Legislative Score Card: Let’s See How Virginia’s General Assembly Has Done

This session is over for the Virginia General Assembly as of Friday February 25, 2011.  Let’s see how they did with the companion animal law bills.  Below is a description of each bill, the grade I gave the bill in my previous post, and where each bill stands.  All in all, I have to warn you that this session was dismal.

HB 1541 (patron: Robert D. Orrick, Sr.)/SB 1026 (patron: Phillip P. Puckett), addressing care of agricultural animals and penalty for failure to provide care.  This is the bill that provides such minimum standards of care for agricultural animals that it actually threatens to carve agricultural animals out of the current animal cruelty standards under Virginia Code Section 3.2-6570.  Grade:  F.  Result:  This bill passed in the House by a vote of 98-0.  The Senate added some language regarding seizure and impoundment procedures, and that amendment was accepted by the House.  The Senate’s version of this bill had language clarifying that animal cruelty under Section 3.2-6570 was still on the table for agricultural animals, but the House rejected the Senate’s version, and that language did not make its way into the final bill.  Big step backwards for Virginia here.  UPDATE (5/21/11):  Take a look at this post on this statute’s implementation.  This gives me comfort, but there is still a long way to go to protect Virginia’s agricultural animals.

HB 1556 (patron: Tony Wilt), which would allow training of dogs to hunt bears to occur at night.  Grade:  F.  Result:  This bill passed in the House by a vote of 89-7, but has been passed by indefinitely in the Senate’s Agriculture, Conservation and Natural Resources Committee.  Nice job, Senate!

HB 1716 (patron: James M. Scott, Ward L. Armstrong and Charniele L. Herring), allowing a court to include in a protective order provisions prohibiting harm to a companion animal and damage to any item of personal property.  Grade:  A.  Result:  This bill got kicked around last year, and fortunately came back up again this session.  The House decided to incorporate this bill with HB 2063.  The latest language of HB 2063 does not specifically list companion animals, but it did add the italicized language for a protective orders involving domestic abuse, stating a court may:  “Prohibit[] acts of family abuse or criminal offenses that result in injury to person or property.”  For non-domestic protective orders, similar language was added:  “Prohibiting acts of violence, acts of sexual battery, or acts of stalking in violation of § 18.2-60.3 force, or threat or criminal offenses resulting in injury to person or property.”  This puts petitioners in the position of arguing their companion animals are property.  Better than nothing?  I’m not so sure.

HB 1889 (patron: Tony Wilt), allowing the use of tracking dogs to find wounded or dead bear or deer.  Grade:  F.  Result:  This bill passed resoundingly in the House, and finally passed in the Senate, too.  The final language changed a bit, but the amendment was nothing substantive.  This law still gets a huge thumbs down in my opinion.

HB 1930 (patron:  Daniel W. Marshall, III), establishing a statewide animal abuser registry.  Grade:  A+.  Result:  This bill never got past the House Committee for Courts of Justice.  Virginia missed out on being the first state to set up a statewide animal abuser registry.  Very disappointing.

HB 2108 (patron: Ward L. Armstrong)/SB 842 (patron: J. Chapman Petersen), which would allow circuit Courts to appoint new humane investigators.  Grade:  A.  Result:  This bill was already kicked around last year.  Not surprisingly, the House version is stuck yet again in the House Agricultural, Chesapeake and Natural Resources Committee.  The Senate version has been passed by indefinitely in the Senate Agriculture, Conservation and Natural Resources Committee.

HB 2134 (patron: William K. Barlow), providing that law enforcement K9s would not need to be quarantined unless the K9 was showing active signs of rabies or was suspected of having rabies.  Grade:  B.  Result:  Yet another bill that will languish in the House Agricultural, Chesapeake and Natural Resources Committee.

HB 2195 (patron: Patrick Hope and Robin Abbott), prohibiting devocalization of a cat or dog unless necessary for health reasons.  Grade:  A+.  Result:  Another bill left to sit in the House Committee for Courts of Justice.  Another missed opportunity here.

HB 2312 (patron: Richard P. Bell and Robin Abbott), which would redefine “home based rescue” and add reporting requirements.  Grade:  F.  Result:  The House has allowed this bill to sit in the Agriculture, Chesapeake and Natural Resources Committee.  So the House got one thing right with companion animals this session.

