Legislative Leftovers: Companion Animal Law Bills Carried Into Virginia’s 2011 Session

Four bills from Virginia’s 2010 legislative session got plenty of discussion, but not enough traction to become law.  Three of the bills never made it beyond the House, and were continued by voice vote to the 2011 Session.  One of the bills made it through the Senate, but got stuck in the House and was also continued by voice vote.

Two of the House bills were sponsored by Delegate James Scott (D) from the 53^rd District, which covers Falls Church, Merrifield and parts of McLean.  The first of these is HB 285, which was co-sponsored by Delegate Charniele Herring (D) from the 46^th District, covering parts of the City of Alexandria and Fairfax County.  HB 285 would allow a court to include companion animals in protective orders if the evidence shows harm to the companion animal with intent to threaten, coerce, intimidate or harm the petitioner or the petitioner’s family or household members.  

Delegate Scott’s second bill is HB 1143, which would allow the appointment of new humane investigators.  Under Virginia Code Section 3.2-6559, humane investigators have the ability to investigate violations of laws and ordinances regarding the care and treatment of animals and disposal of dead animals within the investigator’s locality.  As of now, existing humane investigators may be reappointed, but no new humane investigators can be appointed.   The bill would also require the administrative entity that oversees animal control in each jurisdiction to supervise humane investigators and maintain and annually update a list of those eligible for appointment as humane investigators.  Additionally, circuit courts that appoint a humane investigator must notify the administrative entity if a humane investigator’s term expires and he is not appointed to a succeeding term before or within thirty days. 

Next is HB 1056, sponsored by Delegate Ward Armstrong (D) of the 10^th District, which covers Patrick County, the City of Martinsville and parts of Carroll County and Henry County.  HB 1056 would clarify animal control officers’ duties and responsibilities, and makes all sheriffs, police officers, conservation police officers, or other peace officers ex officio animal control officers.  This bill would grant animal control officers and deputy animal control officers the power to issue a summons or obtain and execute a search warrant or a felony warrant.  As things stand now, felony warrants have to be executed by police officers.  The bill would require localities to notify the State Veterinarian within thirty days of any change in the employment and training status of their animal control officers.  

Last, SB 249 was sponsored by Senator Roscoe Reynolds (D) of the 20^th District, including the cities of Martinsville and Galax, Carroll County, Floyd County, Henry County, Patrick County and parts of Grayson County and Wythe County.  SB 249 would require the Board of Agriculture and Consumer Affairs to adopt regulations to permit the non-commercial, intrastate transportation of animals by law-enforcement officers, animal control officers, and releasing agencies by vehicles that are not enclosed, provided that the primary enclosure is affixed to the vehicle and complies with specifications set out in the federal Animal Welfare regulations; the duration of transport does not exceed two hours; and the animal is protected from the elements during transport.  This Senate passed this bill with a vote of 39-0, but the bill never made it out of the House.

Only One More Week Until Election Day!

In preparation for Election Day, you may want to know where your Senators and Representatives stand on animal law issues currently facing Congress.  If so, take a look at the website for the Congressional Animal Protection Caucus.

The Caucus is co-chaired by Northern Virginia’s Representative Jim Moran and Simi Valley California’s Representative Elton Gallegly.  Formerly known as the Friends of Animals Caucus, its goal is to raise animal welfare awareness in Congress.  The Caucus is bi-partisan and has 84 members.  The website is quite informative, with brief summaries of proposed and pending bills, along with the legislative text, sponsors, Congressional actions and more. 

Current issues highlighted by the Caucus include:

• Amending the federal criminal code to outlaw animal crush videos.  For more on crush videos and the First Amendment, see my prior post, Cleaning Up the Mess After United States v. Stevens:  Amended H.R. 5566.
• Requiring species-specific labeling on any fur product regardless of price, as proposed by the Truth in Fur Labeling Act.  Current law has a $150 exemption, not requiring labeling for garments with small amounts of fur, even if the fur is from companion animals such as dogs and cats.
• Granting greater protection of our wild horses and burrows roaming federally administered lands with the Restore Our American Mustangs Act.
• Toughening anti-cruelty laws for horses and farm animals through the Prevention of Equine Cruelty Act and the Prevention of Farm Animal Cruelty Act.
• Prohibiting unfair hunting practices, including hunting via aircraft, computer assisted remote hunting (“internet hunting”), and use of body gripping traps.

