attorney fees. The lower court's decision was affirmed.

Evidence of breaking into house to take dogs supports burglary and petit larceny convictions. People v. Miller, 159 A.D.3d 1608 (N.Y. App. Div. 2018). In this New York case, defendant appeals his conviction for burglary in the second degree, petit larceny, and criminal contempt in the first degree. Defendant went back over to his girlfriend's house, climbed into her residence through a window, and took the dogs they used to keep together. After complainant called 911, defendant led police on a high speed chase; after being arrested, defendant claimed the dogs were licensed to him. The appellate court affirmed the convictions. Notably, two dissenting judges found that defendant "had at least a good faith basis for claiming an ownership interest the dogs." The dissent stated the dogs may have been jointly owned and that, prior to his arrest, "defendant simply intended to take the dogs for a walk and then return them."

CA appellate court considers, as matter of first impression, whether same conduct can support conviction under Pen. Code, § 597, subds. (a) and (b). People v. Tom, 231 Cal. Rptr. 3d 350 (Ct. App. 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. 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) . . .” The court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct.  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.

Claim of a "taking" of chimpanzee under ESA is not foreclosed because alleged violator is AWA licensed entity. Missouri Primate Foundation v. People for Ethical Treatment of Animals, Inc., Slip Copy, 2018 WL 1420239 (E.D. Mo. Mar. 22, 2018). This is a motion of counterclaim by defendants Missouri Primate Foundation to dismiss PETA's (the counterclaim plaintiff) assertion that two chimpanzees were being held in conditions that deprived the chimpanzees of adequate social groups, space, and psychological stimulation. PETA claimed that the Missouri Primate Foundation (MPF) (the counterclaim defendants) were holding the two chimpanzees in conditions that “harm” and “harass” the chimpanzees, thus violating the “take” prohibition of the Endangered Species Act (ESA). MPF contends that because the chimpanzees at its facility were lawfully in captivity and licensed by USDA–APHIS, so the chimpanzees cannot be subject to a “take” under the ESA. They further argued that PETA lacked standing as the AWA preempts or supersedes the ESA as to animals held at USDA licensed facilities. After examining similar cases, this court concluded that claims under the AWA and ESA are complementary and do not conflict, and that the ESA protects captive animals regardless of whether the alleged violator is an AWA licensed entity. The court found that the allegations by PETA are sufficient at this stage of the case and issues of proof are reserved for trial. As such, the court denied the motions of the counterclaim defendants

April 2018

Federal court denies Governor's motion to dismiss challenge to Iowa's "Ag Gag" law. Animal Legal Def. Fund v. Reynolds, --- F.Supp.3d ----, 2018 WL 1151000 (S.D. Iowa Feb. 27, 2018). In 2012, Iowa passed a statute that criminalized gaining access to agricultural facilities under false pretenses and making a false representation on a job application for those facilities. Plaintiffs in this case (animal rights groups including the Animal Legal Defense Fund and PETA) brought suit alleging that the statute was unconstitutional and sought to enjoin the Defendants (Governor of Iowa) from enforcing it. Their complaint alleged that the statute violates the First Amendment as discrimination on the basis of content, the Equal Protection Clause of the Fourteenth Amendment by targeting animal rights groups, and violates the Due Process Clause of the Fourteenth Amendment by burdening the freedom of speech. The court denies Defendants' motion with respect to the First Amendment, concluding that Plaintiffs have plausibly alleged the intent to suppress their message because of their viewpoint.

"Intent" for purposes of aggravated cruelty conviction in IL needs only an intent to cause the act, not an intent to cause the serious injury or death. People v. Robards, --- N.E.3d ----, 2018 IL App (3d) 150832. Defendant Robards appeals her conviction for aggravated animal cruelty after her two dogs, Walker and Sparky, were discovered in her previous home emaciated, dehydrated, and dead. She moved out of the home and into another home. When her current roommate went over to the prior home, she discovered Walker’s emaciated body on the living room floor, and police later discovered Sparky’s body in a garbage bag in the bedroom. On appeal, Robards concedes that the dogs both died from dehydration and starvation, and that she was the only person responsible for the dogs’ care. However, she argues that the prosecutor must prove that she intended to cause serious injury or death to the dogs. The court disagrees, stating that for conviction only the act need be intentional, and that the act caused the death or serious injury of an animal. Notably, the court observed that "defendant is very fortunate to have only received a sentence of 12 months' probation for these heinous crimes," and criticized the circuit court for its "unjustly and inexplicably lenient" sentence simply because defendant only caused harm to an animal and not a human being.

Foul odor from defendant's apartment that mimicked "dead body" sufficient to support emergency exception for police seizure of neglected pets. People v. Scott, --- N.Y.S.3d ----, 2018 WL 1279067 (N.Y.Crim.Ct. Mar. 13, 2018). Defendant was charged with two counts of Overdriving, Torturing and Injuring Animals and Failure to Provide Sustenance, in violation of section 353 of the Agriculture and Markets Law (“AML”). On September 11, 2017, two Police Officers were called to an apartment building because tenants of the apartment building were complaining about a foul odor coming from the defendant's apartment unit. It was suspected that a dead body might be in the apartment based on the Officers' experience. Under the emergency exception, the Officers searched the apartment for a dead body but did not find one, and instead found a male German Shepard dog and a domestic shorthair cat, both of which were malnourished and emaciated. The defendant challenged the seizure of the animals and the subsequent security posting for costs incurred by the ASPCA for care of the dog for approximately 3 months. The court held that the defendant did violate a section of Article 26 of the AML, and that there was a valid warrant exception applicable to this case. Further, the court held that $2,567.21 is a reasonable amount to require the respondent/defendant to post as security.

Claim of a "taking" of chimpanzee under ESA is not foreclosed because alleged violator is AWA licensed entity. Missouri Primate Foundation v. People for Ethical Treatment of Animals, Inc., Slip Copy, 2018 WL 1420239 (E.D. Mo. Mar. 22, 2018). This is a motion of counterclaim by defendants Missouri Primate Foundation to dismiss PETA's (the counterclaim plaintiff) assertion that two chimpanzees were being held in conditions that deprived the chimpanzees of adequate social groups, space, and psychological stimulation. PETA claimed that the Missouri Primate Foundation (MPF) (the counterclaim defendants) were holding the two chimpanzees in conditions that “harm” and “harass” the chimpanzees, thus violating the “take” prohibition of the Endangered Species Act (ESA). MPF contends that because the chimpanzees at its facility were lawfully in captivity and licensed by USDA–APHIS, so the chimpanzees cannot be subject to a “take” under the ESA. They further argued that PETA lacked standing as the AWA preempts or supersedes the ESA as to animals held at USDA licensed facilities. After examining similar cases, this court concluded that claims under the AWA and ESA are complementary and do not conflict, and that the ESA protects captive animals regardless of whether the alleged violator is an AWA licensed entity. The court found that the allegations by PETA are sufficient at this stage of the case and issues of proof are reserved for trial. As such, the court denied the motions of the counterclaim defendants

March 2018

Court affirms Board's denial of request to keep captive tigers in residential neighborhood. Hauser v. Ventura County Board of Supervisors, --- Cal.Rptr.3d ----, 2018 WL 94788718 (Cal. Ct. App., 2018). The plaintiff appeals her denial of a conditional use permit (CUP) to keep up to five tigers on her property in Ventura County, CA. 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, 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 public health, safety or welfare. The court noted that plaintiff bears the burden of demonstrating her entitlement to the permit. In fact, 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.  

