Saturday, October 4, 2014

Cases on Animal Law Issues, Often by Animal Rights Groups

We are not saying we agree with these cases as filed,  however, activist groups file cases constantly in Federal Courts and state courts across the country.  In the first case, even if a defendant was careless, that does not necessarily amount to gross criminal negligence IN California, which requires the standard (to meet the burden of proof.) General negligence is not sufficient.

Shotts v. City of Madison, 2013-KM-01108-COA, 2014 WL 4347582 (Miss. Ct. App. Sept. 2, 2014). Defendant was charged with animal cruelty after burning his girlfriend's dog while giving it a bath. He said it was an accident. There were no other witnesses, and the attending veterinarian testified that the dog's injuries were consistent with defendant's account. Defendant was nevertheless convicted after the county court suggested he could be guilty of animal cruelty if he had “carelessly” hurt the dog. 
Instead, the appeals court found the lower court applied the wrong legal standard. The 2011 animal cruelty statute, since repealed, that applied in this case required proof beyond a reasonable doubt that defendant acted maliciously. Since the prosecution failed to meet that burden, the Mississippi Court of Appeals reversed and rendered the defendant's conviction. Justice James dissents finding that there was sufficient evidence to support the conviction.
We didn't bother to read this case below, because ALDF uses a lot of the same attorneys that HSUS and cronies use, so if there is a way to "tweak" something, they usually do it. Doesn't mean success in every case (such as saying chimps have human rights due to their cognitive ability) as animals are still considered as property in the United States.

Animal Legal Def. Fund v. Otter, 1:14-CV-00104-BLW, 2014 WL 4388158 (D. Idaho Sept. 4, 2014). In a ‘hold your tongue and challenge now’ First Amendment challenge to an Idaho statute that criminalizes undercover investigations and videography at “agricultural production facilities,” the Animal Legal Defense Fund, as well as various other organizations and individuals, (collectively, “ALDF”), brought suit. The State defendants, Governor Butch Otter and Attorney General Lawrence Wasden, moved to dismiss the ALDF's claims. The claims against the Governor were dismissed under 11th Amendment immunity because the ALDF failed to explain the requisite connection between the Governor and enforcement of section 18–7024. The court also found that since the ALDF failed to allege a concrete plan to violate subsection (e), it lacked standing to challenge section 18–7042(1)(e) and the claim in regards to that provision was therefore dismissed. However, the ALDF’s First Amendment, bare animus Equal Protection, and preemption claims survived the motion to dismiss.
Defenders of Wildlife are consistently filing cases. They do win some. 
Defenders of Wildlife v. Jewell, CV 12-1833 (ABJ), 2014 WL 4714847 (D.D.C. Sept. 23, 2014). In 2012, a rule transferred management of the gray wolf in Wyoming from federal control to state control. Plaintiffs moved for summary judgment, and maintained that the decision was arbitrary and capricious because Wyoming's regulatory mechanisms were inadequate to protect the species, the level of genetic exchange shown in the record did not warrant delisting, and the gray wolf was endangered within a significant portion of its range. Given the level of genetic exchange reflected in the record, the Court decided not to disturb the finding that the species had recovered, and it would not overturn the agency's determination that the species was not endangered or threatened within a significant portion of its range. However, the Court concluded that it was arbitrary and capricious for the Service to rely on the state's nonbinding promises to maintain a particular number of wolves when the availability of that specific numerical buffer was such a critical aspect of the delisting decision. The Court therefore granted plaintiffs' motion for summary judgment in part, denied it in part, and remanded the matter back to the agency.

United Pet Supply, Inc. v. City of Chattanooga, Tenn., 13-5181, 2014 WL 4637546 (6th Cir. Sept. 18, 2014). A private non-profit corporation that contracted with the City of Chattanooga to provide animal-welfare services, received complaints of neglect and unsanitary conditions at a mall pet store. Investigations revealed animals in unpleasant conditions, without water, and with no working air conditioner in the store. Animals were removed from the store, as were various business records, and the private, contracted non-profit began to revoke the store's pet-dealer permit. Pet store owners brought a § 1983 suit in federal district court; the Owners alleged that the removal of its animals and revocation of its pet-dealer permit without a prior hearing violated procedural due process and that the warrantless seizure of its animals and business records violated the Fourth Amendment. The district court’s entry of summary judgment was affirmed in part and reversed in part, and remanded for further proceedings consistent with this opinion.