Tools To Combat Animal Abuse, Part 2: Chung and Exigent Circumstances

During the early morning hours of July 13, 2007, Jennifer Lee and her husband woke up to loud banging and the high-pitched cries of an animal coming from the condo unit above her.  This wasn’t just barking, it was yelping and howling.  The sounds continued for fifteen minutes, growing louder and louder.  Lee had been hearing these sounds several times a week, and had even called animal control in the past.  But this time it was worse.  So much worse that it prompted her to call 911. 

Officer Peter Correa and his partner responded to the Los Angeles neighborhood and spoke with Lee.  Lee told the officers that she heard loud noises of an animal that seemed to be in pain, and that she thought the animal was being tortured and was in danger.

Correa and his partner went to the condo unit above Lee to investigate.  Keith Chung answered the door and told the officers he didn’t own any dogs.  But while the officers were at the door, Correa heard a dog faintly whimpering.  Correa asked Chung to let them inside, but he refused, claiming it was too messy. 

Believing there was an animal in distress inside and no time to obtain a warrant, the officers detained and handcuffed Chung in the hallway.  Correa entered the condo to look for signs of an animal in distress.  Once inside, Correa saw that the condo was in disarray, and noticed a glass pipe with what appeared to be drug residue inside. 

Correa continued to look for the dog he had heard.  He entered one of the bathrooms, where he saw what appeared to be dog hair and blood on the floor and walls, and knives.  Correa continued to look for the whimpering dog.  On the patio, he found a small dog on a towel in a tool box.  The dog was injured and weak, non-responsive but still breathing. 

Other officers responded for backup.  At that point, officers found another dog – dead, cut into sections and frozen solid in a plastic bag in Chung’s freezer.  Both dogs had suffered from head injuries, and the dog on the patio had to be euthanized later that morning.

The officers charged Chung with two counts of animal cruelty and possession of a controlled substance.  Chung challenged the officers’ actions in a motion to suppress, claiming that the officers had no right to enter the condo without a warrant. 

The trial court disagreed with Chung, concluding that it was reasonable for the officers to enter the condo without a warrant to aid an animal they reasonably believed was in distress.  After the court denied his motion to suppress, Chung pled no contest to one count of animal cruelty and was sentenced to sixteen months in prison.

Chung preserved his right to appeal the trial court’s decision on the motion to suppress, and pursued the appeal to the California Court of Appeals.  The Court of Appeals’ decision is a thoughtful fifteen-page examination of what actions officers can take when they believe an animal’s life is in danger.

The Fourth Amendment protects us from unreasonable searches and seizures.  Generally, police need a warrant in order to search a residence.  In order to get a warrant, the police need “probable cause” that a crime is being committed.  This, of course, takes time – precious time during which a suspect can destroy evidence or get away.  To address this, the courts have read limited exceptions into the warrant requirement. 

One of these exceptions involves “exigent circumstances.”  California courts define “exigent circumstances” to include emergency situations requiring swift action to prevent imminent danger to life or serious damage to property.  An officer relying on exigent circumstances must be prompted by the motive of preserving life or property, and those actions must appear reasonable and necessary from an objective point of view. 

The Court of Appeals took Chung’s arguments one at a time.  First, Chung argued that exigent circumstances do not extend to protection of an animal, and should be limited only to protecting human life.  The court could have rested its entire logic on the fact that dogs are property and that California law allows for exigent circumstances to prevent damage to property.  [For more on this, see my earlier post, Pets, Personal Property and Price:  Is Fido a Pampered Pooch or Mere Personal Property?] 

Instead, the court discussed the fact that animal protection has long been a proper government concern, as demonstrated by the fact that the animal cruelty statute that Chung was accused of violating dated back to 1872.  The court also commented in a footnote that doges have long held a special place in our lives, serving as our companions, aiding the disabled, and functioning as police, military, search and rescue and therapy dogs.

Second, Chung argued that even if protection of an animal could present exigent circumstances, the officers in this case lacked sufficient evidence of exigent circumstances to enter his condo.  Just like the trial court, the Court of Appeals had no problem finding that Officer Correa acted reasonably when he entered the condo looking for the whimpering dog.

