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! 

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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.

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 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.

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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]

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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]

___________________________________________________

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! 

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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.

___________________________________________________

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.

___________________________________________________

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.

___________________________________________________

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.

___________________________________________________

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]

___________________________________________________

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]

___________________________________________________

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.

___________________________________________________

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.

___________________________________________________

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]

___________________________________________________ 

[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).

Dogs In Hot Cars: Hawaii - Louisiana

Author: Simon Isham (3L) 

Post 2 of 5

This is the 2nd post in the Dogs in Hot Cars series written by 3L Simon Isham. Enjoy! 

Hawaii

Hawaii currently has no law specifically making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a vehicle to save a suffering animal.

This doesn't mean that pet owners in Hawaii can get away with animal cruelty and neglect scot-free, however. Although Hawaii’s animal cruelty laws do not specifically address an animal’s need for adequate temperature regulation and ventilation, failure to provide these necessities to a pet likely meets the statutory definitions of “torment” and “torture.” “Torment” is defined as an owner’s failure “to attempt to mitigate substantial bodily injury” to the animal, and “torture” is defined as “every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted.”[1]

A person who torments or tortures an animal may be charged with cruelty to animals in either the first or second degree depending on whether the animal dies.[2] Animal cruelty is punishable by a fine of up to five years imprisonment and a fine of up to $10,000.[3] Notably, If the animal does not die, Hawaii’s animal cruelty statutes do not restrict a neglectful pet owner’s right to own future animals; however, if the animal does die, then the owner will be restricted from owning any animal for five years.

Although members of the public are not empowered to intervene with a suffering animal trapped in a hot car, a police officer is.[4] A police officer who has probable cause to believe an animal is suffering may enter the vehicle in order to remove the animal and provide it with any necessary veterinary care.[5] The officer is required to post a notice of where the animal was taken conspicuously on the vehicle.[6]

___________________________________________________

 Idaho

Idaho 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 Idaho can get away with animal cruelty and neglect scot-free, however. Carrying an animal in a vehicle in a cruel or inhumane manner is a misdemeanor in Idaho,[7] and state police have used this law against those who leave dogs in hot cars in the past.[8] Those charged for the first time with animal cruelty can expect to face up to six months in prison and/or a fine of between $100 and $5,000.[9] Those charged with a second violation can be fined from $200 to $7,000, and/or imprisoned for up to 9 months.[10] Those charged with a third violation can be fined between $500 and $9,000, and/or imprisoned for up to one year.[11] Notably, Idaho’s animal cruelty statutes do not restrict a neglectful pet owner’s right to own future animals.

Although members of the public are not empowered to intervene with a suffering animal trapped in a hot car, a police officer is.[12] A police officer may take possession of the neglected animal and seek veterinary treatment for the animal, if necessary.[13] The animal’s owner will then be responsible for all costs associated with the animal’s care.[14]

Note: Representatives of the Idaho state Department of Agriculture, Division of Animal Industries are entitled to break into a vehicle to save a suffering animal as well, but may themselves call upon law enforcement to assist if they wish.[15]

___________________________________________________

Illinois

In Illinois, it is a felony to confine any animal in a motor vehicle in such a manner that places it in a life- or health-threatening situation by exposure to a prolonged period of extreme heat or cold, without proper ventilation or other protection from such heat or cold.[16] Although members of the general public may not break into a car to liberate an animal from the heat or cold, a police officer, animal control officer, or investigator from the state Department of Agriculture may do so.[17] Unlike in many states, firefighters are not specifically empowered to intervene in this way under the law.

A first-time offender may be imprisoned for up to 30 days and fined up to $1,500.[18] A repeat offender may be imprisoned for up to 180 days and fined up to $1,500.[19] Unlike in many states, Illinois pet owners are not restricted from owning or possessing future animals after violating this law.

Note: The Illinois law contains one of the broadest definitions of animal, comprising “every living creature, domestic or wild,” but not including humans.[20] This is contrary to many jurisdictions, where fish, livestock, and wildlife are not considered animals for the purposes of “hot car” laws.

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Indiana

In 2017, the Indiana legislature passed a new law which grants criminal and limited civil immunity to a person who breaks into a hot car to save a suffering animal.[21] In order to qualify for these immunities, a person must follow the following procedure:

  1. The person must have a reasonable belief that the animal is in imminent danger of harm if it is not removed from the vehicle.[22]
  2. The person must determine that the doors of the vehicle are in fact locked, that no windows are rolled down, and that there is no other reasonable means of liberating the animal from the hot (or cold) car except to break the window.[23]
  3. The person must call 911 or make an attempt to contact a police officer, a firefighter, an animal control officer, or another emergency responder before attempting to enter the vehicle.[24] The Indiana law requires that the person make a reasonable attempt to contact one of the above listed emergency responders, but does not require that an emergency responder actually show up on the scene at any point. Thus, even if an emergency responder is unavailable to respond, a member of the public may still enter a vehicle to save a suffering animal.
  4. The person must use no more force than is reasonably necessary to enter the vehicle.[25] 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. The person must remain with the animal until a law enforcement officer, firefighter, animal control officer, or other emergency responder arrives at the scene.[26] 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.

