Do animal victims of crime have to be held indefinitely at animal control or can they be let out prior to the trial so they don't go "cage crazy"? Some trials can take up to 2 years. Does the animal HAVE to sit in a cage at animal control all that time?
This is a question we get a lot. We have
debated this question with other prosecutors and the good news is that most
agree with this answer. There are a lot of things to take in before deciding the appropriate answers.
In general, the title has the provision to allow
early forfeiture of animal PRIOR to the criminal case. The animal is more so
"evidence" than anything else. Preserving evidence is the key to any successful
prosecution. The immediately and proper procurement of evidence versus the
failure secure and keep evidence can make or break a case. In a case where
seizure was under title 4 and the owner fails to take his due process by failing
to claim or respond to notice, the appropriate action is to apply to the court
for dispose of animal (a fancy of saying early forfeiture of an animal). Keep in
mind, you must get the approval of the prosecuting attorney first because he or
she must make sure enough photos and/or video is collected of the dog i.e.
evidence, before the evidence is "disposed". Disposal can be euthanasia but not
always. Most states and municipalities dare not adopt out animals that have been
involved in fighting for liability reasons (public threat, danger to children,
etc.). Some cities have a total ban on adoption out, for example, any pit bull
regardless of how it came into the shelter. Chicago is one of them.
·
4-11-9.3.
(a) It
shall be the duty of any person impounding an animal
under Code Section 4-11-9.2 to make reasonable and proper arrangements to provide the impounded animal with humane
care and adequate and necessary
veterinary services. Such arrangements may include, but shall not be limited to,
providing shelter and care for the animal at any state, federal, county,
municipal, or governmental facility or shelter; contracting with a private individual,
partnership, corporation, association, or other entity to provide humane care
and adequate and necessary veterinary services for a reasonable fee; or allowing
a private individual, partnership, corporation, association, or other entity to
provide humane care and adequate and necessary veterinary services as a
volunteer and at no cost. (b) Any person impounding an animal under this
article or providing care for an impounded animal shall have a lien on such animal for the reasonable
costs of caring for such animal. Such lien may be foreclosed in any
court that is competent to hear civil cases, including, but not limited to,
magistrate courts. Liens shall be foreclosed
in magistrate courts only when the amount of the lien does not exceed
the jurisdictional limits established by law for such courts. (c)
Any person impounding an animal under this
article is authorized to return the animal to
its owner,upon payment by the
owner of all costs of impoundment and care andupon the entry of a consent order ,
unless such owner was, in a prior administrative or
legal action in this state or any other state, found to have failed to provide humane care to an
animal, committed cruelty to animals, or engaged in dog fighting in violation of
the laws of this state or of the United States or any of the several
states. Such consent order shall provide conditions relating to the
care and treatment of such animal, including, but not limited to, the following,
that: (1) Such animal will be given humane care and adequate and necessary
veterinary services; (2) Such animal will not be subjected to cruelty; and (3)
The owner will comply with this article. (d) The provisions of subsection (c) of
this Code section shall not apply to an animal that was an object or
instrumentality of a crime nor shall any such animal be returned to the owner
without the approval of the prosecuting
attorney. An agency having
custody of an animal that was seized as an object or instrumentality of a crime
may, with the consent of the prosecuting
attorney, apply to the court having jurisdiction over the offense for
an order authorizing such agency to dispose of
the animal prior to trial of the criminal case as provided by
law.
The whole concept of not having animal
victims of crime languishing in impound for months and months while waiting for
trial of a potential criminal case was the moving force behind the Title 4 part
of the Animal Protection
Act of 2000. Assuming that an
animal is properly impounded pursuant to the procedures outlined in Title 4, then the
impounding agency has the following options for disposing of the animal:
Option A (Return to owner under consent order): Under
4-11-9.3 ©, the agency impounding an animal other than an animal which would be
considered an "object or instrumentality of a crime" can return the animal to
the owner under a consent order (unless the owner has been previously convicted
of cruelty in a criminal case or found to have not imparted humane care in an
administrative hearing). This is a unilateral decision that can be made by the
impounding agency UNLESS the animal was an object or instrumentality of a
crime. If the animal was an object/instrumentality of a crime, then the animal cannot
be returned to the owner under a consent order without the
prosecutor's approval and a disposal order from the court having jurisdiction
over the criminal case. The prosecutor has to maintain control of his/her
evidence. Keep in mind, the animal is considered "evidence" first and foremost
and the ownership of animal is secondary when dealing with a crime.
