Court of Appeals: Admitting Dog’s Medical Records Violates Defendant’s Fourth Amendment

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By: Stacy A. McKerlie

An individual had become concerned when she suspected her neighbor, defendant Amanda Newcomb, was mistreating a dog. Defendant had been failing to provide food, attention, and was seen striking the dog. The concerned citizen made a report, which prompted a police officer to investigate. The police officer arrived and was allowed inside, where he saw, in plain view, the dog in a malnourished condition. When the officer inquired as to the dog’s weight, the defendant claimed she was out of dog food. The police officer asked the defendant if she would sign a medical release for her dog, but she refused. The officer seized the dog and took it to a veterinarian, who confirmed that the cause of sickness was lack of food, and that the dog was healthy otherwise. The officer did not request a warrant for the dog’s vital information that the veterinarian would obtain in the course of treatment.

The Fourth Amendment of the Constitution gives people protection against unreasonable searches and seizures of their persons, houses, papers, and effects. Warrants shall only be issued based on probable cause supported by particularity describing the place to be searched or person/thing to be seized. Animals, including pets such as dogs and cats, are currently legally classified as a person’s “thing” or “effect”. Warrantless searches and seizures are unreasonable unless they are considered an exception. Some of these exceptions include exigent circumstances, hot pursuit, and plain view.

In the trial court, the defendant argued the evidence should be suppressed because her privacy of her personal property (her dog) had been violated by the tests and measures taken pertaining to the dog’s health and vitals. The trial court stated the police officer acted lawfully in seizing the dog under the plain view exception to the fourth amendment’s right to search and seizure. The court also decided that defendant’s motion to suppress the evidence should be denied because the officer had probable cause to believe the dog was being abused/neglected, and therefore didn’t need a warrant.

However, the appellate court reversed that decision, stating that although the dog was lawfully seized under the “plain view” exception, the additional information gained through the veterinarian’s actions was an unlawful search. The officer had not been granted a warrant to obtain the dog’s health records, and admitting that evidence would violate defendant Newcomb’s right under the Fourth Amendment. The court ruled that the plain view exception did not apply to the tests the veterinarian administered. A dog could be underweight due to some kind of disease or genetic predisposition. Only a veterinarian’s expert opinion can reveal that a dog’s illness is due to a lack of food.

Last year, defendant Fessenden was charged with animal neglect for failing to feed her horse. Similarly, a police officer received a call from a concerned neighbor. When the officer arrived at the property, he witnessed a very emaciated horse that appeared to be near death. He seized the horse (without a warrant and without Fessenden’s consent) and brought it to a veterinarian, who provided treatment.

The Court of Appeals decided in State v. Fessenden that “the societal interest in protecting nonhuman animals from unnecessary pain, injury, trauma, and cruel death can justify — at least in some circumstances — a warrantless search or seizure aimed at preventing or alleviating that suffering”. Thus, the court acknowledged an exception to the warrant requirement: the “emergency aid” exception. This exception allows police to search/seize property without a warrant if the officer reasonably believes (based on articulable facts) that the animal is at risk for serious injury or death, and needs “emergency aid”.

It is interesting that the court found a societal interest in providing aid to animals in Fessenden but not in Newcomb. Both cases involve a police officer finding an animal experiencing starvation directly resulting from an owner’s neglect. In Newcomb, the court mentions it is possible to make room for more exceptions to warrantless searches and seizures. Although the state argued there should be a novel exception to the warrant requirement that would apply here, that argument was “not developed on appeal, nor presented in trial court”. In addition, the state did not argue an “emergency aid” exception to the warrant requirement in this case. Finally, and perhaps most importantly, the state did not dispute the long-standing premise that the dog was simply the defendant’s “personal property” or “effect”.

You can read the entire court opinion here: http://www.publications.ojd.state.or.us/docs/A149495.pdf.