Indiana’s law is unique because although it authorizes breaking and entering into a vehicle, it also requires that the person breaking in pay to the owner or lessor of the vehicle half of the cost of repairing the vehicle.[27] The law also provides that the owner of the vehicle may waive the person’s obligation to pay.[28] The obligation to pay does not extend to police officers, firefighters, government employees whose primary job is to ensure public safety, animal control officers, veterinarians licensed in Indiana, veterinary assistants, and other emergency responders who might break into a vehicle to save an animal.[29]

Indiana’s law is also unique because it creates an immunity for the owner of the animal if the animal injures a person (for example, by biting them) during the course of its removal from the vehicle.[30]

Note: Indiana’s law only applies to dogs, cats, and other “vertebrate animals … intended to be kept as a household pet.” [31] The law specifically excludes livestock[32] and invertebrate pets such as jellyfish, tarantulas, or hermit crabs.

___________________________________________________

Iowa

Iowa 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 Iowa 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 Iowa, police are able to use the existing statutes on animal neglect[33] and animal torture[34] to cite negligent pet owners.[35] Such owners may be fined between $65 and $625 and/or serve up to 30 days in jail if the animal survives.[36] If the animal does not survive, the owner may be fined between $315 and $1,875, and imprisoned for up to one year.[37]

Although members of the public are not empowered to intervene with a suffering animal trapped in a hot car, a police officer is.[38] A police officer may take possession of the neglected animal, if necessary.[39] The animal’s owner will then be responsible for all costs associated with the animal’s care.[40] An animal that is too threatened to be returned to its owner will be euthanized.[41]

Note: Although the Iowa animal cruelty laws broadly define animals as nonhuman vertebrates, this definition is limited by excluding livestock, game animals, fish, reptiles, amphibians, pests, and "fur-bearing" animals.[42] The qualification of “fur-bearing” is not further defined in the Iowa animal cruelty laws, but is defined elsewhere in the Iowa Code to refer to animals commonly hunted or farmed for their pelts. The qualification of “vertebrates” also excludes from protection some common invertabrate pets such as jellyfish, tarantulas, or hermit crabs.

___________________________________________________

Kansas

Kansas currently has no law making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a car to save an animal.

This doesn't mean that pet owners in Kansas can get away with animal cruelty and neglect scot-free, however. Kansas’s animal cruelty statute defines animal cruelty as “knowingly abandoning any animal in any place without making provisions for its proper care; [] having physical custody of any animal and knowingly failing to provide such food, potable water, protection from the elements, opportunity for exercise and other care as is needed for the health or well-being of such kind of animal...”[43] A first time offender may serve one year or less in jail.[44] A repeat offender must serve a minimum sentence of five days in jail with a maximum sentence of one year, and must pay a fine between $500 and $2,500.[45] Notably, Kansas’s animal cruelty statutes do not restrict a neglectful pet owner’s right to own future animals — only the rights of owners convicted of intentional cruelty.[46]

 

Note: The Kansas law contains one of the broadest definitions of animal, comprising “every living vertebrate except a human being.”[47] This is contrary to many jurisdictions, where fish, livestock, and wildlife are not considered animals for the purposes of “hot car” laws. The qualification of “vertebrates” also excludes from protection some common invertabrate pets such as jellyfish, tarantulas, or hermit crabs.

___________________________________________________

Kentucky

Kentucky currently has no law on the books allowing members of the public to break into a car to save an animal, but that could soon change. In late 2017, a bill was introduced in the Kentucky legislature that would give civil immunity to a person who rescues a domestic animal from a hot vehicle.[48] The law will be presented for a vote during the 2018 legislative session.[49] If it passes, the bill would grant a rescuer civil immunity if they followed this procedure:

  1. Have a reasonable, good faith belief, based upon the circumstances known to the person at the time, that entry into the vehicle is necessary because the domestic animal is in imminent danger of physical injury if not immediately removed from the vehicle.[50]
  2. Contact a police officer, a firefighter, or call 911.[51] The Kentucky bill allows for firefighters to respond to the scene, unlike some states, but does not specifically allow for animal control officers to do so, unlike some others.
  3. Use no more force than reasonably necessary to enter the vehicle.[52] 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.
  4. Remains with the domestic animal in a safe location, out of the elements, but reasonably close to the vehicle, until law enforcement, firefighters, or other emergency responders arrive.[53] The wording of the statute seems to allow moving the animal to an adjacent location that is safe for the animal, such as an air conditioned building.
  5. If the rescuer reasonably determines that emergency conditions require leaving the scene with the minor or domestic animal, the rescuer must place written notice on the vehicle containing the rescuer's contact information, the reason entry into the vehicle was made, the location of the domestic animal, and notice that authorities have been contacted.[54] The wording of the Kentucky bill is important on this point because it places a large amount of discretion in the hands of the rescuer about whether the parties need to leave the scene, and for what reasons. The obvious reason is that the animal might need medical care for symptoms of heat stroke, but another possible reason that the bill does not foreclose is natural disasters that might make it unsafe for the parties to remain at the vehicle.

Under current Kentucky law, bystanders must contact law enforcement or animal control officers and wait for them to arrive in order to help an animal in need.[55]

___________________________________________________

Louisiana

Louisiana currently has no law making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a car to save an animal.

This doesn't mean that pet owners in Louisiana can get away with animal cruelty and neglect scot-free, however. Louisiana’s animal cruelty statute, among other things, prohibits carrying an animal in a vehicle in a cruel or inhumane way,[56] and “Mistreats any living animal by any act or omission whereby unnecessary or unjustifiable physical pain, suffering or death is caused to or permitted upon the animal.”[57]

A first-time offender may be punished by a maximum of six months imprisonment and/or a maximum fine of $1,000.[58] A subsequent offense will come with a fine of between $5,000 and $25,000, and/or a sentence "with or without hard labor" for between one and ten years.[59] A subsequent offender will also be ordered to complete 40 hours of community service,[60] and must complete a psychological evaluation.[61] Although Louisiana’s laws do not specifically allow for the rescue of struggling animals by members of the public, they do allow for rescue by police officers,[62] and the punishments for animal cruelty are among the harshest in the nation, especially for repeat offenders. In addition, Louisiana restricts those convicted of animal cruelty from owning or possessing any animals for “a length of time deemed appropriate by the court.”[63]

___________________________________________________

[1] Haw. Rev. Stat. § 711-1100.

