Prior Animal Law Cases of the Month

Prior Animal Law Cases of the Month

2024

2023

2022

2021

2020

2019

2018

2017

Cases from 2010 - 2016

2024

September/October

Dog-bite statute waives sovereign immunity in Minnesota. Berrier v. Minnesota State Patrol, 9 N.W.3d 368 (Minn. 2024). This Minnesota Supreme Court case considers whether sovereign immunity shields the State Patrol from liability after a police canine injured a person in an unprovoked attack. This case stems from an incident where a state trooper brought his patrol vehicle to a car dealership accompanied by his State Patrol canine, and the canine committed an unprovoked attack on Berrier, who suffered serious and permanent injuries. The district court denied the State Patrol's motion to dismiss, finding that Berrier sufficiently pleaded her claim under the state's strict liability dog-bite statute. In doing so, the court observed that the law imposes strict liability on "the owner" of a dog with a "clear intent to include governmental entities . . ." The court of appeals reversed and Berrier then petitioned this court for review. On appeal here, the State Patrol questions whether Berrier adequately pleaded her dog-bite claim and whether the State Patrol has sovereign immunity even not when expressly referenced. Previous caselaw held that the dog-bite statute applies to municipal owners of police dogs but did not touch on State actors. The court found the language of the dog-bite statute is broadly inclusive and has previously been interpreted broadly to effect the goals of the law (e.g., ensuring a claimant's full recovery). The Court was not swayed by the State's concerns of exposure to wide-ranging liability since only three agencies have active canine programs with few canines actually trained in apprehension or tracking of suspects. The court of appeals decision was reversed and the case was remanded for further proceedings.

Defendant could not raise issue of dog's seizure for first time on appeal and evidence that dog was left in car on a 90+ degree day was sufficient. State v. Washburn, --- A.3d ----, 2024 WL 3629657 (Vt. Aug. 2, 2024). In this Vermont case, defendant appealed a criminal division order granting the State's motion for civil forfeiture of his dog "Chad" based on a finding that he subjected the dog to cruelty. Defendant left Chad, a Siberian husky, locked in his vehicle on an "unseasonably warm" day where temperatures were in the high nineties. Two subsequent incidents occurred in the following months, culminating in defendant's arrest and a requirement that defendant surrender his dog. On appeal, defendant argues that the criminal division lacked jurisdiction over the forfeiture proceeding. Defendant also argued that the criminal division erred in admitting lay witness testimony (the police officer) regarding the internal temperature of defendant's car. The Supreme Court found that the dog owner's challenge to the dog's seizure was not raised below, so the court held that it could not be raised for the first time on appeal. It also found clear and convincing evidence that established animal cruelty to warrant forfeiture, including the fact Chad had no access to water, the outside temperature was high, and the officer observed early stages of heat exhaustion in the dog. Finally, even if admitting the lay testimony of the officer as to internal car temperature was error, it "falls within the purview of harmless error" since the record provided an unchallenged temperature reading for that day and the officer observed closed windows and distress from the dog. The case was affirmed.

Court finds no on-going or imminent injury with Perdue's "Fresh Line" poultry labels that inaccurately depict free-roaming birds. Animal Legal Def. Fund, Inc. v. Vilsack, --- F.4th ----, 2024 WL 3732881 (D.C. Cir. Aug. 9, 2024). The Animal Legal Defense Fund (ALDF) sued the U.S. Department of Agriculture (USDA) for declaratory and injunctive relief alleging that the USDA violated the Poultry Products Inspection Act (PPIA) and the Administrative Procedure Act (APA) by approving the labels for Perdue's “Fresh Line” chicken and turkey products. Specifically, ALDF claims that the USDA adopted a policy of evaluating only the text and not any graphics that appear on poultry-product labels. Fresh Line chickens and turkeys were raised strictly indoors and the approved product labels depict birds freely roaming outside a barn. ALDF asked the Department to reject any Perdue labels containing that kind of imagery because they claim the imagery misleads consumers into thinking the birds were raised in pastures, when they in fact spent the entirety of their lives in overcrowded warehouses. After denial, the ALDF sued the USDA and FSIS, alleging the Fresh Line labels violated the PPIA and APA and that FSIS has a "pattern and practice" of not reviewing such graphical imagery on poultry-label products. On appeal here of only  associational standing, this court found that the member who was harmed cannot show a substantial likelihood that the member will suffer non-self-imposed harm in the future. In other words, the court was not convinced that the consumer member will continue to purchase the product in the future now that she knows the label is misleading. The district court's dismissal was affirmed.

August

Animal welfare organization NOT exempt from Delaware's strict liability dog bite law. Riad v. Brandywine Valley SPCA, Inc., --- A.3d ----, 2024 WL 2885283 (Del. June 10, 2024). In 2019, Plaintiff was bitten by a dog while at a facility operated by Brandywine Valley SPCA (“BVSPCA”), a non-profit animal welfare organization that takes in stray or surrendered animals and offers some of those animals for adoption. The Superior Court entered summary judgment in favor of the organization and the plaintiff appealed. The primary question on appeal is whether an animal welfare organization is exempt from strict liability under the statute. Here, the Delaware Supreme Court found that reliance misguided as the statutory text contains only limited exceptions and a clear definition of the word "owner." The Court found that it "inappropriate for the Superior Court to engage in a speculative inquiry into the General Assembly's intentions at the time of the dog bite statute's enactment." The Court was not persuaded by BVSPCA's suggestion that the separation of definitions for "animal shelter" and "owner" implied that the term owner does not include animal shelter. The plain language of the statute does not exempt an animal welfare organization from the definition for owner. In addition, BVSPCA's argument that this interpretation disfavors public policy was also rejected by the Court since the statute is unambiguous. Finally, the Court held that, contrary to BVSPCA's assertions, expert witness testimony was not required by law to establish the degree of care a reasonably prudent person must exercise in controlling an aggressive dog. The Superior Court's entry of summary judgment was reversed.

NYC local law prohibiting sale of foie gras and other force-fed products conflicts with state law protecting agricultural districts. City of New York v. Ball, --- N.Y.S.3d ----, 2024 WL 3078319 (N.Y. Sup. Ct. June 21, 2024). This New York case concerns a challenge to the New York City Local Law No. 2019/202 that prohibits restaurants and retail food establishments within the City of New York from selling or serving foie gras and other force-fed products. Petitioner City of New York challenges the final determination of respondents Richard A. Ball, as Commissioner of Agriculture and Markets, and the Department of Agriculture and Markets, which found that Local Law 202 unreasonably restricts and regulates farming operations within the agricultural districts where foie gras is produced, contrary to Agriculture and Markets Law (“AML”) § 305-a. The City argued that Local Law 202 does not impact AML § 305-a because it does  not have a direct impact on the farms that produce the foie gras in the agricultural district in the county where it is produced. This court found that a restriction on processes used within farm operations of agricultural districts fits within the purview of the statute. While New York has adopted broad home-rule powers, their scope is limited to regulation in the territorial boundaries. The measure falls within the scope of AML § 305-a as a “local law” that “restrict[s] or regulate[s] farm operations in agricultural districts." While the City has a legitimate desire to protect animals from a cruel practice, it cannot do so in a manner that is inconsistent with state law. The court noted that the state legislature is free to "recalibrate" the statutory construction of AML § 305-a to allow animal welfare concerns, but, in its current form, that would be inconsistent with the language. The motions of intervenors were dismissed, the Petition was denied in all respects, and the proceeding was dismissed.

County not liable for dog bite because animal control officer's decisions on previous violations were discretionary and thus subject to immunity. Danielson v. Cnty. of Humboldt,  --- Cal.Rptr.3d ----, 2024 WL 3175240 (Cal. Ct. App. June 26, 2024). Appellant Candis Danielson was seriously injured by dogs owned by Donald Mehrtens on his property. The injuries were so severe that she lost the lower half of her right leg and sustained damage to her other leg and hand. She filed this action for damages against numerous parties, including Mehrtens and the County of Humboldt (Humboldt County or County). The County demurred. This appeal concerns solely the cause of action against the County for its alleged failure to perform a mandatory duty. This court first noted the record demonstrated Mehrtens had at least five different incidents over more than ten years that involved either an attack by his dogs or a report to animal control (including reports on biting, failure to license, and failure to vaccinate). This court found that the Government Claims Act provides immunity to public entities and employees for legislative action or discretionary law enforcement activity as opposed to mandatory duties. Here, the county ordinance did not impose a mandatory duty for the officer to petition for a hearing after one of Mehrtens' dogs had bitten a neighbor months earlier. In addition, the officer did not have a mandatory duty to impound the dogs due for licensing and rabies vaccination concerns. Finally, the dangerous dog ordinances also did not mandate seizing or impounding the dogs. While the court "sympathize[d] with her desire to be compensated for her injuries," the failure to identify a law that created "a mandatory duty which was breached by the County" does not exist here. The lower court was affirmed.

June/July 2024

Circuit court affirms judgment that wind turbine project properly analyzed risks to critically endangered North Atlantic right whale. Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Mgmt., 100 F.4th 1 (1st Cir. 2024). The U.S. Bureau of Ocean Energy Management (“BOEM”) approved the construction of Vineyard Wind, a wind power project off the coast of Massachusetts after consulting with the National Marine Fisheries Service (“NMFS”). A group of Nantucket residents, organized as "Nantucket Residents Against Turbines" (“Residents”), allege that the federal agencies violated the Endangered Species Act by concluding that the project's construction likely would not jeopardize the critically endangered North Atlantic right whale. The United States District Court for the District of Massachusetts granted summary judgment for BOEM and NMFS. On appeal of summary judgment, the Residents further allege that BOEM violated the National Environmental Policy Act by relying on NMFS's flawed analysis. The court rejected the Residents' argument, finding that NMFS's biological opinion properly analyzed the current status and environmental baseline of the right whale. Further, the biological opinion properly analyzed the effects of the project (e.g., noise) on the right whale, along with mitigation measures, and did not ignore the project's additive effects on the right whale's long-term recovery prospects. Finally, BOEM's reliance on the biological opinion did not violate NEPA. The judgment of the district court was affirmed.

Single kick to dog sufficient basis for "cruelly beat" component of felony cruelty conviction in North Carolina. State v. Doherty, --- S.E.2d ---- 2024 WL 2002922 (N.C. Ct. App. May 7, 2024). In this North Carolina case, the defendant appeals from his conviction of felony cruelty to animals and suspended sentence of imprisonment. The conviction stems from Defendant's kicking of his neighbor's dog. In November of 2019, the dog's owner was walking her fourteen-year-old dachshund-beagle mix, Davis, in front of Defendant's house when she stepped out of the roadway onto Defendant's lawn to avoid a passing car. The occupants of the car then stopped to talk with the dog's owner briefly, whereupon Defendant emerged from his home and proceeded to kick Davis in the stomach. Defendant was ultimately charged, indicted, and convicted of felonious cruelty to animals. On appeal, Defendant argues that the trial court erred in failing to dismiss the charge of felonious cruelty to animals because a single kick was insufficient to show that Defendant "cruelly beat" the dog. This court first addressed whether a single kick to a dog was sufficient to meet the definition of "cruelly beat." Looking first at the standard dictionary definition of "beat," the court found that the words, “cruelly beat” can apply to any act that causes the unjustifiable pain, suffering, or death to an animal, even if it is just one single act. In fact, the court stated, "[t]o hold otherwise would allow a person to kick a dog so hard they suffer life-threatening injuries—such as the case here—but not be subject to felonious cruelty to animals because it was 'just' one kick." Thus, the trial court did not err in denying Defendant's motion to dismiss. No reversible error occurred and Defendant's conviction was affirmed.

Pennsylvania dogs chasing deer that were enclosed in fence does not allow deer owners to raise defense of legal right to kill dogs pursuing certain domestic animals. Commonwealth v. Stefanowicz, --- A.3d ---- 2024 WL 1918371, 2024 PA Super 90 (May 2, 2024). Appellant Stefanowicz appeals from the judgment entered in the Tioga County Court of Common Pleas in Pennsylvania. Appellant and his wife co-owned a deer farm ("Awesome Whitetails") where they are legally licensed to operate and sell trophy bucks which are kept in a fenced-in enclosure on their property. Appellant's neighbor, Ms. Smith, owned two German Shepherd dogs, which Appellant testified frequently entered his property and had previously harassed the animals he raises there. Appellant and his wife submitted a complaint to the state dog warden who then warned Smith of the statewide requirements on confining dogs. The warden also advised Appellant of the legal right to kill a dog that is “in the act of pursuing or wounding or killing” Appellant's animals. In fall of 2020, Smith's dogs entered Appellant's property and were chasing the deer from outside the fence. This deer began to panic, causing one to get stuck in the fence where one of the dogs then stared biting it. Appellant tried to yell at the dogs to no avail, so he then shot and killed the dogs. Appellant testified that one deer had a bloody gash, two more had bloody faces, and one deer died of a broken neck. Ultimately, Smith was sent a citation for failing to confine the dogs and Appellant was charged with two counts of Aggravated Cruelty to Animals and convicted of one of those counts. On appeal, Appellant raises several issues. The first two issues challenge the sufficiency of the evidence for the Aggravated Cruelty conviction. The court found sufficient evidence for the conviction as Appellant acted in an intentional manner to kill the dogs. Next, Appellant asserts that the verdict was against the weight of the evidence because of his legal defense. In Pennsylvania, it is legal to kill certain dogs in the act of pursuing or wounding "domestic animals" (which includes farm-raised deer). The trial judge here gave an instruction on the defense, but added that "under the laws of this Commonwealth, harassing an animal through a fence without any contact does not constitute pursuing, wounding, or killing an animal." Here, the jury heard that instruction and found the defense inapplicable for one dog. There was testimony from Appellant that he saw one of the two dogs biting a deer caught in the fence, not both dogs. Since the jury was free to evaluate the testimony and infer guilt, the reviewing court will not disturb the lower court's determination. After disposing of the remaining issues related to jury selection and ineffective assistance of counsel, the court affirmed Appellant's sentence.

April/May 2024

Court orders specific performance as remedy in custody dispute over dog. Lyman v. Lanser, --- N.E.3d ----, 2024 WL 970217 (Mass. App. Ct. Mar. 7, 2024). The parties purchased a dog together while they were still a couple, and agreed to share the dog if they broke up. After the relationship eventually ended, the couple shared the dog on a two week alternating basis. Eventually, one party maintained custody of the dog and denied the other party access to the dog, so plaintiff filed this action for conversion and breach of contract, seeking specific performance of the custody agreement for the dog. The court here found that the dog is jointly owned property, the lack of a written contract does not bar the plaintiff from specific performance, and that the judge's order of specific performance was a suitable remedy since monetary damages would not allow plaintiff access to his shared property. Therefore, the court reversed the order vacating the preliminary injunction and denied the defendant's petition for relief from the preliminary injunction.

Appeals court reverses finding of "constructive delay" in case involving keeping of chickens as assistance animals. Lab. Comm'n, Antidiscrimination & Lab. Div. v. FCS Cmty. Mgmt., --- P.3d ----, 2024 WL 1203693, 2024 UT App 39. This is an appeal of a complaint filed by the Utah Anti-discrimination and Labor Division (ULAD) seeking review of the determination that an HOA violated members' request for reasonable accommodation by denying homeowner's the ability to keep chickens on their property. The chickens were intended to be assistance animals for the homeowner's daughter, who has anxiety and PTSD. The district court found that the HOA constructively denied the homeowner's request for reasonable accommodation by delaying their response to the request for three months. This court reversed the decision of the lower court, finding that there was no constructive denial of the request since the HOA allowed the homeowners to keep the chickens during the interim period, did not punish them for keeping the chickens, and ultimately granted the request to keep the chickens.

Plant-based meat alternative producer's motion for summary judgment denied after court finds state law involves no suppression of commercial speech and no discriminatory effect under Dormant Commerce Clause. Turtle Island Foods, SPC v. Thompson, --- F.Supp.3d ----, 2024 WL 1342597 (W.D. Mo. Mar. 26, 2024). Plaintiffs, a nonprofit advocacy organization and a plant-based meat alternative producer, filed this case to challenge the constitutionality of a statute that criminalizes the misrepresentation of a product as meat that is not derived from livestock or poultry. Plaintiffs bring four constitutional claims against the statute. For the First Amendment violation, plaintiffs specifically argue that the statute is an unlawful restriction on truthful commercial speech. However, the court finds that the statute does not restrict truthful commercial speech, since plaintiffs are still able to accurately indicate what sort of products they are selling to consumers. For the Dormant Commerce Clause argument, the court finds that the statute does not discriminate in purpose or effect, and that the statute passes the Pike balancing test. For the Due Process claim, the court finds that the statute provides sufficiently specific guidance to both the public and prosecutors as to what actions are prohibited, so it does not violate Due Process. Accordingly, the court denied plaintiff's claims and motion for summary judgment.

March 2024

Court rules Massachusetts' Prevention of Farm Animal Cruelty Act has discriminatory effect on out-of-state pork processor. Triumph Foods, LLC v. Campbell, --- F.Supp.3d ----, 2024 WL 421994 (D. Mass. Feb. 5, 2024). This case was brought by a group of pork producers and farmers to challenge the Massachusetts' Prevention of Farm Animal Cruelty Act on the grounds that it violates the dormant Commerce Clause by improperly regulating interstate commerce. The Act would require pork producers to phase out certain means of pig confinement in order to sell pork products in Massachusetts. In response, the state filed a motion to dismiss arguing that there is no causally connected harm to the pork producers, which the court denied. The court first evaluated the slaughterhouse exemption, which exempts sales from the requirement that they must take place within Massachusetts if the buyer takes physical possession of the pork while on the premises of an establishment inspected under the Federal Meat Inspection Act. Plaintiff argued that as an out-of-state pork processor, it could not take advantage of this exemption, even though it operates entirely federally inspected facilities, because it ships its product into Massachusetts from out-of-state and, its buyers do not take physical possession of its product while at its facilities. The court found that this exemption has a discriminatory effect, and vacated the order in part to allow the court to consider whether the Act with the slaughterhouse exemption severed is preempted by the Federal Meat Inspection Act.

While 3-month delay was not unreasonable to properly consider accommodation request to keep chickens as ESAs, members were not damaged by delay.  Lab. Comm'n v. FCS Cmty. Mgmt., 2024 UT App 14, --- P.3d ----, 2024 WL 370160. This case concerns the Utah Anti-discrimination and Labor Division's (UALD) determination that a homeowner's association's three-month delay in responding to a member's request for reasonable accommodation to keep chickens on their property as assistance animals for a child with anxiety and PTSD violated the Utah Fair Housing Act. The trial court found that this three month delay was a constructive denial of the request, because under the Utah Fair Housing Act a housing provider must participate in an interactive process to evaluate and discuss the request for accommodation, and no such interactive dialogue or interactive process took place. On appeal, the court found that the three month delay in responding to the request was not unreasonably long, especially considering that the HOA had to review the status of chickens as support animals, chicken waste runoff, and possibility of rodent complaints during this time. The court of appeals also found that members were not harmed by the HOA's alleged delay, since they were still allowed to keep the chickens at this time. The court of appeals then reversed the trial court's holding granting the members damages, fees, and other relief.

