United States

Summary: In January of 2005, the Detroit City Council passed an ordinance granting special police powers to officers working in the Animal Control Division (ACD). The ordinance allowed ACD officers to have “the right of entry without a warrant” for the purpose of capturing or restraining any animal. Detroit residents filed a petition arguing that the ordinance was unconstitutional and the court granted a petition for a preliminary injunction on the basis that the ordinance violated the Fourth Amendment. Following the injunction a number of residents filed suit seeking damages against the City of Detroit arguing that the City improperly seized their pets and failed to provide adequate post-deprivation remedies. Lastly, the residents argued that the City operated its animal shelter in a “grossly negligent manner” after numerous dogs suffered severe illnesses after having been taken to the shelter for quarantine by the ACD. The court reviewed the testimonies of the individual residents who claimed that their pets had been improperly seized and determined that the seizures of the pets were “objectionably reasonable.” In order to determine whether the seizures were “objectionably reasonable” the court stated that it “must balance the nature and quality of the intrusion on the individuals Fourth Amendment interests against the countervailing governmental interests at stake by analyzing the totality of the circumstances.” Ultimately, the court found that it was reasonable for the officers to have seize the pets in each situation based on the facts presented and therefore granted summary judgment in favor of the City of Detroit. Finally, the court reviewed the residents’ arguments pertaining to the Fourteenth Amendment and held that because the vast majority of the pets were found “unrestrained, unlicensed, abandoned by their owner, or accused of biting another animal or human,” the City’s interest in protecting the public was far greater than any “pre-seizure due process owed to the plaintiffs.” As a result, the court granted summary judgment in favor of the City. With regard to the residents’ claim about the state of the City’s animal shelter, the court declined to assert supplemental jurisdiction and therefore dismissed the claim.

Summary: Harris was convicted for twenty-two counts of cruelty to animals after dozens of malnourished animals were found on her property by employees of the Humane Society. On appeal, Harris raised two main issues: (1) that the animal protection agent who was an employee of the Humane Society was not authorized to obtain a search warrant to investigate her property and (2) that the mistreatment of the twenty-two animals constituted one continuous course of conduct and that the lower court violated her rights under the Double Jeopardy Clause by entering a judgment on twenty-two counts of animal cruelty. The Court of Appeals reviewed the issue of whether the animal protection agent had the authority to obtain a search warrant to investigate the property and determined that the agent did not have the proper authority. The Court looked to the state statute that specifically stated that only “state employees” were able to investigate livestock cases. In this case, the animal protection agent was employed by the Humane Society and was not a state employee; therefore, he did not have the authority to obtain a search warrant to investigate the property. However, the Court found that there was no constitutional violation with regard to the search warrant because it was still obtained based on probable cause. For this reason, the Court denied Harris’ request to suppress evidence that was submitted as a result of the search warrant. Finally, the Court reviewed Harris’ argument regarding her rights under the Double Jeopardy Clause. The Court found that under the statute dealing with animal cruelty, the phrases “any animal” and “an animal” suggests that a person commits a separate offense for each animal that is mistreated. Essentially, the Court held that the language of the statute “demonstrates that the legislature perceived animal cruelty not as an offense against property but as an offense against the individual animal.” As a result, Harris’ rights under the Double Jeopardy Clause were not violated and the Court upheld the lower court’s decision.

Summary: Abstract: The constitutionality of restrictions on speech depicting actual cruelty to animals is a question that continues to divide courts and commentators. In U.S. v. Stevens, the Supreme Court struck down a 1999 ban on depictions of animal cruelty. The Court invalidated the ban on its face because, as written, the statute extended beyond acts of actual animal cruelty to other forms of unlawful animal harm, such as hunting out of season. Thus, the Court did not resolve the core question presented.

Congress responded by drafting a new statute, one narrowed to “crush” videos--obscene depictions of animal cruelty--in an effort to avoid constitutional problems. This new statute, however, continues to raise constitutional and public policy concerns--despite its recent upholding in the Fifth Circuit in United States v. Richards.

This article is the first to analyze the constitutional and public policy issues presented by Congress's new animal cruelty speech regulation. This article contends that the modified statute is poor public policy and remains constitutionally problematic. First, as a policy matter, the statute is ineffective because it fails to criminalize the most widespread and troubling form of animal cruelty speech: animal fighting videos. Second, the statute's overly narrow reach--limited to obscene depictions of animal cruelty--in fact increases its constitutional problems by triggering the “virulence” doctrine first articulated in R.A.V. Since courts are unlikely to view obscene depictions of animal cruelty as virulently “prurient” obscenity, as opposed to the kind of “morbidly” violent speech entitled to the protections of strict scrutiny as established in Brown, the statute will likely be invalidated.

The article concludes with an exploration of possible new legislation, which could effectively prevent animal cruelty, while also preserving free speech rights.

Summary: In 2016, the State of Alaska added language allowing the inclusion of pets in protective orders for domestic violence. Effective January 17. 2017 under Section 18.65.520, a petitioner may seek a protective order that includes a provision to "grant you [the petitioner] possession and use of a vehicle and other essential personal items, including a pet, regardless of the ownership of those items." In the new amendment to Section 18.65.590, “pet” means "a vertebrate living creature maintained for companionship or pleasure, but does not include dogs primarily owned for participation in a generally accepted mushing or pulling contest or practice or animals primarily owned for participation in rodeos or stock contests."

Summary: The Washington State Comprehensive Emergency Operations Plan (CEMP) includes Emergency Support Function #6 and #11, which concerns service animals and pets.

Summary: The Minnesota Emergency Operations Plan contains references to both household pets and service animals. The plan defines "household pet" as "[a] domesticated animal, such as a dog, cat, bird, rodent (including a rabbit), or turtle that is traditionally kept in the home for pleasure rather than for commercial purposes and can travel in commercial carriers and be housed in temporary facilities. Household pets do not include reptiles (except turtles), amphibians, fish, insects/arachnids, farm animals (including horses), and animals kept for racing purposes."

Summary: The New Mexico All-Hazard Emergency Operations Plan has an Emergency Support Function (ESF) that deals with animal safety provisions. In addition to food safety, livestock, and zoonotic disease concerns, the plan addresses the "safety and well-being of household pets, service animals, farm animals, and zoo animals during an emergency response or evacuation situation."

Summary: The purpose of this Emergency Support Function (ESF) #11 Annex is to coordinate State agencies, OKVOAD, Federal and other response entities in efforts to control and eradicate, as appropriate, any outbreak of a highly contagious or economically devastating animal/zoonotic (i.e. transmitted between animals and people) disease, or any outbreak of an economically devastating plant pest or disease; ensure the safety and security of the commercial food supply; protect natural resources; and provide for the safety and well-being of household pets during an emergency response or evacuation situation. [See FEMA Disaster Assistance Policy DAP9523.19 Title: “Eligible Costs Related to Pet Evacuation and Sheltering” for definition of “Household Pet”.]

Summary: The Maryland Emergency Management Agency (MEMA) is the agency that oversees the Maryland Emergency Preparedness Program (MEPP). The plan references pets and disaster planning, recognizing the need for mass care services for household pets and service animals in one emergency support functions (ESF), and the need to provide a framework and protective actions for animals in ESF #16.

Summary: The Iowa Emergency Response Plan contains several specific references to pets and service animals. In fact, "[p]rovisions will be made for the care of pets in nearby locations. Service animals for persons with disabilities are allowed by law to stay in shelter with their owner and are not considered pets." There are requirements under the plan for agency coordination to shelter pets.