Time Flies, Yet the Wheels of Justice Grind Slowly

Posted by Scott Heiser, Director of ALDF's Criminal Justice Program on February 7, 2011

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:

  1. 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.

  2. 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.dog hoarding
    Where aerial footage is not available, more traditional options such as unannounced home visits or the occasional neighborhood canvas are worthwhile.

  3. 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.  

It is hard to believe that it has been four years since the Bemis/Trapani case started, but it is nice to see that the appellate court rejected all of the defendants’ arguments on appeal. Here’s hoping that some of the lessons learned in that case will help other prosecutors with their current and future casework.