Animal abuse conviction affirmed where sufficient evidence included neighbor's testimony of observing defendant swinging small dog by leash and slamming dog's head against ground. State v. McIntosh, No. SD 37827, --- S.W.3d ----, 2024 WL 302430 (Mo. Ct. App. Jan. 26, 2024). This case is an appeal following the defendant's conviction of animal abuse and assault in the fourth degree. Defendant claimed that the trial court erred in convicting him of animal abuse due to insufficient evidence showing that he purposely caused suffering to the dog he allegedly abused. The event that led to defendant's conviction was witnessed by a neighbor, who saw the defendant in his backyard swinging a small dog through the air by its leash and collar. The neighbor also saw defendant climb on top of the dog to choke it and slam its head into the ground. The neighbor testified at trial about these events, and the trial court found defendant guilty of animal abuse and assault in the fourth degree. The court of appeals held that there was sufficient evidence, consisting of the neighbor's testimony, and affirmed the judgment of the trial court.

January/February 2024

Court finds that delegation of swine "sorting process" to slaughterhouse employees did not violate Federal Meat Inspection Act (FMIA) and Humane Methods of Slaughter Act (HMSA). Farm Sanctuary v. United States Dep't of Agric., --- F.Supp.3d ----, 2023 WL 8602134 (W.D.N.Y. Dec. 12, 2023). This case was brought by plaintiffs, several nonprofit animal rights organizations, to challenge a Final Rule implementing a new swine inspection system at pig farms and slaughterhouses across the United States against defendants, the United States Department of Agriculture and the Food Safety Inspection Service. The new system requires that employees of the slaughterhouses perform ante-mortem and post-mortem sorting activities before the federal inspection is to take place, which plaintiffs challenge under the argument that this shifting of the sorting activities to slaughterhouse employees is in violation of the Federal Meat Inspection Act (FMIA) and Humane Methods of Slaughter Act (HMSA). Plaintiffs argue that this delegation is improper, would negatively impact the safety of pork being produced by slaughterhouses, and would lead to inhumane slaughter of pigs. Plaintiffs and defendants filed motions for summary judgment. The court granted defendant's motion for summary judgment, finding that plaintiffs failed to meet the burden of proof to show that the delegation of the sorting process was improper.

Euthanasia of dog by wife without husband's authorization did not violate automatic Family Court order because the animal was not a financial asset for purposes of the order. C.M. v. E.M., --- N.Y.S.3d ----, 2023 WL 8360025 (N.Y. Sup. Ct. Nov. 28, 2023). This is a family law case concerning, among other issues, the euthanasia of a family companion animal. Defendant argues that Plaintiff violated an order in place by putting the family dog down without reason, necessity, and justification, and that the dog was an emotional support animal whose custody had not been determined. Defendant also argues that plaintiff did not allow defendant the opportunity to spend time with the dog before it was put down, and that he suffered emotional distress due to the dog's death. The court found that the euthanasia of the family dog did not violate the order in place, because the companion animal was not classified as "property" or an "asset" under the order in place, and that animals are afforded additional protection under the Family Court Act. Whether the animal was put down unnecessarily could be considered animal cruelty, but that inquiry would need to be determined in a criminal proceeding, and criminal charges were not filed. Accordingly, the court held that plaintiff did not violate the order by euthanizing the family dog.

Court denied zoo's motion for preliminary injunction after seizure of 95 sick animals because zoo could not prove irreparable harm from seizure. Mogensen v. Welch, --- F.Supp.3d ----, 2023 WL 8756708 (W.D. Va. Dec. 19, 2023). Plaintiffs owned and operated a zoo containing about 95 animals. Following complaints about suspected abuse and neglect of these animals, defendant executed a search warrant of the zoo. The search led to the seizure of many of these animals, including a tiger in such poor health that it needed to be euthanized. Following the seizure of these animals, plaintiffs filed a motion to argue that their due process rights were violated because a civil forfeiture hearing must be held no more than ten business days after the state seized the animals, and plaintiffs argue that ten days is too little time to prepare for the hearing. To succeed on the claim, plaintiffs must show that they are likely to suffer irreparable harm in the absence of preliminary relief, which they were unable to do because plaintiffs still have the right to appeal if the hearing does not go in their favor. Therefore, the court denied plaintiff's motion for a preliminary injunction.

2023

December 2023

Court strikes down Wisconsin's hunter harassment statute as unconstitutional viewpoint-based regulation of speech. Brown v. Kemp, 86 F.4th 745 (7th Cir. 2023). This is a case brought by a group of hunting opponents against Wisconsin state employees to challenge Wisconsin’s hunter harassment statute. The challenged statute criminalizes those who photograph or videotape hunting activities with intent to interfere with the hunting. The challengers, who intended to use the footage to spur public debate about hunting and ensure hunters are following state taking limits, allege that the law violates the First Amendment and is unconstitutionally vague. The trial court granted summary judgment to the state employees after finding that the statute did not violate the First Amendment, and the hunting opponents appealed. On appeal, the court found that the statutory provisions on visual/physical proximity and approaching/confronting hunters were unconstitutionally vague, the photographing/recording provision was unconstitutionally overbroad, and the entire statute was an unconstitutional viewpoint-based regulation of speech.

Aggravated cruelty conviction affirmed where court found defendant was aware of his dog's aggressive behavior and refused to intervene to stop attacks on other animals. People v. Restifo, --- N.Y.S.3d ----220 A.D.3d 1113, 2023 WL 7028284, 2023 N.Y. Slip Op. 05425 (N.Y. App. Div. 2023). This is an appeal of a verdict to convict defendant of aggravated cruelty to animals. Defendant was walking his two pit bull dogs and allowed the dogs enough leash space to reach a pet cat resting on the steps of its owner’s porch. The cat’s owners, who were witnesses to this event, watched as the pit bulls mauled their pet cat. When the witnesses asked defendant to stop his dogs, defendant attempted to flee with his dogs still carrying the cat’s body in its mouth. The witnesses pursued and eventually, the dog dropped the deceased cat’s body. Defendant was charged with aggravated cruelty to animals and overdriving, torturing and injuring animals, and failure to provide proper sustenance. Defendant was convicted, and appealed the aggravated animal cruelty charge. Defendant argues that the verdict was not supported by sufficient evidence. The court here found that defendant was well aware that the dogs were aggressive, even keeping them separate from his young son because of their propensity to attack smaller animals. There was also testimony from another neighbor of defendant allowing his dogs to chase feral cats off her porch without stopping them, and testimony regarding defendant’s dog previously mauling a smaller dog without defendant intervening to stop them. Defendant was warned by animal control to muzzle them, but refused to do so. Defendant also bragged to co-workers about how he let his pit bulls go after other dogs and attack wild and old animals. Accordingly, the court found that defendant was aware of the dogs’ aggressive behavior and affirmed the holding of the lower court.

Court grants preliminary injunction to stop use of foothold traps that incidentally ensnare grizzly bears. Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, ---- F.Supp.3d ----, 2023 WL 8064884, No. CV 23-101-M-DWM, 2023 WL 8064884 (D. Mont. Nov. 21, 2023). This case was brought by several environmental organizations against the Montana Fish and Wildlife Commission to challenge the approval or regulations that authorize the trapping and snaring of wolves within grizzly bear habitat in Montana. The grizzly bear is listed as threatened under the Endangered Species Act (ESA), and the Montana trapping regulations allow wolf hunters to use foothold traps large enough to capture grizzly bears. Grizzly bears rely heavily on their front and back paws to hunt for food, so crippling their limbs with these traps will lead to the incidental killing of grizzly bears from starvation. Plaintiffs also showed that there was a likelihood of harm to grizzly bears, with evidence that these traps will lead to the death of grizzly bears. The court granted plaintiff’s motion for preliminary injunction in part and denied in part, and enjoined the Montana Fish and Wildlife Commission from authorizing wolf trapping and snaring.

"Dog-friendly" restaurant did not have knowledge of visiting dog's vicious propensities to impugn liability. Cantore v. Costantine, --- N.Y.S.3d ----, 2023 WL 7560690 (N.Y. App. Div. Nov. 15, 2023). This is an appeal of a personal injury case brought by plaintiff, the mother of the injured child, against the owners of a dog that caused the injury and the owners of the restaurant where the injury occurred. The injury took place at a dog-friendly restaurant both parties were dining at, where the dog owned by defendants bit a three-year-old infant. Plaintiff alleges that the restaurant owners knew of the dog’s vicious propensities but allowed it on the premises, and are liable along with the owners of the dog for the injuries sustained by her child. Defendant restaurant owners contend that they did not know of the dog’s vicious propensities, and that their restaurant requires that dogs be leashed, and the dog was leashed at the time of the bite. The lower court denied defendants motion for summary judgment because there were unresolved issues of fact as to the restaurant defendants’ duty to their patrons and the foreseeability of the injury. This appeal followed. On appeal, the court reversed the order of the lower court because defendants established that they did not have any knowledge of the vicious propensities of the dog and that they exercised reasonable care through their signage and policies to protect restaurant patrons from the risk of harm that allowing animals on the premises poses. Defendants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted.

October/November 2023

Colorado Supreme Court finds legislature intended prior animal cruelty convictions as sentence enhancer rather than element of felony cruelty charge. Caswell v. People, 536 P.3d 323 (Colo., 2023). This case concerns several charges of animal cruelty against petitioner Caswell. A welfare check was conducted in response to a report, resulting in the seizure of petitioner's sixty animals. These animals lacked sufficient food or water, were kept in enclosed spaces filled with feces and urine, and many of the animals were underweight or had untreated medical problems. Respondent charged Caswell with 43 class six counts of cruelty to animals, which were charged as felonies because Caswell had prior convictions of misdemeanor animal cruelty. The jury found Caswell guilty of all 43 counts and sentenced her to eight years of probation, 43 days in jail, and 47 days of in-home detention. After being affirmed on appeal, Petitioner filed for certiorari and the Supreme Court of Colorado granted. Here, petitioner argues that the use of her prior convictions for animal cruelty to enhance her charges to felonies violates the Sixth Amendment and the Colorado Constitution. After reviewing the factors, the court concluded that the legislature intended to designate the fact of prior convictions as a sentence enhancer rather than an element of the current crime. The court also concluded that the sentence did not violate the Sixth Amendment or article II of the Colorado Constitution, and affirmed the holding of the lower court.

Keeping terminally ill dog in state of suffering does not constitute "subjecting" a dog to harm under Massachusetts's anti-cruelty law, court finds. Commonwealth v. Russo, -- N.E.3d ----, 2023 WL 5962931 (Mass. App. Ct. Sept. 14, 2023). The owner of fourteen-year-old dog brought the dog to an animal hospital where veterinarians found a large mass that necessitated surgery. Defendant declined surgery and took the dog home. Three weeks later, defendant brought the dog back, where the staff noticed that his condition had worsened significantly, and the veterinarian recommended humane euthanasia to end the dog’s suffering. The owner then asked for surgery, but the vet indicated that the dog would not survive, so the owner again took the dog home. The veterinarian reported defendant to the Animal Rescue League of Boston, who conducted a welfare check on the dog and found it in very poor health. When the Animal Rescue League asked defendant to euthanize the dog or get him medical attention, defendant declined and insisted the dog would die at home. Defendant was charged with violating the animal cruelty statute, defendant’s motion to dismiss the complaint was granted, and this appeal followed. The question on appeal is whether defendant’s conduct in refusing to euthanize the dog constitutes animal cruelty under the statute. After examining case law, the court could not find a case in which a person's failure to euthanize an animal was interpreted as “subjecting” an animal to harm, and did not want to extend the statute that far. The court affirmed the holding of the lower court.

County had a mandatory duty to release dogs scheduled for euthanasia to qualified nonprofit animal rescue or adoption organizations. Santa Paula Animal Rescue Ctr., Inc. v. Cnty. of Los Angeles, 313 Cal. Rptr. 3d 566 (Cal. Ct. App. Sept. 18, 2023), reh'g denied (Oct. 16, 2023). Plaintiffs filed a petition for writ of mandate against defendant county seeking to compel the release of impounded dogs scheduled for euthanasia to plaintiffs. The court sustained defendant’s demurrer without leave to amend, and this appeal followed. Plaintiffs argue on appeal that the Hayden Act imposes a duty on defendant to release the dogs scheduled for euthanasia to plaintiffs. The court examined the relevant code, which stated that “any stray dog that is impounded pursuant to this division shall, before the euthanasia of that animal, be released to a nonprofit” and agreed with plaintiffs’ argument that the use of the word "shall" indicates that the legislature intended to impose a duty on defendant to release these dogs upon request to qualified nonprofit animal rescue or adoption agencies. The court also concluded that the demurrer was improperly granted as defendant lacked discretion to withhold and euthanize a dog based upon its determination that the animal has a behavioral problem or is not adoptable or treatable. The court agreed, however, that defendant had discretion to determine whether and how a non-profit organization qualifies as an animal adoption or rescue organization. The court reversed the judgment of the trial court, vacated the trial court’s order sustaining the demurrer without leave to amend, and remanded to the trial court.

Court finds LSU labs must produce veterinary records related to research animals, but other records like private communications between employees and trapping records were unduly burdensome. People for Ethical Treatment of Animals v. Bd. of Supervisors of Louisiana State Univ., --- So.3d ----, 2023 WL 6119352, 2022-0976 (La. App. 1 Cir. 9/19/23). Plaintiff-appellee PETA began this case by issuing eight public records requests to defendant-appellant Louisiana State University (LSU). PETA made these records seeking veterinary care and disposition records for birds used in LSU’s laboratories. For the first seven of these requests, LSU did not produce the records, so PETA filed a petition for a writ of mandamus, declaratory judgment, and injunctive relief pursuant to the Public Records Law. LSU denied PETA’s allegations and did not produce the records, so PETA made an eighth records request, which LSU responded to with an assertion that the requested records were exempt from disclosure. After a hearing, the trial court issued an oral ruling in favor of PETA and granted some of the records that PETA requested. LSU appealed. On appeal, the court considered whether the records sought by PETA were covered under the Public Records Law. The court first found that LSU qualifies as a research facility under the Animal Welfare Act, and needs to comply with federal law and maintain and produce records relating to research animals, so long as the records being sought would not be unduly burdensome to produce. The court held that the portions of the judgment ordering LSU to produce veterinary daily observation reports, veterinary daily health check records, and other veterinary records were affirmed. However, some of the information sought, including private communications between LSU employees, trapping records, and some videographic records, were considered unduly burdensome to compel LSU to produce.

September 2023

Court upholds conviction for animal cruelty based on failure to groom dog. Commonwealth v. Deible,  --- A.3d ----, 2023 WL 4715187 (July 25, 2023). Appellant has owned the 17-year-old terrier dog since the dog was a puppy. At one point, the dog escaped from appellant’s home and was found by a bystander. This bystander testified that the dog’s fur was heavily matted, with objects stuck in its fur. Appellant testified that the dog was aggressive when she attempted to groom him, and that their veterinarian was supposed to groom the dog, but the dog’s veterinary records did not support this. The lower court found that there was sufficient evidence to charge appellant with animal cruelty, and ordered her to pay fines totaling $946.58 and forfeit ownership of the dog. Appellant filed this appeal to challenge the sufficiency of the evidence used to support her conviction of animal cruelty. The court found that there was sufficient evidence to support the cruelty charge, as the statute prohibits “ill-treatment” and the evidence of the condition of the dog supports that it was treated improperly. Appellant also argues that the court’s order for her to forfeit her dog was improper, but the court of appeals disagreed due to the pattern of neglect established by appellant’s history with the dog. Accordingly, the court of appeals affirmed the holding of the lower court.

In challenge to disciplinary action, while Texas veterinarian's use of "telemedicine" was protected speech, the regulation of this speech by Board was content neutral. Hines v. Pardue, --- F.Supp.3d ----, 2023 WL 5254673 (S.D. Tex. Aug. 15, 2023). Plaintiff veterinarian brings this action to challenge a Texas law that mandates a veterinarian conduct a physical examination of an animal before practicing veterinary medicine on the grounds that the law violates his First Amendment right to free speech. Plaintiff, who was unable to maintain a veterinary practice in person due to medical issues, began providing veterinary advice to animal owners via a website without first examining their animals. Plaintiff was disciplined by the Texas State Board of Veterinary Medical Examiners for doing this, and was fined $500 and sentenced to a year of probation. Plaintiff then sued the members of the Board on two separate occasions, with the second appeal being remanded by the Fifth Circuit with instructions to determine whether the requirement for a physical examination before issuing veterinary advice regulates speech incidentally to the regulation of non-expressive professional conduct, or is a regulation of non-expressive conduct. Plaintiff argues that his email exchanges with animal owners constitutes speech, and the court agrees that this is speech and that the Examination Requirement regulates this speech. However, the court finds that this regulation of plaintiff’s speech is content neutral because the requirement for a physical examination of the animals before issuing advice applies neutrally to all forms of veterinary care and veterinary speech regardless of content. Therefore, the court held that defendants may enforce the Examination Requirement without violating plaintiff’s free speech rights.

Washington court denies plaintiff's application of public nuisance by zoo for alleged violations of wildlife and anti-cruelty laws. Animal Legal Def. Fund v. Olympic Game Farm, Inc., --- P.3d ----, 2023 WL 5281830 (Wash. Aug. 17, 2023). This case is brought by the Animal Legal Defense Fund (Plaintiff) against a private zoo based in Washington state, known as Olympic Game Farm, Inc (Defendant). Plaintiff argues that defendant has violated Washington’s wildlife laws, animal cruelty laws, and the Washington and federal Endangered Species Acts. Plaintiff also argues that defendant has created a public nuisance, which is a nuisance that “affects equally the rights of an entire community or neighborhood, although the extent of that damage may be unequal.” Plaintiff argued that they have demonstrated that defendant is in violation of animal cruelty and wildlife laws, and asked the court to name the violation of these laws as a public nuisance per se. The court found that previous cases regarding public nuisance claims limit those claims to instances of property infringement or threats to public health and safety. Accordingly, the court held that defendant’s alleged violation of the wildlife, animal cruelty, and endangered species laws, did not constitute a public nuisance.

July/August 2023

Wyoming declines to extend emotional distress damages for injury to dogs as animate property. Cardenas v. Swanson, --- P.3d ----, 2023 WL 4344196 (Wyo. July 5, 2023). The Cardenas family (Appellants) owned three St. Bernard dogs. Appellants lived on a home adjacent to large tracts of state land. One afternoon, the dogs were let outside to run, and appellants found one dog caught in a snare, where it died from a broken neck. Appellants attempted to free the dog from the snare, which injured the Cardenas children in the process. Additionally, the other two dogs were also caught in snares and died from their injuries. Appellants filed suit against the trapper who set the snares (Appellee), asserting claims of negligence, willful and wanton misconduct, violation of statutes, infliction of emotional distress, and civil rights violations. The trial court granted and denied in part the motion for summary judgment, finding that appellee’s conduct was not willful and wanton and that appellants could not recover emotional damages for the loss of the dogs. On appeal, the court held that emotional injuries for the loss of property are not recoverable since, under this court’s precedent, emotional damages are only recoverable for certain limited situations. Dogs are considered personal property under state law, and damage to personal property is not one of the situations in which emotional damages are recoverable. The court would not create a precedent to allow people to recover emotional distress damages when animate personal property is harmed, as that change would be best suited for the legislature to make. Affirmed.