USFWS’ disagreement with scientific study improperly heightened 90-day standard in endangered species citizen petition. Buffalo Field Campaign v. Zinke, --- F.Supp.3d ---- 2018 WL 646887 (D.D.C. Jan. 31, 2018). Plaintiffs Buffalo Field Campaign and other environmental groups petitioned the Fish and Wildlife Service ("Service") to add the Yellowstone bison population to the federal endangered species list. After the Service made a threshold “90–day” determination that Buffalo Field's petition failed to present sufficient scientific evidence that listing the bison may be warranted, Buffalo Field brought suit under the Administrative Procedure Act, alleging that the Service's determination was arbitrary and capricious. The United States District Court for the District of Columbia ruled that the Service applied an improper standard when evaluating Buffalo Field's petition, granted Buffalo Field's motion for summary judgment, denied the Service's cross-motion, and remanded the case for the agency to conduct a new 90–day finding using the proper standard. In particular, the court observed that the Service "simply picked a side in an ongoing debate in the scientific community," thereby in inappropriately heightening the standard of evaluation for a 90-day petition. Because of that, the court agreed with the Service that remand is the appropriate remedy as opposed to directing the Service to begin a 12-month review.

Injunction issued to prevent declaw of captive Big Cats because it constitutes a "taking" under the ESA - 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). 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. 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. The court held a hearing on the present Motion for Preliminary Injunction. In reviewing the factors supporting issuance of the 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

 

February 2018

MBTA and Mexico Convention do not require "same-species" theory for scientific taking of protected birds - Friends of Animals v. United States Fish & Wildlife Serv., --- F.3d ----, 2018 WL 343754 (9th Cir. Jan. 10, 2018). Friends of Animals, a non-profit animal advocacy organization, sued FWS after it issuing permits that allowed the scientific taking of barred owls, both lethally and non-lethally, for the purpose of preserving the habitat of the northern spotted owl, a threatened species. The two species compete with each other in the same territory in areas within Oregon and Northern California. Friends of Animals alleges that these permits are a violation of the Migratory Bird Treaty Act (MBTA) and the ‘same-species theory,’ meaning that the removal of a bird must be for the scientific purposes pertaining to the very species that was taken. On appeal, the Ninth Circuit affirmed the district court, holding that the plain text of the MBTA and Mexico Convention do not demand the same-species theory in the removal of a bird.  

"Taking" under the ESA involves a threat of serious harm to a protected animal - People for Ethical Treatment of Animals, Inc. v. Miami Seaquarium, --- F.3d ----, 2018 WL 385682 (11th Cir. Jan. 12, 2018). PETA, an animal rights organization, brought this action in July 2015 to enjoin the Miami Seaquarium. The injunction would force the marine park to relinquish possession of a killer whale, Lolita, by releasing her to a sea pen. The grounds for this injunction is an alleged violation of section 9(a)(1)(B) of the Endangered Species Act by the marine park when they confined the killer whale in such conditions that the confinement amounted to a taking of the endangered species of animal. The district court held for summary judgment in favor of the marine park, saying that to have taken an animal would require a grave threat or potential for a grave threat to the animal’s survival, and PETA did not provide evidence of conduct that met that standard. In this appeal, the court affirms the district court’s summary judgment, but disagrees with their standard for a taking of an animal. After lengthy analysis of the statutory language, this court lowers the standard to posing a threat of serious harm to the animal, rather than death of the animal. However, this court also holds that PETA did not prove that the Seaquarium’s confinement of Lolita met this standard either.

Conviction affirmed for "unjustifiably injur[ing]" cat by shooting with BB gun - State v. Josephs, --- A.3d ---- 2018 WL 576792 (Conn. Jan. 30, 2018). In this Connecticut case, defendant shot his neighbor's cat with a BB gun for trespassing in his yard. Animal control officers interviewed defendant who admitted he has a BB gun and shoots at cats to scare them away, but "he had no means of hurting any cats." At the trial level, defendant raised the argument that § 53–247(a) requires specific intent to harm an animal. The trial court disagreed, finding the statute requires only a general intent to engage in the conduct. On appeal, this court agreed with the lower court, finding the state legislature's use of two different terms within the same subsection showed that the clause under which defendant was convicted is only a general intent crime. As to a vagueness challenge, while the court agreed with defendant that "unjustifiably injures" is susceptible to other interpretations, defendant's conduct in killing a companion animal is not permitted under this or other related laws. Affirmed

 

January 2018

General bail bond cannot be automatically applied to animal care costs in IN cruelty case - Wolff v. State, --- N.E.3d ---- 2017 WL 5163662 (Ind. Ct. App. Nov. 8, 2017). This Indiana case addresses the status of animals seized in conjunction with a criminal animal cruelty case. Specifically, the appeal addresses whether the trial court erred in granting a local animal rescue the authority to determine disposition of the seized animals. Five horses, two mules, and two miniature donkeys were impounded and placed with a local animal rescue. Following this, the state filed a notice with the court that estimated costs of continuing care for the impounded animals. The court ultimately entered an order that allowed the rescue agency full authority to determine disposition of the animals after defendant failed to respond. In his current appeal of this order, defendant first claims that the trial court erred in giving the animal rescue such authority because defendant paid $20,000 in bail. The appellate court found that this money was used to secure defendant's release from jail and he did not request that the jail bond be used for the care of the animals. The court found that the legislature clearly intended the bail and bond funds are used for "separate and distinct purposes," so there was no way for the trial court to automatically apply this money to the animal care costs.  

Appellate court modifies order enjoining horse-drawn carriage protestors in NYC - Central Park Sightseeing LLC v. New Yorkers for Clean, Livable & Safe Streets, Inc., --- N.Y.S.3d ----, 2017 WL 6043994 (N.Y. App. Div. Dec. 7, 2017). This New York cases balances animal right protestors' First Amendment rights against the government's interest in preserving public safety and flow of traffic on public streets. Plaintiff here is a business that operates horse-drawn carriage rides in Central Park. Defendant is an animal rights organization that protests the horse-and-carriage industry, often demonstrating where carriage operators drop off and pick up customers. At issue is the manner in which defendants conduct their protests in the designated horse-drawn carriage zones. Finding the plaintiff's injunction was content-neutral, this reviewing court then considered whether the challenged portions of the injunction burden speech no more than is necessary to assert the significant government interest. The court agreed with defendant that the "floating buffer zone" of the original order would be difficult for a protestor to assess and would burden speech more than is necessary. Thus, this court modified the order to prohibit any person from knowingly approaching within nine feet of a person in the loading/unloading carriage zone (a “conversational distance," said the court). The order from the Supreme Court, New York County was modified as specified in this decision.

Applying objective instead of subjective self-defense standard in ESA grizzly bear killing case was not harmless error - United States v. Wallen, 874 F.3d 620 (9th Cir. 2017). Defendant appeals his conviction for unlawfully killing three grizzly bears in violation of the federal Endangered Species Act (ESA). The killing of the bears occurred on May 27, 2014 at defendant's residence in Ferndale, Montana ("bear country" as the court described). On appeal, defendant argued: (1) he should have been tried by a jury; (2) the magistrate judge did not correctly identify the elements of his offense, and that error was not harmless; and (3) the case should be remanded for a trial by jury in the interest of justice. On the second argument, the court agreed that magistrate erroneously relied on a self-defense provision from a federal assault case that required the "good faith belief" to be objectively reasonable. The court held that the "good faith" requirement for § 1540(b)(3) should be based on a defendant's subjective state of mind. "Under the Endangered Species Act, the reasonableness of a belief that an endangered animal posed a threat is likewise strong evidence of whether the defendant actually held that belief in good faith." As a result, the appellate court found the error by the magistrate in rejecting defendant's self-defense claim was not harmless. The conviction was vacated and proceedings remanded.