[2] Haw. Rev. Stat. §§ 711-1108.5, 711-1109

[3] Haw. Rev. Stat. §§ 706-640, 706-660.

[4] Haw. Rev. Stat. § 711-1109.1.

[5] Haw. Rev. Stat. § 711-1109.1(1).

[6] Id.

[7] I.C. § 25-3505.

[8] Journal Staff, Pᴏʟɪᴄᴇ ᴅᴇᴄʟᴀʀᴇ ᴢᴇʀᴏ ᴛᴏʟᴇʀᴀɴᴄᴇ ᴘᴏʟɪᴄʏ ʀᴇɢᴀʀᴅɪɴɢ ᴅᴏɢꜱ ʟᴇꜰᴛ ɪɴ ʜᴏᴛ ᴄᴀʀꜱ ꜰᴏʟʟᴏᴡɪɴɢ ᴄᴀɴɪɴᴇ'ꜱ ᴅᴇᴀᴛʜ, Iᴅᴀʜᴏ Sᴛᴀᴛᴇ Jᴏᴜʀɴᴀʟ (2017), http://idahostatejournal.com/news/local/police-declare-zero-tolerance-policy-regarding-dogs-left-in-hot/article_df8a0cf6-742d-5e8f-9cb1-b3af1fa86842.html.

[9] I.C. § 25-3520A(1).

[10] I.C. § 25-3520A(2).

[11] I.C. § 25-3520A(3).

[12] I.C. §§ 25-3504, 25-3519.

[13] I.C. § 25-3504.

[14] I.C. § 25-3520B.

[15] I.C. § 25-3501.

[16] 510 ILCS 70 § 7.1.

[17] Id.

[18] 510 ILCS 70 § 7.1 and 730 ILCS 5 § 5-4.5-65.

[19] 510 ILCS 70 § 7.1 and 730 ILCS 5 § 5-4.5-60.

[20] 510 ILCS 70 § 2.01.

[21] Indiana General Assembly, Hᴏᴜꜱᴇ Bɪʟʟ 1085 - Rᴇꜱᴄᴜᴇ ᴀᴄᴛɪᴏɴꜱ Iɴᴅɪᴀɴᴀ Gᴇɴᴇʀᴀʟ Aꜱꜱᴇᴍʙʟʏ, https://iga.in.gov/legislative/2017/bills/house/1085#document-70481d70.

[22] I.C. 34-30-30-3(b)(1).

[23] I.C. 34-30-30-3(b)(2).

[24] I.C. 34-30-30-3(b)(3).

[25] I.C. 34-30-30-3(b)(4).

[26] I.C. 34-30-30-3(b)(5).

[27] I.C. 34-30-30-3(a).

[28] Id.

[29] I.C. 34-30-30-3(c).

[30] I.C. 34-30-30-4.

[31] I.C. 34-30-30-1(a).

[32] I.C. 34-30-30-1(a).

[33] I.C.A. § 717B.3.

[34] I.C.A. § 717B.3.A.

[35] Dog Escapes Hot Car, Owner Gets Animal Neglect Citation, ᴡʜᴏᴛᴠ.ᴄᴏᴍ (2017), http://whotv.com/2017/07/21/dog-escapes-hot-car-owner-gets-animal-neglect-citation/.

[36] I.C.A. § 717B.3.3 and I.C.A. § 903.1.

[37] Id.

[38] I.C.A. § 717B.5.

[39] I.C.A. § 717B.4.

[40] Id.

[41] Id.

[42] I.C.A. § 717B.1.

[43] K.S.A. § 21-6412.

[44] K.S.A. § 21-6412(b)(2)(A) and K.S.A. § 21-6602(1).

[45] K.S.A. § 21-6412(b)(2)(B).

[46] K.S.A. § 21-6415.

[47] K.S.A. § 21-6411.

[48] 18 RS BR 164 (2017).

[49] Id.

[50] 18 RS BR 164(1)(a) (2017).

[51] 18 RS BR 164(1)(b) (2017).

[52] 18 RS BR 164(1)(c) (2017).

[53] 18 RS BR 164(1)(d)(1) (2017).

[54] 18 RS BR 164(1)(d)(2) (2017).

[55] KRS § 436.605.

[56] L.S.A.-R.S. § 102.1 (A)(1)(f).

[57] L.S.A.-R.S. § 102.1 (A)(1)(i).

[58] L.S.A.-R.S. § 102.1 (A)(2)(a).

[59] L.S.A.-R.S. § 102.1 (A)(2)(b).

[60] L.S.A.-R.S. § 102.1 (A)(2)(c).

[61] L.S.A.-R.S. § 102.1 (A)(2)(d).

[62] L.S.A.-R.S. § 102.3.

[63] L.S.A.-R.S. § 102.1 (A)(2)(b).

Dogs In Hot Cars: Alabama-Georgia

Author: Simon Isham

Post 1 of 5.

