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Search Warrants In Animal Protection Cases

i Jun 14th

The California Court of Appeal, in a recent important decision (People v. Keith Chung), has joined a few other jurisdictions in applying to the protection of animals an important exception to the requirement of a search warrant.

In general, both the federal Bill of Rights and comparable constitutional provisions in the states require that before a search (or seizure) can be made by government officials, a search warrant must be obtained from a judicial officer. It takes “probable cause” that a crime has been, or is being, committed to support the issuance of a warrant.

As with most legal doctrines, there are exceptions. For example, if a weapon reasonably believed to have been used in a bank robbery is seen lying on the sidewalk–that is, “in plain view”–the police don’t need a warrant to seize it.

Another exception, relevant to the Chung case, is the “exigency” exception, which the court explained this way:

The exigent circumstances exception to the Fourth Amendment has been defined to include an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property. . . . The action must be prompted by the motive of preserving life or property and [must] reasonably appear to the actor to be necessary for that purpose. * * * There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers. An action is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action. The officer’s subjective motivation is irrelevant. * * * The touchstone of all Fourth Amendment determinations is reasonableness. (Citations and inner quotation marks deleted.)

Thus, the question for the California Court of Appeal in the Chung case was whether there were “exigent circumstances” presented to the responding police officers.

What were those circumstances? According to the court’s summary,

Chung’s neighbor, Jennifer Lee, testified she called the police in the early morning hours of July 13, 2007, and reported hearing the high pitched crying of a dog in pain in the unit above hers. Lee told the officers who responded to her call that she had heard similar sounds in the past, but this time it sounded more serious. The officers went to Chung’s door but he said he did not own any dogs. While the officers spoke to Chung, one of them heard the faint sound of a dog whimpering inside Chung’s condominium. Believing there was an animal in distress, the officers entered without a warrant after Chung refused the officers permission to enter.

The officers found an injured dog on the patio and a dead dog in the freezer section of the refrigerator. Both dogs had suffered head trauma. The live dog on the patio was euthanized by a veterinarian later that morning.

Given these facts, the Court of Appeal ruled that the requisite exigent circumstances were present, that the officers had a right to enter without first securing a warrant, and that Chung’s conviction for cruelty to animals was valid.

According to the court, criminalizing the abuse of animals had deep historical roots (as the Supreme Court of the United States recently recognized in United States v. Stevens), and California has the constitutional power to punish conduct such as Chung’s.

As to the exigent circumstances, the Court of Appeal invoked the 1999 California precedent of Broden v. Marin Humane Society. In that case,

[O]fficers conducted a warrantless entry into business premises, a pet shop, based on exigent circumstances. The officers entered the premises following reports of stench and flies at the store and found animals in distress.

Broden concluded [that] the exigent circumstances exception permits officers to make a warrantless entry when there are reasonable grounds to believe there are animals in need of immediate aid.

Broden recognized: “There is no question that law enforcement officers may make a warrantless entry of a building when there are reasonable grounds for believing that persons inside are in need of immediate aid. . . . Section 597.1 [of the California statutes] clearly contemplates that animals shall receive a similar solicitude.”

In addition, the Court of Appeal’s conclusion was supported by four cases from other jurisdictions. According to the court,

People v. Thornton an Illinois case, is directly on point. There, a police officer responded to a report of a dog barking for several days inside an apartment. The apartment manager informed the officer she previously had entered the apartment using a key after being unable to contact the resident and found a thin dog shaking and continuously whimpering and yelping in a small cage. The tenant who lived above the apartment told the officer the dog had been yelping continuously for two or three days. The officer entered the apartment to check on the well-being of the dog and found it in conditions matching those described by the manager.

Thornton found the totality of the circumstances known to the officers at the time of the entry into the apartment was sufficient to permit the officers reasonably to believe that an emergency requiring their immediate assistance was at hand. Thornton concluded the officers reasonably could have believed the dog was not merely “uncomfortable,” but was in need of immediate assistance to avoid serious injury or, possibly, death.

Thornton noted other jurisdictions also had applied the exigency exception to prevent harm to animals, citing Suss v. American Society for Prevention of Cruelty to Animals . . . [cat trapped between walls of two buildings]; Tuck v. United States . . . [rabbits in unventilated display window of a pet store suffering from extreme heat], and State v. Bauer, [distressed horses in barn].

Thus, the net result of the Chung decision is a strong plus for animal protection.

