DEFENDING ANIMAL LAW OFFENSES IN THE U.S.
Protect Your Rights in Cruelty, Neglect &
Dangerous Animal Prosecutions & Forfeitures
What Every Animal Owner and Defense Attorney Should Know
By Jon Squires
If this author can prevent cruelty to just one wrongly accused owner-guardian involved in an animal offense prosecution, and/or save just one animal from being seized and needlessly going into a “safe-haven” from which it never returns, never being returned to its grief stricken family, I will have met one purpose of this publication.
If this author can promote healthy discourse, no matter how heated, about the legal status of animals, government taking and forfeiture of animals, and the violation of constitutional and statutory rights of owner-guardians through overzealous animal legislation and the enforcement of those regulations, my second goal will have been met. There can be more than just one victim in these circumstances, including the animal owner-guardian.
This is not intended as legal advice, I am not an attorney, and you should always consult with an attorney before taking any action suggested here. If you cannot afford an attorney, and you are charged with an animal offense providing for possible jail time, the court will appoint an attorney to represent you at your first appearance before the court if you ask for a public defender.
There is a certain population of individuals who treat sentient creatures, who are capable of not only receiving love but giving it back, as inanimate objects such as a chair to be used to the end of its useful life. There is also a smaller group of persons who actually delight in witnessing or perpetrating suffering of animals. But these individuals are not the most common and are not the target of this article.
Often people charged with animal crimes are well-meaning citizens who for whatever reason find themselves falsely accused of an animal offense. They may be overwhelmed, unable to ask for help, or unable to see the reality of their life and/or a danger it may pose for their animals. Sometimes the animals may be in fact in more danger from seizing authorities, than in the home they live in.
These well-meaning individuals should not be made to answer as criminal defendants. They may never have received a notice of a deficiency in their animal care or control or current regulations. Their actions are not knowing, and they have not formed any criminal intent whatsoever. However, even here, the public will form a much narrower view of both the “victim” and the accused than in much more serious crimes against the public. Thus, fairness in these animal cases may be compromised.
1 Disproportionate Emotional Response.
For attorneys and persons defending animal offense charges, the first thing to be aware of is that cases involving animals kindle a disproportionate emotional response in the public, witnesses, law enforcement, animal control, prosecutors, magistrates and jury. This emotional response is more profound and pervasive than those not directly involved with animal offenses and prosecutions would realize. In animal welfare prosecutions, the accusation of hoarding, neglect, or cruelty is generally enough to bestir this extraordinary emotional response. Such a prejudicial reaction would be denied because the persons and professionals involved in these prosecutions, and often regularly involved with major criminal and violent offenses, do not believe they have been influenced by the subject matter (or would not admit it).
Do not fall into a comfortable attitude that you know what you are doing in defending these cases unless you specialize in animal offenses, or that in an animal welfare prosecution the defendant will be treated as any other criminal. Immediately it will be an uphill battle to neutralize the exceptional emotional bias and obtain a successful outcome in these cases because the defendant has already been convicted in the court of public opinion, well in advance of his first appearance before the factfinder. These cases are not just about law and fact but in gaining the court and jury’s sympathy not only for the client, but for the animal as well.
Also be mindful that the prosecution of an animal offense may be orchestrated by and between an animal rights group, local animal care and control, law enforcement, prosecutors, neighbors and the media. Large animal rights groups such as HSUS, ASPCA, ADLF and PETA may be directly or indirectly involved in these prosecutions and they have a large legal and public relations team at their headquarters. Some large groups have nationally-advertised campaigns and policies reflecting their attitudes.
They lobby state and local lawmakers, veterinarians, and use Hollywood and other star power increasing their use of the media and television, and supporter base, to secure their attitude and interests as they see fit. For instance, no matter how someone feels about farming and hunting, certain animal rights groups believe certain practices to be cruel and have made it clear that they will do all that they can to make certain traditional farming and hunting practices a crime. If animal husbandry practices don’t comply with their model and ideas, an unknowing farmer whose family has farmed in the same way for generations may face a criminal charge and prosecution.
No one who owns an animal these days is immune from being charged with an animal-related offense as the laws concerning animal offenses become more expansive and harsh annually. For example, in one cruelty case the defendants were found guilty of animal cruelty because one veterinarian opined that a horse must have felt discomfort as a result of poor dentition. This speculative testimony in the lower court resulted in the state court of appeals affirming a cruelty conviction on the basis that discomfort is by definition the equivalent of unnecessary pain and suffering. One can only imagine how this opinion could affect future law enforcement and charging decisions in cases involving animals.
