1 2015 Annual Convention Defending the Animals: A User s Guide to Civil and Criminal Animal Law Litigation Animal Law Committee 1.5 General CLE Hours April 29 May 1, 2015 Sandusky
2 Speaker Biographies Mark J. Bamberger The Mark Bamberger Co., LLC Tipp City, Ohio Dr. Bamberger received his BA from Miami University, his MS from Wichita State University, his PhD from The Union Institute, and his JD from Capital University Law School. His professional memberships include the Ohio State Bar Association and the Dayton Bar Association. Dr. Bamberger has worked as an environmental educator, hydrogeologist, contaminant geochemist, and hazardous waste remediation supervisor, law advisor, and environmental law specialist. Since 2009, he has owned and operated his firm, a general practice law firm with offices in Tipp City, West Chester, Enon, and Spring Valley. Dr. Bamberger s passion in legal practice is animal law, and he currently serves as general counsel for a number of small and large animal rescue and/or advocacy organizations. He has served as lead attorney on several large civil actions in Ohio against groups who have harmed or killed animals. Mr. Bamberger is a benefactor and legal advisor to the Wolf Creek Wolf Habitat & Rescue, Inc., in Brookville, Indiana. Before his shift from environmental consulting and teaching into law, he worked in environmental consulting and taught as an adjunct professor of geology and environmental science and advised students at more than seven universities for more than 22 years, including Miami University, Capital University, Wichita State University, SUNY-Binghamton, Eastern Connecticut State University, and The Union Institute. Dr. Bamberger taught in various sub-disciplines, including but not limited to, environmental history and philosophy, hydrogeology, contaminant geochemistry, and American presidential history. He also worked for the Connecticut DEP in their hazardous waste enforcement sections and the Ohio EPA in their drinking and ground water section, as well as several major environmental and nuclear consulting firms in Connecticut and Ohio. Dr. Bamberger can be reached at (office) or via at J. Jeffrey Holland Holland & Muirden Sharon Center, Ohio Mr. Holland received his BA from Dennison University and his JD from the Franklin-Pierce Law Center. His professional memberships include the Ohio State Bar Association, Medina County Bar Association, National Association for Criminal Defense Lawyers, Animal Legal Defense Fund, and Medina County SPCA (Trustee). He is a partner at his firm and focuses his practice on animal law, appeals, contract law, conservation law, corporate law, criminal law, legislation, nonprofits, and traffic and DUI law. Mr. Holland is an adjunct professor for Case Western Reserve University School of Law, where he teaches an animal law course. For additional information, please visit Tammy C. Nortman Tammy C. Nortman LLC Dayton, Ohio Ms. Nortman received her BA from Miami University and her JD from Loyola University Chicago School of Law. Her professional memberships include the Humane Society of Greater Dayton (Community Spay/Neuter Advocate; volunteer), Citizens for a Breed Neutral Reynoldsburg (Pro Bono Attorney), Animal Legal Defense Fund, and ASPCA. Ms. Norton is partner of her firm, where her specialties include custody with a focus on father s rights, juvenile delinquency, interviewing children, felony criminal defense, customer service, and corporate security.