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Idaho’s New “ag-gag” Bill Passes House and Senate, May Become Law

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By: Stacy McKerlie, Esq.

Idaho’s Senate Bill 1337, introduced on February 10, 2014 by Senator Jim Patrick, makes it a crime to interfere with the “production of agricultural production.” The bill’s stated purpose is, “to protect agricultural production facilities from interference by wrongful conduct.” Such “wrongful conduct” includes trespassing onto facilities in order to record instances of animal abuse. Similar “ag-gag” laws have been passed in Utah and Iowa, and are criticized for silencing potential whistleblowers in the industry. These types of bills are called “ag-gag” bills because of the “gag”-order effect on reporting conditions of agricultural (“ag”) facilities.

Committing this crime means receiving up to one year in jail, and/or a fine of $5000. The bill also permits the “victim” (agricultural production facility) to seek restitution against the person(s) committing the crime.

Those in support of the bill say there is no free speech issue, because anyone can still report on the conditions in a lawful manner (one that does not involve trespassing or misrepresentation, for instance). Supporters claim to have a hotline at the Idaho State Department of Agriculture, where individuals can voice their concerns.

Opponents argue the bill will obscure transparency in an industry where maintaining established standards has been problematic. In order for individuals to be able to report on the conditions within these facilities, they must be able to observe them. Forbidding public vigilance may lessen accountability within the industry. Is it realistic to expect facilities to allow reporters unrestricted access? The bill’s proposed regulations would largely keep the public in the dark when it comes to what’s happening behind closed doors in the agricultural industry.

Defining the facilities as “victims” creates an interesting debate. Many of those interested in animal rights would argue that the real “victims” in this situation are the animals. In the past, videos and photos taken in similar facilities have revealed unfit conditions and inhumane acts perpetrated against the animals there. These revelations had led to public outcry for a minimum standard of animal welfare. Because of that concern, reporters felt obligated to check up on these facilities to gain information. The intent of the reporters seems to be benevolent in that it promotes an increased awareness of the conditions these animals experience.

Those concerned with the safety and welfare of the animals in these agricultural facilities have a tough choice: waiting patiently while stricter accountability laws are proposed, or risking their safety and freedom to gain concrete facts through first-hand experience or videos/photos. If SB 1337 becomes law, animal advocates will inevitably have to choose the former.

The text of the original bill can be found here: http://legislature.idaho.gov/legislation/2014/S1337.pdf

Idaho statutes already have restrictions on how animals can be treated. But are they strict enough to stop animal abuse?

In Idaho, it is a misdemeanor to commit acts of animal abuse. However, certain acts are exempt—this includes “exhibitions, competitions, activities, practices or procedures normally or commonly considered acceptable.” (Idaho Statute 25-3514). If an agricultural facility engages in such commonly-accepted practices, these practices, procedures and activities “shall not be construed to be cruel nor shall they be defined as cruelty to animals, nor shall any person engaged in these practices, procedures or activities be charged with cruelty to animals.” (Idaho Statute 25-3514).  In other words, facilities that abuse animals cannot be charged with abuse, so long as the abuse is widely recognized as an industry norm.

Furthermore, there are laws concerning the authority to enter premises to examine animals. Idaho law states that:

“Representatives of the division [Idaho’s Division of Animal Industries, consisting of the Dairy/CAFO Bureau, Animal Health and Livestock Bureau and the Rangeland Management Program] are authorized…to enter any field, pasture…or other premises…where animals are kept, during normal operating hours, when probable cause exists, with the permission of the owner, to investigate alleged violations of the provisions of this chapter. If permission is not granted, said representatives shall be empowered to call on sheriffs, constables and peace officers to assist them in the discharge of their duties…” (Idaho Statute 25-3519).

If SB 1337 becomes law, animal activists will face another set of challenges in stopping animal abuse. Activists will either need to focus on amending the existing Idaho laws, or they will need to find another way to show the public what these facilities are doing behind closed doors. SB 1337, however, may raise suspicions that these facilities have something to hide- and these suspicions may hurt the entire agricultural industry in Idaho.