Option B (Court order for disposal of
animal which was object/instrumentality of a crime): An agency having custody of an
"object/instrumentality of a crime animal" may, again with the approval of the
prosecutor, apply to the court that has the criminal case for an order allowing
disposal of the animal prior to trial of the criminal case ( 4-11-9.3(d)).
As far as procedure, many counties
do it differently. In Gwinnett for example, they seized 31+ pits under neglect.
The prosecutor requested forfeiture and went ahead and tried the case on the
same day because the defendant was available and it was shortly after the
seizure. One would assume that the prosecutor would be the one to draft the
application for the disposal order, since (s)he has to approve the process, and
the order has to be signed by the court that has jurisdiction over the criminal
case. But, the law is silent on who must draft it. It just says an agency
(FAC) having custody may apply.
Therefore, you can or you can get your prosecutor to do it. The law is also
silent on whether the approval from the prosecutor has to be in writing or
verbal.
Option C (Hearing): If a consent order
isn't entered, and owner still wants the animal back, (s)he has to request
his/her hearing, and follow the procedures for that. If the hearing officer
finds the impound was improper, then (s)he enters an order that the owner gets
the animal back. If the hearing officer finds that the impound was proper, then
the hearing officer can give the animal back to the owner (again assuming no
prior cruelty/inhumane findings) or may order the impounding agency to dispose
of the animal according to 4-11-9.6. This hearing procedure does not
apply to an "object/instrumentality of a crime animal." An "OIC animal" cannot be returned to the owner or
disposed of without the prosecutor's approval. This would prevent the
prosecutor from potentially losing his/her evidence due to a lame decision by
some hearing officer.
So to answer the question, yes..where an animal has been the object of cruelty or the instrumentality of
fighting, the impounding agency can, with the prosecutor's approval, apply for a
court order allowing the disposal of the animal, by either return to the owner
(we could imagine a situation where the owner was not the perpetrator of the
crime against the animal, and in that situation, owner and animal probably need
to be reunited ASAP), or disposed of according to 4-11-9.6, prior to
trial. The prosecutor can decide not to give consent of early forfeiture and
the animal can be in the cage till case is adjudicated. Many states do not have
a provision for early forfeiture. Ours is a bit convoluted and clandestine to so
many in the field (prosecutors & judges too), but at least we have it.
You do not have to, but
you may mention these reasons if your judge is
reluctant
1) Prosecutor has
sufficient documentation and photo/video of animal, therefore, does not need to
keep the animal;
2) animal may stay in
cage for an unreasonable amount of time (we have seen cases take more than 2
years);
3) animal will go "cage
crazy" (of course we would use the medical terminology to explain the
psychological phenomenon known as "cage crazy". There is plenty out there on
this subject);
5) animal may loose
it's ability to be rehabilitated (cage crazy) for possible adoption in the
future;
6) animal's care and
boarding will be paid by the taxpayers (granted, title 4 seizure makes it so the
defendant has to cover the cost, but in reality it is doubtful that the
perpetrator would have the money to cover the cost of care (which could be for
months or years in some cruelty cases) and pay a fine.
7) animal will be
occupying a "cage" which is primarily used for adoption purposes. Thus, the
shelter will not only loose that cage, but it may affect the numbers in
euthanasia (euthanasia numbers are a big deal to shelter managers for public
opinion and to their commissioners for funding);
8) if the criminal case
involves numerous animals (as in the case of hoarders, dog fighting ring,
breeders, etc.), The shelters cages could potentially be used to board
OIC animals in many cages for a very long time and disrupt the shelter's
purpose of adopting animals. In the case for fighting dogs, they must be kept
separated;
9) animal kept in cage
will only prolong animal's suffering, it is inhumane. This is a victim as well
as evidence.
10) Shelter virus
outbreaks are common, and the animal waiting for trial could be affected by
any shelter virus outbreak.
11) tax payers may foot
the bill for the housing and care of animal.
12) The animal poses a public threat and is too aggressive to
stay in shelter (poses threat to employees) or can not be adopted due to shelter
policy or aggressive nature (liability issues).
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