Criminal justice involving a crime against an animal should literally mean that each and every animal is significant and is worth the time, energy, and investment of a thorough investigation. This is true whether or not the case involves one animal, a dozen animals, or hundreds of animals. Most allegations of cruelty or neglect involve a companion animal or animals on a relatively small scale – one, two, or maybe a handful. Some cases, however, are an organizational nightmare due to the volume of animals and substantial amount of evidence.
A progressive society cannot lose sight of the fact that victim animals often do not have a spokesperson for their suffering. Each investigation into allegations of harm against an animal should have an eye toward justice for each animal and for the community. The handling of each animal cruelty case is a reflection of how that community views public safety, human welfare, and animal welfare.
There is a trend on the part of law enforcement to recognize the fact that police, sheriffs, animal control officers, and prosecutors need to seek and allocate resources for the investigation and prosecution of crimes against animals. They are beginning to see that this is a prudent investment with great future benefits. Treating animal cruelty cases seriously can have a dramatic effect on crime prevention, and can often serve to break the cycle of domestic violence.
The more serious crimes against animals (such as those involving torture, mutilation, bondage, sexual assault, and horrific deaths) distinguish themselves and cry out for an aggressive and thorough investigation and often get the attention they deserve. However, the majority of crimes involving animals don’t get the recognition, time, or energy that is warranted. They are under-reported, under-investigated, and under-prosecuted.
Each animal matters…each species matters, each breed matters, each age matters, each gender matters, and each circumstance matters. It shouldn’t matter if the animal is domesticated or wild; in a home or in a pet store; or on a ranch or in a sanctuary. Similarly, the characteristics or background of the human suspected of the abuse or neglect should not matter – rich or poor; urban or rural; young or old; etc. The days of “boys will be boys” and “it’s just an animal” are over – or are hopefully coming to an end.
One of the simplest measures of whether or not an animal is being victimized is by reviewing the “Five Freedoms:”
- Freedom from Hunger and Thirst - by ready access to fresh water and a diet to maintain full health and vigor.
- Freedom from Discomfort - by providing an appropriate environment including shelter and a comfortable resting area.
- Freedom from Pain, Injury, or Disease - by prevention or rapid diagnosis and treatment.
- Freedom to Express Normal Behavior - by providing sufficient space, proper facilities and company of the animal's own kind.
- Freedom from Fear and Distress - by ensuring conditions and treatment which avoid mental suffering.
Although the Five Freedoms were designed for the welfare and treatment of farmed animals, the concepts apply to all animals. Knowledge of these basic welfare standards is a valuable tool for anyone engaged in the investigation and prosecution of animal cruelty, animal neglect, animal hoarding, and animal fighting. It is also helpful for veterinary professionals as is evidenced by the fact that these principles were embraced by the Association of Shelter Veterinarians in their 2010 Guidelines for Standards of Care in Animal Shelters. In that booklet, the authors said: “There is ample evidence that the Five Freedoms are broadly accepted as guidelines for welfare of all animals.” The entire booklet can be downloaded here.
In conclusion, each and every animal matters in a criminal investigation of animal abuse. I’m proud to be a part of the ALDF Criminal Justice Program where I can make a difference for animals and humans that have been victimized.
- Sign the Animal Bill of Rights, to ensure that all animals have their basic freedoms protected.
I've written in the past about how important it is for animal cruelty prosecutors to "take the high road" and be scrupulously ethical.1 I stand by what I've said. But as I've studied and considered the issue further, it has occurred to me that an even more fundamental ethical issue presents itself with disturbing frequency - the failure of prosecutors to prosecute animal cruelty adequately or at all (usually citing overwork and/or the prioritization of human victim crimes). I conclude that it is not only a dereliction of duty for prosecutors not to aggressively prosecute animal cruelty cases, but that it is unethical as well.2
For what more noble service does the State offer than protection of the weak from the strong, the shelter of those politically disenfranchised from those in power, and the defense of the vulnerable against the tyranny of bullies? That's what prosecutors do, or at least what they should do. It seems to me that this is the most important justification for their existence. They are the valiant defenders of victims' rights no matter what the reason for the victim's vulnerability – be it poverty, race, gender, age, physical or mental weakness or, I suggest, species. Violence is violence. Abuse is abuse. It has been proven beyond all doubt that the violent crimes of domestic battery, child abuse, abuse of the elderly, hate crimes, and animal cruelty are inextricably intertwined at both practical and philosophical levels. The empirical data is compelling.
Animal cruelty presents a five-time risk of violent crime against humans.3 75% of all violent offenders have prior records of cruelty to animals.4 25% of all “aggressive inmates” have committed five or more acts of animal cruelty as children.5 In families investigated for child abuse, 60% revealed pet abuse.6 Childhood cruelty to animals is an important predictor of later antisocial and aggressive acts and that children showing these behaviors, without intervention, are at risk for enduring disorders in conduct and mental health.7 In three surveys in women’s shelters in Wisconsin and Utah an average of 74% of pet-owning women reported that a pet had been threatened, injured, or killed by their abuser.8 The 1995 Utah survey also found that children witnessed animal abuse in over 60% of the cases, and 32% of women reported that one or more of their children hurt or killed a pet.9
Let's take a basic description of "ethics:" “the discipline dealing with what is good and bad or right and wrong...” [Webster’s Third New International Dictionary, 1993].
In light of the irrefutable link between animal cruelty and human violence – especially domestic and child abuse – prosecuting acts of violence against animals addresses exactly the same issue as prosecuting abuses against humans. They are but two sides of the same coin. I predict that aggressive animal cruelty prosecutions will directly affect the number and frequency of related human violence crimes. If a prosecutor attends to his responsibility to prosecute animal abusers, I further predict that he or she will see a reduction in the number of offenses against humans. So by embracing animal cruelty cases as crimes deserving of aggressive prosecution, a State or District Attorney's caseload of violent crime will actually decrease over time.
When they fail to earnestly prosecute animal abuse crimes, prosecutors forfeit a golden opportunity to stem the extraordinary violence which permeates our society. It is a "bad" and "wrong" thing to do and, it is therefore, unethical. On the other hand, prosecuting animal cruelty cases is undeniably right.
- Ethical Considerations in the Prosecution of Animal Cruelty Cases, NDAA/NCPAA Vol. 2, No. 1, 2012
- The writer recently retired from a 15-year career as an assistant state attorney in Florida
- MSPCA & Northeastern University Study from 1975-1996)
- Hellman, D.S., & Blackman, N. (1966). Enuresis, fire setting, and cruelty to animals: A triad predictive of adult crime. American Journal of Psychiatry, 122, 1431-1435
- Kellert, S. R. & Felthous, A. R. (1985). Childhood cruelty toward animals among criminals and noncriminals. Human Relations, 38, 1113-1129
- DeViney, Dickert & Lockwood, 1983
- Becker & French, 2004; American Psychiatric Association, 1994
- Frank R. Ascione, 1995 and 1997
- Frank R. Ascione, 1995
We at the Animal Legal Defense Fund are committed to doing everything within our power to make sure that Tony finds his way to a reputable, accredited sanctuary where he can live out the rest of his life in an environment that caters to his needs rather than one that exploits him as a profitable spectacle.
To that end, our litigation team has been busy making sure that Louisiana’s big cat ban is defended and enforced. We are currently involved in three separate lawsuits concerning Tony, and with all the various developments, we thought it was time for a big picture overview on where things stand.
The first lawsuit is the one ALDF filed last April to have Michael Sandlin’s tiger permit revoked. In November, Judge Michael Caldwell ruled in our favor, holding that Mr. Sandlin was ineligible for a permit under the state regulations. Judge Caldwell ordered the Louisiana Department of Wildlife and Fisheries to revoke Sandlin’s permit and not issue any new permits. Mr. Sandlin and the Tiger Truck Stop have appealed that decision to the Louisiana Court of Appeal. We are currently waiting for the court to set a briefing schedule, which we expect in the coming months. It’s worth noting that the Department has complied with the court’s order and not issued a new permit to Mr. Sandlin, meaning that Mr. Sandlin and the Tiger Truck Stop continue to possess and exhibit Tony without the required permit.
In an attempt to remedy the Tiger Truck Stop’s open violation of the law, ALDF filed a second lawsuit to force the Department to enforce the state’s wildlife laws and turn Mr. Sandlin and the Tiger Truck Stop over to the District Attorney for prosecution. Unfortunately, earlier this month, Judge Caldwell held that enforcement decisions by an agency are discretionary duties that cannot be compelled by the judiciary, and that our plaintiffs lacked legal standing to bring the case. (Standing is a constant hurdle in animal law cases that limits who can bring a lawsuit. More information on standing is available here and here.) We are still considering our options on whether to appeal the decision. Supporters should understand that the decision in this second case does not undermine our victory in the first case. Judge Caldwell’s original ruling that Mr. Sandlin cannot have a tiger permit still stands, and it is still illegal for Mr. Sandlin to possess and exhibit Tony. This loss means only that we cannot force the Department to enforce the law. The Department has said publicly that it intends to enforce Louisiana law once litigation has concluded. Although that is not the timeline we hoped for (after all, Mr. Sandlin and the Tiger Truck Stop are violating the law at this very moment and the Department could seize Tony at any time), we expect the Department will eventually do the job entrusted to it by Louisiana’s citizens: enforce the law and protect wildlife.
The third lawsuit is one filed by Mr. Sandlin and the Tiger Truck Stop against the State of Louisiana, the Department, and Iberville Parish, seeking to invalidate the state ban on private possession of big cats. If successful, the case would not only allow Mr. Sandlin to keep Tony, it could also open the floodgates to captivity for countless other captive wild animals. Mr. Sandlin and the Tiger Truck Stop did not name ALDF as a party to the suit, but given the high stakes, we insisted on being part of the case. We filed what is called a petition to intervene, which asks the court to allow the intervener into the case with the same rights and opportunity to be heard as the named parties. Although Mr. Sandlin and the truck stop objected to our intervention, Judge Janice Clark held that ALDF had a right to intervene in the case and granted our petition. Interestingly, we are now on the same side as the Department, our adversary in the other two lawsuits. Although we wish they were more proactive in enforcing the ban, both ALDF and the Department want the Louisiana big cat ban upheld. The next step is for our litigation team to file exceptions to Mr. Sandlin’s case and an opposition to his request for an injunction against the big cat ban.
We are optimistic that we will prevail and the court will uphold Louisiana’s right to protect public safety and animal welfare by prohibiting private possession of majestic animals like Tony. Our hope is that once Mr. Sandlin’s case is over, the Department will act quickly to ensure Tony’s removal to a humane sanctuary.
If this sounds complicated and frustratingly slow, that’s because it is. In order to manage large case loads and protect the due process rights of litigants, the legal system may take a while to resolve contentious issues. We too are growing impatient with every extra day Tony spends in captivity at the truck stop, and we are doing everything we can to accelerate his release to a proper sanctuary.
Still have questions about the cases? Post them below and we will answer as best we can.
See the most recent updates on this case.
San Bernardino County District Attorney Michael A. Ramos and Senator Bill Emmerson, R-Hemet, recently addressed state legislators on SB 1145, which was introduced by Sen. Emmerson. The California bill seeks to increase the fines levied against participants and spectators of illegal cockfights, according to the district attorney's office.
The San Bernardino County Sun quoted a Ramos statement that read, "Right now, the penalties and fines for those who engage in cockfighting are not strong enough to discourage this type of behavior. The bottom line is we need to make it clear that animal cruelty will not be tolerated, and that those who take part in this so-called ‘sport,’ whether as a participant or spectator, will be held accountable for their actions.”
After a cockfighting bust in the city of Fontana in April, a city spokesman said community tips were vital in stemming these types of activities. The Sun article also mentioned that “Although prosecutors are concerned about animal abuse, they say highly profitable cockfighting rings also bring other types of criminal activity into communities, including gangs, drugs, guns, and prostitution.” Thus this bill is needed to help protect animals and communities in numerous ways.
Under current California law, the crime of cockfighting is only a misdemeanor and the fine for a participant and event organizer are $5,000. SB 1145 would double the fine to $10,000. In addition, the spectator fines would also increase from $1,000 to $5,000. These changes would come on the heels of a new law that became effective on January 1, 2012. That law is California Penal Code §598.1, and it allows for asset forfeiture in certain cases, meaning authorities now have the power to seize any property interest, whether tangible or intangible, that was acquired through cockfighting and/or dogfighting. That law is a definite step in the right direction. No one should be allowed to profit from such atrocities.
Unfortunately, Fontana Animal Services Officer Jamie Simmons was noted in the Sun report as saying that “despite changes in laws and tougher sentences for offenders, a slow economy has not had much impact on cockfighting locally.” That is indeed regrettable news. As such, we need to continue to do more to prevent and curtail this abuse.
Several months ago I read a story in the newspaper that stuck with me. It was about a man that shot and killed a 14-foot, 880-pound alligator in Texas. Apparently, the alligator was one of the biggest recorded in Texas since 1984. The article provided details on how the hunt came to be and the measures used to pull the enormous alligator out of the water that it rolled in to after being shot. Of course we see hunting stories like this quite frequently in the news so it wasn’t the subject of the article that stuck with me, but rather the profession of the man that killed the alligator. He was an attorney.
And that got me thinking about all the ALDF attorney members that have so selflessly donated their time and energy to help ALDF fight to protect the lives and advance the interests of animals through the legal system. They have spent hundreds of hours doing legal research, writing amicus briefs, and litigating cases. In their leisure time, instead of killing animals, they are helping their communities by volunteering at local humane societies, meeting with legislators and testifying at committee hearings involving animal issues, and taking action on local animal cruelty cases.
This attorney said the kill was the thrill of his hunting career and the newspaper included a picture of him standing proudly next to the lifeless body. Meanwhile, thousands of attorneys across the country go publicly unrecognized for the good work they do for animals. I wish our community honored attorneys for the size of their hearts, not for the size of their kills. So thank you ALDF attorney members – you are the greater catch.
Steer tailing and horse tripping are tortuous events that have been banned in California and at least eight other states, according to a recent report by the Star Tribune, a local Minnesota newspaper. But, unfortunately, both events are legal in Minnesota, and they have found their way into local culture, especially in rural Dakota County. And this is causing much consternation among local animal humane officials and activists.
The Star Tribune describes horse tripping as an activity where a rider ropes the front legs of a galloping horse and pulls him or her down. Steer tailing, also called coleo or tail spinning, involves dragging animals down by their tails. Apparently about a dozen Mexican-style rodeos were held in several Dakota County locations last summer, mostly in the township of Vermillion.
Now the Vermillion town board has filed a lawsuit seeking an injunction to stop the rodeos unless a horse show permit is obtained. The Star Tribune reported that the township's suit in Dakota County District Court “describes tail spinning as a sporting competition ‘with contestants on horseback riding alongside running cattle, and the contestants grabbing hold of and pulling on the cattle's tail while attempting to cause the cattle to fall to the ground and roll over.’” Sporting event? Does the town board really think that requiring the rodeos to obtain a horse show permit is going to change anything, or prevent any animal cruelty? What exactly do they seek to accomplish? It is obvious that the suit does not go far enough because the activities need to be prohibited, not “permitted.”
Keith Streff, senior humane officer for the Animal Humane Society, one of Minnesota's two animal welfare enforcement officers, has stated that “Tail spinning is likely to injure a steer… 400- to 600-pound animals toppled while running near full speed have a high degree of probability they will be injured ... they are not made to go down at that speed." Streff went on to say that if spinning consistently resulted in injury or death, that could be construed as criminally cruel, and that his office would look into that if a complaint were filed. But Streff also noted that it is very difficult to prove rodeo events are criminal unless there is proof that an animal has been killed or injured.
Raul Pliego, organizer of the Vermillion rodeos, said in his written response to the township suit that "spinning at his gatherings was a 'game [that] was played for fun and the entertainment of those in attendance and not for money or reward.'" That does not change the fact that animals are being severely injured at the events. Pliego's attorney has even characterized his client’s response to the suit as showing a pattern of “racist behavior by the neighbors that prevents [the Pliegos] from having family events and enjoying the use of their property."
It is time for the Minnesota State Legislature to step up and ban these rodeo activities. They are animal cruelty, plain and simple.
Michael A. Tabor of Branson, Missouri tied a 9-month-old colt to the back of a minivan and drove at speeds approaching 35 MPH. The reason? He wanted to halter break this poor young horse. Over the course of the ordeal, Mr. Tabor stopped the minivan no less than three times to check on the horse—each time finding the colt in dire straights, but Mr. Tabor just kept on driving. Somehow, the colt stayed on his feet, keeping his head down and attempting to resist the force of the vehicle. When Mr. Tabor’s “training session” ended, the colt was seriously injured and breathing heavily, soaked in sweat, and shaking violently—no doubt suffering from shock due to his many injuries. One can only image the extreme pain this young guy was enduring. The appellate court describes one of the colt’s injuries this way: “The colt's hind hooves and bone were worn away all the way into the joint, indicating that the colt had objected to being dragged behind the van and had braced its legs to resist.” Stated more directly: the defendant ground this poor animal’s rear hooves off. Due to the severity of his injuries, the onset of infection, and the colt’s uncontrollable pain, a veterinarian euthanized him.
It took the trial jury less than 50 minutes to convict Tabor of the Class D felony of animal abuse; Tabor was sentenced to seven years in prison. Tabor appealed and lost. One would think that should be the end of this tragic story, but of course it is not…
In true narcissistic form, Tabor, still unwilling to accept responsibility for his crime, filed a petition for post-conviction relief (PCR). PCR is a statutory civil remedy that allows a convicted offender who has exhausted his direct appeal to collaterally attack his conviction on a handful of technical grounds—in this case, Tabor complained that his trial attorney was constitutionally inadequate. Based on his “ineffective assistance of counsel” claim, Tabor’s hoped to secure a new trial and a second bite at the apple.
Here is where the story shifts from outrageously tragic to just plain outrageous. In his PCR petition, Tabor’s ineffective assistance of counsel claim was based on the fact that Tabor’s trial attorney had the audacity to rely on Tabor’s own statements that he (Tabor) had never previously abused a horse.
This is what happened: At trial, and in direct reliance on the veracity of his client’s denial of past abuse, Tabor’s trial attorney asked a state’s witness who also happened to be acquainted with Tabor if the witness had ever seen Tabor beat any other horses before. Much to the surprise of defense counsel (but certainly not to Mr. Tabor), the witness responded with a less than flattering answer of “yes” she had. Though the defense attorney tried to mitigate the damage, with the evidentiary door now wide open, when the prosecutor got the witness back for redirect examination, the jury learned of the defendant’s many prior acts of animal abuse (e.g., kicking a horse in the genitalia, leaving a horse tied to a tree for protracted periods of time, and cutting a horse’s penis with a pocket knife). Couple the aggravated nature of the charged conduct with these earlier acts of cruelty and it is certainly no surprise that the jury convicted Tabor in less than an hour’s time, but I digress.
Undaunted by his misrepresentations to counsel (or his lack of success on direct appeal), Mr. Tabor took no hesitation in throwing his trial attorney under the bus by filing this PCR case—the unmitigated and manifest arrogance of this guy! Tabor’s moral shortcomings notwithstanding, we are happy to report that Tabor lost his PCR case in both the trial court where Tabor’s PCR petition was originally litigated and in the Missouri’s Southern District Court of Appeals. In resoundingly rejecting Tabor’s specious claims, our only regret is that the judges forced to entertain such nonsense didn’t sanction Tabor for filing a frivolous case.
The Wall Street Journal recently reported that “Every Friday morning, a small courtroom in this Texas city becomes a kennel of jurisprudence.” The city has indeed found a novel way of dealing with the animal-related cases that were on the rise. As the article noted, city officials decided “to crack down on recurring civic problems that weren't getting requisite attention on regular courts' dockets, such as dog bites, stray pets, and residents who fail to register and vaccinate their animals.” Animal cases in San Antonio previously were handled by the city's municipal court judges, but city officials complained that they were not receiving adequate attention nor were the judges meting out proper punishments under that approach.
The interim director of San Antonio's Animal Care Services department, Joe Angelo, said in the WSJ article that the goal of the court is to change the general atmosphere with regard to animals in the city of 1.3 million, “where more than 3,000 residents annually are bitten by dogs and more than 150,000 stray dogs roam city streets on any given day.” He asserts that by having a specially-dedicated court, it sends the message to the population that irresponsible pet ownership will not be tolerated. But not everyone is happy with the change. In fact, there have been grumblings by some animal guardians that the animal court is being used to pick on them for petty offenses just to generate revenue. The article mentions a few people who were haled into court to answer for charges ranging from a dog bite to failure to register their dogs, with fines ranging from $269 (dog bite) to about $4,000 for the registration offense. Since the court’s inception just over 10 months ago, the city has collected over $250,000 in fines against pet owners.
It is believed that court is part of a larger trend in which cities are forming specialized tribunals to deal with distinct populations, such as drug addicts or the mentally ill. The goal is to allow judges to develop a deeper understanding of certain kinds of offenses, and better fashion appropriate punishments for those who commit them.
Around New Year’s Day, OR7, a lone gray wolf from a pack in Oregon, crossed into Northern California, making him the first such wolf in California in nearly 90 years. Just recently he wandered back over the state line into Oregon. But officials tracking the wolf consider it a possibility that OR7 will continue to roam both states. Fish and Game officials get daily downloads about the 2-year-old male wolf’s location via his radio collar, and OR7’s movement has become especially important now because California has been thrust into the debate about how to manage gray wolves.
According to a report from QUEST, environmentalists want to see an increased wolf population in the Golden State, while others do not consider OR7 a welcome visitor. OR7 spent most of his recent visit in Lassen County, and there wolf opposition is growing. This is in the face of several public hearings and meetings sponsored by Fish and Game officials to educate and alert the population about gray wolves. For example, when someone says they will shoot a wolf on site due to a perceived threat against livestock, a Fish and Game official warns them that the wolves are endangered and that if one is killed, it is a $100,000 fine or a year in jail, or both. But this is the classic exchange that has occurred since wolves were reintroduced in the West almost two decades ago. The QUEST report notes that “In states like Idaho and Montana, where wolf populations have rebounded, there’s been an all-out war. Ranchers and hunters say wolves kill too many livestock and elk. Environmentalists see the wolf as a key part of a healthy ecosystem.” Can a proper management plan be reached?
From the QUEST report:
Wolves are currently protected in California under the federal Endangered Species Act, but several environmental groups are petitioning the state to protect them under California law as well. That would require the Department of Fish and Game to figure out how many wolves belong in California and how they’ll recover. The federal government is also considering whether to specially protect California wolves. Populations in Idaho, Montana and parts of Oregon and Washington have already been taken off the endangered species list but the agency has recommended removing protection for wolves in some of the remaining parts of the lower 48 states. California wolves may still be protected, however. Fish and Wildlife is considering whether to specially protect wolves in parts of Oregon, Washington and California. If so, the agency would consider writing a recovery plan for what would be known as the Pacific Northwest population. That decision is due by September 30th.In January, the Los Angeles Times published an editorial that discussed the plight of the gray wolf and his arrival in California after a long absence. The editorial opined that “It's time for California — one of the most environmentally progressive states in the nation — to think about how it will handle the return of a predator it hasn't seen in the wild for close to 80 years.” It went on to discuss that antipathy to the wolves in other Western states led to a “disturbing” act of Congress in 2011 to override the Endangered Species Act and undermine the wolves' recovery by delisting them in Idaho and Montana, states that are more sparsely populated than California when more wolf run-ins are more likely to occur. “The two states promptly approved hunting of the wolves, which has already thinned the numbers of the Northern Rockies group by at least 150 (after it had reached 1,651 in 2010).” The Times proposed a possible solution to any livestock losses suffered by ranchers and farmers: a compensation fund. This could even be modeled after a similar fund in place in Oregon, while also “encouraging nonlethal ways of discouraging wolves from preying on livestock.”
Is it really too much to ask to allow the wolves to recover and replenish their population? To restore the ecosystem? The Times summed it up best by writing that “What we can realistically hope for is that the wolf will reach healthy, self-sustaining numbers, and resume a place in the life of this state.” That should be the hope of all.
The Los Angeles Times recently reported that several federal wildlife investigators had “cracked an international smuggling ring that trafficked for years in sawed-off rhinoceros horns, which fetch stratospheric prices in Vietnam and China for their supposed cancer-curing powers.” More than 150 federal agents, along with other local enforcement officers, raided homes and businesses and made several arrests in a dozen states. The Times quoted U.S. Fish and Wildlife Service Director Dan Ashe as saying that "By taking out this ring of rhino horn traffickers, we have shut down a major source of black market horn and dealt a serious blow to rhino horn smuggling both in the U.S. and globally."
According to the Times, soaring popularity around the globe has led to “a run on the rare horns from black and white rhinos,” and this in turn has “led to an onslaught of poaching in Africa, as well as the ransacking of European museums by organized crime syndicates.” In the United States, smugglers and traders routinely deal horn from auction houses, antique shops, and the trophies of hunters. The prices per pound for the horns can range from $20,000 to $25,000, making the horns more sought after in some countries than most drugs, including crack or heroin. This “lucrative enterprise” has even lured those who are responsible for protecting the rhinos, turning game wardens into "khaki-collared criminals who assist the poachers.” It is estimated that about 450 rhinos were poached in South Africa last year, which is almost four times as many as in 2009. The Times also noted that African herds have declined by 90% since the 1970s, with 20,000 white rhinos left, mostly in South Africa, and 5,000 black rhinos scattered across the continent. Rhino cousins in Asia are nearing extinction.
Despite the fact that the Chinese government has forbidden the use of rhino horn since 1993, and that the U.N. Convention on International Trade in Endangered Species banned the sale of most rhino parts decades ago, the illicit trade continues. Even in the United States, where the international ban is enforced through the Endangered Species Act and the Lacey Act, interstate commerce and international trade of horn still occurs. And the misconception that the horns are a cure for cancer still lingers, although it has long been debunked. The Times article states that Lixin Huang, the president of the American College of Traditional Chinese Medicine in San Francisco, has “explicitly refuted the claims of a ‘cancer cure,’ which she says has no basis in the literature of traditional Chinese medicine.”
It is encouraging that federal officials are working diligently to capture the criminals that continue to decimate these animals for trophy, sport, profit, or myth. But, although the trade of horn is illegal and the rhinos are protected, more needs to be done. The arrests and seizures mentioned here are the results of an 18-month investigation of a trafficking ring that operated for “years.” How much damage was done during that time? It is known that a continued decline in the rhino population is at least one consequence. Protection of these animals must be a higher priority.
Because dolphins, porpoises, and whales are so intelligent and should be regarded as "non-human persons," a group of scientists, ethicists, and animal welfare groups has proposed a bill of rights for them, advocating for greater protection under the law. The Daily Mail recently reported a “small group of experts in philosophy, conservation and dolphin behavior were canvassing support for a Declaration of Rights for Cetaceans” during a meeting of scientists in Canada. Citing that dolphins, porpoises, and their whale cousins are sufficiently intelligent and self-aware to the American Association for the Advancement of Science's annual conference held in Vancouver, the coalition argued that the animals are justifiably entitled to the same ethical considerations given to humans, and the rights to life and liberty.