Child's emotional support animal fits within definition of "counseling" to support transfer of dog from father/owner to child. Matter of S. A. B., --- P.3d ----, 326 Or. App. 192 (2023). In this Ohio juvenile dependency case, a father appeals a juvenile court judgment ordering him to transfer the dog to his child, claiming that the court lacked the authority. He also claims the dog is his personal property and not the child's. The child's therapist testified that the child's mental health symptoms are exacerbated by "missing and worrying about the dog." The therapist testified that, because of the bond that child shares with the dog, the child's emotional support dog should be this particular dog. In contrast, the father claims the dog is legally his and provides a household benefit for him by keeping raccoons away from his chickens and deterring thieves from entering the property. On appeal, the father argues that an emotional support animal does not fall within the statutory definition for "counseling" and, thus, the court's order was tantamount to giving away his property. The court found that the dictionary definition of the term, read with the policy goals of the chapter, allowed the court to conclude that the term "counseling" includes the use of emotional support animals. In fact, ". . . this particular dog is not just a pet, but rather is an emotional support animal for child, as evidenced by child's strong emotional bond with this particular dog and various testimony demonstrating that this particular dog will contribute to child's well-being by providing child with emotional stability and security." As to the property issue, the court observed that courts routinely order parents to provide support for their children and this transfer of property did not abuse the court's discretion. Affirmed.

Despite settlement and embargo against Mexico to curb gillnet fishing of commercially valuable totoaba fish, it is unclear whether enough progress has been made to save critically endangered vaquita. Ctr. for Biological Diversity v. Haaland, --- F.Supp.3d ----, No. 22-00339, 2023 WL 3994447 (Ct. Int'l Trade June 14, 2023). A small porpoise called the vaquita is on the verge of extinction, largely due to gillnet fishing of the totoaba fish that commonly traps and kills vaquitas as well. This fishing takes place in waters in Mexico’s territory, where the last few vaquitas live. In 2020, under the Marine Mammal Protection Act (MMPA), the United States banned the importation from Mexico of seafood products caught with gillnets inside the vaquita’s range. Plaintiffs brought this lawsuit in 2022 against the U.S. Department of the Interior arguing that defendants caused an unlawful delay responding to a 2014 letter requesting that Secretary of the Interior certify the embargo against Mexico in order to curb the fishing of the totoaba, as doing otherwise diminished CITES by furthering the extinction of the vaquita. Plaintiffs also requested an order enjoining defendants from further delay in responding to the petition to certify Mexico, and costs and attorneys’ fees associated with the lawsuit. After settlement negotiations took place, parties reached a conditional settlement. It remains unclear whether Mexico has made progress in implementing the plan to save the vaquita, whether CITES is being implemented effectively by Mexico, and whether the President will act on the Secretary’s certification. To read more about the challenges facing the vaquita population, see the Overview.

June 2023

U.S. Supreme Court holds California Prop 12 on cruel confinement of pigs does not violate dormant Commerce Clause. Nat'l Pork Producers Council v. Ross, 598 U.S. ------- S.Ct. ----, No. 21-468, 2023 WL 3356528 (U.S. May 11, 2023). Following the adoption of California’s Proposition 12, two organizations – the National Pork Producers Council and the American Farm Bureau Federation (Petitioners) – filed this lawsuit on behalf of the members of these organizations that are in the business of raising and processing pigs for the sale of pork meat. Petitioners allege that Proposition 12, which forbids the sale of whole pork meat in California that is made from breeding pigs (or their immediate offspring) that are confined in a cruel manner, violates the dormant Commerce Clause of the U.S. Constitution by placing an impermissible burden on interstate commerce. Under Proposition 12, confinement of pigs is cruel if it prevents a pig from lying down, standing up, fully extending its limbs, or turning around freely. Petitioners allege that the cost of compliance with Proposition 12 will increase production costs, but concede that those costs will fall on both California and out-of-state pork producers. The Supreme Court granted certiorari and affirmed the judgment of the Ninth Circuit, rejecting petitioners’ arguments that Proposition 12 violates the dormant Commerce Clause of the U.S. Constitution. The Court found no violation of the dormant Commerce Clause because: (1) petitioners concede that Proposition 12 did not implicate the antidiscrimination principle, because it imposes the same burdens on in-state pork producers that it imposes on out-of-state pork producers, and (2) petitioners’ reliance on the Pike line of cases to prevent a state from regulating the sale of a consumer good within its borders on nondiscriminatory terms was rejected, as that line of cases had never yielded such a result.

New York defendant's 10-year ban on possessing animals left in place on appeal. People v. Minutolo, 215 A.D.3d 1260 (N.Y. App. Div. 2023). Defendant appealed from a judgment convicting him of animal cruelty in violation of New York Agriculture and Markets Law § 353. The conviction stemmed from defendant repeatedly striking one of his dogs out of "frustration" after the dog failed to come when called. On appeal, defendant called into question the authentication of surveillance video from a nearby gas station showing him striking the dog. The Supreme Court, Appellate Division found the portion of surveillance video showing defendant repeatedly striking one of his dogs was sufficiently authenticated. Further, other evidence established that he "cruelly beat" the dog by punching the dog with a closed fist three to five times. Finally, defendant's challenge to the penalty imposed under Agriculture and Markets Law § 374 (8)(c) that prohibits defendant from owning or otherwise having custody of any other animals for 10 years was rejected by the court. The judgment was unanimously affirmed.

Dog owner not liable for fall-related injuries suffered by pedestrian after dog chased ball into street. Murga v. Yarusso, 215 A.D.3d 979 (N.Y. App. Div. 2023). This New York case involved action to recover damages for personal injuries sustained after defendant's dog allegedly ran into street and pushed the plaintiff pedestrian to the ground. The plaintiff described the dog as acting like a "big puppy" and the dog did not bite the plaintiff. In contrast, the defendant testified that the dog was chasing a ball in the defendant's front yard and did not actually go in the street. Rather, defendant asserts that plaintiff tripped upon seeing the dog in the yard. The complaint alleged that the defendant was negligent in failing to keep the dog under control and to take protective measures knowing of the aggressive propensity of the dog. The Supreme Court, Suffolk County granted the defendant-owner's motion for summary judgment. On appeal by the plaintiff, the plaintiff also suggested that defendant might be liable for throwing the ball which caused the dog to run in the street and knock the plaintiff down. The Supreme Court, Appellate Division, held that the plaintiff cannot recover under such a theory, as New York does not recognize a common-law negligence cause of action to recover damages for an owner's alleged negligence in the handling of a dog. The summary judgment was affirmed as the court found the owner was not liable to pedestrian for injuries sustained.

April/May 2023

Claims of fraud, conversion/trespass to chattels, and intentional infliction of emotional distress based on inhumane euthanasia of cat by veterinarian allowed to go to trial. Berry v. Frazier, --- Cal.Rptr.3d ----, 2023 WL 3141235 (Cal. Ct. App. Apr. 28, 2023). Ryan Berry sued veterinarian Jeffery R. Frazier over the euthanasia of her cat. Berry claimed that Frazier performed the procedure (an intracardiac injection) without her informed consent, using an inhumane and unnecessary method that caused pain to the cat and emotional distress to her. The court found that Berry's allegations of fraud were sufficient to support a claim, as Frazier intentionally misled her about the procedure. The court also ruled that the conversion/trespass to chattels claim and intentional infliction of emotional distress claim were valid, as Frazier's actions violated Berry's property rights and caused severe emotional distress. However, the court agreed with the trial court that there was no separate cause of action for a violation of Civil Code section 3340, but Berry could seek exemplary damages under this section in connection with other causes of action (the court also rejected Frazier's argument that Section 3340 does not apply to veterinarians). The court remanded the case to allow Berry to file a second amended complaint to include the request for exemplary damages. The appeals from the previous orders were dismissed, the judgment of dismissal was reversed, and the case was sent back to the trial court for further proceedings, with instructions to modify the demurrer order and allow the filing of a second amended complaint.

District Court finds insufficient standing for animal advocates who sought petition of rulemaking to regulate the handling and slaughter of "downed" pigs by the FSIS. Farm Sanctuary v. United States Dep't of Agric., --- F.Supp.3d ----, 2023 WL 2673141 (W.D.N.Y. Mar. 28, 2023). Several non-profit organizations, including Farm Sanctuary and Animal Legal Defense Fund, filed a lawsuit against the United States Department of Agriculture (USDA) and Food Safety and Inspection Service (FSIS) related to the slaughtering of pigs. The plaintiffs alleged three causes of action related to the humane treatment, handling, and disposition of downed pigs, violation of the Humane Methods of Slaughter Act, and arbitrary and capricious denial of a Petition for Rulemaking. The court found that the plaintiffs lacked standing to pursue both causes of action and failed to establish that the defendants violated the HMSA and the APA. The court ruled that the plaintiffs did not establish an injury in fact for standing purposes. The defendants argued that they complied with Congress's mandates and that some obligations are not judicially reviewable, to which the court agreed. The court also concluded that the statute grants discretion to the Secretary to determine whether to promulgate regulations for the humane treatment of non-ambulatory livestock and that agency decisions not to take enforcement action are unreviewable. As a result, the defendants are entitled to summary judgment on the first and second causes of action.

Ohio court finds dog participating in dog program at prison was not "vicious" under Ohio's statutory definition to impute liability to department of corrections. Dillon v. Ohio Dep't of Rehab. & Correction, --- N.E.3d ----, 2023-Ohio-942. Anna Dillon, a certified "senior dog handler," was attacked by a dog named "Roosevelt," owned by an Ohio Reformatory for Woman (ORW) corrections officer. Despite previous interactions without incident, Roosevelt attacked Dillon in March 2018, causing multiple bite wounds. After the incident, Roosevelt was removed from the program. Dillon filed a civil action against the Ohio Department of Rehabilitation and Correction (ODRC) in 2020, alleging negligence and spoliation of evidence. The trial court ruled in favor of ODRC in September 2021. Dillon appealed, arguing that the trial court's findings were incorrect. The court evaluated whether Roosevelt was a vicious dog prior to the incident, using Ohio's statutory definition. The court found that Roosevelt's previous behaviors did not meet the definition of serious injury required to classify him as vicious. The court also dismissed Dillon's claim of negligent keeping of Roosevelt since the first issue was resolved. Regarding spoliation of evidence, Dillon claimed that ODRC willfully destroyed the handler folder for Roosevelt. However, the court found no evidence of willful destruction or disruption of Dillon's case. The judgment in favor of ODRC was affirmed.

March 2023

Connecticut court shuts down dog owner's claim for emotional distress under "bystander" theory after witnessing dog run over by delivery driver. Brisson v. These Guys New York Deli Corp., Not Reported in Atl. Rptr., 2023 WL 370990 (Conn. Super. Ct. Jan. 20, 2023). The Superior Court of Connecticut considers defendants' motion to strike plaintiffs' claims for emotional distress arising from the death of their pet dog. Plaintiffs argue that previous Connecticut case law (Myers v. Hartford, 84 Conn. App. 395) left open the question of whether courts could consider a claim for emotional distress damages due to the loss of a pet. The incident giving rise to the litigation occurred in 2021, where a driver for the defendants' company ran over plaintiffs' pet dog while making a delivery. Myers left often the issue of recovery of damages when a "bystander" owner witnesses a "fatal injury." The court then examined the factors articulated by the Connecticut Supreme Court for recovery of emotional damages by a bystander. In doing so, the court here determined that the relationship between a pet and its owner does not meet the "closely related" element articulated by the Supreme Court. The court stated: "Absent appellate clarification that this factor includes other relationships, including the one at issue here between a pet owner and pet, this court cannot conclude that such a relationship is sufficiently like the close human relationships required under Clohessy." The court noted that it agreed with defendants that allowing plaintiffs' claim would amount to creating a new cause of action without legislative or appellate authority. Defendants' motion to strike was granted.

Summary judgment not appropriate where city presented no evidence to support claim of substantial burden where resident keeps chickens as emotional support animals in violation of ordinance. Whiteaker v. City of Southgate, --- F.Supp.3d ----, 2023 WL 317457 (E.D. Mich. Jan. 19, 2023). The plaintiff (“Whiteaker”) contends that the City violated the FHA by denying Whiteaker's request for an exemption from City Ordinance 610.13, which prohibits City residents from maintaining chickens (or other typical farm animals) on their property. Whiteaker was issued a citation by the City for a violation of Ordinance 610.13 and appeared in district court to defend himself, claiming he had a right to keep the chickens under Michigan's Right to Farm Act, and subsequently, under the Fair Housing Act (FHA). In the instant motion for summary judgment by the City, the court examined the "reasonableness" of Whiteaker's request for a reasonable accommodation under the FHA. The court found that the balancing test required under the FHA, to wit, weighing Whiteaker's disability-related need to keep the chickens as a source of comfort and support against the City's claims that the chickens pose a threat to public health, is a triable issue of fact. Indeed, the court observed that the City's citation of documentation from the CDC only lists the "potential dangers" chickens can pose to public health without sufficient evidence to supports its claim that the chickens will burden the City financially and administratively. In contrast, Whiteaker claims a disability and has provided evidence of his disability. The court cited Whiteaker's evidentiary support for his claim of disability and need for the chickens to alleviate those symptoms against the fact the City has not presented any testimony, affidavits, or "evidence of any kind" to support its claim. Thus, the court denied the motion for summary judgment.

Intervening act of Congress corrects FOIA issues for plaintiff seeking animal welfare records from federal agency. Am. Soc'y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., 60 F.4th 16, 2023 WL 2026831(2d Cir. 2023). In 2019, Plaintiff-Appellant the American Society for the Prevention of Cruelty to Animals (“ASPCA”) sued Defendants-Appellees the U.S. Department of Agriculture and the Animal and Plant Health Inspection Service (“APHIS”) alleging that APHIS followed a "policy or practice" of violating FOIA for failing to comply with requests for records related to the agency response to maintenance of animal welfare standards and licensing of animal dealers/exhibitors. This suit was prompted by APHIS' 2017 decommissioning of two public databases that allow users (including the ASPCA) to access records on commercial breeding facilities including inspection reports and photographs. APHIS contends that there was not a policy or practice that violated FOIA because it was corrected as the result of an intervening act of Congress, specifically, the Consolidated Appropriations Act of 2020. The district court granted the motion for summary judgment on the pleadings, finding that while the decommissioning of the databases did indeed impair the ability of the ASPCA to receive prompt FOIA requests, ASPCA did not establish that the court must intervene to correct such a policy or practice and Congress already acted to correct the breakdown through the appropriations bill. On ASPCA's timely appeal here, the Second Circuit agreed with the district court that the Consolidated Appropriations Act of 2020 reversed the records access problems.

January/February 2023

Livestock not excluded from neglect portion of WV anti-cruelty law. Beasley v. Sorsaia, 880 S.E.2d 875 (W. Va. 2022). Petitioner was charged with animal cruelty in West Virginia. The incident stemmed from 2020 where humane officers in Putnam County seized several horses and a donkey that were denied “basic animal husbandry and adequate nutrition[.]”  After the seizure, petitioner claimed the magistrate lacked jurisdiction to dispose of the case because farm animals are excluded under the Code. That motion was granted by the magistrate and the animals were returned to the petitioner. After a short period of time, petitioner was charged with six counts of criminal animal cruelty and again the magistrate dismissed the complaint. However, the magistrate stayed the dismissal on the State's motion so that the circuit court could determine whether § 61-8-19(f) excludes livestock. The circuit court agreed that the section encompasses livestock from inhumane treatment and the magistrate was prohibited from dismissing the complaint. Petitioner now appeals that decision here. This court first examined the anti-cruelty statute finding that the structure of the exception under subsection (f) refers back to the conditional phrase that ends in "standards" for keeping the listed categories of animals. The court disagreed with the petitioner's claim of a "blanket exclusion" for livestock since the Commissioner of Agriculture has promulgated rules that govern the care of livestock animals that includes equines. The court held that § 61-8-19(f) establishes an exclusion for farm livestock only when they are “kept and maintained according to usual and accepted standards of livestock ... production and management." The circuit court's writ of prohibition was affirmed and the matter was remanded.

CHIMP Act requires NIH to transfer all chimps to Chimp Haven. Humane Soc'y of the United States v. Nat'l Institutes of Health, Slip Copy, No. 21-CV-00121-LKG, 2022 WL 17619232 (D. Md. Dec. 13, 2022). Plaintiff animal welfare advocates sued the National Institute of Health (NIH) for failing to transfer all chimpanzees housed at the Alamogordo Primate Facility to a retirement sanctuary known as “Chimp Haven." In 2015, NIH officially announced that it would cease biomedical research on chimpanzees and establish a working group to transfer all 288 surplus chimpanzees owned by NIH to Chimp Haven. In 2019, the NIH announced that not all chimpanzees would be transferred to Chimp Haven because 44 of those individuals were too frail for transfer due to medical conditions. After cross-motions for summary judgment, this court considers whether transfer is legally required. On appeal, Plaintiffs contend that the plain language of the CHIMP Act requires the transfer of all chimps and the court owes no deference to agency interpretation. In contrast, the Government argues that the decision is consistent with the CHIMP Act because the plain language of the act only requires that surplus chimpanzees offered by NIH be "accepted" into CHIMP Haven. The court found that the plain and unambiguous language, and use of the word "shall," in the CHIMP Act requires the NIH to transfer ALL chimpanzees to the federal sanctuary system. In addition, the legislative history of the CHIMP Act reinforces that reading of the statute. While the court recognized NIH's concern toward the frailest chimpanzees, the proper avenue is within the legislative branch. Plaintiffs' motion for partial summary judgment was granted and the Government's cross motion was denied as was the motion to dismiss. The court directed the parties to file a joint status report with views on the relief Plaintiff seeks and how the matter should proceed in light of the instant opinion.

Board minutes and testimony from village board members in motion to dismiss concerning ordinance violation for keeping excess pets was impermissible. Vill. of Orion v. Hardi, --- N.E.3d ----, 2022 WL 17256761 (Ill. App. Ct. 2022). The plaintiff, the Village of Orion (Village), sued defendants to enjoin them from keeping more than three cats in violation of a Village ordinance. After a dismissal and amended complaint by the Village, the trial court granted defendants' amended motion to dismiss, finding that the Village had previously voted to allow defendants to keep more than three cats. Here, the Village appeals this decision. By way of background, the defendants lived together in the Village since 1998, and one defendant served as the animal control officer for about 15 years. In 2013, the Village enacted an ordinance making it unlawful to keep more than three dogs or cats over the age of six months (except for licensed kennels or veterinarian clinics). The trial court's order found that the Board's language at the 2014 meeting revealed "unambiguous" language that defendants could keep the cats in their possession. After remand, the Village filed its second amended complaint in 2022 and defendants against filed a motion to dismiss. After a hearing with testimony from Board members and others, the trial court found there was a motion to allow the keeping of the excess cats and this negated the ability of the Village to proceed with an ordinance violation. On appeal here, this court finds the 2014 board minutes are insufficient to support a motion to dismiss. The submission of the board minutes together with and a defense witness, followed by the Village's presentation of another board member's testimony to refute that, amounted to the court "improperly allow[ing] the parties to conduct a mini-trial on the veracity of the essential allegations of the complaint." Thus, the trial court's order granting the dismissal was reversed and the matter was remanded.

