Animal Law Institute 2013 presentation


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My presentation at the State Bar of Texas 2013 Animal Law Institute in Houston, TX, March 22, 2013

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  • Who has Power to Seize Dogs and When?
  • Is the law the same for seizing stray animals as it is for seizing animals that are suspected victims of cruelty?
  • What about volunteers who help non profit groups rescue animals in times of disaster?
  • When can “rescue” result in criminal sanctions?
  • Animal Law Institute 2013 presentation

    1. 1. Animal Welfare Legal Issues for Nonprofits Animal Law Institute March 22, 2013 1
    2. 2. Animal Welfare Legal IssuesDavid C. WellsCo-Chair, Animal WelfareCommitteeAustin Bar Associationwellsdc@gmail.comKelley Dwyer, Rebecca WhitehouseCo-ChairsBased in part on a presentationprepared by Stacy Wolf, SeniorDirector, Legislative Services &Anti-Cruelty Training, ASPCA 2
    3. 3. Ownership and Seizure ofAnimals 3
    4. 4. Who has Power to Seize Dogsand When?"Stray" dogs Left to local ordinance and regulation, no mention in Health & Safety Code Austin: a city employee may seize unrestrained dogs, including on private property with owners permission. City Code Sec. 3-4-3. "Restrained" means leashed when with the owner or behind a fence. Bastrop: citizen or animal control officer may seize animals at large and turn them over to animal control. Code of Ordinances Sec. 2.04.005(b). 4
    5. 5. Who has Power to Seize Dogsand When? (cont.)Dogs that have caused death or serious bodily injury to a person. Tex. Health & Safety Code Sec. 822.002"Animal control authority" has power to seize them.Dog is impounded for a minimum of 10 days (rabies observation)A court shall order the dog "destroyed" if it finds the dog caused the death of a person.A court may order the dog "destroyed" if it finds the dog caused serious bodily injury to a person. 5
    6. 6. Who has Power to Seize Dogsand When? (cont.)Dog or coyote attacking livestock (Sec. 822.013):May be killed by a person witnessing an attack or the owner of the animal(s) who were or are being attacked. Includes dogs who are "about to attack" livestock, whatever that means.May be seized by animal control officersMay be seized by persons who find the dog on their property, then turned over to the owner or animal control. 6
    7. 7. Who has Power to Seize Dogsand When? (cont.)NOTE the distinction between animal controlauthorities and private citizens.Most statutes and regulations only address animalcontrol, law enforcement. 7
    8. 8. Seizure of animals that aresuspected victims of crueltyState law governs seizure in cruelty cases.Seizure of cruelly-treated animals: Health & Safety Code Ch. 821, Subch. BPeace officer or animal control officer may seize an animal with "reason to believe" animal has been "cruelly treated" ("tortured, seriously overworked, unreasonably abandoned, unreasonably deprived of necessary food, care, or shelter, cruelly confined, or caused to fight with another animal“) 8
    9. 9. Seizure of animals that aresuspected victims of cruelty (cont.) Hearing must be held within 10 days. Statements at this hearing are not admissible in a prosecution of the animals owner for animal cruelty. Upon finding of cruelty, court can order the animal: Sold at auction Given to a nonprofit or public animal shelter"Humanely destroyed" if it is in the animals best interest or the best interest of public safety Very limited rights of appeal for animal owners. This means very little caselaw. 9
    10. 10. How long do shelters have to“hold” seized dogs?Animals surrendered without identification: Austin and Bastrop: 3 days.Animals surrendered with identification: Austin: 3 days Bastrop: 10 days, plus a requirement that animal control attempt to locate the owner 10
    11. 11. How long do shelters have to“hold” seized dogs?Animals surrendered by the owner: Austin: does not specifically say Bastrop: animal becomes property of the city immediately Impounded animals must have sufficient food and water. Tex. Health & Safety Code Sec. 821.002(a) Person may enter a shelter to feed animals left more than 12 hours without food or water, may recover costs Sec. 821.002(b)
    12. 12. What Happens after the “Hold”period Expires?If no one has come forward claiming ownership of the animal, it becomes the property of the city or county.AdoptionPicked up by rescue groupEuthanasiaCity of Austin prohibits euthanasia of animals by animal shelter for non-health or behavioral reasons when kennel space is available.City of Bastrop does not have that prohibition. 12
    13. 13. Can Shelters Euthanize duringthe hold period?Yes, if it is deemed to be in the animals best interest."The health authority may destroy an animal earlier than three business days after the date of impound if the health authority obtains an opinion from a veterinarian stating that the animal is sick or injured and that destruction is necessary to avoid unnecessary suffering by the animal." Austin City Code Sec. 3-1-26(B).Bastrops Code does not specifically address this issue. 13