3 Animal Cruelty Law in Ohio J. Jeffrey Holland Holland & Muirden Sharon Center, Ohio Table of Contents I. Enforcers of Animal Cruelty in Ohio... 1 A. Humane agents B. Dog warden C. Enforcement of animal welfare laws D. County humane societies E. Private citizen s authority to protect an animal Ohio Rev. Code Civil liability shield If you want the protection, you must follow it to the letter F. Authority of a humane society member?... 3 II. The Big Three: Ohio s Primary Animal Cruelty Laws... 3 A. Cruelty, torment, and torture B. Animal cruelty for non-companion animals Here is in full: Companion animal cruelty the Nitro s Law version III. Notice of Seizure and the Probable Cause Hearing... 8 A. Applies to companion animals and dog fighting cases only by J. Jeffrey Holland. All rights reserved. The materials in this presentation are intended for use by attendees: attorneys, Ohio humane agents and other law enforcement officers, and non-profit county humane societies in Ohio, and may be reproduced for those uses only. The purpose of this program is to provide general information about animal cruelty laws in Ohio for attorneys, humane agents, other law enforcement officers and persons involved in the investigation and prosecution of animal related cases. As such, it is not intended to be comprehensive. No summary can take the place of reading the statutes, understanding the case law, and seeking advice from your attorney or prosecutor to determine how these laws might apply to any given situation. Animal Cruelty Law in Ohio i
4 B. Notice and hearing C. The 10-day hearing D. Euthanasia IV. Fighting Animals and Other Cruelty Laws... 9 A. Injuring animals B. Poisoning animals C. Trespassing animals D. Dogfighting E. Fighting other animals (mostly cockfighting) F. Other Ohio animal cruelty laws V. Penalties for Animal Cruelty A. Misdemeanor penalties generally B. Penalties for a fifth degree felony C. Other penalties for animal cruelty under D. Additional penalties for companion animal cruelty under E. Abandoning animals F. Pop quiz VI. Dog Liability Laws A. Guns when it is legal to shoot a dog? Criminal liability Two parts here: B. Bites and claws who pays when a dog causes harm? Civil liability NON-Companion Animal Cruelty Companion Animal Cruelty Body Condition System Horse Body Condition Scoring System ii Defending the Animals
5 Animal Cruelty Law in Ohio J. Jeffrey Holland Holland & Muirden Sharon Center, Ohio I. Enforcers of Animal Cruelty in Ohio A. Humane agents. 1. Appointed by a county humane society 2. Must live in the county where they serve 3. Must complete mandatory 20 hour training before they can serve 4. Appointment must be approved by a mayor or county probate judge 5. Mandatory reporters of child abuse/neglect 6. County may pay only one humane agent, a minimum of $25/month. B. Dog warden. 1. Patrol the county; 2. Seize and impound on sight all dogs that are: a. Running at large; and b. More than three months old; and c. Not wearing a valid registration tag. 3. May not seize a dog that is: a. On the premises of its owner, keeper, or harborer; or b. Under the reasonable control of its owner or some other person; or c. Hunting with its owner or its handler at a field trial; or d. Kept in a registered dog kennel or organization described in Ohio Rev. Code (Redundant!) 4. May apply for search warrant with the common pleas court to seize a dog if there is probable cause to believe that: a. The dog is being treated inhumanely; and b. On the premises of its owner, keeper, or harborer. 5. May summon bystanders to assist with duties. Animal Cruelty Law in Ohio 1
6 C. Enforcement of animal welfare laws. Police/sheriff and other law enforcement officers may enforce animal welfare laws. D. County humane societies. 1. Appoints humane agents. 2. May employ a private attorney to prosecute animal cruelty cases. The county must pay reasonable attorney fees. Ohio Rev. Code E. Private citizen s authority to protect an animal. 1. Ohio Rev. Code a. When, in order to protect any animal from neglect, it is necessary to take possession of it, any person may do so. b. When an animal is: 2 Defending the Animals i. Impounded or confined; and ii. Continues without necessary food, water, or proper attention for more than 15 successive hours; iii. Any person may, as often as is necessary, enter any place in which the animal is impounded or confined and supply the animal with necessary food, water, and attention; iv. So long as the animal remains there, or, if necessary or convenient, a person may remove such animal and said person shall not be liable to an action for such entry. c. In all cases, the owner or custodian of such animal, if known to such person, immediately shall be notified by him of such action. d. If the owner or custodian is unknown to such person, and cannot with reasonable effort be ascertained by him, such animal shall be considered an estray and dealt with as such. e. The necessary expenses for food and attention given to an animal under this section may be collected from the owner of such animal, and the animal shall not be exempt from levy and sale upon execution issued upon a judgment for such expenses. 2. Civil liability shield. Humane Agents may not use it to violate the Fourth Amendment. 3. If you want the protection, you must follow it to the letter. a. To protect animal from neglect, not abuse. b. Only when necessary. Use all other reasonable options first. c. Record your observations, noting time and date, with photos if possible. d. Immediate notice to owner or custodian.