2022

November/December 2022

Dog left in parked car on "very hot" day created a substantial and unjustifiable risk sufficient to establish criminal negligence. State v. Butler, --- A.3d ----, 2022 WL 4488304 (N.H. Sept. 28, 2022).  Defendant Kevin Butler was convicted of criminal negligence after he left his dog inside a parked vehicle for 45 minutes when the temperature was over 90 degrees outside. The charge came after a neighbor noticed a dog in the vehicle that was "scratching at the windows and the door" and appeared to be in distress. After calling the police, an animal control officer removed the animal from the unlocked car and transported the distressed dog to a local veterinary clinic. At trial, the defendant testified that he was out running errands on a "very hot" day, and asked his son to get the dog out of the car as Defendant's hands were full. On appeal here, Defendant contends that the evidence was insufficient to establish the mens rea of criminal negligence for both charges. The State must prove that a defendant “fail[ed] to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct" and that this risk constitutes a gross deviation from conduct performed by a reasonable person. Here, the court found that the record supports the trial court's conclusion that the defendant failed to become aware of a substantial and unjustifiable risk that the dog would overheat in the car and that his failure to perceive this risk constituted a gross deviation from reasonable care. The temperature was high that day, the car was parked in direct sunlight with all the windows up, and the dog was left for around an hour. The fact that Defendant relied upon his 8-year-old son to remove the dog under these circumstances constituted a gross deviation from reasonable care. This was not "mere inattention" as Defendant claimed. The conviction was affirmed.

Summary judgment not appropriate in Indiana where evidence presented that Great Dane dogs have a "natural propensity" to be territorial. Daniels v. Drake, 195 N.E.3d 866 (Ind. Ct. App. 2022). Plaintiff Damon Daniels appeals from the trial court's entry of summary judgment in favor of the Drakes. The incident stems from an unprovoked dog bite at defendants' home. The Drakes live on a large, rural property in Indiana with no neighbors. The Drakes' dog "Max," a large Great Dane, would roam the property unrestrained. In September of 2020, Daniels, a FedEx driver, entered the property to deliver a package. After walking toward Lisa with the package, Max barked once and then bit Daniels in the abdomen. Daniels sustained puncture wounds, a one-centimeter laceration, swelling and a hematoma from the bite. After Daniels filed the instant complaint seeking damages related to the dog bite, the Drakes filed a motion for summary judgment claiming that they did not have actual knowledge of Max's vicious propensities prior to the bite. In response, Daniels contended that Great Danes have a "natural propensity" to be territorial, which is exacerbated by isolation. The trial court granted summary judgment in favor of defendants. On appeal here, the court explained that Indiana law states that knowledge of a dog's dangerous or vicious tendencies may not be inferred from a first-time, unprovoked bite, but that knowledge may be inferred where evidence shows that the particular breed to which the owner's dog belongs is known to exhibit such tendencies." While the court observed that the Drakes presented evidence of a lack of actual knowledge of Max's vicious propensities, the expert who testified on Great Dane behavior presented evidence that Great Danes might behave with "territorial aggressive tendencies" in a given situation. The Drakes argued on appeal (for the first time) that this evidence by a canine behavioral expert was "immaterial" and cannot be used to show what lay people would know about Great Danes. The court was unpersuaded by the Drakes' novel argument, and this created a genuine issue of material fact. Thus, this court reversed the order granting summary judgment for the Drakes and remanded the case for further proceedings.

Virginia animal cruelty statute does not require that malicious maiming of livestock animals must be against the will of the owner. Haefele v. Commonwealth, 878 S.E.2d 422 (Va. Ct. App. Oct. 18, 2022). Defendant Haefele was convicted of two counts of maliciously maiming the livestock of another, in violation of Code § 18.2-144, and two counts of conspiring to maliciously maim the livestock of another. Defendant's neighbor possessed two goats on her property in Spotsylvania County and received several complaints. Ultimately, the code enforcement officer instructed the neighbor to remove the goats and even offered assistance in relocating them. However, about a month after this order, Defendant and two other men entered the neighbor's goat pen with the neighbor's permission and killed the goats with “what looked like a two-by-four with spikes wrapped around it." After investigation and review of video footage taken of the attack, Defendant and the two others were charged and convicted by bench trial in 2021. Testimony by an expert in veterinary pathology revealed that the animals suffered before they died. On appeal here, Defendant contends that he could not be convicted  “because the defendant [Haefele] was acting with the permission of, and in concert with, the owner of the animals in question.” The court disagreed, finding no language in the statute that limits the statute only to acts that were against the will of the owner. Defendant also claims he did not act with requisite malice because the “the owner of the goats had given him permission to act against the goats." Again, the court recounted the brutal and repeated acts against the goats that occurred over a ten-minute span. Thus, the evidence showed that Defendant acted with sufficiently demonstrated malice. While livestock owners can ask others to euthanize or properly slaughter their livestock, the manner in which Defendant caused the goats' deaths clearly demonstrated malicious intent. Affirmed and remanded.

Felonious cruelty to animals conviction in North Carolina affirmed where jury concluded that a defendant maliciously set fire that proximately caused the puppy's death. State v. Charles, 878 S.E.2d 166 (N.C. Ct. App., 2022). Defendant Cheito Charles appealed from judgments entered upon a jury verdict finding him guilty of second-degree arson and felonious cruelty to animals. The incident stemmed from a house fire in the summer of 2020 where the defendant set fire to his sister's boyfriend's house while the boyfriend's puppy was still inside. At trial, the defendant contended that there was no evidence that he knew the existence of the puppy. However, the trial court instructed the jury that, in order to convict Defendant of felonious cruelty to animals, the jury need only conclude that Defendant maliciously and “intentionally start[ed] a house fire which proximately result[ed] in the injury or death to the animal.” There was no need to prove that Defendant was aware of the puppy in the home. Ultimately, Defendant was convicted of second-degree arson and felonious cruelty to animals. On appeal here, Defendant argues that the trial court erred by instructing the jury on the doctrine of transferred intent regarding the animal cruelty charge. This court rebuffed this argument, finding that there was no error with instruction since the jury only needed to conclude that Defendant maliciously set the fire that proximately caused the puppy's death. This same reasoning also supported the sufficiency of the evidence claim. The court dispensed with Defendant's final argument as to the sufficiency of the indictment. As a result, the appellate court found no error with Defendant's trial.

September/October 2022

Oregon court says animals lack capacity to sue on own behalf because of their "distinctive incapacity." Justice by and through Mosiman v. Vercher, --- P.3d ----, 321 Or.App. 439 (2022). The Oregon Court of Appeals, as a matter of first impression, considers whether a horse has the legal capacity to sue in an Oregon court. The Executive Director of Sound Equine Options (SEO), Kim Mosiman, filed a complaint naming a horse (“Justice”)as plaintiff with the Mosiman acting as his guardian, and claiming negligence against his former owner. In the instant appeal, Mosiman challenges the trial court's grant of defendant's motion to dismiss. In 2018, Mosiman filed a complaint on Justice's behalf for a single claim of negligence per se, alleging that defendant violated the Oregon anti-cruelty statute ORS 167.330(1) by failing to provide minimum care. Defendant moved to dismiss the complaint on the grounds that a horse lacks the legal capacity to sue and the court granted dismissal. Here, the appellate court first found no statutory authority for a court to appoint a guardian for an animal because "a horse inherently lacks self-determination and the ability to express its wishes in a manner the legal system would recognize." The animal has a "distinctive incapacity" that sets it apart from humans with legal disabilities that require appointment of a legal guardian. The court reaffirmed the law's treatment  of animals as personal property and found no support in the precedent for permitting an animal to vindicate its own legal rights. The court affirmed the trial court's judgment dismissing the complaint with prejudice.

Hearing on forfeiture of animals does not require a jury trial in Oregon. State v. Hershey, 370 Or. 200, 515 P.3d 899 (2022). Defendant's animals (22 dogs, 3 horses, and 7 chickens) were impounded in 2017 after he was charged with second-degree animal neglect. The district attorney asked the court for immediate forfeiture of the animals or for defendant to post a bond for care within 72 hours of a hearing on the matter. In response, defendant filed a motion for jury trial. The lower court denied defendant's motion and the court of appeals affirmed the ruling. Here, the Oregon Supreme court considers whether a special statutory proceeding brought under ORS 167.347 provides a right to a jury trial in accordance with Article I, section 17, of the Oregon Constitution. The Court first looked at the nature of the relief in the statute insofar as whether such relief is equitable or legal. The Court found the purpose of the statute is mainly to provide unjust enrichment of the owner when the owner does not pay for the costs of their animals' care. As such, the court found the relief was equitable in nature. The decision of the Court of Appeals and the order of the circuit court were affirmed.

Wild horses are not estrays for purposes of New Mexico's law regardless of whether they are found on private land. Wild Horse Observers Association, Inc. v. New Mexico Livestock Board, --- P.3d ----, 2022 WL 2901248 (N.M. Ct. App. July 22, 2022). This appeal examines the protection afforded to New Mexico's free-roaming horses under NMSA 1978, Section 77-18-5 (2007). The New Mexico Livestock Board (the Board) appeals from a district court order granting declaratory and injunctive relief sought by Wild Horse Observers Association, Inc. (WHOA). WHOA brought an action for declaratory and injunctive relief against the Board and others regarding the status of horses corralled by a private citizen on private property. The citizen had initially complained to the Board about the free-roaming horses on her property and was told that the Board only takes possession of horses corralled by citizens. The citizen did so, and the Board took possession of the herd, where it then posted on its website that the horses would be sold at auction. WHOA filed the instant emergency action, stating that the Board exceeded its authority and unlawfully treated the subject horses as estray livestock. The group sought a temporary restraining order (TRO) preventing the Board from impounding or selling the subject horses. The district court granted WHOA's request for a TRO, thereby prohibiting the Board from taking any action with the horses. After a bench trial on the merits, the district court determined that the Board's actions to take possession and sell the subject horses were contrary to the Board's statutory authority, enjoined the Board from “further unlawful possession and selling” of the subject horses, and awarded WHOA costs and attorney fees. This court found no error with the lower court concluding that the horses should be protected as “wild horses” because the definition of that term does not depend on whether, at the moment of their capture, the horses were on land that is private, but instead depends on whether the horses generally roam public land. Therefore, the horses were not estrays. Ultimately, this court affirmed the district court's order to the extent that it correctly determined that the subject horses are wild horse rather than estray, but reversed the district court's determination that the Board should have acted according to its statutory duties under Section 77-18-5. The case was remanded for proceedings consistent with this opinion and further consideration of attorney fees.

July/August 2022

Incident involving dog and another resident and whether this was a "direct threat" raised genuine issue of material fact to preclude summary judgment in FHA housing discrimination case. Andrade v. Westlo Mgmt. LLC, --- A.3d ----, 2022 WL 2183604 (R.I. June 17, 2022). The defendants, Westlo Management LLC (Westlo) seek review of a Superior Court order granting partial summary judgment on several counts in favor of the plaintiffs, Curtis W. Andrade and The Rhode Island Commission for Human Rights (the commission). The defendants assert that the existence of genuine issues of material fact precluded partial summary judgment and that the commission did not have standing to intervene in this matter. The matter stems from a denial of plaintiff's request for a reasonable accommodation at Westlo's property. Prior to moving in to Westlo's low-income property, plaintiff was told by a leasing agent that he was not permitted to have his dog, Enzo, because the dog (a pit bull) was on the complex' restricted breed list. After cross-motions for summary judgment by both parties, the hearing justice granted plaintiffs motion for summary judgment finding that Westlo had discriminated against Andrade. However, she found there to be a genuine issue of material fact as to whether the dog had requisite training. The justice also acknowledged that she had misstated that the request for the reasonable accommodation had occurred before an aggressive incident with the other resident. As a result, she declined to make a finding of fact on that issue. On defendants' appeal of summary judgment, defendants argue that the issue of whether an accommodation is reasonable under the FHA is a factual one and thus it was error for the hearing justice to make those determinations. The Supreme Court looked at the similar language of both the federal FHA and the state FHPA. While the court found that plaintiff met the definition for disability under the laws and that defendant was made aware of plaintiff's need for reasonable accommodation, it was troubled by the "direct threat" posed by the dog. Specifically, the court found issue with the date mix-up in the initial hearing for the incident with the dog and another resident. Therefore, due to the highly fact-specific nature of the assessment of an assistance animal as well as the conflicting evidence presented, this court disagreed with the hearing justice and concluded summary judgment was not appropriate. The record was remanded to the Superior Court for further proceedings in accordance with this opinion..

New York holds that animals cannot be the subject of habeas corpus relief. Nonhuman Rts. Project, Inc. v. Breheny, --- N.E.3d ----, 2022 WL 2122141 (N.Y. June 14, 2022). This New York case centers on a petition of habeas corpus for an elephant named "Happy" who is housed at the Bronx Zoo. Petitioner Nonhuman Rights Project is a not-for-profit corporation with a mission of seeking to establish that “at least some nonhuman animals” are “legal persons” entitled to fundamental rights, including “bodily integrity and bodily liberty.” In 2018, petitioner commenced this habeas proceeding in Supreme Court against respondents. Petitioner sought a writ of habeas corpus “on behalf of Happy,” an Asian elephant that petitioner claimed was unlawfully confined at the Zoo in violation of her right to bodily liberty. Happy has resided at the Bronx Zoo for the last 45 years and has been held in captivity since she was approximately one year old. Petitioners request that she be transferred to an “appropriate sanctuary" where she could potentially be integrated with other elephants. Specifically, respondents argued that there was no legal basis for habeas relief and that Happy's living conditions comply with all relevant laws and accepted standards of care. The Supreme Court dismissed the petition on the ground “that animals are not ‘persons’ entitled to rights and protections afforded by the writ of habeas corpus” and that habeas relief is not available for an animal. On petitioner's appeal, the Appellate Division unanimously affirmed, reasoning that “the writ of habeas corpus is limited to human beings.” While the court acknowledged that the law recognizes that animals are not mere "things," and existing animal protection laws underscore this conclusion, the scope of habeas corpus does not include animals. As such, the order of the Appellate Division was affirmed.

May/June 2022

Plaintiffs fail to establish standing to force SeaWorld to release records related to marine mammal deaths at facilities. Marino v. Nat'l Oceanic & Atmospheric Admin., --- F.4th ----, 2022 WL 1548489 (D.C. Cir. May 17, 2022). Plaintiff animal welfare organizations sued the National Marine Fisheries Service (NMFS) and its parent agency, the National Oceanic and Atmospheric Administration, seeking to enforce conditions in permits held by SeaWorld. In 1994, the Marine Mammal Protection Act (MMPA) was amended such that it shifted authority to oversee conditions of marine mammals at exhibitors from NMFS to the Animal and Plant Health Inspection Service (APHIS). After three pre-1994 orcas died at SeaWorld, plaintiffs tried to convince NMFS that it still had the authority to enforce the pre-1994 rules related to release of records, but NMFS contended that its authority was extinguished in 1994. Plaintiffs brought suit, arguing that the NMFS's policy rests upon an arbitrary and capricious interpretation of the MMPA, and that its refusal to enforce the permit conditions was also arbitrary and capricious. The district court dismissed the plaintiffs’ suit for lack of standing. On appeal here, the court examined plaintiffs' standing under the three-part Lujan test. The court found a lack of redressability for the plaintiffs. Plaintiffs fail to allege any facts from which the court could infer the relief they seek would likely cause the NMFS to redress their alleged harms. In fact, because the MMPA language on permits is permissive, NMFS has discretion whether to enforce them. This is coupled with the fact that there is no evidence that third-party SeaWorld will turn over the reports even if NMFS were to direct them. Therefore, this court held that the district court did not err in determining that the plaintiffs lacked standing to pursue this case. Affirmed.

Court upholds California ban on sale of poultry that has been force-fed to produce foie gras. Ass'n des Éleveurs de Canards et d'Oies du Quebec v. Bonta, --- F.4th ----, 2022 WL 1436840 (9th Cir. May 6, 2022). California prohibits the in-state sale of products that are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.” Cal. Health & Safety Code § 25982. The law had a 7.5-year grace period before it went into effect. After nine years of litigation and in their third set of appeals before this Court, the parties ask the court here to decide whether California's sales ban is preempted by the Poultry Products Inspection Act (“PPIA”) or violates the dormant Commerce Clause. As to the first issue of preemption, the plaintiff sellers contend that at least one USDA Policy Book defines foie gras as liver from poultry that has been "specially fed and fattened" and other USDA documents suggest this is done via forced-feeding. Thus, contend the sellers, it is impossible to produce and properly label foie gras, as is required by the PPIA, and then also comply with the California law. The court disagreed with the assertion, finding that the sellers can still force feed birds to make their products, but not sell those in California. Further, the sellers raise a new suggestion that the ban constitutes express preemption because force feeding operates as an "ingredient requirement." Essentially, they contend you cannot have foie gras without force-feeding birds. This was also rejected, as the court found nothing new that would reverse the precedent established in the prior decision by the court. The sellers' argument that the ban is "unduly burdensome" also failed since there is not requirement that a state impose the "least burdensome" method for in-state commerce. The court held that the sales ban is neither preempted nor unconstitutional and that the specified transactions are out-of-state sales permitted by California law.

April 2022

Washington Supreme Court holds animal cruelty is a crime of domestic violence. State v. Abdi-Issa, 504 P.3d 223 (Wash. 2022). The incident stems from an evening after defendant insisted on taking his girlfriend's dog, a small Chihuahua and Dachshund mix, for a walk. The girlfriend testified that defendant had a history of disliking the dog and had previously threatened to kill both her and her dog. On that evening, two witnesses heard "a sound of great distress" and saw defendant making "brutal stabbing" motions toward the dog and then saw him kick the dog so hard that she flew into the air. Police officers responded and then transported the dog to a veterinary clinic where the dog subsequently died. One of the two witnesses had a panic attack at the scene and testified later that she continued to have panic attacks thereafter with flashbacks of the experience. Defendant was charged and found guilty of first-degree animal cruelty with a domestic violence designation and also two sentencing aggravators. On appeal, the Court of Appeals vacated the domestic violence designation and the impact on others sentence aggravator. On appeal here, the Supreme Court found that animal cruelty could be designated a crime of domestic violence. The statute defining domestic violence has a non-exhaustive list of what crimes can constitute domestic violence. While animal cruelty is not listed, the court found that testimony of defendant's prior controlling behavior coupled with research showing how abusers use violence toward their victims' pets to manipulate and terrorize victims was sufficient. As to the sentencing aggravator, the court found that defendant's actions had a destructive and foreseeable impact on the witnesses who saw the animal cruelty. Thus, under these facts, the Court ruled that animal cruelty can be designated a crime of domestic violence and that the jury was properly instructed that it could find the impact on others sentencing aggravator. The judgment of Court of Appeals reversed and remanded. 