It is the hope that in recognizing cetaceans' rights, it would mean an end to whaling and the captivity of dolphins, porpoises, and whales, or their use in entertainment. This means that there would be no more dolphins in zoos or water parks, or whale shows at theme parks. Among some of the other requests under the Bill, whales would be protected by declaring whalers murderers, whale watching trips would be governed by regulations that would require the watchers to respect the privacy of the whales, and oil companies would also be legally bound to consider the impact of their activities on the sea animals belonging to the order cetacea.
At the very least this movement will bring some much-needed attention to the plight of these animals. Each of their populations is on the decline and much needs to be done to protect them for future generations.
Last year, “Windchill's Law” was introduced in the Wisconsin Senate, but it fizzled as the legislative session ended. Named in honor of an abused colt, Northland’s NewsCenter reports that,
The colt, named Windchill, was found horribly malnourished while covered in icy snow in temperatures far below freezing. Unable to stand, Windchill died 20 days after authorities discovered the abused colt. The pair who was boarding Windchill was charged with animal negligence.“the law proposes that ‘great bodily harm’ be added to the animal cruelty provision that covers intentional mutilation, disfigurement or death of an animal. The law would also clarify the abandonment statute, add a new definition to water, expand the number of years that a violator is banned from owning an animal from 5 to 10 years, and allow the court to order a psychological assessment, anger management counseling or psychological counseling for violators who are found guilty and sentenced.”
In a continued effort to strengthen animal abuse laws, State Representative Nick Milroy (D-South Range), with the help of State Representative Keith Ripp (R-Lodi), is trying to revive the bill during the current legislative session. Representative Milroy hopes that with bipartisanship support, Windchill's Law will pass and Wisconsin’s animals will have the protection they so desperately deserve.
On March 2, Iowa governor Terry Branstad caved to the factory farming industries and signed House File 589, an “ag gag” law designed to keep the public in the dark about the cruelty that pervades modern animal agriculture.
The Iowa law establishes the crime of “agricultural production facility fraud,” which includes obtaining access to a factory farm “by false pretenses” or knowingly making false statements on an employment application “with the intent to commit an act not authorized by the owner.”
The law is aimed at animal advocates who go undercover at factory farms to expose the exploitation of animals at these facilities, but as the Animal Legal Defense Fund has pointed out, these laws also pose significant threats to law enforcement, public health, farm workers’ rights, environmental regulation, and investigative journalism. Iowa’s first attempt at an ag gag bill failed due in large part to questions about its constitutionality, and legal scholars are already raising the same issues with the new law.
Learn more about what ALDF is doing to stop ag gag laws at ProtectYourFood.org.
There is a growing societal awareness about cruelty to and neglect of animals. It has long been recognized that there is a link between cruelty to animals and violence toward humans and that animal abuse is often one of the indicators of family violence. Early and aggressive intervention in animal cruelty cases has a positive and proactive impact on public safety and human welfare. Veterinary professionals are beginning to embrace their critical role in reporting animal cruelty.
In order to effectively prosecute those who harm animals there needs to be a collaborative effort among agencies and individuals. Animal cruelty cases are unique because none of the ‘victims’ are able to tell the authorities what happened. Therefore, there is a need for the expertise of a veterinarian or other animal health care professional in nearly every case. Veterinarians are perceived of as a care giving profession and members of the public expect them to be at the forefront of setting the highest standards for animal welfare.
Veterinarians can become involved in a case in a number of ways. Most commonly, an injured or deceased animal will be brought to the hospital, clinic, or shelter for evaluation and treatment. The animal or animals can be brought in by an animal control officer, a good Samaritan, an established client, a stranger, etc. On occasion, a veterinarian may actually respond to the crime scene. Regardless of how the veterinarian becomes involved it is critical for him or her to remain objective and to document his or her findings in an impartial and unbiased manner.
Most veterinarians have not had formal training in recognizing animal abuse as part of their primary education except through available continuing education or textbooks. There is an increasing trend in legislation regarding the veterinarian’s role in reporting animal cruelty. Most of the provisions in the United States are found in either the state’s Veterinary Practice Act or their animal cruelty statute. The laws address both the requirement to report and the civil and criminal immunity and protection given to the practitioner who does file a report. The Animal Legal Defense Fund maintains a current list of those states with some type of duty to report and those states that provide some type of immunity. Mandatory reporting and provisions for immunity need to become a part of every state’s statutes.
Culminating a great effort to bring breed specific legislation to an end in Ohio, on February 21st, Governor John Kasich officially signed HB 14 into law. Dogs will now to be regarded by their behavior instead of their appearance. WOIO.com reports that the new law effectively eliminates the prior 25-year-old Ohio law that automatically declared pit bulls to be vicious dogs. The new law will take effect in 90 days from the date of the governor’s signature.
“In addition to dropping any reference to a specific breed of dog from the law, the new law will redefine current designations of ‘vicious’ and ‘dangerous’ dog, create a third lesser category of ‘nuisance’ dog, create a process for dog owners to appeal law enforcement's labeling of their dogs, and place the burden to prove the classification by clear and convincing evidence on the dog warden.” The law also requires “the owner of a dangerous dog to obtain a dangerous dog registration certificate,” prohibits certain felons from owning dogs under certain conditions, and changes the penalties involving ownership of nuisance, dangerous, and vicious dogs.
It is the hope of all that the new law will “improve the ability of dog wardens and law enforcement officers to protect the public from all dangerous dogs, regardless of their breed, while ending the senseless punishment of good dog owners and good dogs for acts they have not committed,” according to the Cleveland Animal Protective League.
And it is about time that the law reflected actual animal behavior instead of hype and stereotype. How many good dogs were denied the opportunity to thrive with a loving family under the old law just because of who they were born to? Thankfully, dogs will now have a fresh start.
Chris Kubic, a high school social studies teacher, and his wife, Jennifer, recently noticed construction going on at a decommissioned nuclear power plant in Lake County, Illinois. Kubic, who is familiar with the snakes at Illinois Beach State Park, adjacent to the power plant, recognized that many hibernating snakes could be endangered if construction was allowed to continue near railroad tracks at the plant. "The snakes tended to accumulate around the old railroad tracks and I figured there was a den there," Kubic told the Chicago Tribune. So Kubic and his wife set out to save the snakes.
The Chicago Tribune reported that Kubic met with officials from EnergySolutions, the company hired to decommission the power plant, and they agreed to help him save the snakes. According to Rob Carmichael, curator of the Wildlife Discovery Center in Lake Forest, snake populations are on the decline in the Chicago area because of “the loss of habitat and getting squashed on highways.” Thus, an unusually thoughtful effort was made to save as many snakes as possible while the old railroad ties near the plant were removed.
On a cold and windy day in January, Kubik and Carmichael joined contractors from EnergySolutions, along with Michael Corn, a biology professor emeritus at the College of Lake County, to gather the snakes with their bare hands. Among the species that were rescued were brown snakes, who require an undisturbed habitat. And a great number of garter snakes were found, along with a few western fox snakes. None of the snakes rescued were harmful to humans.
The group spent the entire day saving as many snakes as they could find. The snakes were then taken to a six-foot-tall wine chiller in Lake Forest, which will act as an artificial hibernating den. Carmichael stated that the chiller “can be set right at the temperature snakes need to survive in winter — about 48 degrees." Lucky snakes indeed! It appears that the rescue took place just in time too, as it was reported that biologists also discovered a snake den underneath the railroad ties filled with hundreds of empty snake eggs. Thanks to the thoughtfulness of a few individuals many reptilian lives were saved!
In May 2008, Christopher Comins shot two Siberian husky dogs that had come onto an Orange County, Florida property where Comins happened to be walking. Reportedly claiming that the dogs were harassing a calf, Comins shot both of the dogs multiple times—nine shots altogether, continuing to shoot after the dogs were already wounded and down—while ignoring the pleas of their owner who was in close pursuit after their escape from his control. Christopher Butler, who had raised Riley and Hoochie from pups, said he came upon the cow pasture and watched as Riley came toward him wounded. Butler is reported to have said, "I said, 'Just stop shooting.' "He (the shooter) turned around and shot the other dog again." While both dogs eventually recovered from the shooting, one of them lost an eye. The incident was witnessed by several horrified passersby and videotaped by at least one.
In January 2011, the state of Florida proceeded to trial on criminal animal cruelty charges. Comins was charged with two counts of felony animal cruelty. The dogs' owner cried on the stand while describing what it was like to see his dogs being shot. But before the case could get to the jury, the judge granted a judgment of acquittal. Thus, in a surprising turn of events, the Orange County jury never got the chance to deliberate the animal cruelty charges filed against Comins. Instead, minutes after the State rested its case, the judge ruled on a defense motion to dismiss the charges.
"I don't believe the state has met its burden and I'm granting a judgment of acquittal. This case is dismissed," Judge LeBlanc said. The acquittal means that the trial is over and Comins has been cleared of the crime. The government is not permitted to appeal or try again. Fong Foo v. United States, 369 U.S. 141 (1962); Sanabria v. United States, 437 U.S. 54 (1978). The jury never was given the chance to render its verdict. One has to ask, "Why?"
The Sixth Amendment to the United States Constitution provides, in part:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...The idea, which has controlled American jurisprudence for over two hundred years, is that a jury of peers, selected from the community in which the alleged crime occurred, is best suited to decide the issue of an accused's guilt or innocence. Moreover, in Florida, where Comins was tried, the prosecution has the right to a jury trial as well. (Rule 3.260 provides that an accused can only waive his or her right to a jury trial with the consent of the State.)
Florida law does give a judge the power to grant a motion for judgment of acquittal if "...the court is of the opinion that the evidence is insufficient to warrant a conviction." (Rule 3.380) This does not, however, give the courts unbridled discretion. Typically, a judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary.
"[T]he decision to grant or deny a motion for judgment of acquittal is not one which calls for the exercise of judicial discretion. If the evidence is legally sufficient to support the elements of the alleged crime, the trial court has no discretion to acquit the defendant..." Jones v. State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA 2001)(en banc).
"A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge." State v. Brockman, 827 So.2d 299, 302-303 (Fla. 1st DCA 2002) [Emphasis added].
Every crime has "elements" that the State must prove. Florida's felony cruelty to animals statute, Section 828.28.12(2) requires proof of one element:
"To prove the crime of felony Animal Cruelty, the State must prove the following element beyond a reasonable doubt:A judge has the right to decide after hearing the prosecution's case that it has failed to prove the necessary elements and dismiss the case. Such relief is rarely granted, but in this case, it is reported that the Court felt that there was not enough evidence to show malicious intent on the part of Comins. "This was not someone who was torturing an animal," the judge was quoted as saying. The Court is also reported to have said that he had heard no evidence that the act of shooting the dogs was committed in a cruel manner.
The defendant intentionally committed an act to an animal which resulted in the excessive or repeated infliction of unnecessary pain or suffering to an animal or the animal’s cruel death."
What's wrong here? First, "malicious intent" is not an element of the crimes charged. All the State has to prove is the intent to commit an act. It clearly did so when it proved beyond all doubt that Comins shot Hoochie and Riley nine times with a firearm. Second, the commission of the act "in a cruel manner" is not an element of the crimes charged either. What the State has to prove is that the act resulted in the excessive or repeated infliction of unnecessary pain or suffering to an animal or the animal's cruel death. Third, even if "malicious intent" and "cruel manner" were elements of the crimes charged, they by their very nature present questions of fact for a jury to resolve, not issues of fact for a judge to determine. Fourth, while Comins' attorneys maintained the defendant was protecting cattle, that is an affirmative, not absolute, defense that only a jury can weigh.
Needless to say, the dogs' owner, Chris Butler, was stunned by the Court's ruling. So is this writer.
In a recent blog post, I reported on my serendipitous encounter in December with Wile E. Coyote while returning home from the grocery store just after dusk. I wrote about how people and coyotes should learn to live together, noting that the Calabasas, California City Council had recently adopted a coyote management plan that bans the use of city funds for trapping and promotes “an aggressive coexistence education campaign.” After all, coyotes were here first and we moved in with them.
So I am happy to report that Wile E. Coyote will also be able to continue on his way in my home city of Claremont, California. In January, the City of Claremont announced that coyotes will be a “New Priority Project” for 2012. Most importantly, it was declared that the City Council had reviewed “the City’s existing policy to leave the coyotes alone unless there is an immediate danger to residents and their animals.” In addition, the “City Council reaffirmed their commitment not to eradicate the coyotes and directed police to use non lethal sponge bullets to scare coyotes away from populated parks where there is the possibility of interactions between the coyotes and children.” I wholeheartedly applaud this step in the direction of peaceful coexistence.
Jim Sak, a former Chicago police officer for over 30 years, recently relocated to Aurelia, Iowa, to help care for his wife’s 87-year-old mother. Shortly after arriving, the Saks learned that they had an unwelcome family member, Snickers, who is Jim’s service dog. Because Aurelia had a “breed specific” ordinance singling out pit bulls, the Saks were told Snickers could no longer live with them.
The Saks were summoned to a city council meeting on December 14th, where the council then voted 3 to 2 not to make an exception for the Saks to allow them to keep Snickers. This occurred even though the Saks argued that Snickers “was the sweetest, most good-natured dog you’d ever want to meet.” And that Jim heavily relies upon Snickers after “suffering a debilitating stroke that left him with no feeling on the right side of his body.” The council subsequently ordered the Saks to remove Snickers by the following day.
The Chigago Sun-Times quoted George Wittgraf, an attorney representing the Iowa town, as saying that Aurelia is “simply exercising its authority to protect and preserve the rights and property of its residents — whether or not that’s trumped by” federal law. In addition, City Clerk Barb Messerole said the ordinance was approved in March 2008, after a meter reader was bitten by a pit bull.
But the Saks were not going to take losing Snickers lying down. An animal foundation hired an attorney to help represent the Saks, and it paid to board Snickers at an out-of-town kennel while the Saks filed a legal challenge. In their lawsuit, the Saks have asserted that the Americans with Disabilities Act guarantees disabled persons the right to have service dogs, regardless of their breed. And just before the New Year, the Saks received some good news from a federal judge in Sioux City, who issued a temporary restraining order allowing Snickers to be returned to his family. The case remains pending.
Jim Saks was quoted as stating before the restraining order was issued, “I was a policeman for 32 years. I understand there’s black and white, but there’s also a grey area where you have to use your head. [The council members are] not using their heads.” Well stated, Jim. This is a prime example of the failings of breed-specific legislation. Just because, as City Clerk Barb Messerole said, “…several people c[a]me forward saying they were concerned about the pit bull because of the nature of the breed. They just feel it’s unsafe. They’re aggressive and could hurt somebody. If the service animal was anything but a pit bull, it would have been fine,” Jim Saks should have to lose his trusted and proven caregiver? It just doesn’t make sense. It should be clear that Jim’s obvious need for Snickers should trump any unfounded and hysteric fears about a particular breed. It is sad that it will take a court to say so.
Animal Legal Defense Fund, representing Compassion Over Killing, recently filed a civil suit against Cal-Cruz, a California chicken hatchery, to enjoin animal cruelty occurring there. This lawsuit marks an important development in animal law by seeking to apply animal cruelty standards to farm practices and doing so through a civil cause of action.
The action against Cal-Cruz stems from a 2009 undercover investigation by Compassion Over Killing. The investigation produced video footage of chicks killed and mutilated by the operation of heavy machinery used by workers to sort the newly hatched chicks. Mutilated chicks often fell to the floor where they shook with pain and gasped for air within view of the workers. Eventually, workers picked those chicks off the floor, left them for long periods of time in a bin full of other injured chicks, and forced them all down a narrow chute where they passed through a kill plate and into a pool of waste. These practices occurred with the knowledge of upper-management and appear to violate the California penal code which, generally speaking, prohibits action or inaction that unreasonably causes unjustified animal suffering.
Regrettably, enforcement of animal cruelty laws to protect farmed animals is exceptionally rare. The power to directly prosecute crimes is held by the state which has traditionally shied away from prosecuting cruelty cases involving farmed animals. Additionally, most states exempt cruelty against farmed animals – no matter how unnecessary or severe – if the cruel conduct is a “customary agricultural practice.” The few farmed animal cruelty cases that do exist typically target egregious acts of violence by individuals as opposed to systematic practices of animal cruelty performed by corporate entities and management.
The consequence of leaving farmed animals practically outside the protection of the law sets an absurdly low floor for the treatment of farmed animals – any amount of animal suffering may be tolerated if it yields extra dollars for the business. The lawsuit against Cal-Cruz presents a challenge to this unsettling dynamic in two ways.
First, the lawsuit seeks recognition that the treatment of chicks at Cal-Cruz fell short of the requirements under California’s animal cruelty law. There is no customary agricultural exemption in California so the key issue is whether the chicks suffered due to the gross negligence of Cal-Cruz workers and management – in other words, whether the conduct is incompatible with how a reasonable person under the same circumstances would act. Cal-Cruz workers and management seemed to violate this standard by failing to adequately ensure that chicks were not mutilated or killed by machinery, by failing to attend to injured chicks in a timely manner, and by failing to humanely euthanize the chicks. Importantly, these allegations do not only single out the actions of bad-apple employees but attack the normal course of conduct at Cal-Cruz.
Second, the lawsuit provides a basis for animal advocacy organizations themselves to stop animal cruelty violations. As mentioned above, only the state has the power to directly prosecute animal cruelty violations. However, California Business and Professionals Code § 17200 provides a civil cause of action to enjoin “unlawful business practices.” By alleging that the routine incidents of animal cruelty at Cal-Cruz constitute unlawful business practices, ALDF hopes to stop ongoing animal cruelty violations itself without relying on the prosecutorial discretion of the state.
Farmed animals have been left unprotected from cruelty laws for too long. The lawsuit against Cal-Cruz marks an important development in the campaign to extend basic compassion to farmed animals. The fact that the lawsuit is viable at all is a testament to encouraging cultural and legal trends taking place right now. And, if successful, it will set precedent raising the floor of the treatment of farmed animals by clarifying our duty towards them and allowing a path for civil enforcement of cruelty laws.
Law students around the nation are headed back to school from a well-earned and much-needed break after year-end exams. Exams mean precious family time, personal time, and just plain time for anything else give way to the never-ending nights in a study cubicle at the law library. Law school is meant to be punishing, and finding ways to relieve stress while earning a J.D. can be elusive. So it is quite encouraging that some law schools have introduced warm hearts, cold noses, and four paws to help students get through these stress-filled days. Partnering with many local rescue and shelter groups, the schools have made many homeless and adoptable puppies and dogs available for tummy rubs and ear nuzzling just when the students (and dogs!) need it most.
The Washington Post has caught on to the trend, reporting that “After the Yale Law Library added a ‘therapy dog’ named Monty to its collection in the spring, a number of other law schools have used the gentle yapping of puppies to break the stifling pressure that blankets their campuses.” Most recently, George Mason University School of Law partnered with a rescue group for “Puppy Day” for the second time, to students’ delight. One student even said that taking time out to hold a squirming puppy made her feel human again. Other schools that offer therapy dog programs to their students include Stetson University College of Law in Florida, University of San Francisco School of Law, and the University of Arizona College of Law.
An additional plus to the therapy concept has to be that introducing homeless and adoptable dogs to law students who might not otherwise get an opportunity to go to a shelter to find a companion may just spark a love connection at one of these events. A dog who might otherwise wait a long time at the shelter may just find the perfect forever-home with a law student who appreciates the love only a dog can provide. Opportunities to introduce pets that need homes to potential adopters have to be applauded, because those opportunities can lead to positive and immediate results for all parties. A case in point: Michael Phelps, the Olympic gold medalist swimmer, was recently on NBC’s Today show to discuss the 2010 Olympic Games when he was conscripted into helping out with an unrelated adoptable dogs segment. He fell in love, and long story short, he adopted the dog he introduced. Such a story could not have been scripted better!
It has to be true that just the sight of a puppy can automatically make one’s heart feel lighter. And the touch of smooth, silky, or coarse fur between one’s fingers can make even the most anxious or nervous test-taker smile. Can it be that the soothing presence of a dog can almost (almost!) make law school exams bearable?
With the support of marine scientists, environmental groups, and the International Game Fish Association, which keeps track of all sport fishing records, the Florida Fish and Wildlife Conservation Commission (FWC) voted in November to protect tiger sharks, smooth hammerheads, scalloped hammerheads, and great hammerheads. These shark species are in addition to the 23 sharks already protected by state law. The new law, which took effect on January 1st, will still allow for the “catch and release” of the sharks in state waters, but it makes their killing, possession, sale, or exchange a crime. The law will also not affect the killing or transport of sharks by most fishermen in federal waters.
The Miami Herald has reported that, “Shark experts and environmentalists applaud the [ban] and hope it clears the way for extending protections in both federal and international waters. Populations of all four species, according to FWC and federal fisheries biologists, have declined by more than half in recent decades, with studies suggesting smooth and scalloped hammerheads in the Atlantic Ocean and Gulf down by as much as 98 percent and tigers reduced by at least 65 percent.”
Florida has been a continued leader in shark conservation, passing one of the first bans on shark finning, which has since been outlawed in U.S. waters. In addition, Florida’s other shark fishing laws have been considered some of the most stringent in the country. One can hope that other states will follow Florida’s lead. Conservation is needed now more than ever, as sharks play a vital role in regulating the ocean ecosystem. With the popularity of shark fin soup and the misperceptions of sharks as “man-eaters,” shark populations are being decimated all over the world, making extinction a real possibility. The need for their protection cannot be underestimated.
Driving home from the grocery store last week, just after dusk, I encountered a curious pedestrian crossing my street as I approached my home. Who was it exactly? I can’t be sure but his name just might have been Wile E. Coyote. Yes, he had a lean, wolf-like appearance and loping gait which were unmistakable. He was a coyote alright. As a result, the short meeting reminded me of a recent article in the Los Angeles Daily News discussing the way some cities deal with their coyote populations, and in particular, the trailblazing city of Calabasas.
While most people are naturally uneasy at the thought of roaming, howling coyotes, the truth is "They're not circling your house, frothing at the mouth, waiting to kill somebody," Lt. Marty Wall of the California Department of Fish and Game told the Daily News. But coyotes do pose a threat to animals and can attack humans, so cities in Southern California have to have a plan to deal with them.
Recently, there has been an increase in coyote sightings and confrontations, making the need for a coyote plan all the more pressing for cities. As such, it is quite commendable that the city of Calabasas has become one of the few Los Angeles area cities to enact a coyote management plan that bans the use of city funds for trapping. The Calabasas City Council adopted the plan after “animal activists decried the use of snare traps as inhumane because they don't always catch an intended target and can slowly strangle the animal.” The trapped coyotes are usually euthanized as set out by state law. Before this new plan, county officials could be called in to trap a sighted coyote even if there was no attack involved. Now it will take an attack against a human to generate action by the city, possibly involving the state Department of Fish and Game to investigate and then handle any possible trapping.
The new policy also includes “an aggressive coexistence education campaign aimed at teaching residents how to scare off coyotes that have become too familiar with humans, and how to protect their pets.” The Los Angeles Times has reported that Calabasas “will work with Project Coyote, the Animal Welfare Institute and the National Park Service to develop a public education campaign that will teach residents how to live more harmoniously with coyotes.” Project Coyote is one of the groups that have worked tirelessly to minimize coyote conflicts with people, and it was at the forefront of the Calabasas plan, organizing an online petition in support. Camilla Fox, executive director of Project Coyote, was instrumental in getting the ordinance passed, as she helped to edit the final language of the ordinance.
As Calabasas Councilman Fred Gaines said, “We're living in their neighborhoods. There's no reason to harm these animals. They're not attacking humans. From time to time, they do pick up a pet, but that's what they do. [And w]e'd have a lot more rats and mice without them." The statistics show that Calabasas has not had any human attacks at least in the last nine years, and only one companion animal has been killed during that time period. It certainly does appear that the key to peaceful coexistence is changing human behavior to make sure coyotes aren't attracted to human areas, just as experts have said. Officer Greg Randall, wildlife specialist with Los Angeles Department of Animal Services, was quoted in the article stating that, “It's a waste of time to spend your time removing animals that have survived for the last 235 years. If killing them worked, they wouldn't be here. So removing them isn't the answer."
All this brings me back to that lone pedestrian I encountered last week. I was not frightened. I was in my car, after all. But seeing Wile E. did make me stop for a moment and think, are all my dogs inside? As I recalled that, yes, they were all safely inside the house, I was glad to have had that brief, yet natural encounter with a native resident of my city. His ancestors were here long before mine. And while we do have the ability to annihilate and destroy this perceived threat, isn’t it always better, and humane, to at least try and live peacefully side by side.
With the steady stream of shocking undercover video documenting abuses of America’s “food animals” making it into our regular media diet, I am not at all surprised that the factory meat/egg/dairy industries are trying to suppress the free flow of information about their operations. In what I believe to be a tacit admission by the industry that they know they cannot win a debate on the merits of the production methods they employ, they are now pushing state bills that, if passed, would criminalize the collection of damning evidence (a/k/a “ag gag” bills). Such a move proving once again the old adage, “If you can’t win on the facts, then silence your critics.” This is an understandable development in an industry that has so much to be ashamed of (e.g., veal crates, castration without pain control, gestation/farrowing crates, tie-stalls, de-beaking—and the list goes on).
Three states entertained ag gag bills last legislative season (Florida, Minnesota and Iowa)—none passed. However, don’t let that fact lull you into complacency: Florida’s ag gag bill was reintroduced just a couple of days ago and three other states (Kansas, Montana, and North Dakota) have had variations on ag gag laws on the books for several years now (adopted as part of each state’s equivalent to the federal Animal Enterprise Terrorism Act).
As attorneys working in the justice system, where the truth is supposed to have some relevance in the outcome of a case (the exclusionary rule notwithstanding), ALDF opposes these ag gag bills. I am pleased to report that both the Association of Prosecuting Attorneys (APA) and the National District Attorneys Association (NDAA) have joined ALDF in this fight. America’s two preeminent national prosecutors associations are united in their condemnation of the industry’s attempt to prevent undercover scrutiny of its conduct. In a joint letter signed by NDAA, APA, ALDF and others, both NDAA and APA point out that in addition to being profoundly poor public policy, these legislative attempts to restrict citizens’ flow of information to law enforcement sets a dangerous precedent that encourages other industries with enough political clout to seek similar preferential treatment. If the agriculture lobby is entitled to special “protection” from the collection of admissible and highly relevant evidence of criminal conduct, then why not afford the same courtesy to the insurance industry, securities traders, or big pharmaceutical companies?
We work with prosecutors on a daily basis to help them achieve the best possible outcomes in animal cruelty cases, so it comes as no surprise that we share a common view in opposition of these ag gag bills. Nevertheless, I am very pleased that both APA and NDAA have joined us in this fight.
Factory farms, also known as concentrated animal feeding operations (CAFOs), house hundreds or thousands of animals in very small spaces. Many of the animals on factory farms live their entire lives in cramped, dirty conditions just eating and excreting. “They will almost certainly never walk out in a field, chomp on grass, or feel the sun on their backs.” Just think of that. There have to be consequences, right? But these operations don’t like to advertise what goes on there. After all, having that many animals in such a confined space cannot be good—for the animals or us.