As the court said in its conclusion, “[e]xigent circumstances properly may be found when an officer reasonably believes immediate warrantless entry into a residence is required to aid a live animal in distress. Where an officer reasonably believes an animal on the property is in immediate need of aid due to injury or mistreatment, the exigent circumstances exception to the warrant requirement of the Fourth Amendment may be invoked to permit warrantless entry to aid the animal.”

ISAR anticipates that this issue will arise in other states, which will reach the same conclusion. Serious apparent danger to animals will suffice for a warrantless entry.

Keith Chung has the right to seek review in the Supreme Court of California. If he does, ISAR will be there to oppose him.

Will lack of “standing to sue” once again rear its ugly head?

i May 17th

ISAR’s supporters know that the bane of animal rights litigation has been the problem of “standing to sue”–the question of what individuals or organizations have the right to sue in behalf of animals (see, for example, Animals and “Standing to Sue” and Jones v. Butz.

Here we go again . . . perhaps.

The Gerber Animal Law Center of Raleigh, North Carolina, announced earlier this month that it has commenced a lawsuit against the county shelter. Although Gerber’s press release is sketchy on details, the case seems to be grounded in a recent North Carolina statute promoting fostering rather than euthanizing, and the shelter’s alleged failure to abide by the law.

Be that as it may–and when the complaint is available we’ll know exactly what Gerber is alleging, factually and legally–unfortunately the case’s announcement is silent about on whose behalf the lawsuit has been brought. That question is critical, because whatever the merits of Gerber’s complaint, it will go nowhere unless someone has “standing to sue.”

United States v. Stevens: A Half-Full, Not Half-Empty Decision

i Apr 29th

Last week the Supreme Court of the United States, by a vote of 8-1, held unconstitutional the federal statute criminalizing creation, possession or sale of material depicting cruelty to animals.

ISAR had submitted an amicus curiae (“friend-of-the-Court”) brief in the case and our Chairman, Professor Henry Mark Holzer, presented two audio commentaries about it–one after our brief was filed and the other following oral argument.

Although the case, and the issue which remains unsettled, was of obvious importance to the animal protection movement, so too did it implicate the First Amendment’s guarantee of free speech.

Exceptions to that guarantee–defamation, “fighting words,” hard-core pornography–are rare, yet the Court was being asked to create another one by upholding the suppression of the speech that the challenged statute criminalized: depictions of cruelty to animals.

In declining to create that exception, the Supreme Court did not rule that government–Congress or the states–lacked a substantial (the lawyerly term is “compelling”) interest in illegalizing depictions of animal abuse. The “compelling interest” issue was raised in the Stevens case, and the Court could have decided it–but despite being invited to, it didn’t. (Although in his dissent, Justice Alito stated unequivocally that the federal government did have a compelling interest in preventing the conduct that the statute was aimed at.)

Instead, the Court’s eight member majority ruled that the statute was “overbroad,” meaning that the law could be interpreted to suppress speech of activities which, though distasteful to many (like hunting), were perfectly legal. In other words, the Court objected to the potential broad sweep of the statute, not its intention to protect animals from certain forms of unquestionable cruelty by suppressing depictions of that cruelty.

Already legislation has been introduced in Congress to comport with the Court’s invitation that the legislature craft a statute narrowly reflecting its substantial interest in curbing cruelty to animals–a law which is not overbroad and targeted more specifically to the goal that all members of the Court share: ending the scourge of crush videos and dog fighting by suppressing the depiction.

ISAR will stay on top of developments and provide ongoing commentary.

The Stevens Decision: Speech 8, Animals 1

i Apr 20th

To the disappointment of ISAR and many others, the Supreme Court by a vote of 8-1 has just ruled unconstitutional the federal statute criminalizing the creation, possession or sale of depictions of animal cruelty. As our supporters know, ISAR submitted an amicus curiae brief in the Stevens case and our chairman, Professor Henry Mark Holzer, provided two commentaries on the case while it was pending.

Next week, Professor Holzer will analyze the Court’s opinion in a commentary to be posted on ISAR’S website.

Animal Lawyers and Animal Law

i Apr 9th

As ISAR’s supporters know, the field of animal law began largely through the efforts of our chairman, Professor Henry Mark Holzer. Since that beginning, the interest of lawyers, law schools and the legal profession in animal law has burgeoned. (See ISAR’s Blogs Important New Publication: Stanford Journal of Animal Law and Policy and Websites Providing Information About Animal Law.)

