Violations Of The Fourth Amendment And Other Concerns About … – JD Supra (press release)

In New Jersey, yet another bill amending the animal cruelty statute (S1640) was recently passed into law. The amendments [e]stablish . . . requirements concerning necessary care of dogs, domestic companion animals, and service animals, and for tethering of dogs.

Many of the other provisions requiring necessary care to a companion animal are reasonable if the laws are appropriately enforced by professional law officers, who have sought guidance from individuals with expertise in animal health, care, and handling. Unfortunately this is not the case in New Jersey, where the animal cruelty statute is improperly enforced.

This makes the following provision extremely problematic and of concern to companion animal owners and their attorneys in the State:

any humane law enforcement officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals or county society for the prevention of cruelty to animals, certified animal control officer, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer or agent has reasonable suspicion to believe that the animal is at risk of imminent harm due to a violation of this act.

While an earlier provision requires a showing of probable cause before a court of competent jurisdiction could issue a subpoena permitting law enforcement to enter private property and seize an animal, this latter provision impermissibly violates the Fourth Amendment of the Constitution.

A district court case provides clarity of rights under the Fourth Amendment:

In Badillo v. Amato, Case No. 13-1553, slip op. (D.N.J. Jan. 28, 2014) the Court denied then Monmouth County SPCA Chief Amatos motion to dismiss, in relevant part, Badillos allegation that Amato violated his right to be free from illegal search and seizure under the Fourth Amendment. In this case, Badillo, a priest of the Santeria religion was issued nine municipal court summons for animal animal abuse and neglect after Amato went around to the back of . . . [Badillos house, opened the gate and let himself in the fenced backyard without permission or a warrant and began taking pictures . . . Case No. 13-1553, slip op., at p. 3 (D.N.J. Jan. 28, 2014).

As the Court explained, finding that the Complaint sufficiently pleaded Fourth Amendment violations by Amato to survive a motion to dismiss, the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized. Id., at p. 8 (quoting U.S. Const. amend. IV.)

The Court reaffirmed that not only is the home sacrosanct but that protections afforded by the Fourth Amendment extend not only to a persons home, but also to the curtilage surrounding the property. Id., at p. 8-9 (citing Estate of Smith v. Maraso, 318 F.3d 497, 518-519 (3d Cir. 2003).

It appears that the foregoing provision of the newly amended animal cruelty statute, permitting entry to private property based on merely reasonable suspicion and in the absence of a court order would violate the Fourth Amendment.

Additional concerns about these amendments, previously discussed, remain included in the final adopted law.

For example, a person may not keep a dog (or other domestic companion animal) in an animal crate or carrier for transport, exhibition, show, contest, training or similar event if the top of the head of the dog touches the ceiling of the animal carrier or crate when the dog is in a normal standing position. There are many acceptable, safe dog carriers that permit dogs to stand, turn around and lie down comfortably, but the top of their head would touch the ceiling of the crate.

The public must be adequately informed about this new requirementthat does nothing to provide for the welfare of dogs transported in dog carriersso they are not victims of animal cruelty citations issued by over zealous agents and officers of the NJ or County SPCAs. As noted in the State of New Jersey Commission of Investigation 2000 report on Societies for the Prevention of Cruelty to Animals, at least one County society (Warren) routinely stopped vehicles with horse trailers for proof that a Coggins test certificate was available as required by the NJ Department of Agriculture. As the report concluded:

Not only is the absence of a certificate not cruelty, but SPCA personnel lack the expertise to know whether the horse described in the certificate, such as a Bay or Chestnut [which are specific horse colors and patterns], is in fact the horse being transported.

It would not be unprecedented if humane officers decided to target people traveling with dogs throughout the state, and started pulling over and issuing summons related to the size the their dog carriers.

Dog owners beware!

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Violations Of The Fourth Amendment And Other Concerns About ... - JD Supra (press release)

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