HB 2482 (patron:  R. Lee Ware, Jr.), which would provide new procedures for the impoundment, seizure, return or forfeiture of animals when the owner or custodian is suspected of animal welfare violations.  Grade:  F.  Result:  This bill has also gotten stuck in the House Agricultural, Chesapeake and Natural Resources Committee.  OK, make that two things the House got right.

One Step Closer To Extending Exigent Circumstances To Animals In Distress: People v. Troyer

At 12:18 PM, Sergeant Tim Albright of the Elk Grove Police Department in California heard police dispatch broadcast a report of shots fired at a residence, with an unidentified male who had “possibly been shot twice,” and with suspects driving away in a “two-door Chevrolet product.”  Sergeant Albright was the first officer to respond to the residence, arriving by 12:20 PM. 

At the house, no car was in sight.  Albright went to the front porch, where he saw a man with a wound on his head, and blood streaming onto his face and T-shirt.  The man, Adrien Abeyta, was helping a female, Mia Zapata, who had been shot multiple times.  Both Abeyta and Zapata were in distress, and unable to answer Albright’s questions.  Abeyta was at least able to explain that a white male and a black male were involved, and had fled in a blue or black Chevy Tahoe. 

Albright saw smudges and droplets of blood on the front door, including by the handle, and wondered if another victim – perhaps the unidentified male mentioned by dispatch who may have been shot twice – was still in the house.  Albright had to ask Abeyta three times whether there was someone in the house.  Each time, Abeyta paused as if in a daze.  One time, Abeyta gave no answer.  The second time, he said he didn’t think anyone was inside.  The third time, he said no. 

In the meantime, Zapata was screaming and repeatedly asking for water.  Abeyta was also yelling and screaming for medical help.  The sirens of fire trucks and police patrol cars were wailing.  Albright wondered whether Abeyta was right about whether no one remained inside the house, but he was unable to see inside because the window blinds were closed, and there was too much noise to listen for sounds coming from inside.  Albright decided he had to get inside the house to check it out for himself, but he had no time to get a warrant.

Albright asked Abeyta whether the keys Abeyta had were for the house, and explained he had to look inside the house for victims or suspects.  Abeyta said yes, but refused to let Albright in.  Albright warned him that officers would just have to kick the door down, and Abeyta finally unlocked the door.  Albright and a team of officers announced their presence and went inside to look for bodies.

The officers cleared the downstairs and started upstairs.  Officer Samuel Seo approached a locked bedroom door.  He announced his presence, heard no response, and kicked the door in.  Seo immediately smelled a strong odor of marijuana and saw a scale and quarter-size balls of marijuana.  Once Seo and the other officers verified no one else was in the house, Seo told a detective about what he saw, and the detective obtained a search warrant.  The search uncovered more marijuana, a marijuana plant, two semiautomatic pistols, a shotgun, a rifle and ammunition, over $9,000 in cash and evidence linking Albert Troyer to the fruits of the search.

Troyer challenged the officers’ actions, claiming that the warrantless search violated his Fourth Amendment rights.  The trial court denied the motion to suppress, finding that the police had the right under the exigent circumstances exception to the warrant requirement to enter the house and the room.  The Court of Appeals reversed, agreeing that the police had the right to enter the house, but not the room.  The California Supreme Court granted the prosecution’s petition for review, and just issued its opinion this morning.

The primary goal of the Fourth Amendment is to protect the public from warrantless police intrusion into our homes.  As a result, a search or seizure inside a home without a warrant is “presumptively unreasonable.”  With the touchstone of the Fourth Amendment being “reasonableness,” certain exceptions to the warrant requirement have emerged. 

One of these exceptions deals with “exigent circumstances,” which allows an officer to enter a home without a warrant “to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”  The test is an objective one , looking at the facts known to the officers at the time, and deciding whether they had “an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.”

The majority, led by Justice Baxter, found that the evidence “amply supported an objectively reasonable belief that one or more shooting victims could be inside the house.”  The majority pointed to the facts that the dispatch report indicated that a male victim may have been shot twice and the police still had not located an individual matching that description, that Albright saw blood on the doorway signaling that a wounded person either went in or came out of the house, and that Abeyta’s answers about whether anyone was inside were inconsistent.