 

December 2017

"Serious bodily harm" provision in youthful offender law in MA does not apply to animalsCommonwealth v. J.A., --- N.E.3d ----2017 WL 5586666 (Mass. Nov. 20, 2017). A juvenile brutally attacked her friend's dog causing serious internal injuries. The Commonwealth elected to proceed against the juvenile under the state's youthful offender statute. The juvenile contends that the youthful offender indictments are not supported because "serious bodily harm" described in the law only relates to human beings and not animals. On appeal of the motion to dismiss, this court first examined the phrase "serious bodily harm" by looking at its plain meaning and other related statutes. In doing so, the court held that Legislature did not intend "serious bodily harm" language of the youthful offender law to apply to animal victims. When looking at the legislative history, the court found that the inclusion of the language reflected a growing concern about juveniles committing violent crimes (specifically, murder) and did not touch upon animals. The court noted while the crime here raises "grave concerns about the juvenile's mental health," the juvenile's conduct toward an animal did not meet the statutory requirements. 

OK Cruelty to Animals law addresses separate animal victimsState v. Gilchrist, --- P.3d ---- 2017 WL 5196712 (Okla., 2017). The Appellant State of Oklahoma appeals the granting of defendant's motion to quash counts 2-13 of Cruelty to Animals. Evidence at the preliminary hearing showed no dogs had adequate water and rotting carcasses were found within reach of the dogs. According to responding veterinarians, all dogs were extremely dehydrated and in need of immediate medical care, and most of the dogs were malnourished and poorly conditioned with parasite-infested wounds. At district court, defendant argued that he could only be charged with a single count of Cruelty to Animals because the dogs were found all in one location and had been abandoned for approximately the same time period. The district granted defendant's motion to quash. On appeal, the Supreme Court found the district court's interpretation wrong as a matter of law. The section repeatedly use the phrase "any animal" to show that the intent to address acts of abuse against any particular animal. "Gilchrist deprived all thirteen dogs of the food, water and shelter necessary to avoid the grotesque suffering observed at the scene." Thus, the Court found the district court abused its discretion in granting defendant's motion to quash.

Plain view evidence of dogfighting, including wounded dogs, sufficient to support NY dogfighting convictions - People v. Richardson, --- N.Y.S.3d ---- 2017 WL 5183187. In this New York case, defendant appeals from a three-county felony animal fighting conviction. Defendant's dog fighting activities came to light when police were dispatched to defendant's residence after defendant's wife reported a burglary in progress. Upon entry by consent, police found, in plain view, a wounded dog in a cage, several modified treadmills for use by dogs, blood on a water heater, and apparent dogfighting paraphernalia. After seeking a search warrant, the items were photographed and other evidence (supplements, training sticks, etc.) was collected. On appeal, the court rejected defendant's argument that the trial court erred by refusing to suppress all of the physical evidence as fruit of the poisonous tree. The court noted that the dogfighting paraphernalia were observed in plain view by responding policy officers. Additionally, police officers remaining at the house after the protective sweep to prevent the destruction of evidence while the search warrant was issued did not render the search unlawful. Viewing the evidence in the light most favorable to the prosecution, the court concluded that the evidence was sufficient to establish that defendant intended to engage in dogfighting and that the dogs were deprived of medical treatment. In addition to the paraphernalia and collection of literature on dogfighting, defendant's dogs had extensive scarring and healing consistent with dogfighting and inconsistent with defendant's proffered "cat-scratch" and "broken window" explanations. Defendant's convictions and judgment of sentence were affirmed.

 

November 2017

K-9 police officer did not 'step aside' from duties when he left dog to die in hot car - State v. Peabody, --- S.E.2d ----, 2017 WL 4801538 (Ga. Ct. App. Oct. 25, 2017). A Georgia former police lieutenant was indicted on two counts of aggravated cruelty to animals after he left his K-9 named Inka locked in his police vehicle with no ventilation while he attended to tasks inside his home (the dog died). The state appeals the trial court's grant of defendant's motion to quash the indictment. Specifically, the state argues that OCGA § 17-7-52 (a law that requires at least a 20-day notice to peace officer prior to presentment of a proposed indictment to a grand jury) is inapplicable. The state contends defendant "stepped aside" from his police-related duties and was therefore not afforded the protections of OCGA § 17-7-52. This court disagreed. Since Peabody was responsible for the care and housing of Inka as her K-9 handler, leaving her unattended, albeit in an illegal manner, was still in performance of his police duties. As such, Peabody was entitled to the procedural protections of the statute according to the appellate court. Affirmed.

Filming animal 'crush' videos and handing co-defendant knife to kill puppy sufficient to sustain state jail felony. Justice v. State, --- S.W.3d ----, 2017 WL 4697920 (Tex. App. Oct. 19, 2017). Brent Justice contends that his conviction for a single count of cruelty to a nonlivestock animal was based on insufficient evidence. The incident stemmed from defendant's filming of his co-defendant, Ashley Richards, torturing and killing of a newly-weaned puppy. Justice and Richards ran an escort business that focused on the production and distribution of animal "crush" videos. On appeal, defendant argues that he cannot be found guilty since was not the principal involved in the offense. This court was unconvinced, finding that the evidence was sufficient to support a state jail felony since "[t]here is no shortage of evidence that appellant aided Richards in her cruelty," including handing Richards the knife and filming the killing. The court deleted the deadly weapon finding since it was directed at the puppy rather than a human (limited by a recent case). The case was remanded for a new hearing on punishment only since the conviction was affirmed for a state jail felony.

Specific assistance animal that demonstrated vicious behavior was not deemed a reasonable accommodation - Gill Terrace Ret. Apartments, Inc. v. Johnson, --- A.3d ----, 2017 WL 4453007 (Vt. Oct. 6, 2017). This is an appeal of a trial court's ruling in favor of a landlord on a material violation concerning the keeping of a pet in violation of a no-pets policy. The facts show that the dog, "Dutchess," never attacked another person or pet, but it did display aggressive behavior, including lunging, baring her teeth, and rearing up on her hind legs. Other tenants expressed fear of Dutchess. After months of communication between landlord and tenant, a request to keep a pet as a reasonable accommodation was granted by landlord; however, the landlord did not approve of Dutchess as the specific animal due to concerns of behavior and hostility toward other residents. At an eviction hearing in June of 2016, the landlord's request to terminate the tenant's lease was granted by the court, which concluded that the reasonable accommodation for an assistance animal did not extend to Dutchess. On appeal, the Vermont Supreme Court noted that a request for an assistance animal as a reasonable accommodation may be denied if "the specific assistance animal in question poses a direct threat to the health or safety of others." While there was no dispute in this case that the tenant has a disability-related need for an ESA, there was credible evidence that supported the lower court's decision that Dutchess posed a threat and/or would cause substantial physical damage to the property.

