Pet Trusts: Planning for Leaving Your Estate to Your Heirs…and the Dog.

Planning for Leaving Your Estate to Your Heirs…and the Dog.

By: W. Seth Todd

Everyone is told they are supposed to have some form of estate planning done before they pass to take care of their family. What if I told you that you could do that for your pet? That is right, you can now set up a pet trust in all fifty states for little Fido. According to a survey, 44% of pet owners have already made plans for their pets if they die or become disabled. [1] That same 44% has also arranged funding for that care.[2] It is kind of reassuring in a way knowing that if something was to happen to you, your pet wouldn’t be shipped off to a shelter or just given to an unloving family.

Pet trusts are actually not a new concept. One of the first cases every recorded was actually done so right here in Kentucky in 1923. In the case a woman gave a life estate to her sister, and after her sister died it would pass to her heirs, except for $1,000.00 given to a local church to take care of her dog. The heirs fought for the thousand dollars saying the bequest was indefinite and uncertain. However, the court held that the trust was valid. The court said that the trust would not be allowed to fail because of want for a trustee, since the purpose the trust sought to accomplish was a humane one. [3]

The old way of structuring pet trusts was made from the 1935 Restatement(Second) of Trusts. The way the drafters intended the trust to be set up was more of an honorary trust than a pet trust. Essentially you would carefully word the trust to where you would assign a certain amount of money to a party to take care of the pet, and if they failed to take care of the pet then the money would return to the grantor’s estate and the pet would pass to the normal heirs.[4] You also had to be very particular about how long the trust would last, you had to set it for a time where the money would out live the pet, but shorter as to not violate the rule of perpetuities.[5]

Major headway was managed for pet trusts in 1990 when the Uniform Probate Commission created a pet trust that was removed from other noncharitable trusts.[6] In 1993, the UPC revised the pet trust statute to remove the rule against perpetuities all together from pet trusts. However, they then limited the animal owners ability to plan ahead, and said that pet trusts could not be used to care for the offspring of the pets in the future. [7] With the adoption of the Uniform Trust Code in the 2000s that allowed for pet trusts, many states The most famous case of a pet trust was millionaire Leona Helmsley’s dog. Leona cut off her grandchildren, and left her children with $5 million dollars a piece.[9] The remaining $12 million went to her little Maltese, Trouble. A judge eventually lowered that inheritance to $2 million. Trouble was then flown to Florida where he lived a life of luxury, with expenses totaling around $100,000 dollars a year to care for the dog. Trouble finally passed away at the old age of 12 in 2011. [10]

Luckily for those of you looking to set up a multi-million dollar trust fund for your pet, Kentucky adopted the Uniform Trust Code in 2012, and along with it came a trust for the care of animal provision. The statute reads, ”  

(1)  A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one (1) animal alive during the settlor’s lifetime, on the death of the last surviving animal.

(2)  A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(3)  Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use shall be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.[11]

With that statute in mind, you now have all it takes to set up a pet trust for little Fido. Just remember that the highest threshold allowed was $2 million in the previously discussed case of Leona Helmsley and Trouble. While pet trusts are not likely to become a mainstay of the estate planning world, be aware they are out there. You can plan for everything in your life through estate planning, and now, you can even plan for your pets as well.

[1] Pet Heirs Providing for a Pet’s Future, Securian Financial Group https://mms.businesswire.com/media/20141224005009/en/446602/5/PetHeirsInfographic-FINAL-F82121_prf6%5B1%5D.jpg?download=1.  

[2] Id.

[3] Willett v. Willett, 247 S.W. 739 (1923)

[4] Gerry Beyer, PET ANIMALS: WHAT HAPPENS WHEN THEIR HUMANS DIE?, 40 Santa Clara L. Rev. 617 (2000).

[5] Id.

[6] Id.

[7] Id.

[8] Breahn Vokolek, America Gets What it Wants: Pet Trusts and a Future for its Companion Animals, 76 UMKC L. Rev. 1109 (2008).  

[9] Susan James, Leona Helmsley's Little Rich Dog Trouble Dies in Luxury, ABC News, (June 10, 2011) http://abcnews.go.com/US/leona-helmsleys-dog-trouble-richest-world-dies-12/story?id=13810168.  

[10] Id.

[11] KRS 386B.4-080

THE FUTURE OF THE ANTIQUITIES ACT AND BEARS EARS

The Future of the Antiquities Act and Bears Ears- Part III

Author: Seth Todd, 3L Member

Supporting President Trump’s Actions Involving Bears Ears

The Bears Ears battle rages on. I have previously covered the conflict surrounding President Trump’s reduction of Bears Ears and the arguments that the opposition has made trying to get the order over turned. In this final blog of the three-part series, I will cover the arguments supporting the President’s decision to reduce Bears Ears. The President claimed the reason behind his actions were to reduce federal overreach, and give the land back to the people. Pundits focus on three points when arguing in favor of the President’s decision. The first point is that President Obama created Bears Ears through the use of an Executive Order, and therefore Trump has the power to override it. The second is the literal text of the Antiquities Act. The third and final argument is that since it is not expressly granted, that it is an implied power. I will take each in turn.

The first argument is that Presidents can overturn executive orders issued by past Presidents. President Obama issued the executive order protecting Bears Ears and set the parameters of that protection. The executive order satisfied the Antiquities Act as a proclamation, which created the federal protection of the land. [1] Executive orders are commonly overturned by future Presidents. [2] This would seem to give President Trump the inherent authority to overturn President Obama’s executive order, therefore removing the protection of Bears Ears by the federal government. However, the sticky issue arises in the text of the Antiquities Act. Nowhere in the act does it stake that a President has the power to overturn protection of land, even if the protection arises from an executive order. [3] Since there is no previous cases on such an action, this will be an issue of first impression for the courts. President Trump does have the power to revoke the executive order, but will the protection of the land still be left in place?

Proponents of President’s Trump actions actually point to the text of the Antiquities Act in support of the reduction. The act states “The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”.[4] Past presidents have used this clause to reduce federal lands, such as President Kennedy when reducing the Bandelier National Monument by nearly 4,000 acres. [5] An Attorney General opinion from 1938 actual supports the reduction of monuments to “the smallest area possible” even though they may not have the right to abolish the monument. [6]The opinion states,

While the President from time to time has diminished the area of national monuments

established under the Antiquities Act by removing or excluding lands therefrom, under

that part of the act which provides that the limits of the monuments “in all cases shall be

confined to the smallest area compatible with the proper care and management of the

objects to be protected,” it does not follow from his power so to confine that area that he has the power to abolish a monument entirely.”[7]

While the question remains on whether he may abolish the monument, it seems President Trump does have some authority on his side toward at least a reduction.

Secretary of Interior Zinke has given support to the reduction stating the President has the authority because “qualifying objects within the monument can be identified and reasonably segregated”. [8] Since the objects can be targeted, then a reduction to the smallest area possible would be within the bounds of the text of the Antiquities Act. If the Trump administration has legitimate proof backing up that the size should be reduced, then this is their strongest argument and could withstand a judicial challenge.

The last and what I believe to be the weakest argument is that since the power to reduce or abolish monuments is not mentioned, then the president has the inherent authority. Since there seems to be no evidence that Congress expressly attempted to withhold the power to revoke national monuments, then the President should have the authority to do so. [9] The notion behind this is simple, where the executive can use a discretionary power to create something, they can also use that discretionary power to take it away, unless otherwise stated. [10] Since this is a matter of first impression, we will not know if this type of thinking can withstand a judicial challenge. It all depends on the interpretation of the courts and how they see the delegation of power to the executive through the Antiquities Act.