Happy New Year everyone! This month, our JAEL Blog will feature a series written by 3L journal member Simon Isham. Simon's series dives into each states' laws regarding dogs being left in hot cars and the corresponding legal questions. The series consists of (5) blog posts running from today until the end of the month. Simon has broken up the states alphabetically and the blog posts follow ABC order. Be sure to check back weekly to read! 

Ultimately, the series will answer the following questions for each state:

  1. Can the dog be removed from the car?

    1. Is it legal in each state for a civilian to break into another person’s car in order to save a hot dog? If so, what steps must they follow? How do these steps differ among states?

    2. If not, is there anybody a civilian can call (e.g. police) who is empowered to break into the car? How do these authorized individuals differ among states?

  2. If not, can the owner be held accountable?

    1. If not, is leaving a dog in a hot car specifically made criminal in that state? If so, what is the punishment for violation? How do the punishments differ among states?

    2. If not, is there any other statute under which a person who leaves a dog in a hot car can be punished? How do the punishments differ among states?

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Alabama

Alabama currently has no law making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a car to save an animal; however, in April 2017, House Bill 524[1] proposed to change this.

Although the law was indefinitely tabled in May,[2] if it does pass, it will allow civil immunity for those who break into a vehicle to save a suffering animal (or child). The bill specifically applies to "domestic animals," so those hoping to rescue a deer or a squirrel are not be protected; however, those wishing to help dogs, cats, and other pets would be immune from criminal and civil liability[3] so long as they:

  1. Have a good faith belief that the animal is in imminent danger of suffering physical injury or death unless it is removed from the vehicle.[4]
  2. Determine that the vehicle is locked and that forcible entry is necessary to enable the animal to be removed from the vehicle.[5]
  3. Notify the police, an Emergency Medical Service Provider, or Animal Control of the situation.[6] The Alabama bill does not specifically authorize the fire department to respond to this type of emergency.
  4. Do not use more force than he or she reasonably believes necessary under the circumstances to enter the vehicle and remove the animal.[7] 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. Wait with the animal until the emergency responder contacted in step 3 arrives at the vehicle.[8] The Alabama bill does not specifically allow, as some other states do, for the rescuer to move the animal out of the elements and away from the vehicle.
  6. Leave a note for the owner of the vehicle.[9] 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, reason the vehicle was broken into, and the location, if known, of the animal.

Note: The Alabama bill specifically excludes livestock.[10]

Note 2: This is still a proposed law and is not yet effective in Alabama.

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Alaska

Alaska currently has no law specifically making it a crime to leave an animal in a hot (or cold!) car, nor does it have a law allowing members of the public—to break into a car to save an animal.

This doesn't mean that pet owners in Alaska can get away with animal cruelty and neglect scot-free, however. Alaska's animal cruelty statutes establish a minimum standard of care for animals, including a requirement that the owner provide "an environment compatible with protecting and maintaining the good health and safety of the animal."[11] An owner who fails to provide such an environment can be convicted of animal cruelty, which is a Class C felony, and can be restricted from owning any animals for a period of 10 years.[12]

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Arizona

Arizona's animal protection laws were updated in May of 2017 to allow for members of the general public to break into a vehicle to save a suffering animal (or a child).[13] The law specifically applies to "domestic animals," so those hoping to rescue a deer or a squirrel are not be protected; however, those wishing to help dogs, cats, and other pets[14] will be immune from criminal and civil liability so long as they:

  1. Have a good faith belief that the animal is in imminent danger of suffering physical injury or death unless it is removed from the vehicle.[15]
  2. Determine that the motor vehicle is locked and unattended, and that there is no reasonable manner in which the person can remove the animal from the vehicle besides breaking in.[16]
  3. Notify the police, an Emergency Medical Service Provider, or Animal Control of the situation.[17] The Arizona law does not specifically authorize the fire department to respond to this type of emergency.
  4. Do not use more force than is reasonably necessary under the circumstances to enter the vehicle and remove the animal.[18] 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. Wait with the animal until the emergency responder contacted in step 3 arrives at the vehicle.[19] The Arizona law does not specifically allow, as some other states do, for the rescuer to move the animal out of the elements and away from the vehicle.

___________________________________________________

Arkansas

Arkansas currently has no law making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a car to save an animal.

This doesn't mean that pet owners in Arkansas can get away with animal cruelty and neglect scot-free, however. Alaska's animal cruelty statutes make it crime for a person to carry "in or upon any motorized vehicle or boat an animal in a cruel or inhumane manner."[20] A person found guilty of this offense faces a fine of up to $1,000, up to a year in prison, and must undergo psychiatric evaluation and counseling.[21]

Notably, Aranksas’ animal cruelty statutes do not restrict a neglectful pet owner’s right to own future animals.

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California

Prior to January, 2017, only police officers and animal control officers were permitted to "use all steps reasonably necessary to remove an animal from a motor vehicle" when the animal was in danger from a specific threat, such as heat, cold, lack of food, or lack of adequate ventilation.[22] Those officers were required to take the animal to an animal shelter or animal hospital for safekeeping and/or treatment, and to leave a note for the owner stating where the animal could be claimed.[23] The owner could only claim the animal after the owner paid all charges associated with the animal's treatment and care.[24]

As of this year, the above requirements were modified to allow members of the general public to break into a vehicle without civil or criminal liability so long as the following actions are taken, in this order:

  1. The person must reasonably believe that immediate action is necessary to prevent harm to the animal.[25] Although not specifically required by the statute for members of the general public, the would-be rescuer should make a reasonable effort to locate the animal's owner first if the animal does not appear to be suffering. This step is required of police and other emergency responders.
  2. The person must determine that the doors of the vehicle are in fact locked, that no windows are rolled down, and that there is no other reasonable means of liberating the animal from the hot (or cold) car except to break the window.[26]
  3. The person must contact law enforcement, the fire department, animal control, or 911 dispatch prior to breaking into the vehicle.[27]
  4. The person must use no more force than reasonably necessary to enter the vehicle and remove the animal.[28] 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. The person must wait with the animal in a safe location until emergency responders arrive.[29] This location may be just outside the vehicle, in the rescuer's vehicle, under the shade of a tree or inside of a nearby building. When choosing a location to wait with the animal, the rescuer should consider places with a view of the owner's vehicle and the arrival of emergency responders.
  6. When law enforcement, the fire department, animal control, or other emergency responders arrive at the scene, the rescuer must immediately turn the animal over to them. [30]

Note: The California law specifically excludes livestock if the animals are in a vehicle that is specifically designed for the transportation of livestock.[31]

___________________________________________________

Colorado

Earlier this year, the Colorado legislature passed a law allowing members of the public to break into a car to save an animal without criminal or civil liability. In order to take advantage of the immunity offered under the law, the following requirements must be satisfied:

  1. The animal must be a cat or a dog.[32] Other pets, such as ferrets or parakeets, as well as livestock animals, are not protected under this law.
  2. The vehicle cannot be a law enforcement vehicle.[33] Even police K-9's can be forgotten or neglected in hot cars. Since 2012, animal rights group PETA has kept track of deaths and injuries of working dogs left in unattended vehicles. Last year, it announced that this number was increasing.[34] Still, in order to take advantage of the immunity the Colorado law offers, would-be rescuers should make certain that the vehicle is not a marked or unmarked police car.
  3. The person must have a reasonable belief that the animal is in imminent danger of death or serious bodily injury.[35]
  4. The person must determine that the vehicle is locked and that forcible entry is necessary.[36]
  5. The person must make a reasonable effort to locate the owner or operator of the vehicle, and must write down the color, make, model, license plate number and location of the vehicle.[37]
  6. The person must contact local police, the fire department, animal control, or a 911 operator prior to forcibly entering the vehicle.[38] The person must obey all orders from law enforcement personnel, even if those orders are to refrain from entering the vehicle until the police arrive.
  7. The person must not use more force than he or she reasonably believes necessary to enter the vehicle and remove the animal.[39]
  8. The person must remain with the animal "reasonably close to the vehicle" until the emergency responder arrives.[40] The Colorado law does not specifically allow, as some other states do, for the rescuer to move the animal out of the elements.
  9. If the person must leave the scene before the owner of the vehicle returns, or before the emergency responder arrives, the person must place a note on the windshield of the vehicle including his or her name, contact information, and the name and contact information of the location to which the person took the animal. The person must also contact the emergency responder service contacted in step 6 and inform them of his or her name, contact information, that he or she is leaving the scene, and the location to which he or she is taking the animal.[41] This law, unlike those of many states, allows for the possibility that the animal is in critical condition and requires immediate medical attention that a police officer, firefighter, or emergency medical technician is not trained to provide to an animal. Therefore, after leaving a note on the windshield of the owner's car and updating the en-route emergency responder to the situation, the rescuer is authorized to bypass the usual protocol and transport the suffering animal to a veterinary facility.

Note: The Colorado Law only applies to cats and dogs, and specifically does not include livestock.[42]

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Connecticut

Connecticut currently has no law making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a car to save an animal.

This doesn't mean that pet owners in Connecticut can get away with animal cruelty and neglect scot-free, however. In Connecticut, a person is guilty of animal cruelty if he "fails to provide it with proper food, drink or protection from the weather."[43] Animal cruelty is punishable by a fine of up to $5,000 and up to five years in prison.[44]

Notably, Connecticut’s animal cruelty statutes do not restrict a neglectful pet owner’s right to own future animals.

___________________________________________________

Delaware

In Delaware, it is a felony to leave an animal in a car that is so hot or cold that the temperature might cause injury to the animal.[45] Although members of the general public may not break into a car to liberate an animal from the heat or cold, a police officer, firefighter, or animal control officer may do so.[46] After attempting to contact the owner, the officer must leave a note bearing his name, contact information, and the address of the location where the animal can be claimed.[47] The officer can then take the animal to a veterinary facility.[48]

If the animal lives, the owner's first offense of this kind is punishable by a warning.[49] Punishment of any subsequent offenses depends on whether the animal lives or dies. If the animal lives, the owner will be prohibited from owning any animal for five years and will face a fine of $1,000.[50] If the animal dies, the owner will be prohibited from owning any animal for 15 years and a fine of $5,000.[51]

Note: The Delaware law specifically excludes livestock if the animals are in a vehicle that is specifically designed for the transportation of livestock.[52] Fish, mollusks, and crustaceans being transported in any type of vehicle are also excluded.[53]

___________________________________________________

Florida

In early 2016, the Florida legislature passed a law granting immunity from civil liability to persons who break into vehicles to save suffering animals. The law specifically applies to "domestic animals," so those hoping to rescue a deer or a squirrel are not be protected.[54] Those wishing to help dogs, cats, and other domesticated household pets must:

  1. Have a good faith and reasonable belief, based upon the known circumstances, that entry into the motor vehicle is necessary because the animal is in imminent danger of suffering harm.[55]
  2. Determine that the motor vehicle is locked or there is otherwise no reasonable method for the animal to be removed.[56]
  3. Call 911 and notify police dispatch of the situation.[57] Unlike most other "good Samaritan" laws, Florida's statute allows a person to break into a car before calling the police, so long as they do so immediately after removing the animal. The Florida statute only specifically addresses informing law enforcement, and does not weigh in on whether calling a firefighter or animal control would suffice.
  4. Use no more force to enter the motor vehicle and remove the vulnerable person or domestic animal than is necessary.[58] 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 police arrive.[59] 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.