New York wildlife rehabilitation rules for white-tailed deer deemed reasonable due to disease and evidence that rehabilitators "reluctant" to release/euthanize deer - Evelyn Alexander Wildlife Rescue Ctr. Inc. v. New York State Dep't of Envtl. Conservation, Slip Copy, 2017 WL 4868956 (N.Y. Sup. Ct. Oct. 12, 2017). Petitioners, licensed wildlife rehabilitators with New York Wildlife Rehabilitation Licenses (WRL), challenged two statewide modifications to the WRL pertaining to white-tailed deer, which became effective in 2016. The first modification limits the time white-tailed fawns can be held for rehabilitation to a period of only April 15 to September 15 (absent prior written approval). The second modification limits the maximum holding period for an adult white-tailed deer (before release or euthanization) to 48-hours. This court did not find either modification was arbitrary, capricious, or an abuse of discretion. The state contends they are intended to prevent habituation and the spread of chronic wasting disease (CWD). It was also based on scientific research conducted by the state's "Big Game Team" that sought to address issues of disease as well as "a documented pattern of licensed wildlife rehabilitators in New York who have been reluctant to either euthanize or release white-tailed deer." As adult deer, there was a rational basis since that time period allows the care of a temporarily stunned deer in need of a short rehabilitation period balanced against disease and habituation concerns. The petitions in this consolidated action were denied in their entirety and the proceeding dismissed.

 

October 2017

Seventh Circuit upholds Chicago ordinance banning sale of animals from large-scale, commercial breeders (i.e., "puppy mills") - Park Pet Shop, Inc. v. City of Chicago, --- F.3d ----, 2017 WL 4173707 (7th Cir. Sept. 21, 2017). Local pet stores and breeders brought an action against the validity of a city ordinance limiting the sources from which they may obtain dogs, cats, and rabbits for resale. They stake their claim on the grounds that the ordinance goes beyond Chicago’s home-rule powers under the Illinois Constitution and violates the implied limits on the state power imposed by the Commerce Clause of the United States Constitution. Petitioners appeal the district court’s dismissal of case for failure to state a claim. The Court of Appeals affirmed, holding that the Illinois Constitution allows Chicago to regulate animal control and welfare concurrently with the state so long as no state statute specifically limits the municipality. Further, the court rejected the argument that the ordinance discriminates against interstate commerce. The court of appeals affirmed the district court's dismissal of the suit for failure to state a claim.

Observing dogs in distress and prior calls reporting concerns sufficient to support search warrant and withstand motion to quash - People v. Williams, 15 Cal. App. 5th 111 (Cal. Ct. App. 2017), reh'g denied (Sept. 20, 2017). Defendants were convicted of felony dog fighting and felony animal cruelty. On appeal, defendants sought to suppress evidence and to quash and traverse the search warrant that led to their convictions. Police officers responding to a report of a thin, loose, horse near the defendants' home entered the property in order to make reasonable attempts to secure the loose horse and determine if there was a suitable corral on the property. The officers knew there had been prior calls to the property in response to reported concerns about the conditions of horses and pit bulls on the property. Further, one officer heard puppies barking inside the home when she knocked on the door trying to contact defendants, and another officer heard a dog whining from inside the garage. There were strong odors of excessive fecal matter reasonably associated with unhealthful housing conditions. Under those circumstances, it was reasonable for the officers to be concerned there was a dog in distress inside the garage and possibly in need of immediate aid. As a result, the court ruled that the information the officers had justified the issuance of the search warrant. The defendants' judgments of conviction were also affirmed.

Ninth Circuit upholds FWS' finding that the "desert eagle" is not a distinct population segment for ESA protection - Ctr. for Biological Diversity v. Zinke, 868 F.3d 1054 (9th Cir. 2017). In this case, the Center for Biological Diversity and Maricopa Audubon Society (collectively “CBD”) challenged the determination of the U.S. Fish and Wildlife Service (“FWS”) that the Sonoran Desert Area bald eagle (“desert eagle”) is not a distinct population segment (“DPS”) eligible for listing under the Endangered Species Act. There are two requirements for DPS status: (1) the discreteness of the population segment in relation to the remainder of the species to which it belongs, and (2) the significance of the population segment to the species to which it belongs. Here, the parties agreed that the desert eagle population is discrete, but they disputed whether the population is significant. CBD argued that if FWS found that a population segment satisfies any of the four listed significance factors, it is required to conclude that the population segment is significant. The court held that FWS did not act arbitrarily and capriciously in concluding that the desert eagle did not satisfy significance requirement for being a DPS, even though it found that the desert eagle satisfied the persistence requirement and one significance factors. The district court's grant of summary judgment to FWS was affirmed.

No, you cannot use a hovercraft to hunt moose on federal lands, says Court - Sturgeon v. Frost, --- F.3d ----, 2017 WL 4341742 (9th Cir. Oct. 2, 2017). Sturgeon sought to use his hovercraft in a National Preserve to reach moose hunting grounds. Sturgeon brought action against the National Park Service (NPS), challenging NPS’s enforcement of a regulation banning operation of hovercrafts on a river that partially fell within a federal preservation area in Alaska. Alaskan law permits the use of hovercraft, NPS regulations do not; Sturgeon argued that Park Service regulations did not apply because the river was owned by the state of Alaska. Sturgeon sought both declaratory and injunctive relief preventing the Park Service from enforcing its hovercraft ban. On remand, the Court of Appeals held that regulation preventing use of hovercraft in federally managed conservation areas applied to the river in the National Preserve. While the hovercraft ban excludes "non-federally owned lands and waters" within National Park System boundaries, this court found that the waterways at issue in this case were within navigable public lands based on established precedent. The district court's grant of summary judgment to defendants was affirmed.

 

September 2017

No "legitimate" property interest in unlicensed dogs to support § 1983 action against police - Smith v. City of Detroit, Slip Copy, 2017 WL 3279170 (E.D. Mich., 2017). Plaintiff-dog owners brought a 42 U.S.C. § 1983 action based on unlawful seizure their dogs in violation of the Fourth Amendment. The shooting of the dogs occurred during a drug raid pursuant to a search warrant. One of the dogs escaped his barricade in the basement and was shot after allegedly charging the officers. The other dog "opened and closed the bathroom door by himself" according to testimony of the officers in their depositions, information that was absent from initial police reports according to the court. The last dog was shot as she began "charging" up the basement stairs while officers were at the top of the stairs. In analyzing the plaintiffs' Fourth Amendment interests in their dogs, the court held that because plaintiffs failed to properly license their dogs under Michigan law, they did not have a "legitimate possessory interest protected by the Fourth Amendment." Thus, plaintiffs' claims based on the Fourth Amendment were dismissed. Specifically, the court stated, "in the eyes of the law it is no different than owning any other type of illegal property or contraband." The individual officers' actions were also found to be reasonable based on the "imminent threat" of the dogs. As to the Monell claim, plaintiffs failed to establish a pattern of violations showing deliberate indifference that is sufficient to establish municipal liability. The court subsequently granted defendants' motion for summary judgment.