I have to confess that up until recently I didn’t know much about factory farming. It is not like the farmers call attention to the fact that most of the animals on their farms never reach anywhere near their average life expectancy. Enter a very informative article in the November 2011 of O, the Oprah Magazine. It details one woman’s fight against such operations near her home in Michigan. After doing her research, Lynn Henning decried, “This is not farming.” And I have to agree—wholeheartedly.
The article discusses the many health implications not only for the animals but for the residents near such facilities. It also mentions the environmental concerns:
“…CAFO waste isn't just manure, urine, and groundwater: It can contain birthing fluid; blood; hormones; chemicals like ammonia and heavy metals like copper (copper sulfate baths are used to clean the cows' hooves); antibiotics put into their feed, and antibiotic-resistant bacteria; pathogens like E. coli, cryptosporidium, and salmonella; milk house wastes, including cleaning agents and bad milk; and silage leachate, which is basically liquid runoff from fermenting fodder.”
Yikes! Why hasn’t anyone raised huge, waving red flags about this?
When Henning did raise concerns, seeking answers, she and other nearby farm families faced scare tactics, physical intimidation, and legal threats. She has even had her mailbox blown up and her granddaughter's window was shot out. But she has persevered, spreading the word about the tragic consequences of these so-called “farms.” It appears that CAFOs are big business, and those seeking to curb operations in any way are seen as threats to their existence.
In Finland, two activists who shot videotape in 2009 of the appalling conditions at similar pig operations faced prison time for ten cases of disturbance of the peace and 12 cases of aggravated defamation. In the videos, “the pigs appeared to live in cramped and dirty conditions with little stimulus to their existence. Some of the animals had fight wounds and bedsores. Some dead pigs were also seen in the pens.” The prosecutor of the case asserted that Karry Hedberg and Saila Kivelä had implied that crimes had been committed at the sites. But after an investigation, it was ruled that no laws had been violated by the pig farmers. Thus, the pair faced charges. Kivelä and Hedberg insisted, however, that it was not their intention to suggest that any laws were broken at the operations. In fact, they hoped to show that the operations were legal in Finland, bringing to light the real reality and fostering open debate about the situation.
But just this week they were acquitted of all charges of aggravated defamation, and Hedberg, who was considered the main defendant, was only given a 20-day suspended sentence for disturbing the public peace because they had entered one farm through the owner’s front yard. Helsingin Sanomat reported that, “As it had not been asserted that the recordings had been doctored in any way, the court found that selective use of camera angles could not be seen to constitute false or suggestive information… freedom of speech needs to be considered, even though the pig farms were depicted in a negative light….” Earlier this year Kivelä and Hedberg were quoted as being “…satisfied if they have managed in some small way to alter people’s perception of domestic meat production.”
Wow. I know my eyes have certainly been opened. I used to be one of those people that Hedberg referred to in an interview as having “…fond ideas [from the 1970s] of how animals are kept.” I know it is easier for me to think of farming as idyllic and pastoral, with the animals all being treated kindly. “The reality is that the number of individual farms has dropped dramatically, and even in rural areas people no longer recognize animal production. It has become an industry that has little to do with the countryside, or with anything natural.” Without anyone speaking out, we’d never know that.
Current regulations under the Endangered Species Act have created an illogical and self-defeating double standard that grants “wild” chimpanzees vital protections under the Act, while denying “captive” chimpanzees in the United States any protection at all. The decision to “split list” the chimpanzee population, as this wild-versus-captive division came to be known, dates back to a regulation issued by the Fish and Wildlife Service, or FWS, in 1976. Inexplicably, that regulation designated all chimpanzees as “threatened” species but, without justification, exempted captive chimpanzees from receiving any of the protections afforded to their wild counterparts.
It soon became evident that FWS’s split listing failed to protect either the wild or the captive chimpanzee population. And, by 1990, the species was in such great peril that FWS was compelled to review its 1976 classification. Although the 1990 status review resulted in the upgrade of wild chimpanzees to endangered status, captive members of the species continued to languish without protection. Remarkably, FWS’s commercial explanation for prolonging the split listing flatly contradicted the conservation mandate embodied in the Endangered Species Act.
Then, last year, reacting to the worsening plight of the species, the Humane Society of the United States, in concert with several other animal rights’ organizations, petitioned FWS to reconsider the status of captive chimpanzees in the United States. That petition—supported by affidavits from primate experts and activists such as Drs. Jane Goodall and Richard Wrangham—detailed the often tortured and painful existence of captive chimpanzees in this country, including their exploitation for entertainment and research, and their suffering as household pets. The petition also powerfully linked the lighthearted manner in which chimpanzees have been portrayed here in the United States with the catastrophic degradation of their natural habitat and wild populations in Africa. FWS was persuaded by the petition, and launched another status review—this time, to re-examine the split listing. In September of this year, FWS invited public comments to inform its review of the split listing and its overall decision-making process.
ALDF contacted the law firm of Proskauer Rose in search of volunteer legal assistance to prepare a comment exposing the plight of captive chimpanzees. We embraced the opportunity and immediately focused our attention on the legality of the chimpanzee split listing. After an exhaustive exegesis of the legislative history and text of the Endangered Species Act, we concluded that the split listing of chimpanzees violated both the letter and spirit of the law, such that FWS had lacked the authority to impose such a split in the first place. In addition, with the aid of the Humane Society petition, we established that the justifications for the split-listing that were advanced in 1990 have proven utterly false over time. Given these two incontrovertible conclusions, we urged FWS to grant captive chimpanzees the same endangered status as wild chimpanzees, with all of the protections that accompany the designation.
We submitted our comments on October 31, 2011, and are hopeful that the great weight of legal and scientific data will persuade FWS of the futility of the split listing and the need to unify the chimpanzee population under one legal standard.
It is not too late for you to voice your own views and concerns on this important issue! We learned recently that, due to an error in the initial publication calling for public comments, FWS has re-opened the comment period and will accept submissions until January 30, 2012. Please take a moment to read the call for comments to see if you are able to add something to the conversation.
Once again, it has been Proskauer’s privilege to represent ALDF in its advocacy efforts on behalf of animals.
It’s about time, right? The Los Angeles Times recently reported that Allergan, the maker of Botox, had a process approved earlier this year by the Food and Drug Administration that will allow Allergan to test its product on cells in a lab dish, instead of having to test every batch on live animals. It took Allergan 10 years for its scientists to develop the test, but its success may allow Allergan to stop at least 95% of its animal testing within three years if the process is approved by all the other countries in which Botox is sold. According to the Times article, “The government says that every new compound people might be exposed to — whether it's the latest wonder drug, lipstick shade, pesticide or food dye — must be tested to make sure it isn't toxic. Usually, this requires animals. Allergan's new test is one of several under development, or already in use, that could change that.”
Joyce Tischler, ALDF's founder and general counsel, finds the advance a terrific step in the right direction. “One of the most exciting developments in science today is the move away from the use of live animals and toward the use of tissue cultures, cell cultures and other non-animal alternatives. Scientists are exploring a variety of alternatives to the use of animals in testing and this is a significant advance. Not only will fewer animals suffer, but non-animal tests are better predictors of what a human reaction will be, and they are faster and less expensive. It’s a win-win for everyone.”
Testing facilities in the U.S. indeed test on nearly one million mammals per year, according to 2009 statistics from the U.S. Department of Agriculture. But that number does not include mice and rats, the most widely used animals in labs, because the U.S. Animal Welfare Act excludes them. It has been estimated that the actual number of research animals used in the U.S. is closer to 17 million, including rodents, birds, reptiles, amphibians, and fish. And it is true that animal testing does not necessarily indicate how products will affect humans. The Times cites a 2000 study in the journal Regulatory Toxicology and Pharmacology, reporting that rodent experiments predict toxicity to humans just 43% of the time. Not very accurate results when better alternatives are available.
Times have changed. No longer are animals viewed as “black boxes,” easy “creatures” to be tested upon, and their deaths studied. It is true that the most tests utilized today have not kept pace with scientific progress. In the past, scientists didn't understand how chemical testing could sicken an animal or measure the effects upon the animal as a result, but they could certainly see if the animal lived or died from that chemical. This led to the "Lethal Dose, 50%" test, invented in 1927, which is based upon how much of a given toxin will kill half of the animals exposed to it. Until June 2011, this was the test Allergan had to use. Thankfully, progress has allowed Allergan, and hopefully soon, many other companies, to move away from seeing animals as just a means to an end. And that is good news for us all.
As we detailed in an earlier post, California recently enacted a law prohibiting the sale and possession of shark fins.
However, that was not the only animal-protective legislation California approved in its most recent legislative session. In fact, the state passed several significant bills into law targeting persons who victimize animals, including:
- AB 1117 – strengthens the laws regarding seizure and care of abused and neglected animals. Also, establishes a new law prohibiting those convicted of abuse from owning, residing with, or caring for animals for five years following a misdemeanor conviction and for 10 years following a felony.
- SB 425 – strengthens the laws against dogfighting and cockfighting.
- SB 426 – allows eviction of tenants who use their property for dogfighting or cockfighting.
- SB 917 – strengthens animal cruelty penalties and prohibits roadside animal sales.
Of course, California wasn’t the only state to pass important animal legislation this year. But these new laws demonstrate why the Golden State continues to rank as one of the “Top 5” states in the country for its animal protection laws.
Good job, California!
In August 2011, the University of Pennsylvania was issued an official warning letter for its "failure to establish programs of adequate veterinary care" for some of its research animals. According to a Philadelphia Inquirer article, the warning covered inspections from May 10, 2010, through July 20, 2011, and stated that “two dogs had interdigital cysts (often from standing on wire flooring), dirty and algae-filled water containers for four horses, and three gerbil deaths that occurred because of ‘unsuitable sipper tubes.’” It was also reported that any further violations could result in a civil penalty or criminal prosecution.
Worden also noted that Penn houses up to 5,000 animals a year at its medical and veterinary schools and that it has garnered 115 violations for the treatment of its research animals since 2008. That number is more than twice the number of violations found at Princeton University, which ranked as the second worst school in a survey of USDA inspection reports from 2008 to 2011. Penn has received at least $1.4 billion from the National Institutes of Health since 2008, and that amount for federal research funding is the highest of any Ivy League school. With research funding at stake, there have been recommendations that call for the USDA to formally sanction any schools for such violations and that the National Institutes of Health should pull research funding from any offending institutions.
There should absolutely be consequences for Penn for its continuing actions. These circumstances do not appear to be isolated incidents, and warnings do not seem to have the desired effect, as the university seems content to carry on the callous treatment of its research animals. Penn has issued a statement claiming, "we take these issues very seriously and have modified our program to correct the deficiencies noted during that period. We are continually working to improve our animal care program with the goal to eliminate any shortcomings that occur and prevent them from recurring.” Maybe if the funding for their research program was decreased, such incidents would decrease too. And the “goal” of proper treatment of the animals would finally be reached. Let’s make this a final warning to Penn and all the other institutions that conduct animal research.
Shouldn't animals that are injured by people convicted of hurting them legally be considered "victims?" This will allow, in many cases, punishment commensurate with the crime, especially in those states which have "sentencing guidelines" which recognize "victim injury" as a sentencing enhancement. This blog post recalls my recently experience as a Florida prosecutor and my attempts to get a meaningful sentence after a man I prosecuted was found guilty of cruelty to a Rottweiler dog, Rosco. I asked the judge to deem Rosco a "victim" and to score extra sentencing points against the perpetrator. [State v. Thomas Nebus - #01-2010-CF-3230-A; Eighth Judicial Circuit Court]
At last count, 21 states have some form of sentencing guideline system utilizing either a grid or worksheet structure. Some, like Florida and Maryland, consider injury to the victim as a sentencing factor. Florida, though, limits the definition of "victim" to "...any person...." This seems just wrong, though it is overwhelmingly the predominant legal view.
Animals are more than mere chattel. There is now no question that mammals, in particular, are intelligent, sentient, social creatures that feel both physical and emotional pain. Most states, in one form or another, mirror Florida's felony cruelty statute which proscribes the intentional commission of an act or acts which result in "the cruel death or the excessive or repeated infliction of unnecessary pain and suffering" to an animal. They do not, and should not, speak of "damaging the animal property of an owner." As such, such laws, at least implicitly, recognize not only the sentiency of animals but their indisputable existence as victims of crime rather than inanimate objects.
It is no coincidence that three Florida statutes, in logical sequence, deal with the abuse of the elderly and disabled, address the abuse of children, and prohibit cruelty toward animals. Moreover, FS 828.03 treats animals exactly like children and allows for the appointment of agents to investigate violations of Florida law "for the purpose of protecting children and animals." [Emphasis added] Clearly children, the elderly, and disabled adults are recognized as victims. Surely it is only logical to afford animals, at least sentient mammals, the same recognition. To fail to do so would create an undeserved and illogical "loophole" by which the perpetrators of horrific acts of violence and cruelty to animals would escape full accountability.
While once ignored, denied, or rationalized away, there is now a compelling (and ever-growing) body of evidence that animals possess the capacity to experience pain, stress, and emotions such as fear. See, e.g., Animal Pain (Charles E. Short & Alan Van Poznak eds., Churchill Livingston 1992); Mental Health and Well-Being of Animals, ed Franklin McMillan, 2005, Blackwell Publishing; Physiology and Behaviours of Animal Suffering, Neville G. Gregory, 2004, Blackwell Publishing; The Sciences of Animal Welfare, Mellor, Patterson-Kane, Stafford, 2009, Wiley-Blackwell; Understanding Animal Welfare: The Science in its Cultural Context, David Fraser, 2008, Wiley-Blackwell. The concept that animals experience basic emotions, including fear and stress in response to pain may still be heresy to some, but the reality is no longer deniable. In the words of one prominent ethicist, animals are "more like people than like wheelbarrows in that what we [do] to them matters to them - they are "sentient." Bernard E. Rollin, Science and Ethics (Cambridge Univ. Press (2006) (emphasis original).
I presented all these arguments to the judge on behalf of the Rottweiler, Rosco, but he rejected them in light of the limitation of "victim" to "a person" provided under the Florida punishment code. Nevertheless, he adjudicated the defendant, a convicted felon, imposed a six month jail sentence, and added a consecutive three year period of probation that will insure, among other conditions, substance abuse and psychological treatment as indicated, a $2500 fine, and most important, no contact with animals. I can't help but think, though, that maybe it's time for the legislature of Florida and other states to start explicitly treating animals like the victims they, so very often, tragically are.
There are many stories and myths. The person that kept their new puppy tied to a tree outside all day without adequate food, water or shelter. The animal guardian who said, after Buster got one of those terrible doggy diseases that could have been held at bay with a simple shot, that they didn’t know they needed to vaccinate him. Or one of the most common ones…“I didn’t neuter Spike because I wanted him to remain a male. I didn’t want him emasculated.” These are simple scenarios that needn’t happen, but they continue to occur because of a lack of education. Some folks really don’t understand that tying up a puppy, failing to vaccinate, and neglecting to spay or neuter a companion animal is wrong. Maybe they had no one to teach them?
Enter a very special educational program instituted by lawmakers in Albuquerque, New Mexico, and surrounding Bernalillo County, discussed in the September 2011 issue of Dog Fancy. An innovative program, “dog owners” who break the law for the first time (dog license, leash law infractions, and the like) are being sentenced to attend a Pet Owner Responsibility Class. While some are not happy about the prospect of attending class, many who leave the class afterward are thankful for the opportunity. It helps, too, that attendance is mandatory and that failing to show up for class can lead to a bench warrant, with a fine or jail time. On the positive side, it seems to really make a difference. In the five years that the class has been taught, there has only been one repeat offender. The class covers the animal-control ordinance and proper pet care basics, among other topics. There is also plenty of time for questions and discussion during the four-hour class.
This is an admirable and refreshing approach to getting the word out on how to care for companion animals and what local laws are concerning their basic treatment and care. Instead of just paying a fine, and possibly continuing with their law-breaking ways, guardians have the opportunity to learn why their infraction was unlawful, and best of all, how to correct that behavior. For some people, caring for a companion animal is simple, logical and innate. But for others, that respectful behavior must be learned. And there must be resources where such folks can turn for the valuable information. Maybe other communities will now follow Albuquerque’s lead and establish such classes, especially since it is clear that such education is having a positive effect. It would be easy for city parks and recreation departments to offer an elementary companion animal information class or meeting. Learning doesn’t have to be the result of an infraction. Or the class could be offered as an option when purchasing a companion animal license. There are lots of folks that could benefit, even if they already feel they are doing everything right. Getting more education out there can only be beneficial for the animals.
Last year I had the opportunity to present a lecture at ALDF’s Future of Animal Law Conference at Harvard Law School, the subject and proposals of which I would like to revisit here briefly.
Today, the U.S. has only three states which lack felony-level animal cruelty penalties – this is a dramatic shift from twenty years ago when forty-three states were without them. While there certainly remains a great need to strengthen and expand existing anti-cruelty laws and to ensure that such protections are fully enforced, it is time to expand the reach of our laws to encompass a new class of animal-focused statutes -- a class I am referring to as best interests laws.
Complementary to laws which focus solely on protection from cruelty, best interests laws – either expressly or by effect – are provisions which recognize that animals have interests beyond protection from physical abuse and neglect. Certainly it is in the best interests of an animal not be subjected to mistreatment, but where anti-cruelty laws are, at their core, tools striving to protect animals from physical abuse and define societal standards, laws based primarily on best interests have the potential to more broadly and proactively impact the lives of animals in a multitude of areas.
The following are some proposals that fit into this classification of statutes. The custody proposal was formally unveiled last year; the registry proposal was launched as a campaign last year and has since been successfully enacted in three jurisdictions. I have previously written about the other two proposals, but they have not yet been made into state law.
It is noteworthy that these proposals borrow from some of the legal tools and concepts used on behalf of children. This makes intrinsic sense, as there are many corollaries between animals (especially companion animals) and children. For example:
- Both share a dependency on others for needs
- A library of laws protect both
- Both may be beneficiaries of trusts
- Both have many organizations/agencies working on their behalf
- Custody of Companion Animals in Divorces & Separations
The custody of companion animals has been an increasing issue in litigation emanating from divorces or in the separation of unmarried parties. ALDF attorneys and others have attempted to have courts consider the best interests of animals in these situations with mixed results. This proposal, which I introduced at Harvard last year, seeks to assist the courts in these situations by codifying a structure whereby the best interests of an animal in a custody dispute must be considered. No state has yet enacted this proposal, but a New Jersey lawmaker began drafting legislation on this concept late last year.
- Animal Abuser Registries
I developed this concept over a decade ago and added it to ALDF’s model laws collection. As with sex offenders, the premise is that knowing the whereabouts of convicted animal abusers and providing animal shelters and the public with access to that information reduces the risk and costs of new victims. Clearly, it is in the best interests of an animal not to become a victim of cruelty or neglect – this proposal approaches that threat with prevention rather than reaction.
Last year ALDF launched a national campaign to raise awareness of this concept and, so far, there have been more than 40 such bills introduced in 21 jurisdictions. Three counties in New York (Suffolk, Rockland, and Albany) have enacted registries covering more than 2.1 million people and millions of animals.
- Court Appointed Special Advocates (CASA) for Animals
There is a perception for many in the public that prosecutors and other law enforcement officials are looking out for the best interests of animal victims – while often true, this is not always the case. Enacted by statute, CASAs for children have been around for decades for similar reasons, and we notice and appreciate their value. In the past, I have written about borrowing the concept for animal victims. Such a proposal would establish a similar system whereby criminal courts could appoint a CASA to represent the interests of the animal victim(s) during the court proceedings relevant to that case. Chicago has had an animal CASA program for a few years with successful results, however no state has enacted such a law as yet.
- Termination of Unfit Guardian/Owner’s Interest in an Animal
This proposal would allow a court broad review in determining whether a guardian/owner of an animal is fit to possess the animal and, if not, the means to terminate this interest. The court review includes considering conduct that may not rise to the criminal level, but nonetheless may be detrimental to the animal. It establishes that the court must consider the best interests of the animal in making its decisions.
Listen to factory farmers defend themselves and you would think they see the animals they raise and kill as their beloved family pets. They will talk about humane handling standards, responsible husbandry, and even how much they love the animals they are fattening and killing. But if you want to know how factory farmers really see animals you need to look at their actions and not their words. Right now the National Meat Association, a mouthpiece for factory farmers across the country, is asking the Supreme Court to strike down a California law that requires exactly the sort of basic humane treatment for farmed animals that factory farmers claim to want. The law bans the sale, transport, or purchase of sick and disabled “downer” animals who are so weak they are unable to walk. The law was passed in the wake of investigations by the Humane Society of the United States documenting downed animals being dragged, shocked, bulldozed, rammed, and hosed to force them through the slaughter process.
The National Meat Association – "animal lovers" that they are – want the law struck down.
The Animal Legal Defense Fund has intervened in the case, NMA v. Harris, now before the Supreme Court, to stand alongside California and defend its law. At issue is whether federal law, which favors the factory farmers, trumps or “preempts” California’s law. One can wonder why the Obama administration is so beholden to the factory farm lobby that it is willing to get behind the abuse of sick and downed animals. Regardless, the Animal Legal Defense Fund is opposing the National Meat Association before the Court, and arguing that the state law should be upheld. The Court will soon hear arguments in the case, which could have a major impact on the suffering of millions of animals and on animal law more generally.
A law that bans the sale, transport, or purchase of sick and disabled “downer” animals -- living, feeling beings -- who are so weak they are unable to walk, is the bare minimum we can do to be humane. Factory farmers oppose it, and they are willing to go all the way to the Supreme Court to protect their profits. Think factory farmers love animals? Then why are they fighting to force even sick and disabled animals – animals too weak even to stand – to slaughter? The obvious truth is that they love the money these animals represent, and it is time they simply admitted as much.
In 2008, the Animal Legal Defense Fund entered into an exciting collaboration with Lewis & Clark Law School to launch the Center for Animal Law Studies (CALS) at Lewis & Clark. Since that time, CALS has educated and supported law students and legal professionals in the rapidly developing field of animal law through classes, conferences, scholarships, and clinical opportunities.
The milestones that have been achieved at CALS have been nothing short of incredible, from the appointment of the first animal law dean to hiring the first full-time faculty member dedicated to an animal law clinic. These “firsts” complement an already impressive list of pioneering accomplishments at Lewis & Clark including the formation of the first Student Animal Legal Defense Fund (SALDF) chapter, first academic animal law conference, first animal law journal, and first national animal law competitions.
With the above track record, CALS has set the academic bar high as a leader in the field of animal law. This position was validated once again when Lewis & Clark’s Law School Dean, Robert Klonoff, announced at the 19th Annual Animal Law Conference that it will be launching an Animal Law LL.M. (Master of Laws) program. With the creation of this program, Lewis & Clark will have the first advanced legal degree program in animal law in the world. The LL.M. degree will be offered starting next fall (2012).
Congratulations to our colleagues at CALS - Pamela Frasch, Kathy Hessler, and Laura Handzel - for this latest accomplishment!
* Photo courtesy of Brooke Peters.
When the Occupy Wall Street protests began in Downtown Manhattan several weeks ago, not many paid attention. The mainstream media was very slow to react and give the movement any traction. That was then and this is now. On September 30th, the movement released its first official declaration, listing its demands, “Principles of Solidarity,” and “Documentation on how to form your own Direct Democracy Occupation Group.” The group cites that its movement and declaration come at a time when corporations, which place profit over people, self-interest over justice, and oppression over equality, run the government. The declaration goes on to say that the protestors on Wall Street have peaceably assembled within their rights to let certain facts be known. Among the facts listed is one that those familiar with the Animal Legal Defense Fund’s three-plus decades of work may already know all too well: “They have profited off of the torture, confinement, and cruel treatment of countless nonhuman animals, and actively hide these practices.”
The Occupy Wall Street movement, that was at first portrayed by many as insignificant, is now spreading across the land, as more and more people voice their displeasure with such corporate behavior. A search of the news reveals that the movement has reached all corners of the country, and that protests are now taking place in Hartford, Philadelphia, Tampa, Minneapolis, Chicago, Los Angeles, Pueblo, New Orleans, and Santa Barbara, among others. From these unexpected corners, citizens are giving a voice to the truth about how animals are regarded by corporate America.
How many times has it been reported that a corporation has violated the law with respect to the way they treat, experiment on, house, and kill animals? Unfortunately, too many to count. Remember the great pet food recall and the many deaths associated with it? How about the many undercover videos of animals being tortured and terribly abused before being slaughtered for their meat? It has become more and more difficult to fight against such wrongs when there are so many loopholes and lobbies protecting these corporations. Incidents of mass abuse just continually get swept under the proverbial rug, while corporations continue to add to their bottom line.
Things need to change. There needs to be more protections for the animals, not the corporate fat cats, and most certainly, there needs to be more transparency. Today, more than ever before, we need to continue the campaign for animal rights and speak out against those who so blatantly disregard these rights, especially those who profit from their unlawful behavior. Any movement that recognizes these tenets deserves a voice.
On a daily basis my colleagues and I at ALDF's Criminal Justice Program see the worst of mankind’s interactions with animals. It is necessary to get a bit thick-skinned dealing with the daily carnage—if for no other reason than to maintain one’s professional judgment and objectivity. However, the “dog/cat burned alive” cases still really get to me. You don’t have to look very far to find them. Just go to Pet-Abuse.com and enter “dog burned alive” and run the search—you’ll get eight pages of results. Or, if you prefer, have a look in Lexis. See, e.g., Childs v. State, 2000 Tex. App. LEXIS 7510; State v. Rodriguez, 2000 Kan. LEXIS 613; Brown v. State, 2009 Tex. App. LEXIS 2936; State v. Collier, 1998 N.J. Super. LEXIS 485; Anderton v. State, 1980 Ala. Crim. App. LEXIS 1287; Commonwealth v. Epifania, 2011 Mass. App. LEXIS 1102.
In just such a case (involving a dog), my good friends in Detroit (Wayne County—Amy and Raj) prosecuted two defendants – Kristian D. Jackson (Case No. 10-012065-01) and Decarlos L. Young (Case No. 10-012065-02). The act was captured on a cell phone camera video. These two twisted and violent souls opted to use fire after they were unsuccessful in killing the dog by strangulation/hanging.
According to media reports, the defendants tried to spin this incident as a misguided attempt at flea control (based on statements on the video), but one could easily conclude that this dog was being culled as a “cur” for not being a willing fighter.
Their sentences? Thirteen months to 8 years for Jackson, and 24 months to 8 years for Young (who was on probation for child abuse at the time, and who also picked up drug charge a month after the dog burning incident). The sad news here is that 24 months prison (or even 13 months prison) is relatively good when one looks to other states for comparison. In Oregon, for example, our felony sentencing guidelines are so weak that a defendant who intentionally sets a cat or a dog on fire is legally precluded from going to prison—a short term in jail yes, but not prison. (Yes, we’ve tried twice in the last two legislative sessions to fix this, but it seems that the members of the Oregon Legislature feel that the we just can’t afford to put these types of violent offenders in prison.)