Chung has continued his battle to the California Supreme Court, which has deferred briefing until the Court has the opportunity to review another case, People v. Troyer.  The issue in Troyer is whether, based on the protective sweep exception or the emergency aid exception to the Fourth Amendment’s requirement of a warrant, officers could forcibly enter a locked upstairs bedroom while responding to a report of a shooting with injuries at the house.

I prefer not to read too much into the fact that the California Supreme Court has put Chung on hold until Troyer is decided, and will keep my fingers crossed that the Court will agree that Officer Correa and the other officers were within their rights to aid an animal in immediate distress.  If you would like to follow Troyer and Chung, visit the California Appellate Courts’ Information System on line.  You can even set up automatic email notifications on that site.

UPDATE (12/07/2010):  The California Supreme Court is hearing oral arguments today in Troyer!  If you happen to be in Los Angeles at 2:00 PM today, you should stop by and listen in!

UPDATE (2/27/11):  The Troyer decision is out — take a look!

Tools To Combat Animal Abuse, Part 1: The Nation’s First Public Animal Abuser Registry

Jon Cooper, a legislator from Suffolk County, New York, introduced ground-breaking legislation establishing the country’s first public Animal Abuser Registry.  Just last week, the Suffolk County Legislature passed the law unanimously.  The law goes to the County Executive for a thumbs up or down within thirty days.

The law requires anyone convicted of animal abuse crimes to register for a mandatory five-year period following incarceration or judgment.  Those convicted of such crimes must provide their names, aliases, current addresses, and photographs.  Failure to register carries a penalty of a fine of $1000 and/or up to one year in jail.

The plan is to set up and maintain the registry without cost to taxpayers.  The Suffolk County SPCA has agreed to maintain the registry, and those who must register will pay a $50 annual fee. 

In order to pass this legislation, Jon Cooper and Suffolk County worked hand in hand with the Animal Legal Defense Fund.  ALDF has been diligently fighting for a decade to create animal abuser registries.  This idea is sure to spread quickly now that Suffolk County and the ALDF has had success.  It should spread even quicker if Suffolk County can actually maintain the registry without cost to taxpayers. 

Not satisfied with just a registry, Jon Cooper has introduced a follow-up bill that will require pet store owners, breeders and shelters to check the registry before allowing someone to adopt a pet, and will prohibit selling or adopting out a pet to someone on the registry.

For more information about the Suffolk County law, take a look at NPR’s story, N.Y. County Law Creates Animal Abuser Database and this post on USA Today’s Paw Print Post, Pet Lovers Hail Idea for Animal Abuse Registry.

So will Virginia follow suit?  I can certainly see benefits to registries like Suffolk County.  As one example, Virginia just toughened its penalties for failure to provide adequate care to a companion animal.  [For more on what Virginia requires for care of a companion animal, see my earlier post, So What Are My Responsibilities As A Pet Owner?] The recent version of Virginia Code Section 3.2-6503 ups the fines for second or subsequent convictions of failing to provide a companion animal with its basic needs, and even creates a jailable misdemeanor for a second or subsequent conviction of failing to provide adequate food, water, shelter or veterinary care.  Background checks don’t always have accurate information regarding charges and convictions, particularly for misdemeanors.   A registry like Suffolk County’s would give animal control officers an added tool to check the backgrounds of suspects charged with not providing adequate care to companion animals.

Here’s a second example.  Virginia Code Section 3.2-6549 lays out reporting requirements for “releasing agencies” other than pounds and shelters (which includes humane societies, animal welfare organizations, SPCAs and rescues).  One of the requirements involves certifying that directors, operators, staff and animal caregivers have not been convicted of animal cruelty, neglect or abandonment.  Foster care providers have the same requirement.  Releasing agencies must update this information if a change occurs.  A registry would go a long way to help Virginia releasing agencies and authorities to check the accuracy of these certifications.

Stay posted for Part 2 of this series, which will take a look at the status of The People v. Chung, a California case that held that officers can enter a house without a warrant if they suspect an animal is in danger.

Cleaning Up The Mess After United States v. Stevens: Amended H.R. 5566

Robert Stevens owned and ran a business called “Dogs of Velvet and Steel,” selling graphic videos depicting pit bulls participating in dog fighting or attacking other animals.  Two of these videos were “Japan Pit Fights” and “Pick-a-Winna:  A Pit Bull Documentary,” with 1960s and 1970s footage of American dog fights, along with contemporary dog fights in Japan, where dog fighting is supposedly legal.  A third video, “Catch Dogs and Country Living,” shows pit bulls hunting wild boar, and has a scene in which a pit bull gruesomely attacks a domestic farm pig.