Whether care of threatened species is "generally accepted" must be determined under ESA harassment/taking analysis - Hill v. Coggins, --- F.3d ---- 2017 WL 3471259 (4th Cir., 2017). In 2013, Plaintiffs visited Defendants' zoo, the Cherokee Bear Zoo, in North Carolina where they observed four bears advertised as grizzly bears in substandard conditions. Plaintiffs filed a citizen suit in federal district court alleging the Zoo's practice of keeping the bears was a taking of a threatened species under the federal Endangered Species Act (ESA). On appeal to the Fourth Circuit, this Court first found Plaintiffs established Article III standing for an aesthetic injury. Second, the Court agreed with the district court that evidence (i.e., expert testimony, veterinary records, USDA reports, and the Zoo's own advertising) showed these bears were grizzly bears. As to the unlawful taking under the ESA, the Fourth Circuit vacated the lower court's holding and remanded the case to district court. The legal analysis used by the court was incorrect because the court did not first determine whether the Zoo's practices were "generally accepted" before it applied the exclusion from the definition of harassment. Affirmed in part, vacated and remanded.

Zoning ordinance not arbitrary/capricious that disallowed raising fowl, but allowed livestock/grazing under specified conditions. Hatfield v. Board of Supervisors of Madison County, --- So.3d ---- 2017 WL 3452426 (Miss., 2017). This Mississippi Supreme Court decision considers the construction of a zoning ordinance that prohibits the "keeping or raising poultry" in the "R-1 Residential District" of Madison County. The property owner, Hatfield, was found to be violating R-1 by the Madison County Board of Supervisors after county officials found around 60 "ducks, geese and other fowl" on this property. The Circuit Court found the Board's decision was supported by evidence and was not arbitrary or capricious. On appeal by Hatfield, the Supreme Court first observed that appellant lives the zoned R-1. While the R-1 zoning allows "livestock" and "grazing livestock" on tracts of land one acre or greater, it does not allow the breeding, raising, and feeding chickens, ducks, or other fowl as a permitted use. Hatfield suggested that grazing/livestock section could be interpreted to include fowl. However, the Supreme Court found that position unreasonable since the examples listed in the code section are "obviously limited to large, four-legged, hoofed animals." The circuit court's decision was affirmed.

 

August 2017

Cruelty conviction upheld for leaving pet locked in van for over 40 minutes on 90+ degree day - State v. Graves, Slip Copy, 2017 WL 3129373 (Ohio Ct. App., 2017). In 2016, Graves left his dog in locked van in an unshaded spot with the windows closed while he went into a grocery store. In total, the dog spent about 40-45 minutes locked in the van. Graves was issued a citation for cruelty to animals and later convicted at a bench trial. On appeal, Graves first asserts that R.C. 959.13(A)(3) is unconstitutional because the statute is void for vagueness as applied to him and overbroad. This court found that the definition of cruelty was not so unclear that it could not be reasonably understood by Graves. In fact, the court noted "[t]he danger of leaving an animal locked in a sealed vehicle in hot and humid conditions is well-known." In rejecting defendant's challenge that his conviction was against the manifest weight of the evidence, the court found Graves acted recklessly under the law based on the hot and humid weather conditions and the fact that humans outside the van were experiencing the effects of extreme heat. Affirmed.

Federal District Court finds Utah's "ag gag" law unconstitutional - Animal Legal Defense Fund v. Herbert, Slip Copy 2017 WL 2912423 (D. Utah July 7, 2017). The law criminalizes the act of lying to obtain access to an agricultural operation and the subsequent recording or filming once inside. According to legislative history and statements, the act is directed at undercover operations that investigate farm animal abuse. Plaintiffs assert that the law violates their First Amendment rights. The court first found these activities, while still a form of "lying," were protected under the First Amendment. After finding that the act impinges protected speech, the court then analyzed whether it withstood a strict scrutiny review. The State proffered government interests that include concerns over worker protection and disease outbreak. However, the court noted nothing in the legislative history substantiating these claims or any actual incidents supporting these asserted government interests. The court found the Act did not survive strict scrutiny as it was not narrowly tailored and was directed the content of the speech (the act of recording a facility). The Plaintiffs' Motion for Summary Judgment was granted and the State's Motion for Summary Judgment was denied.

"Starving" cattle that were "near death" justified warrantless search/seizure under emergency aid exception - State v. Hershey, --- P.3d ----, 286 Or.App. 824 ( Or. Ct. App.,2017). In this Oregon case, defendant appeals his conviction of first-degree animal neglect. Specifically, defendant argues the denial of his motion to suppress evidence was erroneous. The evidence was obtained when the local sheriff (Glerup) entered defendant's property to administer emergency aid to defendant's cattle. During testimony in the motion to suppress, Glerup testified that he first received a call from defendant's neighbors who reported that the cattle appeared to be "starving." Defendant contends on appeal that the case establishing that the emergency aid doctrine applies to animals (Fessenden) was wrongly decided. This argument was dispensed by the court because it was not properly preserved at trial. Alternatively, defendant argues that the state failed to satisfy the requirements for the emergency aid exception. In reviewing defendant's claim, the court noted that the officer's belief that immediate aid was necessary where the cattle appeared to be "near death" was reasonable. Thus, the trial court did not err when it denied defendant's motion to suppress; defendant's conviction was affirmed.

Humane Society may seek custody of animals previously seized by state in criminal action, but denial of petition to return does not divest original owner of title - Rohrer v. Humane Soc'y of Washington Cty., --- A.3d ----, 2017 WL 2774606 (Md. June 27, 2017). Appellant Rohrer questions the authority of the Humane Society to act under CR § 10–615 (the law that allows an officer of a humane society to take possession of an animal from its owner). Rohrer also challenges the legal ownership of the animals in state custody. The seizure of Rohrer's animals began in 2014, after witnesses observed thin cattle and a subsequent search warrant revealed the presence of dead animal bodies intermingled with the living, high piles of animal feces, and goats with hooves so overgrown they could not walk. Rohrer was charged with 318 misdemeanor counts of animal cruelty, eventually being found guilty on only 5 counts and sentenced to supervised probation. During the initial proceedings, Rohrer filed  a "petition for return of seized animals" under CR § 10–615(d)(2). On appeal of that denial, the appellate court held that when an owner files a petition for return, the humane society has the burden of showing the court the seizure was necessary under the statute. The Court also weighed in on whether the denial of a petition for return affects ownership interests. The court held the function of the petition for return is to determine who has the right to temporarily possess an animal in question and does not divest original ownership rights or transfer them to the animal to the Humane Society if the petition is denied. This case was remanded to Circuit Court so that court can re-evaluate Rohrer's Petition for Return of this animals.

 

July 2017

Plaintiffs seek end to Kaporos in NYC - Alliance to End Chickens as Kaporos v. New York City Police Dept., --- N.Y.S.3d ----, 2017 WL 2429221 (N.Y. App. Div. June 6, 2017). Kaporos is a customary Jewish ritual which entails grasping a live chicken and swinging the bird three times overhead while saying a prayer. Upon completion of the prayer, the chicken's throat is slit and its meat is donated.  The practice takes place outdoors, on public streets in Brooklyn. The Plaintiffs alleged that Kaporos is a health hazard and cruel to animals. The Supreme Court, Appellate Division, First Department, New York affirmed the Supreme Court's dismissal of the proceedings against the City defendants. The Court reasoned that none of the laws or regulations that the Plaintiffs relied on precluded the City Defendants from deciding whether or not to engage in Kaporos. Also, the Plaintiffs did not have a “clear legal right” to dictate which laws are enforced, how, or against whom. The Court stated that determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion could not be dictated by the court through mandamus.