    14. 14. How does one “prove”Ownership’?"Ownership" not defined by state statute.Austin: "a person who owns, feeds, keeps, maintains, or harbors an animal or who knowingly allows an animal to remain on the person’s property." City Code Sec. 3-1-1(9)Bastrop: "any person or entity having temporary or permanent custody of, owning, keeping, sheltering, in charge of, controlling, maintaining, having property rights to, or harboring one or more animals covered by this chapter." Code of Ordinances Sec. 201.001 14
    15. 15. How does one “prove”Ownership’? (cont.)Proof of title:•Microchip•License•ID tag•Veterinary records•Photographs 15
    16. 16. When does “ownership” end so that ananimal can be legally adopted toanother?No clear legal definition or standard.Typically at the end of any statutory hold period, if animal remains unclaimed.Also relates to cruel treatment laws and procedures.  Owner can be divested of ownership if a court rules that cruel treatment occurred. 16
    17. 17. Liability Concerns for Volunteersand Rescuers 17
    18. 18. Volunteers who help non profitgroups rescue animals in times ofdisasterSome legal protections if volunteer is acting within the scope of their volunteer role.Volunteer Protection Act, 42 U.S.C. § 14501 18
    19. 19. Volunteer Protection Act Only applies to volunteer assistance Must be “acting within scope of volunteer’s responsibilities” Properly licensed, certified or authorized (if required by law) Only applies to assistance to 501(c)(3) or (c)(4) non profits Only confers qualified immunity (for claims of negligence) Grossly negligent, willful, reckless behavior is not protected Harm cannot be caused by operation of vehicle, vessel or aircraft where the state requires a license and insurance Law doesn’t protect nonprofit corporation itself, just volunteers General liability insurance is crucial 19
    20. 20. When can “rescue” result incriminal sanctions? Trespass. Tex. Pen. Code Sec. 30.05. Burglary. Tex. Pen. Code Sec. 30.02. Theft. Tex. Pen. Code Sec. 31.03. Animal cruelty. Tex. Pen. Code Sec. 42.09 (livestock animals), Sec. 42.091 (assistance animals), Sec. 42.092 (nonlivestock animals) Abandonment. Tex. Pen. Code Sec. 42.09(b)(1), 41.092(a)(1): "abandoning an animal in the persons custody without making reasonable arrangements for assumption of custody by another person." Health & Safety Code Sec. 821.021: "cruel treatment" includes "unreasonable" abandonment 20
    21. 21. Possible animal cruelty liability ofrescuersAustin and Bastrop both include people with custody or care of an animal in their definition of an “owner.”Taking an animal into your custody by “rescuing” it could lead to criminal liability for animal cruelty for failing to provide adequate food, water, or shelter. 21
    22. 22. Do you commit abandonmentwhen you leave animals behind ina disaster?Remember mens rea! Need intent to desertHealth & Safety Code Sec. 821.021: "cruel treatment" includes "unreasonable" abandonment.If animal is abandoned, this may negate theft claim 22
    23. 23. Does it matter if a “rescuer” didn’tintend to “steal” a pet?Mens rea: What the defendant thinks mattersDo you commit theft when you remove a dog from its home to save it from imminent disaster?  Maybe no, if intent was to “rescue” and “reunite”  Maybe yes, if intent was to remove and never return 23
    24. 24. Defenses to Criminal Charges“Necessity” Would a reasonable person believe the defendant’s actions were necessary to avoid a greater harm? Was defendant at fault in creating the injury sought to be avoided? (e.g. you can’t use the necessity defense if you are one who placed the animal in the dangerous situation to begin with). Does the desirability and urgency of avoiding the threatened injury outweigh the desirability of the injury sought to be prevented by the criminal law defendant is charged with violating?  (e.g. does the desirability of saving an animal from starvation outweigh the desirability of preventing trespass and larceny?) Were there any reasonable alternatives to the defendant’s actions? 24
    25. 25. Case of Malvin Cavalier andBandit•86 year-old Katrina refugee, forbidden to take dog Banditwith him. Bandit was rescued after the storm and adoptedby a Pittsburgh couple.•Cavalier sued when the adopters refused to return Bandit.•He made no allegations of mistreatment. The only issuewas ownership, or right of possession of Bandit.•The case settled and Bandit went back to New Orleans 25
    26. 26. Case of Malvin Cavalier andBandit (cont.) Malvin and Bandit reunited, September 2006 via•Malvin Cavalier died in 2010, and Bandit went to live withhis rescuers, who had moved to Ottawa, Ontario 26
    27. 27. Questions? 27