President Trump has three arguments going forward to try and persuade the judicial branch that his reduction of Bears Ears was within his power. We may guess at which is the strongest vs. the weakest, however we will not know until the issue has been presented to the courts. I hope you have enjoyed this mini-series on the reduction of Bears Ears, and the coverage of both sides of the arguments going forward. This will be something to watch going forward, as it will set the precedent for future presidents. If Trump is allowed to use the Antiquities Act, then this may become a tool to reduce the size of monuments and therefore reduce spending on federal maintenance of lands. If the judicial process rules against the Trump Administration, then those in favor of more conservation may use this as a way to protect lands they see as vulnerable prior to different political parties taking office. Only time will tell.

[1]Proclamation No. 9558, 3 C.F.R § 9558 (Dec. 28, 2016).  

[2] Vivian Chu and Todd Garvey, Cong. Research Serv., CRS Report for Congress, Executive Orders: Issuance, Modificiation, and Revocation, (April 16, 2014), available at https://fas.org/sgp/crs/misc/RS20846.pdf.

[3] 54 U.S. Code § 320301

[4] Id.

[5] Proclamation No. 3539, 77 Stat. 1006 (May 27, 1963).

[6]  39 Op. Atty. Gen. 185 (1938)

[7] Id.

[8]Nick Bryner, Nationals Monuments Update, LegalPlanet (June 13, 2017), http://legal-planet.org/2017/06/13/national-monuments-update/.

[9] John Yoo and Todd Gaziano, Presidential Authority to Revoke or Reduce National Monuments, American Enterprise Institute, (March 2017), https://www.aei.org/wp-content/uploads/2017/03/Presidential-Authority-to-Revoke-or-Reduce-National-Monument-Designations.pdf.

[10] Id.

The Future of the Antiquities Act and Bears Ears

The Future of the Antiquities Act and Bears Ears- Part II

Author: Seth Todd, 3L Member

In 1906 the world saw the first featured film, the forward pass legalized in football, and the signing of the Antiquities Act. All three have stood the test of time, and are still current staples in society today. This blog is the first part of a three-part series concerning the recent actions taken by President Trump to reduce the size of the Bears Ears Monument in Utah. This first blog will lay the foundation for what the Antiquities Act is, followed by blogs showing the standing for those for and against the President’s reduction of Bears Ears.

The Antiquities Act was signed by President Roosevelt in 1906 to prevent the destruction and looting of ancient Indian artifacts.[1] The Antiquities Act states,

“That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”[2]

16 Presidents have created 157 national monuments using the Antiquities Act, such as the Grand Canyon and the Statute of Liberty.[3] There is no formal way for the President to create a national monument, the statute simply references a “public proclamation” made by the President.  The authority for the President’s discretional designation of the monuments comes from the delegation powers granted to Congress. While the original purpose may be to protect Indian artifacts, in Cappaert v. United States the court held that the Antiquities Act could be used to protect ecosystems and scenic vistas. [4]

While past presidents use of the Antiquities Act has been challenged in the courts, if the question is whether the president abused his discretion then the court can typically only look at whether the President’s power under the Antiquities Act was indeed used. [5] The court is not allowed to go any further in establishing whether the President abused such his discretion. [6] Several other aspects of the Antiquities Act may be challenged, but I bring up the President’s use of discretion because it may come into play in ongoing litigation over Bears Ears.

The President’s use of discretion may arise if it is deemed that the President does have the power to withdraw lands from federal protection, which is the case for Bears Ears. The Antiquities Act only speaks of the President’s ability to create national monuments, it never touches upon if he can remove them. This will be examined in greater detail in the following blogs, as there are two camps regarding whether or not the President can remove land from federal protection without an act of Congress. Those for the President being able to remove land site the ability of the President to overturn/withdraw previous president’s executive orders, proclamations, etc. [7] Those opposing President Trump’s actions point directly to the statute, where no mention of the diminishing a national monument is mentioned. Opposition also points to the Federal Land Policy and Management Act of 1976, which places limits on the modification of national monuments. [8] These issues will be addressed in further detail in blogs to come, but it is important to recognize these arguments at the outset to set the stage.

While the Bears Ears issue is important in its own right, the impending judicial review may set the stage for future presidents to come, or push Congress to revise the Antiquities Act all together. Congress could amend the Antiquities Act to allow for the removal of land from federal management by the act of the President, or repeal the Antiquities Act all together to allow for full Congressional control over the designation of federal lands.

Be on the lookout for the next blog, where I will discuss the opposition’s arguments to Bears Ears, and why many people think the President overstepped his bounds when diminishing the size of the national monument created by President Obama.

[1] Tatiana Schlossberg, What Is the Antiquities Act and Why Does President Trump Want to Change It?, The New York Times, April 26, 2017,  https://www.nytimes.com/2017/04/26/climate/antiquities-act-federal-lands-donald-trump.html.

[2] 16 U.S.C. §§ 431-433 (1906)

[3] National Parks Conservation Association, Monuments Protected Under the Antiquities Act, https://www.npca.org/resources/2658-monuments-protected-under-the-antiquities-act (last visited Feb. 19, 2018)

[4] Cappaert v. United States, 426 U.S. 128 (1976).

[5] Utah Ass'n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004).

[6] Id.

[7] Pamela Baldwin, Cong. Research Serv., CRS Report for Congress, Authority of a President to Modify or Eliminate a National Monument (2000), available at http://congressionalresearch.com/RS20647/document.php?study=Authority+of+a+President+to+Modify+or+Eliminate+a+National+Monument.  

[8] John Hudak, President Trump has the power to shrink national monuments, Brookings (Dec. 7, 2017), https://www.brookings.edu/blog/fixgov/2017/12/07/president-trump-has-the-power-to-shrink-national-monuments/ (last visited Feb. 19, 2018).

The Future of the Antiquities Act and Bears Ears

The Future of the Antiquities Act and Bears Ears- Part I

Author: Seth Todd, 3L Member

In 1906 the world saw the first featured film, the forward pass legalized in football, and the signing of the Antiquities Act. All three have stood the test of time, and are still current staples in society today. This blog is the first part of a three-part series concerning the recent actions taken by President Trump to reduce the size of the Bears Ears Monument in Utah. This first blog will lay the foundation for what the Antiquities Act is, followed by blogs showing the standing for those for and against the President’s reduction of Bears Ears.

The Antiquities Act was signed by President Roosevelt in 1906 to prevent the destruction and looting of ancient Indian artifacts.[1] The Antiquities Act states,

“That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”[2]

16 Presidents have created 157 national monuments using the Antiquities Act, such as the Grand Canyon and the Statute of Liberty.[3] There is no formal way for the President to create a national monument, the statute simply references a “public proclamation” made by the President.  The authority for the President’s discretional designation of the monuments comes from the delegation powers granted to Congress. While the original purpose may be to protect Indian artifacts, in Cappaert v. United States the court held that the Antiquities Act could be used to protect ecosystems and scenic vistas. [4]

While past presidents use of the Antiquities Act has been challenged in the courts, if the question is whether the president abused his discretion then the court can typically only look at whether the President’s power under the Antiquities Act was indeed used. [5] The court is not allowed to go any further in establishing whether the President abused such his discretion. [6] Several other aspects of the Antiquities Act may be challenged, but I bring up the President’s use of discretion because it may come into play in ongoing litigation over Bears Ears.

The President’s use of discretion may arise if it is deemed that the President does have the power to withdraw lands from federal protection, which is the case for Bears Ears. The Antiquities Act only speaks of the President’s ability to create national monuments, it never touches upon if he can remove them. This will be examined in greater detail in the following blogs, as there are two camps regarding whether or not the President can remove land from federal protection without an act of Congress. Those for the President being able to remove land site the ability of the President to overturn/withdraw previous president’s executive orders, proclamations, etc. [7] Those opposing President Trump’s actions point directly to the statute, where no mention of the diminishing a national monument is mentioned. Opposition also points to the Federal Land Policy and Management Act of 1976, which places limits on the modification of national monuments. [8] These issues will be addressed in further detail in blogs to come, but it is important to recognize these arguments at the outset to set the stage.