Back to Jackson and Young. Our faithful readers will recall that the duration of incarceration ordered in court (the gross sentence) is misleading – it is the net amount of time served by a defendant that is the relevant measure. I can assure you that the eight-year cap was an absolute fiction. In fact, a quick look through the Michigan Department of Corrections’ database reveals projected release dates of November 5, 2011 for Jackson, and September 29, 2012 for Young. Recall that the sentencing hearings were held on December 16, 2010. Thirteen months in Jackson’s case nets out to less than 10 months, and 24 months in Young’s case nets out to 22 months. These reductions are credit for the time served prior to sentencing. The good news is that in Michigan there are no early release vehicles such as “credit for good behavior.”
Notwithstanding the fact that Michigan can be considered one of the “tough on crime states” due to its repeal of the “good behavior” credit, 10 months in prison for an offender with no priors or even 22 months in prison for an offender who was already on probation for child abuse seems incredibly light. I have watched the video and listened to this dog cry as he burns to death. If you watched it and found this dog’s death as heart wrenchingly nauseating as I do, then perhaps you’d agree that at least an eight year net prison term should be the minimum sentence rather than the maximum sentence… Perhaps even longer?
I find it ironic that, though almost never imposed in non-homicide cases, our justice system has no problem requiring that a cap be placed on the theoretical maximum possible prison sentence for felony animal cruelty. However, while our justice system readily embraces setting a maximum penalty for aggravated forms of animal cruelty, there are no mandatory minimum sentences. This needs to change. But will it? Legal proponents of mandatory minimum sentences for violent offenses are often met with substantial resistance from lobbyists working to repeal mandatory minimum sentencing laws – while these groups are by and large motivated by the outcomes in drug cases, their efforts can (and do) create a bias against mandatory minimum sentencing proposals in general, even for violent crimes.
What you can do help establish mandatory minimum sentences in aggravated forms of animal abuse? Educate yourself and then act—here are some approaches:
- Go to your local courthouse and watch a few sentencing hearings—you’ll be shocked at what you see.
- Chat with police officers and prosecutors about how they feel the justice system is working.
- Attend a local budget hearing and learn just how much money your local police department or sheriff’s office has to work with.
- Above all else, write to your state legislators and urge them to sponsor and support a bill requiring mandatory minimum sentences in all cases of aggravated animal abuse, including cases where animals are intentionally burned alive. It’s not a silver bullet—it doesn’t cover every possible outrageous act of cruelty, but it’s good a start and sets a strong precedent for further action.
In July, the Parma City Council voted to become the first city in the state of Ohio to officially recognize pets as family members, changing the phrase pet "owner" to pet "guardian" with regard to all animal-related ordinances. Newsnet5.com reports that Parma joins 17 other cities in officially recognizing the value of the term "animal guardian" in reference to treasured animal companions. Those cities include Beverly Hills, West Hollywood, San Francisco, Sebastopol, and San Jose, California; St Louis, Missouri; Woodstock, New York; Bloomington, Indiana; Boulder, Colorado; Sherwood, Arkansas, and Amherst, Massachusetts. In addition, Rhode Island, and Marin and Santa Clara Counties in California have adopted “guardian” language.
The city of Parma acted in response to the growing belief that the word "owner" does not accurately reflect the true bond that develops between people and animals. It is believed that the word "guardian" more adequately describes the high level of responsibility, care, and respect that people show the animals with whom their share their homes and lives.
This change is a wonderful example of people making progress toward full recognition that animals are more than property. They have a value that is beyond measure, as they are living beings worthy of proper treatment—by people and the law. They mean more to their guardians than can ever be conveyed by describing them as simply "owned." There are more than a few people who would describe their relationship with their companion animal as them being "owned" by the animal, rather than the other way around! The time has come for laws to catch up and show companion animals the respect they deserve.
Was Off-Duty Law Enforcement Officer Actually in Fear of his Safety When He Shot and Killed his Neighbor’s Chihuahua with a Bow and Arrow? Kansas Prosecutors Don’t Think So...
On September 8, 2010, Brian Dale Montgomery heard a “ruckus” outside in his backyard. Upon investigation, he found his neighbor’s Chihuahua, Flashito, biting at his dog, a black Labrador retriever. Montgomery attempted to break up the interaction to no avail. Because he felt that Flashito was behaving aggressively, he went back inside his home to get his bow and arrow—later saying that he did not retrieve a firearm out of consideration for the “safety of his neighbors.” Montgomery then shot Flashito with the bow and arrow (one that he had previously used to hunt bears), retrieved the arrow from Flashito, which had tore through his body, washed the arrow in his upstairs bathroom, and then proceeded to prepare his son for football practice. At no time did Montgomery tell anyone what he did to Flashito—not his wife, nor his son, nor Flashito’s owner. After being mortally wounded, Flashito crawled back under the fence to his own backyard.
Montgomery, an active field agent with the Kansas Bureau of Investigations, trained in tactical operations, did not contact law enforcement after killing Flashito. Montgomery later admitted to the killing, and it was also revealed that he had complained about Flashito being a nuisance for the past year and a half. On a previous occasion, he had informed Flashito’s owner that (1) the owner needed to take care of the dog coming into his yard, or (2) Montgomery would allow animal control to do so, or (3) Montgomery would take care of the problem himself.
Montgomery was later charged with cruelty to animals under K.S.A. 21-4310, but he was ordered discharged by the Ford County District Court on November 10, 2010 (case number 10 CR 441). The order was made following a preliminary hearing in which the district court agreed that Montgomery was justified in killing Flashito because he felt threatened by him. The State filed a notice of appeal on November 16, 2010, and recently submitted its appellate brief to the Court of Appeals of the State of Kansas.
On appeal, the State contends that the district court erred in reviewing the evidence submitted at the preliminary hearing, as the evidence introduced should have been viewed in a light most favorable to the State. As the State had presented a prima facie case of cruelty to animals (Montgomery freely admitted that he had killed Flashito), it was error for the district court to have dismissed the charge as the result of an affirmative defense raised by Montgomery, the defendant.
According to Montgomery, K.S.A. 21-4310(b)(7) provided a complete defense. That provision reads: “The provisions of this section shall not apply to: ...the killing of any animal by any person at any time which may be found outside of the owned or rented property of the owner or custodian of such animal and which is found injuring or posing a threat to any person, farm animal or property.” The district court agreed with Montgomery that Flashito clearly posed a threat to him and his dog.
The State has now argued on appeal that in so holding, the district court found that the Animal Cruelty Statute did not require any severity or gravity of the threat to be determined—essentially ruling that any threat by Flashito justified the killing. The State claims that in holding that Montgomery did indeed feel threatened, the district court substituted its own judgment for what should have been a fact question for a jury. The district court’s determination that Montgomery was threatened was based solely upon his own testimony.
Clearly the weight and credibility Montgomery’s testimony carries lies within the province of a jury, as does the weight and credibility of the affirmative defense. It was absolutely error for the district court to have made a fact determination at a preliminary hearing when the testimony was supposed to be viewed in the light most favorable to the State. What about the prior evidence that Montgomery told Flashito’s owner that he would take care of the problem himself if it continued? Shouldn’t that have been considered as well?
The State is also arguing that the district court did not properly interpret the statute and that its “reading specifically” of the statute has undermined the legislative intent and purpose of the statute. In addition, the district court erred in finding that Montgomery acted without malice in killing Flashito. The district court failed to consider how an objectively reasonable person in the same or similar circumstances would have acted, looking only to Montgomery’s subjective intent. Based upon the evidence produced, a reasonable jury could objectively have found that Montgomery was not threatened, acted maliciously and therefore was not justified in killing Flashito.
If a very small dog wanders into his neighbor’s yard and causes a “ruckus,” a reasonable person would either contact the dog’s owner to come and get him, or call the animal authorities. A reasonable person does not retrieve a bow and arrow strong enough for a bear in order to “take care of” the situation. Doing so is animal cruelty, plain and simple.
The bill outlawing shark fins in the State of California has cleared a big hurdle and is on its way to a final vote by the full Senate. The Los Angeles Times reported on August 26th, that the bill had passed the Senate Appropriations Committee on a 5-2 vote. The proposed law will now move to the Senate floor, where a vote is expected within weeks. The bill, which has become quite controversial due to the popularity of shark fins in certain Asian cuisine (it is considered a delicacy by some), “has been championed by conservation groups as a way to curb [the harvest of fins], a practice that has contributed to the sharp decline of shark populations worldwide.”
Opponents of the bill have asserted that the bill unfairly discriminates against “a cultural tradition.” The Times article notes that Chinese American restaurateurs and traders have lobbied against the bill, with the support of several Chinese American lawmakers, including Sen. Ted Lieu (D-Torrance), who voted against the measure. Sen. Leland Yee (D-San Francisco) has called it "an unfair attack on Asian culture and cuisine."
Supporters of the bill, including some Chinese American lawmakers, chefs and celebrities, such as NBA basketball star Yao Ming, hail the bill as a step in protecting a species that has been vastly overfished. Many believe that if protective steps are not taken now, sharks may become extinct within our lifetimes. Chinese-born Assemblyman Paul Fong (D-Sunnyvale), who is a sponsor of the bill, has said that he ate shark fin soup growing up, but after he learned that the fin trade was decimating shark populations, he began to speak out and shun the practice. "I'm proud of my Chinese roots, and our culture will live and survive without shark's fin," he said. Just before the Times reported on this important step for the bill, it printed an editorial entitled, “Take shark-fin soup off the menu.” It indicated support for the passage of the bill, finding that shark populations are in sharp decline and that California can help by passing a shark-fin ban. The editorial stated: “The loss of a cultural tradition is regrettable, but the loss of a species is tragic and the upset of the oceans' environmental balance could be catastrophic.” Both articles carried disgusting photos as lead-ins, with one showing slaughtered shark carcasses and the other showing jars of shark fins on display in a shop in San Francisco’s Chinatown. Yuck! But they were good attention grabbers—this cannot be ignored any longer.
Similar legislation has been signed in Washington, Oregon and Hawaii, while President Obama signed a federal law strengthening a ban on shark finning in U.S. waters earlier this year. If the bill is passed by the Senate and signed by the governor, the California law would go into effect in 2013. Not a minute too soon, the sharks would say. If you live in California, please consider contacting your State Senator to give a voice to those who cannot speak. Let’s protect the sharks for many future generations.
Have you heard the horror stories? The ones about small animals for sale on the street corner, usually a puppy, kitten or rabbit. A child becomes enthralled. “Oh, Mommy, can we take her home? Please, please, please!!” The child pleads, the price is right (usually much lower than market value for a comparable purebred), and the animal seems cute enough. Later reality sets in—the animal is much too young to be away from her mother or she is so malnourished she can’t handle the food she is now being fed. She has internal parasites, worms, or a respiratory infection. Maybe it is ear mites or an intestinal virus. Or worse—maybe the animal passes away just after the child, who so desperately pleaded for her, has become attached.
I personally know someone who purchased just such an animal on a downtown Los Angeles street corner. My friend was there doing some shopping when she was approached. She bought a miniature rabbit, thinking she was so cute and that her daughter would love to have a rabbit for her first pet. The next day after bringing her home, the rabbit became violently ill. She developed severe diarrhea and couldn’t stand on her own. The vet recommended having her euthanized because she was so ill, telling my friend that unfortunately he has seen a lot of animals in the same condition after such purchases.
Thus, it was great news to hear that recently the Los Angeles City Council moved to make it illegal to buy animals from vendors on public streets or sidewalks. The LA Times reported that city officials have found that the sidewalk sale of animals is an underground economy that has “gotten out of hand” and can lead to mistreated animals. To curb the practice, the council has passed a law that makes buying animals on public streets or sidewalks illegal. The ordinance was approved preliminarily earlier this month and sets penalties of $250 for the first violation, $500 for the second and $1,000 for the third. The measure was set for a final vote on August 10th but no further information has yet been released. In addition, there is an existing city prohibition on the sale of live animals on public streets, as well as a recent California state law that prohibits such sales and calls for stiff penalties for those convicted of animal abuse or cruelty. Officials are hoping to dissuade shoppers from buying the animals, and they are planning to post signs in the Fashion District and other places where the practice is prevalent to warn that buying animals on the street is a crime.
Other cities, states and landowners are also taking similar steps to combat animal abuse and neglect, such as San Francisco, which began working on an ordinance that would allow pets of all species to only be acquired through pet store adoptions, direct sale by small breeders, or adoption from shelters. And West Monroe, Louisiana, moved to ban roadside animal sales this summer. A bill was also recently proposed in Ohio that would require pet stores to provide a 21-day money back guarantee for dog purchases. Ohio Senate Bill 130 also would establish licensing requirements and standards for high-volume dog breeding kennels, dog retailers, and animal rescues. Other cities like Lake Worth, Florida, and Rio Rancho, New Mexico have recently adopted ordinances that ban the retail sale of dogs and cats, and many more cities across the country are working on similar bills.
And in a helpful twist, the Irvine Company, one of the largest property owners in Orange County, California, just this July sent a letter to the mayor of Irvine letting it be known that the company will no longer lease new space to retailers selling dogs and cats at any of its retail centers. "As you know, there has been a great deal of discussion recently regarding an ordinance that would ban the sale of pets in Irvine," according to the letter from the Irvine Company. "... we want to be responsive to public input within the parameters of what the law allows. To that end, effective immediately, the Irvine Company will not lease any new space to tenants who intend to sell dogs or cats in any of our neighborhood, community or regional retail centers.” The company did state that it would honor its existing contractual commitments until the expiration of current lease terms.
These are all steps in the right direction to ensure that our pets stay safe, healthy and happy. Putting an end to unregulated sales helps ensure that future tragedies will be avoided.
As a prosecutor for the past 15 years specializing in animal cruelty cases, I've come to realize that education, i.e., raising sensitivity, is key to making progress in the fight for animal rights. I figure if I can dispel some of the rampant misconceptions about animals or help teach the six people on my jury and the audience in the courtroom to be a little more aware of the suffering of animals, proper animal care, and the atrocities that animals suffer, I can accomplish something whether I win the case or not. Lately, my experiences suggest that judges, in particular, could use some consciousness raising if for no other reason than they possess extraordinary power, not only over the results of cruelty prosecutions, but the education of everybody in the courtroom.
In the last few months, I've had judges in criminal cruelty and fighting cases refer to a case as "The Woof-Woof" case, ask at a restitution hearing, "Why should a defendant convicted of animal fighting be responsible for reimbursing rescuers the costs of rehabilitating rescued dogs?", strike a juror sua sponte on his own because she revealed she was a member of the ASPCA, and comment, "This is just a dog case - what's the big deal?"
Isn't something wrong here? Isn't the one characteristic essential to a fair trial a judge who at least keeps his or her personal prejudices to him or her self at a trial and more importantly makes every effort to not let those personal prejudices influence judge’s rulings?
Being mindful of rules governing ex parte contact, I now make it a point to chat informally with judges when they're off the bench about the legislative policy issues underlying the animal cruelty code. Invariably, these conversations include a discussion about the indisputable link between cruelty to animals, child and spousal abuse, and human violence in general. I gently remind them that even their most casual comment could sway a jury and undermine the chance of a fair trial. Maybe if more of us took the time to simply communicate one-on-one, we could accomplish that education which is so vital to progress in the animal rights arena.
Los Angeles County supervisors passed a first vote July 19th, to let animal control officers have the right during administrative hearings to decide when a dog should be labeled as dangerous or vicious. Current law allows only a judge to make such a declaration. The definition of a "vicious" dog is one who has been trained to fight or who severely injures or kills someone without provocation. According to the Los Angeles Times, the Department of Animal Care and Control claims that the changes to the county code will save money in legal expenses and make it easier to protect citizens from potential dog attacks.
When a dog is found to be "potentially dangerous" or "vicious," the animal may be confined, muzzled or dressed in a fluorescent yellow collar visible from 50 feet away. The owner can also be fined and/or ordered to attend obedience classes with their pet. In a rare case, the dog can be euthanized.
The Times did note that there are critics of the new policy, such as citizen Eric Preven, whose mother had her two chocolate Labrador retrievers impounded. Preven said that he felt an administrative hearing was unfair to pet owners, asserting that judges are "impartial and neutral," while a hearing officer may not be, because they could also be working at the same place holding the impounded pet. The appearance of neutrality appears compromised in this scenario.
The new ordinance, which requires a second vote in order to become law, allows the Department of Animal Care and Control "to consider prior attacks that happened outside the county’s jurisdiction when deciding whether to label a dog 'vicious.'" Hearing officers "will be able to consider not just bites, cuts and fractures caused by a dog, but serious illnesses, such as a heart attack, brought on by a dog attack." The law will allow dog owners to appeal an administrative finding to a Superior Court judge, but only if they do so within five days of the finding.
It is understandable that the county may want to save money and time during this economic downturn, but is it really a good idea to allow them to take such short cuts when it may come down to a animal's life? What if an owner is not notified in time of an administrative hearing? Will there be allowances for a continuance if need be? And the five day appeal window seems awfully short. Hopefully a great deal of thought, research and reflection will be undertaken before a final vote on this matter.
A new law was passed on July 5th in the Bahamas, banning commercial shark fishing. The ban grants sweeping protections to more than forty species living in the waters around the island chain that calls itself “the shark diving capital of the world.” According to msnbc.com, the Bahamas is home to one of the “most diverse and thriving shark populations in the world,” mostly due to a 20-year-old ban on longline fishing. Although somewhat protected before this new law, fisherman seemed to find ways around using longlines in order to catch sharks. But those loopholes have now been closed. This newly-passed ban applies to almost 243,000 square miles of water surrounding the archipelago, where blacktip, spinner and brown sharks are among the most common species. The new law bans the sale, export and import of shark meat and increases shark-fishing fines from $3,000 to $5,000.
Activists had fought arduously for the new law after a local seafood company announced that it planned to export shark meat and fins to Hong Kong, where shark fin soup is considered a delicacy. Due to shark over-fishing, shark meat has now become quite controversial, and there have been many calls to end shark fishing all over the world. The over-fishing has in fact led to an estimated killing of 73 million sharks worldwide each year, according to Pew Environment Group of Washington, D.C. But the good news here is that progress is being made to protect these animals. The Bahamas now joins Palau, the Maldives and Honduras in issuing such a ban, while a similar ban is also under consideration in California.
Peter Bower of Shelby, Ohio, was arrested on May 18th, 2011, and charged
with two counts of animal cruelty after allegations that he had sex with three companion dogs
and possibly a horse owned by a local equestrian center. KAIT 8 News
reported that during a police search of his home, photos of Bower having
sex with animals were discovered, as well as online postings of his
acts found on his computer. Authorities also found a book on bestiality
and a plastic, blowup sheep. Another scary detail is that Bower
advertised dog walking and sitting services in his neighborhood and at
his local animal shelter.
Despite the absolute heinousness of these alleged actions, Bower is only facing misdemeanor charges, as Ohio has no first-offense felony animal cruelty laws, nor any separate laws specifically prohibiting the sexual assault of animals. But this case has gained much attention and has led some to act. "If this had been a child, there would have been an uproar about it," concerned citizen Joyce Fields told the Mansfield News Journal. "There isn't much difference because this pet didn't accept or consent to what he was doing." Fields has started a petition, along with a local animal advocacy group, seeking to expressly outlaw the sexual assault of animals. Fields hopes that Ohio will pass a law to coincide with the 36 other states that already have laws prohibiting such acts, separate from other forms of animal cruelty. Response to the action has been swift, as State Rep. Jay Goyal has said recently that his office is already working on a draft of such legislation.
Fields also started an additional petition in which she seeks to bar Bower from owning or interacting with any animals, and she will present it to the prosecutors and judge at Bower’s pretrial hearing on July 18th. In addition, authorities are looking into whether charges can be brought against Bower for disseminating pornography.
We are all familiar with the concept of “double jeopardy.” It is in the Fifth Amendment, which states, in relevant part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]” As we all remember from our sixth grade civics class, this means that the State gets only one shot at convicting an animal abuser. What we typically never learn about (unless we attend law school) is how many shots an animal abuser gets at avoiding accountability. Ignoring all of the pre-trial gamesmanship (e.g., attempts to exclude relevant evidence of guilt or ignoring discovery deadlines) that is part of the “truth seeking process” for the time being, the goal here is to give our faithful readers an appreciation for just how many options an animal abuser has to beat the rap, even after a jury has found the animal abuser guilty.
Using Oregon as the example, prior to the direct appeal from the trial court after the jury’s “guilty” verdict, an animal abuser has two options: file a motion in arrest of judgment (ORS 136.500) or a motion for a new trial (ORS 136.535). The grounds for each motion vary, but include claims as basic as the assertion that it’s “just not fair” to convict me under the animal cruelty code (a/k/a an “unconstitutional ‘as applied’ claim”), or that the animal abuser’s rights were compromised by “accident or surprise which ordinary prudence could not have guarded against.” And those are just the post-verdict, pre-appeal options.
Next comes the direct appeal, where the animal abuser attempts to persuade a higher court that the trial court committed errors of law. Under this scenario, the case moves from a trial court to the appellate court where the appellate court examines the trial record for errors of law. However, here’s an interesting fact: if the original trial was held in an “inferior trial court” (e.g., a municipal or justice of the peace court), then the first appeal is to yet another trial court, or a trial court of record… And get this—appeals of this type are de novo, meaning that the animal abuser gets a complete new trial as a matter of right. The appeal is not limited by the record established in the first trial (often there is no record at all in these lesser courts where many misdemeanor animal cruelty cases are prosecuted) — the state has to re-subpoena all of the witnesses and put the case on again, in its entirety.
The next step is to appeal to the Court of Appeals (an intermediate appellate court). Once the direct appeal is completed in the Court of Appeals, the animal abuser can petition the State Supreme Court for review. If unsuccessful there, the animal abuser has the option of petitioning for cert in the U.S. Supreme Court (a long shot to be sure, but still an option).
Even after losing in the trial court(s) and at every phase of the direct appeals process, the animal abuser can still file an entirely new civil case collaterally attacking the animal abuse conviction. This is called a “post-conviction relief” (PCR) case (ORS 138.510, et seq.) and the grounds for filing such an action include claims that the animal abuser’s attorney was “ineffective,” or that the underlying statute upon which the conviction was based is unconstitutional. Of course, once the animal abuser loses in the trial court on the PRC case, the abuser can appeal that claim as well (appellate court, state supreme court and even the United States Supreme Court). In addition to, or in some states, in lieu of, some jurisdictions still entertain the host of common law post-conviction remedies, including the motion to correct the record, the motion for relief in the nature of coram nobis, and the motion to vacate the judgment.
If the animal abuser remains in custody, the abuser can also file a petition for a writ of habeas corpus challenging the reason for the abuser’s confinement on constitutional grounds (e.g., ineffective assistance of counsel to the extent that the constitutional right to counsel was compromised, or the improper admission of evidence on Fourth Amendment grounds).
Contrast these procedural realities with the fact that double jeopardy applies to the State (e.g., one shot and you’re done), and one can reasonably conclude that an animal abuser has more than a fair share of opportunities to beat the rap. In fact, one might even conclude that our justice system is so badly skewed in favor of protecting offenders that the basic integrity of the entire system is now open to debate, as more and more guilty people avoid accountability by exploiting any one of the many loopholes that offer them a path to reoffend.
Despite a huge effort to encourage Wisconsin Governor Scott Walker to use his line-item veto power to exclude an unnecessary animal cruelty loophole provision from the state budget, Walker signed the budget on June 26th, 2011, with the provision as written. The provision was supported by medical researchers in the state seeking protection from current animal cruelty laws, stating that the laws should not apply to them and that they should only be regulated by federal law. Medical College of Wisconsin Spokesman Dick Katschke said the measure was written as a result of researchers being sued in state court in 2010 by animal rights groups. But others argued that previously current law had already exempted bona fide scientific researchers from the statutes prohibiting animal mistreatment in Wis. Stat. § 951.02, and poisoning in Wis. Stat. § 951.06.
It is clear that this newly created provision was meant to provide more legal protection to researchers performing animal testing in Wisconsin and to undermine the protection animals in labs previously had. Researchers are now off the hook for what would ordinarily be considered animal cruelty crimes, while researchers contend that the provision was necessary to “ensure scientific studies continue.” As reported by the Milwaukee Journal Sentinel, the new law exempts “animal researchers in Wisconsin from any state criminal penalties for animal cruelty. Researchers [will] still be liable under federal law if they violate the protocol of their research institution.”
Section 951.015 (3) of the Wisconsin statutes has been created to read that Chapter 951, regarding Crimes against Animals, does not apply to:
“(a) Teaching, research, or experimentation conducted pursuant to a protocol or procedure approved by an educational or research institution, and related incidental animal care activities, at facilities that are regulated under 7 U.S.C. §2131 to §2159 or 42 U.S.C. §289d; (b) Bona fide scientific research involving species unregulated by federal law.”
Full text of budget can be found here.
Citing growing sentiment against puppy and kitten mills that has led a number of states and communities to adopt legislation regulating these mills, and the stores that provide an outlet for animals bred in substandard conditions, Los Angeles City Councilman Paul Koretz introduced a measure recently seeking to curb the market for such animals. With thousands of dogs, cats and rabbits euthanized in the City's animal shelters annually, Koretz argued that the best way for Los Angeles to protect such animals is to break the link between the mills and pet shops. On June 7th, 2011, the Council agreed, voting unanimously for a law to be drafted banning the commercial breeding of dogs, cats, rabbits and chickens in Los Angeles and the sale of mill animals in pet stores and other outlets.
Koretz’s motion requests that the Los Angeles Department of Animal Services (LAAS), with the assistance of the Chief Legislative Analyst, the City Attorney and the Los Angeles Police Department, study and make recommendations to the Board of Animal Services Commissioners and the City Council on the following proposals:
- The establishment of a ban on the sale of commercial animal mill-bred dogs, cats, chickens and rabbits within the city limits.
- The creation of a program whereby LAAS can work with licensed pet stores to make shelter animals available for adoption at those stores on a regular or periodic basis.
- The creation of a program whereby LAAS, as a part of its normal pet store licensing procedures, publicly and visibly identifies stores that excel in meeting rigorous humane requirements and conditions in the kenneling and sale of animals consistent with all City, state and federal laws, or which do not sell live animals.
- The prohibition of the establishment and/or operation of puppy, kitten, chicken and rabbit mills within the City of Los Angeles.
There are more and more cities ready to make the commitment to help our homeless and abandoned animals and to stop the perpetuation of mill pets. This solution tackles the problem head-on. Currently, there are only six cities in the United States that have banned the sale of puppies in pet stores. They are: West Hollywood, California; South Lake Tahoe, Nevada; Albuquerque, New Mexico; Austin, Texas; and Hermosa Beach, California; and, as of February 2011, Lake Worth, Florida. They are proof that it can be done! In addition to LA, other big jurisdictions are also considering similar bans, including Irvine, California; San Francisco, and Suffolk County, New York. And ALDF will be there to help.
Last November voters in Missouri passed a measure known as Prop. B, approving valuable and much-needed protections for animals throughout the state, which is known as the “Puppy Mill Capital of the United States.” It has been estimated that roughly 30 percent of all dogs sold in pet stores across the nation are bred in Missouri. According to KansasCity.com, the new law, set to take effect in November 2011, “would have limited the number of dogs allowed in a breeding operation, elevated violations to criminal offenses, increased space requirements for animal enclosures, and expanded requirements for veterinary care.” Supporters pointed out that these new requirements would have given breeders “clearer standards” and “increased opportunities for enforcement of anti-cruelty laws.” The new regulations were to apply to pet operations with more than 10 female breeding dogs and would have capped the number of dogs allowed to breed in an operation, limiting the number to 50 dogs. The new law also would have limited an individual dog’s breeding cycle, allowing females to have no more than two litters within 18 months.