When people are charged with an animal offense, these cases are very well publicized long in advance of a trial for a number of different reasons. For law enforcement and prosecutors, publicizing such cases leads to deterrence in local communities so that citizens know that such people are being investigated, caught, convicted and/or jailed.
Another and very important reason for publicity, however, is that it tends to be a purse-opener for persons and animal rights organizations involved in these prosecutions. Public donations of food, supplies and money inundate local non-profit animal shelters when animals are seized and impounded. It is difficult to imagine that one has not seen ads by the HSUS or ASPCA, featuring Hollywood or Nashville celebrities asking for $20 per month for neglected or abused animals. Many people prefer opening their wallets for sad helpless critters rather than for starving helpless children or human disaster relief.
These are difficult cases to defend due in part to the fact that such cases receive a high degree of publicity and you are essentially doing battle against big money and powerful special interest groups. While a gag order might be difficult to get in these low level offenses, an untainted jury pool will be even more difficult. Not only during and after the court case but prior to charging decisions, local and national animal rights groups, humane officials and even prosecutors circulate press releases announcing the name and location of the defendant and details of the investigation to local, regional and sometimes national media. Neighbors give damaging interviews.
Also in animal offense prosecutions, various animal rights websites publish the case and defendant’s name in advance of, during and after prosecution, making those websites a kind of sex offender database vilifying the defendant. You and your client need to steel yourselves against hate-mail, abusive e-mails and telephone calls, hate bloggers, picketing, courthouse threats, criminal damage to homes and vehicles, and even injury and death threats which commonly accompany hoarding, cruelty or neglect investigations, prosecutions and convictions.
As one lawyer in the UK who regularly represents clients in animal offenses has stated, “There seem to be more nutters concerned with animal welfare than with child abuse or for ordinary criminal offences by the honest criminal involving dishonesty or violence or both.” Many challenges to and appeals of a conviction do not proceed in these cases as a result of the emotional stress, financial strain, and abuse of the defendant and/or his family by the public and animal rights activists.
2 Animal Law Offenses.
There is a lot of money thrown into animal welfare by special interest groups in drafting and lobbying for proposed animal laws and to secure their interests. There is a lot of money being invested for changes to those laws in response to verdicts where defendants prevail, to plug the hole in a law that permitted defendant to be acquitted. The animal laws are in a constant state of flux and penalties for violations are becoming more harsh, so it is important to recognize the applicable statute at the time of the offense. Sometimes the changes are subtle but may be critical to your defense.
What is clear is that animal laws are drafted with shrewdness by these organizations and one sentence can create many offenses out of a single action. Any combination of the verbs or adjectives within that section can amount to a single offense. Many offenses can be charged based upon the same action by the defendant. Furthermore, it is not only action but failure to act that can result in a complaint and prosecution.
The intention to cause cruelty is not required to be proved by prosecuting authorities – only that unnecessary pain and suffering was caused whether intentional or through neglect or omission, and by not only the owner but by any other person having a duty of care to the animal. In Washington, a single animal offense can be charged as two offenses – animal cruelty and/or unsafe confinement. There are certain local jurisdictions that believe that an unsafe confinement offense should be charged criminally for a potentially dangerous or dangerous dog matter rather than giving the owner notice and initiating an administrative or civil proceeding. Further, Washington State has not remedied the situation whereby an owner-guardian can be charged criminally with unsafe confinement of the animal if an animal’s offending conduct occurred within the animal’s confinement, or outside of the confinement and off of the property of the owner. One problem is that “confinement” is not defined in Washington and it can mean just about anything, allowing law enforcement to take great liberties in charging decisions. Thus, the criminal charge of confining an animal in an unsafe matter can be used against an owner-guardian in just about any scenario envisioned by law enforcement and prosecutors, presumably even if the owner’s pet goldfish jumped out of its bowl and died on the floor.
Or consider the owner-guardian who pulls his puppy too hard on a leash. To expect law enforcement and prosecutors to use common sense and restraint in filing charges for unsafe confinement is to expect pigs to fly. What’s next? A fisherman being charged with animal cruelty for killing the worm?
Please research the additional punishments and forfeitures which may (and must) be imposed upon the defendant in the event of a conviction. Generally speaking, the animal must be in the possession of law enforcement or humane officials to be ordered forfeited. If the animal is given back to defendant prior to trial, the court may not have jurisdiction over the returned animal anymore. If prosecuting officials offer to give the animal back to defendant prior to a criminal trial, it is important to commit that agreement to writing and file it with the court so the court has notice that there has been an agreement to return the animal. Moreover it is more difficult to allege animal cruelty when an animal has been returned to the person accused of the offense. Yet some decisions in these emotionally-charged cases defy human reason.