Stevens was charged with violations of 18 U.S.C. §48, which made it a crime punishable by up to five years in prison if someone knowingly “creates, sells, or possesses a depiction of animal cruelty,” if done “for commercial gain” in interstate or foreign commerce.  A depiction of animal cruelty under Section 48 was one “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place.”  Section 48 had built-in exceptions for any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” 

Section 48 was designed primarily to target crush videos, which show horrendous acts of animal cruelty that are punishable as a crime in all fifty states and the District of Columbia.  Congress felt the need to enact Section 48 to combat the fact that law enforcement typically cannot identity of the participants in crush videos, which may only show the person’s leg or foot.  Like animal cruelty, dog fighting is illegal in all fifty states and the District of Columbia, and has been regulated federally since 1976.

In the Stevens opinion, the Court first looked at what kinds of “speech” are so unworthy of protection that they fall completely outside of the First Amendment, such as child pornography.  The Government argued that depictions of animal cruelty should be carved out of First Amendment protection just like child pornography, but the eight Justices in the majority (sans Justice Alito, the lone brave dissenter) did not buy it. 

Next, the Court looked at Stevens’ challenge to Section 48 “on its face,” arguing that Section 48 was so overbroad that it captured too many lawful acts its sweep.  The Court was deeply disturbed by the fact that the terms “wounded” and “killed” in the definition of a depiction of animal cruelty presumably had no requirement that the underlying acts be “cruel,” capturing videos about livestock and hunting in Section 48’s sweep.  Section 48’s exceptions did not give the Justices enough comfort that livestock and hunting videos would escape prosecution.

The Court struck down Section 48 and relieved Stevens of his conviction and well-deserved thirty-seven month sentence.  However, at the end of the opinion, the Court limited its decision to its finding that Section 48 was overbroad.  This left the window open for the possibility that a more narrow statute would be upheld as constitutional.  For a wonderful analysis of what the Court did and did not do in Stevens, be sure to catch Matthew Liebman’s post on the Animal Legal Defense Fund Blog, Clarifying the Supreme Court’s United States v. Stevens Opinion.  In that post, Liebman found the silver lining of the Stevens opinion to be the potential that the Justices would uphold a statute specifically tailored to crush videos and dog fighting. 

Stevens was decided on April 20, 2010.  In the days that followed, organizations like the Animal Legal Defense Fund and the Humane Society urged Congress to pass a new statute that could overcome the issues raised by the Court in Stevens.  Fortunately, Congress responded swiftly.  

On June 22, 2010, the House of Representatives introduced H.R. 5566, which specifically targeted animal crush videos and depictions of animal cruelty, and specifically excluded videos depicting hunting, trapping, fishing, and veterinary or animal husbandry practices. On July 21, 2010, Democrats and Republicans came together to pass H.R. 5566 by a vote of 416-3.  The 3 nay-sayers were Paul Broun and Tom Graves from Georgia, and Ron Paul of Texas.

On September 28, 2010, the Senate responded by passing H.R. 5566 EAS (“Engrossed Amendment Senate”), targeting the “extreme animal cruelty” depicted in crush videos.  The new statute seems plenty narrow to withstand constitutional attack.  My fear is that it is too narrow, arguably allowing dog fighting videos – the very situation raised in Stevens – to squeak by unprosecuted.  The bill now goes back to the House to resolve the differences between H.R. 5566 and H.R. 5566 EAS.

UPDATE:  Please take a look at Steve Dale’s recent post on the Facebook Legalizing Dog Fighting page.  Their message?  “Legalize dog fighting. Pets are not people. They are your pet. something you own. If i’m not mistaken when you own something you can do what you want with it.”  Seems they need to read up on the animal cruelty and animal neglect laws in all fifty states and the District of Columbia.  Steve Dale describes how to help shut down the page for its blatant promotion of illegality and violence.  Please take the time to do so.

UPDATE #2 (10/17/2010):  Facebook took down the Legalizing Dog Fighting page, only to have the group put up a new one.  Please take a moment to go to Steve Dale’s new blog post and report this page, too.

UPDATE #3 (10/18/2010):  The second page is also down!