7 F. Authority of a humane society member? An officer, agent, or member of the Ohio humane society or of a county humane society may interfere to prevent the perpetration of any act of cruelty to animals in his or her presence, may use such force as is necessary to prevent it, and to that end may summon to his or her aid any bystanders. Ohio Rev. Code No case law on this statute yet. Rely on it at your own peril. II. The Big Three: Ohio s Primary Animal Cruelty Laws A. Cruelty, torment, and torture. The most useful definition in Ohio animal cruelty law. Ohio Rev. Code (B). Cruelty, Torment and Torture, ~ a poem by the Ohio General Assembly Every act, omission, or neglect By which unnecessary or unjustifiable Pain or suffering Is caused, permitted or allowed to continue Where there is a reasonable remedy or relief. Here is the shorthand version: Unnecessary or unjustifiable pain or suffering, when there is a reasonable remedy or relief. Beware: Unnecessary Unjustifiable Reasonable remedy or relief Quiz: What circumstances could be considered cruelty, torment or torture? Animal cruelty Probably not animal cruelty Urine burns from filthy conditions Filthy animal with no other signs of suffering Severe matting of fur which makes it difficult for the animal to move properly or relieve itself Tangled fur which is unsightly but does not cause discomfort Lack of veterinary care for a broken bone or severe skin ailment causing the animal to suffer Owner never provided vet care during the animal s life, but there is no evidence of current suffering Animal Cruelty Law in Ohio 3
8 Severe parasite infestation that results in suffering. Beating or kicking an animal excessively or forcefully without good cause Failure to provide heartworm or other parasite treatment where there is no evidence that parasites are causing suffering Corporal punishment for the purpose of training an animal which is not excessive and does not cause observable harm or serious pain B. Animal cruelty for non-companion animals. Applies to horses, livestock, wild animals and other non-companion animals; Second degree misdemeanor, not enhanceable; Recklessly 1 No restitution for care and rehabilitation of animals; No deposit money available from defendant; Fine money to humane society, for any purpose, regardless of who investigated the crime. 1. Here is in full: (A) No person shall: (1) Torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water; (2) Impound or confine an animal without affording it, during such confinement, access to shelter from wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the animals would otherwise become sick or in some other way suffer. Division (A)(2) of this section does not apply to animals impounded or confined prior to slaughter. For the purpose of this section, shelter means a man-made enclosure, windbreak, sunshade, or natural windbreak or sunshade that is developed from the earth's contour, tree development, or vegetation.[;] (3) Carry or convey an animal in a cruel or inhuman[e] manner; (4) Keep animals other than cattle, poultry or fowl, swine, sheep, or goats in an enclosure without wholesome exercise and change of air, 2 nor or feed cows on food that produces impure or unwholesome milk; 1 Except the Fifth District; Strict liability: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark, Tuscarawas. See In re Haney, (Tuscarawas Cty., Sept. 24, 2007) 2007 Ohio App. LEXIS 4471; State v. Donnelly (Ashland Cty., Feb. 22, 1999), 1999 Ohio App. LEXIS See the attached summary of Note the elements of each subsection. 4 Defending the Animals
9 (5) Detain livestock in railroad cars or compartments longer than twentyeight hours after they are so placed without supplying them with necessary food, water, and attention, nor permit such stock to be so crowded as to overlie, crush, wound, or kill each other. (B) Upon the written request of the owner or person in custody of any particular shipment of livestock, which written request shall be separate and apart from any printed bill of lading or other railroad form, the length of time in which such livestock may be detained in any cars or compartment without food, water, and attention, may be extended to thirty-six hours without penalty therefor. This section does not prevent the dehorning of cattle. (C) All fines collected for violations of this section shall be paid to the society or association for the prevention of cruelty to animals, if there be such in the county, township, or municipal corporation where such violation occurred. 