3 Right to Remain Silent and Knowing How to Remain Silent.
Remaining silent does not take much know-how. It simply means shut up, unless you like getting your meals in jail. Whether approached on welfare, cruelty or dangerous animal issues, it is wise not to say anything and exercise the right to remain silent. Seemingly innocent questions by those charged with enforcement of animal offense laws, including by an animal control officer who appears sympathetic, can lead to criminal charges.
The usual procedure by animal control employees who deal with the majority of animal offenses is upon the receipt of information to visit the person and attempt to gain entry to the property to obtain evidence and interview that person. The person is led to believe at this stage that it is not a particularly serious matter, and that a little cooperation would be appreciated to clear it up. Later that person may find that he is receiving a summons requiring him to appear and defend himself in a criminal action.
Although these offenses can result in jail time and stiff criminal penalties, often no Miranda warning is given to the person being investigated and questioned so the person does not know he is being investigated on a criminal charge. Where a person has either refused animal control entry or has refused to answer their questions, animal control officers may return with a criminal search and seizure warrant accompanied by law enforcement. Exercise your right to remain silent at all times. I cannot emphasize this enough.
Some animal offenses are being charged and prosecuted as felonies rather than as misdemeanors or infractions. A criminal conviction for an animal offense can result in unreasonably harsh punishment including long jail time, a criminal fine and restitution.
Defending these cases is time-consuming if it is done effectively.
Unfortunately many animal owner-guardians end up with a public defender who is overworked and will spend just a few hours on a case, or encourage his client to accept a plea offer because the attorney has a flat fee agreement with the municipality for a few hundred dollars per case. It can be a big mistake if charged with an animal offense to use a public defender, however a private attorney can be very expensive. In making the decision to use public or private counsel be very aware that these charges and a conviction can be devastating. You may lose your reputation, job or career, home and property, family and friends, or all of these. You may also irreversibly lose your pets or other animals.
It is common for animal offense defendants to suffer from severe depression, PTSD, and even suicide ideation. These are emotionally-devastating cases. To compare the stigma of being accused or convicted of an animal welfare offense (whether reversed later or not), as far as the public is concerned you are similar to or worse than a sex offender.
If you are approached by animal care and control or law enforcement concerning an animal offense, it is prudent to automatically treat this as a criminal case. If charges are filed, even for a misdemeanor offense, try to get a gag order for damage control against pretrial publicity and derogative or false public comments.
4 Have a “Plan B” for Your Animals.
Make arrangements for your animal’s safety in the event of a possible conviction or sentence of forfeiture. It is possible that you may be immediately incarcerated and will not be given a chance to go home. If you had possession and care of the animal during trial proceedings, have a “Plan B” firmly in place in the event that “Plan A” for acquittal or dismissal doesn’t work out.
If you do wish to re-home your animals, make sure you don’t allow officials to seize them for that purpose or you might find the animal that was supposed to be safely re-homed was put down instead. If the subject animal is still in your possession pretrial, you might consider discretely and immediately removing your animal to the safety of family and friends outside of the local jurisdiction before a trial. If your Plan B isn’t in place, your animals may be seized shortly after your conviction and irreversibly disposed of.
In making plans for your animal, keep in mind that there could be a 2-year probation on owning, living with or caring for an animal after your release from jail or on a suspended sentence. If you are found living with an animal in your home during that 2 year probation period, you could face additional charges for a probation violation. Animal rights groups are encouraging and succeeding in getting legislation passed wherein animals can be immediately removed and forfeited to local law enforcement in addition to jail time, fines, restitution and court costs. These new laws being passed by these animal rights organizations prevent an owner-guardian from ever petitioning the court for the return of an animal, if you are found living with an animal while on probation. These cases are regularly denying animal owner-guardians the constitutional safeguards of due process in seizing and disposing of animals.
5 Status of Animals Under the Law.
Animal rights organizations who draft and lobby to pass these laws, as the old adage goes, want their cake and eat it too. Don’t get me wrong here. Animal control agencies can do a great job in preventing or uncovering the most heinous crimes by people against animals. Nonetheless, these organizations want animals treated as children under the law, but at the same time don’t want the animal owner-guardian to have the same rights as a parent. Parents whose children have been taken by authorities on mistreatment charges, and are charged with forfeiture of parental rights, have an opportunity to vigorously challenge such charges and the taking of their child and their parental rights, before they are permanently deprived of a child. Even an incarcerated felon has parental rights.
When a pet is considered under animal laws as a mistreated child (rather than as personal property), and its owner-guardian is bonded to the pet as a family member, then the animal owner-guardian should be afforded the same due process safeguards as an accused parent, before permanent deprivation of the animal occurs. It is unfair to treat an animal owner-guardian differently than a human guardian, when animal welfare laws are actually modeled on human mistreatment laws.