Among the many exciting developments is that the American Bar Association and state, city, and local bar associations have not only created animal law committees, but have started to perform two other valuable services. Many bar associations provide lawyer referral services, through which non-lawyers can find attorneys proficient in animal law. Perhaps more important, more and more bar associations publish useful information about animal law. For example, The New York State Bar Association has developed a pamphlet which summarizes New York animal law and covers both companion and farm animal.

Hence, one of the first stops for those wanting to find an animal law attorney, and learn something about animal law, is the nearest bar association.

United States v. Stevens: Popular Wisdom May Be Wrong

i Oct 8th

Two days ago the United States Supreme Court heard oral arguments in United States v. Stevens, the notorious case involving the constitutionality of a federal statute criminalizing the creation, possession or sale of depictions of certain forms of cruelty to animals. Stevens was convicted of the “sale” prong of the statute.

Commentary in the print, broadcast and electronic media has it that the statute is in deep trouble and may be ruled an unconstitutional abridgement of the First Amendment’s guarantee of free speech.

Maybe.

But then again, maybe not.

The Popular Wisdom is apparently based on three things that happened at oral argument.

One was the less than sterling performance of the Deputy Solicitor General of the United States, but that does not matter because few appellate cases are won or lost on oral argument. The justices know the law, read the briefs and are assisted by four law clerks.

I have left oral argument believing I’ve won, but lost. And believed I’ve lost, but won.

Second, Justice Scalia adamantly conveyed his displeasure with the statute, as an infringement of free speech. He is, however, but one of nine justices.

Finally, as usual, Justice Thomas asked no question. He rarely does, but nonetheless well understands the core issue in the case and in the past has written opinions which could augur well for the statute’s constitutionality.

However, questions and comments by Chief Justice Roberts and Associate Justices Kennedy, Breyer and Alito could suggest a decision which would save the statute’s constitutionality.

Almost simultaneously with the publication of this blog on Thursday morning I will be giving a Skype presentation elaborating on these observations and, going out on a long limb, making a prediction of what the Court will decide in this most important case.

 

ISAR’s Analysis Of The Supreme Court Oral Argument In United States v. Stevens

i Oct 6th

International Society For Animal Rights Skype Presentation

“ISAR’s Analysis Of The Supreme Court Oral Argument In United States v. Stevens

Presented by Professor Henry Mark Holzer
Chairman, International Society for Animal Rights

 

Last week ISAR conducted a Skype presentation entitled “Unpublished insights into United States v. Stevens” with ISAR’s Chairman Professor Henry Mark Holzer.

Supporters of ISAR know that we’ve filed an amicus curiae brief in the United States Supreme Court in the First Amendment/Animal Rights case of United States v. Stevens (see ISAR’s Amicus Curiae Brief Has Been Filed In The Supreme CourtISAR Amicus Curiae Brief in U.S. v. StevensISAR In The Supreme Court Of The United StatesFree Speech and Cruelty to Animals).

In our most recent blog posting about the Stevens case, Animals in Court, we provided a list of, and links to, the briefs of the parties — the government, and Stevens — and those individuals and organizations who have filed amicus curiae briefs, and we encouraged our supporters to review the Tables of Contents to see which amici are making what arguments.

As a follow-up to ISAR’s presentation “Unpublished insights into United States v. Stevens,” ISAR will welcome back Professor Holzer (and interested Skype members) for a thirty minute presentation on Thursday, October 8, 2009 at 1:00PM Eastern Standard Time for his commentary and critique on the oral arguments in the Supreme Court two days earlier. Immediately following this presentation, Professor Holzer will take a few minutes to answer questions relating to the United States v. Stevens case.

We encourage you to forward ISAR’s presentation information along to everyone in your email contact list and ask them to do the same.

To pre-register for our Skype presentation, be sure to add username ColleenGedrich to your Skype contact list before Thursday, October 8, 2009.

On October 8, 2009, ISAR will contact interested individuals by initiating a Skype-to-Skype call at 1:00PM Eastern Standard Time. If you do not have a Skype account (which is free), please visit http://www.skype.com/ to sign up.

Please note: this presentation will be recorded. Participation in ISAR’s Skype presentation constitutes consent to use the recording on our site, etc, and asking a question constitutes permission to use the questioner’s name in our promotion of the recording.