NY court denies habeas relief to plaintiff chimpanzees - Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, --- N.Y.S.3d ----, 2017 WL 2471600 (N.Y. App. Div. June 8, 2017). Nonhuman Rights Project, Inc. ex rel. filed two petitions for habeas corpus relief on behalf of Tommy and Kiko, two adult male chimpanzees. The petitions stated that chimpanzees are intelligent, have the ability to be trained by humans to be obedient to rules, and to fulfill certain duties and responsibilities. Therefore, chimpanzees should be afforded some of the same fundamental rights as humans which include entitlement to habeas relief. The Supreme Court, New York County, declined to extend habeas corpus relief to the chimpanzees. The Petitioners appealed. The Supreme Court, Appellate Division affirmed and held that: (1) the petitions were successive habeas proceedings which were not warranted or supported by any changed circumstances; (2) human-like characteristics of chimpanzees did not render them “persons” for purposes of habeas corpus relief; and (3) even if habeas relief was potentially available to chimpanzees, writ of habeas corpus did not lie on behalf of two chimpanzees at issue.

Breaking up dogfight was "well-intentioned" provocation that defeats dangerous dog determination - Pflaum v. Summit Cty. Animal Control, --- N.E.3d ---- 2017 WL 2467132 (OhioApp.2017). Defendant appealed a trial court determination that his dog was dangerous under Ohio law. The designation stemmed from an incident in 2015, where defendant's dog and another dog began to fight. A neighbor attempted to break up the fight and was subsequently bitten on the hand. The magistrate found the dog did not meet the statutory definition of a dangerous dog. Animal control then appealed the magistrate's decision and the trial court agreed, finding that animal control demonstrated by clear and convincing evidence that the dog was dangerous. At the Court of Appeals, the court observed that the neighbor's striking of the Pflaum's dog during the fight fell within the concept of "torment" for purposes of determining provocation. While the neighbor's action were "well-intentioned," the issue of whether a person "tormented" a dog does not depend on whether there was a malicious intent. Thus, there was not clear and convincing evidence that the dog acted without provocation when it caused injury to a person.

 

June 2017

Cal. Supreme Court reverses grant of injunction to protect elephants from abuse brought under Cal. Penal Code - Leider v.  Lewis, --- P.3d ---- 2017 WL 2276526 (Cal. May 25, 2017). The Plaintiffs, Residents of Los Angeles, brought a taxpayer action against the Defendants, the City of Los Angeles and the Los Angeles Zoo, alleging elephant abuse in violation of various Penal Code provisions. The Superior Court, Los Angeles County, granted the Defendants summary judgment. The Residents appealed. At trial after remand, the trial court rejected many of the Resident’s claims, but issued limited injunctions prohibiting use of particular forms of discipline, requiring the elephants to have specific amounts of exercise time, and requiring the rototilling of soil in exhibit. Both parties appealed. The Court of Appeals affirmed. The Supreme Court of California granted review and reversed the Court of Appeals. The Supreme Court held that: (1) the prior Court of Appeals decision was not law of the case as to the argument that the Residents were precluded from obtaining injunctive relief for conduct that violated Penal Code; and (2) the Residents' challenge to the city's treatment of elephants improperly sought injunctive relief for Penal Code violations.

Genuine issue of fact existed whether dog warden assumed duty to protect citizen from vicious dog at large - Bowden v. Monroe County Commission, --- S.E.2d ---- 2017 WL 2224052 (W. Va. May 18, 2017). The Plaintiff, as administratrix of the estate of her late husband, filed a complaint after he was attacked and killed by American Pit Bull Terriers while taking a walk near his home. Plaintiff filed against the Defendants, Monroe County, the County Dog Warden Ms. Green, and other defendants, alleging, negligence in performing their statutory duties by allowing vicious dogs to remain at large, and wrongful death. The Supreme Court of Appeals of West Virginia reversed the Circuit Court and remanded. The Supreme Court held that genuine issues of material fact existed for determining whether a special relationship existed between the county and the victim such as whether: (1) the dog warden assumed an affirmative duty to act on the victim's behalf,  (2) the dog warden was aware that inaction could lead to harm,  (3) the dog warden had direct contact with the victim's wife regarding vicious nature of dogs; and (4) the victim's wife justifiably relied on assurances from dog warden.

U.S. District Court denies FOIA motion/injunction brought by animal advocacy group for removal of USDA animal welfare database - Animal Legal Defense Fund v. United States Department of Agriculture, 2017 WL 2352009 (N.D. Cal. May 31, 2017) (unpublished). USDA/APHIS grew concerned that its Privacy Act system was insufficient to protect parties listed on animal welfare database so it blocked public access to review the information. Plaintiffs/animal welfare organizations, asserted that by blocking access to the databases, the USDA breached its obligations under the Freedom of Information Act's (“FOIA”)'s reading-room provision and motioned for a mandatory preliminary injunction. The U.S. District Court denied the plaintiffs motion and held that the Plaintiffs are not likely to succeed on their FOIA claim because there is no public remedy for violations of the reading room provision and they have not exhausted administrative remedies. Additionally, plaintiffs cannot establish they are likely to suffer irreparable harm absent an injunction or that the balance of harms weighs in their favor in light of the on-going review and privacy interests asserted by the USDA.

 

May 2017

Limiting of character evidence of prior "gentleness" to animals held harmless error in animal cruelty case - State v. Wright, --- P.3d ----, 2017 WL 1245397 (Or.App.,2017). Defendant was convicted of four counts of aggravated animal abuse in the first degree after he drowned all six cats that lived with him in a water-filled trash can. On appeal, defendant challenged the exclusion of evidence that he had an intellectual disability and that he had a character for gentleness toward animals. Defendant asserts such evidence would have shown he did not act with the requisite malicious intent that the state was required to prove. The appellate court found that the lower court did not err with regard to excluding defendant's reference to an intellectual disability. On the issue of character evidence of defendant's gentleness toward animals, the appellate assumed the lower court erred because the state conceded it was harmless error in its brief. In agreeing with the state that the error was harmless, the court found any further evidence would have been cumulative because other testimony spoke to defendant's gentle character toward animals. The matter was remanded for resentencing due to errors in sentencing.

Right to appeal and right to jury trial in Texas dangerous dog destruction caseHayes v. State, --- S.W.3d ---- 2017 WL 1193845 (Tex. App. Mar. 31, 2017). Defendant claims reversible error after he was denied a jury trial and a subsequent appeal of the destruction order for his dogs. Defendant's three dogs were seized after they attacked an individual riding a bicycle in front of defendant's residence. After a hearing, the dogs were found to be dangerous pursuant to Section 822.041 related to dogs causing serious bodily injury to a person. Hayes appealed the order and requested a jury trial, which was objected to by the Henderson County Attorney's Office and sustained by the court. The dogs were found to be dangerous at a bench trial and ordered humanely euthanized, while defendant was ordered to pay $2,780 to the county. On appeal, defendant argues the county court erred in removing his case from the jury trial docket. The court here declined to adopt the state's interpretation that the statute's silence as to a right of appeal indicates that the legislature eliminated that right. As to the right to jury trial, the court found Chapter 822 silent on that issue. However, the court found the order for seizure and destruction of defendant's "special personal property" guaranteed him a trial by jury under Article I of the Texas Constitution. The trial court's Final Order was reversed and the case was remanded to county court.

