Please join ISAR in commemorating our 19th annual International Homeless Animals' Day and Candlelight Vigils on Aug. 21, 2010

In 1992, ISAR introduced International Homeless Animals’ Day® and Candlelight Vigils as an innovative educational vehicle, with the purpose of informing society about a global tragedy that overwhelms animal shelters each year – pet overpopulation. For all these years, ISAR has on the third Saturday of August commemorated the countless companion animal victims of overpopulation and continued to promote new campaigns, programs and ideas relating to the solution to the pet overpopulation epidemic: spay/neuter.

This year, on August 21st, ISAR marks it's 19th Annual International Homeless Animals' Day and Candlelight Vigils.

ISAR extends a welcoming invitation to all previous vigil coordinators, as well as any new coordinators, to participate in International Homeless Animals' Day 2010.

ISAR's website includes information on how to order your complimentary International Homeless Animals' Day Vigil Packet, an event schedule of confirmed observances for August 2010, ISAR's 9th Annual Virtual Vigil, information on ISAR's International Homeless Animals' Day Billboard Program, and more!

In honor of this Day, you can also view a video tribute to previous International Homeless Animals' Day events in this blog and on ISAR's website www.isaronline.org. To help set the tone for your own candlelight vigil, ISAR invites all coordinators to use our International Homeless Animals’ Day video during their own observances, perhaps by playing it on a laptop computer.

By coming together in spirit with like-minded people throughout the world on International Homeless Animals’ Day you can support ISAR in letting the world know we will not tolerate the senseless killing that continues to take the lives of innocent dogs, cats, puppies and kittens simply because there are not enough good homes for them.

Together, we will continue to be a voice for the animals, and continue to demand an end to the suffering these animals face each day.

The People v. Keith Chung, Revisited

More on the Chung case:

Professor Holzer comments on the court's opinion.

The People v. Keith Chung, Revisited

Search Warrants In Animal Protection Cases

The California Court of Appeal, in a recent important decision (People v. Keith Chung), has joined a few other jurisdictions in applying to the protection of animals an important exception to the requirement of a search warrant.

In general, both the federal Bill of Rights and comparable constitutional provisions in the states require that before a search (or seizure) can be made by government officials, a search warrant must be obtained from a judicial officer. It takes "probable cause" that a crime has been, or is being, committed to support the issuance of a warrant.

As with most legal doctrines, there are exceptions. For example, if a weapon reasonably believed to have been used in a bank robbery is seen lying on the sidewalk--that is, "in plain view"--the police don't need a warrant to seize it.

Another exception, relevant to the Chung case, is the "exigency" exception, which the court explained this way:

The exigent circumstances exception to the Fourth Amendment has been defined to include an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property. . . . The action must be prompted by the motive of preserving life or property and [must] reasonably appear to the actor to be necessary for that purpose. * * * There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers. An action is reasonable under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify [the] action. The officer's subjective motivation is irrelevant. * * * The touchstone of all Fourth Amendment determinations is reasonableness. (Citations and inner quotation marks deleted.)

Thus, the question for the California Court of Appeal in the Chung case was whether there were "exigent circumstances" presented to the responding police officers.

What were those circumstances? According to the court's summary,

Chung's neighbor, Jennifer Lee, testified she called the police in the early morning hours of July 13, 2007, and reported hearing the high pitched crying of a dog in pain in the unit above hers. Lee told the officers who responded to her call that she had heard similar sounds in the past, but this time it sounded more serious. The officers went to Chung's door but he said he did not own any dogs. While the officers spoke to Chung, one of them heard the faint sound of a dog whimpering inside Chung's condominium. Believing there was an animal in distress, the officers entered without a warrant after Chung refused the officers permission to enter.

The officers found an injured dog on the patio and a dead dog in the freezer section of the refrigerator. Both dogs had suffered head trauma. The live dog on the patio was euthanized by a veterinarian later that morning.

Given these facts, the Court of Appeal ruled that the requisite exigent circumstances were present, that the officers had a right to enter without first securing a warrant, and that Chung's conviction for cruelty to animals was valid.

According to the court, criminalizing the abuse of animals had deep historical roots (as the Supreme Court of the United States recently recognized in United States v. Stevens), and California has the constitutional power to punish conduct such as Chung's.

As to the exigent circumstances, the Court of Appeal invoked the 1999 California precedent of Broden v. Marin Humane Society. In that case,

[O]fficers conducted a warrantless entry into business premises, a pet shop, based on exigent circumstances. The officers entered the premises following reports of stench and flies at the store and found animals in distress.

Broden concluded [that] the exigent circumstances exception permits officers to make a warrantless entry when there are reasonable grounds to believe there are animals in need of immediate aid.

Broden recognized: "There is no question that law enforcement officers may make a warrantless entry of a building when there are reasonable grounds for believing that persons inside are in need of immediate aid. . . . Section 597.1 [of the California statutes] clearly contemplates that animals shall receive a similar solicitude."

