By Meghan Currie, a summer associate at fox Rothschild LLP, based in the firm’s Princeton office
A recent Bill, A2354, introduced in February of this year by New Jersey legislators should be on the forefront of any New Jersey animal owner’s mind. The Bill proposes amendments, bolstering existing animal cruelty statute 4:22-17, which addresses animal cruelty violations. The Bill was introduced in the previous legislative session as A6099, but never passed.
These additional provisions would significantly raise the stakes and make the repercussions for violating the statute much more extreme. While at first glance, this seems to be a well-intentioned Bill aimed at holding animal abusers accountable for the mistreatment of pets, the Bill also has the potential to greatly erode the rights of companion and service animal owners, falsely accused of animal cruelty, throughout the state.
If adopted, the Bill will impact companion and service animal owners (for brevity, “dog owners”) and individuals in possession of dogs at the time of seizure, if the owner is unknown. If an animal care agency can demonstrate by a preponderance of evidence that an animal was taken into custody either to protect the animal from harm or to provide needed medical attention, that owner or care provider may have to pay potential expenses, may be separated from the dog for an extended time, the animal may be temporarily placed in a kennel, shelter, or even foster home, and in some instances the dog may be euthanized without owner-consent if deemed necessary by a veterinarian. Further, the Bill grants officers’ permission in some instances to enter private residences and seize dogs without court approval or a warrant. The concern here is that these officers may not be adequately trained in identifying emergent or other animal care needs, thus allowing them to unilaterally seize dogs, with their decision potentially drastically impacting the dog owner.
If the Bill were to pass, indigent owners potentially could have their animals improperly seized and be forced to pay large sums of money to get their animal returned, essentially allowing financial status to dictate whether or not one must abandon his/her seized pets. The expenses one may be liable for because of the seizure can encompass a broad range of areas. These “reasonable costs of care” include: (1) the costs of shelter, food, water, and bedding necessary to house an animal, (2) the costs of necessary care to improve an animal’s psychological well-being, including, but not limited to, training and enrichments designed to provide mental and physical stimulation, and (3) the costs of necessary veterinary care for an animal, including, but not limited to, surgical intervention, medicine, vaccinations, and euthanasia and disposal costs, as determined necessary by a licensed veterinarian.
“An animal care agency that takes custody of an animal pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), or an authorized agent of the animal care agency, including an attorney prosecuting an animal cruelty violation on behalf of a municipality or county, may, no later than 20 days after the animal is taken into custody, file an action in the Superior Court seeking the reasonable costs of care for the animal from the animal’s owner, or, if the owner is not known to the plaintiff, the person from whom the animal was taken and . . . if the animal’s owner or the person from whom the animal was taken fails to pay any portion of the reasonable costs of care for the animal, as established by the court, when due, ownership of the animal shall immediately transfer to the animal care agency with custody of the animal.” A2354 (emphasis added).
A pet owner’s inability to pay for what could be exorbitant expenses for animal care outside their home should not form the basis of involuntary animal forfeiture. Should the court determine that an owner failed to provide the animal with “necessary care,” such conduct could constitute violations of current statutory provisions that carry monetary penalties and/or potential imprisonment AND the reimbursement of any costs for “food, drink, shelter, or veterinary care or treatment, or other costs . . . incurred by any agency, entity, or organization investigating the violation . . . [or] a local or State governmental entity, or a kennel, shelter, pound, or other facility providing for the shelter and care of the animal or animals involved in the violation.” N.J.S.A. § 4:22-17(f).
With these current provisions, it is unclear why the proposed additional and draconian financial scheme is necessary.
The Bill would expressly permit the following penalties which are already within the Court’s discretion: upon the owner’s conviction for an animal cruelty violation, an animal care agency may petition the court for forfeiture of the dog and may enact a time period up to the court’s discretion, detailing how long anyone convicted of aiding, abetting, or conspiring with the owner in dog abuse will be disallowed to own a pet or be in custody or control of a dog.
Conversely, if a court determines the dog was seized and the plaintiff was not able to demonstrate by a preponderance of evidence that the dog was taken for its protection or immediate medical attention, the defendant will not be liable for the reasonable costs of care, but his dog will not be returned until the end of the criminal investigation and proceeding. The defendant would remain liable for costs of necessary veterinary care provided, although the Bill currently does not permit a determination by an independent veterinarian as to what care is required.
This Bill is problematic since law enforcement officers are being tasked with determining an animal’s health status, a determination that is typically outside the scope of law enforcement’s expertise. As a result, not all of animal seizures performed are legally sound. For example, in State v. Deskins a Washington woman’s dogs were seized after neighbors complained she did not adequately confine them. No. 29532-0-III 2012 WL 3861275 (Wash. Ct. App. Sep. 6, 2012). The Washington Court of Appeals reversed her second-degree animal cruelty conviction. But even though her dogs were returned to her, she still had to pay for the cost of care, in her case $22,000, provided by SpokeAnimal, a humane society.
States like New Hampshire have attempted to address this issue by forming a Cost of Care Fund to cover the expenses associated with caring for animals while an animal cruelty action is pending. The commissioner of different state departments can accept donations to care for the animals and make the needed disbursements to pay for necessities. If individuals are found guilty of animal cruelty and are ordered to pay restitution, the payment would be paid back to the department which initially granted the funds. However, if the individual is not found guilty he will not be faced with paying a large sum of money to get his animal returned.
The constitutionality of some animal seizure laws have been successfully challenged in other states. In Humane Soc. Of Marshall County v. Adams, So.2d 150 (1983), the Supreme Court of Alabama found that Alabama’s animal seizure statue was unconstitutional because it infringed on individuals’ due process rights by allowing officers to—in their sole discretion—seize an animal and deprive an individual of their interest in the animal, while simultaneously finding them liable for the expenses of care solely determined by Humane Societies. Other states like Colorado and West Virginia have found similar legislation to be problematic for similar reasons. See Anderson v. George, 233 S.E.2d 407, 409 (W.Va.1977); Jenks v. Stump, 41 Colo. 281, 286–88, 93 P. 17, 19 (1907).
Animal cruelty is reprehensible, but charges of animal cruelty are not always valid. Proposed Bill A2354, should be amended to protect animal owners who may be falsely or erroneously charged under the animal cruelty statute but would be forced to forfeit their animals if they are unable to pay for court-approved cost of care by another entity while their animals are not in their care.