2. Companion animal cruelty the Nitro s Law version Prohibitions concerning companion animals (A) As used in this section: (1) Companion animal means any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept. Companion animal does not include livestock or any wild animal. (2) Cruelty, torment, and torture have the same meanings as in section of the Revised Code. (3) Residential dwelling means a structure or shelter or the portion of a structure or shelter that is used by one or more humans for the purpose of a habitation. (4) Practice of veterinary medicine has the same meaning as in section of the Revised Code. (5) Wild animal has the same meaning as in section of the Revised Code. (6) Federal animal welfare act means the Laboratory Animal Act of 1966, Pub. L. No , 80 Stat. 350 (1966), 7 U.S.C.A et seq., as amended by the Animal Welfare Act of 1970, Pub. L. No , 84 Stat (1970), the Animal Welfare Act Amendments of 1976, Pub. L. No , 90 Stat. 417 (1976), and the Food Security Act of 1985, Pub. L. No , 99 Stat (1985), and as it may be subsequently amended. (7) Dog kennel means an animal rescue for dogs that is registered under section of the Revised Code, a boarding kennel, or a training kennel. (8) Boarding kennel has the same meaning as in section of the Revised Code. (9) Training kennel means an establishment operating for profit that keeps, houses, and maintains dogs for the purpose of training the dogs in return for a fee or other consideration. Animal Cruelty Law in Ohio 5
10 6 Defending the Animals (10) Livestock means horses, mules, and other equidae; cattle, sheep, goats, and other bovidae; swine and other suidae; poultry; alpacas; llamas; captive white-tailed deer; and any other animal that is raised or maintained domestically for food or fiber. (11) Captive white-tailed deer has the same meaning as in section of the Revised Code. (B) No person shall knowingly torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against a companion animal. (C) No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following: (1) Commit any act by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal; (2) Omit any act of care by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal; (3) Commit any act of neglect by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal; (4) Needlessly kill the companion animal; (5) Deprive the companion animal of necessary sustenance, confine the companion animal without supplying it during the confinement with sufficient quantities of good, wholesome food and water, or impound or confine the companion animal without affording it, during the impoundment or confinement, with access to shelter from heat, cold, wind, rain, snow, or excessive direct sunlight, if it can reasonably be expected that the companion animal would become sick or suffer in any other way as a result of or due to the deprivation, confinement, or impoundment or confinement in any of those specified manners. (D) No owner, manager, or employee of a dog kennel who confines or is the custodian or caretaker of a companion animal shall knowingly do any of the following: (1) Torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against the companion animal; (2) Deprive the companion animal of necessary sustenance, confine the companion animal without supplying it during the confinement with sufficient quantities of food and water, or impound or confine the companion animal without affording it, during the impoundment or confinement, with access to shelter if it is substantially certain that the companion animal would die or experience unnecessary or unjustifiable pain or suffering due to the deprivation, confinement, or impoundment or confinement in any of those specified manners. (E) No owner, manager, or employee of a dog kennel who confines or is the custodian or caretaker of a companion animal shall negligently do any of the following:
11 (1) Commit any act by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal; (2) Omit any act of care by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal; (3) Commit any act of neglect by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal; (4) Needlessly kill the companion animal; (5) Deprive the companion animal of necessary sustenance, confine the companion animal without supplying it during the confinement with sufficient quantities of good, wholesome food and water, or impound or confine the companion animal without affording it, during the impoundment or confinement, with access to shelter from heat, cold, wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the companion animal would become sick or suffer in any other way as a result of or due to the deprivation, confinement, or impoundment or confinement in any of those specified manners. (F) Divisions (B), (C), (D), and (E) of this section do not apply to any of the following: (1) A companion animal used in scientific research conducted by an institution in accordance with the federal animal welfare act and related regulations; (2) The lawful practice of