Acting Chief Justice Joyce Kennard was the lone dissenter, disagreeing with the majority’s slant of the facts.  Kennard found Abeyta’s answers completely consistent – that no one else remained in the house.  All reports indicated that the suspects had fled.  The blood on the door was probably from Abeyta, who had been moving back and forth on the porch.  And the report of a male being shot twice simply had the wrong sex and obviously referred to Zapata.

The majority dismissed Kennard’s analysis, finding that the officers merely needed an objectively reasonable basis to think someone needed aid inside the house, and had no responsibility to eliminate every other reasonable inference that could have been supported by the facts. 

And so you ask yourself – what does this case have to do with companion animals?  Well, the California Supreme Court placed Chung v. the People of California on hold pending its decision in Troyer.   Chung is also an exigent circumstances case – but the injured occupants in Chung were companion animals. 

The law on exigent circumstances is clear – officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  The result in Troyer bodes well for upholding the officer’s actions in Chung based on the exigent circumstances exception.  But the question is now whether that “injured occupant” can be a companion animal, with a side issue of whether the California Supreme Court will consider the animals in Chung more as occupants or mere property.

No Dogs Allowed! Judge Brinkema Upholds Arlington’s Sign Ordinance

As you know, I was rooting for Wag More Dogs, the Arlington doggie daycare adjacent to the Shirlington Dog Park that took on Arlington’s sign ordinance in the US District Court for the Eastern District of Virginia.  Judge Brinkema took Arlington County’s motion to dismiss under advisement, and has recently weighed in, unfortunately ruling against Wag More Dogs.

Arlington County’s sign ordinance defines “sign” as “[a]ny word, numeral, figure, design, … [or] display … used to direct, identify, or inform the public while viewing the same from outdoors.”  The ordinance requires a permit before a business can display a sign, and limited Wag More Dogs to three signs totaling no more than 60 square feet.  The $4000 mural is 16 feet by 60 feet – 960 square feet. 

The County declared the mural a prohibited sign, and gave Wag More Dogs three options:  (1) pay a non-refundable $1,782 fee for a special exception permit which may be granted or denied; (2) paint something else unrelated to the business like flowers over the dogs and bones; or (3) paint “Welcome to Shirlington Park’s Community Canine Area in four-foot high letters above the mural to create an informational sign that would not need a permit.  Retaining the mural would result in civil fines and possibly even criminal prosecution.

Wag More Dogs decided to fight back, and filed suit in federal court, bringing a First Amendment challenge against Arlington County’s sign ordinance.  The County responded with a motion to dismiss, which Judge Brinkema heard last month.  Earlier this month, Judge Brinkema issued a 33-page Memorandum Opinion.

Judge Brinkema’s first line of business was to decide whether the federal court had subject matter jurisdiction over the dispute.  The County argued that Wag More Dogs lacked standing to challenge the sign ordinance because its mural was so clearly in violation of the ordinance.  I didn’t really follow this or why the County even tried to make this argument.  Judge Brinkema easily found that Wag More Dogs had standing, which takes three things:  (1) injury in fact – losing the mural and suffering civil fines and criminal prosecution is about as straightforward as injury gets; (2) causation – the ordinance itself spells out the penalties constituting the “injuries in fact”; and (3) redressability – striking down the ordinance would redress Wag More Dogs’ issues with the statute.

So far, so good for Wag More Dogs.  But unfortunately, this is where Wag More Dogs’ luck runs out.

Judge Brinkema’s opinion goes on to analyze Wag More Dogs’ constitutional challenges, which came in three layers:  (1) the ordinance violates Wag More Dogs’ right to free speech and artistic expression; (2) the ordinance is overbroad and vague; and (3) the County’s alternatives restrain speech or unconstitutionally compel speech.

Looking first at the free speech argument, Judge Brinkema had to determine what level of scrutiny would apply to the sign ordinance.  Quintessential political or artistic speech earns the highest form of scrutiny – strict scrutiny.  But Judge Brinkema concluded what was at issue is a content neutral ordinance aimed at commercial speech, warranting only intermediate scrutiny. 

The intermediate scrutiny test requires the sign ordinance to serve a “substantial” government interest, in a manner that is “in proportion” to that interest and no more restrictive than necessary to achieve it.  The purposes of the sign ordinance are traffic safety and avoiding visual clutter, which courts have not hesitated to conclude are “substantial” government interests.  Judge Brinkema also found that the sign ordinance was in proportion with its interest, because it merely restricted the size and number of signs without banning commercial speech.