Animals are commonly seized and irreversibly destroyed or forfeited by local law enforcement and animal control authorities, without any court authority authorizing permanent deprivation or destruction of the animal. In some rural jurisdictions, the pet or animal could be just shot on site on order of local officials. These unauthorized actions by unrepentant local officials seem to occur regularly because the animal owner-guardian facing a mistreatment charge is reviled as pure evil by the public, simply on the basis of the accusation whether true or not.
Consequently, authorities seem to have the attitude they will face no consequences for unauthorized or wrongful acts of seizing and/or destroying an animal, trampling all over the the owner’s due process rights. Much of the hatred for those accused of an animal offense is a result of news hype and the animal rights movement’s increasing use of media and television to improve and secure its position regarding animal welfare, as they see it.
6 Forfeiture of Animals as a Punishment.
Forfeiture law is a tricky area and most forfeitures have procedures that arise under old admiralty and maritime laws. There are few attorneys (and other officials) who understand lawful forfeiture procedure or who know much about forfeiture penalties associated with animal offenses. State courts often look to federal courts for guidance in forfeiture cases, providing that you or your attorney argue forfeiture procedure and due process. If the prosecution does not give you notice that it intends to seek forfeiture of an animal and springs it on you at sentencing, argue that your due process rights have been violated as you were unable to defend against the forfeiture because you did not know about it. Do your research.
Forfeiture of property in the U.S. is common in drug offenses in great part because law enforcement authorities and municipalities are profiting from seizure and forfeiture of real and personal property alleged to have been acquired by defendant with drug monies. Title to seized property initially vests in law enforcement at the point of seizure. The property forfeiture to law enforcement becomes final upon conviction when a sentence of forfeiture of the property is entered by the trial court.
Generally speaking, law enforcement has custody and control of the animal property (“the res”) and the court therefore has jurisdiction over the seized property when the forfeiture of the animal is ordered by the trial court. Commonly civil forfeiture proceedings are initiated by law enforcement after a sentence of forfeiture is entered by the criminal court. There used to be an online website called “F.E.A.R.” which is very informative about the history of forfeiture law and forfeiture decisions in the U.S. Property forfeiture is used as a punishment in certain criminal matters against the person, or against the guilty property if the property is considered “contraband” or “derivative contraband” relating to the crime. Sometimes the property of unrelated third parties is seized by authorities and will be permanently forfeited, unless law enforcement immediately commences a civil forfeiture proceeding allowing the parties a meaningful opportunity to be heard concerning the propriety of the seizure and forfeiture. A meaningful opportunity to be heard means prior to the deprivation.
Most states have procedural laws for a civil forfeiture proceeding in order for law enforcement to finalize property forfeitures. State forfeiture procedure will normally be very similar to federal forfeiture procedure. If your animals have been returned unconditionally to you by authorities prior to trial and conviction, if the court orders you to forfeit your animals, you might argue that the court no longer has jurisdiction over the property since it is not in possession of law enforcement or animal control. If a sentence of forfeiture of your animal occurs, do not count on a civil forfeiture hearing being properly commenced by law enforcement, because officials could immediately make a property grab without affording you or a third party procedural due process. If this happens, you may then have a years-long battle to regain custody of your animal, or the animal may have been irreversibly disposed of. For many pets, a victory on appeal may come too late.
Emergency Injunction. You or your attorney should have a motion and order for “Emergency Injunction” prepared to immediately file with the trial court at the time of conviction and sentence – to prevent seizure, forfeiture, re-homing or euthanasia of your animal pending your appeal(s). Argue for a “stay” of sentence and judgment pending appeal because you are not a flight risk or any danger to the community. Alternatively, argue for “in home monitoring” in lieu of jail time. Have a mitigation packet prepared immediately for sentencing, since often a defendant is sentenced and jailed immediately in these cases without being allowed to go home so a defendant does not have any control over placement of an animal. If you are a public defender, don’t expect after an animal offense conviction that sentencing will be one or two weeks after conviction like other low level offenses. Be ready for immediate sentencing. Since it is probably unreasonable to expect the trial court to reverse itself, your Emergency Injunction may also have to be filed and a hearing set before the superior court. Be on guard in these cases because officials may not play fair, especially when 99% of the public is behind them. Elected public officials also get a lot a lot of free press in animal offense cases.