To view the original Idaho statutes, see code Title 25, Section 35, Title 25 “Animals” http://legislature.idaho.gov/idstat/Title25/T25.htm.

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Grass Fed Beef Processor Closed in Petaluma California

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By: Robert S Simon
February 22, 2014

8.7 Million pounds of grass fed and organic beef were recalled by the Rancho Feedng Corp slaughterhouse on February 8, 2014 and the operations ceased completely on February 14, 2014 leaving Petaluma California small ranchers without access to market and processing facilities within a radius of approximately 150 miles of the town.

Rancho Feeding Corp., a slaughterhouse in Petaluma, California, issued a recall notice for ALL of the beef it processed in 2013 on February 8, 2014, and ceased operations on February 14, 2014.  Read more about this in Food Safety News…. http://www.foodsafetynews.com/2014/02/bay-areas-last-major-slaughterhouse-struggles-with-recall-closures/#.UwmsJ7mYa1s .

The amount recalled was 8.7 million pounds. According to the USDA’ s Food Safety and Inspection Service, Rancho issued the recall after FSIS inspectors determined that it had “processed diseased and unsound animals and carried out these activities without the benefit or full benefit of federal inspection.” It was a Class I recall, which means the FSIS considered it “a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death.” Read more about this event in Mother Jones. http://www.motherjones.com/blue-marble/2014/02/rancho-beef-recall-hot-pockets .

Rancho was the only USDA approved slaughterhouse within approximately 150 miles of Petaluma California (Northern California’s small ranch heartland). Read more about the Northern California cattle challenges presented in the Marin News….   http://www.marinij.com/marinnews/ci_25128414/petaluma-slaughterhouse-closure-double-whammy-marin-ranchers .  Small cap ranchers now must bring cattle to market at greater distances and at higher unit costs during the height of the well publicized California drought of 2013-14.

The closure brings sharp focus on the issues of food sanitation, the role of USDA Inspector Corps, the consolidation of slaughter operations, and the adverse effects these factors have on small organic and artisan beef producers who are already struggling with the drought.
•    Read more about the large reductions in force at the Food Safety Inspection Service as a result of the last rounds of federal budget deals.  USDA cut a total of 259 offices, facilities and labs in both the United States and in seven foreign countries. http://www.foodsafetynews.com/2012/01/usda-plans-to-close-five-fsis-district-offices-1/#.Uwmu77mYa1s .
•    Read more about the small farmer implications of the recall at Sott.Net….  http://www.sott.net/article/274046-USDA-takes-aim-at-small-farms-Rancho-recalls-a-years-worth-of-meat .
•    Read more about the California drought and the effects rendered on small ranchers at the U.S. Drought Portal information collection site.  http://drought.gov/drought/news/drought-taking-toll-cattle-industry

Marin Sun founder and CEO David Evans said he has a deal in escrow to purchase the plant and will expand operations to slaughter species other than cattle and process organic-certified meat. Read more about this in the local broadcast news reports… http://www.ktvu.com/news/news/health-med-fit-science/california-rancher-buy-closed-slaughterhouse/ndXpT/ .

Rancho’s co-owner Robert Singleton is reported to have both denied the USDA recall basis allegations, and has stated to the local media that Rancho never harvested an animal without a USDA Inspector on premises. The typically grass fed beef found its way into Nestle’s “Hot Pockets” and into national chains such as Kroger, Walmart, and Food 4 Less according to the local media reports.

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Breed-specific Dog Laws Are Ineffective, Discriminatory

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Published January 19, 2014 by the Medford Mail Tribune


By Lisa Frost

In August, the White House issued a statement against breed discrimination. The statement issued was an adoption of the Centers for Disease Control and Prevention’s community-based approach to prevent dog bites: Research shows that bans on certain types of dogs are ineffective and a waste of public resources.