As stated on the Missouri Secretary of State's website, the purpose of Prop B was to "prohibit the cruel and inhumane treatment of dogs in puppy mills by requiring large-scale dog breeding operations to provide each dog under their care with basic food and water, adequate shelter from the elements, necessary veterinary care, adequate space to turn around and stretch his or her limbs, and regular exercise." The ballot measure set out the existing requirements that dogs have adequate food, water, and housing, as well as ample space. But violations of those requirements would have become misdemeanors — meaning that law enforcement would have had jurisdiction over breeding operations along with state and federal agriculture investigators. Offenders were to face criminal charges, fines, and/or jail time under the new protections.
But fast-forward a few months. The fight to repeal the newly passed law was on from almost the moment the voters made their voices heard. There were critics on both sides, with some saying the law went too far and others claiming that it didn’t go far enough. As reported by the L.A. Times, “supporters of the voter-approved law said Missouri's previous regulations for breeders were too weak, allowing operators to keep dogs in wire cages and exposed to excess heat and cold, while critics of the voter-backed law have said it would wipe out the dog-breeding industry by forcing costly renovations to facilities and effectively limiting how many dogs the businesses can sell.”
So enter a new bill, signed in April by Governor Jay Nixon. Hailed as a “compromise,” the newest law actually shows that lawmakers caved in to the criticism by breeders and others in agriculture, softening the protections that the animals so desperately need.
As summarized by the Times, these are the changes made to the law:
Nixon and lawmakers eliminated the part of Act imposing a limit of 50 breeding dogs per business. Other portions were changed. The new law seeks potential middle ground on the specifics of the living-space requirements, and it gives breeders more time to comply with the new rules.
The voter-backed law required an indoor floor space of at least 25 square feet for small dogs, 30 square feet for medium-size dogs and 35 square feet for large dogs. The new law approved by Nixon doubles the state's previous minimum space requirements by January 2012 and triples them by January 2016 for existing breeders when wire flooring also would be prohibited. Any dog-housing facilities constructed after April 15 will have to comply with the tripled space requirements immediately.
It also attempts to compromise on veterinary visits. The voter-approved law requires at least one yearly exam with prompt treatment for any illness or injury. Lawmakers changed that to two annual visual inspections that did not need to be a hands-on exam in the first bill Nixon signed. Ultimately, there must be one yearly exam and prompt treatment of a "serious illness or injury."
The new law also requires dogs to have continuous access to water, access to food at least twice daily -- an increase from the ballot measure's once daily mandate -- but looser than the voter-approved law because "generally" is inserted in front of a requirement that water be free of debris, feces, algae and other contaminants.
Plus for state licenses, dog breeders could pay up to $2,500, instead of the current $500 maximum, and will pay an extra $25 annual fee to finance state efforts to crack down on unlicensed dog breeders.
Several supporters of the original bill have already spoken out against the “compromise,” possibly even attempting to put the issue back on the ballot, through it was unclear if one option -- a referendum of the new law -- was still available. One bright spot is the fact that the law was not repealed in its entirety and that it is set to take effect immediately. After all, as Sen. Jolie Justus (D-Kansas City) said, "[The newly signed law] is going to go a long way to curb our reputation as a puppy mill capital.” At least some steps in the right direction are better than no steps at all.
Since 2003, the Animal Legal Defense Fund has been working on various proposals to ensure that animals may be fully protected within Oregon’s domestic violence protective orders (or “restraining orders”).
Previously under Oregon law, courts had the authority to include animals in these orders upon a finding that their inclusion was necessary for the “safety and welfare” of the person requesting the order. While some courts utilized this provision, others unfortunately balked.
Due to this inconsistent treatment, ALDF joined with other animal protection, domestic violence and law enforcement organizations last year, helping to draft and advocate for a new legislative proposal, SB 616. The goal is to remove any ambiguity in the law by specifically authorizing courts to include companion animals in these protective orders.
On June 7, Oregon Governor Kitzhaber signed SB 616 into law. This has been an ongoing effort for many years. We are thrilled that we finally have resolution on this issue in Oregon – that the law can now better protect animals in harm’s way. This is a vital component to the goal of reducing community violence for all residents, both those with two legs and those with four.
Oregon joins nineteen other states and D.C. by enacting a law which expressly provides for animals in protective orders. The new law takes effect immediately.
A post on kcrg.com reports that “Opponents of a measure aimed at helping agricultural operations guard against ‘gotcha’ videos secretly filmed inside livestock operations are raising food safety and other concerns in an attempt to keep House File 589 from reaching Gov. Terry Branstad’s desk this legislative session.” Sen. Matt McCoy, D-Des Moines, said last month that the bill, which is backed by agricultural interests, not only raises concerns about constitutional rights, animal welfare, and employee rights, but carries food-safety implications in the wake of last summer’s salmonella outbreak that forced millions of eggs to be recalled. And how about the great beef recall in California in 2008?
The post states that the legislation, which has already passed the House on a 66-27 vote and is on its way to the Senate, seeks to create new criminal and civil penalties for anyone convicted of tampering or interfering with property associated with a livestock or crop operation or secretly recording on farms. It could carry a penalty of up to five years in jail, as the proposed penalties range from misdemeanors to felonies. Backers say the legislation is needed to stop animal-rights activists from disrupting farm operations and using selectively edited video or photographs to put the agriculture industry in a bad light. Critics counter that the measure puts a chill on whistleblowers who would otherwise report the inhumane and illegal treatment of animals at some operations. Animal law experts also say there are serious constitutional questions with Iowa's bill.
McCoy also said, “This could impact other industries who will also ask for this protection – it could be nursing homes, child-care centers, hospitals, medical clinics or Planned Parenthood clinics that don’t want undercover video of their care and practices of people being shared as well…It’s a first amendment issue but it’s also a consumer protection issue.” To make his point clear, McCoy has drafted amendments to the bill seeking to expand the prohibition on secretly videotaping at livestock facilities to include other facilities, such as nursing homes and abortion clinics.
In an editorial that appeared in the Des Moines Register, Drake University law professors Jerry L. Anderson and Jonathan Rosenbloom tried to answer the following questions: what does the animal agriculture industry have to hide and how did it convince key state officials to campaign for a law which would violate a citizen’s first amendment rights? They argued that one reasonable response to these videos would be to adopt humane treatment standards for agricultural animals. And some states have responded in just this way, banning confinement crates for veal calves and pregnant sows. Other states have acted to regulate restrictive poultry cages. In Iowa, however, the Legislature proposes instead to ban the videos. The professors believe that the bill is clearly intended to completely chill depictions of livestock abuse.
Their conclusion on the Iowa bill seems right on... “rather than address the issue of humane treatment of animals, the Iowa Legislature wants to kill the messenger.” Is this really the answer? If the truth cannot come out, then how can the animals be adequately and properly protected? Shouldn’t the legislators be debating how to ensure animal safety rather than how to protect some farmers from continuing possibly inhumane and illegal practices? The fact that this bill is even coming close to being a reality is very disconcerting. Similar bills have been introduced this year in Florida, Minnesota and New York. How unfortunate. If it could be proven that a video or photo was falsified, improperly edited or misrepresented true conditions, then that would be one thing -- and could already be properly remedied through existing fraud and libel laws. But to penalize just the action of taking a photo or film is unreasonable, and would unduly harm the animals that so need our protection.
This week, two Animal Legal Defense Fund attorneys published a first-of-its-kind book, A Worldview of Animal Law, which analyzes legal protections for animals from a global perspective. Bruce Wagman, ALDF’s chief outside litigation counsel, and Matthew Liebman, ALDF staff attorney, spent hundreds of hours reviewing and analyzing laws from around the world on a variety of animal issues, including factory farming, wildlife protection, animal research, and international whaling. A Worldview of Animal Law explores how different countries approach animal law and how cultural attitudes influence the legal protections afforded to animals. Targeted to both the lay reader and the specialist in animal law, the book uses specific statutes and cases to show what assumptions and philosophies animate domestic, international, and transnational legal systems in their interactions with animals.
From the publisher’s description:
This is the first book of its kind — an exciting and illustrative survey of the way different countries and cultures treat animals under the law. Given the breadth and scope of the legal treatment of animals around the world, the book presents selected issues and laws in a text that is readable and helpful to a wide range of readers, including undergraduate and post-graduate courses in sociology, cultural anthropology, international law, animal law, and animals in society. The book is also accessible to readers not matriculating through formal coursework, and provides any reader with a solid understanding of the varied treatment and approaches taken by countries around the world in connection with animals used in every area.
A Worldview of Animal Law is split into subject areas tied to the different ways we interact with animals in society, with a focus on comparing the laws in different countries in the current era. Its format and wide coverage make it interesting for readers in any country who want to know about this area of the law, whether for personal, educational or professional reasons. Unlike many casebooks on the market, this is not a law school text, and not a comprehensive survey of one specific country’s laws; rather, it provides a more readable and wider view of the compelling issues that arise regarding the integration of animals into society.
Now more than 4,000 pages in length, ALDF's Animal Protection Laws of the United States of America and Canada (sixth edition) is the most comprehensive animal protection laws collection of its kind available. The compendium contains a detailed survey of the general animal protection and related statutes for all of the states, principal districts and territories of the United States of America, and for all of Canada; up-to-date versions of each jurisdiction’s laws; easy, clickable navigation; and fully searchable content. This is a must-have resource for lawyers, law professors, law students, legislators, other legal professionals, and anyone who wants a comprehensive collection of animal protection laws.
The Los Angeles Times recently reported that the alleged “sport” of greyhound dog racing is in steep decline in America. Animal activists have long fought for the end of such racing, citing the horrendous conditions in which most of the dogs are kept. The article discusses how “the dogs are kept muzzled in small cages, fed inferior food, injected with steroids and frequently injured at the track.” It is well-known that greyhounds love to run and exercise, and breeding and keeping the dogs for racing does not usually allow them to do what they love most.
There have also been numerous instances of blatant animal cruelty and unnecessary killing of these majestic animals. One such case in point is one from last fall in which dozens of dead dogs were found at an Ebro Greyhound Park kennel in Florida. Waltonsun.com reported that the Washington County Sheriff’s Office initially charged greyhound race trainer Ronnie Williams with 37 felony counts of cruelty to animals (the count was later raised to 42) following state investigators’ discovery of at least 30 dead greyhounds in his kennel in October 2010. He later pled not guilty to the charges. Five suffering and emaciated dogs were also taken from the kennel alive, and they survived and recovered after receiving proper nutrition and care. Unfortunately, this is but one of the many examples of the horrendous treatment that these dogs face because of racing.
Positive signs of the decline:
- In 2001, there were 50 greyhound tracks in 15 states, and now there are only 25 tracks in seven states, with 13 of them in Florida. That state was “once considered the hub of dog racing.”
- Throughout the country the amount gambled on greyhound races dropped from $3.5 billion to $1.1 billion between 1991 and 2007.
- There are probably fewer than 300 greyhound farms today, down from as many as 750 in the 1980s, at the peak of greyhound racing.
- One greyhound track in Arizona once drew 3,000 bettors a day, but now maybe 50 or 60 people per day visit the park.
Some have attributed the decline in racing popularity to the rise in the variety of betting and gambling options now available, ranging from lotteries to casinos to slot machines. Maybe that’s true, but maybe there has also been a collective epiphany by the people, who, after seeing the effects of racing, are now collectively saying, “This is bad. I am going to stop patronizing these tracks, and give these dogs their lives back.” Wouldn’t that be something? Getting the word out seems to have indeed made a dent in this situation.
However, unbelievably, some track owners have faced resistance while trying to close their operations. “Iowa's two track owners want to call it quits, but can't because they were allowed to build casinos or gambling halls on track grounds on the condition they keep the races running,” according to the posting. “The track owners have offered Iowa $10 million a year for seven years for permission to end the races, but the Iowa legislature would have to change the law that made casino operations contingent on the tracks' existence. ... And measures introduced in the Florida state legislature would allow some tracks to close there as well, but the Florida Greyhound Association opposes the proposal,” arguing that it could lead to the loss of jobs or small businesses.
There may still be obstacles, but we have come a long way since the days when greyhounds were being trained to race using small live animals (1970s). This is an urgent battle we need to continuing fighting, as there is always the possibility that as the money continues to dwindle so will the dogs’ living and breeding conditions. Only when racing is outlawed in all 50 states will the greyhounds truly be safe. Alabama, Arkansas, Arizona, Florida, Iowa, Texas and West Virginia residents can take action by contacting your lawmakers. Everyone can sign this petition and this petition to help put an end to dog racing.
Unbelievably, the lead story on my late local news (Fox 11, Los Angeles) recently was about a new app for mobile phones called “Dog Wars.” In it, people could train dogs to fight other dogs to the death to “earn street cred,” and virtual money. The opening page for the app showed a pit bull covered in blood around his mouth, touting players to, “Raise your dog to beat the best.” At its virtual store players could purchase shock collars and steroids for their dogs, and could even buy guns to “beat back the cops.” The app had been on sale for about a month on the Android/Google system and about 50,000 people had purchased it. The newscast also noted that, thankfully, Apple’s iPod and iPad wanted nothing to do with it. So after a huge public outcry, the app was pulled from the Android market. End of story, right? Wrong.
A few days later latimesblogs.latimes.com reported that the app has been renamed “KG Dogfighting” and is back up on the Android Marketplace. The account detailed a letter sent to Google Chief Executive Officer Larry Page by Los Angeles Police Protective League President Paul M. Weber urging Google "to do the right thing and ban this game permanently."
The reports that I have read and seen mention how outraged and sickened animal lovers are over the app. But I don’t think animal lovers are alone in their thinking. Anyone with a modicum of self-respect and common sense can see that this is so inappropriate that mere words don’t truly describe the horror here. Don’t we see enough needless animal suffering and abuse in real life that video games should not even be a part of the equation? What kind of person would find this entertaining? How can we possibly allow young people to think that this sort of behavior is acceptable? Unlike shooting someone in the face, some people don’t necessarily know that dogfighting is a serious crime, with major consequences for all involved.
The Los Angeles Police Department Protective League has decried the app, noting the horrendous results of actual dogfights: the suffering, the inhumanity, the prolonged and painful deaths, and the propensity to carry on the abuse to other living creatures. Even Michael Vick, the convicted dogfighting felon, has spoken out against the app, stating his disapproval.
Orange County, Florida, has complied the statistics showing the connection between animal abuse and domestic abuse. It notes that the FBI has recognized the connection since the 1970s, when its analysis of the lives of serial killers suggested that most had killed or tortured animals as children. In addition, “other research has shown consistent patterns of animal cruelty among perpetrators of other forms of violence, including child abuse, spousal abuse and elder abuse. An examination of government data measuring intimate partner violence and studies of the prevalence of animal cruelty in such cases reveal staggering numbers of animals victimized by abusive partners each year.”
The report lists that:
- Animal abusers are five times more likely to commit violent crimes against people and four times more likely to commit property crimes than individuals without a history of animal abuse
- Up to 75 percent of domestic violence victims report that their partners threatened or killed family pets
- A survey of the 50 largest U.S. shelters for battered women found that 85 percent of women and 63 percent of children entering shelters discussed incidents of pet abuse in the family
- Children living in an abusive home regularly turn to animal abuse and later in life, human abuse. In fact, 32 percent of pet-owning victims of domestic abuse reported that their child had hurt or killed a pet.
A fantasy role play game? Some twisted, reprehensible fantasy. Animal education? I am not buying it, and I hope people will see through this marketing ploy and boycott this “game.” This app glorifies illegal crimes on so many levels there is absolutely no justification here. Dogfighting. Illegal drugs. Guns. Shooting at police officers. There is no way that these depictions of animal anguish should be a part of anyone’s fantasy or education, and certainly no one should be making any money off such despicable content. No one’s fantasy should include the agony, misery or distress of helpless animals. Ever. Dogfighting is not a game, and it should not be trivialized as one. Please spread the word that dogfighting in any form—real or virtual—is not acceptable.
In Hawaii, Peacock “Pests” May Still be Killed, Just Not with Baseball Bats, and Attending a Dogfight Becomes a Felony; Florida Slated to Finally Criminalize the Sexual Assault of Animals
Last week, the Hawaii Legislature passed SB 1533, a bill inspired by the vicious killing of a peacock. In 2009, a Hawaii resident killed an area peacock with a baseball bat because she claimed annoyance by the peacock’s cries. [See our earlier post “Can You Kill a Peacock if He is an Annoying Pest?”]. A jury acquitted the peacock killer after her attorney successfully argued that the peacock was a "pest." Under the then current law, “pests” were specifically excluded from protection by the state anti-cruelty statute. SB 1533 – the so-called "peacock bill" – amends the law to specify that the killing of insects, vermin, and pests must be done "in accordance with standard and acceptable pest control practices and all applicable laws and regulations." This was a dial-back from an earlier version of the bill which had expressly clarified that peacocks were not pests. Under the new law, an annoying peacock could still arguably be considered a “pest,” however anyone considering killing this “pest” would not be able to use a baseball bat in doing so, as such an act would likely fall outside the parameters of standard and acceptable practices. ALDF will continue to monitor the situation as this law goes into effect and push for stronger changes should future events support them.
Also last week, the Hawaii Legislature passed SB 1069, which makes it a felony to attend or wager on a dogfight. Additionally, the bill makes it a felony to possess a device intended to enhance a dog's fighting ability with the intent that the device be used to train a dog for a dogfight. Prior to the bill's passage, Hawaii had felony penalties only for those who actually staged dogfights, trained or owned dogs for fighting, or allowed a fight on their premises. Cockfighting remains a misdemeanor violation in Hawaii.
Both bills are now waiting to be signed into law by Governor Abercrombie. Hawaii ranked 43rd overall in ALDF’s last state rankings report – our annual report which compares the strength and comprehensiveness of each state’s animal protection laws.
On the other side of the country, the Florida Legislature has finally given its blessing to a bill that would expressly criminalize the sexual assault of animals. In a unanimous vote, the Florida House of Representatives passed SB 344 which now makes its way to Governor Rick Scott for his signature. Similar bills had been attempted over the past four years, but had not been successful in clearing the House until now.
In January of this year, the USDA proposed modifications to the National School Lunch Program and School Breakfast Program intended to offer healthier food choices to our nation’s children in the hope of staving off the obesity epidemic plaguing this country. The regulations as proposed would require school meals to feature more fruits and vegetables, less saturated and trans fats, less sodium, and less calories. Inexplicably, however, the USDA did not recommend decreasing the volume of animal products offered to school children as an obvious and cost-effective means of achieving those goals.
Concerned with the USDA’s lapse in this regard, ALDF reached out to the law firm of Proskauer Rose for volunteer legal assistance aimed at recommending modifications to the USDA’s proposal that would create more animal-free options in school meals. We immediately undertook extensive research on the topic of childhood nutrition, and discovered abundant support for the proposition that veganism and vegetarianism are not only nutritionally adequate for growth and development in children, but also contribute to healthier lifestyles into adulthood with significantly reduced risks for obesity and chronic disease.
Armed with a plethora of research from sources as diverse as Dr. Spock, the American Dietetic Association, and the USDA’s own publication, “Dietary Guidelines for Healthy Americans,” we prepared and filed comments that focused on two primary shortcomings in the proposed amendments to the school meal programs. First, we took issue with the USDA’s ongoing prohibition against tofu as a “meat alternate.” Although soy proteins are acceptable, the breakfast and lunch meal programs continue to reject the use of tofu as a protein. Second, we objected to the existing requirement that students who do not wish to drink cow’s milk must provide a letter from a parent or guardian in order to obtain “permission” to consume non-dairy milk through the school meal programs.
Pointing to data on the significant number of children consuming plant-based diets in the United States, we argued that the tofu and non-dairy milk limitations have an unfair impact on the millions of vegan and vegetarian children who effectively are prohibited from participating in the school meal programs. We also emphasized the missed opportunity to expose children who regularly consume animal products to healthier plant-based food choices and alternatives to meat. Finally, we highlighted the inconsistency between the school meal programs and the current statements of federal nutrition policy—including statements from the USDA itself—which promote consumption of tofu as a protein and an alternative to meat. We argued that those inconsistencies confuse children, who are encouraged to eat tofu at home but will never see it as a component in an animal-free school meal.
After stressing the flaws in the proposed amendments, we encouraged the USDA to revise the rule to permit tofu as an alternative to meat and to allow children to freely choose non-dairy milk in school meal programs. Our comments were filed on April 13, 2011, and will be considered by the USDA, together with the other public comments it received, before it finalizes the regulations that will govern school meal programs in the coming years.
Proskauer was proud to represent ALDF and children and animals across the country in addressing this important issue, and we thank those of you who joined ALDF and took a stand by submitting your own comments!
For those who practice animal law, a persistent debate rages on: of the many options available, which legal path is the best course to take to improve the plight of animals in the United States? A host of thorny issues permeate this debate, from questions derivative of the notion that animals are “mere property in the eyes of the law,” to arguments on the viability of various theories one might use to secure the legal standing necessary to force a hearing on how we treat animals used to meet consumer demands.
Some advocate for litigating that elusive “silver bullet” civil case wherein a state supreme court would ultimately recognize the legal “personhood” of an animal and thus resolve a host of issues, the least of which being the question of who has standing to sue. Others, perhaps cognizant of the general shift away from the common law to a more statutory and regulatory legal environment, favor a purely legislative approach, be it at the state house or via the initiative process. Having spent more than 20 years practicing criminal law (a fact that I readily admit influences my thinking here) where crimes are statutorily defined, but the overriding rules of engagement (e.g., the Fourth, Fifth, Sixth and Eighth Amendments) are decidedly the product of judicial edict, I see utility in the arguments advanced by both camps. Regardless of where you might fall in this spectrum, I respectfully submit that there is currently an enormous opportunity to advance the cause (and improve the lives of animals) via the aggressive application of procedural tools and remedies commonly found in the criminal justice system—namely your state’s crime victim bill of rights.
An example of such an application is found in a recent neglect case prosecuted in San Bernardino County, CA. In that case, the defendant was convicted of felony animal cruelty because she failed, inter alia, to secure veterinary treatment for an injured dog under her care. Once taken to the vet, what remained of the victim-dog’s leg had to be amputated. While tragic, these types of cases are routine in many states (though the fact that this case was treated as a felony is still relatively rare). What distinguishes this case from the fray is the fact that the trial judge allowed the investigating officer to appear at sentencing and tender a victim impact statement on behalf of the now three-legged dog. That seemingly innocuous event (i.e., the court’s acceptance of a crime victim’s impact information from the victim’s agent), while common in child and elder abuse cases, is a significant event in an animal cruelty prosecution. The reason: because most states narrowly define a “crime victim” to include human beings, family members of deceased humans, corporate entities and/or governmental bodies. However, we see more and more judges willing to recognize animals as victims in cruelty cases—a very positive trend.
Mindful that any judicial recognition of a victim’s plight creates a significantly steeper downside for a defendant, defense attorneys commonly use the “animals are mere property” argument to assert that, at least in cases where the offender owned the victim animal, the only legal victim is the state, not the victim animal. If successful, this move can secure the defendant a host of tactical and procedural advantages including: a better felony sentencing guidelines score; the merger of multiple convictions into one charge; the removal of any risk of consecutive sentences; a potential for expungement of the conviction; and less exposure in any subsequent crime charges in years to come. Prosecutors are, however, becoming much more adept at rebutting these arguments, feeding an inevitable growth in the judicial recognition of the obvious: that the true victims of abuse and neglect are those beings who have suffered the harm that is the essence of the substantive crime. By thus recognizing animals as victims, the justice system does more than give the prosecution the upper hand at sentencing. Rather, we institutionalize the fundamental concept that animals have rights as victims. In so doing, we do much more than establish a tenuous “toe hold” legal notion. Rather, we create a significant legal advance that will aid civil litigators in their quest to secure standing, add to the continued and accelerating erosion of the notion that animals should be treated the same as a sofa, and (perhaps most significantly) drive legislative policy via systemic judicial recognition that all crime victims enjoy a set of fundamental and inalienable rights.
In Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., 2011 U.S. Dist. LEXIS 2349 (C.D. Cal. Jan. 8, 2011), a challenge was brought to a decision of the U.S. Fish & Wildlife Service, which was made under the authority of the Endangered Species Act, 16 U.S.C. § 1531 et seq., regarding the “kangaroo rat” and his “critical habitat.” A kangaroo rat is actually not a rat but resembles one and hops on its large hind legs, and in 1998, the Service designated the San Bernardino kangaroo rat (SBKR) as an endangered species. In 2000, the Service proposed designating 55,408 acres as critical habitat for the SBKR, and on April 23, 2002, the Service made a final designation of 33,295 acres. In 2005, building industry and agricultural organizations challenged the final designation in court, contending that it was overbroad. The Service settled that case by agreeing to issue a revised critical habitat designation. On October 17, 2008, after a period of public comment on the proposed revised habitat designation, the Service published the final revised critical habitat designation, which covered 7,779 acres. This was a substantial change in the number of acres for this endangered animal.
In their suit, Plaintiffs challenged the Service’s revised final critical habitat designation for the SBKR on three grounds. First, they contended that the Service’s use of the "core population" methodology contravened the first prong of the Endangered Species Act's definition of critical habitat—i.e., the "occupied habitat" portion (16 U.S.C. § 1532(5)(A)(i))—as well as 50 C.F.R. § 424.12. Second, Plaintiffs argued that the Service improperly failed to include areas unoccupied by the SBKR in the critical habitat designation. Finally, they also argued that the Service’s decisions to exclude certain portions of the species' critical habitat under the authority of § 4(b) of the Endangered Species Act were improperly made.
The court agreed with Plaintiffs, holding that, “While this Court owes substantial deference to the Service's use of technical analysis in its decision-making, the Service must be able to demonstrate that such analysis actually took place and that the decision-making process may be fairly described as rational… and it appeared that the Service failed to follow the Endangered Species Act's statutory directives in designating the SBKR's critical habitat.” Further, the court wrote, since the Service did not supply an explanation for its reliance on the existence of a core population as an indicator of the “physical or biological features essential to the conservation of the species,” its 2008 designation of the SBKR's critical habitat may be viewed as arbitrary and capricious, in violation of the Administrative Procedure Act. Alternatively, the court ruled, the 2008 critical habitat designation could be set aside because the core population methodology also contravened the regulatory framework that governed the Service’s designation of critical habitat. As such, the 2008 revised final critical habitat designation for the SBKR was vacated by Judge Anne E. Thompson, the 2002 final critical habitat designation was reinstated, and the case was remanded to the Service to consider a second revised final critical habitat designation.
A first-offense felony provision didn't survive amendments, nonetheless, newly passed SB 2821 is a definite step forward for Mississippi.
Among other things -- and while its main improvements are limited to dogs and cats -- the bill, once signed into law:
- Gets Mississippi off the no-felony-animal-cruelty list by making it a felony (punishable by a fine of up to $5,000 and imprisonment between 1-5 years) for a second or subsequent aggravated cruelty to dog or cat offense within five years of a first offense. This leaves just Idaho, North Dakota and South Dakota without any felony animal cruelty provisions.