Note: The Florida law specifically excludes livestock.[60]

___________________________________________________

Georgia

Georgia currently has no law making it a crime to leave an animal in a hot car, nor does it have a law allowing members of the public to break into a car to save an animal.

This doesn't mean that pet owners in Georgia can get away with animal cruelty and neglect scot-free, however. Georgia’s animal cruelty statute makes it a crime to fail “to provide to such animal adequate food, water, sanitary conditions, or ventilation that is consistent with what a reasonable person of ordinary knowledge would believe is the normal requirement and feeding habit for such animal's size, species, breed, age, and physical condition.”[61] If the neglect was accidental and this is the owner’s first offense, the owner may be fined up to $1,000 or jailed for up to one year.[62] If the neglect was intentional or the owner has one prior unintentional offense, the owner may be fined up to $15,000 and imprisoned between one and five years.[63] If the owner has prior intentional offenses, the owner may be fined up to $100,000 and imprisoned between one and ten years.[64] The increasing punishments for repeat offenders make Georgia’s animal cruelty statute among the most severe in the nation. Notably, Georgia’s animal cruelty statutes do not restrict a neglectful pet owner’s right to own future animals.

Note: The Georgia statute does not include fish or “any pest that might be exterminated or removed from a business, residence, or other structure.”[65] The Georgia statute does not provide clarity on animals, such as mice, that can sometimes fall into the category of “pets” and sometimes into the category of “pests,” depending on context. This problem does not exist with goldfish, for example, because the statute categorically excludes “fish.”

___________________________________________________

 

[1] Alabama House Bill 524 (2017).

[2] Oᴘᴇɴ Sᴛᴀᴛᴇꜱ, https://openstates.org/al/bills/2017rs/HB524/ (last visited Sep 12, 2017).

[3] Alabama H.B. 524 at § 1(a)(1).

[4] See supra at § 1(b)(1).

[5] See supra at § 1(b)(2).

[6] See supra at § 1(b)(3).

[7] See supra at § 1(b)(5).

[8] See supra at § 1(b)(4).

[9] See supra at § 1(c).

[10] See supra at § 1(a)(1).

[11] A.S. § 03.55.100(a)(2).

[12] A.S. § 11.61.140(h).

[13] A.R.S. § 12-558.02.

[14] A.R.S. § 12-558.02(C).

[15] A.R.S. § 12-558.02(A)(1).

[16] A.R.S. § 12-558.02(A)(2).

[17] A.R.S. § 12-558.02(A)(3).

[18] A.R.S. § 12-558.02(A)(4).

[19] A.R.S. § 12-558.02(A)(5).

[20] A.C.A. § 5-62-103(6).

[21] A.C.A. § 5-62-103.

[22] California Assembly Bill No. 797 (2016).

[23] Id.

[24] Id.

[25] Cal. Pen. Code § 597.7(b)(2)(B).

[26] Cal. Pen. Code § 597.7(b)(2)(A).

[27] Cal. Pen. Code § 597.7(b)(2)(C).

[28] Cal. Pen. Code § 597.7(b)(2)(E).

[29] Cal. Pen. Code § 597.7(b)(2)(D).

[30] Cal. Pen. Code § 597.7(b)(2)(F).

[31] Cal. Pen. Code § 597.7(f).

[32] C.R.S.A. § 13-21-108.4(1)(a).

[33] C.R.S.A. § 13-21-108.4(2)(a).

[34] Kevin Johnson, Pᴏʟɪᴄᴇ K-9ꜱ ɪɴᴄʀᴇᴀꜱɪɴɢʟʏ ᴅʏɪɴɢ ɪɴ ʜᴏᴛ ᴄᴀʀꜱ, USA Today (2016), https://www.usatoday.com/story/news/nation/2016/10/05/police-k-9-dogs-deaths-hot-cars/91475906/ (last visited Sep 12, 2017).

[35] C.R.S.A. § 13-21-108.4(2)(b).

[36] C.R.S.A. § 13-21-108.4(2)(c).

[37] C.R.S.A. § 13-21-108.4(2)(d).

[38] C.R.S.A. § 13-21-108.4(2)(e).

[39] C.R.S.A. § 13-21-108.4(2)(f).

[40] C.R.S.A. § 13-21-108.4(2)(g)(I).

[41] C.R.S.A. § 13-21-108.4(2)(g).

[42] C.R.S.A. § 13-21-108.4.

[43] C.G.S.A. § 53-247(a).

[44] C.G.S.A. § 53-247(c).

[45] Del.C. 11, § 1325(b)(6).

[46] Id.

[47] Id.

[48] Id.

[49] Del.C. 11, § 1325(g).

[50] Del.C. 11, § 1325(c).

[51] Del.C. 11, § 1325(d).

[52] Del.C. 11, § 1325(b)(6).

[53] Del.C. 11, § 1325(a)(2).

[54] F.S.A. § 768.139(1)(a).

[55] F.S.A. § 768.139(2)(b).

[56] F.S.A. § 768.139(2)(a).

[57] F.S.A. § 768.139(2)(c).

[58] F.S.A. § 768.139(2)(d).

[59] F.S.A. § 768.139(2)(e).

[60] F.S.A. § 768.139(1)(a).