While the Bears Ears issue is important in its own right, the impending judicial review may set the stage for future presidents to come, or push Congress to revise the Antiquities Act all together. Congress could amend the Antiquities Act to allow for the removal of land from federal management by the act of the President, or repeal the Antiquities Act all together to allow for full Congressional control over the designation of federal lands.

Be on the lookout for the next blog, where I will discuss the opposition’s arguments to Bears Ears, and why many people think the President overstepped his bounds when diminishing the size of the national monument created by President Obama.

[1] Tatiana Schlossberg, What Is the Antiquities Act and Why Does President Trump Want to Change It?, The New York Times, April 26, 2017,  https://www.nytimes.com/2017/04/26/climate/antiquities-act-federal-lands-donald-trump.html.

[2] 16 U.S.C. §§ 431-433 (1906)

[3] National Parks Conservation Association, Monuments Protected Under the Antiquities Act, https://www.npca.org/resources/2658-monuments-protected-under-the-antiquities-act (last visited Feb. 19, 2018)

[4] Cappaert v. United States, 426 U.S. 128 (1976).

[5] Utah Ass'n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004).

[6] Id.

[7] Pamela Baldwin, Cong. Research Serv., CRS Report for Congress, Authority of a President to Modify or Eliminate a National Monument (2000), available at http://congressionalresearch.com/RS20647/document.php?study=Authority+of+a+President+to+Modify+or+Eliminate+a+National+Monument.  

[8] John Hudak, President Trump has the power to shrink national monuments, Brookings (Dec. 7, 2017), https://www.brookings.edu/blog/fixgov/2017/12/07/president-trump-has-the-power-to-shrink-national-monuments/ (last visited Feb. 19, 2018).

Got Water? Tapping into the War on America’s Pour

Got Water?

Tapping into the War on America’s Pour

By: Anesha Blakey

Have you had your recommended number of glasses of water today?[1] For some, it’s pretty easy to drink eight or more glasses per day, maybe even before lunchtime. For others, however, it can be difficult to force yourself to drink that much water throughout the day, especially when you’d much rather have a cup of coffee, an adult libation, or your favorite ice-cold carbonated beverage straight out of the icebox. I, unfortunately, fall into the latter group. However, as is customary around this time of the year, myself and many others around the world resolve to drink more water… which is easier said than done, right?[2] But what if this resolution was challenging not because you’re conditioned to prefer artificially sweetened drinks in lieu of water, but because your access to safe drinking water has been cut off by the very county in which you live? Although horrific details from Flint, MI have flooded the news in recent years as residents fight triumphantly to restore healthy water conditions to their community, one of the most recent communities to be affected by unhealthy water conditions is located right here in the Commonwealth of Kentucky.

Beginning in January 2018, residents in Martin County, Kentucky unexpectedly lost access to their water supply for 12 hours per day, between the hours of 7 p.m. and 7 a.m.[3] For other residents in the county, however, all access to running water ceased for several days at a time. [4] According to the Martin County Water District, the water supply was cut off to residents as a result of water shortages caused by “high water usage, busted meters, etc.”[5] However, Martin County has experienced infrastructure issues for many years, often resulting in water leaks and lower water pressure for its residents.[6] To fix the infrastructure, district officials estimate that the water system requires about $13.5 million in repairs.[7] However, officials for the Martin County Water District posted that as of November 2017, the outstanding debt for the district exceeds $800,000.00.[8] Thus, in an attempt to eradicate this debt, the district prepares Martin County residents to expect their monthly water bill to increase by as much as 49.5 percent.[9]

Another issue plaguing Martin County is water contamination, which forces many residents to purchase bottled water.[10] Two chemicals in particular, trihalomethanes and haloacetic acids, are so prevalent in Martin County’s water supply that warnings about exposure risks are printed on the district’s monthly billing statements.[11]

So, what is the answer? Aren’t there laws in place to protect citizens from living under such inhumane conditions? Well, according to state regulators, water is a “local responsibility.”[12] In Martin County, the water district is under the control of a five-member supervisory board, so “there is no legal mechanism to let the state seize control of a failing water district.”[13] This, however, has not stopped local residents and even well-known consumer advocate, Erin Brockovich, from joining in the conversation. Last week, Brockovich posted on social media encouraging residents to follow up with Matt Bevin, the Governor of Kentucky.[14] The post also brought attention to state and federal laws, which may provide a source of resolution for Martin County: “The Kentucky Division of Water is charged with responsibility to ensure public health protection through primacy of the Safe Drinking Water Act and the provision of potable water. ‘Primacy’ refers to primary enforcement responsibility awarded to the state by the United States Environmental Protection Agency in 1977.”[15]

The Safe Drinking Water Act to which Brockovich references in her post, was established in 1974.[16] The Act authorizes the Environmental Protection Agency [hereinafter, the “EPA”] with the power to set minimum standards to protect and ensure the quality of drinking water.[17] The Act also governs the EPA to set forth regulations for the amount of toxins permitted in drinking water.[18] However, many national limits for contaminants have not been modified since 1996.[19] As such, “little has been done at the federal level to set safer limits for older chemicals, assess the health impact of new substances making their way into the water supply, or even monitor regularly for potential contaminants in the drinking water that millions of Americans ingest every day.”[20]

The stories of unhealthy water conditions plaguing Martin County and Flint, MI are sadly, more commonplace year after year. Even Louisville, KY, which is usually well-known for its high quality, top-rated tap water, has had issues as of late with the presence of unregulated contaminants in its water supply.[21] Thus, regardless of the source of the problem, residents must call on their local, state, and federal officials to resolve the safe drinking water issues, so that we can each safely drink the recommend glasses of water each day.

[1] Mayo Clinic Staff, Water: How much should you drink every day?, Mayo Clinic (Sept. 6, 2017), https://www.mayoclinic.org/healthy-lifestyle/nutrition-and-healthy-eating/in-depth/water/art-20044256.

[2] Lisa Drayer, A New Year, new food resolution: Water, CNN (Jan. 1, 2018, 12:11 AM), https://www.cnn.com/2017/12/25/health/water-food-resolution-drayer/index.html.

[3] Will Wright, Five days later, these Eastern Kentucky residents have no running water, Lexington Herald Leader (Jan. 12, 2018, 6:07 PM), http://www.kentucky.com/news/state/article194459549.html.

[4] Id.

[5] Kyla Mandel, Kentucky community suffering severe water shortage could now see huge water bill increase, Think Progress (Jan. 25, 2018, 4:43 PM), https://thinkprogress.org/kentucky-water-bill-rate-increase-11397b6c29dc/.

[6] Id.

[7] Id.

[8] Cory McCauley, Martin County Water District more than 800,000 dollars in debt, WYMT (Jan. 15, 2018, 6:41 PM), http://www.wymt.com/content/news/Martin-County-Water-District-more-than-800000-dollars-in-debt-469426153.html.

[9] Mandel, supra note 5.

[10] Wright, supra note 3.

[11] John Cheves, ‘You can’t drink this crap.’ County’s water can be gray, brown or yellow – if there is any, Lexington Herald Leader (Oct. 10, 2016, 8:52 AM), http://www.kentucky.com/news/politics-government/article106649457.html.

[12] Id.

[13] Id.

[14] Erin Brockovich Weighs In On Martin County Water Debate, Lex18 (Feb. 2, 2018, 12:54 PM), http://www.lex18.com/story/37414768/erin-brockovich-weighs-in-on-martin-county-water-debate.