veterinary medicine by a person who has been issued a license, temporary permit, or registration certificate to do so under Chapter of the Revised Code; (3) Dogs being used or intended for use for hunting or field trial purposes, provided that the dogs are being treated in accordance with usual and commonly accepted practices for the care of hunting dogs; (4) The use of common training devices, if the companion animal is being treated in accordance with usual and commonly accepted practices for the training of animals; (5) The administering of medicine to a companion animal that was properly prescribed by a person who has been issued a license, temporary permit, or registration certificate under Chapter of the Revised Code. (G) Notwithstanding any section of the Revised Code that otherwise provides for the distribution of fine moneys, the clerk of court shall forward all fines the clerk collects that are so imposed for any violation of this section to the treasurer of the political subdivision or the state, whose county humane society or law enforcement agency is to be paid the fine money as determined under this division. The treasurer to whom the fines are forwarded shall pay the fine moneys to the county humane society or the county, township, municipal corporation, or state law enforcement agency in this state that primarily was responsible for or involved in the investigation and prosecution of the violation. If a county humane society receives any fine moneys under this division, the county humane society shall use the fine moneys to provide the training that is required for humane agents under section of the Revised Code. History: 149 v S 221. Eff ; 2013 HB 59, , eff. Sept. 29, Animal Cruelty Law in Ohio 7
12 a. What is a companion animal? i. Dogs, no matter where they are kept. ii. Cats, no matter where they are kept. iii. 8 Defending the Animals Other animals kept in a residential dwelling. b. Animals specifically exempt from : i. Livestock; ii. Wild animals. Wild animals includes mollusks, crustaceans, aquatic insects, fish, reptiles, amphibians, wild birds, wild quadrupeds, and all other wild mammals, but does not include domestic deer. Ohio Rev. Code iii. Animals used in scientific research (conducted in accordance with the federal animal welfare act) iv. Animals undergoing lawful veterinary treatment; v. Dogs intended for use for hunting or field trial purposes, provided that the dogs are being treated in accordance with usual and commonly accepted practices for the care of hunting dogs; vi. Use of common training devices, if used in accordance with usual and commonly accepted practices for the training of animals; vii. Use of properly prescribed medicines on animals; c. Court may order restitution for care and rehabilitation of animals. d. Defendant may be ordered to post a deposit to pay for the expenses of keeping his or her animals prior to trial e. Fine money goes to humane society if they were primarily responsible for the investigation. Can only be used for the mandatory humane agent training course. See the attached summary of Companion Animal Cruelty chart! III. Notice of Seizure and the Probable Cause Hearing A. Applies to companion animals and dog fighting cases only. B. Notice and hearing. 1. An officer must post notice of the seizure to the owner, keeper or harborer. 2. Ohio Rev. Code (C). The notice shall include a statement that a hearing will be held not later than ten days after the notice is provided or at the next available court date to determine whether the officer had probable cause to seize the
13 companion animal and, if applicable, to determine the amount of a bond or cash deposit that is needed to provide for the companion animal's care and keeping for not less than thirty days beginning on the date on which the companion animal was impounded. 3. The court must hold a hearing within 10 days of seizure. 4. It is implied that the impounding agency has a duty to notify the court of every seizure of a companion animal, whether charges have been filed or not. C. The 10-day hearing. 1. The State must be ready to put on evidence that: a. Statutory notice was provided of the seizure; b. There was probable cause that the animal(s) were subjects of an offense of Companion Animal Cruelty; c. The identity of the owner, harborer or keeper, if possible; d. The reasonably projected costs of providing care for the animal for at least 30 days. 2. If probable cause is shown, the court must determine the amount of money it would reasonable take to care for the animal for at least 30 days, and will order the owner to deposit that money, pending resolution of the case. 3. If probable cause is not shown, the animal is returned to the owner. 4. If the animal cannot be returned, pay the owner fair market value at the time of seizure, unless it was an unlicensed dog. D. Euthanasia. A companion animal seized may be euthanized if a veterinarian deems it necessary because the animal is suffering. IV. Fighting Animals and Other Cruelty Laws A. Injuring animals. Ohio Rev. Code maliciously and willfully. B. Poisoning animals. Ohio Rev. Code C. Trespassing animals. Ohio Rev. Code A possible defense to the other two, upon payment for damages in 15 days. Animal Cruelty Law in Ohio 9