In addition, the Court of Appeal's conclusion was supported by four cases from other jurisdictions. According to the court,

People v. Thornton an Illinois case, is directly on point. There, a police officer responded to a report of a dog barking for several days inside an apartment. The apartment manager informed the officer she previously had entered the apartment using a key after being unable to contact the resident and found a thin dog shaking and continuously whimpering and yelping in a small cage. The tenant who lived above the apartment told the officer the dog had been yelping continuously for two or three days. The officer entered the apartment to check on the well-being of the dog and found it in conditions matching those described by the manager.

Thornton found the totality of the circumstances known to the officers at the time of the entry into the apartment was sufficient to permit the officers reasonably to believe that an emergency requiring their immediate assistance was at hand. Thornton concluded the officers reasonably could have believed the dog was not merely "uncomfortable," but was in need of immediate assistance to avoid serious injury or, possibly, death.

Thornton noted other jurisdictions also had applied the exigency exception to prevent harm to animals, citing Suss v. American Society for Prevention of Cruelty to Animals . . . [cat trapped between walls of two buildings]; Tuck v. United States . . . [rabbits in unventilated display window of a pet store suffering from extreme heat], and State v. Bauer, [distressed horses in barn].

Thus, the net result of the Chung decision is a strong plus for animal protection.

As the court said in its conclusion, "[e]xigent circumstances properly may be found when an officer reasonably believes immediate warrantless entry into a residence is required to aid a live animal in distress. Where an officer reasonably believes an animal on the property is in immediate need of aid due to injury or mistreatment, the exigent circumstances exception to the warrant requirement of the Fourth Amendment may be invoked to permit warrantless entry to aid the animal."

ISAR anticipates that this issue will arise in other states, which will reach the same conclusion. Serious apparent danger to animals will suffice for a warrantless entry.

Keith Chung has the right to seek review in the Supreme Court of California. If he does, ISAR will be there to oppose him.

The Puppy Mill Sewer Is Beginning To Overflow

Lately, more attention than ever before has been given to the immorality and criminality of puppy mills and the dereliction of duty by those charged with their oversight.

Petland has been sued because of its complicity in the puppy mill outrage, in an effort to put the dog factory breeders out of business by choking off the retail end of the trade.

Also seeking the same result are municipal efforts to prohibit sales of companion animals. For example, pet sales have been banned in Albuquerque, NM and South Lake Tahoe, CA. Last February West Hollywood, CA did the same. Other cities throughout the United States are considering similar ordinances.

For years, ISAR has supported such bans--as ends in themselves (ending the local retail companion animal trade), and as a means to reduce the incentive for puppy mills to produce a seemingly endless flow of canines (by narrowing the market).

However, we've realized that while outright municipal bans are desirable as far as they go, they don't go far enough because the retail sellers can easily relocate and go back into their dirty business elsewhere.

For that reason last year ISAR produced a comprehensive "Model Statute Regulating Dog Breeding, Facilitation and Sales" which seeks to deal with the overpopulation of dogs caused in large measure by puppy mills. We urge our supporters to review ISAR's model statute, as well as the extensive report in which it appears.

Here is the Introduction and Table of Contents:

INTRODUCTION

A major defect in many animal protection statutes is that crucial terms are ill-defined, or not defined at all. This failure leads to ambiguity, avoidable litigation, lack of enforcement, and other problems undermining the goals the legislation was enacted to achieve.

Hence, for purposes of this Monograph and ISAR’s Model Statute Regulating Dog Breeding, Facilitation and Sales (hereafter “Model Statute”), we use the following definitions:

• “Commercial”: “relating to the buying or selling of goods, including dogs, or services, in return for a monetary or non-monetary benefit.”

• “Retail”: “the selling of goods, including dogs, or services, directly to purchasers or consumers.”

• “Sale”: “the transfer of property, including dogs, to the ownership of someone else.”

• “Seller”: “any person or legal entity that makes a sale.”

• “Outlet”: “the place where, or through the means of which, a retail sale occurs.”

• “Purchaser”: “any person or legal entity that is the recipient of a sale.”

• “Breeder”: “any person or legal entity which intentionally, recklessly or negligently causes or allows a living female dog to be inseminated by a male canine.”1

• “Puppy mill”: “a place where at the same time at least three female dogs are kept whose sole or major purpose is producing puppies for sale.”2

• “Facilitator”: “any person or legal entity, not a breeder, seller, sales outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership, custody or control of dogs, whether or not such animals are in the custody or control of the facilitator at the time of transfer.”3

While ISAR’s Model Statute applies to all breeders, it contains certain provisions aimed specifically at the horrors of puppy mills because they are, by far, the most inhumane kind of dog breeding that exists today in the United States and elsewhere in the world.