- Provides for reimbursement of costs of care for impounded dogs and cats
- Provides for psychiatric evaluations and/or treatment for offenders.
- Allows courts to prohibit offenders from employment involving the care of dogs or cats, or employment at a location where dogs and cats are kept.
- Provides civil and criminal immunity for good-faith reporting of suspected cruelty to a dog or cat.
- Expressly allows local laws that are more restrictive.
A Wisconsin court did not buy the recent argument of two brothers that the Wisconsin animal cruelty statute did not apply to their actions in killing several deer, no matter how cruel or senseless, because they were engaged in taking "wild animals." The Circuit Court for Waupaca County had originally dismissed the animal cruelty charges brought under Wis. Stat. § 951.02 (2007-08) against defendants, Rory and Robby Kuenzi. But the State appealed, and the Court of Appeals of Wisconsin in State v. Kuenzi, 2011 Wisc. App. LEXIS 150 (Wis. Ct. App. Feb. 24, 2011), reinstated the charges.
It was alleged that defendants were operating their snowmobiles on a trail in Waupaca County when they came across a large number of deer in a field. They charged the deer with their snowmobiles, ramming and running over at least five. At one point, one defendant rode on top of a downed deer and did a "burn out," causing the deer's abdomen to rip open. Defendants also tied a strap around the neck of another downed live deer, dragged it to a tree, and secured it there. They apparently planned to retrieve that deer later, but never returned.
Defendants were criminally charged under the animal cruelty statute, Wis. Stat. § 951.02. Both men moved to dismiss the charges, and the circuit court granted the motions. Defendants’ primary argument was that the animal cruelty statute could not be applied to their actions because they were engaged in taking "wild animals," and the taking of non-captive wild animals was a hunting activity regulated by WIS. STAT. ch. 29. Defendants claimed that chapter 29, and only that chapter, regulated hunting and, therefore, they could take a wild animal by any means without fear of prosecution so long as their means were not specifically prohibited by chapter 29. The Court of Appeals disagreed and, accordingly, reversed and directed the circuit court to reinstate the charges.
The court found that § 951.02 prohibited "cruel" treatment of "any animal." The term "any animal" was broadly defined so that, on its face, the term encompassed the wild deer at issue in this case. Defendants did not argue that their alleged behavior was not "cruel" within the meaning of chapter 951. And, a prosecution under § 951.02 could not "controvert" laws regulating the taking of non-captive wild animals under chapter 29. With that overview in mind, the court addressed each defendant’s specific arguments.
Defendants argued that the term "animal" in § 951.02 should not be read as including non-captive wild animals, such as the deer in this case. They asserted that, except for the cruel mistreatment prohibition, all of the prohibitions in chapter 951, by their terms, did not apply to non-captive wild animals. They reasoned that, because the other prohibitions were directed at non-captive wild animals, it followed that the cruel mistreatment provision shared this limitation. The court disagreed, finding that the legislature defined "animal" in chapter 951—and, thus, in § 951.02—in a way that unambiguously included non-captive wild animals. The court ruled that the legislature had provided a clear definition that included all warm-blooded animals. Further, the limited reading advocated by defendants was inconsistent with the wording the legislature chose to use to avoid conflicts with chapter 29.
The court also held that the cruel mistreatment of wild animals had to be assessed based on the backdrop of common hunting practices and, in that context, the question was whether the alleged acts caused "unnecessary and excessive pain or suffering or unjustifiable injury or death." Wis. Stat. § 951.01(2). “Quite obviously, the normal course of hunting frequently involves the infliction of pain and suffering and, just as obviously, the infliction of such pain and suffering does not subject hunters to prosecution under the cruel mistreatment statute. What is absurd is [defendants'] assertion that it is the State's view that ‘all hunting intentionally causes unnecessary pain or suffering or unjustifiable injury or death’ and, therefore, that all hunting violates the cruel mistreatment statute.” The court reasoned that because their premise was wrong, so too was defendants' solution, namely, an interpretation of the "controverting" limitation in § 951.015(1) as forbidding application of the cruel mistreatment statute to any taking of a wild animal, no matter how cruel and senseless.
It is always good to hear when people are working on behalf of the animals, giving a voice to the voiceless. Here is a recent smattering of updates.
Fur-Free West Hollywood? It just might become a reality.
In January 2011, nearly 200 people gathered to demand that the West Hollywood City Council (California) introduce and pass a law banning the sale of fur in the city. Some claimed that the sale of fur clothing goes against the progressive nature of the city and that the animal-free fashion industry could flourish in the city if the ban took effect. Other residents voiced their concerns about how the animals are treated at fur farms.
Possible ban on blood sports in Ecuador an end to bullfighting?
President Rafael Correa called a referendum in February 2011 asking Ecuadoreans to ban bullfighting, cockfighting and other pursuits where animals are killed for human entertainment. The referendum could come as early as May. It appears that Ecuador may be following the lead of the Spanish province of Catalonia, which banned bullfights in July 2010, with great support. However, a legal challenge to bullfights in neighboring Colombia was rejected last year by its constitutional court. Hopefully, the Ecuadorean people can overcome what some have argued are “rites of passage” and society fixtures, to protect these innocent animals.
Proposed bill on vaccines to provide exemptions for certain health-impaired dogs in California.
Assemblyman Curt Hagman (R) of Chino Hills has introduced AB 258, which would allow an exemption to the state-mandated rabies vaccination for dogs whose life would be endangered if the vaccine is administered. Right now there is no such exemption—all dogs are required to receive the vaccination regardless of their health situation. Proof of the vaccination is also needed to register a dog for a dog license. This “no exceptions allowed” policy endangers the lives of several dogs every year, and may even be responsible for some deaths. And anyone that does not comply with the mandate is breaking the law, even if they believe they are protecting their dog’s health. The proposed law would require veterinary approval and monitoring of the dog by the veterinarian. The bill was previously introduced in 2010, but it is believed to have much stronger grassroots support this time around.
Introduced by California Assembly members, Paul Fong (D-Cupertino) and Jared Huffman (D-San Rafael), on February 14, 2011, AB 376 seeks to outlaw the practice of using shark fins to make the Chinese delicacy, shark fin soup. The bill has the support of conservationists, scientists and environmental groups, as well as sport and commercial fishermen. The draft states:
“The practice of shark finning, where a shark is caught, its fins cut off, and the carcass dumped back into the water, causes tens of millions of sharks to die each year. Sharks starve to death, may be slowly eaten by other fish, or drown because most sharks need to keep moving to force water through their gills for oxygen… Data from federal and international agencies show a decline in shark populations worldwide… California is a market for shark fin and this demand helps drive the practice of shark finning. The market also drives shark declines. By impacting the demand for shark fins, California can help ensure that sharks do not become extinct as a result of shark finning.”
It appears that the law has the best interests of sharks at heart, seeking to protect them from this horrible fate. The federal Shark Conservation Act, signed into law earlier this year by President Obama, sought to end the practice of shark finning, and ouramazingplanet.com reports that the practice is banned in U.S. waters, with the exception of a fishery in North Carolina. It is most certainly clear that the need for legislation to protect these vital creatures is urgent, as some estimates show that as much as 90 percent of the world's shark population has disappeared due to overfishing. Hawaii recently passed a similar bill that will impose fines of $5,000 to $15,000 for first-time offenders, and Oregon and Washington are also considering bans.
While this may seem like a humane and reasonable law to most, there has been some backlash in California’s Chinese community, who feel the ban is unfair to Asian Americans. The soup, considered a delicacy, is often served at Chinese restaurants and is quite popular at banquets and celebrations. But tradition aside, it is time to consider what the overfishing and needless suffering have caused. It will be too late to protect these animals after they are gone. There may only be 10 percent left. Do we really want to conceive of an ocean without sharks to fuel an insatiable appetite for fins? I think not. It is time for a new tradition.
California residents: contact your state assemblyperson and ask them to support AB 376!
Last month in Honolulu, Hawaii, Sandra Maloney (age 70) was acquitted by a jury at the end of her trial for second degree animal cruelty after she admitted to killing a peacock with a baseball bat. Maloney testified that she “just lost it” after enduring the roaming peacocks’ cries night after night. She stated that she initially loved the idea of the birds roaming free near her condominium tower in Makaha, just northwest of Honolulu. But that after years of hearing the birds cry and squawk, she just couldn’t take it any longer, claiming the noise caused her insomnia and restless nights. She also stated that she had decided to eat the bird after she killed it.
After the verdict, Ms. Maloney seemed defiant and unremorseful by telling KHON TV news she was elated by the decision and proclaiming that “I’m going to Disney World we’re going to have peacock soufflé.” Ms. Maloney added that she felt vindicated and that “I think it's going to be open season on peacocks and it's probably past time,” One has to wonder if the jurors knew Ms. Maloney’s true attitude if they would have been as forgiving of the 70-year-old in accepting her attorney’s attempts to paint her as a sleep deprived and sympathetic senior citizen.
MYfoxchicago.com reported that “A board member of a neighboring condominium testified that his association had been killing peacocks under permit from the state Department of Land and Natural Resources for years, but had kept it quiet because of an outcry from peacock lovers that had even resulted in death threats.” The report also included a partial statement by City Prosecutor Keith Kaneshiro, which said his office would "continue to vigorously prosecute cases of excessive cruelty to or ill-treatment of animals."
Under Hawaii Revised Statute § 711-1109(1)(c), “A person commits the offense of cruelty to animals in the second degree if the person intentionally, knowingly, or recklessly… mutilates, poisons, or kills without need any animal other than insects, vermin, or other pests.” Apparently Maloney’s attorney was successful in arguing that the peacocks were pests, claiming that the birds are an “invasive species” and that they need to be controlled. While there is indeed widespread debate about how to handle the wild peacocks, bludgeoning them to death with a bat is not the answer.
Thankfully, to remedy this obvious animal cruelty loophole, a new bill, SB 1533, has been introduced in the Hawaii legislature to “clarify that peacocks are not included as pests for purposes of the law on cruelty to animals in the second degree.” It passed its first reading on January 28, 2011, and has been referred to committee, with a public hearing scheduled for February 10th, 2011. Here’s hoping that Hawaii will act fast to protect these beautiful, yet vocal animals.
On Feb. 24, the Guam Legislature voted unanimously to pass Senate Bill 9 which dramatically strengthens the territory's laws protecting animals. Once the bill is signed into law, Guam will finally join the list of U.S. jurisdictions with felony animal abuse penalties. The new felony penalty will apply to not only cases involving cruelty, but also neglect of an animal which results in serious physical injury or death.
In addition to the new felony penalties, the legislation makes animal abandonment a misdemeanor; authorizes law enforcement seizure of mistreated animals; and adopts robust minimum care standards and other definitions which mirror much of what is contained in ALDF's model animal protection laws.
Guam had ranked 52nd out of 56 in ALDF's 2010 rankings report on the strength and comprehensiveness of the laws of each state and territory in the U.S. These new improvements will likely lead to a significant upward movement in this year's rankings.
On December 18th, 2010, President Obama signed the Truth in Fur Labeling Act, a landmark consumer protection law that will restrict the sale of products containing real fur if they are not accompanied by truthful labeling, no matter their cost.
Under prior law, which had been in effect for years, an exemption allowed manufacturers not to label real fur as long as the cost of the item did not exceed $150. Under the new law all products that contain real fur “must be labeled with the species of the animal, the country of origin, and the manufacturer.” The law includes “an exemption from these requirements for fur products sold by an individual who trapped or hunted the animal, where the revenue from these sales is not that individual’s primary source of income.” The new legislation is to take effect no longer than 90 days after its enactment.
The legislation came about after it was discovered that many retailers were selling fur-trimmed items that were unlabeled or mislabeled as “faux fur.” In fact, many items labeled as “faux,” “raccoon,” or “coyote” were actually found to have been made with domestic dog or wolf fur. In December 2010, Nymag.com reported that, “…an estimated 13 percent of fur items sold in the U.S. fall into the unlabeled category.” “This bill is more than just empowering consumers to be able to make informed decisions about where their dollars go, and this kind of labeling is more than just picking the right size or the preferred brand,” said the bill’s sponsor, Senator Robert Menendez (D-NJ), on njtoday.net. “This is about allowing consumers to make decisions about whether they want to support a practice — a practice that, given all the facts, so many would be adamantly opposed to.” This new law will mandate that the labels reveal the truth—very helpful indeed for those consumers who want to make informed decisions about fur.
December 2010 was a victorious month on the federal animal law front, with President Obama previously signing into legislation the ban against “crush videos.”
Update--March 17, 2011: Missouri legislators have voted to repeal Prop. B, endangering countless puppies in the abusive puppy mill industry. Please send your urgent letters to Governor Jay Nixon asking him to veto this repeal:
In November 2010, we reported that voters in Missouri, often infamously referred to as the “puppy mill capital of the nation,” passed Proposition B – the Puppy Mill Cruelty Prevention Act. This landmark law was passed with a 52% vote and requires large-scale dog breeders to provide all dogs under their care with sufficient food, clean water, improved housing and space, necessary veterinary care, regular exercise and rest between breeding cycles. In addition, it limits the number of dogs allowed in a breeding operation and elevates violations to criminal offenses. The law is scheduled to go into effect later in 2011. A great victory for the animals, right? It would seem so, but a fight has now begun to repeal or change the new law.
Missouri television station kmbc.com reports that “Hundreds of dog owners and animal rights activists packed a Missouri House hearing on Tuesday [January 25, 2011] as lawmakers considered whether to repeal or roll back” the laws. A bill sponsored by House Republican Tony Dugger of Hartville would repeal the law, while “two other legislative proposals would scale back changes in the law.” KansasCity.com reports that the bill heard in committee would remove many of “the stiffer regulations and the cap on the number of dogs, and change the name of the law to the Dog Breeders Cruelty Prevention Act, among other things.” Some opponents of the new law have argued that it punishes licensed breeders and that it could destroy the breeding industry in the state.
“Proposition B supporters, however, said the new law was a necessary response to animal cruelty and suggested that efforts to overturn it would subvert the people’s will.” The people of Missouri have spoken—the vote is in. They want the added protections for the animals clearly spelled out, with legal consequences for non-compliance. It is clear that this law is badly needed and that none of its provisions should be compromised—sufficient food, clean water, improved housing and space, necessary veterinary care, regular exercise and rest between breeding cycles—are tantamount for healthy and responsible breeding. The law should remain intact, for the sake of the animals.
Missouri residents: contact your legislators and encourage them stand behind the voters! The Puppy Mill Cruelty Prevention Act was passed by the majority and should not be repealed.
It is hard to believe that four years have passed since I had the pleasure of joining Animal Legal Defense Fund. I was reminded of this fact last week when I got a copy of the appellate opinion in the Kern County, California, Bemis/Trapani case, which was one of the first cases I had my hands on back in 2007. While the appellate opinion is limited in scope, the underlying casework serves as an excellent example of a prosecutor’s need to address three key issues in an animal hoarding prosecution:
- Seize the entire population
When writing a search warrant to seize animals in a hoarding case, do not limit the scope of your search (and seizure) to just those animals that are near death’s door. As with any hoarding case, the victim population will have dead, near dead, marginal and somewhat healthy animals. Leaving the marginal and somewhat healthy animals behind is, in a word, malpractice.
Some overly cautious prosecutors might argue that absent proof of compromised health, the police lack probable cause to seize. However, there is always the crime of “attempted animal cruelty” that would apply (i.e., the defendant has intentionally taken a substantial step toward the completed act of animal cruelty by intentionally failing to provide minimum care to the entire population). Just because the strong or the newly arrived animals have not yet manifested symptoms does not mean that your case is limited to just the sick, dead or dying.
Further, you can draft around this issue by noting that you have probable cause to seize the entire population (including the marginal or healthy animals) as the healthy segment of the population is evidence of the completed crime and demonstrates the defendant’s knowledge of defendant’s duties to provide minimum care.
Lastly, once you establish local precedent for securing pre-conviction possession bans as a condition of release in hoarding cases (paragraph 2 below), you can include that local practice as justification for impounding the entire population on the theory that the arraignment judge will inevitably order this result once the defendant appears in court.
- Secure release conditions banning animal possession
With a recidivism rate in hoarding cases that is well over 90-percent, the likelihood that the defendant will reoffend while pending trial is all but a certainty. See, Lisa Avery, From Helping to Hoarding to Hurting: When the Acts of "Good Samaritans" Become Felony Animal Cruelty 39 Val. U. L. Rev. 815, 834 (2005). Further, most practitioners agree that “long-term and lasting solutions require continual monitoring of animal hoarders in order to prevent them from hoarding and hurting again.” 39 Val. U. L. Rev. at 858 (2005).
The implications of these known aspects of an animal hoarding case (i.e., the exceptionally high recidivism rate and the need for constant monitoring to ensure an offender’s compliance with a court’s order) are the foreseeable product of common sense. Such an offender will continue to accumulate more and more new criminal charges for not just animal cruelty, but also contempt; such an offender will continue to go further and further into debt to secure funding to post bond and to pay attorney fees; such an offender will strain his or her relationships and limited support network in the course of attempting to manage the downward legal spiral until such point that the offender simply pulls up stakes and moves to avoid further scrutiny from the justice system.
Further, due to squalid living conditions, animal hoarders often lose their housing due to the damage caused by the accumulation of feces, urine and all too often the decomposition of dead animals. Instability with housing only enhances the probability that a pretrial offender will fail to appear. Thus, given the high flight risk and the clinical inability to comply with the law, a court order banning hoarding defendants from possessing animals while their case is pending must be sought.
Once the pre-conviction possession ban is in place, you must enforce it. As part of our efforts to do that in the Bemis/Trapani case, we acquired some aerial photos undisputedly demonstrating that the defendants were in possession of dogs while their case was pending. We tendered them to the prosecutor and urged for a motion to revoke the defendants’ release.
Where aerial footage is not available, more traditional options such as unannounced home visits or the occasional neighborhood canvas are worthwhile.
- Pursue every option to divest defendant’s ownership in the animals
While treating animals as “evidence” is helpful in drafting search warrants, letting these animals languish in cages for months (even years) while a case is pending is abuse. Foster placement is the minimum, but the better approach is permanent placements in loving adoptive homes.
Of course, one cannot transfer ownership in these animals if the defendant still owns them. Thus, a vigilant prosecutor scours the code for options. Some states have express statutory authorization for the pre-conviction forfeiture of abused animals (e.g., the petitioner proves by a preponderance of the evidence that the animals are victims of abuse, thus triggering an obligation for the defendant to post a cost-of-care bond; failure to post the bond results in forfeiture). In those states that lack a pre-conviction forfeiture option (or in those cases where there are third-party claimants seeking possession), consider using your state’s possessory chattel lien law to address the issue. Lastly, if all else fails, the shelter charged with rehabbing the victim animals can always pursue a quantum meruit civil claim to recover the costs-of-care and ultimately acquire title to the animals as part of enforcing that judgment.
The bottom line is that the sooner you extract the animals from the criminal justice system, the sooner you can get them into adoptive homes where they can recover and live out their lives free from the threat of abuse. In many states, this can be accomplished well in advance of a final resolution of the underlying criminal case.
Most of us reading this blog have always known that our companion animals mean much, much more to us than our iPod or other latest gadget, even though the initial investment to obtain either of them may have been the same. But the law has not been in lockstep with that thinking.
Traditionally, companion animals have been thought of as mere “property,” in the same way as your iPod or similar gadget. Hence, if something “happened” to that “property,” the “owner” would only be entitled to recover the fair market value or replacement value of that “property.” If someone breaks your iPod, then they may buy you a new one as a replacement. No real pain and suffering (yes, you may be upset about losing some content), but a new iPod would roughly make you whole again, right? But if you paid $55 to adopt your cat and he was negligently killed, and you were only entitled to recover your $55 “investment” under the traditional view of the law, I definitely think that that small payment would fail to make you whole. In fact, that “hole” in your life, left by the death of your cat, would be a great deal harder to fill. Under the traditional view of the law, no attention would be paid at all to the cat’s pain and suffering, or to your emotional distress at having lost a member of your family. Alas, it is with great effort that the Animal Legal Defense Fund has worked to change this view of the law and get more courts to see the “actual” value of our companion animals when someone or something has harmed them.
So it is a tremendous step in the right direction that the Los Angeles Times recently published an article recognizing the inroads made as of late in the field of animal law. The article initially discusses a Maryland case in which a couple filed suit against their local sheriff after their Labrador was shot by sheriff’s deputies on their property. The article comments that “legal experts say such cases are on the rise as pets are coming to be viewed as more than property — at home and in court.” Brandi survived her injuries but is believed to have suffered permanent harm from her wounds. Brandi’s family is seeking damages for reckless endangerment and infliction of emotional distress. The case is still pending.
The article further cites the changes that have recently occurred in the field of domestic violence law regarding animals and those that seek their protection in potentially dangerous situations. The article notes that “Courts in some jurisdictions have begun to make a link between domestic violence and cruelty to animals… If someone goes to court to get a protective order, it includes not just the victim and her children, but her pets can be included." These are indeed positive steps. And other constructive changes that were mentioned can be found in the fields of estate planning, custody, divorce and service animal law. In fact, the article states, the trends involving animals have been so great several law schools now offer animal law programs, classes and seminars.
It is refreshing to see that others are recognizing that animal law “…is growing as people insist that pets are not property, but part of the family.”
Several criticisms were created by the sentence imposed by Plymouth County, Massachusetts District Court Judge Beverly Cannone in the Heidi Erickson animal neglect case. But let us first focus on the one huge positive aspect of this case: the possession ban. In hoarding cases, a court order banning a defendant from any contact with live animals such as Judge Cannone issued in this case is key. With recidivism rates exceeding 90%, the only real hope of preventing further suffering is to aggressively enforce this condition of probation. With Ms. Erickson reportedly setting up shop in Kentucky, the Animal Legal Defense Fund gladly offers its support to the Plymouth County District Attorney’s office in aggressively enforcing Judge Cannone’s order by assisting with any and all efforts necessary to extradite Ms. Erickson back to Massachusetts should she violate this most important condition of probation.
Having said that, the sentence’s disappointments are noteworthy. In a state that has some of the best anti-animal cruelty laws in the nation (and serves as home to the Hoarding of Animals Research Consortium, or HARC), for a trial judge to decide (at least in part) to impose a lesser jail term for a repeat offender by relying on a defense plea for leniency predicated on watered down laws that are on the books in other states is a very strained bit of legal reasoning. The Legislative and Executive branches of the Commonwealth of Massachusetts have enacted constitutionally valid laws protecting animals, many of which call for stiffer penalties than may be common in other states. For a state trial court judge to rely on weaker laws extracted from other states to justify a lesser sentence in a Massachusetts case can readily be viewed as a thinly veiled attempt to justify a specious proportionality argument that borders on an express violation of the separation of powers. In my view, it was a substantial mistake for Judge Cannone to rely on lesser laws from other states to justify going soft (i.e., a net of 17 days in jail) in a repeat offender case where the Massachusetts Legislature enacted (and the Governor approved) a much tougher sentencing scheme. This error is only amplified by the Court’s apparent failure to acknowledge Ms. Erickson’s conduct in Kentucky while this case was pending in Massachusetts.
Another criticism comes in light of the prosecution’s failure to give witnesses and victims (yes, the executive director of non-profit that cared for the neglected cats—Linda Brackett of Nemasket Orphaned Animal Haven or NOAH—is a “victim” as that term is defined in M.G.L. chap. 258B § 1) notice of the Court’s decision to move the sentencing hearing to an earlier date. Not only is this an affront to Massachusetts’ crime victim bill of rights (M.G.L. chap. 258B § 3(b), it only fuels suspicions that the “fix was in” and that the Court did not want citizens who were clearly concerned and closely following this case to appear or participate at sentencing.
As to Ms. Erickson having reportedly stated her intent to appeal a very generous sentence -- to that idle threat, we respectfully say, “Yes, please do appeal your sentence Ms. Erickson.” We would welcome a second opportunity for the trial judge to address your conduct in open court with ample advance notice given to the people who cared for the surviving victim animals.
Regardless of the outcome of any appeal, in light of the generous sentence imposed, Ms. Erickson has a limited down side for any non-compliance with the terms of her probation. Consequently, and quite sadly, the odds are high that we will be seeing Ms. Erickson again very, very soon.
Most of us reading this blog have always known that our companion animals mean much, much more to us than our iPod or other latest gadget, even though the initial investment to obtain either of them may have been the same. But the law has not been in lockstep with that thinking. Traditionally, companion animals have been thought of as mere “property,” in the same way as your iPod or similar gadget. Hence, if something “happened” to that “property,” the “owner” would only be entitled to recover the fair market value or replacement value of that “property.” If someone breaks your iPod, then they may buy you a new one as a replacement. No real pain and suffering (yes, you may be upset about losing some content), but a new iPod would roughly make you whole again, right? But if you paid $55 to adopt your cat and he was negligently killed, and you were only entitled to recover your $55 “investment” under the traditional view of the law, I definitely think that that small payment would fail to make you whole. In fact, that “hole” in your life, left by the death of your cat, would be a great deal harder to fill. Under the traditional view of the law, no attention would be paid at all to the cat’s pain and suffering, or to your emotional distress at having lost a member of your family. Alas, it is with great effort that the Animal Legal Defense Fund has worked to change this view of the law and get more courts to see the “actual” value of our companion animals when someone or something has harmed them.
So it is a tremendous step in the right direction that the Los Angeles Times recently published an article recognizing the inroads made as of late in the field of animal law. The article initially discusses a Maryland case in which a couple filed suit against their local sheriff after their Labrador was shot by sheriff’s deputies on their property. The article comments that “legal experts say such cases are on the rise as pets are coming to be viewed as more than property — at home and in court.” Brandi survived her injuries but is believed to have suffered permanent harm from her wounds. Brandi’s family is seeking damages for reckless endangerment and infliction of emotional distress. The case is still pending.
The article further cites the changes that have recently occurred in the field of domestic violence law regarding animals and those that seek their protection in potentially dangerous situations. The article notes that "Courts in some jurisdictions have begun to make a link between domestic violence and cruelty to animals… If someone goes to court to get a protective order, it includes not just the victim and her children, but her pets can be included." These are indeed positive steps. And other constructive changes that were mentioned can be found in the fields of estate planning, custody, divorce and service animal law. In fact, the article states, the trends involving animals have been so great several law schools now offer animal law programs, classes and seminars.
It is refreshing to see that others are recognizing that animal law “…is growing as people insist that pets are not property, but part of the family.”
Ringing in the New Year also meant the start of some new animal protection laws that took effect on January 1st. A few of them include:
Delaware—Uniform standards have been created for how animal shelters must care for animals under their supervision. The new standards dictate “how and when they must administer vaccinations and veterinary examinations, as well as outline all the steps that must be taken to attempt to find a good home for a pet before it can be euthanized.”
Hawaii—An animal cruelty statute has been enhanced, setting minimum standards of care for pet enclosures. An enclosure must now “have enough room to stand up, sit down, and turn around safely.” The law also requires a resting platform inside any wire-bottom cage, and it now requires, rather than just recommends, preventative veterinary care.