Appeals. If you intend to appeal any lower court decision, do so immediately by filling out a form called “Notice of Appeal” and make sure you file it with both the trial court and the superior court who will hear the appeal of the lower court decision. If you delay in getting your Notice of Appeal filed, you will just delay your appeal and the amount of time your animals are in a “safe haven” (if your injunction is successful) or living with others. Generally you have 30 days to appeal a lower court decision to the superior court. You do not have to be an appellate attorney to file a form “Notice of Appeal.” If your trial attorney does not file your appeal notice for you, whether or not you are jailed, file it yourself. It is not complicated. Ask the court clerk or a corrections officer for the form, fill it out and if you are incarcerated, ask a corrections officer or other messenger to deliver it to the trial court and the superior court by a certain date. Normally you file the original Notice of Appeal with the trial court and file a copy with the superior court in your district. Check your court rules. Your local court clerk should have the appeal form. Although I do not think much of an overworked public defender representing someone in these complex cases, as this is a specialty area with felony-like punishments, the superior court hearing your appeal should appoint a knowledgeable appellate attorney to represent you if you cannot afford one. These convictions and forfeitures have a fairly good chance of being overturned in the appellate courts, especially if the prosecutor or court emotionally over-reached in the sentencing phase or made errors during the trial.
Critical Expert Witnesses–Ask For $5,000+ Because Often You Can’t Top Up. Commonly in these cases, and if you want to win, the case becomes a battle of experts. If you are accused of an animal offense and you do not retain expert witnesses, don’t go to trial. If you use a public defender, prosecutors will likely have more experts than you do including one or more veterinarians and other experts. Even animal care and control employees may be considered experts by the court. While a court appointed attorney is possible in criminal cases, especially where there is a genuine risk of imprisonment through conviction, there can generally be no topping up of monies for experts once an order has already been entered by the court. Ask for enough money to fund expert witnesses in the beginning, including funds for both investigative and witness costs. Ask for a written estimate from experts for pre-trial investigation and their testimony before requesting funds from the court for experts. If you face a criminal or civil animal offense charge, the below points are also important to keep in mind:
a. Immediately photograph or videotape (with a date stamp) each animal’s condition at the point of seizure by authorities at your home. Use someone at arm’s length to photograph the animal(s) so they can later authenticate the photos in court. Make your own inventory of each animal and document its physical condition in writing. Try to get law enforcement to agree to the documented condition of each animal. Use the photographer or someone else impartial to document the condition of the animal, as they may be used as a witness later at a trial. Do not depend on the seized inventory list of animals as documented by law enforcement and/or animal control.
b. Immediately photograph food and clean water in animal bowls or other containers to show the animal(s) was being properly cared for at the time of seizure. Allegations of animal neglect often surface in court whether or not this is the type of complaint authorities are investigating at the time. Mistreatment can arise under statute for pain and suffering or neglect. Neglect can be alleged for not providing enough food or clean water to an animal. Neglect can even be alleged by showing a partially filled or empty bowl.
c. Immediately photograph and document the kennel or other facility where the animal is confined, including photos of areas where the animal had room to turn around and exercise daily.
d. Immediately have your independent veterinarian photograph and examine the condition of the animal after it is placed in impound. Do this as soon as possible. Do not wait more than a couple of days and do not use the shelter veterinarian. Have your own veterinarian use a “Purina Body Condition Chart” to document and rate the physical condition of each animal seized. Your veterinarian should note any injury, disease or other condition, including any injury on each animal which you believe resulted directly from the raid and seizure. If there is an injury to the animal that resulted from the seizure, document whether or not that animal receives veterinary care and treatment after impound by the animal shelter. Using two vets is better than one because the prosecution will likely have more than one veterinarian or other expert. A veterinarian may charge a hundred dollars or more to travel to the impound facility and examine and document the condition of the seized animal, but it is money well spent if you believe the animal was improperly seized and removed. Using your regular treating vet who has seen the animal previously is also helpful. If you own or care for any animals, make sure you keep all vet, vaccination and treatment records and receipts. Some of the recent laws include provisions for seizure of the animal if proof of a rabies vaccine cannot be provided. .Records of payment also prove ownership of the animal.
e. Immediately document the physical condition of any pregnant female or newborn, paying particular care to document any physical deformity of a newborn such as a cleft palate. If an animal is born in impound and dies due to poor shelter conditions, the shelter facility cannot later claim that the animal died as a result of indiscriminate inbreeding or “puppy mill” practices which produced “deformities.” Negative statements about animal deformities and other reasons for animals dying while in shelter care are used both as an offensive posture and defensive posture by animal shelter employees. If an animal dies while in the shelter, shelter employees and supervisors may try to blame the owner for the death of the animal and try to cast the owner-guardian in a negative light. Negative statements like this may also be used as a defense if the shelter is later sued by the owner-guardian for the death of the animal while in its care.