Due process requires an opportunity to be heard at a “meaningful time and in a meaningful manner.”Armstrong, 380 U.S. at 552, 85 S.Ct. 1187. The failure to provide a hearing prior to a license or permit revocation does not per se violate due process. See Barry v. Barchi, 443 U.S. 55, 65–66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (holding that the summary suspension of a horse trainer's license without a prior hearing did not violate due process, but the failure to provide a timely post-suspension hearing did violate due process). But there is no dispute that never providing an opportunity to challenge a permit revocation violates due process. Thus, the revocation of Pet Supply's permit without a pre-deprivation hearing or a post-deprivation hearing violated due process.
*18 No reasonable officer could believe that revoking a permit to do business without providing any pre-deprivation or post-deprivation remedy was constitutional.

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Monday, September 8, 2014

Post Seizure Hearing Lassen Horse Case Example

Post Seizure Hearing under Penal Code 597.1 and Abandonment, Civil Code 1815

1815.  An involuntary deposit is made:
   (a) By the accidental leaving or placing of personal property in
the possession of any person, without negligence on the part of its
owner.
   (b) In cases of fire, shipwreck, inundation, insurrection, riot,
or like extraordinary emergencies, by the owner of personal property
committing it, out of necessity, to the care of any person.
   (c) By the delivery to, or picking up by, and the holding of, a
stray live animal by any person or public or private entity.
   (d) By the abandonment or leaving of a live animal, as proscribed
by Section 597.1 of the Penal Code, in or about any premises or real
property that has been vacated upon, or immediately preceding, the
termination of a lease or other rental agreement or foreclosure of
the property.


1816.  (a) The person or private entity with whom a thing is
deposited in the manner described in Section 1815 is bound to take
charge of it, if able to do so.
   (b) Any person or private entity with whom a live animal is
deposited in the manner described in subdivision (d) of Section 1815
shall immediately notify animal control officials for the purpose of
retrieving the animal pursuant to Section 597.1 of the Penal Code.
Animal control officers who respond shall be entitled to exercise the
right afforded them pursuant to that section to secure a lien for
the purpose of recovering the costs of attempting to rescue the
animal. Nothing in this subdivision shall impose any new or
additional civil or criminal liability upon a depositary who complies
with this subdivision.
   (c) A public agency or shelter with whom an abandoned animal is
deposited in the manner described in Section 1815 is bound to take
charge of it, as provided in Section 597.1 of the Penal Code.
   (d) The person in possession of the abandoned animal is subject to
all local ordinances and state laws that govern the proper care and
treatment of those animals.
   (e) For purposes of this section, the person or private entity
that notifies animal control officials to retrieve the animal or the
successor property owner shall not be considered the keeper of the
animal or the agent of the animal's owner as those terms are used in
Section 597.1 of the Penal Code


















 "This bill would provide that an involuntary deposit is made by the
abandonment or leaving of a live animal in or about any premises or
real property that has been vacated upon, or immediately preceding,
the termination of a lease or other rental agreement or foreclosure
of the property. The bill would require any person or private entity
with whom a live animal is involuntarily deposited to immediately
notify animal control officials for the purpose of retrieving the
animal."


Abandoned Pets 

                                   DESCRIPTION 

          Generally, a voluntary deposit of property occurs when a  
          party gives to another, with his or her consent, possession  
          of their personal property; whereas an involuntary deposit  
          of property occurs when the property is provided to another  
          by accident (without negligence) or by necessity.  

          This bill would provide that an involuntary deposit is also  
          made by the abandonment or leaving of a live animal in or  
          about any premises or real property that has been vacated,  
          upon, or immediately preceding, the termination of a rental  
          agreement or foreclosure of the property. 

          This bill would require any person or private entity with  
          whom a live animal is left, as specified, to immediately  
          notify animal control officials for the purpose of  
          retrieving the animal as provided by Penal Code Section  
          597.1, which authorizes any peace officer, humane society  
          officer, or animal control officer to take possession of  
          the abandoned animal and provide care for the animal until  
          the animal is deemed to be in a suitable condition to be  
          returned to the owner.