[15] Id.

[16] Summary of the Safe Drinking Water Act, EPA, https://www.epa.gov/laws-regulations/summary-safe-drinking-water-act (last visited Feb. 4, 2018).

[17] Id.

[18] How EPA Regulates Drinking Water Contaminants, EPA, https://www.epa.gov/dwregdev/how-epa-regulates-drinking-water-contaminants (last visited Feb. 6, 2018).

[19] Annie Snider, What broke the Safe Drinking Water Act?, Politico (May 11, 2017, 5:02 PM), https://www.politico.com/agenda/story/2017/05/10/safe-drinking-water-perchlorate-000434.

[20] Id.

[21]Kezia Snipe, Problems We Found In Louisville’s Drinking Water, Hydroviv (Dec. 28, 2017), https://www.hydroviv.com/blogs/water-quality-report/louisville.

Dogs in Hot Cars: South Dakota - Wyoming

Author: Simon Isham (3L) 

Post 5 of 5

This is the 5th, and final, post in the Dogs in Hot Cars series written by 3L Simon Isham. We hope you have enjoyed this series! 

___________________________________________________

South Dakota

Like it’s neighbor to the north, South Dakota manages a very simple statute regarding leaving animals unattended in vehicles. The first sentence prohibits leaving an animal unattended in a vehicle “in a manner that endangers the health or safety of such animal.”[1] The second sentence authorizes police officers and agents of a humane society to use reasonable force to remove an animal from a vehicle.[2] The third sentence provides the civil and criminal immunity language.[3] The section does not prescribe a punishment for the negligent owner.

Note: In South Dakota, “animal” means “any mammal, bird, reptile, amphibian, or fish, except humans.”[4] This definition does not exclude common invertebrate pets such as jellyfish, tarantulas, or hermit crabs, nor does it exclude livestock, making it one of the most inclusive definitions of “animal” in the country.

___________________________________________________

 Tennessee

Tennessee’s laws grants civil immunity to a member of the general public to break into a car to help a suffering animal, so long as that person follows this process:

  1. Have a good faith and reasonable belief, based upon the circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.[5]
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.[6]
  3. Contact a police officer, firefighter, or 911 operator.[7]
  4. Use no more force than reasonably necessary to enter the vehicle.[8] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Place a written notice on the windshield of the vehicle noting the rescuer's name, contact information, an explanation of why forcible entry was necessary, the location of the animal, and the fact that the authorities have been notified.[9]
  6. Remain with the animal in a safe location, out of the elements but reasonably close to the vehicle, until law enforcement or another emergency responder arrives.[10] The wording of the statute seems to allow, at the least, moving the animal to an adjacent location that is safe for the animal, such as an air conditioned building.

If the person makes further efforts to rescue the animal besides removing it from the vehicle, then he or she could still be civilly liable to the owner for any damage that might result to the animal, under the Tennessee law.[11]

Note: Tennessee Law defines “animal” as “means a domesticated living creature or a wild creature previously captured.”[12] Since any wild creature is necessarily captured if it is trapped in a vehicle, the Tennessee law provides for one of the most expansive definitions of animal in the country.

___________________________________________________

Texas

Texas currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in Texas can get away with animal cruelty and neglect scot-free, however. Under Texas law, a person is guilty of a Class A misdemeanor if they “transport[] or confine[] an animal in a cruel manner.”[13] Class A misdemeanors in Texas are punishable by a fine of up to $4,000 and/or a jail term of up to one year.[14]

Note: In Texas, “‘Animal’ means a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. The term does not include an uncaptured wild living creature or a livestock animal.”[15]

___________________________________________________

Utah

Utah currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in Utah can get away with animal cruelty and neglect scot-free, however. Under Utah law, a person is guilty of a Class B misdemeanor if they “fail[] to provide necessary food, water, care, or shelter for an animal in the person's custody,”[16] where “shelter” is defined to mean “adequate protection, including appropriate shelter, against extreme weather conditions.”[17] Class B misdemeanors in Utah are punishable by a fine of up to $1,000 and/or a jail term of up to six months.[18]

Note: In Utah, “animal” has one of the most complex definitions under this law. An animal is a “live, nonhuman vertebrate creature,”[19] but does not include creatures being cared for “in accordance with accepted animal husbandry practices,”[20] zoo animals,[21] hunting dogs or animals used to train hunting dogs,[22] circus animals or animals that are a part of travelling exhibits,[23] rodeo animals being cared for “in accordance with accepted rodeo practices,”[24] livestock being cared for “in accordance with … customary farming practices,”[25] or wildlife “if the conduct toward the wildlife is in accordance with lawful hunting, fishing, or trapping practices.”[26] Although many working animals are exempted from the protections of this law due to the jobs they fulfill in society, the Utah definition of animal is still more broad than “domestic animals” or “dogs and cats.”

___________________________________________________

Vermont

Vermont’s laws grants civil immunity to a member of the general public who breaks into a car to help a suffering animal, so long as that person follows this process:

  1. Have a good faith and reasonable belief, based upon the circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.[27]
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.[28]
  3. Contact a police officer, firefighter, or 911 operator.[29]
  4. Use no more force than reasonably necessary to enter the vehicle.[30] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Place a written notice on the windshield of the vehicle noting that the authorities have been notified and specifying the location of the animal.[31]
  6. Remain with the animal in a safe location, reasonably close to the vehicle, until law enforcement or another emergency responder arrives.[32] The wording of the statute seems to allow, at the least, moving the animal to an adjacent location such as an air conditioned building.

 

A person who leaves an animal unattended in a vehicle can face a fine of up to $2,000 and/or imprisonment for up to one year.[33] Repeat offenders may face a fine of up to $5,000 and/or imprisonment for up to two years.[34]

___________________________________________________

Virginia

Virginia currently has no law allowing members of the general public to break into a car to save a suffering animal, but police officers, animal control officers, firefighters, or emergency medical services personnel may.[35] Such personnel are granted civil immunity if they: “in good faith forcibly enter[] a motor vehicle in order to remove an unattended companion animal that is at risk of serious bodily injury or death … unless such property damage or injury results from gross negligence or willful or wanton misconduct.”[36]

Note: In Virginia, "animal" means “any nonhuman vertebrate species except fish.”[37]

___________________________________________________

Washington

Washington currently has no law allowing members of the general public to break into a car to save a suffering animal, but police officers and animal control officers may.[38] Washington’s law does not allow for firefighters or other first responders to help in this kind of situation. Washington’s law also specifically lays out that officers are not allowed to break into the vehicle if there is a person present in the immediate area who has access to the vehicle.[39]

Owner’s who leave dogs in unattended vehicles may be fined up to $125.[40]

In Washington, “animal” means “any nonhuman mammal, bird, reptile, or amphibian.”[41]

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West Virginia

 West Virginia currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat, nor can law enforcement. This doesn't mean that pet owners in West Virginia can get away with animal cruelty and neglect scot-free, however. Under West Virginia law, a person is guilty of animal cruelty if they “leave an animal unattended and confined in a motor vehicle when physical injury to or death of the animal is likely to result.”[42] A person found guilty of violating this statute will be fined between $300 and $2,000 and/or sentenced to up to six months in jail.[43]

___________________________________________________

Wisconsin

Wisconsin’s laws grants civil immunity to a member of the general public who breaks into a car to help a suffering animal, so long as that person follows this process:

  1. Have a good faith and reasonable belief, based upon the circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.[44]
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.[45]
  3. Contact a police officer, firefighter, emergency medical services, or 911 operator.[46]
  4. Use no more force than reasonably necessary to enter the vehicle.[47] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Remain with the animal until law enforcement or another emergency responder arrives.[48] The wording of the statute seems to allow, at the least, moving the animal to an adjacent location such as an air conditioned building.
  6. Leave a note for the owner of the vehicle.[49] If the rescuer must leave the scene before the owner of the animal returns, the rescuer must leave a note including his or her name, phone number, mailing address, reason the vehicle was broken into, and the location, if known, of the animal.