Illinois—A new law requires pet stores, animal shelters and animal control agencies to disclose an animal’s history before it is purchased or adopted. “The following information must be on or near an animal's cage: retail price, including additional charges, breed, age, date of birth, sex and color of the dog or cat, details of vaccinations and health history, and the name, address and identification number of the breeder and details of any inoculation or medical treatment received while at the facility. Pet stores are required to disclose this information if it is requested by the consumer, but it is unclear when the information must be disclosed.” The law does allow greater flexibility for rescues and shelters, which deal more often with stray animals.
El Paso, Texas—A new city ordinance bans the sale of puppies and kittens for a profit if they are less than a year old. This new restriction effectively prohibits pet stores from selling young puppies and kittens. In addition, “animals younger than eight weeks cannot be given away except to the shelter or to an approved animal welfare organization. And animal welfare organizations must spay or neuter all animals older than four months before transferring them to someone else.” The new law was passed in an effort to reduce the number of animals killed each year at the city’s shelter.
The Truth in Fur Labeling Act, written by Senator Robert Menendez (D-NJ), was approved by the Senate on December 7, 2010 and is now on its way to President Barack Obama’s desk for his signature. The Act was previously passed by the House of Representatives in July. According to njtoday.net, the Act “will guarantee all fur products, regardless of cost, will be accurately labeled with the species of animal used, the manufacturer, the country of origin, and other information.”
Current legislation, which is many decades old, contains a loophole in federal law that allows most garments with animal fur to go without a label if the value of the fur is $150 or less, essentially allowing most clothing with fur trim to be sold without informing shoppers if they are buying faux or real animal fur. Nymag.com reports that, “In fact, an estimated 13 percent of fur items sold in the U.S. fall into this unlabeled category.” “This bill is more than just empowering consumers to be able to make informed decisions about where their dollars go, and this kind of labeling is more than just picking the right size or the preferred brand,” said Menendez on njtoday.net. “This is about allowing consumers to make decisions about whether they want to support a practice — a practice that, given all the facts, so many would be adamantly opposed to.”
Supporters of the law, which had bi-partisan proponents in both the House and the Senate, predict it will be signed into law very soon.
President Obama signed a bill into law Thursday banning, once again, the sale of animal “crush” videos (depictions of small animals being crushed to death by humans for sexual fetish purposes).
Earlier this year, the U.S. Supreme Court in an 8-1 decision (in U.S. v. Stevens) struck down a 1999 law that had prohibited the interstate commerce of these videos and other depictions of animal cruelty. The court found the law was overly broad and therefore an unconstitutional violation of free speech.
In the wake of the Supreme Court decision, there has been a resurgence of these loathsome videos—videos which had all but disappeared from the marketplace following the 1999 law.
In July, the House of Representatives, in response to the Supreme Court's decision, drafted a more narrowly tailored bill aimed at prohibiting crush videos in a constitutionally sanctioned manner. The bill, H.R. 5566, passed with almost unanimous support. The Senate followed suit in September, voting unanimously on a substitute amendment to H.R. 5566. In November, both the House and the Senate agreed on final language.
The more narrowly written law that emerged makes it a crime to sell or distribute videos showing animals being intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury. It exempts depictions of veterinary and husbandry practices, the slaughter of animals for food, as well as depictions of hunting, trapping or fishing.
This new law—targeting the market for these gruesome depictions—will give law enforcement a much-needed tool for stemming the proliferation of these videos.
Thank you to everyone who called, wrote letters and spoke out to legislators in support of this very important legislation!
So Michael Vick played a great football game for the National Football League (NFL) on Monday, November 15th. The sports media was all aglow over his success: “Michael Vick has completely revived his career, changed his image in Philadelphia,” reported ktla.com; “Goodell sings praises of 'maturing' Vick,” trumpeted the Winnipeg Free Press; and “Time to forgive Vick is here,” wrote Rick Reilly of ESPN. So do you think that the many animals Vick abused and tortured during his reign of terror at “Bad Newz Kennels,” his interstate dog fighting ring, care about his athleticism? The few surviving ones that is, as most did not survive their hell on earth. Are they jumping around for joy that he has helped their fantasy league stats? No, they don’t care, and neither should we.
The day after Vick’s Monday Night Football game, Bill Plaschke, a longtime sports writer for the Los Angeles Times, reported on how Mel, one of Vick’s surviving victims, felt about the game. He wrote about how Mel still shakes and cowers at meeting strangers, about he can no longer bark, and about how difficult life has been recovering from the horrific abuse at the hands of a man that can also throw touchdowns. Mel was a "bait" dog, "thrown into the ring as a sort of sparring partner for the tougher dogs, sometimes even muzzled so he wouldn't fight back, and beaten daily to sap his will. Mel was under constant attack, and couldn't fight back, and the deep cuts were visible on more than just his fur." "When you look at Mel," said Richard Hunter, Mel’s new owner, "you just don't think about how Michael Vick is a great football player."
Yes, Vick served his time in prison—a paltry 21 months. This even after Vick himself admitted unspeakable cruelty to his pit bulls—“the strangling, the drowning, the electrocutions, the removal of all the teeth of female dogs who would fight back during mating,” as listed in Plaschke’s article. Yet, some of those in the mainstream media would like to say that his crimes and atrocious past have been discussed and debated to the nth degree and that we should move on. Hey, Vick is now in the running for the NFL’s Most Valuable Player! He sells jerseys and tickets to his games. He makes lots of people lots of money. It has been easy for them to forget. Why can’t everyone else? Plaschke wrote that some believe that because Vick served his time in prison, he should be beyond reproach for his former actions, while many others believe that cruelty to animals isn't something somebody does, it's something somebody is. I am in this second group, and I think that anyone who loves animals probably is, too.
I am all for forgiveness. There are lots of stories about athletes that make mistakes, moral and otherwise, and then move on. Everyone chimes in that such bumps in the road are a part of growing up, part of becoming a star athlete. After all, to err is human. Some cheat on their wives (Tiger Woods), some take money and kickbacks (Reggie Bush), and some bet on the very sport that they played (Pete Rose). But these transgressions involve adults, humans with their own voice, their own capacities to make decisions. There have also been other athletes that have committed terrible crimes (Rae Carruth) but they are not later thrust into our faces with the media pleading with us to forgive and forget. Vick is different. Never before has there been such a situation where the mistakes were so heinous, so ongoing and so… unforgivable. As Plaschke put it, “Vick's success is raising one of the most potentially costly and difficult perceptual questions in the history of American sports.” Vick’s case involves helpless animals: those that cannot speak for themselves, those entrusted to the very person who was supposed to be caring for them, raising them, and nurturing them. One stupendous football game does not atonement make.
There is no real atonement here as long as Vick continues to play football. The fact is, Vick is allowed to continue to live his life, play a sport he loves, earn millions of dollars, and basically live the American Dream of success. His poor animals do not have the same luxury. This is what bothers most people. It’s as if the whole thing never happened. Abuse (kill, torture, maim) animals, go to jail, and then come right back to the NFL, and all is well. I just can’t get past it. I don’t watch football anymore, not since Vick was reinstated, and I tell anyone who will listen why. Richard Hunter also told Bill Plaschke that he doesn’t watch it anymore either. I suspect there are many others who feel the same way. No longer watching football or buying NFL merchandise are small victories for the animals in the grand scheme of things, but if we forget what Vick did, it may happen again. We simply cannot allow that, great football game or otherwise. "For the dead and the living, we must bear witness." -- Elie Wiesel
The Senate, following the House, passed legislation on November 19th to ban the selling of videos that depict the abuse, mutilation, torture, and killing of animals. The Senate passed a “voice vote,” and the legislation is now on its way to President Barack Obama for him to sign. The narrowly written bill makes it a crime to sell or distribute videos showing animal cruelty, including depictions of animals being burned, drowned, suffocated or impaled.
Congress has come together after an April 2010 decision by the U.S. Supreme Court in which it overturned a defendant’s conviction under a similar 1999 law, 18 U.S.C. §48, finding that it was too broad and that it could allow for prosecutions outside its intended scope. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010). In the wake of the Supreme Court decision, there has been a resurgence of these loathsome videos – videos which had all but disappeared from the marketplace following the 1999 law. This new law targeting the market for these gruesome depictions would give law enforcement a much-needed tool for stemming the proliferation of these videos.
This week ALDF filed an amicus curiae brief in Washington state’s Supreme Court, arguing that the court should hear the appeal of Arnold Sather, whose dog was found to be dangerous and impounded by the City of Spokane. The case revolves around the question of what due process a city owes the guardian of a companion animal when the state accuses that animal of being a threat to society.
If our constitutions exist to protect us from the state, and to ensure that the state does not imprison us without trial, or take our homes without some compensation, what does the state owe us before it takes, impounds and kills our closest companions? One of the many reminders that our society has a cavemanishly regressive view of non-human animals is that in many places, like Spokane, governments offer citizens very little protection – much less than if it were placing its citizen in jail for a short while, or seizing even a small portion of its citizens property.
Of course that makes no sense. We value our companions because we love them, and many of us would rather spend a night in jail, or allow the public to use part of our property, than lose them. There are unfeeling members of our society that can’t empathize with animals, that only value an animal for the work it can do or the food it can provide. It’s that sort of thinking that has robbed Mr. Sather and his companion of the protections they deserve. But just as the development of constitutions themselves represents progress, from a time before them when, for example, women or minorities had no rights, constitutions have evolved to respect our love of non-human animals. In the months to come ALDF hopes to argue that point, and specifically that they offer Mr. Sather and his companion the protections they deserve and much more than they received.
On October 27th, a federal judge in Philadelphia approved a plan to allow sharpshooters to control the deer population at Valley Forge National Historical Park. Two animal rights groups, the Friends of Animals, a Connecticut organization, and Compassion for Animals, Respect for the Environment, a Pennsylvania organization, sought to enjoin the National Park Service (NPS) from culling the deer. The groups alleged that the NPS had not complied with all statutory obligations and had not properly considered other alternatives, which include fencing and introducing coyotes as a “natural” means of reducing the deer population. Judge Mitchell S. Goldberg rejected the groups’ attempt to stop the hunt and found in favor of the NPS’s plan to allow hunting to begin this November. Summary judgment was entered in favor of the NPS. An appeal is planned.
According to the Associated Press, the stated goal is to reduce the herd of about 1,300 deer by over 80 percent over the next four winters. That means that the park plans to have its deer population dwindle from more than 1,200 to fewer than 200. The judge’s opinion states that “The purpose of the NPS plan is ‘to develop a white-tailed deer management strategy that supports long-term protection, preservation, and restoration of native vegetation and other natural and cultural resources while maintaining a deer population . . . .’ The plan considered four alternatives: (A) No-action, (B) Combined Nonlethal Actions, (C) Combined Lethal Actions, and (D) Combined Lethal and Nonlethal Actions. The plan selected by the NPS is Alternative D.”
The groups argued that culling the deer herd was against the Organic Act’s mandate to “conserve. . . the wildlife,” in national parks. They maintained that natural management, not culling by sharpshooters, was the only plan consistent with the Organic Act. The court rejected that claim, finding that the groups “…ignore the Secretary of the Interior’s clear mandate under the Organic Act to provide for the destruction of animals that may be a detriment to the park. 16 U.S.C §3. Because the NPS has clearly identified overgrazing by the herd as the cause of insufficient forest generation, which is a detriment to the scenery and natural and historic objects, the exception to preserving all wildlife under the Organic Act has clearly been invoked here. Petitioners have not identified how this finding of a detriment and the NPS’s plan to remedy it is arbitrary or capricious under the Organic Act.”
It has also been argued that the large amount of deer living in the park has contributed to a high number of vehicle accidents within the park each year and the destruction of nearby suburban gardens. Park officials say they believe the hunt also will reduce the risk of chronic wasting disease, a debilitating brain disease that has been found in neighboring states, but not in Pennsylvania.
Reportedly, once the herd's numbers are under control, the park service plan would then also use birth control and other nonviolent methods along with the hunt, which would run from November to March each winter. Animal-welfare activists advocate that the historic park, famous because George Washington and his Continental Army spent the winter of 1777-78 there, should be maintained using natural methods. They propose doing nothing, letting nature take its course, or introducing predators, namely coyotes.
The hunt was initially slated to begin last year but was delayed due to the lawsuit. Too bad for the deer that it wasn’t halted in perpetuity. A stated goal of an 80 percent decrease over the next four years seems awfully drastic. How about revisiting the plan each fall, before the next hunt? Hopefully park officials will see the big picture here…the one that includes all wildlife, including deer.
ALDF is happy to report of exciting election developments
In Arizona, voters soundly rejected Proposition 109 which would have given the Arizona legislature exclusive authority over wildlife issues, denying voters the right to set wildlife policy. Had it passed, not even the Arizona Game and Fish Commission would have been able to make decisions relating to wildlife without the explicit consent of politicians. Proposition 109 could have opened the door to cruel and extreme wildlife-killing practices and led to an overturning of the earlier law passed by voters to restrict cruel traps and poisons on public lands. Fortunately, for the wildlife of Arizona, the measure was defeated.
In Missouri, often infamously referred to as the “puppy mill capital of the nation,” voters passed Proposition B – the Puppy Mill Cruelty Prevention Act. This landmark law will require large-scale dog breeders to provide all dogs under their care with sufficient food, clean water, improved housing and space, necessary veterinary care, regular exercise and rest between breeding cycles. In addition, it limits the number of dogs allowed in a breeding operation and elevates violations to criminal offenses.
Hats off to Arizona and Missouri and to all of our supporters who responded to ALDF’s legislative alerts on these measures! Your voices on behalf of the animals were heard.
Turkish animal rights activists are seeking to criminalize the abuse of animals after collecting a record number of signatures for a petition campaign. HürriyetDailyNews.com reports that the petition campaign collected 250,000 signatures in just 55 days, a huge number in a very short time for such a petition drive. The signatures were collected by the non-governmental organization, Animal Rights Platform, and were presented to the Justice Ministry’s General Directorate for Law early on October 4th.
The campaign, which started August 15th, seeks to have animal abuse reclassified as a criminal offense rather than a misdemeanor. Under the current Turkish law, Animal Law No. 5199, which falls under the Law on Misdemeanors, “a person who abuses or rapes a stray animal receives a fine of 300 liras,” but the case is not investigated as a judicial case.
Puppy Mill Cruelty Prevention Act—Prop B—is on the November 2nd Ballot in Missouri
Prop B will ask voters whether to enact a new set of laws that would greatly expand regulations on dog breeders. KansasCity.com reports that proponents, led by national animal rights groups, contend the new laws are critical to ensure humane treatment within Missouri’s vast dog-breeding industry. It has been estimated that roughly 30 percent of all dogs sold in pet stores across the nation are bred in Missouri. The state lists 1,431 licensed commercial breeders, which is the most of any state, and some estimates list the total number of breeders at over 3,000.
Barbara Schmitz, campaign manager for Missourians for the Protection of Dogs, has stated that the current laws don’t provide much protection to animals beyond their basic survival. Breeders and animal-agriculture trade groups counter that the laws will do nothing to stop bad breeders and will hamper legitimate family businesses and raise the price of animals that are sold. Opponents have also argued that Prop B will allow the worst offenders to continue breeding while forcing reputable breeders out of business.
Prop B does reiterate many of the requirements for the care and breeding of dogs that are already on the books. However, the new laws “would also would limit the number of dogs allowed in a breeding operation, elevate violations to criminal offenses, increase space requirements for animal enclosures, and expand requirements for veterinary care.” Supporters point out that these new requirements will give breeders “clearer standards” and “increase opportunities for enforcement of anti-cruelty laws.” The new regulations would apply to pet operations with more than 10 female breeding dogs and would have a cap on the number of dogs allowed to breed in an operation, limiting the number to 50 dogs. It also would limit an individual dog’s breeding cycle, allowing females to have no more than two litters within 18 months. According to the Missouri Secretary of State's website, the purpose of Prop B is to "prohibit the cruel and inhumane treatment of dogs in puppy mills by requiring large-scale dog breeding operations to provide each dog under their care with basic food and water, adequate shelter from the elements, necessary veterinary care, adequate space to turn around and stretch his or her limbs, and regular exercise." The ballot measure indeed sets out the existing requirements that dogs have adequate food, water, and housing, as well as ample space. Violations of those requirements would become misdemeanors — meaning that law enforcement would have jurisdiction over breeding operations along with state and federal agriculture investigators. Offenders could face criminal charges, fines, and/or jail time.
Supporters used Missouri’s initiative petition process and gathered enough signatures to put the proposal on the upcoming ballot, and if approved, it will take effect in November 2011.
The law regarding animal treatment just got a whole lot stricter in Manitoba, Canada. The Animal Care Amendment Act took effect September 20th, doubling-up jail time and fines for offenders, and adding the severe penalty that a person convicted of an offense could be restricted from owning or caring for animals for life.
The new regulations set out licensing requirements for larger breeders of certain animals (including dogs and cats) and pet stores, as well as more frequent inspections of kennel operations. A breeder is defined as someone who has five or more intact female animals. The licensing requirement is intended to provide better consumer protection to the many consumers who previously had little or no recourse after they purchased a sick pet.
The new rules also give animal protection officers more power to take immediate action to prevent harm or to seize animals they consider to be abused or abandoned. Veterinarians also have an expanded role under the new law. They will now be required to report suspected cases of animal abuse or neglect, and they will be protected from any civil liability if they file a report. In addition, the office of the chief veterinarian will be expanded by three staff members to help enforce the new act.
The act further prohibits the loading and transportation of animals that are not deemed fit for transport and prohibits the acceptance for commercial trade of livestock that are not fit for transport at sites such as auction markets and shipment yards.
It is hoped that the changes under the act will eventually weed out puppy mills and keep habitual hoarders from owning animals after they have been found in violation. It is believed that the lifetime ban on pet ownership gives investigators the upper hand when it comes to people who hoard animals.
Penalties under the new rules:
- Maximum fines for animal care offenses are raised to $10,000 from $5,000 for a first offense and to $20,000 from $10,000 for a second or subsequent offense.
- The maximum term of imprisonment is increased to 12 months from six months for a second offense.
- The act also gives the courts the power to ban a person convicted of an offense from owning or caring for animals for life.
The Associated Press on September 16th reported that a man accused of dragging a “stubborn” horse alongside his truck has become the first person convicted by a Puerto Rico jury under an animal protection law enacted after dogs were thrown to their deaths from a bridge. Georgenan Lopez, 24, is scheduled to be sentenced in November and could face up to 15 years in prison. The horse has recovered from most of its injuries last February, but it still limps and can never be ridden. Animal activists hailed the conviction as evidence that the U.S. Caribbean territory is slowly, but surely, recognizing animals' rights and prosecuting cruelty cases.
The animal protection law was approved in August 2008, nearly a year after authorities charged the owner and two employees of a private animal control company with taking away dozens of pet dogs and some cats from public housing projects and throwing them off a bridge. The three were acquitted, and international anger led more than 50,000 people worldwide to sign a petition threatening to boycott travel to the Caribbean island. Tourism officials estimated Puerto Rico lost more than $15 million as a result.
It is possible Lopez will appeal the verdict, but the message remains that people will be prosecuted for mistreating animals, said Yeidy Velazquez, president of Citizens for Animal Shelter in Aguadilla. "It is a triumph for us," she said. And I agree. I remember the infamous bridge incident, and I have kept it in the back of mind, to be pulled up any time Puerto Rico is mentioned. At least there have been steps to turn that tragedy into something positive.
The Suffolk County Legislature unanimously approved a bill Tuesday, October 12th, to create a law establishing a county registry for animal abuse offenders. Suffolk County is home to 1.5 million human residents and an untold number of animal residents. The new law allows the county to create a public registry of convicted animal abusers. This registry will store names, aliases, addresses, and photographs of animal abusers in a searchable database in a format that will be very similar to New York’s sex offender registry. Convicted abusers will be required to pay a $50 annual fee for maintenance of the registry and those who fail to register will be charged a $1,000 fine or face jail time. An abuser’s name will remain on the registry for five years after their release from prison or the date the judgment was rendered, whichever is later.
A public hearing for a second bill, which would require pet stores and animal shelters to check the registry before allowing anyone to purchase or adopt an animal, was tabled for a later date. If the second law is approved, it will prohibit pet stores and animal shelters from selling or adopting out an animal to a convicted abuser. The Animal Legal Defense Fund worked hard in support of the legislation, in conjunction with the bill’s sponsor, Majority Leader Jon Cooper. This is a great achievement for Suffolk County and a momentous step forward for the animal abuser registry movement!
European Union passes “Protection of Animals Used for Scientific Purposes” law, providing for better lab animal welfare
On Wednesday, September 8th, the European Parliament passed new legislation to reduce the number of animals used for research testing by laboratories. The new law replaces a 25-year-old EU Directive, which allowed countries to use over 12 million animals in EU scientific labs every year. The European Parliament, in conjunction with the European Council, now requires national authorities to approve, search for, and use alternate research methods, and to reduce the pain animals will endure during testing. The new law now limits the use of primates in most scientific testing.
There are some exceptions, including a small number of ouistitis and macaques monkeys that will still be used in labs because of the argument that they are needed to research new drugs for neurodegenerative illnesses, such as Alzheimer's disease. Some compromise was no doubt necessary in order to appease those who felt that “successful scientific research” could be “impeded” by a law that was too restrictive. The new law, however, strictly bans the use of other primates, such as chimpanzees, bonobos, gorillas, and orangutans.
Animal rights groups around the world have praised the new restrictions, especially lauding the increase in protections in countries where only minimal animal welfare guidelines previously existed.
SB 250 "Pet Responsibility Act" Fails to Garner Enough Votes to Pass CA Assembly -- Would have Required Spaying and Neutering for Unlicensed, Impounded Pets
On August 31, 2010, the California Assembly voted to defeat SB 250, the "Pet Responsibility Act," ending longstanding efforts to pass the law, at least for the rest of this legislative session. SB 250 would have required owners of unlicensed dogs to spay or neuter their dog if the dog was impounded, and would have prohibited cat owners from allowing their unsterilized felines to stray. The American Kennel Club, along with some breeders and those who show cats and dogs, had argued that the law would have impeded their ability to breed their animals. But barring owner irresponsibility for repeated animal control violations, the measure would not have affected licensed dogs. The bill also includes exceptions for certain circumstances, such as health or medical reasons.
The Assembly's final vote was 28-40. The bill needed 41 votes for passage. An earlier vote taken on August 26th had garnered 34 votes in favor. In August 2009, the bill also failed to pass the Assembly. SB 250 had, however, passed the Senate. Just prior to this last vote, SB 250 sponsor Judy Mancuso, president of Social Compassion in Legislation, urged supporters to ask their Assemblymembers to vote in favor of the bill:
There are many jurisdictions in our state that spend more money on animal control then on veteran's affairs or libraries. This is just wrong. This is government waste at its worst. I’m sure all of you can imagine better places to put this money than into housing and killing pets! It’s simply a disgrace.ALDF strongly supported SB 250 and sent out alerts asking Californians to contact their legislators to vote for it. The bill was further supported by a number of other animal advocacy groups, government entities and animal shelter operations seeking to reduce the number of preventable animal deaths due to pet overpopulation. “SB 250 was based on successful laws in Santa Cruz and New York City,” noted Stephan Otto, ALDF’s director of legislative affairs. “It provided a reasonable, fiscally-responsible step towards reducing pet overpopulation in California. While it did not ultimately succeed this year, we must continue working to stem this ongoing travesty.”
We bring nearly 1,000,000 dogs and cats into our shelters and kill over half of them, which costs our state over a quarter of a billion dollars per year. I know these numbers are huge, and maybe hard to grasp and really understand... but please try to reflect for one moment how enormous this is and how cruel and wasteful... and we, California taxpayers are flipping the bill.
Here is how SB 250 will help reduce this out-of-control problem:
1. Prevent unwanted litters -- SB 250 does this by requiring stray dogs to be spayed or neutered (An unlicensed, unaltered, roaming dog is considered a stray).
2. Helps dogs get back home -- SB 250 does this by promoting dog licensing – if you want to keep your dog unaltered, all you need to do is license it... which dog owners should be doing already; dog licensing has been state law since 1933.
Right now in California only 21% of the dogs are licensed, this is bad for two big reasons:
a. Unlicensed dogs have much less chance of finding their way back home if they are impounded.
b. Licensing generates revenue to run the shelters, and budgets have been slashed to unreasonable amounts.
3. Spay and neuter your household roaming cat. And if you want to keep your cat unaltered, keep it inside or an enclosed outdoor area...
It appears that the fight to bring these much-needed protections to the animals is to be continued… again…next year.
GazetteXtra.com reports that because a Milton, WI, man has been accused of shooting a dog with a bow and arrow for essentially no reason at all, a state legislator has proposed a tougher law against pet assaults, making the type of crime allegedly committed a felony in the future, instead of a misdemeanor.
According to the criminal complaint, Dale A. Moore told a Rock County sheriff’s deputy that the dog wasn’t on his property and wasn’t barking, growling or approaching him when he shot an arrow into it. The case so affected Rep. Kim Hixson (D-Whitewater) that he is working to introduce “Casey’s Law,” which would “allow prosecutors to pursue felony charges in cases of unprovoked assaults on pets involving a deadly weapon.” The law is named after the Great Pyrenees, Casey, who was shot with an arrow May 21st while walking with his owner along railroad tracks in Lima Township. Hixson announced “Casey’s Law” this week, just days before Moore appeared in court on misdemeanor charges of mistreating animals and disorderly conduct. “Pets are not merely animals living among us—they are friends and family,” Hixson said in a news release announcing “Casey’s Law.” “As a state, we cannot allow cruelty to companion animals to occur in any form.”
Stricter animal abuse laws are absolutely necessary to deter this type of behavior from occurring now and in the future. Not only was Moore not provoked by Casey, it appears that Moore shot him with the arrow just because he could. At least he will have to answer in some way for what he did to Casey, who thankfully survived surgery after the injury. We need more such felony laws to protect our animals from those who act recklessly.
Suffolk County lawmakers have proposed a county registry that will keep animals away from abusers. According to longislandpress.com:
“Pet owners, animal rights advocates and even animals gathered outside the Suffolk County Legislature in Hauppauge on Thursday, August 19th, to join Majority Leader Jon Cooper (D-Lloyd Harbor) as he unleashed several animal protection bills. The main component is a database known as the Animal Abuser Registry, which will include the names of people who have been convicted of harmful treatment and torture to animals. Additional legislation would restrict those on the registry from adopting animals and prevent shelters or pet stores from letting those on the registry take a new pet home.”
Cooper states that all animals offenders would be included on the database, and “the bill will require pet stores and animal shelters to check an individual’s identify on the registry. If the shelters and pet stores do not follow the precautions they would face a fine for allowing an animal into the hands of a convicted animal abuser.” It was reported that if the law passes, Suffolk County will be the first municipality in the nation to have an Animal Abuser Registry.