Next, Judge Brinkema analyzed Wag More Dogs’ argument that the ordinance was overbroad and vague.  Wag More Dogs made both a “facial challenge” and an “as applied” challenge.  For the facial challenge based on vagueness, Wag More Dogs would need to show that no set of circumstances exists under which the law would be valid.  Judge Brinkema had no problem finding that the ordinance, and its definition of “sign” as something that “directs, identifies or informs,” was not vague because it used words of common usage, with plain and ordinary meanings easily understood by the average person. 

For the “as applied” challenge, Wag More dogs pointed to an email from County Zoning Administrator Artman saying that “the mural cannot show anything that has any relationship with your business,” such as “dogs, bones, paw prints, pets, people walking their dogs, etc.”  Judge Brinkema was not troubled by this “any relationship” test, saying that Wag More Dogs failed to allege the County even really uses that test, and that even if it did, a reasonable person could easily understand and apply the test.

Lastly, Judge Brinkema analyzed the County’s proffered alternatives of applying for a special exception permit, painting over the mural or adding language to it.  Judge Brinkema handily dismissed these arguments.  She found that the County’s special exception permit scheme needed only adequate standards and a fair opportunity for judicial review, which were built into the County’s Comprehensive Sign Plan.  Regarding painting over the mural, or adding language to make the mural an informational sign, Judge Brinkema noted that these was only options, and could not be considered unconstitutionally compelled speech.

In the end, Judge Brinkema granted the County’s motion to dismiss, ending the case at a very early stage.  We’ll see if the Institute for Justice continues the fight with an appeal.

As unfair as it may seem, the truth is that it takes a lot to strike down an ordinance.  You can see how difficult it was, even when the right to free speech was at issue.  At least Wag More Dogs had the benefit of intermediate scrutiny for its constitutional challenge, and Judge Brinkema still did not hesitate to uphold the sign ordinance.  Imagine if free speech were not an issue.  With statutes like breed specific legislation, there is no heightened scrutiny, with courts applying a “rational basis” test.  You will hear me moan about this when I start blogging about breed specific legislation – I promise, it’s coming!

While there may be some basis behind Arlington’s sign ordinance, the ordinance produces inconsistencies that are hard to deal with.  For instance, if Wag More Dogs were beside a flower shop, theoretically the flower shop could put up the Wag More Dogs mural, and Wag More Dogs could paint flowers on its wall.  As another example, graffiti like what has been tagged on the walls of The Muddy Mutt next door is not off-limits.  I don’t know about you, but I’d much rather look at the Wag More Dogs mural.

Costa Rican Rejuvenation

Excuse the silence for the last couple of weeks, but I am back and rejuvenated from a wonderful vacation in Costa Rica.  We flew into Liberia — a town in the northwestern province of Guanacaste with a more laid back airport than San Juan.  We stayed in Playa del Coco, a beach on Papagayo Bay on the Pacific side of Costa Rica.  Playa del Coco is aptly named due to the dark brown, cocoa colored sands.  If I had to do it all over again, I would not have stayed in this town, but we did have a lovely view from the balcony of the condo we stayed in.

 

We managed to walk over to a nearby, quaint little beach called Playa Ocotal.  I fear development is moving so quickly that this beach will also be overrun with tourists soon, but for now, it is quiet and pleasant.  I also met my favorite canine pal in this town.  The dogs don’t generally live inside houses, and the ones I saw wandering around fortunately appeared healthy and generally happy.  This guy came right up to me and put his head in my lap for a good ear rub.  Then he laid down under this table for a nap.

 

Playa Tamarindo is a gorgeous beach.  There were lots of tourists in this town, and lots of people who came to visit and just ended up never leaving.  This beautiful calico joined us for lunch one day.

 

Tamarindo had lots of canine beach bums — some strays, some owned by locals and some owned by foreigners.

 

The highlight of the trip was traveling to the cloud forest in Monteverde.  Here are some shots of the gorgeous countryside on the way from Playa del Coco to Monteverde.