UPDATE #4 (10/18/2010):  There is a third page up.  How is this for their new message:  “Dog fighting is good clean fun and a great activity to bring families together for an evening of entertainment. The best part is there is an abundant supply of FREE pit bulls available through your local shelter and craigslist.”  Please take time to report this page.

UPDATE #5 (10/19/2010):  And the third page is down now.

Read The Fine Print! Homeowners Insurance And Dog Bite Liability Coverage

Recent findings on dog bite liability by the Insurance Information Institute are likely to stir up debate.  If you own a dog and haven’t looked at your homeowner’s or renter’s insurance policy recently, you may want to get it out now and take a look at the fine print. 

The Institute says that most homeowner insurance policies provide $100,000 to $300,000 in coverage, and typically include dog bite liability.  The Institute quoted the Centers for Disease Control and Prevention for statistics showing that dogs bite more than 4.7 million people per year, causing 800,000 people to seek medical assistance.  386,000 require treatment in an emergency department, and approximately 16 die.  Because more than half of dog bites occur on the owner’s property, and more than one third of all homeowner liability claims are dog bite claims, insurers have started taking notice.

Dog bite liability generally arises in three ways.  First, a state may have a dog bite statute making the owner automatically liable for any unprovoked injury or property damage caused by a pet dog.  The District of Columbia has such a “strict liability” statute for the first bite.  Second, an owner may be liable for injury caused by his or her dog only if the owner knew the dog had a propensity to bite.  This is commonly called the “one free bite” rule, and is followed in Maryland and Virginia.  [For a very comprehensive analysis of dog bite liability and a breakdown of which states have dog bite statutes and which states follow the “one free bite” rule, take a look at Kenneth Phillips’ Dog Bite Law site.]  Third, the owner may be liable for negligence for injury caused by the owner’s having been unreasonably careless in handling the dog.

According to the Institute, most insurers provide coverage to households with dogs.  However, some insurers have started to require liability waivers for dog bites.  Other insurers charge extra for or exclude certain “biting breeds” (a term used by the Institute in this recent article) such as Rottweilers and pit bulls.  [For a list of other breeds commonly targeted by insurers, see the post Dog Breeds Can Affect Home Insurance Rates on e-wisdom.com.]  Some insurers will provide coverage if the owner takes behavior modification classes or “if the dog is restrained with a muzzle, chain or cage,” according to the Institute.  Still others are refusing to insure dog owners at all.

As justification for the insurers’ actions, the Institute cites data that shows an increase in 2009 in the number, value and average cost of dog bite claims.  From 2008 to 2009, the number of claims have risen 4.8%, from 15,823 to 16,586.  In that same time frame, the value of claims has risen 6.4%, from $387 million to $412 million.  The average cost of dog bite claims has risen 1.5%, from $24,461 in 2008 to $24,840 in 2009.

Probably the most contentious statement by the Institute is this: 

Insurers generally oppose legislation that would require changes to their dog breed practices.  They contend that government public health studies and the industry’s claims histories show that some breeds are more dangerous than others and are higher loss risks. 

This statement is in direct contrast to the approach taken by the Department of Justice, which has recently modified its definition of the term “service animal” in the Americans with Disabilities Act.  The DOJ refused to cave to local efforts in banning particular breeds, maintaining its position that a service dog may be of any breed, and can be excluded from access based solely on that particular dog’s actual and individual behavior and history.  [For more about the new definition of “service animal,” refer to my post, Watch for these Changes to the ADA Definition of Service Animal.]  Notably, at least two states – Pennsylvania and Michigan – forbid breed discrimination, with laws prohibiting insurers from cancelling or denying coverage to owners of particular dog breeds.

The Institute also said:  “It is unlikely that insurers will begin offering specialty insurance just for dog bites since the cost of such polices would be prohibitive.”  I find this very disconcerting in the face of laws such as Virginia’s dangerous dog statute, enacted in 2008.  Virginia’s dangerous dog statute requires the owner of a dog declared by a court to be “dangerous” to carry maintain a surety bond or have an insurance policy of at least $100,000.  Even more frustrating is the fact that Virginia’s dangerous dog statute has no requirement that a dog bite to a person be of any certain level of severity.  I fear that the requirement of a $100,000 bond or policy will prove to be so onerous that some owners of dangerous dogs – even ones who inflicted very minor injuries to a person – may feel they have no choice but to turn to euthanasia because they cannot afford the cost of complying with the statute.