After private complaint filed by organization, Pennsylvania court reverses district attorney decision not to charge local farm for animal cruelty based on undercover investigation. In re Priv. Crim. Complaint Filed by Animal Outlook, 2022 WL 588181, 2022 PA Super 37 (Feb. 28, 2022). The requested charges stem from information obtained from an undercover agent who was employed at Martin Farms, where she captured video of cruel mistreatment of animals on the farm that AO contends constituted criminal animal cruelty. Ultimately, the PSP issued a press release in March 2020 that indicated that the District Attorney had declined prosecution. After this, AO drafted private criminal complaints that were submitted to the Magisterial District Judge who concluded that the DA correctly determined that there was not enough evidence for prosecution. AO then filed a petition of review of the disapproval of its private complaints pursuant to Pa.R.Crim.P. 506(B)(1) before the trial court, which again dismissed AO petition for review. AO filed this appeal to the Superior Court of Pennsylvania. In reviewing the trial court's decision, the Superior Court found that the trial court committed multiple errors of law. This court found that AO provided sufficient evidence to show prima facie cases of neglect, cruelty, and aggravated cruelty with respect to the incidents. The court then analyzed whether the record supported a defense of "normal agricultural operations" defense that would counter the charges. This court found that incidents like the dehorning of cattle that already had horns fused to the skull and extreme tail twisting and shocking were sufficient to overcome the affirmative defense. The trial court's dismissal of AO's petition for review was reversed and the trial court was ordered to direct the DA to accept and transmit charges for prosecution.

Iowa's new "ag-gag" law ruled unconstitutional due to viewpoint discrimination of protected speech. Animal Legal Def. Fund v. Reynolds, --- F.Supp.3d ----, 2022 WL 777231 (S.D. Iowa Mar. 14, 2022). Plaintiffs contend that Iowa's new "ag-gag" law criminalizes their actions in gathering information through undercover investigations at animal production facilities. Both parties have filed Cross-Motions for Summary Judgment. Plaintiffs contend that the new law violates the First Amendment of the United States Constitution because it discriminates based on content and viewpoint and cannot survive strict scrutiny. The court first noted that the issue with § 717A.3B, and other laws aimed at prohibiting trespassers at agricultural facilities, is the law seeks to single out specific individuals for punishment based on their viewpoint regarding such facilities. This law operates in a viewpoint discriminatory fashion because it prohibits the deceptive trespasser who gains access or obtain employment at an agricultural facility with the intent to cause “economic harm ... to the agricultural production facility's ... business interest" as opposed to trespassers with an intent to benefit the facility. Thus, Section 717A.3B does not focus solely on the right to exclude, the legally cognizable harm of trespass, but only on the right to exclude those with particular viewpoints. While the court noted that a state legislature may determine whether specific facilities—such as agricultural facilities, nuclear power plants, military bases, or other sensitive buildings—are entitled to special legal protections, the First Amendment does not allow those protections to be based on a violator's viewpoint. Plaintiffs' Motion for Summary Judgment was granted and Defendant's was denied.

January/March 2022

In a matter of first impression, court finds dog suffered "substantial pain" under anti-cruelty law by relying on human cases. State v. Hackett, --- P.3d ----, 315 Or.App. 360, 2021 WL 4987629 (2021). Defendant was convicted of second-degree animal abuse, among other crimes. On appeal, he argues that the trial court erred when it denied his motion for judgment of acquittal (MJOA) and imposed fines (in addition to incarceration) without first determining his ability to pay. A witness was visiting her mother and heard a dog "yike" in pain outside while she was at her mother's house. The dog was whimpering and laying in submission as the defendant hit the dog. Then, after going inside briefly to call police, the witness returned outside to see defendant was "just going to town and beating the dog" and throwing rocks at the dog to the point where the witness was concerned for the dog's life. On appeal, defendant contends that the trial court erred on the second-degree animal abuse charge because the evidence did not permit a rational inference that Bosco experienced "substantial pain" as required by the statute. The court, in a matter of first impression, examined whether the dog experienced substantial pain. Defendant suggests that his dog did not experience a significant duration of pain to permit a finding of substantial pain. The court disagreed, analogizing with cases where a human victim could not testify concerning the pain. Thus, the court concluded that the evidence supported a reasonable inference that Bosco's pain was not "fleeting" or "momentary." Not only did the witnesses see the defendant kick and pelt the dog with rocks, but one witness left to phone police and returned to find the defendant still abusing the dog. The trial court did not err in denying defendant's MJOA, but the matter was remanded for entry of judgment that omitted the "due in 30 days" for the fines. 

Court not required to return dogs to defendant whose criminal charges related to dogs were dismissed or compensate for seized dogs. Siegel v. State, 2021 Ark. 228, 635 S.W.3d 313 (Ark., 2021), reh'g denied (Jan. 13, 2022). Defendant Karen Siegel was convicted of 31 misdemeanor counts of animal cruelty based on 31 breeding dogs that were seized from her home. At issue here on appeal by defendant is whether the underlying statutes that allows seizure of the animals, Arkansas Code Annotated sections 5-62-106 and 5-62-111, are constitutional. In addition, defendant argues that by not ordering return of the seized dogs to defendant and compensating defendant for her loss of property was error. The first circuit court criminal case was dismissed on speedy-trial grounds and that ruling was upheld in later appeal. The issues on the instant appeal relate to the status of the seized dogs. Siegel argues that the circuit court erred by not ordering the return of her seized property and also not assigning a value for the property that was destroyed or damaged. The court here looked at the language of the seizure statute and found that Siegel failed to post a bond to care for the dog as is contemplated by the statute. The statute provides no award of damages to a defendant and the county that seized the dog is not a party in the criminal action brought by the state. Thus, the lower court was correct in stating that Siegel's remedy was a separate civil action. As to Siegel's challenges to the constitutionality of those statutes, this court found the argument moot since review of the issue would have no practical legal effect upon a then-existing controversy. The case was affirmed in part and dismissed as moot in part.

Evidence of dogfighting including training equipment, weights, scales, and a "pit" were sufficient to sustain conviction. State v. Crew, --- S.E.2d ----, 2022 WL 151341 (N.C.App.,2022). Defendant Daniel Crew appealed his convictions for dogfighting, felony cruelty to animals, misdemeanor cruelty to animals, and restraining dogs in a cruel manner. Crew also challenges the trial court's restitution orders totaling $70,000, which the trial court immediately converted to civil judgments. The arrest and conviction of defendant stemmed from an investigation at defendant's residence, where 30 pit bulls were recovered with injuries "similar to injuries a dog would sustain through dogfighting." In addition, publications and notes on preparing for a fight were found, as well as dogfighting training equipment such as a "jenny," staging area for fights, and weight scales for weighing dogs. The State charged Crew with fifteen counts of engaging in dogfighting, one count of allowing property to be used for dogfighting, five counts of felony cruelty to animals, twenty-five counts of misdemeanor cruelty to animals, and sixteen counts of restraining dogs in a cruel manner. Ultimately, Crew was convicted by the jury of eleven counts of dogfighting, three counts of felony cruelty to animals, fourteen counts of misdemeanor cruelty to animals, and two counts of restraining dogs in a cruel manner. Defendant appealed his criminal judgment and petitioned for a writ of certiorari for the award of restitution entered as civil judgments. On appeal, this court rejected defendant's claim that there was insufficient evidence of dogfighting. The police found training equipment, medication commonly used in dogfighting operations, and a dogfighting "pit" or training area as well as the notes preparing dogs to fight. A reasonable juror could have concluded that Crew intended to engage in dogfighting. The court found no error concerning the criminal convictions, but vacated the conversion of the restitution to civil judgments against defendant.

2021

December 2021

Court was within discretion to award dog to husband where wife claimed dog was an ESA but did not present evidence of disability. Harby v. Harby, --- So.3d ----, 2021 WL 5344799 (Fla. Dist. Ct. App. Nov. 17, 2021). This Florida case involves an appeal of a final judgment of dissolution of marriage. With respect to animal law, the wife appealed the trial court's distribution of family dogs, Liberty and Nico, to the former husband. According to testimony, the dogs were bonded to each other. The former wife testified that the family adopted Liberty "to be an emotional support dog" and was her constant companion. Since separation, the dogs have been in the husband's possession and care. The trial court determined that the dogs were marital property and that the wife appeared to be in good health with no physical or mental disabilities. Further, both parties agreed the dogs should not be separated from each other and the court found the dogs had been in the husband's possession since the parties separated. On appeal, the wife argues that the trial court's distribution of the family dogs to Former Husband was arbitrary, capricious, and unsupported by the record. In particular, the wife contends that one of the dogs is her emotional support animal and former husband expressed no desire or claim for the dogs in testimony. The court first observed that Florida is not one of the handful of states with statutes that give pets a special property status in distribution of marital assets. Instead, animals are considered personal property. Here, the court found both parties have cared for the dogs at times and the husband cared for them after the parties separated in 2017. And, while the court found that Liberty was "emotionally comforting," there was no evidence that the former wife had a disability and that Liberty provided emotional support to alleviate an effect of such disability. Thus, the role Liberty played was to provide comfort and companionship like most household pets. The appellate court concluded that the trial court acted within its discretion by awarding the family dogs to the former husband.

Court erred in granting visitation for dogs after marriage dissolution. Matter of Marriage of Niemi, 496 P.3d 305 (Wash. Ct. App. 2021). Douglas Niemi appealed the trial court's order granting Mariah Niemi visits with their two dogs, which were awarded to Douglas as his separate property in a dissolution proceeding. Douglas and Mariah were married for 27 years and had two large dogs who were each about two years old. During the petition for legal separation, Mariah asked for 10 hours a week of visitation with the dogs because they were "family members." Following the trial, Mariah continued to emphasize her desire to have access to the dogs and the court ultimately awarded the dogs to Douglas as separate property, but allowed Mariah visits with the dogs three times a week. Douglas appealed that award, contending that the trial court abused its discretion by awarding visitation of his separate property. Mariah countered with the fact a court has discretion to grant her access to this "special classification" of property. Here, the Court of Appeals agreed with Douglas, finding that the lower court had no authority under Washington law to compel a party to produce separate property after a marital dissolution. The court also held that is not the province of the court to recognize a special category of personal property when the statute has not done so. Finally, the court observed that such agreements about visitation with animals would lead to continuing supervision and enforcement problems in the court system. Because the trial court exceeded its authority in awarding visitation rights, this court reversed and remanded the issue for the trial court to strike the provision related to visitation and maintenance costs for the dogs..

Dog fighting expert witness was qualified due to extensive experience and training in investigating dog fighting operations, regardless of college degree. Queen v. State, --- So.3d ----, 2021 WL 4471099 (Miss. Sept. 30, 2021). Defendant Tommie Queen was convicted of three counts of dog fighting contrary to Mississippi law. The resulting conviction began with in 2017 after a sheriff's officer received a call about dogs barking and possibly fighting. After being dispatched to defendant's property, the officer encountered multiple dogs on chains and dogs that were actively fighting each other. The officer obtained a search warrant and seized numerous items including heavy logging chains, bite sticks, intravenous (IV) bags containing saline, medicine bottles, vials of vitamins, muscle milk and other muscle-building items, several scales, and a treadmill. Approximately five or six badly injured dogs were taken to a veterinarian and humanely euthanized. Defendant was convicted on three of the nine indicted counts of animal fighting and sentenced to three years on each count to run consecutively. On appeal here, defendant raised three issues: (1) whether the trial court erred by tendering Kyle Held as an expert in the field of animal cruelty and dog fighting; (2) whether the State presented sufficient evidence to convict Queen of dog fighting; and (3) whether the trial court erred by denying Queen's motion to recuse. As to the first issue on qualification of the expert witness, the proffered expert, Kyle Held, had been employed by the ASPCA for approximately ten years as the director of investigations. Not only was Held certified by the National Animal Control Association, but he had investigated dog fighting operations "probably a few hundred" times according to his testimony. This included the largest organized dog fighting seizure in history. Moreover, Held indicated he testified in approximately 100 animal cruelty or animal fighting cases and has been qualified as an expert six times in previous dog fighting cases. While defendant argued that Held should not be qualified as an expert because he did not hold any college degrees, this court found that argument without merit. After dispatching the other two claims, Defendant's convictions and sentences were affirmed.

Excess transfer of dogs under PA Dog Law was single violation rather than continuing violation. Burkholder v. Department of Agriculture, --- A.3d ----, 2021 WL 4780651 (Pa. Commw. Ct. Oct. 14, 2021). In this Pennsylvania case, James Burkholder, d/b/a Whispering Spring Kennel (Burkholder), petitioned for review of an adjudication of the Secretary of Agriculture (Secretary) that imposed a $19,500 civil penalty on Burkholder for transferring two dogs in excess of the annual limit under his Class IV kennel license in December of 2017. Burkholder raises two arguments: first, the Dog Law does not specify that transfers of more than 60 dogs by a private kennel constitute violations; and two, the penalty imposed is excessive and unreasonable. This court first noted that a Kennel Class IV license clearly does not allow him to transfer more than 60 dogs and thus any transfers in excess violate the Dog Law. As to the excessive penalty argument, the court first examined the distinction between separate and ongoing violations of the Dog Law because it raised a question of first impression under the Dog Law. The problem here is that, where an owner has transferred more dogs than his license allows, there is no way to correct the violation. Thus, said the court, a per-day fine is improper. "Each unauthorized transfer of a single dog is a single violation of the Dog Law, not a continuing violation, because it is not ongoing in nature and such transfers can be feasibly segregated into discrete violations so as to impose separate penalties." The court concluded that the Department erred as a matter of law by imposing ongoing penalties for two discrete unauthorized transfers. The matter was remanded for further proceedings.

November 2021

Court erred in granting visitation for dogs after marriage dissolution. Matter of Marriage of Niemi, 496 P.3d 305 (Wash. Ct. App. 2021). Douglas Niemi appealed the trial court's order granting Mariah Niemi visits with their two dogs, which were awarded to Douglas as his separate property in a dissolution proceeding. Douglas and Mariah were married for 27 years and had two large dogs who were each about two years old. During the petition for legal separation, Mariah asked for 10 hours a week of visitation with the dogs because they were "family members." Following the trial, Mariah continued to emphasize her desire to have access to the dogs and the court ultimately awarded the dogs to Douglas as separate property, but allowed Mariah visits with the dogs three times a week. Douglas appealed that award, contending that the trial court abused its discretion by awarding visitation of his separate property. Mariah countered with the fact a court has discretion to grant her access to this "special classification" of property. Here, the Court of Appeals agreed with Douglas, finding that the lower court had no authority under Washington law to compel a party to produce separate property after a marital dissolution. The court also held that is not the province of the court to recognize a special category of personal property when the statute has not done so. Finally, the court observed that such agreements about visitation with animals would lead to continuing supervision and enforcement problems in the court system. Because the trial court exceeded its authority in awarding visitation rights, this court reversed and remanded the issue for the trial court to strike the provision related to visitation and maintenance costs for the dogs..

Dog fighting expert witness was qualified due to extensive experience and training in investigating dog fighting operations, regardless of college degree. Queen v. State, --- So.3d ----, 2021 WL 4471099 (Miss. Sept. 30, 2021). Defendant Tommie Queen was convicted of three counts of dog fighting contrary to Mississippi law. The resulting conviction began with in 2017 after a sheriff's officer received a call about dogs barking and possibly fighting. After being dispatched to defendant's property, the officer encountered multiple dogs on chains and dogs that were actively fighting each other. The officer obtained a search warrant and seized numerous items including heavy logging chains, bite sticks, intravenous (IV) bags containing saline, medicine bottles, vials of vitamins, muscle milk and other muscle-building items, several scales, and a treadmill. Approximately five or six badly injured dogs were taken to a veterinarian and humanely euthanized. Defendant was convicted on three of the nine indicted counts of animal fighting and sentenced to three years on each count to run consecutively. On appeal here, defendant raised three issues: (1) whether the trial court erred by tendering Kyle Held as an expert in the field of animal cruelty and dog fighting; (2) whether the State presented sufficient evidence to convict Queen of dog fighting; and (3) whether the trial court erred by denying Queen's motion to recuse. As to the first issue on qualification of the expert witness, the proffered expert, Kyle Held, had been employed by the ASPCA for approximately ten years as the director of investigations. Not only was Held certified by the National Animal Control Association, but he had investigated dog fighting operations "probably a few hundred" times according to his testimony. This included the largest organized dog fighting seizure in history. Moreover, Held indicated he testified in approximately 100 animal cruelty or animal fighting cases and has been qualified as an expert six times in previous dog fighting cases. While defendant argued that Held should not be qualified as an expert because he did not hold any college degrees, this court found that argument without merit. After dispatching the other two claims, Defendant's convictions and sentences were affirmed.

Excess transfer of dogs under PA Dog Law was single violation rather than continuing violation. Burkholder v. Department of Agriculture, --- A.3d ----, 2021 WL 4780651 (Pa. Commw. Ct. Oct. 14, 2021). In this Pennsylvania case, James Burkholder, d/b/a Whispering Spring Kennel (Burkholder), petitioned for review of an adjudication of the Secretary of Agriculture (Secretary) that imposed a $19,500 civil penalty on Burkholder for transferring two dogs in excess of the annual limit under his Class IV kennel license in December of 2017. Burkholder raises two arguments: first, the Dog Law does not specify that transfers of more than 60 dogs by a private kennel constitute violations; and two, the penalty imposed is excessive and unreasonable. This court first noted that a Kennel Class IV license clearly does not allow him to transfer more than 60 dogs and thus any transfers in excess violate the Dog Law. As to the excessive penalty argument, the court first examined the distinction between separate and ongoing violations of the Dog Law because it raised a question of first impression under the Dog Law. The problem here is that, where an owner has transferred more dogs than his license allows, there is no way to correct the violation. Thus, said the court, a per-day fine is improper. "Each unauthorized transfer of a single dog is a single violation of the Dog Law, not a continuing violation, because it is not ongoing in nature and such transfers can be feasibly segregated into discrete violations so as to impose separate penalties." The court concluded that the Department erred as a matter of law by imposing ongoing penalties for two discrete unauthorized transfers. The matter was remanded for further proceedings.