[61] Ga. Code Ann., § 16-12-4(b)(2).

[62] Ga. Code Ann., § 16-12-4(c) and 17-10-3(a)(1).

[63] Ga. Code Ann., § 16-12-4(e).

[64] Id.

[65] Ga. Code Ann., § 16-12-4(a)(1) and (16-12-4(d)(5).

 

What is art?

What is Art?

By: Sarah Ortkiese

On September 25, 2017, the Guggenheim Museum in New York City, New York issued a statement on an upcoming art exhibition, “Art and China after 1989: Theater of the World.”[1] The Guggenheim statement included, “Out of concern for the safety of its staff, visitors, and participating artists, the Solomon R. Guggenheim Museum has decided against showing the art works of the Dogs That Cannot Touch Each Other (2003), Theater of the World (1993), and A Case Study of Transference (1994).”[2]  These three pieces in questions received backlash from the community in a form of an online petition containing about 750,000 signatures citing that the pieces depicted animal cruelty.[3] The pieces all display animals conforming to human desires, no matter the potential harm that may be done to them.

The first piece in question, Dogs That Cannot Touch Each Other (2003), is a seven-minute video showing pit bulls tethered to a non-motorized treadmill, facing each other, in an attempt to get the dogs to engage with one another.[4] The pit bulls will never reach one another as the treadmill and the tethering prevented the dogs from moving forward; instead the pit bulls ended up exhausting themselves due to the strenuous activity of running at something they will never catch.[5]

The second piece removed from the collection was Theater of the World (1993).[6] Theater of the World (1993) consists of a clear dome perched on table.[7] The dome is well lit and contains reptiles and insects, such as snakes, lizards and crickets, to name a few.[8] The insects and reptiles are left to battle each other during the course of the exhibit, and it is acknowledged that not all of those put into the dome at the beginning of the exhibit will survive until the end.[9]

The third and final piece removed from “Art and China after 1989: Theater of the World” was A Case Study of Transference 1994).[10] This piece depicts two pigs covered in Chinese and Roman characters.[11] This piece is a video, similar to the Dogs That Cannot Touch Each Other (2003), but instead of showing animals attempting to fight one another, A Case Study of Transference (1994) shows a boar and a sow mating before spectators.[12]

The backlash from the community on these three controversial pieces in the collection extended beyond the online petition, various groups, such as People for The Ethical Treatment of Animals (PETA) and the American Kennel Club spoke out in condemnation of these pieces.[13] PETA supported the removal of the three artworks as they are animal cruelty instead of art, but PETA also stressed the fact that removing these pieces might be the awareness Chinese artists need to no longer use animals in such a cruel way.[14] The American Kennel Club outlined that in no such circumstances is Dog fighting art, in reference to Dogs That Cannot Touch Each Other (2003), and went onto denounce animal cruelty as a form of art.[15] Many citizens took to social media, such as Twitter, to sound off against the Guggenheim Museum for supporting and wanting to display what they believed to be depictions of animal cruelty. Those in support of the Dogs That Cannot Touch Each Other (2003), took the stance that dogs used in the video are by nature aggressive and the acts that the dogs are performing in the video does not amount to animal abuse.[16]

“Art and China after 1989: Theater of the World” was displayed in Canada in 2007, and it too decided to remove animals from the Theater of the World (1993).[17] The artist of the piece, Huang Yong Ping, expressed disappointment in Canada’s decision to remove the animals stating that, “They completely ignored the concept. . .citing so-called ‘animal rights’ that violently interfere with the rights of an art work to be freely exhibited in a museum.”[18] Another artist expressed in reference to the decision that the Guggenheim made, that it is wrong that a museum cannot use its free speech.[19] But are depictions of animal cruelty protected speech under the First Amendment of the United States Constitution? According to the Supreme Court Case, United States v. Stevens, depictions of animal cruelty are unprotected speech by the First Amendment.[20] The case analyzed 18 U.S.C. § 48, which banned the creation, sale, possession or depiction of animal cruelty, the statute did not address any underlying acts of animal cruelty that went into the creation of the video.[21] During the course of analyzing the constitutionality of the statue, the Supreme Court held, that depictions of animal cruelty were not one of the areas of speech traditionally protected by the First Amendment, and that there is not historical evidence showing that depictions of animal cruelty should be added to the list of protected speech.[22] Unprotected by the First Amendment means that there can be limitations on the speech as long as those limitations meet certain criteria outlined by the Supreme Court.[23] For example, In United States v. Stevens, the statute 18 U.S.C. § 48 was declared overbroad by the Supreme Court meaning that the law had the effect of reaching beyond its targeted conduct.[24]

Should anything categorized as “art” be protected by the First Amendment as an expression of free speech? Or should the “art” be broken down into what the piece is truly depicting, such as cruelty to animals, and banned? If acts such as mentioned above are included in the definition of “art” do we still want to call it “art” or does it become something more or less because we are allowing in depictions of cruel acts? Do we as a society want the art world to be taken advantage of as a place to create and distribute disturbing pieces on the grounds that is an expression of free speech? It is a situation that came to light this past fall at the Guggenheim Museum, and showed the deep divide amongst artists and patrons alike.