ISAR’s Model Spay/Neuter Tax Deduction Statute

i Oct 5th

About a decade ago, again ahead of the curve, ISAR came up with the suggestion that Congress amend the Internal Revenue Code to provide a tax deduction for the cost of spay/neuter. (A copy of ISAR’s Model Statute can be found HERE.) In the introduction to ISAR’s Model Statute we set forth the policy reasons for the deduction, and argued that it’s a “win-win” situation, as indeed it is.

Sadly, nothing came of ISAR’s groundbreaking idea—until now.

A few months ago, Representative McCotter introduced H.R. 3501 (the “Humanity and Pets Partnered Through the Years (‘HAPPY’) Act”), entitled “A bill to amend the Internal Revenue Code of 1986 to allow a deduction for pet care expenses.” The Bill has been referred to the House Committee on Ways and Means.

The Bill recites that Congress finds “63 percent of United States households own a pet” and that “the Human-Animal bond has been shown to have positive effects upon people’s emotional and physical well-being.”

Accordingly, the IRC amendment would allow a “deduction for the taxable year an amount equal to the qualified pet care expenses of the taxpayer during the taxable year for any qualified pet of the taxpayer,” limited to $3,500. (The statute goes on to define “qualified pet care expenses” and “qualified pet.”)

Because ISAR is a tax-exempt 501(c)(3) organization we can’t lobby for legislation, but we certainly can observe that, given our Model Spay/Neuter Tax Deduction Statute, H.R. 3501 is a welcome development—but for one problem. Had ISAR’s input been sought in the drafting of H.R. 3501, we would have suggested that the deductible “qualified pet care expenses” mandatorily include spay/neuter. In other words, no reimbursement for any expenses unless included in them was the cost of spay/neuter.

Perhaps Representative McCotter, or his co-sponsors will see fit to amend their amendment.

International Society for Animal Rights Skype Presentation

i Sep 23rd

 

“Unpublished insights into United States v. Stevens

Presented by Professor Henry Mark Holzer
Chairman, International Society for Animal Rights

 

Supporters of ISAR know that we’ve filed an amicus curiae brief in the United States Supreme Court in the First Amendment/Animal Rights case of United States v. Stevens (see ISAR’s Amicus Curiae Brief Has Been Filed In The Supreme CourtISAR Amicus Curiae Brief in U.S. v. StevensISAR In The Supreme Court Of The United StatesFree Speech and Cruelty to Animals).

In our most recent posting about the Stevens case, Animals in Court, we provided a list of, and links to, the briefs of the parties — the government, and Stevens — and those individuals and organizations who have filed amicus curiae briefs, and we encouraged our supporters to review the Tables of Contents to see which amici are making what arguments.

Here’s an update. Nine justices will hear oral argument in the Stevens case on October 6, 2009, one of them, Sonia Sotomayor, having been only recently appointed to the Court.

The question is: who’s going to win the case?

Will it be the government, if the Court upholds the statute making it a federal felony to create, possess or sell depictions of cruelty to animals?

Or will it be Stevens, who was convicted of violating the law, if the Court strikes down the statute as a violation of his First Amendment rights?

Utilizing the facilities of Skype, ISAR will present (at no charge to listeners) an analysis by Professor Henry Mark Holzer of the possible outcome of the Stevens case. He will focus on what can be expected of each justice in light of Supreme Court precedent, their own philosophies, and the nature of the case.

On September 30, 2009, Professor Holzer’s fifteen minute presentation entitled “Unpublished insights into United States v. Stevens” will take place at 1:00PM Eastern Standard Time. Immediately following this presentation, Professor Holzer will take a few minutes to answer questions relating to the United States v. Stevens case.

To sign up for this Skype presentation, be sure to add username ColleenGedrich to your Skype contact list.

On September 30, 2009, ISAR will contact interested individuals by initiating a Skype-to-Skype call at 1:00PM Eastern Standard Time. If you do not have a Skype account (which is free), please visit http://www.skype.com/ to sign up.

Please note: this presentation will be recorded.

As a follow-up to “Unpublished insights into United States v. Stevens,” ISAR will welcome back Professor Holzer (and interested Skype members) on Thursday, October 8, 2009 at 1:00PM Eastern Standard Time for his commentary and critique on the oral arguments in the Supreme Court two days earlier.