October 2021

NJ Supreme Court holds that dog license records are not private and protected against disclosure. Bozzi v. City of Jersey City, 2021 WL 4256377 (N.J. Sept. 20, 2021). This New Jersey case considers whether owning a dog creates an objectively reasonable expectation of privacy such that the owner's personal information in the dog licensing record might be exempt from disclosure under the New Jersey Open Public Records Act (OPRA). Plaintiff Ernest Bozzi, a licensed home improvement contractor, submitted a request to the City of Jersey City (Jersey City) for dog license records to solicit customers for his invisible fencing business. He sought only the names and addresses of dog owners. Jersey City denied his request, objecting on the ground that such a disclosure would violate the dog owners’ reasonable expectation of privacy and that such a disclosure would place dog owners and non-dog owners a risk for theft (e.g., non-dog owners might be singled out for robbery or burglary). The lower court found no privacy interest in disclosing the names to comply with plaintiff's request and the Appellate Division affirmed that order. Upon Jersey City's petition for certification, the New Jersey Supreme Court affirmed that ruling, finding that owning a dog is "substantially a public endeavor in which people do not have a reasonable expectation of privacy." In looking at the OPRA privacy clauses, the Court concluded that owning a dog is "inherently, a public endeavor." In fact, dog owners continually expose themselves through social media, vet visits, public dog parks, bumper stickers, and the like, which militates against the activity being a private activity. While there are other aspects of dog licensing that may expose dog owners to a risk, like disclosure that a dog is a service animal or identifying the particular breed of the dog and exposing an owner to possible theft, the release of names and addresses does not rise to that concern. The Appellate Division's judgment was affirmed.

Plaintiff animal organizations have standing to challenge civil suit provision of Arkansas’ “ag gag” law. Animal Legal Def. Fund v. Vaught, 8 F.4th 714 (8th Cir. 2021). Several animal advocacy organizations filed a complaint against the Vaughts and Peco Foods, Inc. seeking an order that would prevent defendants from bringing a civil suit under Ark. Code Ann. § 16-118-113 (colloquially known as Arkansas' "ag gag" law). The statute provides a civil cause of action for unauthorized access to protected properties described under the law. Plaintiffs claim that the statute violates their right to free speech under the First Amendment by chilling them from engaging in activities protected under the First Amendment. In particular, the plaintiffs have "specific and definite plans" to investigate the defendants' chicken slaughterhouses and pig farms by sending undercover investigators to seek employment with defendants and collect information to support their mission to "reform[] animal agriculture." The district court found that plaintiffs failed to establish Article III standing to sue, finding that the injury at hand was too speculative. On appeal here, the court noted found that plaintiffs established the three primary elements of standing. First, but for the statute, plaintiffs allege that they would engage in the protected constitutional conduct. Second, the plaintiffs adequately outlined their intention to engage in a course of conduct that is proscribed by the statute. Finally, the court found a credible threat of enforcement that was objectively reasonable. Thus, the complaint sufficiently established a case or controversy. The lower court judgment was reversed and the case was remanded.

Exigent circumstances were present for a warrantless entry where there was concern over a medical emergency and subsequent entry showed the presence of 37 animals under noxious conditions. Gaetjens v. City of Loves Park, 4 F.4th 487 (7th Cir. 2021), reh'g denied (Aug. 12, 2021). Plaintiff Gaetjens filed a § 1983 action against city, county, and various local government officials alleging that her Fourth Amendment rights were violated after officials entered and condemned her home and seized her 37 cats. After her neighbor and emergency contact could still not locate Gaetjens, police were phoned out of concern that Gaetjens might be experiencing a medical emergency. Intense odors of feces, urine, and a possibly decomposing body greeted the police and required them to call the fire department so that the home could be entered with breathing devices. While police did not find Gaetjens, they did find 37 cats. The house was ultimately condemned and animal control were able to impound the cats (except for four that died during or after impoundment). As it turns out, Gaetjens was at the hospital during this whole process. After learning of the impoundment, Gaetjens filed the instant action. The district court granted summary judgment to defendants. On appeal here, the Seventh Circuit considered whether the warrantless entry into Gaetjens home was reasonable based on exigent circumstances. Relying on a recent SCOTUS case that found absence from regular church service or a repeated failure to answer a phone call supported an emergency exception for a warrant, the Court noted that the "litany of concerning circumstances" in the case at bar "more than provided" a reasonable basis for entry. As to the confiscation of the cats, the court noted that previous cases support the warrantless seizure of animals when officials reasonably believe the animals to be in imminent danger. While the use of the "cat grabber" did lead to an unfortunate death of one cat, the overall seizure tactics were necessary and reasonable. Thus, the Court affirmed the judgment of the district court.

August/September 2021

Animal welfare and public interest groups had standing to challenging pig “high-speed slaughter” rule. Farm Sanctuary v. United States Department of Agriculture, --- F.Supp.3d ----, 2021 WL 2644068 (W.D.N.Y. June 28, 2021). Plaintiffs (nonprofit organizations working to protect animals, people, and environments from industrial animal agriculture) filed suit against the USDA and FSIS challenging the implementation of the Modernization of Swine Slaughter Inspection rule ("Slaughter Rule”). Plaintiffs contend that the rule allows nearly all pigs in the U.S. to be slaughtered as "unlimited speeds," thereby posing risks to animal welfare and consumer safety. Plaintiffs' lawsuit was later amended to add a claim that challenges Defendants' failure to ban the slaughter of non-ambulatory or "downed" pigs in the rule. Defendants filed motions to dismiss on the grounds that Plaintiffs have no standing to sue. Plaintiffs contend that they have been injured by Defendants' implementation of the Slaughter Rule. Specifically, Plaintiffs argue that the authorization of the high-speed slaughter rule directly conflicts with their organizational missions and redirects resources to counteracting the Slaughter Rule instead of other activities like rescue of animals and advocacy. Some of the plaintiff organizations further allege that their members include consumers who eat pork products and are concerned about the increased health risks they face from consuming products from pigs who have not been adequately inspected as well as impacts to the environment from increased slaughter. The Court ruled that Plaintiffs have plausibly alleged that Defendants’ unlawful practices have impaired and frustrated their ability to engage in mission-related activities and caused a consequent drain on their limited resources, which “constitutes far more than simply a setback to the organization's abstract social interests" sufficient to survive a motion to dismiss. Taking Plaintiffs allegations in their pleadings as true, the Court finds that the amended complaint contains allegations sufficient to support organizational standing. Defendants' motions to dismiss were denied.

Construction of a fence through a common area was not a necessary accommodation under the FHA. Guenther v. Walnut Grove Hillside Condominium Regime No. 3, Inc., 961 N.W.2d 825 (Neb., 2021). Plaintiff Christine Guenther appeals her dismissal of her complaint for declaratory judgment against her condominium complex. Guenther contended that Walnut Grove refused to make a reasonable accommodation under the federal Fair Housing Act and the Nebraska Fair Housing Act (collectively FHA) by denying her request to secure her daughter's emotional support dogs through construction of a fence in a common area. In 2018, Guenther made a request to Walnut Grove to construct a fence through part of the common area behind her condominium so that her dogs can safely spend time outside. Guenther stated that she made this request because she witnessed (via sounds) her first emotional support animal killed by either another dog or a car shortly after she moved in. However, Walnut Grove denied Guenther's request, contending that it lacked the authority to divide or partition the "common elements" of the property. As a result, Guenther filed a complaint in the district court for Douglas County seeking a declaration that Walnut Grove refused a reasonable accommodation under the FHA. A trial was held and the lower court dismissed Guenther's complaint, holding that Guenther's daughter did not suffer from a physical or mental impairment which substantially limits one or more of her major life activities and that therefore, Guenther failed to show that N.G. is a handicapped person. Additionally, the court held that Guenther failed to prove that her requested accommodation is necessary to afford the daughter an equal opportunity to use and enjoy the home. On appeal to the Nebraska Supreme Court, the court found the case boiled down to whether Guenther "carried her burden of proving her request to build a fence in Walnut Grove's common area (1) is reasonable and (2) necessary (3) to afford a handicapped person the equal opportunity to use and enjoy a dwelling." As to the factors, the court found that while it is undisputed that the daughter suffered from mental health disorders that were benefited by the interaction with the family dogs, there was insufficient proof that a fence was necessary. In fact, testimony revealed that the daughter freely enjoyed the use of the animals while at Walnut Grove. The fence was not a necessary part of Guenther's ability to use and enjoy the dwelling. Further, Guenther failed to prove that the alternatives proposed by Walnut Grove would not have been effective. Because Guenther failed to meet her burden to prove that construction of the fence is necessary, her claim for refusal of a reasonable accommodation under the FHA failed the judgment was affirmed.

California's Proposition 12 does not violate the dormant Commerce Clause by forcing out-of-state producers to sell pork consistent with the new welfare standards. Nat'l Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021). This case concerns a challenge to Proposition 12, a measure passed by California voters in 2018 that bans the sale of whole pork meat (no matter where produced) from animals confined in a manner inconsistent with California standards. Proposition 12 amended sections 25990–25993 of the California Health and Safety Code to “prevent animal cruelty by phasing out extreme methods of farm animal confinement." The National Pork Producers Council and the American Farm Bureau Federation (collectively referred to as “the Council”) filed an action for declaratory and injunctive relief on the ground that Proposition 12 violates the dormant Commerce Clause. The court noted that under its precedent, a state law violates the dormant Commerce Clause only in narrow circumstances. The court held that the complaint here does not plausibly allege that such narrow circumstances apply to Proposition 12; thus, the court ruled that the district court did not err in dismissing the Council's complaint for failure to state a claim.

June/July 2021

Maryland statute on pet damages for tortious injury excludes noneconomic damages. Anne Arundel County v. Reeves, --- A.3d ----, 2021 WL 2306720 (Md. June 7, 2021). This Maryland case examines the scope of compensatory damages available for the tortious injury or death of a pet under Md. Code Cts. & Jud. Proc. (“CJP”) § 11-110, a law that allow pet owner to recover damages for the tort-based death or injury of their pet up to a capped level. The incident giving rise to this case occurred when Anne Arundel County Police Officer Rodney Price shot Michael Reeves' dog in the front yard of Mr. Reeves' home. After a jury trial, a verdict was returned in favor of Mr. Reeves for $10,000 for the trespass to chattel claim, and $500,000 in economic damages and $750,000 in noneconomic damages for the gross negligence claim. The circuit court then reduced the gross negligence damages to $200,000 pursuant to the Local Government Tort Claims Act (“LGTCA”). CJP § 5-301 et seq. The circuit court also reduced the trespass to chattel damages to $7,500 pursuant to the then-applicable damages cap in CJP § 11-110.1. The Court of Special Appeals held in an unreported divided decision that the statute did not bar recovery of noneconomic damages. On appeal here, this court now holds that CJP § 11-110 limits the recovery for compensatory damages to the amount specified by that statute and does not allow for recovery of noneconomic compensatory damages. And while the court found there was legally sufficient evidence to support the jury's finding that Officer Price was grossly negligent, it also held that Mr. Reeves could not recover these damages due to Maryland's single recovery rule. As a matter of first impression, this court found CJP § 11-110's plain language evinces an intent to exclude those things not expressed in the statute. In other words, because the legislature defined the specific types of compensatory damages it allows, it intended to exclude other forms of damages like noneconomic damages. Further, the court found the plaintiff's reading of the statute  "illogical" because economic damages would be capped, but yet noneconomic damages would not be. Thus, it would be up to the General Assembly to expressly provide for noneconomic damages in amendments to the statute.

Animal cruelty and aggravated animal cruelty convictions for same offense violate prohibition against double jeopardy since those crimes are degree variants in Florida. Houk v. State, --- So.3d ----, 2021 WL 1685627 (Fla. Dist. Ct. App. Apr. 29, 2021). Appellant challenges her convictions and sentences for animal cruelty and aggravated animal cruelty. Appellant contends her dual convictions for those crimes violate double jeopardy because animal cruelty and aggravated animal cruelty are degree variants under section 775.021(4)(b)2. The conviction stems from Houk leaving her dog Gracie May in a car in a Walmart parking lot with the windows closed on a hot, humid day in Florida for over an hour. Apparently, Appellant had pressed a PVC pipe against the accelerator to keep the car accelerating since there was something wrong with the air conditioner. When employees gained entry to her vehicle, they discovered the A/C was actually blowing hot air and the dog was in great distress. Gracie died soon thereafter from heat stroke. A postmortem examination revealed her internal temperature was above 109.9 degrees. Houk was charged with aggravated animal cruelty and animal cruelty, tried by jury, and convicted. The appellate court first found that the offenses of animal cruelty and aggravated animal cruelty satisfy the Blockburger same elements test and do not fall under the identical elements of proof or subsumed-within exceptions. However, as to the degree variant exception, the court agreed with Appellant that the offense of animal cruelty and aggravated animal cruelty are not based on entirely different conduct and a violation of one subsection would also constitute a violation of the other. Additionally, while another statutory section allows the charging of separate offenses for multiple acts or acts against more than one animal, the section does not authorize "the charging of separate offenses or the imposition of multiple punishments when a single act against one animal satisfies both subsections." Accordingly, the court agreed with Appellant and reversed her conviction for animal cruelty (while keeping the higher degree conviction of aggravated cruelty).

FWS must explain its own contradictory positions on decision not to list Pacific walrus as threatened or endangered due to climate change. Center for Biological Diversity v. Haaland, --- F.3d ----, 2021 WL 2232487 (9th Cir. June 3, 2021).  This case is a challenge to a decision by the U.S. Fish and Wildlife Service ("Service") reversing its previous decision that the Pacific walrus qualified for listing as an endangered or threatened species under the Endangered Species Act of 1973 (“ESA”). In 2008, the Center for Biological Diversity (“Center”) petitioned the Service to list the Pacific walrus as threatened or endangered, citing the claimed effects of climate change on its habitat. In 2011, after completing a species status assessment, the Service issued a 45-page decision ("Decision") that found the listing of the Pacific walrus was warranted, but it declined to list the species because it found the need to prioritize more urgent listings. A settlement between the parties in 2017 required the Service to submit a proposed rule or a non-warranted finding. In May of 2017, the Service completed a final species assessment ("Assessment") that concluded some of the stressors to the species had "declined in magnitude" and the walruses had adjusted, which culminated in "a terse 3-page final decision that the Pacific walrus no longer qualified as a threatened species." As a result, in 2018, the Center filed this action alleging that the 2017 Decision violated the APA and ESA. The District Court granted summary judgement to the Service and this appeal followed. The Ninth Circuit first observed that, while the Assessment contains some new information, it does not explain why this new information resulted in an about-face from the Service's 2011 conclusion that the Pacific walrus met the statutory criteria for listing. The Ninth Circuit now holds that the Service did not sufficiently explain why it changed its prior position. As a result, the Court reversed the district court's grant of summary judgment to the Service and remanded it to the District Court to direct the Service to provide a sufficient explanation of its new position.

May 2021

Lower court did not err in allowing an amended answer to include pleading of affirmative defense in shooting of dog, but it did improperly grant summary judgment when it weighed credibility of evidence of dog harassing horses. Estis v. Mills, --- So.3d ----, 2021 WL 1396598 (La.App. 2 Cir. 4/14/21). The Estis' sued the Mills for the wrongful killing and disposal of the Appellants’ German Shepherd. On appeal, the Appellants argue that the district court erred in permitting the Appellees to amend their original answer to now include an affirmative defense of immunity pursuant to La. R.S. 3:2654, which would relieve the Appellees of liability. Further, the Appellants contend that the district court erred in granting the Appellees’ motion for summary judgment. The parties were neighbors whose property was separated by an enclosed pasture where the Mills used to keep horses. Despite requests from Mills, the Estis' dogs would enter the pasture and harass the horses. In 2017, Mills discovered the dog yet again in the pasture with the horses, so Mr. Mills shot, killed, and disposed of the dog. Subsequently, the Estis family filed suit seeking damages for the intentional killing of the dog and disposing of the dog in a bayou approximately ten miles away. The lower court granted a motion in favor of the Mills agreeing that they had immunity from suit under La. R.S. 3:2654.1. On appeal to this court, the Estises argue that the Mills waived the immunity under the statute because they failed to affirmatively plead the defense in their answer to the pleadings. The lower court gave the Mills received permission to amend their answer and plead the immunity provision. This court found no evidence that there was bad faith in the decision to the amend the pleadings like delay. As to Estis' claim that summary judgment was erroneously granted, this court found that the lower court judge's statements that, in effect, weighed the credibility of the photograph versus the testimony of the witness were inappropriate. Thus, the lower court erred in granting the motion for summary judgment. Finally, the court evaluated Estis' conversion claims for the disposal of the dog's dead body. This court said that, [i]f the court finds that the killing of the dog falls under La. R.S. 3:2654, then the claim for conversion of the dog's body does not survive. Thus, the trial court's judgment to allow the motion to amend the pleadings was affirmed, the granting of the summary judgment was reversed, and the dismissal of Estis' claims for conversion was reversed and remanded for further proceedings.

Appellants “voluntary” expenditure of time and resources did not give rise to standing in suit against state officials for failing to enforce animal shelter laws. Kasey v. Beshear, --- S.W.3d ----, 2021 WL 1324395 (Ky. Ct. App. Apr. 9, 2021). Appellants Teresa's Legacy Continues, Inc., a non-profit organization of concerned citizens and taxpayers in Kentucky, sued the Governor and Commissioner of Agriculture alleging failure to monitor or enforce compliance with animal shelter statutes (KRS3 Chapter 258, Animal Control and Protection). The appellants contend that in 120 of Kentucky's counties, only 12% are in compliance with the statutes and over 50% are in violation of at least three statutes. In lieu of filing an answer, the appellants filed a motion to dismiss based largely on appellants' lack of standing. The circuit court dismissed the complaint for lack of standing in 2018 and this appeal followed. On appeal, this court held that the failure to enforce Kentucky laws is not the particularized injury contemplated under the Lujan test. In fact, the court declined to expand the doctrine of standing to include an injury based on the appellants voluntary expenditure of personal time and resources to care for abandoned animals when they were under no legal obligation to do so. As to the asserted taxpayer standing, the court found that appellants failed to allege in circuit court that funds were being illegally expended and thus, could not consider this argument for the first time on appeal. Further, the animal shelter statutes at issue require only that the Governor and Commission of Agriculture disburse the funds and had no control over the oversight of funding. Lastly, the court acknowledged that while appellants have attempted to show standing via citizen and taxpayer status, Kentucky law has not previously considered that avenue. Affirmed.