[1] Statement Regarding Works in “Art and China after 1989: Theater of the World”, Guggenheim, https://www.guggenheim.org/press-release/works-in-art-and-china-after-1989-theater-of-the-world (last visited Nov.1, 2017)

[2] Statement Regarding Works in “Art and China after 1989: Theater of the World”, Guggenheim, https://www.guggenheim.org/press-release/works-in-art-and-china-after-1989-theater-of-the-world (last visited Nov.1, 2017)

[3] Art and China After 1989 at the Guggenheim – disturbing and disorienting, Financial Times, https://www.ft.com/content/919bbdc6-b02d-11e7-8076-0a4bdda92ca2 (last visited Nov. 1, 2017); Art or animal cruelty? Guggenheim pulls display of live reptiles fighting for survival. Washington Post, https://www.washingtonpost.com/news/morning-mix/wp/2017/09/27/art-or-animal-cruelty-guggenheim-pulls-display-of-live-reptiles-fighting-for-survival/?utm_term=.e87d350bdea4 (last visited Nov. 1, 2017)   

[4] Guggenheim Museum Is Criticized for Pulling Animal Artworks, The New York Times, https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html (last visited Nov. 1, 2017); Art or animal cruelty? Guggenheim pulls display of live reptiles fighting for survival. Washington Post, https://www.washingtonpost.com/news/morning-mix/wp/2017/09/27/art-or-animal-cruelty-guggenheim-pulls-display-of-live-reptiles-fighting-for-survival/?utm_term=.e87d350bdea4 (last visited Nov. 1, 2017)   

[5] Art or animal cruelty? Guggenheim pulls display of live reptiles fighting for survival. Washington Post, https://www.washingtonpost.com/news/morning-mix/wp/2017/09/27/art-or-animal-cruelty-guggenheim-pulls-display-of-live-reptiles-fighting-for-survival/?utm_term=.e87d350bdea4 (last visited Nov. 1, 2017)   

[6] Statement Regarding Works in “Art and China after 1989: Theater of the World”, Guggenheim, https://www.guggenheim.org/press-release/works-in-art-and-china-after-1989-theater-of-the-world (last visited Nov.1, 2017)

[7] Art or animal cruelty? Guggenheim pulls display of live reptiles fighting for survival. Washington Post, https://www.washingtonpost.com/news/morning-mix/wp/2017/09/27/art-or-animal-cruelty-guggenheim-pulls-display-of-live-reptiles-fighting-for-survival/?utm_term=.e87d350bdea4 (last visited Nov. 1, 2017)   

[8] Guggenheim Museum Is Criticized for Pulling Animal Artworks, The New York Times, https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html (last visited Nov. 1, 2017)  

[9] Art or animal cruelty? Guggenheim pulls display of live reptiles fighting for survival. Washington Post, https://www.washingtonpost.com/news/morning-mix/wp/2017/09/27/art-or-animal-cruelty-guggenheim-pulls-display-of-live-reptiles-fighting-for-survival/?utm_term=.e87d350bdea4 (last visited Nov. 1, 2017)   

[10] Statement Regarding Works in “Art and China after 1989: Theater of the World”, Guggenheim, https://www.guggenheim.org/press-release/works-in-art-and-china-after-1989-theater-of-the-world (last visited Nov.1, 2017)

[11] Art or animal cruelty? Guggenheim pulls display of live reptiles fighting for survival. Washington Post, https://www.washingtonpost.com/news/morning-mix/wp/2017/09/27/art-or-animal-cruelty-guggenheim-pulls-display-of-live-reptiles-fighting-for-survival/?utm_term=.e87d350bdea4 (last visited Nov. 1, 2017)   

[12] Guggenheim Museum Is Criticized for Pulling Animal Artworks, The New York Times, https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html (last visited Nov. 1, 2017)

[13] Guggenheim Museum Is Criticized for Pulling Animal Artworks, The New York Times, https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html (last visited Nov. 1, 2017); and

[14] Guggenheim Museum Is Criticized for Pulling Animal Artworks, The New York Times, https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html (last visited Nov. 1, 2017)

[15] Why the Guggenheim’s Controversial Dog Video Is Even More Disturbing Thank You Think, ArtNet, https://news.artnet.com/art-world/so-whats-really-going-on-with-that-disturbing-dog-video-at-the-guggenheim-1100417 (last visited Nov. 10, 2017)

[16] Why the Guggenheim’s Controversial Dog Video Is Even More Disturbing Thank You Think, ArtNet, https://news.artnet.com/art-world/so-whats-really-going-on-with-that-disturbing-dog-video-at-the-guggenheim-1100417 (last visited Nov. 10, 2017)

[17] Why the Guggenheim’s Controversial Dog Video Is Even More Disturbing Thank You Think, ArtNet, https://news.artnet.com/art-world/so-whats-really-going-on-with-that-disturbing-dog-video-at-the-guggenheim-1100417 (last visited Nov. 10, 2017)

[18] Why the Guggenheim’s Controversial Dog Video Is Even More Disturbing Thank You Think, ArtNet, https://news.artnet.com/art-world/so-whats-really-going-on-with-that-disturbing-dog-video-at-the-guggenheim-1100417 (last visited Nov. 10, 2017)

[19]  Guggenheim Museum Is Criticized for Pulling Animal Artworks, The New York Times, https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html (last visited Nov. 1, 2017)  

[20] United States v. Stevens, 130 S.Ct. 1577 (2010), 1580

[21] United States v. Stevens, 130 S.Ct. 1577 (2010), 1579

[22] United States v. Stevens, 130 S.Ct. 1577 (2010), 1580

[23] Art Law Library: Protected and Unprotected Speech, National Coalition Against Censorship, http://ncac.org/resource/art-law-library-protected-and-unprotected-speech (last visited Nov. 15, 2017)

[24] United States v. Stevens, 130 S.Ct. 1577 (2010)