 

Once we got to Monteverde, we spent the day in Selvatura Park.  We started with a canopy tour of the rain forest.  Had I known more about “canopy tours” and “zip lines,” I’m not sure I would have worked up the nerve to participate, but once I was up there, I was glad I did!  After lunch, we walked through the hummingbird garden.  What beautiful, graceful creatures!  We ended the day with a walk on suspended bridges.  Unfortunately, we really didn’t see a lot of wildlife.  It seems that all the work to put in cable lines and suspended bridges, and all of the foot traffic, manages to scare the animals away.  So much for pure ecotourism.

 

On the way back from Monteverde, we stopped in a town where some folks kept Macaws and other animals — including puppies!  They were kind enough to let us into their yard to take some pictures.

 

On my last couple of mornings in Playa del Coco, I made sure to spend some time with some local animals, including the cat who frequented our breakfast hangout every day. 

 

It is apparently not all rosy for companion animals in Costa Rica.  But towns and vets are making efforts to spay and neuter the strays.  In fact, Playa del Coco had an adoption and sterilization program.  Although I didn’t want to see animals without homes, I was glad to see strays who seemed to be in decent health, and some even well off enough that they had time and energy to play.  I didn’t have my camera handy one day, but one little canine beach bum in Playa del Coco took it upon himself to “adopt” many of the tourists and play in the sand with anything he could find!

As wonderful as Costa Rica was, and as friendly as the Costa Rican people were, we were glad to get back to Boomer and Sophie.  Much thanks to our dog walker and dog sitter from Fur-Get Me Not!  We could tell how spoiled the dogs were while we were away, because instead of going crazy when we got home, they just took it all in stride!

What Should I Do If I Find A Stray?

If you find a stray, you have no specific duty to take the stray in.  Each county and city in Virginia has to have an animal control officer, and you are certainly within your rights to contact animal control to report the stray.

But if you decide to take in the stray, Virginia Code Section 3.2-6551 outlines what you have to do.  This code section kicks in if you provide “care or safekeeping” to the animal, or if you retain the animal “in such a manner as to control its activities.”  Within 48 hours, you must:

1. Make a reasonable attempt to find the owner, if you can ascertain who the owner is by way of a tag, license, collar, tattoo or other form of identification or markings; AND
2. Notify the local pound where the animal was found, and provide the pound with your name and phone number, the location where you found the animal, and a description of the animal along with any information from a tag, license, collar, tattoo or other form of identification or markings.

You can find helpful tips and guidance about stray animals from the Humane Society of the United States and the Missing Pet Partnership.  The most important consideration is safety — yours and the animal’s.  Remember that the animal will likely be fearful, and may be sick or injured.  Be particularly careful if you find the animal in an area with traffic.  Be aware that if you take in the stray, you take on the duty to provide the animal with adequate care.  This includes the duty to provide veterinary care, so be prepared to pay the vet bills if the stray is injured or sick.

The second most important consideration, thanks to the Missing Pet Partnership, is to “think lost, not stray” — and do all you can to get the animal back to its owner.   It is for this very reason that a violation of Section 3.2-6551 carries a civil penalty of up to $50 per animal.  The Missing Pet Partnership has some great ideas, including putting a long lead on a dog and telling him to go home to see if the animal knows its way home, hanging large “Found Dog” posters in the area where you found the dog, and taking the animal to animal control or a vet to see if the animal has a microchip.

Come See Me and Bean Kinney in Booth 721 at the Chantilly Virginia Super Pet Expo!

Law firm Bean, Kinney & Korman, PC will be in Booth 718 721 (left side, right behind the Franchise Pavillion) for the Super Pet Expo in Chantilly, Virginia on March 18-20, 2011!  I will be there with two of my colleagues — Jennifer Lee and Alain Lapter — to talk about ways our law firm can help pet owners and pet care industry companies and organizations.  For pet owners, we’ll discuss everything from pet trusts to owner responsibility issues such as dog bite and dangerous dog liability.   For businesses and rescues, we’ll talk about many ways to protect your entity, from intellectual property to corporate, compliance and contract issues.  And we’ll have really fun giveaways!  Although Sophie will have to stay at home for this, I may also try to arrange for some guest appearances by Boomer!  Don’t miss it!

UPDATE (3/14/11):  The Super Pet Expo has had to make some floor plan revisions.  Bean Kinney’s booth will be #721 — right across from our original location.