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35 Envtl. L. Rep. News & Analysis 10679 (2005)
Time to Feed the Evidence: What to Do with Seized Animals

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Copyright @ 2005 Environmental Law Institute@, Washington, DC. reprinted with permission from ELR@, 1-800-433-5120.


35 ELR  10679


Time to Feed the Evidence: What to Do With Seized Animals

                                by Madeline  Bernstein  and Barry M.  Wolf

                Editors'Summary:   Most people agree that unjustified cruelty to animals should
                be avoided. Consequently, all 50 states and the District of Columbia have laws
                prohibiting such abuse. Yet when the owner ofan animal is suspected ofengag-
                ing in abuse or neglect, the animal is usually seized or impounded by the state
                or local authority. This often results in the animal being left in a shelter for a
                long period oftime while the state prepares its case. The authors argue that ex-
                tended shelter stays are not only unnecessary, but they do not serve in the ani-
                mal & or the owner 's best interest. Instead, they argue that states should adopt
                laws requiring a quick andfinal determination ofa seized animal's status with-
                out reference to any criminalproceedings that may be pending against the ani-
                mal & owner  This allows the state to immediately place the animal in a safe en-
                vironment  while keeping the integrity of the criminal prosecution intact.

I. Introduction

All 50 states and the District of Columbia' have laws on the
books prohibiting cruelty to animals.2 In the great majority
ofthese states, statutes explicitly authorize law enforcement
agencies or humane  society representatives to seize or im-
pound, i.e., remove from the possession of the owner, any
abused  or neglected animal even before its owner is con-

Madeline Bernstein is President of the 127-year-old Los Angeles Society
for the Prevention of Cruelty to Animals, recognized as the leading voice,
educator, and hope for the animals it protects and the people it serves. She
received her J.D. in 1979 from State University of New York at Buffalo,
Faculty of Law and Jurisprudence. Barry M. Wolf is an Appellate Special-
ist Certified by the State Bar of California, Board of Legal Specialization.
He received his J.D. in 1976 from Georgetown University Law Center and
practices civil appellate law in Los Angeles, California. The authors wish
to thank Emily Terrell of Loyola Law School for all her research and edito-
rial assistance.
  1. The District of Columbia will hereinafter be referred to as a state.
  2. ALA. CODE  §13A-11-14 (2004); ALASKA STAT. §11.61.140
    (Michie 2004); ARIz. REV. STAT. ANN. §13-2910 (West 2004);
    ARK. CODE  ANN. §5-62-101 (Michie 2005); CAL. PENAL CODE
    §597 (West 2005); COLO. REV. STAT. ANN. §18-9-202 (West 2005);
    CONN. GEN. STAT. §53-247 (2005); DEL. CODE ANN. tit. 11, § 1325
    (2005); D.C. CODE ANN. §22-1001 (2005); FLA. STAT. ANN.
    §828.12 (West 2005); GA. CODE ANN. § 16-12-4 (Harrison 2004);
    HAW.  REV. STAT. §711-1109 (Michie 2004); IDAHO CODE
    §25-3504 (Michie 2004); 510 ILL. COMP. STAT. 70/3.02 (2004);
    IND. CODE §§35-46-3-7 and 35-46-3-12 (2005); IOWA CODE ANN.
    §§717.2,717B.2,717B.3 (West 2005); KAN. STAT. ANN. §21-4310
    (2003); Ky. REV. STAT. ANN. §525.125, 525.130, 525.135
    (Westlaw 2004); LA. REV. STAT. ANN. tit. 14, § 102.1 (West 2004);
    ME. REV. STAT. ANN. tit. 7, §4011 and tit. 17, § 1031 (West 2004);
    MD.  CODE ANN., CRIM. LAW §§10-604, 10-606 (2005); MASS.
    GEN.  LAWS ch. 272, §77 (2005); MICH. COMP. LAWS ANN.
    §750.50 (West 2005); MINN. STAT. ANN. §343.21 (West 2005);
    MISS. CODE ANN. §97-41-1 (2004); Mo. ANN. STAT. §§578.009,
    578.012 (West 2005); MONT. CODE ANN. §45-8-211 (2003); NEB.
    REV. STAT. §§28-1009, 28-1010 (2004); NEV. REV. STAT. §574. 100

victed on an  animal cruelty charge.3 Once  an animal  is
seized, any owner who  abused the animal can no longer do
so without regaining custody. However,  the animal  typi-
cally enters a state of legal limbo in which it is temporarily
placed in a shelter where, despite the best efforts of often
dedicated  caregivers, the animal is exposed to diseases
and almost inevitably suffers from a lack of attention. In ef-
fect, the animal falls into a black hole from which it might
never escape.
   Shortening the time seized animals spend in shelters is
desirable, but accomplishing this goal will require a change
in law (and perhaps a greater commitment of resources) in

    (2004); N.H. REV. STAT. ANN. §644:8 (2004); N.J. STAT. ANN.
    §§4:22-17, 4:22-18, 4:22-26 (West 2005); N.M. STAT. ANN.
    §30-18-1 (Michie 2005); N.Y. AGRIC. & MKTS. LAW §§353, 353a
    (McKinney 2005); N.C. GEN. STAT. §14-360 (2005); N.D. CENT.
    CODE  §36-21.1-02 (2003); OHIO REV. CODE ANN. §§959.13,
    959.99, 959.131 (West 2005); OKLA. STAT. ANN. tit. 21, §1685
    (West 2005); OR. REV. STAT. §§167.315, 167.320, 167.322,
    167.325, 167.330, 167.340 (2003); 18 PA. CONS. STAT. ANN. §5511
    (West 2004); R.I. GEN. LAWS §§4-1-2, 4-1-3, 4-1-4, 4-1-5, 4-1-26
    (2004); S.C. CODE ANN. §47-1-40 (2004); S.D. CODIFIED LAWS
    §40-1-27 (Michie 2004); TENN. CODE ANN.  §§39-14-202,
    39-14-205, 39-14-212 (2005); TEX. PENAL CODE ANN. §42.09
    (Vernon 2004); UTAH CODE ANN. §76-9-301 (2004); VT. STAT.
    ANN.  tit. 13, §§352, 352a, 353 (2004); VA. CODE ANN.
    §3.1-796.122 (2005); WASH. REV. CODE §§16.52.205, 16.52.207
    (2005); W. VA. CODE §§19-20-12, 61-8-19 (2005); Wis. STAT.
    §951.18 (2005); Wyo. STAT. ANN. §6-3-203 (Michie 2004). Some
    states also have statutes targeted to prohibiting animal cruelty in par-
    ticular situations. See, e.g., NEV. REV. STAT. §§574.070 (instigating
    or witnessing fights between birds or other animals), 574.105 (mis-
    treatment of police animal), 574.107 (mistreatment of dogs used for
    certain events); WASH. REV. CODE §§ 16.52.80 (transporting or con-
    fining an animal in an unsafe manner). Mississippi's animal cruelty
    statute has been declared unconstitutional by that state's Supreme
    Court. Davis v. State, 806 So. 2d 1098, 1104 (Miss. 2001).
  3. See the appendix to this Article, State Laws Specifically Authorizing
    Seizure or Forfeiture of Neglected or Abused Animals.


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