Adequacy of FOIA records by BLM under Wild Horses Act - Coffey v. Bureau of Land Mgmt., --- F.Supp.3d ----, 2017 WL 1411465 (D.D.C. Apr. 20, 2017). As the court here states, "Plaintiff Debbie Coffey knows a great deal about wild horses and burros—and how those animals are treated by the federal Bureau of Land Management—but she wants to learn more." As such, plaintiff, a hose welfare advocate, filed a Freedom of Information Act (FOIA) request to the BLM to obtain communications between officials and private citizens, namely those with long-term holding contracts, involved in the Wild Horse and Burro Program. In conjunction with her request, the BLM charged plaintiff $1,680 in processing fees, but ultimately refunded her the fees a year-and-a-half later because it failed to meet FOIA statutory response deadlines. On appeal, Coffey filed a FOIA suit and both sides moved for summary judgment. Plaintiff first argues that the BLM violated FOIA when it failed to give her interest on her held processing fees. The court, however, found that awarding interest here would violate the longstanding "no-interest rule," where there was no congressional intent to award interest in such cases. As to plaintiff's argument that BLM's search for records was inadequate, the court agreed with plaintiff that the words and phrases used by BLM were too limiting to meet plaintiff's request and were thus unreasonable.

 

March 2017

Service dog in school - Fry v. Napoleon Community Schools, --- S.Ct. ---- 2017 WL 685533 (U.S., 2017). The Individuals with Disabilities Education Act (IDEA) offers federal funds to states in exchange for “free appropriate public education” (FAPE) to children with certain disabilities. When trained service dog, Wonder, attempted to join Plaintiff E.F. in kindergarten, officials at Ezra Eby Elementary School refused. E.F.'s parents removed E.F. from the school and filed a complaint with the Department of Education's Office for Civil Rights (OCR) and eventually filed suit in federal court against the defendant school districts. Certiorari was granted, and the Supreme Court of the United States vacated and remanded. The court held that the Appeals Court should establish: (1) whether (or to what extent) the plaintiff parents invoked the IDEA's dispute resolution process before bringing this suit; and (2) whether Plaintiffs' actions reveal that the gravamen of their complaint is indeed the denial of FAPE. The court reasoned that Exhaustion of the IDEA's administrative procedures is unnecessary where the gravamen of the Plaintiffs' suit is something other than the denial of the IDEA's core guarantee of a FAPE.

Dog bite of animal shelter volunteer - Blake v. County of Wyoming, 46 N.Y.S.3d 753 (N.Y. App. Div. 2017). Plaintiff, a volunteer dog walker, sustained injuries from a dog bite at the Wyoming County Animal Shelter and filed suit against the City of Wyoming based on strict liability. The lower court denied the City's motion for summary judgement. In reversing the lower court's decision, the Court of Appeals held that the City did not have actual or constructive knowledge that the dog had vicious propensities despite plaintiff's argument the shelter was aware the dog had previously knocked over a four-year-old child. The Court of Appeals found that this behavior was not notice to the shelter that the dog had any propensity to bite and reversed the lower court’s decision.

Feral cats versus threatened birds - American Bird Conservancy v. Harvey, --- F.Supp.3d ---- 2017 WL 477968 (E.D.N.Y., 2017). American Bird Conservancy and individual bird-watcher plaintiffs sued the Commissioner of the New York State “Parks Office," asserting 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 threatened Piping Plover bird population decreased due to attacks by the cats, in violation of the federal Endangered Species Act (ESA). The Commissioner moved to dismiss the complaint. In denying the Commissioner's motion to dismiss, the District Court, held that the plaintiffs had sufficient standing to bring action alleging violation of the Endangered Species Act.

BLM wild horse "gather" (removal) - Friends of Animals v. United States Bureau of Land Management, --- F.Supp.3d ---- 2017 WL 499882 (D.D.C., 2017). Friends of Animals sought a preliminary injunction against the Bureau of Land Management (BLM) after the BLM started organizing a new “gather” - a term used for the removal of wild horses. Friends of Animals asserted that the gather violated the environmental assessment (EA) requirement of NEPA and that the agency failed to make an excess population determination before authorizing the gather. The court held that plaintiff's challenges were not likely to succeed and there was not a sufficient irreparable harm to warrant a preliminary injunction. Additionally, the court found that the BLM had not violated the Wild Horses Act because the BLM had in fact previously conducted an excess population determination.

Fourth amendment issues in animal cruelty seizure - State v. Smith, --- N.E.3d ---- 2017 WL 422315 (Ohio Ct. App., 2017). Jane Smith was charged with 47 counts of animal cruelty after 47 dogs and other animals were seized from her property where she had a private "dog rescue." On appeal, Smith argued that her Fourth Amendment rights had been violated based on the information that led to the seizure of the dogs. However, the court noted that the information came from private citizens (people who were looking for their lost dog and observed the neglected animals on Smith's property), so the Fourth Amendment was not applicable. The Court of Appeals found that Smith had not provided enough evidence to establish that her due process and other constitutional rights had been violated during trial, so the Court of Appeals those arguments were dismissed as well. Ultimately, the Court of Appeals upheld the lower court’s decision and sentencing.

Right to intervene in AWA violation case - Animal Legal Defense Fund, Inc. v. Vilsack, Slip Copy 2017 WL 627379, (D.D.C., 2017). The Animal Legal Defense Fund (ALDF) sought to intervene on a proceeding dealing with the United States Department of Agriculture (USDA) and a family owned-zoo in Iowa for alleged violations of the Animal Welfare Act (AWA). The USDA was seeking enforcement of the AWA against the Iowa zoo and the ALDF sought to intervene because it has long criticized the zoo's care and handling of its animals. The ALDF was prevented from intervening by the administrative law judge (ALJ) that was presiding over the matter, finding that the “ALDF’s stated interests were beyond the scope of the proceeding.” On Appeal, the court found that the ALDF should have been allowed to intervene in the proceeding according to 555(b) because the ALDF’s "demonstrated interest in the welfare of the zoo's animals falls squarely within the scope of the USDA enforcement proceeding.”

 

February 2017

Animal cruelty for harboring neglected dogs - Mouton v. State, --- S.W.3d ---- 2016 WL 7445119 (Tex. App. Dec. 28, 2016). San Antonio Animal Care Services (ACS) responded to a call about 36 pit bull terriers that were chained, significantly underweight, and dehydrated. The dogs also had scarring consistent with fighting. Police obtained a search warrant to seize the dogs, but Mouton told officers that he had been living at the residence for a couple of weeks, but that he did not own all the dogs and was holding them for someone else. Mouton was convicted of cruelty to non-livestock animals. On appeal, Mouton argued that the trial court erred in denying his motion for directed verdict because the state failed to prove that the animals were in his custody. The court held that there was sufficient evidence for a reasonable jury to find that Mouton was responsible for the health, safety, and welfare of the dogs on his property and that the dogs were subject to his care and control, regardless of whether he was the actual owner of each animal.

Obtaining animal welfare records from zoo - Fortgang v. Woodland Park Zoo, --- P.3d ---- 2017 WL 121589 (Wash. Jan. 12, 2017). Defendant Woodland Park Zoo Society (WPZS) entered an “Operations and Management Agreement” (Agreement) with the City of Seattle, giving WPZS exclusive rights and responsibilities regarding care, sale, and purchase of the Zoo's animals. Plaintiff Alyne Fortgang requested several categories of records under the state's Public Records Act (PRA), all pertaining to the Zoo's elephants. The Zoo's agent responded by asserting that the PRA did not apply because WPZS was a private company. Fortgang filed a lawsuit, and the trial court granted WPZS's motion for summary judgment, thereby dismissing the action on the ground that WPZS was not an agency subject to PRA disclosure requirements. The Court of Appeals affirmed. The Supreme Court of Washington also affirmed, holding that under a Telford analysis, WPZS was not the functional equivalent of a government agency.