Puppy mills, however, are only the first stage in the mass production and sale of dogs. Next come the facilitators, followed by the commercial retailers who sell to the public.

That public, however, has little or no idea just how immoral and inhumane are certain aspects of the business of commercially producing and selling puppies and adult dogs as if they were inanimate objects, no different from sausages.

Not only is the factory-like commercial production and sale of dogs by itself immoral and inhumane, the business is a leading cause of the nationwide canine overpopulation problem. That problem, in turn, has an adverse impact not only on the animals themselves, but also on society at large. Overpopulation of dogs has severe economic, social, political, financial, health, environmental and other consequences which are well-documented and not debatable.

Accordingly, by severely reducing the numbers of dogs produced by breeders, brokered by facilitators, and sold by commercial retailers, the related problems of immorality, inhumaneness and overpopulation could be dealt a serious blow.

Regrettably, however, even the most aggressive educational efforts by the animal protection movement have not been powerful enough to put sufficient pressure on breeders, facilitators and commercial retailers to reduce voluntarily their production and sales of dogs, let alone to drive them out of business altogether.

That said, however, there is a way in which production, trafficking and sale of dogs can be greatly reduced—a way in which puppy mill producers, facilitators and commercial retail sellers of dogs could virtually be put out of business.

How, then, to accomplish this worthy goal?

The short answer—which is developed at length in this Monograph—is through strict administrative regulation of breeders, facilitators and commercial retail sellers, coupled with harsh penalty and generous “standing to sue” provisions.

TABLE OF CONTENTS

Introduction.

1. Breeders:

Types of breeders.

Genesis of puppy mills.

“Life” in a puppy mill.

Puppy mills are a blight on civilized society.

The moral case against puppy mills.

Federal efforts to regulate puppy mills.

State efforts to regulate puppy mills.

The Petland case and the torturous road of litigation.

2. Facilitators:

ISAR definition.

USDA definition.

Examples of facilitators.

3. Retail sellers:

Introduction.

State laws.

4. Constitutionality of regulating dog breeding and sales.

5. ISAR’s Model Statute Regulating Dog Breeding, Facilitation and Sales:

Animal Welfare Act

Preface to ISAR’s Model Statute.

ISAR’s Model Statute Regulating Dog Breeding, Facilitation and Sales.

Preamble.

Part I. Definitions (annotated).

Part II. Breeders (annotated).

Part III. Facilitators (annotated).

Part IV. Commercial retail sales outlets (annotated).

Part V. Miscellaneous provisions (annotated).

Conclusion.

Appendix:

ISAR’s Model Statute Regulating Dog Breeding, Facilitation and Sales
(unannotated).

Preamble.

Part I. Definitions (unannotated).

Part II. Breeders (unannotated).

Part III. Facilitators (unannotated).

Part IV. Commercial retail sales outlets (unannotated).

Part V. Miscellaneous provisions (unannotated).

* * *

As ISAR's Study and Model Statute prove, the serious problem of puppy mills must be addressed across-the-board by targeting all three links in the production-middleman-sale chain of animal abuse. Our Model Statute does that, and it is our earnest hope that ISAR volunteers, other animal protection organizations and concerned individuals seek to have it introduced in their state legislatures.

The abomination of puppy mills must end!

ENDNOTES

1 This definition is deliberately broad because it intends to include all breeding—from family pets to the most egregious type, “puppy mills.”

2 A puppy mill has been defined by one court as “a dog breeding operation in which the health of the dogs is disregarded in order to maintain a low overhead and maximize profits.” Avenson v. Zegart, 577 F. Supp. 958, 960 (D. Minn. 1984). While that description of a puppy mill accurately identifies one aspect of such an operation, it does not adequately invoke the horrors of puppy mills and is thus insufficient for the purposes of ISAR’s Model Statute.

3 The Animal Health and Plant Inspection Service (hereafter “APHIS”), a division of the United States Department of Agriculture (hereafter “USDA”) groups “pet wholesalers” and “animal brokers” under the heading of “dealers.” Pet wholesalers are defined as “anyone importing, buying, selling, or trading pets in wholesale channels.” Licensing and Registration Under the Animal Welfare Act, USDA, available at www.aphis.usda.gov/animal_welfare/downloads/aw/awlicreg.pdf (last visited Sept. 20, 2009). Animal brokers are defined as “anyone who deals in regulated animals but does not take physical possession.” Id. Both pet wholesalers and animal brokers are required to be licensed by USDA. Id. The Humane Society of the United States (hereafter “HSUS”) defines brokers as those who purchase dogs from puppy mills and kennels and then resell them to retail pet stores. More on How Petland Continues to Support Cruel Puppy Mills, HSUS, Jun. 29, 2009, available at www.hsus.org/pets. The term “facilitator” as used in ISAR’s Model Statute is intended to include all of the persons and legal entities described above.