In 2000, the CDC looked at 20 years of data about dog bites and human fatalities in the U.S. They found that fatal attacks represent a very small proportion of dog bite injuries to people, and that it’s impossible to calculate bite rates for specific breeds.

The CDC noted that the types of people who exploit dogs aren’t deterred by breed regulations. Dogs of any breed can become dangerous when they’re intentionally or unintentionally raised to be aggressive. For all those reasons, the CDC officially recommends against breed-specific legislation, which they call inappropriate.

The American Bar Association issued a resolution in 2012 urging all governmental agencies to adopt comprehensive breed-neutral, dangerous dog and reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both dog owners and dogs, and to repeal any breed discriminatory or breed specific provisions.

Breed-discriminatory laws are often proposed and passed by local governments in response to well-publicized, sensationalized, media-biased and emotional dog bite incidents in the community, and are best described as “panic policymaking.” These breed-specific measures distinguish dogs of one or more specific breeds, along with dogs presumed to be mixes of those breeds, as inherently dangerous because of the dog’s physical appearance. Breed discriminatory legislation often vaguely defines the targeted breed. At issue in Jackson County, and Medford specifically, is legislating what appears to be a pit bull-type dog. A “type” is not a breed.

Pit bull-types are often categorized as dogs with short fur and a boxy head. There are over 20 breeds of dogs that fit this description, including the American bulldog, boxer, American Staffordshire terrier, bull terrier, bull mastiff, American pit bull terrier, dogo Argentino, Staffordshire bull terrier, dogue de Bordeaux, presa canario, cane corso and others.

The National Canine Research Council has documented several instances where dogs involved in fatal attacks were labeled as pit bulls, even though the dogs showed no resemblance to any pit bull-type breed. In the end, neither breed nor appearance is relevant to the story. Instead, journalists should research what environment caused the attack. Was the dog abused, neglected, trained or socialized?

Media sensationalized biased reports of dog attacks of an alleged “dangerous breed” are always reported by major news organizations, while attacks perpetrated by “safe” breeds are often only picked up by one or two local media sources. This type of biased reporting misleads the public and does not increase public safety or awareness.

Often, drug dealers obtain pit bull-type dogs to use as guards. These dogs often are abused, trained as fighters and encouraged to attack anyone coming onto the property. It is the owner and the environment that these dogs are subjected to that creates their aggression. The same dog raised in a family home exhibits different behaviors then that of the drug dealer/fighter dog. Even most of Michael Vick’s abused pits were rehabilitated and adopted out to families, one even being trained as a therapy dog.

There are several published studies reflecting the ineffectiveness of breed-discriminatory laws. These studies are consistent with a 2009 article discussing the effect of the Denve, breed-discriminatory law. Twenty years after the ban was enacted, the director of Denver Animal Control admitted that he is unable to say with any certainty whether it has made Denver any safer. Labrador retrievers are the most likely dog to bite in the Denver metropolitan area.

Alternative public safety measures would target reckless owners and aggressive dogs based on behavior, regardless of breed. The focus should be on public education and stiff fines for irresponsible dog owners, and prohibiting ownership for drug dealers and animal abusers. For example, a person who commits two or more egregious animal control violations in a 24-month period can be declared a problem pet owner and forced to surrender all of his or her animals.

Breed does not cause aggression. Aggression is a behavior, and behavior exists in reaction to an environmental stimuli. It would make more sense to train animal control officers to identify aggressive behavioral traits in an animal, and not discriminate based on appearance, which is nebulous and inconsistent. Let’s move beyond the myth of breed stereotype and ineffective legislation.

Lisa A. Frost of Ashland is executive committee attorney member of the animal law section of the Oregon State Bar and the owner/guardian of two pit bull mixes.