f. In “potentially dangerous” or “dangerous” animal cases, it is very important to locate your own certified licensed animal(s) behaviorist to examine the disposition of your animal immediately. Again, do not use the employee or volunteer behaviorist who works for the animal shelter. If an animal is accused by officials of being a dangerous or vicious animal because it lunged at a human, child, or demonstrated biting or other aggressive behaviors, it is important to discriminate between truly dangerous behavior and provoked behavior. Trained behaviorists (and there are few in the U.S. who are experienced expert witnesses) can testify to various types of animal aggression such as fear aggression, territorial aggression, or re-directed aggression. An animal behaviorist is an expert in observing and reading animal behavior. An animal behaviorist can testify whether or not someone or something provoked the animal, whether the animal was trained as a security or livestock guard dog, and whether or not the animal exhibited natural behaviors or is truly unpredictable and dangerous. Often rural dogs due to use as livestock or security dogs and/or their isolation behave differently than city dogs who have been desensitized and socialized to many different situations, noises, and people. A rural dog may be very friendly to its owner and family but not to outsiders, and often cannot be adopted out by a city animal shelter because it is a different type of animal. Farm cats that are used to mouse in country barns may be called “feral”. City animal shelters do not have the time or staff to devote to socializing some rural animals. If the animal is deemed “unadoptable” or “unsocialized” by the city shelter because it is frightened, timid, or shows fear aggression (or may have nipped someone when it was seized), if a rescue group does not step up to take the animal, it will often be destroyed. If you have an “unadoptable” animal by city shelter standards and release your rights in that animal to the shelter, you may be releasing your animal to certain death. The words “unsocialized,” “feral” and “vicious” are often used by animal shelters and other government authorities to justify decisions to needlessly kill animals and pets. A dog that has a utilitarian purpose in protecting a remote rural home or livestock for its owner-guardian may not be considered to have a useful purpose for city adoption or re-homing.
Animals are animals whether or not confined or restrained. Often an offending incident was not truly the fault of the animal, but rather the fault of an uneducated owner and/or other human interference which escalated animal aggression to a dangerous or potentially dangerous level. Left alone o enforce doggy rules without human interference, an animal may never have hit that dangerous “red zone.” Either way, the animal may be accused of vicious or dangerous propensities. Many people allow their animals to run free, believing if they move to a rural area that roaming at large is lawful. Lawful does not mean that a roaming dog is tolerated. There are few jurisdictions that will allow an owner-guardian to escape some kind of liability for the acts of their animals while roaming at large, whether or not those jurisdictions have leash or confinement regulations. Also, commonly in rural areas, the animal could be shot by your good neighbor simply for trespassing in their open fields or used for target practice. Animals cannot read “No Trespassing” signs. In a rural or farming community, a common attitude (foreign to city people) is to “shoot, shovel, and shut up”, never giving notice first to a neighbor about their wandering or loose pet. Every animal and pet owner should be given one chance, but some people will needlessly and coldly kill a pet and conceal the killing. While it is not always possible, make a good faith effort to keep your animals under your dominion and control at all times. If you value your animal as a family member, or don’t wish to be dragged into court on an animal offense, fence your animal in, treat your animal with kindness, and know its whereabouts. If you keep tabs on your pet, you will not lose your pet to a thief or animal control.
g. If you own the property where an alleged animal offense has occurred, sometimes you cannot escape liability even if you were an absent owner and your animal was in the care of another person. To prevent trespassers from annoying you and your animal(s), place “No Trespassing” signs every 50 feet around the perimeter of your property and on the entrance gate. To prevent your dog from biting or acting aggressively to a utility worker, send a letter to the utility company that you need adequate advance notice to lock up your dog if they need to enter your property for repairs, and that you will read your own utility meter. A “Be Aware of Dog” sign may be a better choice than a “Beware of Dog” sign, which could be construed as an admission that you own a dangerous dog.
Videotape Evidence. Challenge the admissibility of any videotape alleging criminal conduct or offending behavior of an animal, insisting upon proper authentication of the tape. A videotape forensic expert may be needed to show tampering with a videotape. Make sure that the prosecution releases the original tape to your forensic expert immediately for examination, rather than just a digital copy it intends to use in court. If the original videotape is not released to your defense expert, the videotape cannot be authenticated against the digital copy. Sometimes the videotape is tampered with before it is given to law enforcement, and sometimes it is tampered with by officials before producing it in discovery. Either way, you will need the prosecution to produce the original videotape to your defense forensic expert whether the original videotape was in VHS or digital format. If your animal is accused of potentially dangerous or dangerous behavior while running at large, try to videotape other roaming animals in the area who may resemble your accused animal. Sometimes a complainant has made an identification mistake. Be aware that most animal offense charges begin on a neighbor complaint, so make sure that the complaining neighbor doesn’t have an axe to grind and that you have a good strong fence.
