Maiming Two Huskies as well as the 6th Amendment?

Posted by Geoff Fleck, ALDF Attorney on February 6th, 2012

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:

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."   

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.

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.

Peacefully Coexisting with Coyotes in Claremont, California

Posted by Stephanie Ulmer, Guest Blogger on February 3rd, 2012

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.

Snickers the Service Dog is Back Home After Running Afoul of Aurelia, Iowa's Ordinance Banning Pit Bulls

Posted by Stephanie Ulmer, Guest Blogger on February 1st, 2012

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. 

"Beefing Up" Compassion

Posted by Joyce Tischler, ALDF's Founder and General Counsel on January 30th, 2012

“Compassion, in which all ethics must take root, can only attain its full breadth and depth if it embraces all living creatures and does not limit itself to mankind (sic).”
~Albert Schweitzer

I consider myself a compassionate person. Yet, I know that there are situations in which I have let myself and others down, where the limits of my compassion have been reached. With that knowledge, I’m working on enlarging and strengthening my own compassion.

I have friends who are extremely compassionate toward other human beings. I greatly admire these people and the many ways in which they live out their values: they deliver meals to homebound seniors, mentor at-risk youth, reach out to people suffering due to financial hard times, foreclosure, homelessness, physical illness, depression, schizophrenia… The list is a long one.

These friends respect what I do for nonhuman animals and often ask about my work. Many of them live with companion animals, dogs or cats whom they consider to be members of their families. We share stories about our beloved dogs and cats and show photos.

But, in tell-tale moments, my friends will mention a delicious turkey sandwich they ate at a local deli, or the pot roast they had the other day. I wince and wonder: why the disconnect?* Why does compassion for humans and our companion animals not extend to compassion for the animals called “food?” (* I am equally saddened when an animal rights activist shows a lack of compassion for humans.)

I see a commercial on TV: a restaurant is advertising its steak and a photo shows a large pinkish-brownish piece of cooked flesh on a plate. In order to find that appealing, I would have to ignore the fact that the steak used to be a living, breathing steer. How can I? I have stood in slaughterhouses and watched, in horror and sadness, as steer have met their deaths. Slaughterhouses are cold, harsh, windowless cement rooms, with terrified animals, putrid smells, rivers of blood, hanging corpses; they are where violent death happens. I don’t want to be a part of that. I don’t want to bring about that death. These animals have done nothing to me to warrant such terrible treatment. They are helpless victims and I am powerless to stop the never-ending assembly line that spells their demise. Yet, I cannot, in good conscience, support a system that does something so inherently wrong to other living beings. The only choice I have is to opt out, and to speak out on behalf of the victims.

When I see the steak, I see the cow. When I see the drum stick, I see the chicken. The two are inseparable; that is how I define compassion.

The legal work that we do at Animal Legal Defense Fund can be hard-edged. We see animal suffering on a daily basis and we must turn our pain and anger into rational action as we assist in cruelty prosecutions and file civil lawsuits against animal abusers. But, at the very center of our work is a deep and abiding compassion that embraces both human and non-human animals.

Compassion is the wellspring from which all that we do arises. It is what guides our work to build a more loving world, by extending the limits of our own compassion and encouraging others to do so. Compassion is the duty from which we ought not to shrink. While writing this, I found a wonderful quote that gives me hope for the future. I choose to believe that the hearts of my fellow humans will open to embrace the lives of all creatures, that the current disconnect will not always and forever be the rule.

“For me, forgiveness and compassion are always linked: how do we hold people accountable for wrongdoing and yet at the same time remain in touch with their humanity enough to believe in their capacity to be transformed?”
~Bell Hooks

P.S. If you are reading this and wondering how to put compassion into action, please consider going meatless for one day per week. It’s a small step, but significant. 

California: Protect Homeless and Lost Animals

Posted by Stephan Otto, ALDF's Director of Legislative Affairs on January 25th, 2012

In an attempt to reduce California’s deficit, Governor Brown has proposed a substantial weakening of the Hayden Act, including sections that require shelters to care for homeless and lost companion animals for up to six days before euthanizing them. This holding period is crucial to allowing lost dogs and cats to be reunited with their families or adopted when they are unclaimed or abandoned.

Former State Senator Tom Hayden's message to Governor Jerry Brown urges the Governor to leave intact the law he wrote in 1998.



Please take a moment today to contact Governor Brown and your state legislators! Urge them to oppose any legislation that will remove existing protections for homeless and lost companion animals.