Note: In Wisconsin, the animals covered by this law are “a dog, cat, or other animal that is domesticated and kept as a household pet,” but not “a farm animal.”[50]

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Wyoming

 

Wyoming currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in Wyoming can get away with animal cruelty and neglect scot-free, however. Under Wyoming law, a person is guilty of animal cruelty if he knowingly “[c]arries an animal in a manner that poses undue risk of injury or death, or if he “has the charge and custody of any animal and unnecessarily fails to provide it with the proper food, drink or protection from the weather, or cruelly abandons the animal, or in the case of immediate, obvious, serious illness or injury, fails to provide the animal with appropriate care.”[51] A person found guilty of violating this statute will be fined up to $750 and/or sentenced to up to six months in jail.[52] A subsequent offense may result in an up to $5,000 fine and/or up to 1 year in jail.[53]

[1] S.D.C.L. § 40-1-36.

[2] Id.

[3] Id.

[4] S.D.C.L. § 40-1-1(2).

[5] T.C.A. § 29-34-209(b)(2).

[6] T.C.A. § 29-34-209(b)(1).

[7] T.C.A. § 29-34-209(b)(3).

[8] T.C.A. § 29-34-209(b)(6).

[9] T.C.A. § 29-34-209(b)(4).

[10] T.C.A. § 29-34-209(b)(5).

[11] T.C.A. § 29-34-209(c).

[12] T.C.A. § 39-14-201(1).

[13] V.T.C.A. § 42.09(a)(4).

[14] T.P.C. § 12.02.

[15] V.T.C.A. § 42.092(2).

[16] U.C.A. § 76-9-301(2)(a).

[17] U.C.A. § 76-9-301(1)(g)(ii).

[18] Utah Courts, Uᴛᴀʜ Sᴛᴀᴛᴇ Cᴏᴜʀᴛꜱ - Cʀɪᴍɪɴᴀʟ Pᴇɴᴀʟᴛɪᴇꜱ, https://www.utcourts.gov/howto/criminallaw/penalties.asp.

[19] U.C.A.  § 76-9-301(1)(b)(i).

[20] U.C.A.  § 76-9-301(1)(b)(ii)(A)(I).

[21] U.C.A.  § 76-9-301(1)(b)(ii)(A)(II)(Aa).

[22] U.C.A.  § 76-9-301(1)(b)(ii)(A)(II)(Bb).

[23] U.C.A.  § 76-9-301(1)(b)(ii)(A)(II)(Cc).

[24] U.C.A.  § 76-9-301(1)(b)(ii)(B).

[25] U.C.A.  § 76-9-301(1)(b)(ii)(C).

[26] U.C.A.  § 76-9-301(1)(b)(ii)(D).

[27] 12 V.S.A. § 5784(2).

[28] 12 V.S.A. § 5784(1).

[29] 12 V.S.A. § 5784(3).

[30] 12 V.S.A. § 5784(6).

[31] 12 V.S.A. § 5784(5).

[32] 12 V.S.A. § 5784(4).

[33] 13 V.S.A. § 386 & 12 V.S.A. § 353(a)(1).

[34] Id.

[35] V.C.A. § 3.2-6504.1

[36] Id.

[37] V.C.A.§ 3.2-6500.

[38] R.W.C.A. § 16.52.340(2).

[39] Id.

[40] R.W.C.A § 16.52.340(1) & R.W.C.A. § 7.80.120(1)(b).

[41] R.W.C.A § 16.52.011(2)(b).

[42] W.V.C. § 61-8-19(a)(1)(E).

[43] W.V.C. § 61-8-19(a)(2).

[44] W.S.A. § 895.484(2)(a).

[45] W.S.A. § 895.484(2)(b).

[46] W.S.A. § 895.484(2)(c).

[47] W.S.A. § 895.484(2)(e).

[48] W.S.A. § 895.484(2)(d).

[49] W.S.A. § 895.484(2)(f).

[50] W.S.A. § 895.484(1)(a).

[51] W.S. § 1977 § 6-3-203(a)(3) & W.S. § 1977 § 6-3-203(b).

[52] W.S. § 1977 § 6-3-203(e).

[53] Id.

Dogs in Hot Cars: New Mexico - South Carolina

Author: Simon Isham (3L) 

Post 4 of 5

This is the 4th post in the Dogs in Hot Cars series written by 3L Simon Isham. Enjoy! 

___________________________________________________

New Mexico

New Mexico currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in New Mexico can get away with animal cruelty and neglect scot-free, however. Under New Mexico law, “cruelty to animals consists of a person negligently mistreating, injuring, killing without lawful justification or tormenting an animal or abandoning or failing to provide necessary sustenance to an animal under that person's custody or control.”[1] Animal Welfare officers are able to cite residents of Albuquerque, resulting in an up to $500 fine and up to 90 days in jail.[2] Outside of Albuquerque, extreme cases — such as when the animal is seriously injured or killed — are likely to be escalated to misdemeanors and fined up to $1,000 and imprisoned for up to one year.[3]

___________________________________________________

New York

Although members of the general public in New York are not empowered to take action when they see an animal trapped in a hot or cold car, police officers or agents of a duly incorporated humane society may do so.[4] New York’s law is unique because it allows agents of a humane society to take action; such agents do not need to be officers of the organization, nor do they need to be authorized to make arrests, as they do in a few other states. Officers who remove an animal from a vehicle are required to place a written notice in or on the vehicle bearing the name of the officer, the department or agency, and the address where the animal can be retrieved.[5]

In addition, the New York law provides that “[a] person shall not confine a companion animal in a motor vehicle in extreme heat or cold without proper ventilation or other protection from such extreme temperatures where such confinement places the companion animal in imminent danger of death or serious physical injury due to exposure to such extreme heat or cold.”[6] Violators will be assessed a fine of between $50 and $100 for the first offense, and between $100 and $250 for subsequent offenses.[7]

Note: The New York law applies to “companion animals,”[8] which is likely coterminous with the colloquial usage of the term “pets.”

___________________________________________________

North Carolina

North Carolina currently has no law allowing members of the general public to break into a car to save a suffering animal, but police officers, animal control officers, animal cruelty investigators, firefighters, or rescue squad workers may.[9] Such personnel may use “any reasonable means under the circumstances” to enter the vehicle after making a reasonable effort to locate the owner.[10]

Note: North Carolina's law applies to "every living vertebrate" in the Amphibian, Reptile, Bird, and Mammal classes except human beings.[11] A note at the bottom of the statute also exempts livestock from protection under this law.[12]

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North Dakota

At just three sentences long, North Dakota enacted one of the nation’s simplest laws on this subject. The first section sentence makes it a crime in North Dakota to “leave an animal unattended in a motor vehicle without ensuring that the animal's health and safety is not endangered.”[13] The second sentence prescribes a maximum punishment of a $1,000 fine, with a $1,500 fine and/or 30 days imprisonment for a repeat offender who reoffends within one year.[14] Although members of the general public are not empowered to help a suffering animal, the third sentence provides that police officers may.[15]

Note: A former version of North Dakota’s law applied only to dogs and cats.[16] As it currently stands, the law does not define what is meant by “animal.”