City’s petition for declaratory judgment to euthanize two dogs after attack can proceed under city or state law without conflict, and failure to comply with Department of Health notification required by statute was harmless. City of Onida v. Brandt, --- N.W.2d ----, 2021 WL 1681818 (S.D., 2021). The City of Onida (the City) filed a petition for declaratory judgment seeking authorization from the circuit court to euthanize two dogs owned by the Appellants as “vicious animals” under Onida ordinances or, alternatively, based upon a determination that the dogs were dangerous under state law (SDCL 7-12-29). The circuit court concluded the City could not require the dogs to be euthanized under the ordinance but found that the requirements of SDCL 7-12-29 were met. Appellants appeal the circuit court's order directing the Sheriff to dispose of the dogs pursuant under state law. In 2020, the appellants' dogs attacked a neighbor's smaller dog just outside of the neighbor's door to their home. The attack caused numerous bite wounds and internal injuries to the smaller dog who eventually died. Prior to this event, there were two other incidents. The court found Appellants violated SDCL 40-34-2 by owning a “dog that chases, worries, injures, or kills any ... domestic animal ....” The court further found under the Ordinance that the dogs were improperly unleashed and running at large within city limits and that the dogs were “vicious animals.” However, the court determined the City could not require Appellants to euthanize the dogs under the Ordinance because no “vicious animal” notice had been given to Appellants prior to the fatal attack on the neighbors’ dog. However, the court found that Appellants’ dogs were dangerous under SDCL 7-12-29 and authorized the Sheriff to dispose of the dogs. The circuit court stayed the order pending this appeal. On appeal, the appellants challenge the City's authority to request that the Sheriff dispose of the dogs under SDCL 7-12-29 after the circuit court denied such relief under the Ordinance. Appellants claim that the court improperly used a "hybrid" application of both state and local law. This Court disagreed, finding that appellants presented no authority that the sheriff could not act under state law as opposed to city law. Appellants’ second argument is that circuit court erred by entering an order to permit the Sheriff to dispose of the dogs under the statute without first requiring consultation with the Department of Health for the purpose of rabies control. While the text of SDCL 7-12-29 includes a formal consultation requirement, the Court found this error to be harmless. The Court affirmed the judgment of the circuit court ordering that “the Sheriff may now dispose of [Appellants’ two dogs] through humane euthanasia.”

March/April 2021

Wyoming Supreme Court finds no error where jury instructions did not include subsection from cruelty to animals statute that allows the humane killing of an animal. Mackley v. State, --- P.3d ----, 2021 WL 671631 (Wyo. Feb. 22, 2021). The case stems from an incident where a dog escaped his owner and attacked the defendant's dogs at his front door. A local teenager grabbed the offending dog ("Rocky") and dragged him into the street as the dog fight carried on. The defendant responded by grabbing his gun and shooting Rocky as he was held by the teenager. A jury convicted defendant of both aggravated animal cruelty and reckless endangering. At the trial, defendant moved for judgment of acquittal on both charges, arguing that the Wyoming Legislature has established that humanely destroying an animal is not animal cruelty and that the State did not provide evidence that he intentionally pointed a firearm at anyone, which defendant contends is necessary for the reckless endangering charge. While defendant argued that the instructions should include subsection m from the statute, he only now on appeal contends that the subsection should have been given as a theory of defense. Thus, reviewing this argument for plain error, the Court found that defendant's theory that his killing was "humane" and thus excluded from the crime of aggravated cruelty was not supported by the language of the statute. In fact, such an interpretation not only goes against the plain language, but "then any animal could be killed, under any circumstances, as long as it is killed quickly." Defendant presented no evidence that the dog he shot was suffering or distressed and needed euthanasia. The trial court did not commit error when it declined to instruct the jury on subsection m. Affirmed.

Prior incident of throwing a pet to the ground was probative to show knowledge of risk in conviction for second-degree animal abuse. State v. Fockler, 308 Or. App. 765, 480 P.3d 960 (2021). Defendant appeals his conviction of animal abuse in the second degree (ORS 167.315). Neighbors witnessed him throwing his dog to the ground and called police. He argues that the trial court erred in admitting evidence that he previously threw a cat to the ground 13-years prior to the current incident and submission of this evidence created unfair prejudice. The prosecution contended that this evidence was admitted for a noncharacter/nonpropsensity purpose under OEC 404(3) to establish defendant's subjective awareness of the risk of throwing pets the ground. On appeal, this court noted that animal abuse in the second degree requires the state to prove that defendant  was “aware of and consciously disregard[ed] a substantial and unjustifiable risk.” At trial, the state introduced evidence that, in 2003, defendant threw a cat of his apartment window causing injury to the cat because it had defecated on the apartment floor. Defendant argued that there was an insufficient connection between the cat throwing incident and the current charge, and that the probative value of the evidence was at "best minimalistic." However, this court found that the cat throwing evidence was offered for a nonpropensity purpose of knowledge where it was reasonable to infer that defendant had a subjective awareness of the risks in throwing a pet to the ground. Therefore, the trial court did not err in determining that the evidence was relevant for the noncharacter purpose of establishing knowledge under OEC 404(3). The appellate court found that the lower court did not abuse its discretion in admitting the evidence after hearing both sides and weighing the appropriate factors. Affirmed.

Owner held responsible for omissions by livestock caretaker that caused harm to sheep. State v. Jallow, --- P.3d ----, 2021 WL 939178 (Wash. Ct. App. Mar. 8, 2021). Defendant Jallow appeals his conviction of two counts of animal cruelty in the first degree. The cruelty convictions stemmed from events first occurring in late 2016. An animal control officer (Davis) received a report on sheep and goats at defendant's property that were in poor condition. On the officer's second documented visit, he observed a a lifeless sheep. On a subsequent visit, the officer took a sheep that a neighbor has wrapped in a blanket to a local veterinarian who scored it very low on a health scale and ultimately had to euthanize the animal. After a couple more visits to bring food and monitor the animals, and after no contact from Jallow despite requests, Davis returned with a search warrant to seize the animals. Jallow was charged with three counts of first degree cruelty to animals and one count of bail jumping. At trial, Jallow contended that he contracted with another person (Jabang) to care for the animals after he went on an extended trip in October of 2016. After hearing testimony from both Jallow and Jabang (hired to care for the animals), Jallow was ultimately convicted of first degree cruelty. On appeal, Jallow first argued that there was insufficient evidence to support his conviction and that he was not criminally negligent because he arranged for someone else to care for the animals. However, the evidence showed that despite being aware that his caretaker was not providing sufficient care, Jallow continued to rely on him and did not take further action. The court noted that a reasonable person in this situation would have found an alternate caretaker. "Although Jallow himself was not neglecting to feed and water the animals, he was directly responsible for not ensuring that his animals were properly cared for. Because any rational trier of fact could have found that Jallow acted with criminal negligence, sufficient evidence supported his conviction." As to Jallow's contention that the jury instruction was incorrect, the appellate court agreed. The two instructional errors necessitated reversal of Jallow's conviction here. Reversed.

January/February 2021

Factual disputes preclude summary judgment as to duty of animal shelter that adopted out dog who attacked child after previously engaging in similar acts. Brown by Brown v. Southside Animal Shelter, Inc., 158 N.E.3d 401 (Ind. Ct. App., 2020). Plaintiffs (the Browns) appeal the trial court's grant of summary judgment in favor of Southside Animal Shelter, Inc. (“Southside”). The case stems from the adoption of a dog from defendant animal shelter. In 2014, the dog was surrendered by its owner to a neighboring animal shelter because it did not get along with another dog. The dog was adopted to another party where it attacked the family's two-year-old boy, causing significant injuries. The dog was then surrendered to the county animal shelter, who recorded the bite incident upon intake of the dog. After the mandated quarantine, the dog was eventually transferred to defendant animal shelter who was informed of the bite according to deposition testimony. However, during an 8-day aggression observation, the dog showed no signs of aggression. In late 2015, plaintiffs adopted the dog with a release that stated the history of the dog was unknown and the shelter was released from all liability resulting from illness or actions by the dog. Less than a month later, the dog attacked the Brown's six-year-old daughter causing injuries to her face. In the trial court action by the Browns against Southside, the court granted the defendant's motion of summary judgment based on the adoption release and dismissed the case. In this instant appeal before the Indiana Court of Appeals, the court focused on whether Southside owed a duty to the Browns to establish liability for the dog bite. The court found factual disputes remain as to whether Southside knew or should have known of the dog's past aggression and whether the knowledge from the volunteer who did intake for the dog imputed knowledge to the animal shelter. Ultimately, the Court found that Southside had a duty to the Browns to inform them of the dog's past bite history, and factual issues relating to that duty preclude the granting of summary judgment. Reversed and remanded.

Defendant animal abuser whose actions led to "Ponce's Law" will have lifetime ban on owning animals modified to ban only during period of probation. Archer v. State, --- So.3d ----, 2020 WL 7409970 (Fla. Dist. Ct. App. Dec. 18, 2020). Defendant Tim Archer pleaded no contest to felony animal cruelty in Florida. Archer's dog Ponce apparently made a mess in Archer's house and, when Archer "disciplined" Ponce, the dog bit him, leading to Archer violently beating and stabbing the dog to death. Public outcry over mild punishment in the state for heinous acts of animal abuse led to "Ponce's Law," which enhanced penalties (although it did not retroactively apply to Archer). As a condition of Archer's plea agreement, both parties stipulated to a restriction on future ownership of animals as part of Archer's probation. On appeal here, Archer argues that the trial court erred in imposing these special conditions of probation. The court found condition 34, which imposes a lifetime ban on ownership of animals, exceeded the trial court's jurisdiction regardless of the open-ended language of Ponce's law. The animal restriction is not "a license to exceed the general rule that prohibits a court from imposing a probationary term beyond the statutorily permissible term, which in this case is five years." The case was remanded to the trial court to modify the conditions of probation to be coextensive with the probationary term.

Federal Court denies coyote owner return of remaining coyote absent required state permits by TRO or preliminary injunction action. Tranchita v. Callahan, --- F.Supp.3d ----, 2021 WL 50349 (N.D. Ill. Jan. 5, 2021). This case involves a motion for a temporary restraining order (TRO) and preliminary injunction by Plaintiff Tranchita against Colleen Callahan, Director of the Illinois Department of Natural Resources (IDNR). In 2019, agents of the IDNR seized four coyotes Tranchita was raising at her home. After the seizure, three of the four coyotes died, and the remaining coyote, Luna, is elderly and in poor health. Tranchita seeks return of Luna from the coyote rescue center where Luna now resides. The IDNR contends that it will not release Luna until a court declares that the Plaintiff can legally possess her. Tranchita is a wildlife exhibitor and educator who has cared for orphaned coyote pups since 2006. In 2016, Tranchita forgot to obtain another Breeder Permit and then failed to do so for the successive three years. Consequently, while she possessed a USDA Exhibitor License, she did not possess the required Illinois state licenses to keep coyotes. After voluntarily dismissing her state court complaint, Plaintiff moved for a TRO and preliminary injunction enjoining Defendants from (1) requiring her to hold a Hound Running Permit in order to keep Luna in Illinois; and (2) seizing Luna so long as Tranchita holds a current Breeder Permit. Tranchita seeks prospective declaratory and injunctive remedies that are all directed to allowing her to keep Luna in Illinois without a Hound Running Permit. The court did not find that Tranchita had a likelihood of success on the merits for her five claims: her “class-of-one” equal protection claim, preemption claim, free exercise claim, procedural due process claim, and substantive due process claim. While it found that Plaintiff will suffer irreparable harm in the form of Luna's imminent death, the court noted that the harm must be "likely" rather than just "possible." Tranchita's delay in seeking preliminary injunctive relief (four months after she withdrew her state court claims) undermines her irreparable harm argument. While the court was sympathetic and concludes that Luna's death would constitute irreparable harm to Plaintiff, it was not enough to persuade the court that death is likely absent the issuance of a TRO or injunction. Finally, on balancing the harms and public interests, the court found they do not weigh decidedly in Plaintiff's favor. Thus, the court denied Tranchita's motion for a TRO and preliminary injunction.

2020

December 2020

Are Texas vets entitled to practice telemedicine with animal patients they have not previously examined? The Fifth Circuit says not necessarily. Hines v. Quillivan, --- F.3d ----, 2020 WL 7054278 (5th Cir. Dec. 2, 2020). The plaintiff challenged Texas' physical-examination requirement that prohibits veterinarians from offering individualized advice to pet owners unless the vet previously examined the animal. Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing in-person veterinary medicine in 2002 due to his age and other ailments. He then transitioned to a practice based remotely through the Internet. In 2012, the Texas State Board of Veterinary Medical Examiners (the Board) investigated Hines and found he had violated state law. In 2013, Dr. Hines filed suit against the Board members claiming that the physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The district court then granted the motion to dismiss by the Board and the Court of Appeals found Hines failed to state a claim on appeal. Since that 2015 opinion, Texas revised its medical doctor laws, allowing them to engage in telemedicine, but did not do the same for veterinary practice laws. In addition to that change, a United States Supreme Court held that statements made by medical doctors could now be deemed "professional speech" (the "NIFLA" case). As a result of these changes, Hines brought the present suit arguing that the changes in Texas' telemedicine laws and the NIFLA case enabled him to pursue a new equal-protection claim and First Amendment claim. With regard to his protected speech claim, this Court found that subsequent caselaw does entitle Hines' claim to greater judicial scrutiny than his previous case allowed. Thus, remand to the district court to make the initial evaluation of whether Hines' conduct or speech is being regulated is required. On the equal-protection argument, using a rational-basis review, the court held that it is rational to distinguish between human and animal medicine because of the differences in training, schooling, and overall practice of the professions. The court found the state's proffered reason that animals cannot communicate their symptoms as humans can ordinarily was a persuasive rational basis. Ultimately, the court left it to the Texas legislature to expand any telemedicine changes to the veterinary practice code. The action was affirmed in part, reversed and remanded in part.

Cruelty conviction affirmed where court finds search civilian-aided search and seizure reasonable. State v. Fay, --- A.3d ----, 2020 WL 7051326 (N.H. Dec. 2, 2020).  In this New Hampshire case, Christina Fay appeals her convictions on seventeen counts of cruelty to animals. In 2017, a search warrant executed at her residence resulted in the seizure of over 70 Great Danes. Police learned of the conditions at defendant's residence from defendant's prior employees, who gave accounts of floors covered in layers of feces, dogs being fed maggot-infested raw chicken, and dogs present with injuries/illness. Subsequently, the investigating Wolfeboro's police officer (Strauch) partnered with HSUS because the department did not have the resources to handle a large-scale animal law seizure. Strauch did not include in his affidavit supporting the search warrant's issuance that HSUS would be assisting the police, and the warrant itself did not explicitly state that HSUS was permitted to assist in its execution. On appeal, the defendant argues that the trial court erred in denying her motion to suppress by violating two of her constitutional rights: her right to be free from unreasonable searches and seizures and her right to privacy. As to defendant's argument that she had a right to be free from unreasonable searches and seizures, the court noted that it has not previously considered the extent to which it is constitutionally reasonable for the police to involve civilians when executing search warrants. The defendant argues that Strauch's failure to obtain express authorization for HSUS's aid from the magistrate who issued the search warrant was constitutionally unreasonable. The court found no instance in which a court has held that the failure to obtain express judicial authorization for citizen aid prior to the execution of a warrant rendered the subsequent search unconstitutional. The court concluded that the state did not violate the constitution by failing to obtain authorization for HSUS's involvement prior to the warrant's execution. Affirmed.

Buyer of sick dog unable to establish necessary evidence of racketeering activity for RICO case against franchised pet store and associated veterinarians. Cisneros v. Petland, Inc., 972 F.3d 1204 (11th Cir. 2020). Plaintiff Cisneros purchased a Shih Tzu puppy named "Giant" from Petland Kennesaw, a Kennesaw, Georgia franchise of Petland, Inc. She received a certificate of "veterinary inspection" and a limited health guarantee at the time of purchase. Several days later, problems arose with the puppy and she brought the dog back to the Petland affiliated veterinarian who prescribed antibiotics without making a diagnosis. Shortly thereafter, an emergency pet visit revealed the dog suffered from parvovirus. Cisneros called Petland who told her to take the dog back to the Petland vet if she wanted a refund. She did so and the dog died several days later. As a result, plaintiff alleged that actions were the intended result of a nationwide conspiracy involving Petland and its affiliates to sell unhealthy puppies from "puppy mills" where health conditions are rubber stamped by a network of "preferred veterinarians" and buyers are deceived by sales documents that distract from the fraud. Plaintiff broadly asserted three claims, the main one being violation of the federal RICO statute, 18 U.S.C. § 1962(c). The district court dismissed Cisneros's federal causes of action for failure to state a claim and declined to exercise supplemental jurisdiction over her remaining state-law claim, pursuant to 28 U.S.C. § 1367(c). After applying the six-fold test for a private plaintiff suing under the civil provisions of RICO, this Court found chiefly that Cisneros has alleged no facts that plausibly support the inference that the defendants were collectively trying to make money in pet sales by fraud, which is a common purpose sufficient to find a RICO enterprise. Even assuming that Cisneros has adequately pled fraud on the part of Petland Kennesaw, she has not alleged that its predicate acts constituted a pattern of racketeering activity. The action was affirmed in part, and vacated and remanded in part.

November 2020

Evidence sufficient on appeal in Illinois animal cruelty case where dogs kept in own filth next to dog fighting equipment. People v. Zamora,  --- N.E.3d ---- 2020 IL App (1st) 172011, 2020 WL 5797971. Defendant Juan Zamora was found guilty of failing to provide humane care and treatment for, and abusing, his 10 dogs in violation of the Humane Care for Animals Act. On appeal, defendant argues the evidence was insufficient to sustain his convictions because it generally showed that he treated his dogs well and they had not sustained physical or psychological injuries and that the law was vague. When the investigating officer executed a search warrant on defendant's residence, they found the ten dogs heavily chained in the basement standing on newspaper completely saturated with feces and urine, along with breeding harnesses and training treadmills indicative of dog fighting. In challenging the sufficiency of the evidence, defendant suggests the evidence showed he was a "considerate dog owner with healthy dogs." However, the court was unconvinced, finding the slates of the metal and wooden makeshift cages were not appropriate for indoor or outdoor housing. Further, the accumulation of dog waste also supported the officer's testimony and the presence of dog fighting supplies supported a conclusion that "defendant's treatment of the dogs reflected something other than mere companionship." As to the vagueness challenge, the court found that defendant did not demonstrate that section 3(a)(4) fails to sufficiently enable a person of ordinary intelligence to understand what conduct the statute criminalizes. Thus, the court affirmed the lower court's judgment and rejected defendant's claims on appeal.

Lower courts abdicated duties by denying landlord's inquiry into evidence related to the reliability of tenants' disability-related need for an assistance animal. Riverbrook v. Fabode, --- N.W.2d ----, 2020 WL 5580152 (Mich. Ct. App. Sept. 17, 2020). This Michigan case centers on the adequacy of the evidence supporting a request for an assistance animal. Antony Fabode lived in a mobile home on property that was leased to his sister by Riverbrook. In the spring of 2018, Antony obtained a puppy, King, which he claims is a Labrador Retriever mix, but was suspected by Riverbrook as being a banned pit bull type dog. Riverbrook consequently notified Antony's sister of the violation and ordered the dog removed from the premises. To that order, Antony first responded to Riverbrook with a certificate claiming that King was an emotional support animal (ESA) and, after that was rejected as insufficient, came back with a letter by limited license professional counselor, Anne Venet. In the following court proceedings, Antony sought a stay of eviction on the grounds that he and his sister were authorized to possess King as an ESA. Venet testified in support of her letter explaining that she determined Antony's need for an ESA after a brief phone call. The court then declined to permit questioning by Riverbrook into the credibility of the determination that Antony was disabled and needed King as a therapeutic aid. Ultimately, the district court denied the writ for eviction. The circuit court affirmed that ruling. The Michigan Court of Appeals found that "the district and circuit courts avoided their gatekeeper role under MRE 702 despite Riverbrook's repeated objections to the reliability and admissibility of the Fabodes’ evidence." This hampered Riverbrook's ability to discover whether the information presented was reliable and supported Antony's disability-related request and whether Riverbrook refused to make a reasonable accommodation for a tenant based on disability or handicap. The circuit court order was vacated the matter was remanded.