The Animal Legal Defense Fund has long been an advocate of such registries. An abuser registry will answer many questions, such as whether an animal abuser lives in your neighborhood and whether your pets are safe from repeat offenders. They provide protection for our pets and peace of mind for us. ALDF has previously reported that communities have good reason to be concerned about the whereabouts of animal abusers. In story after heartbreaking story, abusers repeat their violent crimes against helpless animals, and often go on to victimize people as well. An animal abuser registry will help prevent such abuse. Hopefully this new law will pass and serve as a model for other such registries across the nation. Let’s all applaud this step!
On the heels of the deaths of seven puppies transported in the cargo hold on an American Airlines flight from Tulsa, Oklahoma to Chicago earlier this month, the Animal Legal Defense Fund has filed a petition with the Department of Transportation urging them to oblige air carriers to report on the deaths of any animals in transit, and to identify the shippers and consignees involved in their “shipment.” Currently, the Department of Transportation only requires airlines to report the deaths or disappearances of animals considered “pets”—meaning that there has been no accurate reporting on in-flight harm to dogs shipped by puppy mills or other animals transported as cargo. Senators Robert Menendez (D-N.J.), Richard Durbin (D-Ill.) and Joseph Lieberman (I-Conn.) have drafted a joint letter to the Secretary of Transportation, arguing that a “flawed interpretation of laws” has allowed animal death reporting to “slip through the cracks.” Read more...
“We hold these truths to be self-evident” begins the famous line from the Declaration of Independence. I’ve got my own version: We hold these truths to be self-evident: that one and one is two, that the sky is blue, and that abused animals should not be returned to their abusers. Yet I must live in an enlightened animal law bubble to think the last concept to be self-evident, because plenty of others do not think it so obvious, or even consider the idea at all. What am I talking about? Judges and attorneys who see nothing wrong with returning animals back to defendants who plead guilty to animal cruelty or are convicted of it after a trial, thus putting the animals right back in harm’s way again, sometimes after having recovered in foster homes from their horrific ordeals.
In what I hope does not portend a trend, twice this year in separate New York counties (Erie and St. Lawrence) judges went so far as to order animals to be returned to their abuser before trial, and unbelievably, without even having a hearing on the matter! That’s right, no inquiry as to the basis for the criminal charges supporting the animal’s seizure from the abuser, even though the law provides for such in the form of a bond or forfeiture hearing. No effort made by the court to even ascertain whether the conditions had improved since the charges were filed and were now adequate to support the return of animals to their accused abuser. Such judicial arrogance is not only legally improper, it is shockingly inappropriate.
One way to combat this is to pass legislation taking away discretion to hand back abused animals, in the form of mandatory forfeiture of all animals upon conviction, and prohibiting convicted abusers from having contact with animals, as Oregon and several other states have done. ALDF has model laws that may be used as samples for legislation here.
Surely I am not the only one who thinks returning animals to their tormenters is self-evidently wrong?
In response to recent U.S. Supreme Court decision, Congress seeks to find a narrower road to protecting animals
On July 21, 2010, the House stepped up to answer the U.S. Supreme Court’s call for a narrower version of a law aimed at stopping the distribution of “crush videos” (videotaped depictions of small animals being smashed underfoot). H.R. 5566, Prevention of Interstate Commerce in Animal Crush Videos Act of 2010, passed with a vote of 416 to 4. The House acted after an April 2010 decision by the Supreme Court in which it overturned a defendant’s conviction under a similar 1999 law, 18 U.S.C. §48, finding that it was too broad and that it could allow for prosecutions outside its intended scope. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010).
The Animal Legal Defense Fund filed an amicus curiae brief in the case, arguing that, “As Congress has found, animal cruelty is often committed so that others can watch. It is those who peddle to that market who are § 48's target.” It was also asserted that §48 criminalized depictions only when the depiction's sole expressive content was an illegal act of cruelty. ALDF argued that it was clear that the prior law made an exception for certain materials. In the introduction to its brief, ALDF noted that § 48 also recognized that there may be depictions of animal cruelty that contain an expressive message beyond the commission of acts of animal cruelty. “Consistent with Miller v. California, 413 U.S. 15 (1973), § 48 does not criminalize such depictions. If there was some expressive message, if there is content of ‘serious religious, political, scientific, educational, journalistic, historical, or artistic value,’ there is no criminal penalty. 18 U.S.C. § 48(b); Miller, 413 U.S. at 34.” The brief goes on to state that § 48 criminalized depictions only when the depiction's sole expressive content was an illegal act of cruelty.
But, alas, the high court rejected the arguments, ultimately agreeing with opponents of the law (many of whom included sportsmen and journalist groups) that it created an unconstitutional burden on First Amendment rights. The new bill will now go to the Senate for a vote. This quick reaction by the House deserves praise. Now… let’s hope this narrower bill will provide the protection the animals deserve.
ALDF’s full amicus brief can be found at UNITED STATES v. STEVENS, 2008 U.S. Briefs 769 (U.S. June 15, 2009).
Today, the Spanish region of Catalonia voted to ban bullfighting, a cruel blood “sport” long entrenched in Spanish culture. The ban—the first-ever in mainland Spain—passed with a vote of 68 to 55, and will go into effect in January 2012. It’s an incredible victory for animals and for the dedicated activists and legislators in Spain who have tirelessly contended for many years that la tortura no es arte ni cultura—the fact that bullfighting has a long cultural history in Spain does not excuse the barbaric cruelty to bulls who are tortured and die incredibly painful, slow deaths in bullfighting rings.
As the New York Times reports, the historic vote comes at a time when bullfighting’s popularity is waning.
The decline is particularly sharp in Catalonia, home to some of the country’s first bullfighting societies and some of the country’s leading bullfighters. The main city, Barcelona, once operated three bullrings to cater to a fanatic public. Now, there is now just one bullring, La Monumental, which attracts as few as 400 season ticket holders.Prior to today’s vote, PROU! (Enough!), a coalition of Spanish animal protection groups, collected 180,000 signatures in support of their proposal to modify Catalonia’s Animal Protection Law to ban bullfighting. The Animal Legal Defense Fund lent our support by asking the 1,700 members of our own network of legal professionals across the U.S. to endorse their campaign, which was also endorsed by research scientists, psychologists, criminologists, and human-service professionals concerned about the link between violence toward animals and violence toward humans.
Today’s vote is an inspiring example of legislators rejecting outdated cultural mores and pushing laws forward to reflect a more modern understanding of our duty to protect animals from suffering. As the Times story further reports,
“This is not an attack against Spain but evidence that we, Catalans, support and share more advanced values with the rest of Europe,” said Josep Rull, a lawmaker from Convergence and Union, a Catalan party. “We can be proud to have demonstrated today that Catalonia has a more dignified and respectful society that believes in eliminating the torture and suffering of animals.”Even though you likely don’t speak Catalan, no translation is necessary to appreciate the joy of activists in this video of the moment of the vote.
Non-Californian egg-laying hens are included in a new law allowing them to stretch their wings if their eggs make it to market in the Golden State but they still must wait until 2015 to gain this new freedom...
Although not the first state to regulate the size of cages for hens (other states had previously passed laws regarding bovine and swine crates), California is the first to include chickens in the banning of small cages and in the regulating of their living spaces. Although it took several years and lots of work to get Proposition 2 on the ballot in California in 2008, it passed with over 63% approval. It is clear that the people of California want better treatment and living conditions for farmed animals. However, Prop 2 will not take effect until 2015.
This newest provision, signed into law last month by Governor Arnold Schwarzenegger, and introduced by state assemblyman Jared Huffman, assures that Proposition 2's protections will apply to all eggs sold in California, even if the eggs are laid out of state. The 2015 deadline also applies to the new law, and is again most likely a compromise with farmers who have maintained that they need adequate time in order to comply with the new provisions requiring them to have larger cages in which the hens can stand and turn around. But nearly five years still seems like a long time for the hens to have to wait. Here’s hoping that this law will push farmers all over the country to get the larger crates even sooner than expected.
Due to South Dakota’s consistent low rating in ALDF’s annual State Animal Protection Laws Rankings, I read with interest a June 23, 2010 opinion that came down from the Supreme Court of South Dakota: State v. Fifteen Impounded Cats. While the Court’s ultimate ruling is a desirable one, I take issue with the underlying reasoning used to get there.
The facts are simple. On a hot August night in 2009, Patricia Edwards was in the midst of a substantial road trip with 15 cats (and most of her other worldly possessions) packed in her car. She stopped at a convenience store in Pierre, South Dakota, where a police officer responded a short time later to a complaint “about a car parked in the parking lot occupied by a woman and a large number of cats.” When the officer rolled up, Ms. Edwards almost backed her car into the patrol officer’s vehicle. After a chat with Ms. Edwards, the officer noted that the car was crammed full of boxes, coolers, blankets, two-liter bottles full of water, books, cooking utensils, a big bag of cat food and a large and exceptionally dirty litter box. After photographing these conditions, the officer also noted that “there was a strong odor of ammonia emanating from the car.” Ms. Edwards was not in possession of any kennels, carriers or other means to confine the cats while she drove. Moreover, she was unable to provide vet records documenting that any of the cats had been spayed or neutered—offering instead the “dog ate my homework” excuse that the cats themselves had destroyed those records.
Based on his observations of Ms. Edwards’ car, along with his concern over her inability to safely operate her car with fifteen free-roaming cats in the passenger compartment, and his concern for the welfare of the cats, the officer impounded the cats and placed them with a local shelter. The officer did so under authority of SDCL § 40-1-5, which states that:
Any peace officer, agent of the board, or agent or officer of any humane society finding an animal inhumanely treated, as defined in § 40-1-2.4, shall, pursuant to a warrant or court order, cause the animal to be impounded or otherwise properly cared for, and the expenses of such impoundment or care shall be a lien on the animal to be paid before the animal may be lawfully recovered.Six days later, the trial court held a hearing on the propriety of the officer’s conduct and ultimately entered an order ratifying the warrantless impound of the cats as justifiable under the exigent circumstances exception as codified in the above-quoted statute.
However, a warrant or court order is not necessary if the animal is severely injured, severely diseased, or suffering and any delay in impounding the animal would continue to cause the animal extreme suffering or if other exigent circumstances exist. If any animal is impounded or subjected to other action under this section without a warrant or court order, the officer or agent shall subsequently show cause for the impoundment or other action to the court, and the court shall issue an order ratifying the impoundment or action; or, if sufficient cause for the impoundment or action is not shown, the court shall order the return of the animal to the owner or other appropriate remedy. (Emphasis added).
In an effort to secure the return of the cats, Ms. Edwards appealed the court’s finding, arguing that these 15 cats were not neglected or otherwise cruelly confined and that the officer’s decision to impound them was a violation of her constitutional and statutory rights.
The Chief Justice of the Court wrote the majority’s opinion and held that the officer’s seizure of the cats was properly done as an exigency as contemplated under SDCL § 40-1-5. So far, so good. However, the majority went on to rule that the exigency was the risk of dangerous driving conditions (what with the 15 cats roaming around inside the car) rather than the conditions of confinement in what is otherwise an obvious animal hoarding case. In so holding, the Court took particular pains to emphasize the limited scope of the opinion by stating that, “In reaching this conclusion, the distinction is emphasized between the safety risk in this case and that in more typical situations involving the transportation of a pet. In that regard, the significant factors are the large number of animals involved here and the fact that they were seen running loose and climbing in a jam-packed vehicle and clearly interfering with the driver’s ability to see and focus on her driving task…”
Now, to be fair, the majority may have been paying homage to the trial court’s underlying rational for its ruling. However, the factual record was clear and undisputed—recall that there are photographs—not to mention the: strong odor of ammonia; 15 cats crammed in an already packed vehicle; hot August weather; lack of any vet records; a less than credible explanation for the lack of vet records. These are the relevant factors that triggered the application of SDCL § 40-1-5, not the corollary driving hazards that come with these conditions.
Nevertheless, I was pleased to read Justice Konenkamp’s concurring opinion wherein he succinctly defined the issues as:
(1) did the officer have “sufficient cause” to believe that a cross-country trip with fifteen cats loose in an over-packed car was inhumane treatment of animals? and (2) were there exigent circumstances justifying impoundment of the cats without a warrant or court order? The only statute cited to justify the officer’s seizure and the circuit court’s ratification of that seizure was SDCL 40-1-5, dealing with mistreatment or neglect of animals. Whether pedestrians, motorists, or the general public may have been endangered is not germane to these questions. The circuit court found that the “living conditions of the animals were neglectful,” and focused on “visibility” and “safety.” If safety was the basis for the decision, then only the safety of the cats was subject to inquiry.Bravo, Justice Konenkamp! While it is heartening that the majority reached the correct result in this case (e.g., the impound was lawful), it is disappointing that they did so for the wrong reason—by analyzing this case from the “traffic safety” perspective rather than from the humane perspective.
Three years after the National Research Council (NRC) issued its landmark vision and strategy for toxicity testing, what comes next? This was the question that was asked at the June 21, 2010 “The Future of Chemical Toxicity Testing in the U.S.: Creating a Roadmap to Implement the NRC’s Vision and Strategy” symposium at the National Press Club in Washington, D.C. It was at this historical event that lawyers, regulators and policy makers converged to discuss the necessary steps to ensure that chemical testing protects public health, the environment, and animals—using twenty-first century toxicology.
Drawing on advances across a range of disciplines—such as genomics, bioinformatics, systems biology, and computational toxicology—the NRC envisions a new paradigm for chemical testing that is not only more predictive of adverse effects in humans, but also faster and cheaper than current models, and less dependent on whole-animal-based testing methodologies. This transformation will not happen overnight: the NRC recognized that implementation of its recommendations would require a substantial commitment of resources, would demand the involvement of multiple organizations in government, academia, industry, and the public, and could require a decade or two to achieve.
The Environmental Protection Agency (EPA), in particular, has played an important role. In addition to commissioning the efforts that culminated in the NRC vision report, EPA, through its Office of Research and Development, entered into a five-year Memorandum of Understanding with two National Institutes of Health in an effort to “guide the construction and governance of a detailed research strategy to make the NRC Committee’s vision a reality.” Last year, EPA issued its Strategic Plan for Evaluating the Toxicity of Chemicals, which the Agency characterized as “a blueprint for ensuring a leadership role for EPA in pursuing the directions and recommendations presented in the 2007 NRC report.”
The Animal Legal Defense Fund, Center for Animal Law Studies at Lewis & Clark, Johns Hopkins Bloomberg School of Public Health, and the Environmental Law Institute were pleased to present the June 21 symposium, which featured a keynote presentation by U.S. Environmental Protection Agency Assistant Administrator Stephen A. Owens and convened a range of legal, policy, and scientific experts to discuss:
- The status of implementation of the vision for chemical toxicity testing three years after the NRC report was issued.
- What the federal agencies are doing—and planning to do—to ensure implementation of the NRC vision.
- Stakeholder perspectives on implementation across a range of viewpoints: industry, public health and environmental protection, the academy, and animal welfare.
- Where implementation of the NRC vision fits into a landscape of potentially broad legislative reform for toxic substances, harmonization with Canadian requirements, and scarcity of financial resources.
Today, the Animal Legal Defense Fund, along with several other groups, filed suit in federal court against BP for burning critically endangered sea turtles in the Gulf of Mexico, in violation of the Endangered Species Act and other federal laws.
As part of BP’s efforts to contain the massive oil spill that continues to devastate the Gulf of Mexico, BP is using “controlled burns” whereby oil is corralled by fire resistant booms dragged through the water by shrimp boats and then lit on fire. Endangered sea turtles, including the Kemp’s ridley, one of the rarest sea turtles on Earth, are caught in the gathered oil and unable to escape when the oil is set ablaze.
Chai weaves from side to side, mindlessly shifting her massive 8,550 pound body to her right foot then back to her left foot… over and over… day after day. The thirty-one-year-old Asian elephant was born in the wild in Thailand, then captured as a baby and brought to the Woodland Park Zoo in Seattle, Washington.
The hard-packed surface she stands on has caused chronic, extremely painful injuries to her feet and joints. She has been artificially inseminated at least fifty-seven times, and has suffered multiple miscarriages resulting in physical and psychological pain.
Yet the City of Seattle uses taxpayer money to fund this institutionalized abuse.
That's why the Animal Legal Defense Fund is representing two outraged citizens who are filing a lawsuit today against the City of Seattle. The lawsuit aims to stop the City's unlawful use of taxpayer dollars to support the Woodland Park Zoo's reckless and illegally cruel treatment of its elephants.
As a result of inadequate facilities, abusive management practices, longstanding intentional neglect, and breeding practices in callous disregard for elephants' welfare, the Zoo's elephants Bamboo, Watoto, and Chai suffer from severe and chronic foot and joint injuries, unexplained physical trauma and bleeding, and sustained psychological harm. Chai's daughter, Hansa, died in 2007 when she was only six years old as a result of the Zoo's practices. A fourth Woodland Park Zoo elephant, Sri, who is currently on loan to another zoo's breeding program, has endured the horror of carrying a full-term deceased fetus in her womb for over four years.
Help win justice for Chai, Bamboo, Watoto and Sri! Here are three ways you can help right now:
Alaska: Passing almost unanimously through both chambers of the Alaska Legislature, a landmark bill is currently awaiting the signature of Alaska’s governor. This legislation makes a felony penalty available on first offenses of aggravated cruelty; makes the sexual assault of an animal a separate crime; and makes animal cruelty an aggravating factor at sentencing. ALDF provided detailed legislative analyses on the state’s animal protection laws for the bill’s sponsors, and submitted testimony in support of the legislation.
New York: A new animal abuser database bill was recently introduced in New York, bringing the total number of abuser registry bills introduced across the country this year to four. New York has another pending registry bill as well. California and Louisiana are the other two states that had abuser registry bills introduced so far this year.
Tennessee: A new “Good Samaritan” law provides immunity from civil liability to rescuers, veterinarians and others who make good faith attempts to assist stray animals that are sick or injured.
Arizona, West Virginia, Oklahoma, and Minnesota joined the growing list of states and territories (now numbering 18) that have enacted laws expressly authorizing courts to include animals in domestic violence protective orders.
- SB 1277, a bill to create an animal abuser registry, failed to advance last week due to exorbitant cost estimates provided by the California Department of Justice (DOJ). While other states considering abuser registry legislation have compiled fiscal estimates ranging from $19,000 to $60,000 for costs of implementation of such registries, California’s DOJ, in stark contrast, submitted estimates to the Senate Appropriations Committee ranging from $750,000 to $2 million. Owing to legislative deadline constraints, ALDF and the bill’s sponsor were unable to successfully challenge these figures. We hope to see the legislation reintroduced next year.
- SB 1417 recently passed the Senate and is currently pending in the Assembly. It seeks to establish new requirements for the formation of SPCAs and appointment of humane officers, including an arbitrary 5-year-wait before any new SPCA could appoint humane officers to enforce California’s animal protection laws – regardless of whether a humane officer had completed all required training and background checks. ALDF opposes SB1417 as unnecessary, and believes that its 5-year-wait is both unwarranted and unprecedented. Such lengthy waits will effectively stop the formation of new SPCAs who are solely interested in enforcing the laws. ALDF believes it is in the best interests of California’s animals to have more humane officers, not fewer. If you live in California, please contact your Assemblymember today and ask that they vote to oppose SB 1417.
Kentucky: Despite being championed by the Kentucky Veterinary Medical Association, HB 238, a bill which sought to simply correct a law enacted last year that inadvertently stripped the ability of veterinarians to voluntarily report suspected cases of animal cruelty, was not passed by the Kentucky Legislature. For more background on this continuing fiasco, see this earlier blog post.
Unfortunate, but not unexpected, is how I would describe the ruling just handed down by the Vermont Supreme Court in the case of Shadow the murdered beloved family dog, also known as Scheele v. Dustin, ---A.2d---, 2010 WL 2015270 (Vt.). As I discussed in this space last December when the case was submitted to the Court, having the Court actually ignore legal precedent that family pets are property and award Denis and Sarah Scheele damages based on their loss of companionship and emotional distress would be “an unexpected victory.” And I was right, darnit.
However, all is not lost. The opinion shows that the Court was clearly bothered by the limitations of Vermont’s current precedent regarding animals, by which it felt it was bound, and created some great language in that regard, such as: “…we are not blind to the special place they hold in our lives. Indeed, pets occupy a legal realm somewhere between chattel and children.” The Court also stated “we have suggested that the emotionless economic calculus of property law may not fully compensate a mourning pet owner and that ‘there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner’” quoting from it’s own ruling in Goodby v. Vetpharm, Inc., 974 A.2d 1269 (VT 2009) (in which the Court considered defendant’s negligent behavior, as opposed to the intentional behavior at issue in Shadow’s case).
Perhaps due to that chafing caused by existing precedent, the Court did leave open some doors for future efforts to push the law forward in terms of changing the legal status of animals and properly recognizing their value to their guardians. For instance, the Court specifically noted that when a person has suffered from an intentional and malicious tort, “punitive or exemplary damages are the proper remedy…” but stopped short of deciding whether the defendant’s conduct in Shadow’s case rose to the level of malice required to support a punitive damages award, only because the parties here did not submit that claim to the Court. In dicta, the Court made a point of citing with approval other states that have enacted laws providing the kind of recovery sought by the Scheele’s, and also noted the Vermont legislature’s willingness to pass a law providing for “damages for the intentional destruction of certain classes of property” like trees and stated there was “no reason they could not do so here.” The Court didn’t have to say that, the opinion would have been complete without it.
So the long march to improve the legal status of animals continues and ALDF will be there out front, but sadly we have lost a soldier along the way. We received news this morning that Sarah Scheele passed away after a short battle with cancer, just days after the ruling issued in their case. We remember her in a separate tribute here.
Confrontation Clause Implications of Admitting Veterinary Records Under the “Business Records” Exception to the Rule Against Hearsay
At the risk of someone inviting me to “get a life,” I have to admit that I was reading a couple of appellate opinions on a Friday night while my wife was away. I should have gone sailing, but the winds were light and our two dogs and two cats all seemed glad that I was home. So, during my raucous, bachelor evening, a recent Texas case caught my eye – Holz v. State, 2010 Tex. App. LEXIS 2017.
In Holtz, the defendant appealed her animal abuse conviction (for failing to provide food, water, or shelter to an approximately eight-year-old dog), in part, by claiming that the trial court violated the Sixth Amendment’s Confrontation Clause when it admitted into the evidence two sets of reports compiled by a veterinary technician and the lead veterinarian assisting law enforcement with a criminal investigation against the defendant. Neither the vet nor the vet technician was available to testify at the trial. The state offered these reports under the “business records” exception to the rule against hearsay and the defendant objected, claiming that the records were “testimonial” and therefore barred under Crawford v. Washington, 124 S.Ct. 1354 (2004) as a violation of her right to confront the witnesses who generated the reports. I know, this is fascinating stuff, especially when one takes it all in on a Friday night… But, I digress.
The general rule is that business records do not raise a Crawford issue, because, by definition, they have been created for the administration of an entity’s affairs and not for the purposes of establishing or proving a fact at trial. Accordingly, they are generally viewed as not being testimonial in nature and as such, there is no constitutionally right to confront or cross-examine the non-testimonial declarant who generated the business records. However, if the business record at issue was “prepared specifically for use at … trial”, then we have a problem. See Melendez-Diaz, 129 S.Ct. 2527 (2009).
In Holz’s case, because the vet and vet tech were involved in the seizure of neglected animals for the purpose of triaging, diagnosing and treating the victims animals, the appellate court found that these reports were akin to medical records in assault cases (e.g., records compiled by E.R. staff for diagnostic or medical treatment purposes) and held the vet records to be non-testimonial. As such, they qualified under the business records exception and did not trigger a Sixth Amendment Confrontation Clause issue. So, the defendant lost her appeal.
What if, however, the vet and vet tech in Holz’s case where part of an “animal crimes task force” and they regularly met with police to advise and guide investigations in cases where issues of forensic veterinary medicine commonly came up and the cops needed their expert advice to work the case? That issue gets a bit murkier—a point especially well-illustrated in an Oregon case where the statements that a child abuse victim (age 3) made to a medical provider who worked at a child abuse assessment center - where that center enjoyed a close working relationship with law enforcement - were found to be testimonial and therefore subject to Crawford. State ex rel. Juvenile Department v. S.P., 346 Or 592 (2009).
While I generally agree that a well-coordinated response to criminal conduct is the preferred model (the importance of which is even more obvious when dealing with cases where the victims can’t physically testify – not to mention, in the S.P. case, was legally incompetent), one needs to be mindful of the collateral consequences of forming formal partnerships with law enforcement when it comes to Crawford issues. This is especially true with the ever-growing list of jurisdictions fielding animal cruelty taskforces that include veterinarians. Prosecutors play with fire when they fail to consider that the “testimonial” nature of hearsay statements generated by such task force veterinarians (where the declarant is not available at trial) is an open invitation to have key evidence excluded.
In light of recent comments, questions, and Facebook posts, I thought I’d take a moment to clarify some misconceptions about the Supreme Court’s opinion in United States v. Stevens. I appreciate and sympathize with the anger many people feel about the decision, and I wish the Court’s decision had gone the other way. But I think we owe it to ourselves to avoid feeling anger and despair unnecessarily. And misreading the Stevens case causes unnecessary despair. The real plight of animals is horrific enough without subjecting ourselves to the added stress that results from an alarmist description of the Stevens case. It’s important to honestly assess the case and what it did and did not actually say.
First, the Supreme Court did not hold that committing animal cruelty is protected by the First Amendment. Criminal animal cruelty was illegal before Stevens and it remains illegal after Stevens. The case had almost nothing to do with the legitimacy and enforceability of the local, state, and federal laws that protect animals. Rather, the case focused solely on the government’s ability to prohibit the depictions of cruelty themselves. Someone who abuses animals cannot avoid criminal liability simply by videotaping that cruelty. For example, dogfighters who videotape fights can still be prosecuted under the criminal cruelty laws for dogfighting, even though they can no longer be prosecuted for selling the videos, at least for now. Undoubtedly, Section 48 was an important tool for stopping animal cruelty that was produced for the sole purpose of being sold, and the Court took away that tool. But it did not equate animal cruelty itself with free speech.
Second, the Supreme Court did not hold that crush videos or animal fighting videos are protected by the First Amendment. Instead, the Court specifically reserved that question, holding only that Section 48 as written was too broad and extended to other kinds of speech that are protected. A law that criminalized the commercial creation, sale, or possession of just crush videos or animal fighting videos might still pass constitutional muster, and it is clear that that is the way forward for the animal protection movement. The Animal Legal Defense Fund and other animal protection groups are urging Congress to pass a narrower law that focuses on these extreme forms of animal cruelty.
Third, the Court did not say that preventing animal cruelty is an unimportant goal. The Court could have held that the prevention of animal cruelty is not a compelling government interest, throwing the legitimacy of hundreds of animal protection laws into doubt. In fact, that’s what some of us feared would happen, especially after the lower court based its decision in part on those grounds. A holding from the highest court in the land that animal protection is less than compelling could have been devastating. But the Court did not go that route, despite the clear opportunity to do so.
My point is not that we aren’t entitled to feel upset or disappointed by the Stevens decision. We are. But we shouldn’t burden ourselves with an unduly pessimistic view of the state of animal law. I see Stevens as a setback, but it’s also an important marker of how far we have come: not only did we win a vote from Justice Alito, but we also convinced the other eight Justices to leave open the possibility that a more fine-tuned law could be constitutional.