___________________________________________________

Ohio

Ohio’s laws grants civil immunity to a member of the general public to break into a car to help a suffering animal, so long as that person follows this process:

  1. Have a good faith and reasonable belief, based upon the circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.[17]
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.[18]
  3. Make a good faith effort to notify a law enforcement officer, a firefighter or call 911. If contact is not possible before entering the vehicle, contact must be made as soon as possible after entering the vehicle.[19] Ohio’s law is unique among states that require a 911-call prior to authorizing a member of the general public to enter a vehicle, as it implicitly recognizes that the rescue is a time-sensitive emergency and that extra moments spent on the phone with a 911 operator can increase the risk to the animal.
  4. Use no more force than reasonably necessary to enter the vehicle.[20] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Place a written notice on the windshield of the vehicle noting the rescuer's name, telephone number or other contact information, an explanation of why forcible entry was necessary, the location of the animal, and the fact that the authorities have been notified.[21]
  6. Remain with the animal in a safe location until law enforcement or another first responder arrives.[22] The wording of the statute seems to allow, at the least, moving the animal out of the elements and to an adjacent location that is safe for the animal, such as an air conditioned building.

If the person makes further efforts to rescue the animal besides removing it from the vehicle, then he or she could still be civilly liable to the owner for any damage that might result to the animal, under the Ohio law.[23]

Note: As it currently stands, the Ohio law does not define what is meant by “animal.”

___________________________________________________

Oklahoma

Oklahoma currently has no law allowing members of the public to break into a vehicle to save a suffering animal. This doesn't mean that pet owners in Oklahoma can get away with animal cruelty and neglect scot-free, however. Under Oklahoma’s animal cruelty statute, “[a]ny person who carries or causes to be carried in or upon any vessel or vehicle, or otherwise, any animal in a cruel or inhuman manner, or so as to produce torture is guilty of a misdemeanor.”[24] A conviction for a misdemeanor in Oklahoma can carry a fine of up to $500 and/or up to one year in jail.[25] In order for a police officer to remove an animal from a vehicle, that officer has to first make an arrest for the crime of cruelty to animals,[26] which can waste valuable time, especially if the animal’s owner is hard to locate.

Note: Oklahoma’s definition of animal is “any mammal, bird, fish, reptile or invertebrate, including wild and domesticated species, other than a human being,”[27] making it one of the most inclusive definitions of animal in the country.

___________________________________________________

Oregon

In 2017, the Oregon legislature passed a new bill that provides criminal and civil immunity to members of the general public who break into locked vehicles to save suffering animals.[28] In order to take advantage of the protections of the law, a person must:

  1. Have a good faith and reasonable belief, based upon the circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.[29]
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.[30]
  3. Before or as soon as reasonably practicable after entering the vehicle, notify a law enforcement officer, or call 911.[31] Oregon’s law is unique among states that require a 911-call prior to authorizing a member of the general public to enter a vehicle, as it implicitly recognizes that the rescue is a time-sensitive emergency and that extra moments spent on the phone with a 911 operator can increase the risk to the animal.
  4. Use no more force than reasonably necessary to enter the vehicle.[32] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Remain with the animal in a safe location, in reasonable proximity to the motor vehicle, until law enforcement, emergency services, or the owner of the vehicle arrives.[33] The wording of the statute seems to allow, at the least, moving the animal out of the elements and to an adjacent location that is safe for the animal, such as an air conditioned building. Additionally, Oregon’s law is unique because it allows the owner to leave as soon as the owner of the vehicle returns, which could be before law enforcement arrives.

Note: The Oregon law only applies to “domestic animals,”[34] which in other areas of Oregon law include livestock animals.[35]

___________________________________________________

Pennsylvania

Pennsylvania currently has no law specifically prohibiting a pet owner from leaving his animal in a hot car, but a new bill introduced in 2017 in the Pennsylvania legislature is seeking to change that.[36] If passed, the bill would provide punishment for those who leave animals in hot or cold cars, and would allow certain emergency responders to come to the animals’ aid.[37]

The bill provides that “a motor vehicle owner or operator commits a summary offense if the motor vehicle owner or operator confines a dog or cat in an unattended motor vehicle in extreme heat, endangering the dog's or the cat's health and well-being.”[38]

The bill also allows police, humane officers, security guards, volunteer or professional firemen, or other first responders to break into the vehicle in order to remove the dog or cat.[39] Pennsylvania’s bill is unique because it allows security guards, even if employed in the private sector, to assist an animal in need. Immediately after removing the dog or cat, the emergency responder must leave a note in the vehicle or in a conspicuous location stating the responder's name and contact information, and the address of where the dog or cat can be retrieved.[40]

The emergency responder is also required to transport the animal to a veterinary hospital or clinic for treatment and health screening.[41] Pennsylvania’s bill is the only one which requires — rather than simply allows — a responder to seek further medical treatment for the animal after retrieving it from the vehicle. The owner is then responsible for any costs incurred at the veterinary treatment facility, and must pay them before retrieving the animal.[42] If the owner cannot be located, the animal will be transported to an animal shelter or humane society.[43]

The measure is scheduled for vote in the Pennsylvania Senate and House during the 2018 legislative cycle.[44]

Note: The Pennsylvania bill only applies to dogs and cats,[45] and no other type of animal.

___________________________________________________

Rhode Island

Although members of the general public in Rhode Island are not empowered to take action when they see an animal trapped in a hot or cold car, police officers, animal control officers, and firefighters may do so.[46] Although the first section of Rhode Island’s law gives firefighters this authority, the next section only specifically allows “[a] law enforcement or animal control officer [to] take all steps that are reasonably necessary to remove an animal from a motor vehicle.”[47] Some states use the language “no more force than reasonably necessary” to describe the permitted force, while others use the “all steps reasonably necessary” language that Rhode Island uses. It is unclear whether the intent behind the Rhode Island law was to allow police officers and animal control officers to “take all steps reasonably necessary,” but not firefighters, or whether firefighters were simply wrongfully omitted from this section. The third section of the law repeats this omission.[48]

An officer who removes an animal from a vehicle is required to leave a notice in a conspicuous place on or within the vehicle bearing the officer’s name and office and the address of the location where the animal may be retrieved.[49] The owner may retrieve the animal only after paying all of the expenses incurred in the animal’s treatment and care.[50] The owner is also subject to a fine of up to $1,000 and/or imprisonment for up to one year.[51]

Note: Rhode Island’s law defines “animal” as “every living creature except a human being,”[52] making it one of the most expansive definitions of animal in the country.

___________________________________________________

South Carolina

South Carolina law does not allow members of the general public to break into a vehicle to save a suffering animal, and it only allows police to take custody of an animal while an arrest for animal cruelty is being made.[53]

People who leave dogs unattended in hot cars can be punished under at least two sections of South Carolina’s animal cruelty laws. The owner of an animal has an obligation in this state to provide his companion with “the necessities of life,” including “shelter that reasonably may be expected to protect the animal from physical suffering or impairment of health due to exposure to the elements or adverse weather.”[54] A person who fails to provide adequate shelter for his animal may be fined between $200 and $500 and/or imprisoned for up to 30 days.[55]

The owner also has an obligation to provide a dog or cat with “adequate space and ventilation” while it is being transported.[56] A person who fails to provide this can be fined between $200 and $500 and imprisoned for up to 30 days.[57]

Note: Although the first statute discussed here applies to “animals” (“a living vertebrate creature except a homo sapien”),[58] the second statute applies only to dogs and cats.[59]

___________________________________________________

[1] N.M.S.A. § 30-18-1(B).

[2] City of Albuquerque HEART Ordinance.

[3] N.M.S.A. § 30-18-1(D) & § 31-19-1(A).

[4] NY Agri. & Mkts. § 353-d(2).

[5] NY Agri. & Mkts. § 353-d(3).

[6] NY Agri. & Mkts. § 353-d(1).

[7] NY Agri. & Mkts. § 353-d(5).

[8] NY Agri. & Mkts. § 353-d.