Liability for loose horse (fence laws) - Hendrickson v. Grider, --- N.E.3d ---- 2016 WL 7626329, 2016-Ohio-8474. A car accident injured Plaintiffs Jo Ellen Hendrickson and her husband when their vehicle hit two horses that were on the roadway. Defendant Randall D. Grider owned the horses and Defendant Gartner owned the lot where Grider kept the horses. Defendant Cope is Gartner's son-in-law and acted as an intermediary between Gartner and Grider. The Hendrickson’s filed a complaint against Grider, Cope, and Gartner and alleged that they were owners and/or keepers of horses under statute R.C. Chapter 951 and that they negligently allowed the horses to escape. The Court of Appeals of Ohio, Fourth District affirmed the granting of summary judgment by the Common Pleas Court. The Court of Appeals reasoned that: (1) neither defendant was “keeper” of horses within the meaning of the statute which governed liability for horses running at large on public roads; (2) even if the lot owner breached their duty by allowing the owner of the horses to keep the horses on her property before fencing was installed, such breach was not the proximate cause of plaintiffs' injuries; and (3) the lot owner could not have reasonably foreseen that the horses would escape from a fenced-in lot and injure the motorist and, thus, could not be held liable for the motorist's resulting injuries.

Horse slaughter issues - Front Range Equine Rescue v. Vilsack, 844 F.3d 1230 (10th Cir. 2017). Between 2006 and 2011, Congress prevented commercial equine slaughter by prohibiting the use of funds for inspection of equine slaughterhouses.  In 2012, Congress lifted the ban on funding and the Food Safety Inspection Service (FSIS) issued grants of inspection to two commercial equine slaughter facilities: Valley Meat Company, LLC and Responsible Transportation, LLC. Plaintiffs, Front Range Equine Rescue, the Humane Society of the United States, and several other individuals and organizations (collectively, “Front Range”) sued officials of the USDA (“Federal Defendants”). Plaintiffs were seeking a declaration that the grants of inspection violated the National Environmental Policy Act and requested that the court set aside the grants of inspection.  The United States District Court for the District of New Mexico granted Front Range's motion for a temporary restraining order (TRO), which prohibited the Federal Defendants from sending inspectors to the equine slaughterhouses or providing equine inspection services to them. Valley Meat and Responsible Transportation then filed a motion in the district court to recover the injunction bonds. The United States Court of Appeals, Tenth Circuit affirmed the district court and held that Valley Meat was not entitled to recover the bonds. The Appeals Court reasoned that even if Valley Meat suffered damages, it cannot recover against the bond unless it first showed wrongful enjoinment. Valley Meat failed to do so and therefore could not collect damages.

 

January 2017

Big Cats of Serenity Springs, Inc. v. Rhodes, 842 F.3d 1280 (D.C. Cir. 2016). Plaintiff, Big Cats of Serenity Springs is a Colorado-based non-profit that provides housing, food, and veterinary care for exotic animals regulated by the Defendant, APHIS. Three APHIS inspectors accompanied by sheriff's deputies broke into the Big Cats facility to perform an unannounced inspection of two tiger cubs. Big Cats sued the APHIS inspectors for the unauthorized entry and asserted that the entry was an illegal search under the Fourth Amendment, and sought declaratory judgment and compensatory and punitive damages. The United States District Court granted APHIS's motion to dismiss in part and denied in part. APHIS appealed. The Court of Appeals, held that: (1) Big Cats could assert a Bivens claim; (2) Big Cats adequately alleged that the inspectors violated their Fourth Amendment right to be free from unreasonable searches and seizures; and (3) Big Cats had clearly-established the constitutional right to be free of unreasonable searches or seizures, thus weighing against the inspectors' claim of qualified immunity; but (4) the inspectors did not act under the color of state law, as required for § 1983 liability. The Court of Appeals reasoned that Big Cats' complaint stated a claim for relief under Bivens because No APHIS inspector would reasonably have believed unauthorized forcible entry of the Big Cats facility was permissible. The Court of Appeals affirmed the district court's order denying the government's motion to dismiss the Bivens claim and reversed the trial court's order denying the government's motion to dismiss the § 1983 claim.

Milburn v. City of Lebanon,  --- F.Supp.3d ----, 2016 WL 6908100 (D. Or. Nov. 21, 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 where it 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. Milburn also asserted a violation of her procedural due process rights. The District Court 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 Milburn'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. Therefore, Milburn’s procedural due process claim was also dismissed. The Court also held that it did not have jurisdiction over Milburn’s injunctive relief claim and dismissed it. However, the court held that Milburn could seek monetary damages. Milburn was granted leave to amend her complaint within 90 days with regard to her claim for actual and compensatory damages.

Arellano v. Broward K-9,  --- So.3d ----, 2016 WL 6992338 (Fla. Dist. Ct. App. Nov. 30, 2016). Plaintiff Arellano suffered a dog bite and injury after being attacked by a guard dog. The Defendant, Broward K–9/Miami K–9 Services, Inc. (“K–9”), owned two guard dogs. The guard dogs escaped K-9 through a cut fence after the business was burglarized. Arellano, believing the dogs to be her neighbors, fed and sheltered the dogs for about five days. When Arellano intervened in a fight between her pet dog and the K-9 dog, she was attacked. Arellano then brought a statutory damages claim for strict liability against K-9 under Florida’s dog bite statute. The Circuit Court entered summary judgment in favor of K-9 and determined as a matter of law, that Arellano's actions constituted a superseding, intervening cause, thereby precluding her statutory dog bite claim. On appeal, the District Court of Appeals held that triable issues of fact existed as to whether, and to what extent, K-9's liability under the statute should be reduced because of allegedly negligent actions by Arellano. The Court of Appeals reversed and remanded the circuit court decision and reasoned that Florida's dog bite statute imposes strict liability, subject only to a plaintiff's comparative negligence, which in this case must be determined by the trier-of-fact. K-9's liability under the statute should only be reduced because of the allegedly negligent actions of Arellano.

People v. Meadows, --- N.Y.S.3d ---- 2016 WL 7165826 (N.Y. City Ct. Dec. 5, 2016). Defendant Amber Meadows allegedly neglected to provide her dogs with air, food, and water, and confined them in a bedroom. Meadows was prosecuted for three counts of the unclassified misdemeanor of failure to provide proper food and drink to an impounded animal in violation of § 356 of the Agriculture and Markets Law (AML). Meadows moved to dismiss the Information as facially insufficient and stated that the Supporting Deposition indicated that the dogs were “in good condition.” The State argued that the allegations in both the Information and Deposition, taken together, provide a sufficient basis to establish the elements of the crime. The City Court held that: (1) “impounded” as stated in § 356 of the Agriculture and Markets Law applies only to "pounds" or kennels and does not apply to individual persons, and (2) even if the statute applied to individual persons, the allegations in the Information were not facially sufficient. Based on observations by law enforcement, it appeared the animals were properly cared for up to the point where she was incarcerated (she was unsuccessful in securing assistance for the dogs while incarcerated). The Information was dismissed with prejudice, and the People's application for leave to file an amended or superseding Information was denied.

 

 

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