Petition for Return of Animals. You also must immediately “Petition for Return of Animals,” if you want your animal returned by the court after it is seized and impounded. You can locate various petition forms and other pleadings online if you search this subject. Michigan school of law has compiled many of the animal law cases and decisions in the country by state and topic. This site is a great reference for the public and attorneys, and the site can bring you up to speed quickly in animal offense matters. The website also provides various pleadings and defenses used in these cases. Some state and local jurisdictions have not come of age in adopting legislation following the seizure of animals which provides for the right of due process for any owner who has his property seized.
Often in these cases animals are seized, held, or irreversibly disposed of without any due process for the animal owner-guardian. An animal owner-guardian has a property right in an animal just like rights in any other personal property. Often in dangerous animal situations, the animal is taken, and the owner is prevented any further contact with that animal and a decision to put the animal down is made quickly or unilaterally by officials, without proper court authority. Humane euthanasia for medical reasons, after a veterinary examination, is one thing. However many pets are swiftly and needlessly put down by persons claiming good intentions, particularly when it comes to bully breeds.
Also, keep in mind that struggling governments and animal shelters do not want to pay for shelter care costs. If you own a bully breed, try to find a bully breed rescue in the U.S. online who will intervene and take in your animal before it is put down. Also, you can put an ad on Craig’s List that you need to safely re-home your animal and you will likely be contacted by a rescuer or rescue group. These animal rescues travel and take in animals from around the country, and a rescue group might be the animal’s last chance. There are a couple of television shows that promote bully rescues and they probably are very busy, but there is no harm in inquiring if they have space for your animal. If your state or local jurisdiction does not provide for a procedure or have a statute for petitioning the court or other hearing body (such as an administrative hearing examiner) for return of your animal, do it anyway using the due process arguments contained in many of the pleadings you can locate online.
Attorney Adam Karp who practices in Washington has animal law pleadings online documenting the main due process arguments you can use in these cases. Many of the due arguments used involve constitutional and statutory violations. Karp is one of the leading animal law attorneys in the U.S. If the court refuses to hear your Petition to Return Animals or denies that it has jurisdiction over your animal or your Petition, appeal this decision to the superior court or until the buck stops somewhere. These cases are often politically hot issues due to the media publicity and over-the-top emotional response from the general public and animal activists.
Although magistrates and hearing examiners are charged with the duty to remain neutral and unbiased, there is a lot of pressure to convict and to not return the animal. Often a magistrate or hearing examiner does not want to be the one who releases an animal back to its owner-guardian. You can locate animal law cases online where petitions or defensive lawsuits have been used to spring the animals and/or settle with government officials. Since I am familiar with cases in Washington, some case authorities include Mansour v. King County, Schoendorf v. City of Spokane, and Sammeth v. City of Seattle. You can search those cases.
Animal Control Authorities and Search Warrants. Keep in mind that animal control authorities and shelter workers are generally agents of local government and may not exceed the authority provided under their contract with the particular municipality. Generally speaking, these employees cannot use law enforcement powers such as seizing and holding dogs and do not have powers of arrest. Most of the time, complaints are generated to law enforcement by animal care and control and/or a neighbor. However, facts must be verified by a law enforcement officer before law enforcement seeks a search and seizure warrant.
Request a copy of the officer’s affidavit of probable cause for search and seizure at the time of the seizure and removal of the animal. Otherwise, an owner-guardian has no idea concerning the scope of the search and seizure, or the basis for the search and seizure. It is a very good idea to contact an attorney immediately if you are served with a search warrant and to have an attorney present during the removal of the animal(s).
Also it is prudent to video and audiotape the search and seizure of the animal(s) because there are a lot of damaging untruths being spread in these cases to both the local media and the courts, particularly when authorities recognize it as a wrongful search and seizure.
Request that law enforcement officers read you your Miranda rights before searching and seizing your animals. Sometimes because of the way the language in the Affidavit of probable cause and search warrant has been drafted by authorities, the warrant signed by the magistrate allows for the seizure of an animal(s) whether or not criminal conduct is found during the search. Challenge probable cause for the search and seizure.
Remember to remain silent and let your attorney do all the talking because even the most innocent comment may be construed against you later in court. Law enforcement officials are generally required to leave the owner-guardian with a “Notice of Removal” at the time of the search, or it must be posted on site, or sent through certified mail. The Notice of Removal should state the specific circumstances for removal of the animal, where the animal has been impounded, and what rights the owner-guardian has and procedures for challenging the removal and getting the animal(s) back.