[9] N.C.G.S.A. § 14-363.3(a).

[10] Id.

[11] N.C.G.S.A. § 14-360(c).

[12] N.C.G.S.A. § 14-363.3(b).

[13] N.D.C.C. § 36-21.2-12 (1).

[14] N.D.C.C. § 36-21.2-12 (2).

[15] N.D.C.C. § 36-21.2-12 (3).

[16] N.D.C.C. § 36-21.1-03(1).

[17] O.R.C. § 959.133(A)(2).

[18] O.R.C. § 959.133(A)(1).

[19] O.R.C. § 959.133(A)(3).

[20] O.R.C. § 959.133(A)(6).

[21] O.R.C. § 959.133(A)(4).

[22] O.R.C. § 959.133(A)(5).

[23] O.R.C. § 959.133(B).

[24] 21 O.S.A. § 1688.

[25] 21 O.S.A. § 2110.

[26] 21 O.S.A. § 1686(C).

[27] 21 O.S.A. § 1680.1.

[28] H.B. 2732 2017 Rᴇɢᴜʟᴀʀ Sᴇꜱꜱɪᴏɴ - Oʀᴇɢᴏɴ Lᴇɢɪꜱʟᴀᴛɪᴠᴇ Iɴꜰᴏʀᴍᴀᴛɪᴏɴ Sʏꜱᴛᴇᴍ, https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/HB2732.

[29] O.L. Chap. 424(2)(b) (2017).

[30] O.L. Chap. 424(2)(a) (2017).

[31] O.L. Chap. 424(2)(c) (2017).

[32] O.L. Chap. 424(2)(d) (2017).

[33] O.L. Chap. 424(2)(e) (2017).

[34] O.L. Chap. 424 (2017).

[35] 2015 O.R.S. § 607.365.

[36] Open States, Pᴇɴɴꜱʏʟᴠᴀɴɪᴀ Sᴇɴᴀᴛᴇ Bɪʟʟ 636, https://openstates.org/pa/bills/2017-2018/SB636/.

[37] Penn. S.B. 636 (2017).

[38] Penn. S.B. 636(1)(1) (2017).

[39] Penn. S.B. 636(1)(2) (2017).

[40] Penn. S.B. 636(1)(4)(i) (2017).

[41] Penn. S.B. 636(1)(4)(ii) (2017).

[42] Id.

[43] Id.

[44] Open States, Pᴇɴɴꜱʏʟᴠᴀɴɪᴀ Sᴇɴᴀᴛᴇ Bɪʟʟ 636, https://openstates.org/pa/bills/2017-2018/SB636/.

[45] Penn. S.B. 636 (2017).

[46] R.I.G.L. § 4-1-3.2(a)

[47] R.I.G.L. § 4-1-3.2(b)

[48] R.I.G.L. § 4-1-3.2(c)

[49] R.I.G.L. § 4-1-3.2(d)

[50] Id.

[51] R.I.G.L. § 4-1-3.2(f)

[52] R.I.G.L. § 4-1-1(a)(1).

[53] S.C.C. § 47-1-120.

[54] S.C.C. § 47-1-70.

[55] S.C.C. § 47-1-70(B).

[56] S.C.C. § 47-1-200(A).

[57] S.C.C. § 47-1-200(C).

[58] S.C.C. § 47-1-10.

[59] S.C.C. § 47-1-200.

Dogs in Hot Cars: Massachusetts - New Jersey

Author: Simon Isham (3L) 

Post 3 of 5

This is the 3nd post in the Dogs in Hot Cars series written by 3L Simon Isham. Enjoy! 

___________________________________________________

Massachusetts

In Massachusetts, both public officials and members of the general public can obtain criminal and civil immunity for saving a suffering animal, but the procedures are different for each class of individual.[1]

Police officers, firefighters, and animal control officers are entitled to enter a vehicle by any means necessary after using reasonable efforts to locate the vehicle's owner. The officers are entitled to enter for the sole purpose of assisting the animal and are not entitled to search the vehicle or seize other items found inside.[2] After removing the animal, the officer must leave a note in a conspicuous location on or in the vehicle bearing the officer's name, title, and the address of the location where the animal may be retrieved.[3] The owner may retrieve the animal only after paying all charges incurred in the animal's care.[4]

A person who is not a police officer, animal control officer, or firefighter has different rules to follow. To help, that person must:

  1. Have a good faith and reasonable belief, based upon known circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.
  3. Notify a law enforcement officer or call 911.
  4. Use no more force than reasonably necessary to enter the vehicle.[5] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Remain with the animal in a safe location in reasonable proximity to the vehicle until law enforcement or another first responder arrives.[6] The wording of the statute seems to allow moving the animal out of the elements and to an adjacent location that is safe for the animal, such as an air conditioned building.

The owner of the animal may be subject to a fine of up to $150 for a first offense, up to $300 for a second offense, and up to $500 for any subsequent offense.[7]

___________________________________________________

Michigan

Michigan currently has no law specifically making it a crime to leave an animal in a hot or cold car, nor does it allow members of the general public to break into a vehicle to save a suffering animal; however, a pair of bills introduced in 2016 aim to criminalize leaving an animal unattended in a vehicle in hot or cold weather.[8]

First offenders would receive a fine of up to $350 and/or up to 45 days in jail.[9] Repeat offenders would receive a fine of up to $500 and/or up to 90 days in jail.[10] If the negligent treatment results in serious harm to the animal, the maximum fine would be upped to $1,000 and up to one year in jail.[11] If the negligent treatment results in the death of the animal, up to a $5,000 fine and up to 5 years in jail.[12]

The bills have been stalled in the state legislature’s judiciary committee for more than a year now. The judiciary committee has not made any sort of decision on either bill in that time.

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Minnesota

Minnesota’s laws do not allow a member of the general public to break into a car to save a suffering dog, but they do allow people with certain jobs to do so.[13] Police officers, humane agents, "dog wardens" (a.k.a. animal control officers) or volunteer or professional firefighters may use reasonable force to enter a vehicle and retrieve a dog or cat.[14] The officer is required to use reasonable efforts to contact the owner and arrange for the animal's return home, but if the officer is unable to contact the owner, she may take the animal to a shelter.[15]

Minnesota law makes it a crime to leave a dog or cat inside a parked vehicle in a way that endangers the animal's health or safety.[16] The fine is $25.[17] This is one of the least harsh punishments for this type of behavior in the country, although the law was one of the first of its type. Additionally, the law imposes no restrictions on the owner's ability to obtain future animals.

Note: The Minnesota law only applies to dogs and cats, not to other types of animals.

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Mississippi

Mississippi currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in Mississippi can get away with animal cruelty and neglect scot-free, however. Although keeping an animal in a hot vehicle has not been specifically made a crime in Mississippi, carrying a dog or cat in a vehicle in a cruel or inhumane manner is a misdemeanor under the general animal cruelty statute.[18] Owners found in violation of this law may be fined up to $1,000 and/or imprisoned for up to 6 months.[19]

Note: Missisippi’s vehicular animal cruelty statute only applies to dogs and cats, not to other types of animals.

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Missouri

Missouri currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in Missouri can get away with animal cruelty and neglect scot-free, however. Although keeping an animal in a hot vehicle has not been specifically made a crime in Missouri, a person who fails to provide adequate care for an animal in his custody is guilty of animal neglect under Missouri law.[20] First-time violators may face fines of up to $300 and/or up to 15 days in jail.[21] Repeat offenders may face fines of up to $500 and/or up to 6 months in jail.[22] In addition, the animal may be confiscated until the owner pays any expenses incurred for the animal’s maintenance.[23]

Note: Missouri defines “animal” as “every living vertebrate except a human being,” making it one of the broadest definitions in the country, but excluding common invertebrate pets such as  jellyfish, tarantulas, or hermit crabs.

