Maryland Animal Law Center E. Anne Benaroya, Esq.

PO Box 1263 Bowie, Maryland 20718 (240) 232-6360 Local: (410) 977-3331 MarylandAnimalLawCenter@GMail.com

Building No-Kill From Sticks and Stones: A Trip To The Courthouse

Introduction
Litigation is an essential vehicle for effecting social change. Great social strides, like Brown v. Board of Ed, Roe v. Wade, and most liberties and rights we consider important have been developed through litigation by using the sticks and stones we find in the common law, and taking them to the courthouse. The rights and liberties that protect the human-animal bond are no different, legally, from those that protect us from the government intrusions in Brown and Roe and the other cases of that ilk. The common law building blocks for those civil rights and liberties are the same tools we use in Building No-Kill communities through litigation. This discussion focuses on how to develop and use those tools. Litigation accomplishes what politics cannot. These days, local and state legislatures tend to be mired in politics, moneyed interests and other factors that make the popularly elected branch of government unresponsive to resident concerns, and reluctant to recognize or codify social progress -- especially in animal-related matters. Undoubtedly, the plaintiffs in Brown and Roe perceived their goals as politically unfeasible, so they were off to the courthouse. Since the work involved in building No-Kill communities can be political unfeasible, our job is to take the proverbial page from the civil rights playbook. The case we discuss here demonstrates the power of common law and the Constitution , and how they can work to change the law in ways previously unimaginable; we won common law protections for community cats and their caretakers, and that protection is grounded in the Constitution.

No Good Deed Goes Unpunished A Winning Case

Our individual liberties and rights sometimes can be found in the negative spaces or in the absence of laws, rules and other public documents. This view enabled a No-Kill advocate to make common law protections for community cats caregivers, The Good Samaritan or No Good Deed Goes Unpunished case. Our situation was analogous to the illegal traffic stop: A police officer stops a motorist because the motorist may run a red light or stop sign, although the motorist has not violated any law whatsoever. The officer then seizes and destroys the car, and tells the motorist that s/he must pay a fine to keep her drivers license. When the motorist

protests, the officer insists that her activities are legitimate exercise of her discretion. In our case, the local animal control agency conducted itself in the same manner; the officers issued fines and warning letters to Good Samaritans for feeding and caring for community cats, sometimes seized and killed the cats, and warned the caretakers that they would be receive double or triple fines should there be another nuisance complaint about the caretaker, the property or caretaking location, or about any cat with the temerity to venture onto the property. Despite this heavy-handed enforcement practice, not a single law had been or was being violated. Neither state nor county had any law, rule or policy banning feeding or caretaking. The cycle repeated itself until we filed suit.

General Outline for Presentation; Appendix included

1. Deconstructing Animal Control and Sheltering Codes: A Scavenger Hunt for civil rights and liberties Deconstructing animal control codes, and pertinent law, is the key to finding the distinction between law, mere assumption, and legitimate animal control agency discretion. Usually animal control agencies rely almost entirely on assumptions, but they are cloaked in language suggesting discretion so the agency can justify over-reaching and life-denying policies in court, in the press and in the community. To understand the difference between discretion and mere assumptions, the law must be examined with an eye toward what it doesnt say deconstructed. In our case, the agency assumed, if you feed it, you own it, a twisted piece of logic because it conflicted with the agencys mission and the county and states legal definitions of feral cat. In other words, you feed it you own it was by no means a legitimate exercise of agency discretion. 2. The Myth of Agency Discretion A. Animal Control agencies do not have discretion to make law where there is none, although they would like us to believe otherwise. A trip to the courthouse is the only place to expose the naked Emperor, and to prove that Animal Control agencies and Pounds are merely the The Man Behind The Curtain, not the omnipotent Wizard. These agencies dont have power or discretion to imbue the law with brains, heart, courage, home or any other attribute that the laws creators didnt vest in the law to begin with, at its inception, or through subsequent amendments. B. A general, but brief understanding of complaint-driven codes helps to understand how agency discretion appears powerful, but usually is nothing more than justification for preserving the status quo, and the agencys deviations(s) from its enabling legislation or mission. Animal control agencies use discretion to justify short-sighted, community-alienating practices and thousands of deaths a year. Our

goal was to cut through the maze of alleged discretion, and to expose it for what it was: A group of incoherent assumptions.1 3. Reviewing and Understanding the sample case: The problems, analysis, solution and implications for Caregivers and Community Cats. Our lawsuit turned on the basic Constitutional principle that an activity not legally prohibited is permitted. One of our most basic Constitutional liberties is the right to go about our daily affairs without government intrusion, unless the government has a legal justification. Although animal control laws are complaint-driven, a complaint often does not justify government intrusion unless the complaint alleges a violation of the law, and many complaints do not. A. We sued for several issues that could be described as Due Process as enforced.2 The idea here is that the government or animal control agency must, at the very least, understand the law and its implications to properly enforce it. In our case, the animal control agency was mired in assumptions, and had elevated them to the status of policy for no discernible or legal reason. B. We briefly discuss typical ploys governments use to derail civil rights cases of this type, The Usual Suspects. To avoid the legal procedural weeds, we discuss practical issues, making sure the right person is bringing the right suit against the right agency. However, the Usual Suspects are included in Item 2 in the Appendix. C. The practical value of this effort cannot be underestimated. In addition to reducing intake at local shelters, the lawsuit enhanced the quality of life for residents in several respects. Landlords used the nuisance clause in the lease to evict the tenant for caretaking. Since caretaking community cats is a protected liberty, a landlord may not evict a tenant for caretaking; the cats were there first, so the caretaker could not legally have created a nuisance, although s/he can manage the nuisance, meaning the human beings who are bothered with reasoned discussion, and manage the cats with the group of activities called, TNR and caretaking Likewise, the ruling protects homeowners from HOA-related intrusions. Detailed discussion of these issues is beyond the scope of this lecture, but we will be glad to provide our legal and dispute resolution recipes to any interested party.

This issue is nuanced, and is a discussion unto itself. I will be glad to discuss the nuances after the lecture. The pleadings, responses and related documents are included in the Appendix, as they may be helpful to attorneys, and those interested in viewing the anatomy of a lawsuit like this one.
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APPENDIX
1. Prince Georges Feral Friends, SPCA, Inc. v. Prince Georges County, Maryland; (Complaint for Declaratory and Injunctive Relief for constitutional claims, Open Meetings Act violations and Petition for Preliminary and Permanent Injunction) 2. Prince Georges Feral Friends, SPCA, Inc. v. Prince Georges County, Maryland; Response to Motion to Dismiss Complaint for Declaratory and Injunctive Relief (Responds to The Usual Suspects) 3. Prince Georges Feral Friends, SPCA, Inc. v. Prince Georges County, Maryland; Motion for Enforcement of Caregiver ruling 4. Original Opinion Letter From Local Government, You Feed it, You Own it 5. Sample selected laws: the germane portions of the Prince Georges County Animal Control Code and germane portions of the Maryland State laws that supersede the countys code.