          This bill would also authorize animal control officials to  
          secure a lien upon the animal for the purpose of recovering  
          the costs of rescuing it, as provided by Penal Code Section  
          597.1. 




It is pretty obvious that the person has to abandon and leave the animal


for this to apply. Owner never left them, the County, the Receiver and


the rescue/bank attorney SEIZED the animals about 1 month after getting


an exigency removal, without due process. There was no due process because


there was no order to give ownership up--the animals were only to be moved


in part, to the fairgrounds to determine if they needed vet care. The horses


were to be returned to owners and never were returned.








This bill does not mean bank attorney works with a rescue and AC to use


improper method of seizing animals while owner is still on property, and


bank attorney goes to court acting as the Receiver, to say he must gain


custody/remove due to exigency health of animals. Nope.





There cannot be an involuntary deposit of something which has already been



there with the owner for years, but bank is trying to TAKE property over which



they may have some equitable lien that was never proven up in $$ amount in a



lawsuit brought by the one owning the property, not the bank?







As far as "foreclosures" go, there was/is  no foreclosure, because banks do not have



title they can prove; thus they had to use other means; Bank of America admitted they                     have no ownership. Banks have only a potential interest in improvements that are



situated on owner's land, and they did not partition it. They never filed a lis pendens.



They claim they inherited the improvements somehow (which was in securitized trust.)







That leaves Wells Fargo Bank. Bank attorney Ryan was REMOVED from the case.



He was replaced with other Bryan Cave attorneys. Those attorneys have done



very little in the case and have not even tried to take the property. There are some



key, hard issues with that, and they don't want to make it worse than it already is



we guess, even though someone had offered the now-evicted rescue about $800,000 to



settle the case and she refused.







Although El Dorado held post seizure hearing on the horses which WERE involuntarily



left at the ranch, the horses ARE evidence in a criminal case AND we have no idea



where they went. Lassen did not respond to the post seizure notice, but there are



still criminal charges pending on those horses. Do we really think Lassen can



convict owner by using pictures? They would have to get witnesses to lie. There



are no witnesses except interested parties like animal control wanting to save their



own hides. 
































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Sunday, September 7, 2014


          

        










Humane Officer Tries to Claim Llamas Need to be Seized










Humane officers have tried to claim llamas just north of Sacramento need to be seized for "abuse" because they need grooming, fleece removing, or other terms used to trim the coat. Elderly llamas

are not normally sheared down heavily at the wrong time of the year since their coat

may not return properly.  A well known veterinarian will be out to inspect the critters

and the Humane officers will not be allowed entrance to the property, even though they

(humane officers) already took pictures of the animals.



Update: Apparently, the "humane officer" that is bent on creating problems for llama owner took even more action recently, and has attempted to get authority to search the residence premises.

We will update when we find out what transpired. {NOTE: the "humane officer" in question here, is now being sued in Eastern District Federal Court on many counts, due to fact that such "officer" purposely worked with various employees employed by the city/or county,etc. and proceeded to ignore the correct California Penal Code law (PC 597 and 597.1) when they illegally seized in Plaqcer Couty,  animals/personal possessions, failed to engage due process; then hired well known animal attorney from San Francisco who told Judge that it was the Legislature's fault that PC 597.1 had flaws [ that the owners did not get any due process]...What is ridiculous, is that this SAME attorney wrote that law and has continued to try and further add to that law in the legislature, year after year. Trust us, the law is one of the worse ever written, just made worse and worse year after year. That same attorney has also written the case text book used to teach animal law in California.

He may know animal law, but he definitely knows little to nothing about due process.]



The person owning the llamas has many many years of experience with llamas and they

are not the same as shearing sheep. We seriously doubt any humane officer is going to know

more about trimming or shearing than the llama owner in question. Typical animal rights

humane officer trying to get a "bust" as usual.



The result--- owner followed protocol, vet consulted, a few things done, animals viewed, everything was fine.





 http://photographyblogger.net/20-wonderful-pictures-of-llamas/

see cute pics of other llamas at link.


















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Wednesday, August 13, 2014


          

        










HSUS Navigator Charity Rating Revoked to Zero!!!






















About 73,000 results (0.38 seconds) 

























































































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