Buyer of sick dog unable to establish necessary evidence of racketeering activity for RICO case against franchised pet store and associated veterinarians. Cisneros v. Petland, Inc., 972 F.3d 1204 (11th Cir. 2020). Plaintiff Cisneros purchased a Shih Tzu puppy named "Giant" from Petland Kennesaw, a Kennesaw, Georgia franchise of Petland, Inc. She received a certificate of "veterinary inspection" and a limited health guarantee at the time of purchase. Several days later, problems arose with the puppy and she brought the dog back to the Petland affiliated veterinarian who prescribed antibiotics without making a diagnosis. Shortly thereafter, an emergency pet visit revealed the dog suffered from parvovirus. Cisneros called Petland who told her to take the dog back to the Petland vet if she wanted a refund. She did so and the dog died several days later. As a result, plaintiff alleged that actions were the intended result of a nationwide conspiracy involving Petland and its affiliates to sell unhealthy puppies from "puppy mills" where health conditions are rubber stamped by a network of "preferred veterinarians" and buyers are deceived by sales documents that distract from the fraud. Plaintiff broadly asserted three claims, the main one being violation of the federal RICO statute, 18 U.S.C. § 1962(c). The district court dismissed Cisneros's federal causes of action for failure to state a claim and declined to exercise supplemental jurisdiction over her remaining state-law claim, pursuant to 28 U.S.C. § 1367(c). After applying the six-fold test for a private plaintiff suing under the civil provisions of RICO, this Court found chiefly that Cisneros has alleged no facts that plausibly support the inference that the defendants were collectively trying to make money in pet sales by fraud, which is a common purpose sufficient to find a RICO enterprise. Even assuming that Cisneros has adequately pled fraud on the part of Petland Kennesaw, she has not alleged that its predicate acts constituted a pattern of racketeering activity. The action was affirmed in part, and vacated and remanded in part.

September 2020

DOI's memorandum on incidental take under the MBTA vacated since it departed with plain statutory language and over 40 years of agency action. Nat. Res. Def. Council, Inc. v. U.S. Dep't of the Interior, Slip copy, 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020). In December 2017, the Principal Deputy Solicitor of the U.S. Department of the Interior (DOI) issued a memorandum that countered almost 50 years of the agency’s interpretation of “takings” and “killings” under the MBTA (the "Jorjani Opinion"). According to the DOI in that opinion, the MBTA does not prohibit incidental takes or kills because the statute applies only to activities specifically aimed at birds. Environmental interest groups and various states brought three now-consolidated actions to vacate the memorandum and subsequent guidance issued in reliance on the memorandum. Both parties moved for summary judgment. The Jorjani Opinion contends that the criminal penalty provisions under the MBTA is limited to only acts directed at birds and those activities whose purpose is to "render an animal subject to human control" like hunting or capturing. In reviewing the Jorjani Opinion under the lessened deference standard afforded by administrative law, this court found the DOI overstated the any conflicts in interpretation of the MBTA among circuit courts (a "dramatized representation"). In addition, the court found the Jorjani Opinion "is a recent and sudden departure from long-held agency positions backed by over forty years of consistent enforcement practices." The court found the Jorjani Opinion was an unpersuasive interpretation of the MBTA's unambiguous prohibition on the killing of birds and is contrary to the plain language of the law itself. Such an interpretation runs contrary to legislative history, decades of enforcement practices by the DOI, and caselaw. Because the agency's action was held unlawful under the APA, the court found the only appropriate remedy was vacatur. Thus, Plaintiffs’ motions for summary judgment were granted, and Interior’s motion was denied.

NY Agriculture and Markets Law § 123 on dangerous dogs does not mandate euthanasia, says appellate court. Town of Ogden v. Lavilla, 185 A.D.3d 1414, 126 N.Y.S.3d 832 (2020). The Justice Court of the Town of Ogden found respondent's dog to be dangerous under Agriculture and Markets Law § 123 and ordered the dog to be euthanized. On appeal, the Supreme Court, Appellate Division, Fourth Department agreed with respondent that the lower court misapprehended and misapplied the law. The court found the power to apply the most drastic measure (euthanasia) under Section 123 is reserved for aggravating circumstances, namely a serious disfigurement. The language of the law is permissive, not mandatory; even with aggravating circumstances, a court may direct other measures to keep the dog contained. The court noted that the lower court repeatedly misstated the law, saying it only had two options, euthanasia or permanent confinement. Vacated in part and remanded.

Judicial review of tiger/monkey exhibitor license revocation and fines denied where substantial evidence supported USDA/APHIS action. Terranova v. United States Dep't of Agric., --- Fed.Appx. ----, 2020 WL 4589346 (5th Cir. Aug. 10, 2020). Petitioners seek review of a decision and order of the USDA/APHIS determining that they violated various provisions of the Animal Welfare Act (“AWA”) and its implementing regulations, imposing civil penalties, and revoking the exhibitor license granted to Terranova Enterprises, Inc. Petitioners were licensees who provide wild animals like tigers and monkeys for movies, circuses, and other entertainment. In 2015 and 2016, APHIS filed complaints against petitioners that they willfully violated multiple provisions of the AWA and knowingly violated a cease and desist order issued in 2011 to avoid future violations of the AWA. After consolidating the complaints, the Administrative Law Judge ("ALJ") found that petitioners willfully committed four violations, so the ALJ issued a cease and desist order, suspended petitioners' license for 30 days, and assessed a $10,000 penalty and an $11,550 civil penalty for failing to obey the prior cease and desist order. On appeal by both parties to the Judicial Officer of the USDA, petitioners' exhibitor license was revoked and the penalties were increased to $35,000 and $14,850, respectively. On appeal here to the Fifth Circuit, petitioners claim that the determinations of the Judicial Officer were not supported by substantial evidence and that she abused her discretion in revoking their exhibitor license. This court found there was sufficient evidence to support the violations, including failing to allow APHIS officials to conduct compliance investigations and inspections, faulty tiger enclosures, insufficient distance/barriers between tigers and the public, failure to make an environmental enrichment plan, and failings involving tiger enclosure and protection from inclement weather, among other things. The court denied the petition for review.

August 2020

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

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

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

July 2020

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

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

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

June 2020

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

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

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

April 2020

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

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

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

March 2020

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

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

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

February 2020

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

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

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

January 2020

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

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

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

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

2019

December 2019

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

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

November 2019

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

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

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

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

October 2019

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

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

Health department employee who advised plaintiff of high cost of rabies shots did not engage in "financial coercion" that amounted to extreme and outrageous conduct that forced plaintiff to cut off his own dog's head. Goodwin v. Crawford Cty., Georgia,  Slip Copy, 2019 WL 2569626 (M.D. Ga. June 21, 2019). This is a motion to dismiss by Defendant Sims in a § 1983 action and state law claims by plaintiff Goodwin against several Crawford County, Georgia officials. The case started with the shooting of plaintiff's dog, allegedly by Defendant Crawford County Officer Neesmith. After the dog was shot in plaintiff's driveway, Neesmith then called Defendant Sims, who was an employee of the Crawford County Health Department. Sims explained to Neesmith by phone that Plaintiff Goodwin could be liable for the cost of a rabies shot if the dog's head was not removed and that the cost of the shot was approximately $20,000. After this call, officers ordered plaintiff to cut off his own dog's head to be tested for rabies or face criminal charges and the cost of the rabies shot. In the presence of plaintiff's wife and children, the plaintiff relented and cut off the dog's head with a knife. As to only Defendant Sims' motion to dismiss, this court found that her economic coercion was not arbitrary and thus did not violate plaintiff's substantive due process rights. Sims' alleged use of "financial pressure" did not amount to extreme and outrageous conduct for plaintiff's intentional infliction of emotional distress claim. Instead, the court said "she did her job," which was to communicate the rabies control procedures and did not actually require plaintiff to personally decapitate his dog. Accordingly, the Court granted Sims' Motion to Dismiss. 

September 2019

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

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

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

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

August 2019

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

Court allows plaintiff leave to amend Sec. 1983/civil rights complaint on facts showing euthanasia of cat same day cat was impounded. Theis v. Yuba County Sheriff's Department, Slip Copy, 2019 WL 3006261 (E.D. Cal. July 10, 2019). The Plaintiffs allege that their cat, Pizza, was unlawfully euthanized at Yuba County Animal Care Services shelter on or about February 9, 2018. Pizza went missing on or about February 9, 2018 and Plaintiffs found out later that same day that a neighbor had found the cat and brought it to the Yuba County animal shelter. The Plaintiffs attempted to contact the shelter, but it had already closed for the evening. The next morning around 9:30 a.m., the Plaintiffs arrived at the shelter and learned that Pizza had been euthanized as early as 5:00 p.m. the night before. The Plaintiffs contend that Pizza’s euthanization falls within an ongoing pattern and practice of abuse and failure to follow state and federal law. The Defendants moved to dismiss Plaintiff’s First Amended Complaint and alleged that the Plaintiff’s did not plead facts sufficient to show that Barnhill engaged in unlawful conduct or to establish a substantive or procedural due process violation. The Court, however, granted the Plaintiffs leave to amend their complaint as to the section 1983 claim. Ultimately, the Court ordered Plaintiff’s third cause of action for violations of their Fourteenth Amendment substantive and procedural due process rights be dismissed with leave to amend, the Plaintiff’s state law claims in their first, second, and fourth causes of action be dismissed with leave to amend to the extent consistent with the order, and denied the Defendant's motions to strike Plaintiffs' punitive damages claim.

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

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

July 2019

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

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

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

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

June 2019

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

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

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

May 2019

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

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

Wrongful placement of feeding tube into cat's trachea "undisputed" causation in veterinary negligence action, despite cat's weakened state. DeLany v. Kriger, Slip Copy, 2019 WL 1307453 (Tenn. Ct. App. Mar. 20, 2019). This unpublished Tennessee case concerns a veterinary negligence action. The owners of a cat (Callie) filed a wrongful death complaint against the cat's veterinarian and animal hospital after the cat was killed when the veterinarian wrongly placing a feeding tube into the cat's trachea rather than her esophagus, causing the cat to aspirate and die when she was fed through the tube. The trial court held that the defendants were not liable because the cat was so ill she was likely to die anyway, and thus dismissed the complaint. This court found that the evidence was "undisputed" that the cat died as a result of the improperly placed feeding tube, which was further supported by x-rays showing the feeding tube in the trachea rather than the esophagus. Because the trial court did not find causation, damages were not addressed. Here, the court noted that domestic pets are considered private property in Tennessee. The law is settled that a pet owner can recover for the wrongful death of his or her pet in the state. Further, Tenn. Code Ann. § 44-17-403 provides that a dog or cat owner is entitled to recover up to $5,000 in noneconomic damages for "the unlawful and intentional, or negligent, act of another or the animal of another . . ." but that no award of noneconomic damages is permitted in “an action for professional negligence against a licensed veterinarian.” The appellate court stated that the calculation of damages is a matter for the fact-finder, and the case was remanded to the trial court to determine the appropriate amount of economic damages. This would include, but not be limited to, the medical bills incurred for Callie's treatment and the cost of replacing Callie, said the court.

April 2019

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

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

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

March 2019

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

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

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

February 2019

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

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

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

January 2019

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

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

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

2018

December 2018

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

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

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

November 2018

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

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

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

October 2018

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

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

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

September 2018

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

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

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

August 2018

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

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

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

July 2018

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

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

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

June 2018

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

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

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

CA appellate court considers, as matter of first impression, whether same conduct can support conviction under Pen. Code, § 597, subds. (a) and (b). People v. Tom, 231 Cal. Rptr. 3d 350 (Ct. App. 2018). Defendant stabbed, beat, strangled, and then attempted to burn the dead body of his girlfriend's parent's 12-pound dog. Police arrived on the scene as defendant was trying to light the dead dog on fire that he had placed inside a barbeque grill. Defendant was convicted of two counts of animal cruelty contrary to Pen. Code, § 597, subds. (a) and (b), as well as other counts of attempted arson and resisting an officer. While defendant does not dispute these events underlying his conviction, he contends that he cannot be convicted of subsections (a) and (b) of Section 597 for the same course of conduct. Both parties agreed that subsection (a) applies to intentional acts and subsection (b) applies to criminally negligent actions. Subsection (b) contains a phrase that no other court has examined for Section 597: “Except as otherwise provided in subdivision (a) . . .” The court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct.  However, as to sentencing, the court found that defendant's subsequent attempt to burn the dog's body involved a different objective than defendant's act in intentionally killing the dog. These were "multiple and divisible acts with distinct objectives" such that it did not violate section 645 or due process in sentencing him for both. The court held that defendant's conviction for violating section 597, subdivision (b) (count two) was reversed and his modified judgment affirmed.

May 2018

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

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

CA appellate court considers, as matter of first impression, whether same conduct can support conviction under Pen. Code, § 597, subds. (a) and (b). People v. Tom, 231 Cal. Rptr. 3d 350 (Ct. App. 2018). Defendant stabbed, beat, strangled, and then attempted to burn the dead body of his girlfriend's parent's 12-pound dog. Police arrived on the scene as defendant was trying to light the dead dog on fire that he had placed inside a barbeque grill. Defendant was convicted of two counts of animal cruelty contrary to Pen. Code, § 597, subds. (a) and (b), as well as other counts of attempted arson and resisting an officer. While defendant does not dispute these events underlying his conviction, he contends that he cannot be convicted of subsections (a) and (b) of Section 597 for the same course of conduct. Both parties agreed that subsection (a) applies to intentional acts and subsection (b) applies to criminally negligent actions. Subsection (b) contains a phrase that no other court has examined for Section 597: “Except as otherwise provided in subdivision (a) . . .” The court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct.  However, as to sentencing, the court found that defendant's subsequent attempt to burn the dog's body involved a different objective than defendant's act in intentionally killing the dog. These were "multiple and divisible acts with distinct objectives" such that it did not violate section 645 or due process in sentencing him for both. The court held that defendant's conviction for violating section 597, subdivision (b) (count two) was reversed and his modified judgment affirmed.

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

April 2018

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

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

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

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

March 2018

Court affirms Board's denial of request to keep captive tigers in residential neighborhood. Hauser v. Ventura County Board of Supervisors, --- Cal.Rptr.3d ----, 2018 WL 94788718 (Cal. Ct. App., 2018). The plaintiff appeals her denial of a conditional use permit (CUP) to keep up to five tigers on her property in Ventura County, CA. In her application, plaintiff indicates that the project would include three tiger enclosures, a 13,500-square-foot arena with a roof over 14 feet in height, with the area surrounded by an eight-foot-high chain link fence encompassing over seven acres. The captive tigers would be used in the entertainment industry: movie sets, television commercials, and still photography. In denying the application, the Board found that the plaintiff failed to prove two elements necessary for a CUP: the project is compatible with the planned uses in the general area, and the project is not detrimental to public health, safety or welfare. The court noted that plaintiff bears the burden of demonstrating her entitlement to the permit. In fact, while plaintiff claims "an unblemished safety record," she submitted videos showing tigers "roaming freely in the backyard of her Beverly Hills home" and tigers posing with plaintiff and her sister on the beach. The court observed that, "[h]er well-intentioned desire to own [the tigers] does not trump her neighbors' right to safety and peace of mind." The judgment of the lower court was affirmed.  

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

Injunction issued to prevent declaw of captive Big Cats because it constitutes a "taking" under the ESA - People for Ethical Treatment of Animals, Inc. v. Wildlife in Need & Wildlife in Deed, Inc., Slip Copy, 2018 WL 828461 (S.D. Ind. Feb. 12, 2018). Plaintiff (PETA) filed a complaint for injunctive relief against the Defendants (WIN) alleging violations of the Endangered Species Act (ESA) relating to the declawing of the Defendants' captive Big Cats (lions, tigers, and hybrids). WIN operates as a AWA-USDA licensed wildlife exhibitor and charges the public a fee to directly interact with the Big Cat Cubs. Defendants "routinely" declaw the Big Cats, not out of medical necessity, but because it "makes them easier to handle." Testimony showed that two Big Cat Cubs died as the result of complications from declawing and Defendants do not provide post-surgical pain medication or antibiotics. The court held a hearing on the present Motion for Preliminary Injunction. In reviewing the factors supporting issuance of the injunction, the court found there was a likelihood of success in proving the declawing and baby cat "play" time constituted takings under the ESA. In addition, there were no adequate remedies available at law and the court held irreparable harm would result from the declaws. Thus, the court GRANTED Plaintiff’s motion for preliminary injunction

February 2018

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

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

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

January 2018

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

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

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

2017

December 2017

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

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

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

November 2017

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

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

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

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

October 2017

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

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

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

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

September 2017

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

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

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

August 2017

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

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

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

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

July 2017

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

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

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

June 2017

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

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

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

May 2017

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

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

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

March 2017

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

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

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

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

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

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

February 2017

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

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

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

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

January 2017

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

Milburn v. City of Lebanon,  --- F.Supp.3d ----, 2016 WL 6908100 (D. Or. Nov. 21, 2016). Plaintiff Milburn was acquitted of misdemeanor animal abuse on appeal, but a Lebanon police officer removed Milburns’ dog from her possession. While the appeal was pending, the Defendant, City of Lebanon, gave the dog to an animal shelter where it was later adopted by a new owner. The Linn County Circuit Court ordered the City to return the dog to Milburn after the acquittal but the Defendant City failed to comply. Milburn then brought this action pursuant to 42 U.S.C. §§ 1981 and 1983 against the City of Lebanon. The City moved for dismissal for failure to state a claim, and the United States District Court, for the District of Oregon, granted that motion while giving leave for Milburn to amend her complaint. In the Amended Complaint, Milburn contended that the City’s refusal to return her dog pursuant to the state court order deprived her of property without due process of law. Milburn also asserted a violation of her procedural due process rights. The District Court reasoned that while Milburn alleged a state-law property interest in her dog, she failed to allege that the Defendant City deprived her of that interest without adequate process. Milburn also did not allege state remedies to be inadequate. Those two omissions in combination were fatal to Milburn's procedural due process claim. Also, Milburn's assertion that the court issued an order and that the City did not comply with, is an attack on the result of the procedure. The court reasoned that attacking the result instead of the process of a procedure does not state a procedural due process claim. Therefore, Milburn’s procedural due process claim was also dismissed. The Court also held that it did not have jurisdiction over Milburn’s injunctive relief claim and dismissed it. However, the court held that Milburn could seek monetary damages. Milburn was granted leave to amend her complaint within 90 days with regard to her claim for actual and compensatory damages.

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

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

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