Veterinarians Are Running Scared

i Aug 10th

In ISAR’s monograph Harming Companion Animals: Liability and Damages we make the categorical statement that “Even though most of the harm to companion animals results from veterinary malpractice [obviously we were not talking about breeders], Harming Companion Animals should not be taken as a criticism (let alone a condemnation) of all veterinarians. On the contrary. Although among the thousands and thousands of veterinarians in the United States there are some bad apples—just as in the medical, legal, and all other professions—the vast majority of veterinarians and their staffs are caring, dedicated, competent, healers who feel deeply about the animals they treat. For them, all of us who share our lives with companion animals are eternally grateful.” (Page 7. Emphasis in original.)

Apparently the issue of veterinarian “bad apples” which ISAR addressed in our “Harming” monograph, and which is a sore spot for all custodians of companion animals, has finally gotten the attention of the American Veterinary Medical Association.

Here, under date of August 1, 2009, is an article from the “javma news”:

The AVMA will turn a fledgling veterinary outreach program to law schools and the legal community into an ongoing activity.

The Executive Board approved the State Advocacy Committee’s recommendation to continue the Legal Outreach Program.

The program has been around since April 2008 when the board approved its creation. It provides a veterinary perspective to the legal community on animal law issues. Veterinarians who have practiced in a clinical setting and attorneys familiar with this area provide law students, lawyers, and veterinary students with background information on the unintended consequences of awarding noneconomic damages.

Background information provided with the recommendation states that many of the law school and continuing education programs for lawyers are taught or presented by the Animal Legal Defense Fund, The Humane Society of the United States, or other animal rights proponents. The veterinary perspective in these courses has been almost nonexistent. Most of the time, law students and lawyers are not aware that there may be another side to the story on complicated issues such as pet guardianship and noneconomic damages.

The state legislative and regulatory affairs department in the AVMA Communications Division has contacted 19 law schools so far, developed a PowerPoint presentation, assembled a roster of 20 speakers, and conducted a training webinar for speakers. In all, the program coordinated eight presentations in fall 2008 and spring 2009, with several planned for this fall.

Originally, the board allocated $5,400 for 2008 and $16,250 for 2009 to cover speaker compensation, travel expenses, and speaker training for the program. Adrian Hochstadt, JD, assistant director for state legislative and regulatory affairs, said the cost was not as great as anticipated, and the program will be under budget for both years. Savings were realized as a result of using AVMA staff or local speakers and holding a webinar instead of in-person training sessions.

The board approved funding the program now at a cost of about $7,000 annually. (Emphasis supplied.)

When ISAR learned of this program—which the American Veterinary Medical Association has every right to present—an ISAR staffer sought additional information: “I read that you have assembled a roster of 20 speakers for your program. Can you direct me to where I might find that list and when they will be speaking? Do you have an itinerary that you can email?”

An AVMA lawyer responded by asking whether we were “interested in a program at a particular school?”

Our response: “I interpreted this to mean that this coming fall you will have speakers presenting your point of view at several law schools, and I’m wondering what law schools and who are the speakers.”

AVMA: “I would need to know what is the purpose of the request.”

At that point, ISAR broke off “communication” with the AVMA’s lawyer, even though our intention was to open a dialogue about the issue of non-economic damages for the intentional and negligent harm to companion animals. We wanted to know the organization’s official position.

Own research has obtained that information.

In the July/August 2009 issue of the General Practice, Solo & Small Firm Division magazine of the American Bar Association there appears an article by the AVMA’s president and the lawyer with whom ISAR had been in contact, from the organization’s State Legislative and Regulatory Affairs Department.

They ask: “What’s wrong . . . with recognizing an owner’s claim for pain and suffering, emotional distress, loss of companionship—in short ‘non–economic’ damages—arising from a wrongful pet loss in cases of professional negligence?”

Excellent question. Actually a question we wanted to ask the AVMA before it began to treat ISAR like someone trying to ferret out a military secret.

Their answer cites “unintended negative consequences” and “harm [to] the very animals we seek to protect.”

The argument the authors develop is lengthy. Some of it is persuasive, some specious. ISAR encourages its supporters to read the article http://www.abanet.org/genpractice/magazine/2009/jul_aug/petlawsuits.html because it is obviously an opening salvo in organized veterinary medicine’s current campaign against state legislatures allowing non-economic damages for harming companion animals.

This is a hot subject and ISAR will have a lot to say about it in the future, because the “animals-as-property” problem is among those at the core of the animal rights philosophy.