Lost Animals Turned in to Animal Care Shelters. If your pet becomes lost and is turned in to animal control and adopted out, check their operating contract with local government that gives the animal control shelter the authority to take in and adopt out animals. It may be that your local animal control only has the authority to operate in that particular jurisdiction, for example within the city limits. If the animal was found outside the city limits and then is adopted out, you may have the law on your side in getting your animal back. The appellate case of Graham v. Notti in Washington provides good authority and argument for returning dogs to their owners after they have been impounded and adopted out by an animal shelter.
If you suffer the loss of a companion animal, in addition to the fair market value of the animal you may be able to recover the intrinsic value of the animal to you (sentimental value). Juries in some areas are awarding large sums for emotional distress damages for the wrongful loss of a companion animal. Cases in Washington include jury awards in the tens of thousands of dollars to animal owner-guardians. In California, in a case against law enforcement for the needless killing of dogs during a raid, the Hell’s Angels motorcycle club received somewhere in the range of $1 million for the wrongful killing of their dogs and violation of civil rights. Dogs are a protected property interest under the law and cannot be needlessly killed.
Juries are recognizing the importance of companion animals and the emotional bond that many people have with their animals. Losing an animal can be devastating for some, like losing a family member. The longer a person cares for an animal, the more value that animal has to its owner-guardian.
If your local animal shelter accepts any public tax monies to operate or is on contract with a municipality, it probably is subject to public disclosure requests like any other government agency and must respond to those requests.
People who are charged with violation of animal laws including abuse, neglect, or dangerous animal ordinances are seen as a purely evil human sub-species. In cases where a defendant is convicted of an animal welfare offense, the defendant is likely to receive a sentence including imprisonment.
The nature of the emotional response in these cases is no idle claim. Consider one case of a woman in the U.S. who operated a rural animal sanctuary and took in abandoned, disabled and death row dogs. However, she failed to keep the dogs separated from one another at all times and they were videotaped in acts of aggression one on another while the owner was working off of the property. The aggressive acts of the dogs toward each other resulted in misdemeanor charges under the state animal cruelty chapter. She was convicted. Although the animal cruelty conviction was later reversed on appeal, as well as other misdemeanors, she spent 8 months of a 550 day sentence in jail and was not permitted to return to her property, or her pets, after trial. She was incarcerated immediately. All of her animals including pets which had been returned to her over a year earlier through a settlement agreement with prosecutors and the animal shelter, and all of her farming livestock (not subject of these charges), were ordered to be forfeited to law enforcement. Although this was a first time misdemeanor offense, in additional to a long jail sentence, she was ordered to pay $30,000 in fines and restitution including over $21,000 in impound costs. The same court had earlier denied her due process in refusing to accept jurisdiction over her Petition to Return Animals after they were removed. The court’s refusal to accept responsibility over this case early on enabled local officials to keep her dogs impounded for 3 months. The settlement agreement, requiring her to release ½ of her dogs to authorities, should have protected her pets from a second taking and forfeiture, but it did not because the prosecutor was not honest with the court and the public defender did not know about the settlement agreement as another attorney was involved at that time. She was prohibited from owning or caring for any animals for two years after release from jail on her appeal. After her release, prosecutors continued to hound her asking the court to prevent her from returning to live in her farm home. The reason given by prosecutors was that another person was living on defendant’s property in an additional farm dwelling, and that person owned a horse and dog. Since she has been acquainted with this case since the beginning, for the record, not a single animal seized and removed from the property and impounded for 3 months in this case by authorities showed any sign of neglect, abuse or an injury.
This is the kind of illogical reasoning, or lack thereof, that occurs in these cases. Meanwhile the rural cash-strapped government has lost countless thousands in taxpayer dollars in this prosecution and the many appeals.
Animals are considered an “effect” and are personal property under state and federal constitutions and laws. Because ownership of animals is considered a property interest, due process attaches. Animal offenses in criminal or legal terms are at the lower end of the scale, but these offenses raise disproportionate emotions in the general public and authorities involved with these cases. In the majority of criminal cases, views may be polarized. However, in animal offenses 99% of the population views offenders as endowed with pure evil intent. Likewise a warrant to search premises granted to local law enforcement in these cases will generally be executed with all the facilities expected to be used on a top-class criminal in a top-level criminal offense. Municipal tax dollars used to investigate and prosecute these cases is extraordinary. Because it is an emotive subject, there are few experts who are prepared to act for defendants, whereas every member of an animal rights group or humane society seems to consider himself or herself an expert upon the subject and willingly will see animal cruelty or neglect in every nook and corner, day or night. Many of these cases should not and would not have been brought had the subject matter not been about an animal. But a court will quite often make a criminal of a well-meaning and caring individual simply because his or her husbandry standards did not reach the standard insisted upon by the prosecution or other outside parties, or the animal’s disposition did not meet adoptable standards set forth by city animal shelter staff persons.