14 D. Dogfighting. 1. A fourth degree felony; a third degree felony on a second offense. 2. You must prove the suspect knowingly did one of the following: a. Promote, engage in, or be employed at dogfighting; b. Receive money for the admission for dogfighting; c. Sell, purchase, possess, or train a dog for dogfighting; d. Use, train, or possess a dog for animal fighting; e. Purchase a ticket of admission to or be present at a dogfight; or f. Witness a dogfight if presented as a public spectacle. 3. Ohio Rev. Code (C). Any peace officer... may seize and cause to be impounded... any dogs that have been, are, or are intended to be used in dogfighting Ohio Rev. Code (D). Procedures for seizing are as in , except they apply only to peace officers. (Other changes too.) 10 Defending the Animals
15 E. Fighting other animals (mostly cockfighting). 1. Cockfighting is a fourth degree misdemeanor. You must prove the suspect knowingly did one of the following: a. Engage in cockfighting, bearbaiting, or pitting an animal against another; b. Receive money for the admission to an animal fight; c. Use, train, or possess any animal for animal fighting; d. Purchasing a ticket to an animal fight; or e. Being present or witnessing an animal fight. 2. Discussion question: can you have an offense of animal fighting without also having animal cruelty? F. Other Ohio animal cruelty laws. 1. Drugging an animal within 48 hours of a fair or other agricultural competition is a first degree misdemeanor. 2. Euthanasia. Animals may not be euthanized by a high altitude decompression chamber, or by any method other than a method that immediately and painlessly renders the domestic animal initially unconscious and subsequently dead. A violation is a fourth degree misdemeanor. Does not apply to slaughtering livestock or hunting. 3. Docking horse tails is a second degree misdemeanor; a first degree misdemeanor on a second offense. Ohio Rev. Code : No owner or person having the custody, control, or possession of a horse, mare, gelding, foal, or filly, nor an agent or employee of such owner or custodian, shall cut off or cause to be cut off or amputated the skin, flesh, muscles, bone, or integuments of the dock or tail thereof, in order to shorten its natural length or Animal Cruelty Law in Ohio 11
16 12 Defending the Animals proportions; nor shall any such owner, person, or the agent or employee of either pull out the hairs of the foretop, mane, or withers thereof. This section does not prohibit the cutting or amputation of the dock or tail of a horse, mare, gelding, foal, or filly when necessary because of accident, malformation, or disease affecting such dock or tail. V. Penalties for Animal Cruelty A. Misdemeanor penalties generally. Level Misdemeanor Maximum jail time Maximum fine Max. organization fine First (M1) 180 days $1000 $5000 Second (M2) 90 days $750 $4000 Third (M3) 60 days $500 $3000 Fourth (M4) 30 days $250 $2000 Minor misdemeanor (MM) None $100 $1000 B. Penalties for a fifth degree felony. Level Felony Possible jail Maximum fine Max. organization fine Fifth (F5) 6, 7, 8, 9, 10, 11 or 12 months $2,500 $7,500 C. Other penalties for animal cruelty under Maximum probation: five years. 2. Animals that were victims of animal cruelty can be forfeited. 3. Other animals can be ordered to be surrendered as a condition of probation. 4. Conditions of probation may include any number of conditions, including mental health treatment and limitation on the number of animals defendant may possess. 5. Some courts have held that a judge may not order restitution for expenses of rehabilitation and care. (Although the humane society can bring its own legal action to recover those costs.) D. Additional penalties for companion animal cruelty under Forfeiture of any or all companion animals in defendant s ownership or care. 2. Court may prohibit or place limitations on defendant s ability to own or care for any companion animals for a specified or indefinite period of time. 3. Restitution is permitted for care of animal after seizure. 4. Psychological assessment/counseling. 5. Enhanceable on a second offense. E. Abandoning animals. Abandoning animals is a second degree misdemeanor. Subsequent convictions are first degree misdemeanors. Applies to all animals, not just companion animals.