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Animal Law Update

By Jeanette Perkins,2014-07-16 23:05
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Animal Law Update By: Jonathan G. Schopf, Esq. The Vincelette Law Firm Co-Chair of the Committee on Animals and the Law Albany County Bar Association jgs@vincelettelaw.com NYS Case Updates Thurber v. Apmann, 2012 Slip. Op. 453 was handed down on January 26, 2012 by our Third Department. The defendant/respondent, an off-duty canine handler for the stat..

    Animal Law Update

    By: Jonathan G. Schopf, Esq. The facts of the case were that the plaintiff was riding The Vincelette Law Firm her horse which was boarded at defendants‟ stable. Co-Chair of the Committee on Animals and the Law Based upon the plaintiff‟s prior experience with Albany County Bar Association horses and her training, the court upheld the dismissal.

     jgs@vincelettelaw.com

     I couldn‟t resist including Paws Unlimited

    Foundation, Inc. v. Maloney, 2012 Slip. Op. 512877 NYS Case Updates

    in this month‟s article as it involves Dan‟s and my

    Thurber v. Apmann, 2012 Slip. Op. 453 was handed niche practices, animals and tax certiorari. The

    down on January 26, 2012 by our Third Department. petitioner in this matter is a not-for-profit which The defendant/respondent, an off-duty canine handler operates an animal shelter in the Town of Kingston for the state police, was able to show as a matter of which sought an exemption from property taxes by law that no vicious propensity existed in her retired virtue of its not-for-profit status. The respondent K-9 trained dog for an attack on the plaintiff‟s dog. Assessor had denied the tax exemption on the basis

     that the property was being used to board privately The plaintiff attempted to assert that the formal owned pets for a fee, as opposed to a primary tax police training and use of K-9 dogs for police exempt charitable purpose of sheltering abandoned protection put the defendant on notice as to the dog‟s animals. The Supreme Court granted summary vicious propensities. The court found that the formal judgment in favor of the petitioner. In upholding the police training the dog received did not constitute determination of the lower court, the Appellate evidence of viciousness nor did it provide the Division found that the fee based potion of the defendant with notice. boarding operation was merely incidental to the use

     of the property for the organization‟s charitable In support of her summary judgment motion, the purposes as only one-quarter of the property was plaintiff satisfied her burden of her lack of used for fee based kennels. Moreover, the petitioners knowledge of the dog‟s vicious propensity by were able to demonstrate that the money realized establishing that: the dog had been with her since it from the private kenneling is exclusively used to was a puppy, the dog was trained to act passively in further the charitable goals of petitioner. its role as an explosive detection dog, the “handler

    protection” training the dog had received had never The Court further found that the petitioner submitted been utilized and the dog had never participated in sufficient evidence to show that the undeveloped and apprehending a suspect. unutilized portions of the land was an exempt

     “integral part” of the shelter operation, as such Additionally, in its decision the court alludes that the property was necessary to act as a noise buffer to circumstances of the attack (i.e. dog on dog) does not shield neighbors from the noise generated by the give rise to an issue of fact as to the vicious kennels.

    propensities of the animal.

     Injunction issued in federal court for breed Soloman v. Taylor, 2012 Slip. Op. 512954 was specific denial of service dog accommodations.

    handed down on January 19, 2011 by the Third 1Department. Plaintiff appealed the granting of The case is Sak v. City of Aurelia, et. al., decided in

    summary judgment in favor of the defendants on the the United States District Court for the Northern theory that the plaintiff‟s recovery for an injury District of Iowa. The plaintiff, James Sak is a retired sustained while horseback riding was barred by police officer who suffered a stroke and is assumption of the risk. permanently confined to a wheelchair. Mr. Sak has a

     12011 WL 6826146 (N.D. Iowa, Dec. 28, 2011)

    service dog named “Snickers” which is a pit-bull mix Thirteenth Amendment afforded legal protection to breed who was specifically trained to assist Mr. Sak the whale plaintiffs.

    with his disability. Snickers generally assists Mr. Sak

    in everyday activities of daily living, such as assisting The court concluded that the Thirteenth Amendment him with his wheelchair and stopping tremors that Mr. is only applicable to human animals and dismissed Sak suffers by laying on Mr. Sak‟s affected areas the complaint for a lack of standing. In a broad brush when the tremors begin. analysis of the historical significance of the famous 3 and the wording of President Slaughter-House Cases

    In late 2011, Mr. Sak and his wife moved to Aurelia, Lincoln‟s Emancipation Proclamation, the court Iowa which has a local law prohibiting the keeping of concluded that a reasonable view of the terms pit-bull breeds. After a series of hearings the city has “slavery” and “involuntary servitude” only applies ordered that Snickers be banished from city limits. such terms to humans. The court also discussed the

     significance of the language “except as a punishment The city argues that their enforcement of the local for a crime” contained within the Amendment as only law with respect to Mr. Sak is non-discriminatory in being applicable to humans, as animals are incapable that Mr. Sak could obtain another service animal of committing crimes.

    which is not a pit-bull breed to meet his needs.

    The court also declined to adopt PETA‟s alternative

    The decision which imposes the preliminary argument that the constitutional principle of slavery injunction is a lengthy and worthwhile 36 pages for should be extended to apply to changing times and anyone involved in ADA litigation involving a conditions as was done in the context of privacy 456service animal. In sum, the court held that due to the rights, separate but equal, sex discrimination and 7language of a recent Attorney General regulation protections for criminal defendants. The court found

    that the Thirteenth Amendment is not reasonably codified at 28 CFR ?35.136, which requires public

    subject to an expansive interpretation and is not entities to accommodate a disabled individuals use of

    subject to changing conditions and societal norms as a service animal and Department of Justice which

    it targets a single issue, the abolition of slavery. essentially state that “breed bans” violate the ADA

     provided Mr. Sak with the requisite showing of a

    Interestingly, in its conclusion, the court recognized reasonable likelihood of success on the merits to

    permit the preliminary injunction to issue. that “[e]ven though the plaintiffs lack standing…that

     is not to say that animals have no legal

    rights…including statutes that „punish those who Does the Thirteenth Amendment apply to whales? 8 violate statutory duties that protect animals‟.” The

    In deciding an issue of first impression, the US court also commented that the plaintiff‟s goal of

    protecting the whales was laudable, however no relief District Court for the Southern District of California

    was available as the court did not have jurisdiction to says no and dismisses the complaint of the plaintiffs

    hear the claims. (five orca whales by their next best friends, PETA, et. 2al.).

The Thirteenth Amendment to the US Constitution

    prohibits slavery and involuntary servitude. Plaintiffs

    alleged that the capture and confinement of the five

    whales by defendant Sea World deprived the whales

    of liberty, forced them to live in unnatural and

    harmful conditions, being forced to perform tricks all

    to the great profit of Sea World.

In moving to dismiss the complaint, Sea World raised

    arguments of standing and capacity for the plaintiffs

    to bring the action. In an absence of statutory authority or precedential guidance the court 3 83 US 36 (1872) conducted an analysis of whether or not the 4 Griswold v. Connecticut, 381 US 479 (1965) 5 Brown v. Board of Education, 347 US 483 (1954) 6 United States v. Virginia, 518 US 515 1996) 7 Miranda v. Arizona, 384 US 436 (1966) 28th Tilikum, Katina, Corky, Kasatka and Ulises v. Sea World Parks, Citing Cetacean Community v. Bush, 386 F.3d 1169 (9 Cir. et. al., (S.D. California, February 8, 2012) 2004)

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