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The New York Times Reports That Pasture Raised Pigs Are Gaining Market Share and Public Preference

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News Link: (Posted by Robert S Simon – Robert@RobertSSimon.com)

The New York Times reports that pasture raised pigs are gaining market share and public preference – (see the link for more details)


Several factors are driving the appetite for pasture-raised pork, grocers and chefs say. Consumers are increasingly aware of and concerned about the conditions under which livestock is raised, and somewhat more willing to pay higher prices for meat certified to have come from animals that were humanely raised. As much as consumers say they want their meat to come from humanely raised animals, they still resist paying higher prices for pasture-raised pork. Selling the whole hog is still a tough market for farmers raising pastured pigs. Mass pork producers ship hard-to-sell parts like hooves, kidneys and livers to China and other countries where cuisines are more accommodating, but small farmers don’t have access to such markets. Another challenge is that farmers raising pastured pigs acknowledge that pigs raised outdoors have a higher risk of coming into contact with rodents and other animals that carry the pathogen for trichinosis.

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Animal Enterprise Terrorism Act (AETA) of 2006 Faces Challenge at ABA Annual Meeting in August 2014

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Animal Enterprise Terrorism Act (AETA) of 2006 Faces Challenge at ABA Annual Meeting in August 2014
Posted by: Robert S Simon (rssimon@reginamundi.org), Animal Welfare Committee, Oregon State Bar, Animal Law Section

The Animal Enterprise Terrorism Act (AETA) of 2006 [Title 18 U.S.C.A. Section 43 (2006)] challenges the equal protection rights under the free speech and assembly clauses of the United States Constitution based on the content of the speech and assembly according to groups dedicated to its repeal . http://noaeta.org/ Many social justice activists who oppose animal related industries such as the livestock, biomedical, and pharmaceutical research and producers fear that the law restricts freedom of speech and assembly. One such group is the Equal Justice Alliance which was formed for the sole purpose of repealing the federal law. The American Bar Association has been asked to pass out a resolution in support of the repeal effort at its August 7-12, 2014 annual meeting which is held in Boston, Massachusetts (Hynes Convention Center) http://www.americanbar.org/calendar/annual.html (see link for registration details). Read the rest of this entry »

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One Step Closer to Drug Free Livestock

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One Step Closer to Drug Free Livestock –
By Robert S Simon, Animal Law Section, Oregon State Bar.

America livestock exports will receive a boost now that another federal agency has come on board to the “drug free” policy advanced by Secretary of Agriculture, Tom Vilsack, throughout his first and second terms in the Obama Cabinet. The New York Times reports in December 11, 2013 issue that the Food and Drug Administration put in place a major new policy to encourage the voluntary phase out the indiscriminate use of antibiotics in cows, pigs and chickens raised for meat, a practice that experts say has endangered human health by fueling the growing epidemic of antibiotic resistance.


Read the rest of this entry »

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The Asian Front in The War to Save Rhinos

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By: Robert S. Simon
Johannesburg, South Africa – The Asian Front in The War to Save Rhinos – COMMENTARY*
*This opinion piece does not reflect the opinions of the Oregon State Bar, The Animal Law Section Executive Committee, or the Section membership at large.

Nelson Mandela died today. At 95 he died in a South Africa rich with White Rhinoceros (Square-lipped Rhinoceros)(Ceratotherium Simum). When he was born the “White” Rhino (as misinterpretation of the Dutch “wijd” (“weit”) or “wide” Rhino numbered over 250,000. Now it measures fewer than ten percent of that number. 688 Rhinos were poached this year alone (as of October 1, 2013) (http://news.mongabay.com/2013/0929-rhino-poaching-record.html ). The almost exclusive customer of the Rhino horn which is the cause of the slaughter is Asia, and of that area primarily China and Vietnam consumer markets. These two Communist Party dominated countries are typically considered the most “controlled” both politically and economically in the World today. Both signed the CITES treaties (Convention on International Trade in Endangered Species of Wild Fauna and Flora). Read the rest of this entry »

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