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Montana

Montana currently has no law allowing members of the public to break into a vehicle to save a suffering dog or cat. This doesn't mean that pet owners in Montana can get away with animal cruelty and neglect scot-free, however. Although keeping an animal in a hot vehicle has not been specifically made a crime in Montana, carrying or confining an animal in a cruel manner constitutes animal cruelty under Montana law.[24] First-time offenders may be fined up to $1,000 and/or imprisoned for up to one year.[25] Subsequent offenses may result in a fine of up to $2,500 and/or a sentence of 2 years.[26] The owner may also be required to forfeit possession of the animal to the county.[27] The animal may returned after the owner serves his sentence and pays for the animal's incurred care, at the discretion of the court.[28]

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Nebraska

Under current Nebraska law there is currently no law allowing a member of the general public to break a car window to save an ailing animal, and there is no law specifically criminalizing leaving a dog in a hot car. In fact, Nebraska’s animal cruelty laws are so vague that only “cruel neglect” is currently criminal, and it may or may not cover animals left in hot cars.

A bill introduced in 2016 to the Nebraska legislature proposes to give civil and criminal liability to members of the public who wish to help an ailing animal.[29] In order to retain the protection the bill proposes, a person must:

  1. Have a good faith and reasonable belief, based upon known circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal.[30]
  2. Determine that the motor vehicle is locked or there is no other reasonable means for exit.[31]
  3. Notify a law enforcement officer or call 911.[32]
  4. Use no more force than reasonably necessary to enter the vehicle.[33] In a classic scenario, this likely means breaking just one window. Breaking more than one window, kicking the fender or keying the car will cause the would-be hero to lose immunity from civil and criminal liability.
  5. Place a written notice on the windshield or driver's side door of the vehicle noting the rescuer's name, telephone number or other contact information, an explanation of why forcible entry was necessary, the location of the animal, and the fact that the authorities have been notified.[34]
  6. Remain with the animal in a safe location in reasonable proximity to the vehicle until law enforcement or another first responder arrives.[35] The wording of the statute seems to allow moving the animal out of the elements and to an adjacent location that is safe for the animal, such as an air conditioned building.

The bill also provides that a person who attempts to administer further medical care to an animal who seems to need it will not be civilly liable for further injury or death to that animal.[36] Unfortunately, this proposal has been indefinitely postponed for voting in the Nebraska legislature since April of 2016.[37]

Note: Nebraska’s definition of animal is “any vertebrate member of the animal kingdom,” however this definition is limited to exclude any uncaptured wild animal or livestock.[38]

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Nevada

In 2017, the Nevada legislature passed a new law making it a misdemeanor to allow a dog or a cat to remain unattended in a vehicle if the heat or cold could pose a danger to the animal.[39] The new law also allows for certain officials to liberate cats and dogs from hot or cold vehicles.[40] Police officers, government employees whose primary duty is to ensure public safety, officers of societies for the prevention of cruelty to animals who are authorized to make arrests, animal control officers, volunteer or professional firefighters, or members of a search and rescue organization under the supervision of a sheriff, may break into a vehicle to save a cat or dog.[41] The Nevada law is unique in that it empowers members of a search and rescue organization to take action to save an animal. The protections of this law do not apply to police dogs or dogs that are in the possession of an animal control officer, other first responder during an emergency, or dogs in the possession of a hunter.[42]

Note: The Nevada law only applies to dogs and cats, not any other type of animal.

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New Hampshire

Although members of the general public in New Hampshire are not empowered to take action when they see an animal trapped in a hot or cold car, police officers or agents of a licensed humane organization may do so.[43] New Hampshire’s law is unique because it allows agents of a licensed humane organization to take action; such agents do not need to be officers of the organization, nor do they need to be authorized to make arrests, as they do in a few other states.

In addition, the New Hampshire law provides that confining “an animal in a motor vehicle or other enclosed space in which the temperature is so high or so low as to cause serious harm to the animal” is animal cruelty.[44] Violators will be charged with a misdemeanor, for which the maximum sentence is 12 months in jail and a $2,000 fine.[45]

Note: In New Hampshire, an animal is defined as “a domestic animal, household pet, or wild animal held in captivity,”[46] which is one of the most expansive definitions of animal in the country, since it does not exclude invertebrates.

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New Jersey

New Jersey does not allow members of the general public to break into a vehicle to rescue an animal, nor does it specifically allow police officers to do so. However, the state does make it a crime to “leave the living animal or creature unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature.”[47] Those who violate this law will be fined between $500 and $2,500 and/or imprisoned for up to six months.[48] The court must also assign a sentence of 30 days of community service, and may direct that this sentence be served with an organization directed at the prevention of cruelty to animals.[49]

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[1] M.G.L.A. 140 § 174F.

[2] M.G.L.A. 140 § 174F(b).

[3] M.G.L.A. 140 § 174F(c).

[4] Id.

[5] M.G.L.A. 140 § 174F(e).

[6] Id.

[7] M.G.L.A. 140 § 174F(g).

[8] Mich. S.B.s 0930 & 0931.

[9] Mich. S.B.s 0930 at 8.

[10] Id.

[11] Id.

[12] Id.

[13] M.S.A. § 346.57.

[14] M.S.A. § 346.57(2).

[15] Id.

[16] M.S.A. § 346.57(1).

[17] M.S.A. § 346.57(3).

[18] M.C.A. § 97-41-5.

[19] M.C.A. § 97-41-16(2)(b)(i).

[20] M.C.A. § 578.009.

[21] V.A.M.S. § 578.009(2) & 557.011.

[22] Id.

[23] V.A.M.S. § 578.009(3) & (4).

[24] M.C.A. § 45-8-211(1)(b).

[25] M.C.A. § 45-8-211(2)(a).

[26] Id.

[27] M.C.A. § 45-8-211(2)(b).

[28] M.C.A. § 45-8-211(3)(a) & (c).

[29] N.L.B. 916 (2016).

[30] N.L.B. 916(1)(b) (2016).

[31] N.L.B. 916(1)(a) (2016).

[32] N.L.B. 916(1)(c) (2016).

[33] N.L.B. 916(1)(f) (2016).

[34] N.L.B. 916(1)(d) (2016).

[35] N.L.B. 916(1)(e) (2016).

[36] N.L.B. 916(2) (2016).

[37] NEBRASKA LEGISLATURE | Tʜᴇ ᴏꜰꜰɪᴄɪᴀʟ ꜱɪᴛᴇ ᴏꜰ ᴛʜᴇ Nᴇʙʀᴀꜱᴋᴀ Uɴɪᴄᴀᴍᴇʀᴀʟ LᴇɢɪꜱʟᴀᴛᴜʀᴇNᴇʙʀᴀꜱᴋᴀ Lᴇɢɪꜱʟᴀᴛᴜʀᴇ - Lᴇɢɪꜱʟᴀᴛɪᴠᴇ Dᴏᴄᴜᴍᴇɴᴛ, https://nebraskalegislature.gov/bills/view_bill.php?DocumentID=28657.

[38] N.R.S. § 28-1008(2).

[39] N.R.S. § 574.195.

[40] N.R.S. § 574.195(2).

[41] Id.

[42] N.R.S. § 574.195(2)(b)-(d).

[43] N.H.R.S. § 644:8-aa(III).

[44] N.H.R.S. § 644:8-aa(I).

[45] N.H.R.S. § 644:8-aa(II).

[46] N.H.R.S. § 644:8(II).

[47] N.J.S.A. § 4:22-17(a)(3).

[48] N.J.S.A. § 4:22-17(b)(1).

[49] N.J.S.A. § 4:22-17(e).